EXHIBIT (h)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of April 16, 2004 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and
COLUMBIA INSTITUTIONAL FLOATING RATE INCOME FUND, a Massachusetts business trust
(the "Fund").
WITNESSETH:
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is registering $ of its shares of beneficial interest (the "Shares")
under the Securities Act of 1933, as amended (the "1933 Act"), to be offered for
sale in a public offering in accordance with the terms and conditions set forth
in the Prospectus and Statement of Additional Information included in the Fund's
Registration Statement filed with the Securities and Exchange Commission (the
"SEC") on Form N-2, as amended from time to time (the "Registration Statement");
and
WHEREAS, the Fund wishes to retain PFPC Distributors to serve as the
sole principal underwriter for the Fund to provide for the sale and distribution
of the Shares and for any additional Shares which may become registered during
the term of this Agreement, and PFPC Distributors 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) "AUTHORIZED PERSON" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Directors
to give Oral Instructions and Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(b) "NASD" means the National Association of Securities Dealers,
Inc.
(c) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
Distributors from an Authorized Person or from a person
reasonably believed by PFPC Distributors to be an Authorized
Person. PFPC Distributors may, in its sole discretion in each
separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(d) "SECURITIES LAWS", mean the 1933 Act and the 1940 Act.
(e) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed
by an Authorized Person and received by PFPC Distributors or
(ii) trade instructions transmitted (and received by PFPC
Distributors) 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 Distributors to serve as the
sole principal underwriter of the Shares in accordance with the terms
set forth in this Agreement. PFPC Distributors accepts such appointment
and agrees to furnish such services. The Fund agrees from and after the
date of this Agreement that it will not, without the consent of PFPC
Distributors, sell or agree to sell any Shares otherwise than through
PFPC Distributors, except that the Fund may issue Shares in connection
with the reinvestment of distributions made by the Fund. The Fund
understands that PFPC Distributors is now, and may in the future be,
the distributor of the shares of several investment companies or series
(collectively, the "Investment Entities"), including Investment
Entities having investment objectives similar to those of the Fund. The
Fund further understands that investors and potential investors in the
Fund may invest in shares of such other Investment Entities. The Fund
agrees that PFPC Distributors' duties to such Investment Entities shall
not be deemed in conflict with its duties to the Fund under this
Agreement.
3. DELIVERY OF DOCUMENTS.
The Fund agrees to advise PFPC Distributors as soon as reasonably
practical by a notice in writing delivered to PFPC Distributors:
(a) of any request by the SEC for amendments to the
Registration Statement, Prospectus or Statement of
Additional Information then in effect or for
additional information;
(b) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the
Registration Statement, Prospectus or Statement of
Additional Information then in effect or the
initiation by service of process on the Fund of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the Registration
Statement, Prospectus or Statement of Additional
Information then in effect or that requires the
making of a change in such Registration Statement,
Prospectus or Statement of Additional Information in
order to make the statements therein not misleading;
and
(d) of all actions of the SEC with respect to any
amendments to any Registration Statement, Prospectus
or Statement of Additional Information which may from
time to time be filed with the SEC.
For purposes of this paragraph, informal requests by or acts of the
staff of the SEC shall not be deemed actions of or requests by the SEC.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC Distributors 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
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Fund
or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Distributors
shall act only upon Oral Instructions or Written Instructions.
(b) PFPC Distributors 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 Distributors to be an Authorized Person) pursuant to this
Agreement. PFPC Distributors 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 Directors or of the Fund's
Shareholders, unless and until PFPC Distributors receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Distributors Written
Instructions confirming Oral Instructions so that PFPC
Distributors 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 Distributors or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC Distributors' ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC Distributors shall incur no liability
to the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC Distributors' actions comply
with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC Distributors is in doubt as to any
action it should or should not take, PFPC Distributors may
request directions or advice, including Oral Instructions or
Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFPC Distributors shall be in doubt as
to any question of law pertaining to any action it should or
should not take, PFPC Distributors may request advice from
counsel of its own choosing (who may be counsel for the Fund,
the Fund's investment adviser or PFPC Distributors, at the
option of PFPC Distributors).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Distributors receives from the Fund, and the
advice it receives from counsel, PFPC Distributors may rely
upon and follow the advice of counsel.
