Exhibit 9.2
AMENDED AND RESTATED
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of this 13th day of
November, 1997, by and between ICAP Funds, Inc., a
Maryland corporation (the "Corporation"), and Sunstone
Financial Group, Inc., a Wisconsin corporation (the
"Administrator").
WHEREAS, the Corporation is an open-end investment
company registered under the Investment Company Act of
1940, as amended (the "Act"). The Corporation is
authorized to create separate series, each with its own
separate investment portfolio, and the beneficial
interest in each such series will be represented by a
separate series of shares; and
WHEREAS, the Corporation and the Administrator
desire to enter into an agreement pursuant to which the
Administrator shall provide administration and fund
accounting services to such investment portfolios of
the Corporation as are listed on Schedule A hereto and
any additional investment portfolios the Corporation
and Administrator may agree upon and include on
Schedule A as such Schedule may be amended from time to
time (such investment portfolios and any additional
investment portfolios are individually referred to as a
"Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual
promises and agreements herein contained and other good
and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
1. Appointment
The Corporation hereby appoints the Administrator
as administrator and fund accountant of the Funds for
the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment
and agrees to render the services herein set forth, for
the compensation herein provided.
2. Services as Administrator
(a) Subject to the direction and control of the
Corporation's Board of Directors and utilizing
information provided by the Corporation and its agents,
the Administrator will: (1) provide office space,
facilities, equipment and personnel to carry out its
services hereunder; (2) compile data for and prepare
with respect to the Funds timely Notices to the
Securities and Exchange Commission (the "Commission")
required pursuant to Rule 24f-2 under the Act and Semi-
Annual Reports on Form N-SAR; (3) prepare for execution
by the Corporation and file all federal income and
excise tax returns and state income tax returns (and
such other required tax filings as may be agreed to by
the parties) other than those required to be made by
the Corporation's custodian or transfer agent; (4)
prepare compliance filings relating to the registration
of the securities of the Funds pursuant to state
securities laws with the advice of the Corporation's
counsel; (5) prepare the financial statements for the
Annual and Semi-Annual Reports required pursuant to
Section 30(d) under the Act; (6) assist to the extent
requested by the Corporation with the preparation of
the Registration Statement for the Corporation (on Form
N-1A or any replacement therefor) and any amendments
thereto, and proxy materials; (7) monitor each Fund's
expense accruals and cause all appropriate expenses to
be paid from Corporation assets on proper authorization
from the Corporation; (8) calculate daily net asset
values and income factors of each Fund; (9) maintain
all general ledger accounts and related subledgers;
(10) perform security valuations in accordance with the
terms of the Funds' then current Prospectus and
instructions of the Funds' Board of Directors; (11)
assist in the acquisition of the Corporation's fidelity
bond required by the Act, monitor the amount of the
bond and make the necessary Commission filings related
thereto; (12) from time to time as the Administrator
deems appropriate, check each Fund's compliance with
the policies and limitations of each Fund relating to
the portfolio investments as set forth in the
Prospectus, Statement of Additional Information, By-
laws and Articles of Incorporation and monitor each
Fund's status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as
amended (but this function shall not relieve the
Corporation's investment adviser of its primary day-to-
day responsibility for assuring such compliance); (13)
maintain, and/or coordinate with the other service
providers the maintenance of, the accounts, books and
other documents required pursuant to Rule 3la-l(a) and
(b) under the Act; and ( 14) generally assist in the
Corporation's administrative operations. The duties of
the Administrator shall be confined to those expressly
set forth herein, and no implied duties are assumed by
or may be asserted against the Administrator hereunder.
(b) The Directors of the Corporation shall cause
the officers, adviser, distributor, if any, legal
counsel, independent accountants, custodian and
transfer agent for the Funds to cooperate with the
Administrator and to provide the Administrator, upon
request, with such information, documents and advice
relating to the Funds and the Corporation as is within
the possession or knowledge of such persons, in order
to enable the Administrator to perform its duties
hereunder. In connection with its duties hereunder,
the Administrator shall be entitled to rely, and shall
be held harmless by the Corporation when acting in
reliance, upon the instruction, advice, information or
any documents relating to the Funds provided to the
Administrator by any of the aforementioned persons.
Fees charged by such persons shall be an expense of the
respective Fund. The Administrator shall be entitled
to rely on any document which it reasonably believes to
be genuine and to have been signed or presented by the
proper party. The Administrator shall not be held to
have notice of any change of authority of any officer,
agent or employee of the Corporation until receipt of
written notice thereof from the Corporation. The
Administrator shall cooperate with the Corporation and
its legal counsel, independent accountants, custodian
and transfer agent upon reasonable request in order to
enable the Corporation's service providers to perform
their duties with respect to the Funds.
