AMENDED AND RESTATED
ACCOUNTING AND BOOKKEEPING AGREEMENT
This Agreement is made this 1st day of November, 2003, by and between
Columbia Floating Rate Limited Liability Company, a limited liability company
organized under the laws of the State of Delaware (hereinafter referred to as
the "Fund"), and Columbia Management Advisors, Inc. ("Columbia Management"), an
Oregon corporation.
1. Appointment. The Fund hereby appoints Columbia Management to
act as its agent to perform the services described herein with
respect to the Fund. Columbia Management hereby accepts
appointment as the Fund's agent and agrees to perform the
services described herein.
2. Accounting.
(a) Pricing. Columbia Management shall value all securities and other
assets of the Fund, and compute the net asset value per share of
the Fund, at such times and dates and in the manner and by such
methodology as is specified in the then currently effective
prospectus and statement of additional information for the Fund,
and pursuant to such other written procedures or instructions
furnished to Columbia Management by the Fund. To the extent
procedures or instructions used to value securities or other
assets of the Fund under this Agreement are at any time
inconsistent with any applicable law or regulation, the Fund
shall provide Columbia Management with written instructions for
valuing such securities or assets in a manner which the Fund
represents to be consistent with applicable law and regulation.
(b) Net Income. Columbia Management shall calculate with such
frequency as the Fund shall direct, the net income of the Fund
for dividend purposes and on a per share basis. Such calculation
shall be at such times and dates and in such manner as the Fund
shall instruct Columbia Management in writing. For purposes of
such calculation, Columbia Management shall not be responsible
for determining whether any dividend or interest accruable to the
Fund is or will be actually paid, but will accrue such dividend
and interest unless otherwise instructed by the Fund.
(c) Capital Gains and Losses. Columbia Management shall calculate
gains or losses of the Fund from the sale or other disposition of
assets as the Fund shall direct.
(d) Yields. At the request of the Fund, Columbia Management shall
compute yield for the Fund for such periods and using such
formula as shall be instructed by the Fund.
(e) Communication of Information. Columbia Management shall provide
the Fund, the Fund's transfer agent and such other parties as
directed by the Fund with the net asset value per share, the net
income per share and yields for the Fund at such time and in such
manner and format and with such frequency as the parties mutually
agree.
(f) Information Furnished by the Fund. The Fund shall furnish
Columbia Management with any and all instructions, explanations,
information, specifications and documentation deemed necessary by
Columbia Management in the performance of its duties hereunder,
including, without limitation, the amounts and/or written formula
for calculating the amounts, and times of accrual of liabilities
and expenses of the Fund. The Fund shall also at any time and
from time to time furnish Columbia Management with bid, offer
and/or market values of securities owned by the Fund if the same
are not available to Columbia Management from a pricing or
similar service designated by the Fund for use by Columbia
Management to value securities or other assets. Columbia
Management shall at no time be required to commence or maintain
any utilization of, or subscriptions to, any such service which
shall be the sole responsibility and expense of the Fund.
3. Recordkeeping.
(a) Columbia Management shall, as agent for the Fund, maintain and
keep current and preserve the general ledger and other accounts,
books, and financial records of the Fund relating to activities
and obligations under this Agreement in accordance with the
applicable provisions of Section 31(a) of the General Rules and
Regulations under the Investment Company Act of 1940, as amended
(the "Rules").
(b) All records maintained and preserved by Columbia Management
pursuant to this Agreement which the Fund is required to maintain
and preserve in accordance with the Rules shall be and remain the
property of the Fund and shall be surrendered to the Fund
promptly upon request in the form in which such records have been
maintained and preserved.
(c) Columbia Management shall make available on its premises during
regular business hours all records of the Fund for reasonable
audit, use and inspection by the Fund, its agents and any
regulatory agency having authority over the Fund.
4. Instructions, Opinion of Counsel, and Signatures.
(a) At any time Columbia Management may apply to a duly authorized
agent of the Fund for instructions regarding the Fund, and may
consult counsel for the Fund or its own counsel, in respect of
any matter arising in connection with this Agreement, and it
shall not be liable for any action taken or omitted by it in good
faith in accordance with such instructions or with the advice or
opinion of such counsel. Columbia Management shall be protected
in acting upon any such instruction, advice, or opinion and upon
any other paper or document delivered by the Fund or such counsel
believed by Columbia Management to be genuine and to have been
signed by the proper person or persons and shall not be held to
have notice of any change of authority of any officer or agent of
the Fund, until receipt of written notice thereof from the Fund.
(b) Columbia Management may receive and accept a certified copy of a
vote of the Board of Trustees of the Fund as conclusive evidence
of (i) the authority of any person to act in accordance with such
vote or (ii) any determination or any action by the Board of
Trustees pursuant to its Agreement and Declaration of Fund as
described in such vote, and such vote may be considered as in
full force and effect until receipt by Columbia Management of
written notice to the contrary.
5. Compensation. The Fund will pay Columbia Management an annual fee
of $10,000, paid monthly. The Fund also shall reimburse Columbia
Management for any and all out-of-pocket expenses and charges,
including fees payable to third parties for pricing the Fund's
portfolio securities, in performing services under this
Agreement.
6. Confidentiality of Records. Columbia Management agrees not to
disclose any information received from the Fund to any other
client of Columbia Management or to any other person except its
employees and agents, and shall use its best efforts to maintain
such information as confidential. Upon termination of this
Agreement, Columbia Management shall return to the Fund all
records in the possession and control of Columbia Management
related to the Fund's activities, other than Columbia
Management's own business records, it being also understood and
agreed that any programs and systems used by Columbia Management
to provide the services rendered hereunder will not be given to
the Fund.
