EXHIBIT 8.3
Accounting Services Agreement
Sit Mutual Funds, Inc.
ACCOUNTING SERVICES AGREEMENT
THIS ACCOUNTING SERVICES AGREEMENT is made as of April 1, 1996 (the
"Agreement"), by and between Sit Mutual Funds, a Minnesota corporation (the
"Company"), and First Data Investor Services Group, Inc., a Massachusetts
corporation ("FDISG").
WHEREAS, the Company is registered as a diversified open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Company wishes to retain FDISG to provide certain fund
accounting services with respect to each investment portfolio listed in Schedule
A hereto, as the same may be amended from time to time by the parties hereto
(collectively, the "Funds"), and FDISG is willing to furnish such services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints FDISG to provide certain
fund accounting services required by the Company for each Fund for the period
and on the terms set forth in this Agreement. FDISG accepts such appointment and
agrees to furnish the services herein set forth in return for the compensation
as provided in Section 4 of this Agreement. In the event that the Company
decides to retain FDISG to act as fund accountant hereunder with respect to one
or more portfolios other than the Funds, the Company shall notify FDISG in
writing. If FDISG is willing to render such services, it shall notify the
Company in writing whereupon such portfolio shall become a Fund hereunder.
2. Delivery of Documents. The Company has furnished FDISG with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Directors
authorizing FDISG to provide certain fund accounting services to the Company and
approving this Agreement;
(b) The Company's Articles of Incorporation (the "Articles")
filed with the State of Minnesota and all amendments thereto;
(c) The Company's By-Laws and all amendments thereto (the
"By-Laws");
(d) The Investment Advisory Agreement between SIT Investment
Associates, Inc. (the "Adviser") and the Company dated as of November 1, 1992
and all amendments thereto (the "Advisory Agreement");
(e) The Custody Agreement between The Northern Trust Company
(the "Custodian") and the Company dated as of April 1, 1996 and all amendments
thereto (the "Custody Agreement");
(f) The Transfer Agency and Registrar Agreement between First
Data Investor Services Group, Inc. (the "Transfer Agent") and the Company dated
as of January 1, 1996 and all amendments thereto;
(g) The Company's Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 and under the
Investment Company Act of 1940 (the "1940 Act") (File Nos. 2-75151 and
811-03342), as declared effective by the Securities and Exchange Commission (the
"SEC") on September 2, 1982, relating to shares of beneficial interest of the
Company (the "Shares"), and all amendments thereto; and
(h) Each Fund's most recent prospectus and statement of
additional information and all amendments and supplements thereto (collectively,
the "Prospectuses").
The Company will furnish FDISG from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, if any. Furthermore, the Company will provide FDISG with any other
documents that FDISG may reasonably request and will notify FDISG as soon as
possible of any matter materially affecting the performance by FDISG of its
services under this Agreement.
3. Services and Duties. Subject to the supervision and control of the
Company, FDISG undertakes to provide the following specific services:
(a) Accounting and bookkeeping services (including the
maintenance of such accounts, books and records of the Company as may be
required by Section 31(a) of the 1940 Act and the rules thereunder);
(b) Internal auditing;
(c) Valuing the assets of each Fund and calculating the net
asset value of the shares of the Fund at the close of trading on the New York
Stock Exchange ("NYSE") on each day on which the NYSE is open for trading, and
at such other times as the Board of Directors may reasonably request;
(d) Accumulating information for and, subject to approval by
the Company's Treasurer, preparing reports to the Company's shareholders of
record and the SEC including, but not necessarily limited to, Annual Reports and
Semi-Annual Reports on Form N-SAR;
(e) Assisting the Adviser, at the Adviser's request, in
monitoring and developing compliance procedures for the Company which will
include, among other matters, procedures to assist the Adviser in monitoring
compliance with each Fund's investment objective, policies, restrictions, tax
matters and applicable laws and regulations; and
(f) Preparing and furnishing the Company (at the Company's
request) with performance information (including yield and total return
information) calculated in accordance
with applicable U.S. securities laws and reporting to external databases such
information as may reasonably be requested.
In performing its duties under this Agreement, FDISG: (a) will act in
accordance with the Articles, By-Laws, Prospectuses and with the instructions
and directions of the Company and will conform to and comply with the
requirements of the 1940 Act and all other applicable Federal or state laws and
regulations; and (b) will consult with legal counsel to the Company, as
necessary and appropriate. Furthermore, FDISG shall not have or be required to
have any authority to supervise the investment or reinvestment of the securities
or other properties which comprise the assets of the Company or any of its Funds
and shall not provide any investment advisory services to the Company or any of
its Funds.
