EXHIBIT (k)(4)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of October 18, 2004, 2004 by and between PFPC
INC., a Massachusetts corporation ("PFPC"), and COLUMBIA INSITUTIONAL FLOATING
RATE INCOME FUND, a Massachusetts business trust (the "Fund").
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 serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
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, and the rules and
regulations of the SEC promulgated thereunder.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
(c) "1940 ACT" has the meaning set forth in the recitals hereof and includes
the rules and regulations of the SEC promulgated thereunder.
(d) "AUTHORIZED PERSON" means any officer of the Fund and any other person
duly authorized by the Fund's Board of Trustees to give Oral Instructions
or Written Instructions on behalf of the Fund and listed on the Authorized
Persons Appendix attached hereto and made a
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part hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Fund by
setting forth such limitation in the Authorized Persons Appendix.
(e) "BOARD OF TRUSTEES" AND "SHAREHOLDERS" shall have the same meanings as set
forth in the Fund's Amended and Restated Agreement and Declaration of
Trust.
(f) "DECLARATION OF TRUST" means the Fund's Amended and Restated Agreement and
Declaration of Trust, as amended from time to time.
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be an
Authorized Person.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act and the 1940 Act.
(j) "SHARES" mean the Fund's shares of beneficial interest, $0.001 par value
per share.
(k) "WRITTEN INSTRUCTIONS" means (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic transaction
reporting system access to which requires use of a password or other
authorized identifier. The instructions may be delivered by hand, mail,
tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the Fund
in accordance with the terms set forth in this Agreement. PFPC accepts such
appointment and agrees to furnish such services.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC agrees to comply with the
applicable requirements of the Securities Laws, and any laws, rules and
regulations of governmental
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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.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon Oral
Instructions or Written Instructions, including standing Written
Instructions related to ongoing instructions received electronically.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to this
Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is 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 Trustees or of the Fund's
Shareholders, unless and until PFPC receives Written Instructions to the
contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming Oral
Instructions (except where such Oral Instructions are given by PFPC or its
affiliates) and shall endeavor to ensure that PFPC receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC shall in no way invalidate the
transactions or enforceability of the transactions authorized by the Oral
Instructions. Where Oral Instructions or Written Instructions reasonably
appear to have been received from an Authorized Person, PFPC shall incur
no liability to the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the other
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provisions of this Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may request
advice at its own cost from such counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC, at the option
of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between directions, advice
or Oral Instructions or Written Instructions PFPC receives from the Fund,
and the advice it receives from counsel, PFPC shall be entitled to rely
upon and follow the advice of counsel provided that such counsel is
selected with reasonable care. PFPC shall promptly inform the Fund of such
conflict and PFPC shall refrain from acting in the event of a conflict
unless counsel advises PFPC that a failure to take action is likely to
result in additional loss, liability or expense. In the event PFPC relies
on the advice of counsel, PFPC remains liable for any action or omission
on the part of PFPC which constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it takes or does
not take in reliance upon directions, advice or Oral Instructions or
Written Instructions it receives from the Fund or (to the extent permitted
under clause (c) above) from counsel and which PFPC believes, in good
faith, to be consistent with those directions, advice or Oral Instructions
or Written Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC (i) to seek such directions, advice or
Oral
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Instructions or Written Instructions, or (ii) to act in accordance with
such directions, advice or Oral Instructions or Written Instructions
unless, under the terms of other provisions of this Agreement, the same is
a condition of PFPC's properly taking or not taking such action. Nothing
in this subsection shall excuse PFPC when an action or omission on the
part of PFPC constitutes willful misfeasance, bad faith, negligence or
reckless disregard by PFPC of any duties, obligations or responsibilities
set forth in this Agreement.
6. RECORDS; VISITS. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC, shall be the property of the
Fund. Such books and records shall be prepared, preserved and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Fund and its duly authorized officers, employees and agents and
the staff of the SEC shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PFPC to the Fund or to
an Authorized Person, at the Fund's expense. No records will be destroyed
without the Fund's written consent.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal performance
results relating to the past, present or future business activities of the Fund
or PFPC, their respective subsidiaries and affiliated companies and the
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customers, clients and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality affords
the Fund or PFPC a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding the
foregoing, information shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the time it is obtained;
(b) is or becomes publicly known or available through no wrongful act of the
receiving party; (c) is rightfully received from a third party who, to the best
of the receiving party's knowledge, is not under a duty of confidentiality; (d)
is released by the protected party to a third party without restriction; (e) is
required to be disclosed by the receiving party pursuant to a requirement of a
court order, subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice of such requirement,
to the extent such notice is permitted); (f) is relevant to the defense of any
claim or cause of action asserted against the receiving party; or (g) has been
or is independently developed or obtained by the receiving party.
8. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such independent public accountants as
reasonably requested by the Fund.
9. 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
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works, inventions, discoveries, patentable or copyrightable matters, concepts,
expertise, patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to the Fund.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment. In the event of equipment
failures, PFPC shall, at no additional expense to the Fund, take reasonable
steps to minimize service interruptions. PFPC shall have no liability with
respect to the loss of data or service interruptions caused by equipment
failure, provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may be agreed
to from time to time in writing by the Fund and PFPC. The Fund acknowledges that
PFPC may receive float benefits and/or investment earnings in connection with
maintaining certain accounts required to provide services under this Agreement.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including without limitation reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) (collectively, "Losses")
arising directly or indirectly from any action or omission to act which
PFPC takes (i) at the request or on the direction of or in reliance on the
advice of the Fund or (ii) upon Oral Instructions or Written Instructions;
provided, however, neither PFPC, nor any of its
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affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) arising out of PFPC's or its affiliates' own
willful misfeasance, bad faith, negligence or reckless disregard of its
duties and obligations under this Agreement; provided further that in the
absence of a finding to the contrary the acceptance, processing and/or
negotiation of a fraudulent payment for the purchase of Shares shall be
presumed not to have been the result of PFPC's or its affiliates own
willful misfeasance, bad faith, negligence or reckless disregard of such
duties and obligations under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, the Fund shall
not be liable to PFPC Trust or its affiliates for any consequential,
special or indirect losses or damages which PFPC Trust or its affiliates
may incur or suffer as a consequence of this Agreement, whether or not the
likelihood of such damages or losses was known by the Fund.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Fund
except as necessary to fulfill its duties and obligations as specifically
set forth herein or as may be specifically agreed to by PFPC in writing.
PFPC shall be obligated to exercise care and diligence in the performance
of its duties hereunder and to act in good faith and to use its best
efforts, within reasonable limits, in performing services provided for
under this Agreement. PFPC agrees to indemnify and hold harmless the Fund
from Losses 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) Without limiting the generality of the foregoing or of any other provision
of this Agreement, (i) PFPC shall not be liable for losses beyond its
control, provided that PFPC
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has acted in accordance with the standard of care set forth above; and
(ii) PFPC shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written Instruction,
notice or other instrument which conforms to the applicable requirements
of this Agreement, and which PFPC reasonably believes to be genuine; or
(B) subject to Section 9, delays or errors or loss of data occurring by
reason of circumstances beyond PFPC's control, including acts of civil or
military authority, national emergencies, labor difficulties, fire, flood,
catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither PFPC
nor its affiliates shall be liable to the Fund for any consequential,
special or indirect losses or damages which the Fund may incur or suffer
by or as a consequence of PFPC's or its affiliates' performance of the
services provided hereunder, whether or not the likelihood of such losses
or damages was known by PFPC or its affiliates.
14. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate service fee payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with shareholders to complete
or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify shareholder lists in conjunction with proxy
solicitations;
(vi) Prepare and mail to shareholders confirmation of direct activity;
(vii) Provide toll-free lines for broker-dealer use, plus customer liaison
staff for on-line inquiry response;
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(viii) Mail duplicate confirmations to broker-dealers of their clients'
activity, when executed directly with PFPC;
(ix) Provide periodic shareholder lists and statistics to the Fund;
(x) Provide detailed data for underwriter/broker confirmations;
(xi) Prepare periodic mailing of year-end tax and statement information;
(xii) Notify on a timely basis the investment adviser, accounting agent,
and custodian of fund activity; and
(xiii) Perform other participating broker-dealer shareholder services as
may be agreed upon from time to time.
(b) SERVICES PROVIDED BY PFPC UNDER ORAL INSTRUCTIONS OR WRITTEN INSTRUCTIONS.
(i) Accept and post share purchases and redemptions;
(ii) Accept, post and perform shareholder transfers; and
(iii) Pay dividends and other distributions.
(c) PURCHASE OF SHARES. PFPC shall issue and credit an account of an investor,
in the manner described in the Fund's prospectus, once it receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of funds for such order to the
Fund's custodian.
