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Exhibit (5)(c)
THE GALAXY VIP FUND
ADVISORY AGREEMENT
COLUMBIA REAL ESTATE EQUITY FUND II AND
COLUMBIA HIGH YIELD FUND II
AGREEMENT made as of ____________, 1998 between THE GALAXY VIP FUND,
a Massachusetts business trust, located in Westboro, Massachusetts ("Galaxy")
and COLUMBIA MANAGEMENT CO., an Oregon corporation, located in Portland, Oregon
(the "Adviser").
WHEREAS, Galaxy is registered as an open-end, diversified,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, Galaxy desires to retain the Adviser as investment adviser
to the Columbia Real Estate Equity Fund II and Columbia High Yield Fund II
(individually, a "Fund" and collectively, the "Funds");
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Delivery of Documents. The Adviser acknowledges that it has
received copies of each of the following as certified by Galaxy:
(a) Galaxy's Agreement and Declaration of Trust, as filed with
the State Secretary of the Commonwealth of Massachusetts on May 27, 1992
and all amendments thereto (such Agreement and Declaration of Trust, as
presently in effect and as it shall from time to time be amended, is
herein called the "Declaration of Trust");
(b) Galaxy's Code of Regulations and any amendments thereto
(such Code of Regulations, as presently in effect and as it shall from
time to time be amended, is herein called the "Code of Regulations");
(c) Resolutions of Galaxy's Board of Trustees authorizing
the appointment of the Adviser and approving this Agreement;
(d) Galaxy's Notification of Registration on Form N-8A under
the 1940 Act as filed with the Securities and Exchange Commission ("SEC")
on July 7, 1992 and all amendments thereto;
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(e) Post-Effective Amendment No. 6 to Galaxy's Registration
Statement on Form N-1A under the Securities Act of 1933, as amended (the
"1933 Act") and under the 1940 Act (Registration No. 33-49290/811-6726) as
filed with the SEC on November 21, 1997; and
(f) Galaxy's most recent prospectus and statement of
additional information with respect to the Funds (such prospectus and
statement of additional information as presently in effect and all
amendments and supplements thereto herein called the "Prospectus").
Galaxy will furnish the Adviser from time to time with execution
copies of all amendments of, or supplements to, the foregoing.
2. Services. Galaxy hereby appoints the Adviser to act as investment
adviser to the Funds for the period and on the terms set forth in this
Agreement. Intending to be legally bound, the Adviser accepts such appointment
and agrees to furnish the services required herein to the Funds for the
compensation hereinafter provided.
Subject to the supervision of Galaxy's Board of Trustees, the
Adviser will provide with respect to the Funds a continuous investment program
for each Fund, including investment research and management with respect to all
securities and investments and cash equivalents in such Fund. The Adviser will
determine from time to time what securities and other investments will be
purchased, retained or sold by each Fund and will arrange for the purchase and
sale of securities and other investments of each Fund. The Adviser will provide
the services under this Agreement in accordance with each Fund's investment
objective, policies and restrictions as stated in the Prospectus and resolutions
of Galaxy's Board of Trustees applicable to such Fund.
3. Covenants by Adviser. The Adviser agrees with respect to the
services provided to each Fund that it:
(a) will conform with all rules and regulations of the SEC
applicable to it as investment adviser and will in addition conduct its
activities under this Agreement in accordance with those regulations of
the Board of Governors of the Federal Reserve System pertaining to the
investment advisory activities of bank holding companies which are
applicable to the Adviser;
(b) will use the same skill and care in providing such
services as it uses in providing services to other investment companies;
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(c) will place orders pursuant to its investment
determinations for the Funds either directly with the issuer or with any
broker or dealer. In placing orders with brokers and dealers, the Adviser
will attempt to obtain the best net price and the most favorable execution
of its orders. Consistent with this obligation, when the execution and
price offered by two or more brokers or dealers are comparable, the
Adviser may, in its discretion, purchase and sell portfolio securities
from and to brokers and dealers who provide the Adviser with research
advice and other services. Except as permitted by the SEC, the portfolio
securities will not be purchased from or sold to the Adviser, the Funds'
distributor (the "Distributor"), or any affiliated person of Galaxy, the
Adviser or the Distributor, provided, however, that subject to the
provisions of this paragraph and to the extent permitted by law, the
Adviser may purchase or sell portfolio securities through the Distributor
or an affiliate of the Distributor or the Adviser acting as broker;
(d) will maintain all books and records with respect to the
securities transactions for the Funds, keep Galaxy's books of account with
respect to the Funds and furnish Galaxy's Board of Trustees such periodic
and special reports as the Board may request with respect to the Funds;
(e) will treat confidentially and as proprietary information
of Galaxy all records and other information relative to the Funds and
prior, present or potential shareholders, and will not use such records
and information for any purpose other than performance of its
responsibilities and duties hereunder (except after prior notification to
and approval in writing by Galaxy, which approval shall not be
unreasonably withheld and may not be withheld and will be deemed granted
where the Adviser may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by Galaxy).