4. Compensation and Allocation of Expenses.
(a) For the services to be rendered, the facilities to be
furnished and the payments to be made by FDISG, as provided for in this
Agreement, the Company, on behalf of each Fund, will pay FDISG on the first
business day of each month a fee for the previous month at the annual rate of
.055 of 1.00% of the value of the Fund's average daily net assets. Within
fifteen (15) days after FDISG has received both the monthly fee set forth herein
from the Company and the monthly ▇▇▇▇ from the Custodian, FDISG shall (pursuant
to the Client Services Agreement, dated as of April 1, 1996, between FDISG and
the Custodian (the "Client Services Agreement") and the Custody Agreement) pay
to the Custodian, with respect to each Fund, a fee which shall serve as full
payment for the Custodian's services to the Fund under the Custody Agreement and
the Client Services Agreement for the preceding month at the annual rate of .01
of 1.00% of the value of the Fund's average daily net assets (plus out-of-pocket
expenses). For the purposes of calculating the fees described herein, the Fund's
average daily net assets will be deemed to be the average daily value of the
Fund's total assets minus the sum of the Fund's liabilities (excluding the
aggregate liquidation preference on the outstanding shares of the Fund's auction
rate preferred stock and accumulated dividends, if any, thereon). Fees for the
period from the date the Registration Statement is declared effective by the SEC
to the end of the month during which the Registration Statement is declared
effective shall be prorated according to the proportion that such period bears
to the full monthly period.
(b) The Company shall compensate FDISG for its services rendered
pursuant to this Agreement in accordance with the fees set forth above. Such
fees do not include out-of-pocket disbursements of FDISG for which FDISG shall
be entitled to ▇▇▇▇ separately. Out-of-pocket disbursements shall include, but
shall not be limited to, the items specified in Schedule B annexed hereto and
incorporated herein. Schedule B may be modified by FDISG upon not less than
thirty days' prior written notice to the Company.
(c) FDISG shall not be required to pay any of the following
expenses incurred by the Company: membership dues in the Investment Company
Institute or any similar organization; transfer agency expenses; investment
advisory expenses; costs of printing and mailing stock certificates,
prospectuses, reports and notices; interest on borrowed money; brokerage
commissions; taxes and fees payable to Federal, state and other governmental
agencies; fees of Directors of the Company who are not affiliated with FDISG;
outside auditing expenses; outside legal expenses; or other expenses not
specified in this Section 4 which may be properly payable by the Company.
(d) FDISG will ▇▇▇▇ the Company as soon as practicable after the
end of each calendar month for out-of-pocket disbursements, and said ▇▇▇▇▇▇▇▇
will be detailed in accordance with this Section and Schedule B. The Company
will pay to FDISG the amount of such billing within 30 days of such billing.
(e) Upon any termination of this Agreement before the end of any
month, the fee for such period shall be prorated according to the proportion
which such period bears to the full month period. For purposes of determining
fees payable to FDISG, the value of each Fund's net assets shall be computed at
the time and in the manner specified in the most recent Prospectuses.
(f) The Company acknowledges that the fees that FDISG charges the
Company under this Agreement reflect the allocation of risk between the parties,
including the disclaimer of warranties in Section 7 and the limitations on
liability in Section 5. Modifying the allocation of risk from what is stated
here would affect the fees that FDISG charges, and in consideration of those
fees, the Company agrees to the stated allocation of risk.
(g) FDISG will from time to time employ or associate itself with
such person or persons as FDISG may believe to be particularly suited to assist
it in performing services under this Agreement. Such person or persons may be
officers and employees who are employed by both FDISG and the Company. The
compensation of such person or persons shall be paid by FDISG and no obligation
shall be incurred on behalf of the Company in such respect.
(5) Limitation of Liability
(a) FDISG, its directors, officers, employees, shareholders
and agents shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Company or a Fund in connection with the
performance of this Agreement, except a loss resulting from willful misfeasance,
bad faith, or negligence on the part of FDISG in the performance of its
obligations and duties under this Agreement.
(b) Notwithstanding any provision in this Agreement to the
contrary, FDISG's cumulative liability (to the Company) for all losses, claims,
suits, controversies, breaches, or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement) and
regardless of the form of action or legal theory shall not exceed the lesser of
(i) $1,000,000 or (ii) the fees received by FDISG for services provided under
this Agreement during the twelve months immediately prior to the date of such
loss or damage.
