CLEARWATER INVESTMENT TRUST FUND ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT THE NORTHERN TRUST COMPANY December 3, 2010
Exhibit (h)(6)
FUND ADMINISTRATION AND
THE NORTHERN TRUST COMPANY
December 3, 2010
TABLE OF CONTENTS
Section Page
1. APPOINTMENT............................................................................................................ 1
2. REPRESENTATIONS AND WARRANTIES.............................................................1
3. DELIVERY OF DOCUMENTS......................................................................................2
4. SERVICES PROVIDED...................................................................................................3
5. FEES AND EXPENSES..................................................................................................4
6. DUTIES, RESPONSIBILITIES AND LIMITATION OF
LIABILITY.....................................................................................................................5
7. CONFIDENTIALITY......................................................................................................8
8. NOTICES..........................................................................................................................8
9 WAIVER............................................................................................................................9
10 FORCE MAJEURE..........................................................................................................9
11. AMENDMENTS.............................................................................................................9
12. TERM.............................................................................................................................10
13. SEVERABILITY............................................................................................................10
14. ASSIGNABILITY.........................................................................................................10
15. HEADINGS...................................................................................................................10
16. GOVERNING LAW......................................................................................................10
17. COUNTERPARTS.......................................................................................................10
18. ENTIRE AGREEMENT...............................................................................................11
Schedule A -- Fees and Expenses.......................................................................................A-1
Schedule B -- Fund Administration and Accounting Services Description.................B-1
(i)
FUND ADMINISTRATION AND
AGREEMENT made as of December 3, 2010 by and between Clearwater Investment Trust (the “Fund” or the “Trust”, as context dictates), a Massachusetts business trust, on behalf of each its series known as Clearwater Growth Fund, Clearwater International Fund, Clearwater Small Cap Fund and Clearwater Tax-Exempt Bond Fund (where context dictates, “the Funds”), and The Northern Trust Company (“Northern”), an Illinois corporation.
WITNESSETH:
WHEREAS, the Trust is a Massachusetts business trust and is registered as an open-end, management investment company under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Trust wishes to retain Northern to provide fund accounting and administration services with respect to the Funds, and Northern is willing to furnish such services;
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints Northern to provide services for the Funds, as described hereinafter, for the period and on the terms set forth in this Agreement. Northern accepts such appointment and agrees to furnish the services herein set forth in return for the compensation as provided in Section 5 of and Schedule A to this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) Northern represents and warrants to the Trust that:
(i) Northern is a corporation, duly organized and existing under the laws of the State of Illinois;
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(ii) Northern is duly qualified to carry on its business in the State of Illinois;
(iii) Northern is empowered under applicable laws and by its Articles of Incorporation and By-Laws to enter into and perform this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize Northern to enter into and form this Agreement;
(v) Northern has, and will continue to have, access to the facilities, personnel and equipment required to fully perform its duties and obligations hereunder;
(vi) no legal or administrative proceedings have been instituted or threatened which would impair Northern’s ability to perform its duties and obligations under this Agreement; and
(vii) Northern’s entrance into this Agreement shall not cause a material breach or be in material conflict with any other agreement or obligation of Northern or any law or regulation applicable to Northern.
(b) The Trust represents and warrants to Northern that:
(i) the Trust is a business trust, duly organized and existing and in good standing under the laws of Massachusetts;
(ii) the Trust is an investment company properly registered under the 1940 Act;
(iii) the Trust has the power under applicable laws and by its organizational documents to enter into and perform this Agreement;
(iv) all requisite actions have been taken by the Trust to authorize the Funds to enter into and perform this Agreement;
(v) no legal or administrative proceedings have been instituted or threatened which would impact any Funds’ ability to perform its duties and obligations under this Agreement;
(vi) the Trust’s execution of this Agreement shall not cause a material breach or be in material conflict with any other agreement or obligation of the Trust or any of the Funds or any law or regulation applicable to it or them; and
(vii) to the extent any officer of the Trust or the Funds is an employee of Northern, the Trust will maintain indemnification provisions in its Declaration of Trust covering said officer and shall also maintain suitable D&O insurance coverage for such officer.
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3. DELIVERY OF DOCUMENTS. The Trust will promptly furnish to Northern such copies, properly certified or authenticated, of contracts, documents and other related information that Northern may request or requires to properly discharge its duties. Such documents may include but are not limited to the following:
(a) Actions of or on behalf of the Trust authorizing the appointment of Northern to provide certain services to the Funds and approving this Agreement;
(b) The Trusts’ governing documents, e.g., By-Laws, Trust Instrument, Operating Agreement, etc.;
(c) The Trust’s currently effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and the 1940 Act and the Funds’ Prospectus and Statement of Additional Information relating to the Funds and all amendments and supplements thereto as in effect from time to time;
(d) Opinions of counsel, if any, and auditors’ reports; and
(e) Such other agreements, certificates and documents as the Trust or the Funds may enter into from time to time including securities lending agreements, futures and commodities account agreements, brokerage agreements and options agreements.
4. SERVICES PROVIDED.
(a) Northern will provide the following services subject to the control, direction and supervision of the Trust or its designee and in compliance with the procedures which may be established from time to time between the Trust and Northern; and all reasonable resolutions and policies implemented by the Funds:
(i) Fund Administration, and
(ii) Fund Accounting.
A general description of each of the above services is contained in Schedules B, respectively, to this Agreement.
(b) Northern will also:
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(i) provide office facilities with respect to the provision of the services contemplated herein (which may be in the offices of Northern or a corporate affiliate of Northern);
(ii) provide or otherwise obtain personnel sufficient for provision of the services contemplated herein as further described in Schedule B;
(iii) furnish equipment and other materials, which are necessary for provision of the services contemplated herein; and
(iv) keep records relating to the services contemplated herein in such form and manner as Northern may deem appropriate or advisable. Northern agrees that all such records prepared or maintained by Northern relating to the services provided hereunder are the property of the Funds and will be preserved and maintained at the Funds’ expense, and will be made available upon request of the Funds.
5. FEES AND EXPENSES.
(a) As compensation for the services rendered to the Funds pursuant to this Agreement, the Funds shall cause to be paid to Northern quarterly fees determined as set forth in Schedule A to this Agreement. Such fees are to be billed quarterly and shall be due and payable upon receipt of the invoice. Upon any termination of the provision of services under this Agreement before the end of any month, the fee for the part of the month before such termination shall be prorated according to the proportion which such part bears to the full monthly period and shall be payable upon the date of such termination.
(b) For the purpose of determining fees calculated as a function of the Funds’ assets, the value of the Funds’ assets and net assets shall be computed as required by the Funds’ Prospectus, generally accepted accounting principles, and resolutions of the Funds’ Board of Trustees.
(c) The Funds may request additional services, additional processing, or special reports which are not contemplated in this Agreement, and will provide such specifications and requirements documentation as may be reasonably required by Northern. If Northern elects to provide such services or arranges for such services to be provided, it shall be entitled to additional fees and expenses as its customary rates and charges as agreed upon by the parties.
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(d) Northern will bear its own expenses in connection with the performance of the services under this Agreement except as provided herein or as agreed to by the parties. The Funds agree to promptly reimburse Northern for any services, equipment or supplies ordered by or for the Funds through Northern and for any other expenses that Northern may incur on the Funds’ behalf at the Funds’ request or as consented to by the Funds. Such other expenses to be incurred in the operation of the Funds and to be borne by the Funds, include, but are not limited to: taxes, interest, brokerage fees and commissions; salaries and fees of officers and members; processing services and related fees; postage and mailing costs; costs of share certificates; advisory and administration fees; charges and expenses of pricing and data services, independent public accountants and custodians; insurance premiums including fidelity bond premiums; legal expenses; consulting fees; customary bank charges and fees; costs of maintenance of partnership existence; expenses of typesetting and printing of offering documents for regulatory purposes and for distribution to current and prospective members of the Funds; expenses of printing and production costs of members’ reports; costs and expenses of Funds stationery and forms; costs and expenses of special telephone and data lines and devices; costs associated with member meetings; trade association dues and expenses; reprocessing costs to Northern caused by third party errors; and any extraordinary expenses and other customary Funds expenses. In addition, Northern may utilize one or more independent pricing services to obtain securities prices and to act as backup to the primary pricing services in connection with determining the net asset values of the Funds. The Funds will reimburse Northern for the Funds’ share of the cost of such services based upon the actual usage by the Funds of the services for the benefit of the Funds.
(e) All fees, out-of-pocket expenses, or additional charges of Northern shall be billed on a quarterly basis and shall be due and payable upon receipt of the invoice.
(f) In the event that the Funds are more than sixty (60) days’ delinquent in its payments of quarterly xxxxxxxx in connection with this Agreement (with the exception of specific amounts which may be contested in good faith by the Funds), this Agreement may be terminated upon thirty (30) days’ written notice to the Trust by Northern. The Trust must notify Northern in writing of any contested amounts within thirty (30) days of receipt of a billing for such amounts. Disputed amounts are not due and payable while they are being investigated.
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6. DUTIES, RESPONSIBILITIES AND LIMITATION OF LIABILITY.
(a) Northern shall be responsible for the performance of only such duties as are set forth in this Agreement. In the performance of its duties hereunder, Northern shall be obligated, as applicable, to exercise the due care and diligence of a professional fund administrator and fund accountant in providing the services called for in this Agreement, including the services referenced in Section 4 of this Agreement, and in all events shall act in good faith in performing the services provided for under this Agreement.
(b) Northern shall not be liable for any error of judgment or mistake of law or for any loss or expense suffered by the Funds in connection with the matters to which this Agreement relates, except for a loss or expense directly caused by or resulting from willful misfeasance, bad faith or negligence on Northern’s part in the performance of or from reckless disregard by Northern of the obligations and duties specifically set forth in this Agreement. Northern shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement.
(c) Subject to Sections 6(a) and 6(b) above, Northern shall not be responsible for, and the Trust and the Funds shall indemnify and hold Northern harmless from and against, any and all reasonable and documented losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern, any of its agents, or the Funds’ agents in the performance of its/their duties hereunder, including but not limited to those arising out of or attributable to:
(i) any and all actions of Northern or its officers or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Northern or its officers or agents of information, records, or documents which are received by Northern or its officers or agents and furnished to them by or on behalf of the Funds, and which have been prepared or maintained by the Funds or any third party on behalf of the Funds;
(iii) the Funds’ refusal or failure to comply with the terms of this Agreement or the Funds’ lack of good faith, or its actions, or lack thereof, involving negligence or willful misfeasance;
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(iv) the breach of any representation or warranty of the Funds hereunder;
(v) the taping or other form of recording of telephone conversations or other forms of electronic communications with members, or reasonable reliance by Northern on telephone or other electronic instructions of any person acting on behalf of a shareholder or shareholder account for which telephone or other electronic services have been authorized;
(vi) the reliance on or the carrying out by Northern or its officers of agents of any instructions reasonably believed to be given by a duly authorized person, or requests of or the Funds or recognition by Northern of any certificates which representing member interests (if any) are reasonably believed to bear the signatures of the officers of the Funds and the countersignature of any transfer agent or registrar of the Funds;
(vii) any delays, inaccuracies, errors in or omissions from information or data provided to Northern by data, corporate action or pricing services or securities brokers and dealers;
(viii) the offer or sale of securities by the Funds in violation of any requirement under the Federal securities laws or regulations or the securities laws or regulations of any state, or in violation of any stop order or other determination or ruling by any Federal agency or any state agency with respect to the offer or sale of such shares in such state;
(ix) any failure of the Funds’ offering documents to comply with applicable laws, or any untrue statement of a material fact or omission of a material fact necessary to make any statement therein not misleading;
(x) the failure of the Funds to comply with applicable securities, tax, commodities and other laws, rules and regulations; and
(xi) all actions, inactions, omissions, or errors caused by or resulting from the willful misfeasance, bad faith or negligence of third parties to whom Northern or the Funds has assigned any rights and/or delegated any duties under this Agreement at the request of or as required by the Funds, provided that each of such third parties was chosen by the Funds.
(d) Further, the Trust and the Funds shall indemnify out of the Funds assets and hold harmless Northern and any employee of Northern who has been appointed to serve as an officer of the Funds from and against any and all losses, damages, costs, reasonable attorneys’ fees and expenses, payments, expenses and liabilities incurred by Northern or any such employees acting in a capacity as an officer of the Trust, provided such officer acted in good faith and in a manner he/she reasonably believed was in or not opposed to the best interests of the Trust.
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(e) In performing its services hereunder, Northern shall be entitled to rely on any oral or written instructions, notices or other communications, including electronic transmissions, from the Funds and its custodian, officers and members, agents and other service providers which Northern reasonably believes to be genuine, valid and authorized, and shall be indemnified by the Funds for any loss or expense caused by such reasonable reliance.
(f) Northern shall indemnify and hold the Trust and the Funds harmless from and against any and all losses, damages, costs, charges, reasonable attorneys’ fees and expenses, payments, expenses and liabilities directly arising out of or attributable to Northern’s refusal or failure to comply with the material terms of this Agreement; Northern’s breach of any material representation made by it herein; or Northern’s lack of good faith, or acts involving negligence, willful misfeasance or reckless disregard of the duties specifically set forth in this Agreement.
(g) The indemnifications contained hereunder shall survive the termination of this Agreement.
(h) In connection with the performance of its duties under this Agreement, Northern shall cooperate with all reasonable requests of the Funds and its representatives related to the administration and monitoring of the Funds’s compliance program pursuant to Rule 38a-1.
7. CONFIDENTIALITY.
(a) Except as otherwise required by law or in connection with any required disclosure to a banking or other regulator, Northern agrees to treat as confidential all records and other information relative to the Funds’ prior, present or potential members, and to not use such records and information for any purpose other than performance of Northern’s responsibilities and duties hereunder. Northern may seek a waiver of such confidentiality provisions by furnishing reasonable prior notice to the Funds and obtaining approval in writing from the Funds, which approval shall not be unreasonably withheld. Waivers of confidentiality are automatically effective without further action by Northern where Northern may be exposed to civil or criminal fines, contempt proceedings or other liability for failure to comply, when requested to divulge such information by duly constituted governmental authorities with respect to Internal Revenue Service levies, subpoenas or similar actions, or with respect to requests by the Funds.
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(b) Northern hereby acknowledges that in the normal course of its provision of services to the Funds it will come into possession of material nonpublic information concerning the Funds. Such information may include portfolio holdings, trading strategies and pending transactions not generally known to the public. Northern acknowledges and agrees that it has duties of confidentiality and care with respect to such material nonpublic information. Northern represents that it has implemented policies and procedures designed to safeguard such information so that no employee or other representative trades on such information, communicates it to others, except as contemplated by this Agreement, or otherwise misuses it.
8. NOTICES. Any notice required or permitted hereunder shall be in writing and shall be deemed effective on the date of personal delivery (by private messenger, courier service or otherwise) or upon confirmed receipt of telex or facsimile, whichever occurs first, or upon receipt if by mail to the parties at the following address (or such other address as a party may specify by notice to the other):
If to the Funds:
0000 Xxxxx Xxxxx Xxxxx
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Chief Executive Officer & Treasurer
Fax: 000-000-0000
If to Northern:
The Northern Trust Company
00 XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Funds Services- Xxxxxxxx Xxxxxxx
Re: Clearwater International Fund
Fax: 000-000-0000
9. WAIVER. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver nor shall it deprive such party of the right thereafter to insist upon strict adherence to the term of any term of this Agreement. Any waiver must be in writing signed by the waiving party.
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10. FORCE MAJEURE. Northern shall not be responsible or liable for any harm, loss or damage suffered by the Funds, its members, or other third parties or for any failure or delay in performance of Northern’s obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond Northern’s control. Northern shall at all times maintain a commercially reasonable business continuity plan designed to minimize the effects of any force majeure event. In the event of a force majeure, any resulting harm, loss, damage, failure or delay by Northern will not give the Funds the right to terminate this Agreement.
11. AMENDMENTS. This Agreement may be modified or amended from time to time by mutual written agreement between the parties. No provision of this Agreement may be changed, discharged, or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, discharge or termination is sought.
12. TERM. This Agreement shall become effective on the date indicated above. Except as set forth in Section 5(f), this Agreement shall continue in effect unless terminated by either party on three months’ prior written notice. Upon termination of this Agreement, the Trust shall pay Northern such compensation and any out-of-pocket or other reimbursable expenses which may become due or payable under the terms hereof as of the date of termination or after the date that the provision of services ceases, whichever is later. If there is a successor to any of Northern’s duties or responsibilities hereunder is designated by the Trust by written notice to Northern, Northern will promptly, upon such termination and at the expense of the Trust, transfer to such successor all relevant books, records, correspondence, and other data established or maintained by Northern under this Agreement in a form reasonably acceptable to the Trust (if such form differs from the form in which Northern has maintained the same, the Trust shall pay any expenses associated with transferring the data to such form), and will cooperate in the transfer of such duties and responsibilities, including provision for assistance from Northern’s personnel in the establishment of books, records, and other data by such successor.
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13. SEVERABILITY. If any provision of this Agreement is invalid or unenforceable, the balance of the Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance it shall nevertheless remain applicable to all other persons and circumstances.
14. ASSIGNABILITY. This Agreement shall not be assigned by any of the parties hereto without the prior consent in writing of the other party, except that Northern may assign this Agreement to a successor of all or a substantial portion of its business, or to a party controlling, controlled by or under common control with Northern.
15. HEADINGS. All section headings contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.
16. GOVERNING LAW. This Agreement shall be construed and the substantive provisions hereof interpreted under and in accordance with the laws of the State of Illinois.
17. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties and supersedes all prior agreements and understanding between the parties relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly thereunto authorized representatives as of the date written above.
By: /s/ X.X. Xxxxxxxxxxxx Xx.
Print Name: X.X. Xxxxxxxxxxxx Xx.
Title: Chairman
The undersigned, F.T. Weyerhaeuser, does hereby certify that he/she is the duly elected, qualified and acting Secretary of Clearwater Investment Trust (the “Trust”) and further certifies that the person whose signature appears above is a duly elected, qualified and acting officer of the Trust with full power and authority to execute this Agreement on behalf of the Funds and to take such other actions and execute such other documents as may be necessary to effectuate this Agreement.
/s/ F.T. Weyerhaeuser
Secretary
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxxx Xxxxxxx
Print Name: Xxxxxxxx Xxxxxxx
Title: Vice President
With respect to the payment obligation set forth in Section 5 and Schedule A:
CLEARWATER MANAGEMENT COMPANY,INC.
By: /s/ Xxxxxx Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
Title: Chairman
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SCHEDULE A FEES AND EXPENSES
Fund Administration, and Accounting
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A.
B.
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For the services rendered under this Agreement, Northern shall be paid the fees defined on the attached Fee Schedule. Said fees shall be in effect for a minimum of three years. Pursuant to the Management Contract between the Trust and its investment adviser, the adviser is responsible for reimbursing these fees if paid by the Funds or paying them directly to Northern.
For the purpose of determining fees calculated as a function of the Funds’ assets, the value of the Funds’ assets and net assets shall be computed as required by the Funds’ Prospectus, generally accepted accounting principles, and resolutions of the Funds’ Board of Trustees.
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C.
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Out-of-pocket expenses, including but not limited to those in Section 5(d), will be computed and billed by Northern and payable quarterly on behalf of the Funds.
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