(d) PROTECTION OF PFPC DISTRIBUTORS. PFPC Distributors shall be
protected in any action it takes or does not take in reliance
upon directions or advice or Oral Instructions or Written
instructions it receives from the Fund or from counsel and
which PFPC Distributors believes, in good faith, to be
consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC
Distributors (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PFPC
Distributors' properly taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC Distributors, shall
be the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable laws,
rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC Distributors'
normal business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by PFPC Distributors to
the Fund or to an Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY.
(a) 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 Distributors,
their respective subsidiaries and affiliated companies and the
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 Distributors 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.
(b) Notwithstanding any provision herein to the contrary, each
party hereto agrees that any Nonpublic Personal information,
as defined under Section 248.3(t) of Regulation S-P
("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx
Act (the "Act"), disclosed by a party hereunder is for the
specific purpose of permitting the other party to perform the
services set forth in this Agreement. Each party agrees that,
with respect to such information, it will comply with
Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with
this Agreement to any other party, except to the extent as
necessary to, carry out the services set forth in this
Agreement or as otherwise permitted by Regulation S-P or the
Act.
9. COMPENSATION. As compensation for services rendered by PFPC
Distributors during the term of this Agreement, the Fund will pay to
PFPC Distributors a fee or fees as may be agreed to from time to time
in writing by the Fund and PFPC Distributors. The Fund acknowledges
that PFPC Distributors may receive float benefits and/or investment
earnings in connection with maintaining certain accounts required to
provide services under this Agreement.
10. INDEMNIFICATION.
(a) The Fund agrees to indemnify and hold harmless PFPC
Distributors and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including,
without limitation, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC
Distributors takes in connection with the provision of
services to the Fund. Neither PFPC Distributors, nor any of
its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) caused by PPPC
Distributors' or its affiliates' own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties
and obligations under this Agreement.
(b) The Fund agrees to indemnify and hold harmless PFPC
Distributors, its officers, directors, and employees, and any
person who controls PFPC Distributors within the meaning of
Section 15 of the 1933 Act, free and harmless (a) from and
against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments
and liabilities of any sort or kind which PFPC Distributors,
its officers, directors, employees or any such controlling
person may incur under the 1933 Act, under any other statute,
at common law or otherwise, arising out of or based upon: (i)
any untrue statement, or alleged untrue statement, of a
material fact contained in the Fund's Registration Statement,
Prospectus, Statement of Additional Information, or sales
literature (including amendments and supplements thereto), or
(ii) any omission, or alleged omission, to state a material
fact required to be stated in the Fund's Registration
Statement, Prospectus, Statement of Additional Information or
sales literature (including amendments or supplements
thereto), necessary to make the statements therein not
misleading, provided, however, that insofar as losses, claims,
damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity
with information furnished to the Fund by PFPC Distributors or
its affiliated persons for use in the Fund's Registration
Statement, Prospectus, or Statement of Additional Information
or sales literature (including amendments or supplements
thereto), such indemnification is not applicable; and (b) from
and against any and all such claims, demands, liabilities and
expenses (including such costs and counsel fees) which PFPC
Distributors, its officers, directors, or employees, or any
such controlling person, may incur in connection with this
Agreement or PFPC Distributors' performance hereunder (but
excluding such claims, demands, liabilities and expenses
(including such costs and counsel fees) arising out of or
based upon any untrue statement, or alleged untrue statement,
of a material fact contained in any Registration Statement or
any Prospectus or arising out of or based upon any omission,
or alleged omission, to state a material fact required to be
stated in either any Registration Statement or any Prospectus
or necessary to make the statements in either thereof not
misleading), unless such claims, demands, liabilities and
expenses (including such costs and counsel fees) arise by
reason of PFPC Distributors' willful misfeasance, bad faith or
gross negligence in the performance of PFPC Distributors'
duties hereunder. The Fund acknowledges and agrees that in the
event that PFPC Distributors is required to give
indemnification comparable to that set forth in this paragraph
to any registered investment adviser recommending the purchase
of Shares by its clients, broker-dealer selling Shares of the
Fund or servicing agent servicing the Shareholders of the Fund
and such entity shall make a claim for indemnification against
PFPC Distributors, PFPC Distributors shall make a similar
claim for indemnification against the Fund.