4. Services Not Exclusive. The services furnished by the Adviser
hereunder are deemed not to be exclusive, and nothing in this Agreement shall
(i) prevent the Adviser or any affiliated person (as defined in the 0000 Xxx) of
the Adviser from acting as investment adviser or manager for any other person or
persons, including other management investment companies with investment
objectives and policies the same as or similar to those of either Fund or (ii)
limit or restrict the Adviser or any such affiliated person from buying, selling
or trading any securities or other investments (including any securities or
other investments which either Fund is eligible to buy) for its or their own
accounts or for the accounts of others for whom it or they may be acting;
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provided, however, that the Adviser agrees that it will not undertake any
activities which, in its judgment, will adversely affect the performance of its
obligations to the Funds under this Agreement.
5. Books and Records. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Adviser hereby agrees that all records which it
maintains for the Funds are the property of Galaxy and further agrees to
surrender promptly to Galaxy any of such records upon Galaxy's request. The
Adviser further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act.
6. Expenses. During the term of this Agreement, the Adviser will pay
all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities (including brokerage commissions, if
any) purchased for the Funds.
7. Compensation. For the services provided and the expenses assumed
with respect to the Columbia Real Estate Equity Fund II pursuant to this
Agreement, Galaxy will pay the Adviser from the assets belonging to the Fund and
the Adviser will accept as full compensation therefor fees, computed daily and
paid monthly, at an annual rate of .75% of the net assets of the Fund.
For the services provided and the expenses assumed with respect to
the Columbia High Yield Fund II pursuant to this Agreement, Galaxy will pay the
Adviser from the assets belonging to the Fund and the Adviser will accept as
full compensation therefor fees, computed daily and paid monthly, at an annual
rate of .60% of the net assets of the Fund.
8. Limitation of Liability. The Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by Galaxy, except a
loss resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful misfeasance, bad
faith or gross negligence on the part of the Adviser in the performance of its
duties or from reckless disregard of its obligations and duties under this
Agreement.
9. Duration and Termination. This Agreement shall become effective
with respect to each Fund on the day such Fund first commences the public
offering of its shares and, unless sooner terminated, shall continue in effect
until August 10, 1999. Thereafter, if not terminated, this Agreement shall
continue in effect with respect to a particular Fund for successive twelve-month
periods ending on August 10, provided such continuance is specifically approved
at least annually (a) by the vote of a majority of those members of Galaxy's
Board of
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Trustees who are not parties to this Agreement, or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by Galaxy's Board of Trustees or by the vote of a majority of
the outstanding voting securities of such Fund. Notwithstanding the foregoing,
this Agreement may be terminated as to either Fund at any time, without the
payment of any penalty, by Galaxy's Board of Trustees or by vote of a majority
of the outstanding voting securities of such Fund, or by the Adviser, on 60
days' written notice (which notice may be waived by the party entitled to
receive the same). This Agreement will immediately terminate in the event of its
assignment. (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested persons" and "assignment" shall have the same
meaning as such terms in the 1940 Act.)
10. Amendment of this Agreement. No provision of this Agreement may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Agreement shall be
effective with respect to a particular Fund until approved by the vote of a
majority of the outstanding voting securities of that Fund.
11. Miscellaneous. The Adviser expressly agrees that notwithstanding
the termination of or failure to continue this Agreement with respect to a
particular Fund, the Adviser shall continue to be legally bound to provide the
services required herein for the other Fund for the period and on the terms set
forth in this Agreement.
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. 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.
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and shall be governed by
Massachusetts law.
12. Names. The names "The Galaxy VIP Fund" and "Trustees of The
Galaxy VIP Fund" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under an
Agreement and Declaration of Trust dated May 27, 1992 which is hereby referred
to and a copy of which is on file at the office of the State Secretary of the
Commonwealth of Massachusetts and the principal office of Galaxy. The
obligations of "The Galaxy VIP Fund" entered into in the name or on behalf
thereof by any of the
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Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of Galaxy personally, but bind only the property of Galaxy, and
all persons dealing with any class of shares of Galaxy must look solely to the
property of Galaxy belonging to such class for the enforcement of any claims
against Galaxy.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their officers designated below as of the day and year first
above written.
THE GALAXY VIP FUND
By:___________________________________
President
COLUMBIA MANAGEMENT CO.
By:___________________________________
President
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