(c) In compliance with the requirements of Rule
31a-3 under the Act, the Administrator hereby agrees
that all records which it maintains for the Corporation
are the property of the Corporation and further agrees
to surrender promptly to the Corporation any of such
records upon the Corporation's request free of any
liens and charges. The Administrator further agrees to
preserve for the periods prescribed by Rule 31a-2 under
the Act the records described in (a) above which are
maintained by the Administrator for the Corporation.
(d) The Administrator shall perform its duties
hereunder in compliance with all applicable laws.
(e) The Funds' Board of Directors and the Funds'
investment adviser have and retain primary
responsibility for all compliance matters relating to
the Funds including but not limited to compliance with
the Investment Company Act of 1940, as amended, the
Internal Revenue Code of 1986, as amended, and the
policies and limitations of each Fund relating to the
portfolio investments as set forth in the Prospectus
and Statement of Additional Information. Sunstone's
monitoring and other functions hereunder shall not
relieve the Board and the investment adviser of their
responsibilities for assuring such compliance.
3. Fees; Delegation; Expenses
(a) In consideration of the services rendered
pursuant to this Agreement, the Corporation will pay
the Administrator a fee, computed daily and payable
monthly, at the annual rates specified on Schedule B
attached hereto, plus out-of-pocket expenses. Out-of-
pocket expenses include, but are not limited to,
travel, lodging and meals in connection with travel on
behalf of the Corporation, programming and related
expenses (previously incurred or to be incurred by
Administrator) in connection with providing electronic
transmission of data between the Administrator and the
Funds' other service providers, brokers, dealers and
depositories, and photocopying, postage and overnight
delivery expenses. The minimum annual fee to be paid
by the Corporation to the Administrator hereunder
(exclusive of out-of-pocket expenses) shall be $65,000
per year for the first Fund and $55,000 per year for
each Fund thereafter. Fees shall be paid at a rate
that would aggregate at least the applicable minimum
fee. In addition to the foregoing, the Corporation
shall pay to Administrator $30,000 for administrative
organizational services performed by Administrator,
plus out-of-pocket expenses related thereto
(b) For the purpose of determining fees payable
to the Administrator, net asset value shall be computed
in accordance with the Corporation's Prospectuses and
resolutions of the Corporation's Board of Directors.
The fee for the period from the day of the month this
Agreement is entered into until the end of that month
shall be pro-rated according to the proportion which
such period bears to the full monthly period. Upon any
termination of this Agreement before the end of any
month, the fee for such part of a month shall be pro-
rated according to the proportion which such period
bears to the full monthly period and shall be payable
upon the date of termination of this Agreement. Should
the Corporation be liquidated, merged with or acquired
by another fund or investment company, any accrued fees
shall be immediately payable.
(c) The Administrator will bear all expenses in
connection with the performance of its services under
this Agreement except as otherwise provided herein.
Other costs and expenses to be incurred in the
operation of the Funds, including, but not limited to:
taxes; interest; brokerage fees and commissions, if
any; salaries, fees and expenses of officers and
Directors; Commission fees and state Blue Sky fees;
advisory and administration fees; charges of
custodians, transfer agents dividend disbursing and
accounting services agents; security pricing services;
insurance premiums; outside auditing and legal
expenses; costs of organization and maintenance of
corporate existence; typesetting, printing, proofing
and mailing of prospectuses, statements of additional
information, supplements, notices and proxy materials
for regulatory purposes and for distribution to current
shareholders; typesetting, printing, proofing and
mailing and other costs of shareholder reports;
expenses incidental to holding meetings of the Fund's
shareholders and Directors; and any extraordinary
expenses; will be borne by the Funds or their
investment adviser. Expenses incurred for distribution
of fund shares, including the typesetting, printing,
proofing and mailing of prospectuses for persons who
are not shareholders of the Corporation, will be borne
by the Corporation or its investment adviser.
4. Propriety and Confidential Information
The Administrator agrees on behalf of itself and
its employees to treat confidentially and as
proprietary information of the Corporation all records
and other information relative to the Funds and prior,
present or potential shareholders of the Corporation
(and clients of said shareholders), and not to 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 the Corporation, which approval
shall not be unreasonably withheld and may not be
withheld where the Administrator may be exposed to
civil or criminal proceedings for failure to comply,
when requested to divulge such information by duly
constituted authorities, or when so requested by the
Corporation.