(c) PFPC Distributors agrees to indemnify and hold harmless the
Fund, its several officers and Board Members and each person,
if any, who controls a the Fund within the meaning of Section
15 of the 1933 Act against any and all claims, costs, expenses
(including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind which
the Fund, its officers, Board Members or any such controlling
person may incur under the 1933 Act, under any other statute,
at common law or otherwise, but only to the extent that such
liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person resulting from such
claims or demands arose out of the acquisition of any Shares
by any person which may be based upon any untrue statement, or
alleged untrue statement, of a material fact contained in the
Fund's Registration Statement, Prospectus or Statement of
Additional information (including amendments and supplements
thereto), or any omission, or alleged omission, to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, if such statement
or omission was made in reliance upon information furnished or
confirmed in writing to the Fund by PFPC Distributors or its
affiliated persons (as defined in the 1940 Act). The foregoing
rights of indemnification shall be in addition to any other
rights to which the Fund or any such person shall be entitled
as a matter of law.
(d) In any case in which one party hereto (the "Indemnifying
Party") may be asked to indemnify or hold the other party
hereto (the "Indemnified Party") harmless, the Indemnified
Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or
appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party,
although the failure to do so shall not prevent recovery by
the Indemnified Party, and shall keep the Indemnifying Party
advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to
defend the Indemnified Party against any Indemnification Claim
which may be the subject of this indemnification, and, in the
event that the Indemnifying Party so elects, such defense
shall be conducted by counsel chosen by the Indemnifying Party
and satisfactory to the Indemnified Party, and thereupon the
Indemnifying Party shall take over complete defense of the
Indemnification Claim and the Indemnified Party shall sustain
no further legal or other expenses in respect of such
Indemnification Claim. In the event that the Indemnifying
Party does not elect to assume the defense of any such suit,
or in case the Indemnified Party reasonably does not approve
of counsel chosen by the Indemnifying Party, or in case there
is a conflict of interest between the Indemnifying Party or
the Indemnified Party, the Indemnifying Party will reimburse
the Indemnified Party for the fees and expenses of any counsel
retained by the Indemnified Party. TheFund agrees promptly to
notify PFPC Distributors of the commencement of any litigation
or proceedings against the Fund or any of its officers or
directors in connection with the issue and sale of any Shares.
The Indemnified Party will not confess any Indemnification
Claim or make any compromise in any case in which the
Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent.
11. RESPONSIBILITY OF PFPC DISTRIBUTORS.
(a) PFPC Distributors 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
Distributors and the Fund in a written amendment hereto. PFPC
Distributors 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 Distributors shall be liable only for any
damages arising out of PFPC Distributors' failure to perform
its duties under this Agreement to the extent such damages
arise out of PFPC Distributors' willful misfeasance, bad
faith, gross 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 Distributors shall
not be liable for losses beyond its control, including,
without limitation, delays or errors or loss of data occurring
by reason of circumstances beyond PFPC. Distributors' control,
provided that PFPC Distributors has acted in accordance with
the standard set forth in Section 11 (a) above; and (ii) PFPC
Distributors shall not be under any duty or obligation to
inquire into and shall not be liable for 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 Distributors reasonably believes to
be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Distributors nor its affiliates shall be liable
for any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by PFPC Distributors or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
12. DUTIES AND OBLIGATIONS OF THE FUND.,
(a) The Fund represents to PFPC Distributors that all Registration
Statements and Prospectuses filed by the Fund with the SEC
under the 1933 Act with respect to the Shares have been
prepared in conformity with the requirements of the 1933 Act
and the rules and regulations of the SEC thereunder. Except as
to information included in the Registration Statement in
reliance upon information provided to the Fund by PFPC
Distributors or any affiliate of PFPC Distributors expressly
for use in the Registration Statement, the Fund represents and
warrants to PFPC Distributors that any Registration Statement,
when such Registration Statement becomes effective, will
contain statements required to be stated therein in conformity
with the 1933 Act and the rules and regulations of the SEC;
and that no Registration Statement when such Registration
Statement becomes effective will include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading to a purchaser of the Shares. PFPC
Distributors may but shall not be obligated to propose from
time to time such amendment or amendments to any Registration
Statement and such supplement or supplements to any Prospectus
as, in the light of future developments, may, in the opinion
of the PFPC Distributors' counsel, be necessary or advisable.
PFPC Distributors shall promptly notify the Fund of any advice
given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration
Statement. If the Fund shall not propose such amendment or
amendments and/or supplement or supplements within fifteen
days after receipt by the Fund of a written request from PFPC
Distributors to do so, PFPC Distributors may, at its option,
terminate this Agreement. The Fund shall not file any
amendment to any Registration Statement or supplement to any
Prospectus without giving PFPC Distributors reasonable notice
thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit the Fund's right to
file at any time such amendments to any Registration
Statements and/or supplements to any Prospectus, of whatever
character, as the Fund may deem advisable, such right being in
all respects absolute and unconditional. The Fund authorizes
PFPC Distributors to use any Prospectus or Statement of
Additional Information in the form furnished from time to time
in connection with the sale of the Shares.
(b) The Fund represents and warrants to PFPC Distributors that the
Fund is an investment company registered under the 1940 Act
and the Shares sold by the Fund are, and will be, registered
under the 1933 Act.
(c) The net asset value of the Shares shall be determined in the
manner provided in the then current Prospectus and Statement
of Additional Information relating to the Shares, and when
determined shall be applicable to all transactions as provided
in the Prospectus. The net asset value of the Shares. shall be
calculated by the Fund or by another entity on behalf of the
Fund. PFPC Distributors shall have no duty to inquire into, or
liability for, the accuracy of the net asset value per Share
as calculated.
(d) Whenever in its judgment such action is warranted by unusual
market, economic or political conditions or abnormal
circumstances of any kind, the Fund may decline to accept any
orders for, or make any sales of, the Shares until such time
as the Fund deems it advisable to accept such orders and to
make such sales, and the Fund advises PFPC Distributors
promptly of such determination.
(e) The Fund agrees to execute any and all documents and to
furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with
the qualification of the Shares for sale in such states as
PFPC Distributors may designate. The Fund shall notify PFPC
Distributors in writing of the states in which the Shares may
be sold and shall notify PFPC Distributors in writing of any
changes to the information contained in the previous
notification.
13. DUTIES AND OBLIGATIONS OF PFPC DISTRIBUTORS.
(a) PFPC Distributors agrees to use its best efforts to sell
Shares. It is understood that PFPC Distributors does not
undertake to sell all or any specific number or amount of
Shares.
(b) PFPC Distributors will act on behalf of the Fund for the
distribution of the Shares covered by the Registration
Statement under the 1933 Act and provide the distribution
services outlined below and as follows: (i) preparation and
execution of sales or servicing agreements, (ii) preparation
of quarterly reports to the Board with respect to any service
and distribution fee, (iii) literature review, recommendations
and submission to the NASD.
(c) PFPC Distributors agrees to use efforts deemed appropriate by
PFPC Distributors to solicit orders for the sate of the Shares
and will undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. To
the extent that PFPC Distributors receives services and
distribution fees under any plan adopted by the Fund, PFPC
Distributors agrees to enter into arrangements with others for
the furnishing of, distribution, personal and/or account
maintenance services with respect to the relevant Shareholders
of the Fund as may be required pursuant to such plan. It is
contemplated that PFPC Distributors will enter into agreements
with broker-dealers or other financial institutions that will
recommend the purchase of Shares to its clients. PFPC
Distributors will require each such financial institution with
whom PFPC Distributors has an agreement to conform to the
applicable provisions of the Prospectus.
(d) PFPC Distributors shall not utilize any materials in
connection with the sale or offering of Shares except the
Fund's Prospectus and Statement of Additional Information and
such other materials as the Fund shall approve.