(c) Neither party may assert any cause of action against the
other party under this Agreement that accrued more than two (2) years prior to
the filing of the suit (or commencement of arbitration proceedings) alleging
such cause of action.
(d) Each party shall have the duty to mitigate damages for
which the other party may become responsible.
(e) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL FDISG, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY
THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED
BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE
OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
6. Indemnification.
(a) The Company shall indemnify and hold FDISG harmless 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 may be asserted against FDISG or for which FDISG may be held to be liable
in connection with this Agreement or FDISG's performance hereunder (a "Claim"),
unless such Claim resulted from a negligent act or omission to act or bad faith
by FDISG in the performance of its duties hereunder.
(b) The Company or a Fund, its officers, employees,
shareholders and agents shall not be liable for, and FDISG shall indemnify and
hold the Company and each Fund harmless from and against any and all claims,
made by third parties, including costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of any sort
or kind, which result from a negligent act or omission to act or bad faith by
FDISG in the performance of its duties hereunder.
(c) In any case in which either party (the "Indemnifying
Party") may be asked to indemnify or hold the other party (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 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 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 claim and the Indemnified Party
shall sustain no further legal or other expenses in respect of such claim. The
Indemnified Party will not confess any 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. The obligations of the
parties hereto under this Section 6 shall survive the termination of this
Agreement.
7. EXCLUSION OF WARRANTIES. THIS IS A SERVICE AGREEMENT. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, FDISG DISCLAIMS ALL OTHER REPRESENTATIONS
OR 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. FDISG DISCLAIMS
ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
8. Termination of Agreement.
(a) This Agreement shall be effective on the date first
written above and shall continue for a period of three (3) years (the "Initial
Term"), unless earlier terminated pursuant to the terms of this Agreement.
Thereafter, this Agreement shall automatically be renewed for successive terms
of three (3) years ("Renewal Terms") each.
(b) Either party may terminate this Agreement at the end of
the Initial Term or at the end of any subsequent Renewal Term upon not than less
than ninety (90) days or more than one hundred-eighty (180) days prior written
notice to the other party.
(c) In the event a termination notice is given by the Company,
all expenses associated with movement of records and materials and conversion
thereof will be borne by the Company.
(d) If a party hereto is guilty of a material failure to
perform its duties and obligations hereunder (a "Defaulting Party") resulting in
a material loss to the other party, such other party (the "Non-Defaulting
Party") may give written notice thereof to the Defaulting Party, and if such
material breach shall not have been remedied within thirty (30) days after such
written notice is given, then the Non-Defaulting Party may terminate this
Agreement by giving thirty (30) days written notice of such termination to the
Defaulting Party. If FDISG is the Non-Defaulting Party, its termination of this
Agreement shall not constitute a waiver of any other rights or remedies of FDISG
with respect to services performed prior to such termination or rights of FDISG
to be reimbursed for out-of-pocket expenses. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting Party
of any other rights it might have under this Agreement or otherwise against the
Defaulting Party.
9. Modifications and Waivers. No change, termination, modification, or
waiver of any term or condition of the Agreement shall be valid unless in
writing signed by each party. No such writing shall be effective as against
FDISG unless said writing is executed by a Senior Vice President, Executive Vice
President or President of FDISG. A party's waiver of a breach of any term or
condition in the Agreement shall not be deemed a waiver of any subsequent breach
of the same or another term or condition.
10. No Presumption Against Drafter. FDISG and the Company have jointly
participated in the negotiation and drafting of this Agreement. The Agreement
shall be construed as if drafted jointly by the Company and FDISG, and no
presumptions arise favoring any party by virtue of the authorship of any
provision of this Agreement.
11. Publicity. Neither FDISG nor the Company shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without prior review
and written approval of the other party; provided, however, that either party
may make such disclosures as are required by legal, accounting or regulatory
requirements after making reasonable efforts in the circumstances to consult in
advance with the other party.
12. Severability. The parties intend every provision of this Agreement
to be severable. If a court of competent jurisdiction determines that any term
or provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties. Without limiting the
generality of this paragraph, if a court determines that any remedy stated in
this Agreement has failed of its essential purpose, then all other provisions of
this Agreement, including the limitations on liability and exclusion of damages,
shall remain fully effective.
13. Miscellaneous.
(a) Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Company or FDISG shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Company:
SIT Mutual Fund Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
To FDISG:
First Data Investor Services Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns and is not intended to confer upon any other person any rights or
remedies hereunder. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that FDISG
may, in its sole discretion, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary, or to the purchaser of
substantially all of its business. FDISG may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this Agreement to
be performed by FDISG.
(c) The laws of the Commonwealth of Massachusetts, excluding
the laws on conflicts of laws, shall govern the interpretation, validity, and
enforcement of this Agreement. All actions arising from or related to this
Agreement shall be brought in the state and federal courts sitting in the City
of Boston, and FDISG and the Company hereby submit themselves to the exclusive
jurisdiction of those courts.
(d) This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original and which
collectively shall be deemed to constitute only one instrument.
(e) The captions of 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.
14. Confidentiality.
(a) The parties agree that the Proprietary Information
(defined below) and the contents of this Agreement (collectively "Confidential
Information") are confidential information of the parties and their respective
licensers. The Company and FDISG shall exercise reasonable care to safeguard the
confidentiality of the Confidential Information of the other. The Company and
FDISG may each use the Confidential Information only to exercise its rights or
perform its duties under this Agreement. The Company and FDISG shall not
duplicate, sell or disclose to others the Confidential Information of the other,
in whole or in part, without the prior written permission of the other party.
The Company and FDISG may, however, disclose Confidential Information to its
employees who have a need to know the Confidential Information to perform work
for the other, provided that each shall use reasonable efforts to ensure that
the Confidential Information is not duplicated or disclosed by its employees in
breach of this Agreement. The Company and FDISG may also disclose the
Confidential Information to independent contractors, auditors and professional
advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 14.
Notwithstanding the previous sentence, in no event shall either the Company or
FDISG disclose the Confidential Information to any competitor of the other
without specific, prior written consent.
(b) Proprietary Information means:
(i) any data or information that is completely sensitive
material, and not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance, operations,
customer relationships, customer profiles, sales estimates, business plans, and
internal performance results relating to the past, present or future business
activities of the Company or FDISG, their respective subsidiaries and affiliated
companies and the customers, clients and suppliers of any of them;
(ii) 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 Company or FDISG a
competitive advantage over its competitors; and
(iii) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
(c) Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
(d) The parties acknowledge that breach of the restrictions on
use, dissemination or disclosure of any Confidential Information would result in
immediate and irreparable harm,
and money damages would be inadequate to compensate the other party for that
harm. The non-breaching party shall be entitled to equitable relief, in addition
to all other available remedies, to redress any such breach.
15. Force Majeure. No party shall be liable for any default or delay in
the performance of its obligations under this Agreement if and to the extent
such default or delay is caused, directly or indirectly, by (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country, (iii) any act or
omission of the other party or any governmental authority; (iv) any labor
disputes (whether or not the employees' demands are reasonable or within the
party's power to satisfy); or (v) nonperformance by a third party or any similar
cause beyond the reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment. In any such
event, the non-performing party shall be excused from any further performance
and observance of the obligations so affected only for so long as such
circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as practicable.
16. Entire Agreement. This Agreement, including all Schedules hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIT MUTUAL FUNDS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SCHEDULE A
Dated as of October 14, 1997
SIT INTERNATIONAL GROWTH FUND (SERIES A)
SIT BALANCED FUND (SERIES B)
SIT DEVELOPING MARKETS GROWTH FUND (SERIES C)
SIT SMALL CAP GROWTH FUND (SERIES D)
SIT SCIENCE AND TECHNOLOGY GROWTH FUND (SERIES E)
SIT REGIONAL GROWTH FUND (SERIES F)
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIT MUTUAL FUNDS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SCHEDULE B
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, the following:
- Overnight delivery and courier service
- Telephone and telecommunications charges (including fax)
- Pricing services
- Terminals, transmitting lines and any expenses incurred in
connection with such lines
- Travel to and from Board Meetings outside the city of Boston,
Massachusetts (subject to prior approval from the Company)
- Any other unusual expenses in association with the operation
of the Company, such as excessive duplicating charges
FDISG RESERVES THE RIGHT TO RENEGOTIATE THE FEES SET FORTH ON THIS SCHEDULE B
AND IN SECTION 4 OF THE AGREEMENT SHOULD THE ACTUAL SERVICES VARY MATERIALLY
FROM THE ASSUMPTIONS PROVIDED.