5. Limitation of Liability
The Administrator shall not be liable for any
error of judgment or mistake of law or for any loss
suffered by the Funds in connection with the matters to
which this Agreement relates, except for a loss
resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties
or from reckless disregard by it of its obligations and
duties under this Agreement.
6. Term
(a) This Agreement shall become effective as with
respect to each Fund listed on Schedule A hereof as of
the date hereof and, with respect to each Fund not in
existence on that date, on the date an amendment to
Schedule A to this Agreement relating to that Fund is
executed. This Agreement shall continue in effect with
respect to each Fund until November _, 1998.
Thereafter, if not terminated as provided herein, this
Agreement shall continue automatically in effect as to
each Fund for successive annual periods.
(b) This Agreement may be terminated with respect
to any one or more particular Funds without penalty (i)
upon mutual consent of the parties, or (ii) by either
party upon not less than ninety (90) days' written
notice to the other party (which notice may be waived
by the party entitled to the notice). The terms of
this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except
by a written instrument signed by the Administrator and
the Corporation.
7. Non-Exclusivity
The services of the Administrator rendered to the
Corporation are not deemed to be exclusive. The
Administrator may render such services and any other
services to others, including other investment
companies. The Corporation recognizes that from time
to time directors, officers and employees of the
Administrator may serve as directors, trustees,
officers and employees of other corporations or trusts
(including other investment companies), that such other
entities may include the name of the Administrator as
part of their name and that the Administrator or its
affiliates may enter into investment advisory or other
agreements with such other corporations or trusts.
8. Governing Law; Invalidity
This Agreement shall be governed by Wisconsin law.
To the extent that the applicable laws of the State of
Wisconsin, or any of the provisions herein, conflict
with the applicable provisions of the Act, the latter
shall control, and nothing herein shall be construed in
a manner inconsistent with the Act or any rule or order
of the Commission thereunder. Any provision of this
Agreement which may be determined by competent
authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or
unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in
any other jurisdiction.
9. Notices
Any notice required or to be permitted to be given
by either party to the other shall be in writing and
shall be deemed to have been given when sent by
registered or certified mail, postage prepaid, return
receipt requested, as follows: Notice to the
Administrator shall be sent to Sunstone Financial
Group, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and
notice to the Corporation shall be sent to ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention ▇▇▇▇▇▇ ▇▇▇▇▇▇.
10. Entire Agreement
This Agreement constitutes the entire Agreement of
the parties hereto.
11. Counterparts
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an
original agreement but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by a duly authorized
officer as of the day and year first above written.
ICAP FUNDS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Vice President and Treasurer
SUNSTONE FINANCIAL GROUP, INC.
("Administrator")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
President
Schedule A
to the
Amended and Restated
Administration and Fund Accounting Agreement
by and between
ICAP Funds, Inc.
and
Sunstone Financial Group, Inc.
Name of Fund Effective Date
ICAP Discretionary Equity Portfolio December 31, 1994
ICAP Equity Portfolio December 31, 1994
ICAP Select Equity Portfolio December 31, 1997
ICAP Euro Select Equity Portfolio December 31, 1997
Dated: November 13, 1997
ICAP FUNDS, INC. SUNSTONE FINANCIAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- -----------------------------
Vice-President and Treasurer President
Schedule B
to the
Amended and Restated
Administration and Fund Accounting Agreement
by and between
ICAP Funds, Inc.
and
Sunstone Financial Group, Inc.
Name of Fund Annual Fees Minimum Fee
Equity Portfolio Up to $50 Million 17.5 basis points $60,000
$50 Million to $100 Million 10.0 basis points
$100 Million to $250 Million 5.0 basis points
Over $250 Million 3.0 basis points
Discretionary Equity
Portfolio Up to $50 Million 17.5 basis points $60,000
$50 Million to $100 Million 10.0 basis points
$100 Million to $250 Million 5.0 basis points
Over $250 Million 3.0 basis points
Select Equity
Portfolio Up to $50 Million 17.5 basis points $55,000
$50 Million to $100 Million 10.0basis points
$100 Million to $250 Million 5.0 basis points
Over $250 Million 3.0 basis points
Euro Select
Equity Portfolio Up to $50 Million 17.5 basis points $55,000
$50 Million to $100 Million 10.0basis points
$100 Million to $250 Million 5.0 basis points
Over $250 Million 3.0 basis points
Fees shall be applied separately to each of the Funds
as indicated. The Corporation shall also pay/reimburse
the Administrator's out-of-pocket expenses as described
in the Agreement. Fees for additional funds or classes
of funds shall be separately established and agreed
upon by the parties.
Dated: November 13, 1997.
ICAP FUNDS, INC. SUNSTONE FINANCIAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Vice President and Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President