(e) PFPC Distributors will transmit any orders received by it for
purchase of the Shares to the transfer agent for the Fund.
PFPC Distributors will have no liability for payment for the
purchase of Shares sold pursuant to this Agreement.
(f) No Shares shall be offered by either PFPC Distributors or the
Fund under any of the provisions of this Agreement and no
orders for the purchase of Shares hereunder shall be accepted
by the Fund if and so long as effectiveness of the
Registration Statement (hen in effect or any necessary
amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current
Prospectus as required by Section 5(b)(2) of the 1933 Act is
not on file with the SEC.
(g) All solicitations by PFPC Distributors pursuant to this
Agreement shall be for orders to purchase Shares of the fund
at the public offering price. The public offering price for
each accepted subscription for the Fund's shares will be the
net asset value per share next determined by the Fund after it
(or its duly authorized agent) accepts such subscription.
(h) If and whenever the determination of the Fund's net asset
value is suspended and until such suspension is terminated, no
further orders for Shares shall be accepted by the Fund except
such unconditional orders placed with the Fund and accepted by
it before the suspension. In addition, the Fund reserves the
right to suspend sales of the Shares if, in the judgment of
the Board of the Fund, it is in the best interest of the Fund
to do so, such suspension to continue for such period as may
be determined by the Board of the Fund; and in that event, (i)
at the direction of the Fund, PFPC Distributors shall suspend
its solicitation of orders to purchase Shares of the Fund
until otherwise instructed by the Fund and (ii) no orders to
purchase Shares shall be accepted by the Fund while such
suspension remains in effect unless otherwise directed by its
Board.
14. DURATION AND TERMINATION. This Agreement shall become effective on the
date first written above and, unless sooner terminated as provided
herein, shalt continue for an initial two-year term and thereafter
shall be renewed for successive one-year terms, provided such
continuance is specifically approved at least annually by (i) the
Fund's Board of Directors or (ii) by a vote of a majority (as defined
in the 0000 Xxx) of the outstanding voting securities of the Fund,
provided that in either event the continuance is also approved by a
majority of the Board Members who are not parties to this Agreement and
who are not interested persons (as defined in the 0000 Xxx) of any
party to this Agreement and have no direct or indirect financial
interest in the operation of any plan under which assets of the Fund
may be used to finance the distribution of Fund shares, by vote cast in
person at a meeting called for the purpose of voting on such approval.
This Agreement is terminable without penalty, on at least sixty days'
written notice, by the Fund's Board of Directors, by vote of a majority
(as defined in the 0000 Xxx) of the outstanding voting securities of
the Fund, or by PFPC Distributors. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940
Act and the rules thereunder).
15. NOTICES. Notices shall be addressed (a) if to PFPC Distributors, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b)
if to the Fund, at Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000,
Attention: Xxxxx X. Xxxxxxxx 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.
16. 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.
17. COUNTERPARTS. This Agreement may be executed in two or more
counter-parts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
18. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
19. MISCELLANEOUS.
(a) 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.
(b) Notwithstanding anything in this Agreement to the contrary,
the Fund agrees not to make any modifications to its
registration statement or adopt any policies which would
affect materially the obligations or responsibilities of PFPC
Distributors hereunder without the prior written approval of
PFPC Distributors, which approval shall not be unreasonably
withheld or delayed.
(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.
(d) 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.
(e) 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.
(f) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors
and permitted assigns.
(g) Except as expressly provided in this Agreement, PFPC
Distributors hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this
Agreement. PFPC Distributors disclaims any warranty of title
or non-infringement except as otherwise set forth in this
Agreement.
(h) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
(i) The Fund will provide such information and documentation as
PFPC Distributors may reasonably request in connection with
services provided by PFPC to the Fund.
(j) 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 Distributors and certain of its
affiliates are financial institutions, and PFPC Distributors
may, as a matter of policy, request (or may have already
requested) the Fund's name, address and taxpayer
identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC Distributors may also ask
(and may have already asked) for additional identifying
information, and PFPC Distributors 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 DISTRIBUTORS, INC.
By:
Title:
COLUMBIA INSTITUTIONAL FLOATING RATE
INCOME FUND
By:
Title:
