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EXHIBIT 99.B5(a)(i)
AMENDED ADVISORY CONTRACT
The Asset Allocation Fund
a portfolio of
OVERLAND EXPRESS FUNDS, INC.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
September 1, 1994
▇▇▇▇▇ Fargo Bank, N.A.
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This will confirm the agreement between the undersigned (the
"Company") on behalf of the Asset Allocation Fund (the "Fund") and ▇▇▇▇▇ Fargo
Bank, N.A. (the "Adviser") as follows:
1. The Company is a registered open-end management investment
company currently consisting of 16 investment portfolios, but which may from
time to time consist of a greater or lesser number of investment portfolios
(the "Funds"). The Company proposes to engage in the business of investing and
reinvesting the assets of the Fund in the manner and in accordance with the
investment objective and restrictions specified in the Company's Registration
Statement, as amended from time to time (the "Registration Statement"), filed
by the Company under the Investment Company Act of 1940 (the "Act") and the
Securities Act of 1933. Copies of the documents referred to in the preceding
sentence have been furnished to the Adviser. Any amendments to those documents
shall be furnished to the Adviser promptly.
2. The Company is engaging the Adviser to manage the investing
and reinvesting of the assets of the Fund and to provide the advisory services
specified elsewhere in this contract, subject to the overall supervision of the
Board of Directors of the Company. Pursuant to an administration agreement
between the Company and ▇▇▇▇▇▇▇▇ Inc. (the "Administrator") on behalf of the
Fund, the Company has engaged the Administrator to provide the administrative
services specified therein.
3. (a) The Adviser shall make investments for the account
of the Fund in accordance with the Adviser's best judgment and consistent with
the investment objective and restrictions set forth in the Company's
Registration Statement, the Act and the provisions of the Internal Revenue Code
relating to regulated investment companies, subject to policy decisions adopted
by the Company's Board of Directors. The Adviser shall advise the Company's
officers and Board of Directors, at such times as the Company's Board of
Directors may specify, of investments made for the Fund and shall, when
requested by the Company's officers or Board of Directors, supply the reasons
for making particular investments.
(b) The Adviser shall provide to the Company investment
guidance and policy direction in connection with its daily management of the
Fund's portfolio, including oral and written research, analysis, advice,
statistical and economic data and information and judgments, and shall furnish
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to the Company's Board of Directors periodic reports on the investment strategy
and performance of the Fund and such additional reports and information as the
Company's Board of Directors and officers shall reasonably request.
(c) The Adviser shall pay the costs of printing and
distributing all materials relating to the Fund prepared by it, or prepared at
its request, other than such costs relating to proxy statements, prospectuses,
shareholder reports and other materials distributed to existing or prospective
shareholders on behalf of the Fund.
(d) The Adviser shall, at its expense, employ or
associate with itself such persons as the Adviser believes appropriate to
assist it in performing its obligations under this contract.
4. The Company understands that the Adviser, in rendering its
services to the Fund hereunder, has engaged ▇▇▇▇▇ Fargo Nikko Investment
Advisors ("WFNIA") to provide certain sub-advisory services pursuant to a
separate Sub-Advisory Contract with WFNIA. The Adviser will not seek to amend
the Sub-Advisory Contract with WFNIA to materially alter the obligations of the
parties unless the Adviser gives the Company at least 60 days' prior written
notice thereof.
5. Except as provided in each of the Company's advisory
contracts and administration agreements, the Company shall bear all costs of
its operations, including: the compensation of its directors who are not
affiliated with the Adviser, the Administrator or any of their affiliates;
advisory and administration fees; payments of distribution-related expenses
pursuant to any Rule 12b-1 Plan, i.e., a plan of distribution of the Company
adopted on behalf of any of the Funds pursuant to Rule 12b-1 under the Act;
governmental fees; interest charges; taxes; fees and expenses of its
independent auditors, legal counsel, transfer agent and dividend disbursing
agent; expenses of redeeming shares; expenses of preparing and printing stock
certificates, prospectuses (except the expense of printing and mailing
prospectuses used for promotional purposes, unless otherwise payable pursuant
to a Rule 12b-1 Plan), shareholders' reports, notices, proxy statements and
reports to regulatory agencies; travel expenses of directors, officers and
employees; office supplies; insurance premiums and certain expenses relating to
insurance coverage; trade association membership dues; brokerage and other
expenses connected with the execution of portfolio securities transactions;
fees and expenses of any custodian, including those for keeping books and
accounts and calculating the net asset value per share of the Fund; expenses of
shareholders' meetings; expenses relating to the issuance, registration and
qualification of shares of the Fund; pricing services, if any; organizational
expenses; and any extraordinary expenses. Expenses attributable to one or
more, but not all, of the Funds are charged against the assets of the relevant
Funds. General expenses of the Company are allocated among the Funds in a
manner proportionate to the net assets of each Fund, on a transactional basis
or on such other basis as the Board of Directors deems equitable.
6. The Adviser shall give the Company the benefit of the
Adviser's best judgment and efforts in rendering services under this contract.
As an inducement to the Adviser's undertaking to render these services, the
Company agrees that the Adviser shall not be liable under this contract for any
mistake in judgment or in any other event whatsoever except for lack of good
faith, provided that nothing in this contract shall be deemed to protect or
purport to protect the Adviser against any liability to the Company or its
shareholders to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of the
Adviser's duties under this contract or by reason of reckless disregard of its
obligations and duties hereunder.
7. In consideration of the services to be rendered by the
Adviser under this contract, the Company shall pay the Adviser a monthly fee on
the first business day of each month, at the annual rate of
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0.70% of the average daily value (as determined on each day that such value is
determined for the Fund at the time set forth in the Registration Statement for
determining net asset value per share) of the first $500,000,000 of the Fund's
net assets during the preceding month and at the annual rate of 0.60% of such
average daily value of the Fund's net assets in excess of $500,000,000. If the
fee payable to the Adviser pursuant to this paragraph 7 begins to accrue after
the beginning of any month or if this contract terminates before the end of any
month, the fee for the period from the effective date to the end of that month
or from the beginning of that month to the termination date, respectively,
shall be prorated according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. For purposes of
calculating each such monthly fee, the value of the Fund's net assets shall be
computed in the manner specified in the Registration Statement and the
Company's Articles of Incorporation for the computation of the value of the
Fund's net assets in connection with the determination of the net asset value
of Fund shares.
8. If, in any fiscal year, the total expenses incurred by, or
allocated to, the Fund, excluding taxes, interest, brokerage commissions and
other portfolio transaction expenses, other expenditures that are capitalized
in accordance with generally accepted accounting principles, extraordinary
expenses and amounts accrued or paid under a Rule 12b-1 Plan of the Fund, but
including the fees provided for in paragraph 7 and those provided for pursuant
to the Fund's Administration Agreement ("Includable Expenses"), exceed the most
restrictive expense limitation applicable to the Fund imposed by state
securities laws or regulations thereunder, as these limitations may be raised
or lowered from time to time, the Adviser shall waive or reimburse a portion of
such fees. The amount waived or reimbursed shall equal that portion of the
excess derived by multiplying the excess by a fraction, the numerator of which
shall be the percentage at which the excess portion attributable to the fee
payable pursuant to this contract is calculated under paragraph 7 hereof, and
the denominator of which shall be the sum of such percentage plus the
percentage at which the excess portion attributable to the fee payable pursuant
to the Fund's Administration Agreement is calculated (the "Applicable Ratio"),
but only to the extent of the fee hereunder for the fiscal year. If the fees
payable under this contract and/or the Fund's Administration Agreement
contributing to such excess portion are calculated at more than one percentage
rate, the Applicable Ratio shall be calculated separately on the basis of, and
applied separately to, the portions of the fees calculated at the different
rates. At the end of each month of the Company's fiscal year, the Company
shall review the includable expenses accrued during that fiscal year to the end
of the period and shall estimate the contemplated includable expenses for the
balance of that fiscal year. If as a result of that review and estimation it
appears likely that the includable expenses will exceed the limitations
referred to in this paragraph 8 for a fiscal year with respect to the Fund, the
monthly fee set forth in paragraph 7 payable to the Adviser for such month
shall be reduced, subject to a later adjustment, by an amount equal to the
Applicable Ratio times the pro rata portion (prorated on the basis of the
remaining months of the fiscal year, including the month just ended) of the
amount by which the includable expenses for the fiscal year are expected to
exceed the limitations provided for in this paragraph 8. For purposes of
computing the excess, if any, over the most restrictive applicable expense
limitation, the value of the Fund's net assets shall be computed in the manner
specified in the last sentence of paragraph 7, and any reimbursements required
to be made by the Adviser shall be made once a year promptly after the end of
the Company's fiscal year.
9. This contract shall become effective on its execution date
and shall thereafter continue in effect, provided that this contract shall
continue in effect for a period of more than two years from the date hereof
only so long as the continuance is specifically approved at least annually (a)
by the vote of a majority of the Fund's outstanding voting securities (as
defined in the Act) or by the Company's Board of Directors and (b) by the vote,
cast in person at a meeting called for the purpose, of a majority of the
Company's directors who are not parties to this contract or "interested
persons" (as defined in the Act) of any such party. This contract may be
terminated at any time by the Company, without the payment of any
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penalty, by a vote of a majority of the Fund's outstanding voting securities
(as defined in the Act) or by a vote of a majority of the Company's entire
Board of Directors on 60 days' written notice to the Adviser or by the Adviser,
at any time after the second anniversary of the effective date of this
contract, on 60 days' written notice to the Company. This contract shall
terminate automatically in the event of its assignment (as defined in the Act).
10. Except to the extent necessary to perform the Adviser's
obligations under this contract, nothing herein shall be deemed to limit or
restrict the right of the Adviser, or any affiliate of the Adviser, or any
employee of the Adviser, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of
a similar or dissimilar nature, or to render services of any kind to any other
corporation, firm, individual or association.
11. The Adviser and the Company each agree that the words
"Overland Express," which comprise a component of the Company's name, is a
property right of the parent of the Adviser. The Company agrees and consents
that: (i) it will use the words "Overland Express" as a component of its
corporate name, the name of any class, or both and for no other purpose; (ii)
it will not grant to any third party the right to use the words "Overland
Express" for any purpose; (iii) the Adviser or any corporate affiliate of the
Adviser may use or grant to others the right to use the words "Overland
Express," or any combination or abbreviation thereof, as all or a portion of a
corporate or business name or for any commercial purpose, other than a grant of
such right to another registered investment company not advised by the Adviser
or one of its affiliates; and (iv) in the event that the Adviser or an
affiliate thereof is no longer acting as investment adviser to any class, the
Company shall, upon request by the Adviser, promptly take such action as may be
necessary to change its corporate name to one not containing the words
"Overland Express" and following such change, shall not use the words "Overland
Express," or any combination thereof, as a part of its corporate name or for
any other commercial purpose, and shall use its best efforts to cause its
directors, officers, and shareholders to take any and all actions that the
Adviser may request to effect the foregoing and to reconvey to the Adviser any
and all rights to such words.
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12. This contract, which may be executed in counterparts, all
of which together shall constitute one original, shall be governed by and
construed in accordance with the laws of the State of California.
If the foregoing correctly sets forth the agreement between the
Company and the Adviser, please so indicate by signing and returning to the
Company the enclosed copy hereof.
Very truly yours,
OVERLAND EXPRESS FUNDS, INC.,
on behalf of
The Asset Allocation Fund
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title: Chief Operating Officer
ACCEPTED as of the date
set forth above:
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Executive Vice President
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