(d) REDEMPTION OF SHARES. Shares shall be redeemed and payment therefor shall
be made in accordance with the Fund's prospectus, when the recordholder
tenders shares in proper form and directs the method of redemption. If
shares are received in proper form, shares shall be redeemed before the
funds are provided to PFPC from the Fund's custodian (the "Custodian"). If
the recordholder has not directed that redemption proceeds be wired,
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when the Custodian provides PFPC with funds, the redemption check shall be
sent to and made payable to the recordholder, unless:
(i) transfer authorizations are signed by the recordholder when shares
are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by a customer,
and the Custodian provides PFPC with funds, PFPC shall prepare and send
the redemption check to the broker-dealer and made payable to the
broker-dealer on behalf of its customer.
(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a resolution of the
Fund's Board of Trustees authorizing the declaration and payment of
dividends and distributions, PFPC shall issue dividends and distributions
declared by the Fund in shares, or, upon shareholder election, pay such
dividends and distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon redemption
as described above, shall be made after deduction and payment of the
required amount of funds to be withheld in accordance with any applicable
tax laws or other laws, rules or regulations. PFPC shall mail to the
Fund's direct shareholders such tax forms and other information, or
permissible substitute notice, relating to dividends and distributions
paid by the Fund as are required to be filed and mailed by applicable law,
rule or regulation. PFPC shall prepare, maintain and file with the IRS and
other appropriate taxing authorities reports relating to all dividends
above a stipulated amount paid by the Fund to its shareholders as required
by tax or other law, rule or regulation.
(f) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC may arrange, in accordance with the prospectus, for issuance of
shares obtained through:
- Direct purchases through broker wire orders, checks and
applications.
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(g) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written Instructions, PFPC
shall mail all communications by the Fund to its direct shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices; and
(v) Tax form information.
(h) RECORDS. PFPC shall maintain records of the accounts for each shareholder
showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of shares held;
(iii) Historical information regarding the account of each shareholder,
including dividends and distributions paid and the date and price
for all transactions on a shareholder's account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform any
calculations required by this Agreement.
(i) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from any Fund
shareholder to inspect stock records, PFPC will notify the Fund and the
Fund will issue instructions granting or denying each such request. Unless
PFPC has acted contrary to the Fund's instructions, the Fund agrees to and
does hereby release PFPC from any liability for
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refusal of permission for a particular shareholder to inspect the Fund's
stock records.
(j) LOST SHAREHOLDERS. PFPC shall perform such services as are required in
order to comply with Rules 17a-24 and 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rules"), including, but not limited to, those set forth below.
PFPC may, in its sole discretion, use the services of a third party to
perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply with the
Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for any
escheatment services.
(k) PRINT MAIL. In addition to performing the foregoing services, the Fund
hereby engages PFPC as its exclusive print/mail service provider with
respect to those items and for such fees as may be agreed to from time to
time in writing by the Fund and PFPC.
15. DURATION AND TERMINATION. This Agreement shall continue until terminated
by the Fund or by PFPC on nintey (90) days' prior written notice to the other
party. In the event the Fund gives notice of termination, all expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor accounting and administration services
agent(s) (and any other service provider(s)), and all trailing expenses incurred
by PFPC, will be borne by the Fund.
16. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the Fund,
at __________________
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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 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.
17. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. This Agreement and the rights and duties of the
parties herein may not be assigned or delegated by any party without the written
consent of each party.
19. 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.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the
parties may embody in one or more separate documents their agreement, if
any, with respect to delegated duties and Oral Instructions.
(b) CAPTIONS. 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
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construction or effect.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(d) PARTIAL INVALIDITY. 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) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such
party.
(g) PRIVACY. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part 248.11,
it shall not disclose the non-public personal information of investors in
the Fund obtained under this agreement, except as necessary to carry out
the services set forth in this agreement or as otherwise permitted by law
or regulation.
(h) The Fund will provide such information and documentation as PFPC may
reasonably request in connection with services provided by PFPC to the
Fund.
(i) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that financial
institution on or after October 1, 2003. Certain of PFPC and certain of
its affiliates are financial institutions, and PFPC may, as a matter of
policy, request (or may have already requested) the Fund's name, address
and taxpayer identification number or
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other government-issued identification number, and, if such party is a
natural person, that party's date of birth. PFPC may also ask (and may
have already asked) for additional identifying information, and PFPC may
take steps (and may have already taken steps) to verify the authenticity
and accuracy of these data elements.
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:
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Title:
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COLUMBIA INSTITUTIONAL FLOATING
INCOME FUND
By:
---------------------------------
Title:
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