7. Liability and Indemnification.
(a) Columbia Management shall not be liable to the Fund for any
action taken or thing done by it or its employees or agents on
behalf of the Fund in carrying out the terms and provisions of
this Agreement if done in good faith and without negligence or
misconduct on the part of Columbia Management, its employees or
agents.
(b) The Fund shall indemnify and hold Columbia Management, and its
controlling persons, if any, harmless from any and all claims,
actions, suits, losses, costs, damages, and expenses, including
reasonable expenses for counsel, incurred by it in connection
with its acceptance of this Agreement, in connection with any
action or omission by it or its employees or agents in the
performance of its duties hereunder to the Fund, or as a result
of acting upon instructions believed by it to have been executed
by a duly authorized agent of the Fund or as a result of acting
upon information provided by the Fund in form and under policies
agreed to by Columbia Management and the Fund, provided that: (i)
this indemnification shall not apply to actions or omissions
constituting negligence or misconduct on the part of Columbia
Management or its employees or agents, including but not limited
to willful misfeasance, bad faith, or gross negligence in the
performance of their duties, or reckless disregard of their
obligations and duties under this Agreement; and (ii) Columbia
Management shall give the Fund prompt notice and reasonable
opportunity to defend against any such claim or action in its own
name or in the name of Columbia Management.
(c) Columbia Management shall indemnify and hold harmless the Fund
from and against any and all claims, demands, expenses and
liabilities which the Fund may sustain or incur arising out of,
or incurred because of, the negligence or misconduct of Columbia
Management or its agents or contractors, or the breach by
Columbia Management of its obligations under this Agreement,
provided that: (i) this indemnification shall not apply to
actions or omissions constituting negligence or misconduct on the
part of the Fund or its other agents or contractors and (ii) the
Fund shall give Columbia Management prompt notice and reasonable
opportunity to defend against any such claim or action in its own
name or in the name of the Fund.
8. Further Assurances. Each party agrees to perform such further
acts and execute such further documents as are necessary to
effectuate the purposes hereof.
9. Dual Interests. It is understood and agreed that some person
or persons may be trustees, officers, or shareholders of both
the Fund and Columbia Management, and that the existence of
any such dual interest shall not affect the validity hereof or
of any transactions hereunder except as otherwise provided by
specific provision of applicable law.
10. Amendment and Termination. This Agreement may be modified or
amended from time to time, or terminated, by mutual agreement
between the parties hereto and may be terminated by at least
one hundred eighty (180) days' written notice given by one
party to the other. Upon termination hereof, the Fund shall
pay to Columbia Management such compensation as may be due
from it as of the date of such termination, and shall
reimburse Columbia Management for its costs, expenses, and
disbursements payable under this Agreement to such date. In
the event that, in connection with termination, a successor to
any of the duties or responsibilities of Columbia Management
hereunder is designated by the Fund by written notice to
Columbia Management, Columbia Management shall promptly upon
such termination and at the expense of the Fund, deliver to
such successor all relevant books, records, and data
established or maintained by Columbia Management under this
Agreement and shall cooperate in the transfer of such duties
and responsibilities, including provision, at the expense of
the Fund, for assistance from Columbia Management personnel in
the establishment of books, records, and other data by such
successor.
11. Assignment. Any interest of Columbia Management under this
Agreement shall not be assigned or transferred either
voluntarily or involuntarily, by operation of law or
otherwise, without prior written notice to the Fund.
12. Use of Affiliated Companies and Subcontractors. In connection
with the services to be provided by Columbia Management under
this Agreement, Columbia Management may, to the extent it
deems appropriate, and subject to compliance with the
requirements of applicable laws and regulations and upon
receipt of approval of the Trustees, make use of (i) its
affiliated companies and their directors, trustees, officers,
and employees and (ii) subcontractors selected by Columbia
Management, provided that Columbia Management shall supervise
and remain fully responsible for the services of all such
third parties in accordance with and to the extent provided by
this Agreement. All costs and expenses associated with
services provided by any such third parties shall be borne by
Columbia Management or such parties.
13. Notice. Any notice under this Agreement shall be in writing,
addressed and delivered or sent by registered mail, postage
prepaid to the other party at such address as such other party
may designate for the receipt of such notices. Until further
notice to the other parties, it is agreed that the address of
the Fund and Columbia Management is Xxx Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Secretary.
14. Non-Liability of Trustees and Shareholders. Any obligation of
the Fund hereunder shall be binding only upon the assets of
the Fund, as provided in the Agreement and Declaration of Fund
of the Fund, and shall not be binding upon any trustee,
officer, employee, agent or shareholder of the Fund. Neither
the authorization of any action by the Trustees or the
shareholders of the Fund, nor the execution of this Agreement
on behalf of the Fund shall impose any liability upon any
trustee or any shareholder. Nothing in this Agreement shall
protect any trustee against any liability to which such
trustee would otherwise be subject by willful misfeasance, bad
faith or gross negligence in the performance of his duties, or
reckless disregard of his obligations and duties under this
Agreement.
15. References and Headings. In this Agreement and in any such
amendment, references to this Agreement and all expressions
such as "herein," "hereof," and "hereunder," shall be deemed
to refer to this Agreement as amended or affected by any such
amendments. Headings are placed herein for convenience of
reference only and shall not be taken as part hereof or
control or affect the meaning, construction or effect of this
Agreement. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
16. Governing Law. This Agreement shall be governed by the laws of
the State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
COLUMBIA FLOATING RATE
LIMITED LIABILITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx, President
Attest:
Name:
Title:
COLUMBIA MANAGEMENT ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx,
Executive Vice President and
Chief Operating Officer
Attest:
Name:
Title:
