EXHIBIT 99.B2(k)(i)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of December 20, 2002 by and between COLUMBIA
MANAGEMENT MULTI-STRATEGY HEDGE FUND, LLC, a Delaware limited liability company
(the "Fund"), and PFPC INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H :
WHEREAS, the Fund is registered as a closed-end, non-diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund wishes to retain PFPC to provide certain administration,
accounting and investor services provided for herein, and PFPC wishes to furnish
such services.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any person authorized by the Fund to give
Proper Instructions (as defined below) on behalf of the Fund and in
respect of whom PFPC has not received written notice from the Fund
that such authorization has been revoked.
(d) "CHANGE OF CONTROL" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
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(e) "INTERESTS" mean Interests in the Fund, as defined in it's Operating
Agreement.
(f) "MEMBER" shall have the same meaning given such term in the LLC
Agreement (as hereinafter defined).
(g) "ORGANIZATIONAL DOCUMENTS" means the Fund's charter or articles of
incorporation, Limited Liability Company Agreement ("LLC
Agreement"), bylaws, confidential memorandum and other documents
constituting the Fund.
(h) "PROPER INSTRUCTIONS" means instructions (which may be standing
instructions) received by PFPC from an Authorized Person, in any of
the following forms:
(i) in writing signed by an Authorized Person; or
(ii) in communication utilizing access codes effected between
electronic devices as may be agreed upon by the parties in
writing from time to time; or
(iii) by such other means as may be agreed upon in writing from
time to time, including, without limitation orally, subject
to the terms of this Agreement.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" means the 1933 Act, the 1934 Act and the 1940 Act.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration,
accounting and investor services to the Fund, in accordance with the terms
set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's directors, approving the appointment of
PFPC to provide services to the Fund and approving this Agreement;
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(b) a copy of the Fund's most recent effective registration statement on
Form N-2 under the 1940 Act, as filed with the SEC;
(c) a copy of all of the Fund's Organizational Documents, including
without limitation, its Operating Agreement;
(d) a copy of the Fund's advisory agreements;
(e) a copy of any distribution agreement with respect to each class of
Interests of the Fund;
(f) a copy of any additional administration agreement with respect to
the Fund;
(g) a copy of any pricing policies of the Fund; and
(h) copies (certified or authenticated, where applicable) of any and all
amendments or supplements to the foregoing.
In addition, the Fund agrees to provide PFPC with copies of any other
documents, as amended, as PFPC may reasonably request in connection with
PFPC's provision of the services under this Agreement.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Proper Instructions.
(b) PFPC shall be entitled to rely upon any Proper Instructions it
receives from an Authorized Person pursuant to this Agreement. PFPC
may assume that any
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Proper Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents or this
Agreement or of any vote, resolution or proceeding of the Fund's
Board of Directors, unless and until PFPC receives Proper
Instructions to the contrary.
(c) If the Fund and PFPC agree that Proper Instructions may be delivered
orally (in person or by telephone), the Fund agrees to forward to
PFPC written confirmation by an Authorized Person of any oral Proper
Instructions by the close of business on the same day that such oral
Proper Instructions are received. The fact that such confirmations
are not received by PFPC or differ from the oral Proper Instructions
shall in no way invalidate the transactions or enforceability of the
transactions authorized by the oral Proper Instructions or PFPC's
ability to rely upon such oral Proper Instructions.
6. RIGHT TO REQUEST ADVICE.
If PFPC is in doubt as to any action it should or should not take, PFPC may
request directions or advice, including Proper Instructions, from the Fund.
PFPC may consult with legal counsel to the Fund as necessary and
appropriate.
7. RECORDS.
In compliance with the requirements of Rule 31a-3 under the 1940 Act, PFPC
hereby agrees that all records that it maintains for the Fund are the
property of the Fund and PFPC further agrees to surrender promptly to the
Fund any of such records upon the Fund's request. PFPC further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the
records that are required to be maintained under Rule 31a-1 of the 1940
Act.
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8. CONFIDENTIALITY.
(a) PFPC agrees on behalf of itself and its employees to keep
confidential all records and other information related to the Fund, and the
shareholders of the Fund, except in cases in which PFPC is required by law
to disclose such information, PFPC is required to disclose such information
to a governmental or regulatory agency, PFPC has determined that such
disclosure is necessary for the protection of its interests, PFPC has been
requested by the Fund to make such disclosure, or PFPC has received the
prior written consent of the Fund to make such disclosure. PFPC agrees to
use the information it receives from the Fund only for the purposes of
performing services under this Agreement. PFPC shall adopt and implement
security procedures to protect from improper disclosure or use all
confidential information, such procedures to be reasonably acceptable to
the Fund and in compliance with all applicable regulatory requirements.
(b) The Fund agrees on behalf of itself and its employees to keep
confidential all records and other information related to PFPC which it may
receive, except in cases in which the Fund is required by law to disclose
such information, the Fund is required to disclose such information to a
governmental or regulatory agency, the Fund has determined that such
disclosure is necessary for the protection of its interests, the Fund has
been requested by PFPC to make such disclosure, or the Fund has received
the prior written consent of PFPC to make such disclosure. The Fund shall
adopt and implement security procedures to protect from improper disclosure
or use all confidential information, such procedures to be reasonably
acceptable to PFPC.
9. COOPERATION WITH ACCOUNTANTS. If requested by the Fund, PFPC shall act as
liaison with the Fund's independent public accountants and shall be
responsible for providing account
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analyses, fiscal year summaries, and other audit-related schedules with
respect to the Fund. PFPC shall assure that the necessary information is
timely made available to the Fund's independent accountants for the
expression of their opinion.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights and/or
trade secrets developed by PFPC.
11. DISASTER RECOVERY.
(a) PFPC shall maintain throughout the term of this Agreement a disaster
recovery plan (the "Disaster Recovery Plan") in compliance with all
regulatory requirements, which Disaster Recovery Plan shall cover
all the services provided under this Agreement. For purposes of this
Agreement, "Disaster" means any unplanned interruption of operations
that materially affects the ability of PFPC to provide services.
(b) The Disaster Recovery Plan shall provide that, following the
declaration of a Disaster, PFPC is able to resume all services in
accordance therewith utilizing a disaster recovery site, within the
time periods specified in the Disaster Recovery Plan. The Fund may
terminate this Agreement in accordance with Section 19(d) in the
event that there is a Disaster and PFPC is unable to provide the
services in accordance with the Disaster Recovery Plan.
(c) PFPC shall, at a minimum, test the Disaster Recovery Plan by
conducting one (1) test annually and shall provide the Fund with a
description of the test results.
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12. AUDITS OF PFPC SYSTEMS AND FACILITIES. PFPC shall, no more frequently than
annually, during regular business hours, upon reasonable notice and at the
Fund's expense, permit the Fund or its representatives to perform audits of
the facilities, equipment, books and records (electronic or otherwise) and
operational systems of PFPC relating to the Fund or the servicing of the
Fund pursuant to this Agreement to ensure PFPC's compliance with the terms
and conditions of this Agreement and applicable regulations and laws,
including but not limited to PFPC's policies relating to internal control
and security, business resumption, continuity, recovery, and contingency
plans.
13. COMPENSATION. As compensation for services set forth herein that are
rendered by PFPC during the term of this Agreement, the Fund will pay to
PFPC a fee or fees as may be agreed to in writing by the Fund and PFPC.
14. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless
PFPC, its affiliates and their respective officers, directors, agents and
employees from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, reasonable attorneys' fees)
arising directly or indirectly from any action or omission to act which
PFPC takes in connection with the provision of services to the Fund.
Neither PFPC, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by PFPC's or
its affiliates' own willful misfeasance, bad faith, negligence or reckless
disregard in the performance of PFPC's duties under this Agreement. The
provisions of this Section 14 shall survive termination of this Agreement.
15. RESPONSIBILITY OF PFPC.
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(a) PFPC shall be under no duty to take any action hereunder on behalf
of the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Fund in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in
the performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of PFPC's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFPC's willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
(b) PFPC shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion, interruption;
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party. To the extent that such
circumstances render PFPC unable to provide services under this
Agreement, the Fund may terminate this Agreement in accordance with
Sections 11 and 19(d).
(c) PFPC shall not be under any duty or obligation to inquire into and
shall not be liable for the validity or invalidity, authority or
lack thereof, or truthfulness or accuracy or lack thereof, of any
Proper Instructions that PFPC reasonably believes to be genuine.
(d) In no event shall either party to this Agreement be liable to the
other party for indirect, special or consequential damages.
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(e) The provisions of this Section 15 shall survive termination of this
Agreement.
16. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to each
portfolio:
(i) Journalize investment, capital and income and expense
activities;
(ii) Verify investment instructions are properly authorized
before directing cash flows, and confirm receipt of money at
investment funds in accordance with PFPC's written
procedures;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Record and reconcile corporate action activity and all other
capital changes;
(vi) Reconcile cash and investment balances of the Fund with the
Fund's custodian(s), and provide the Adviser with the
beginning cash balance available for investment purposes.
(vii) Calculate contractual expenses, including management fees
and incentive allocation, as applicable, in accordance with
the Fund's confidential memorandum;
(viii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations in U.S. dollar terms;
(ix) Monitor the expense accruals and notify and officer of the
Fund of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
from the Fund's account with the custodian(s) upon Written
Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain daily security market quotes and currency exchange
rates from independent pricing services approved by the
Adviser, or if such quotes are unavailable, then obtain the
net asset value, or if the net asset value is unavailable,
the net rate of return, directly from the underlying fund's
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adviser or general partner, or its delegee, and in either
case calculate the market value of the Fund's investments in
accordance with the applicable valuation policies or
guidelines provided by the Fund to PFPC and acceptable to
PFPC;
(xiv) Transmit or mail a copy of the monthly portfolio valuation
to the Adviser;
(xv) Arrange for the computation of the net asset value in
accordance with the provisions of the Fund's LLC Agreement
and confidential memorandum;
(xvi) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required, portfolio
average dollar-weighted maturity;
(xvii) Prepare annual reports and coordinate annual audit by Fund's
auditor;
(xviii) Prepare a monthly financial statement, which will include
the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
17. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following administration services if required with respect to
each portfolio:
(i) Prepare monthly security transaction listings;
(ii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iii) Prepare for execution and file the Fund's Federal Form 1065 and
state tax returns;
(iv) Coordinate contractual relationships and communications between the
Fund and its contractual service providers including auditors, tax
professionals, and custodians, as applicable;
(v) Prepare and file the Fund's Annual and Semi-Annual Reports with the
SEC on Form N-SAR via XXXXX;
(vi) Prepare and file the Fund's Annual and Semi-Annual Reports with the
SEC on Form N-30D via XXXXX and coordinate printing of the reports;
(vii) Copy the board of managers on routine correspondence sent to
Members; and
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(viii) Perform such additional administrative duties relating to the
administration of the Fund as may subsequently be agreed upon in
writing between the Fund and PFPC.
17A. DESCRIPTION OF REGULATORY ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following functions:
(i) Assist in the preparation of post-effective registration amendments
and other filings subject to the review of Fund management and Fund
counsel;
(ii) Monitor the Fund's assets to assure adequate fidelity bond coverage
is maintained;
(iii) Maintain the Fund's corporate calendar to assure compliance with
various filing and board approval deadlines;
(iv) Assist in the development of agendas, reports, and Board materials
for board meetings, and prepare Board books using such materials;
(v) Prepare and present quarterly Administrator's Report; and
(vi) Assist in preparing for and complying with regulatory examinations,
and provide assistance with regulatory agencies during their normal
review of the Fund.
18. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS BASIS. PFPC will perform
the following functions:
(i) Maintain the register of Members and enter on such register
all issues, transfers and repurchases of interests in the
Fund;
(ii) Coordinate the printing, mailing and tracking of periodic
tender offers;
(iii) Calculate the pro-rata tender amounts in the event a tender
offer is oversubscribed;
(iv) Allocate income, expenses, gains and losses to individual
Members' capital accounts in accordance with the Fund's LLC
Agreement;
(v) Calculate the Incentive Allocation in accordance with the
Fund's LLC Agreement and reallocate corresponding amounts
from the applicable Members' accounts to the Adviser's
account;
(vi) Prepare and mail annually to each Member a Form K-1 in
accordance with applicable tax regulations;
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(vii) Mail Fund offering materials to prospective investors in
accordance with instructions from an Authorized Person;
(viii) Mailing and collecting responses to periodic tender offers;
(ix) Mail to investors annually the mid-fiscal year unaudited
financial statements and fiscal year end audited financial
statements;
(x) Confirm capital transactions to investors and/or
distributors; and
(xi) Provide statements of account and other notices as needed to
investors as agreed upon in writing.
19. DURATION AND TERMINATION.
(a) This Agreement shall continue until terminated by either party on
(60) days' prior written notice to the other party.
(b) In the event of termination, all reasonable costs and expenses
associated with the movement of records and materials and conversion
thereof will be borne by the Fund. PFPC and the Fund will each use
commercially reasonable efforts in cooperating with the other party,
and any person succeeding to the obligations of either party
hereunder, to facilitate the termination of this Agreement and any
transitional activities necessitated thereby.
(c) If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days' written notice of such termination to the
Defaulting Party. Termination of this Agreement by the
Non-Defaulting Party shall not constitute a
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waiver of any other rights or remedies with respect to obligations
of the parties prior to such termination or rights of PFPC to be
reimbursed for out-of-pocket expenses. In all cases, termination by
the Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this
Agreement or otherwise against the Defaulting Party.
19A. CHANGE OF CONTROL. Notwithstanding any other provision of this Agreement,
in the event of an agreement to enter into a transaction that would result
in a Change of Control of the Fund's adviser or sponsor, the Fund's ability
to terminate the Agreement pursuant to Section 19 will be suspended from
the time of such agreement until one year after the Change of Control.
20. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Managing Director,
Alternative Investment Group; (b) if to the Fund, at x/x Xxxxxxx Xxxxx, 000
Xxxxxxx Xxxxxx, 0xx Xxxxx, Mailstop: MADE 10003D, Xxxxxx, XX 00000; or (c)
if to neither of the foregoing, at such other address as shall have been
given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been
given immediately. If notice is sent by first-class mail, it shall be
deemed to have been given three days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it is
delivered.
21. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by a duly authorized representative of
each party to this Agreement. The term "Agreement", as used herein,
includes all schedules and
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attachments hereto and any future written amendments, modifications, or
supplements made in accordance with this Section 21. A party's waiver of a
breach of any term or condition in the Agreement shall not be deemed a
waiver of any subsequent breach of the same or another term or condition.
22. ASSIGNMENT. This Agreement shall not be assigned without the prior written
consent of each party to this Agreement, except that either party may
assign its rights and obligations hereunder to a party controlling,
controlled by, or under common control with such party.
23. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
24. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
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25. MISCELLANEOUS.
(a) The Fund agrees not to make any modifications to its registration
statement or adopt any policies that would affect materially the
obligations or responsibilities of PFPC hereunder without providing
prior written notice to PFPC.
(b) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(c) The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
Notwithstanding any provision hereof, the services of PFPC are not,
nor shall they be, construed as constituting legal advice or the
provision of legal services for or on behalf of the Fund or any
other person.
(d) This Agreement shall be deemed to be a contract made in
Massachusetts and governed by Massachusetts law without regard to
principles of conflict of law.
(d) If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
(e) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted
assigns.
(f) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Xxxx Xxxxxxx
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Title:
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COLUMBIA MANAGEMENT MULTI-
STRATEGY HEDGE FUND, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Title: Vice President
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PFPC USE ONLY:
Business Approval By:
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Date:
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Legal Approval By:
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Date:
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