Exhibit 99.(k.6)
FINANCIAL ADMINISTRATION AGREEMENT
Agreement dated as of April 12, 2004, among Western Asset/Claymore
U.S. Treasury Inflation Protected Securities Fund 2 (the "Trust"), State Street
Bank and Trust Company (the "Financial Administrator"), a Massachusetts trust
company, and ▇▇▇▇ ▇▇▇▇▇ Fund Adviser, Inc., a Maryland corporation (the
"Administrator") (the "Agreement").
WHEREAS, the Administrator has entered into an Administrative Services
Agreement, dated February 24, 2004, with the Trust concerning the provision of
administrative services for the Trust (the "Administrative Services Agreement");
WHEREAS, the Administrator desires to retain the Financial
Administrator to furnish certain administrative services with respect to the
Trust, and the Financial Administrator is willing to perform such services, on
the terms and conditions hereinafter set forth; and
WHEREAS, the Trust is registered as a diversified, closed-end,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and consents to the retention of the Financial
Administrator by the Administrator in accordance with the terms set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF FINANCIAL ADMINISTRATOR
The Administrator hereby appoints the Financial Administrator to act
as financial administrator with respect to the Trust for purposes of providing
certain administrative services for the period and on the terms set forth in
this Agreement. The Financial Administrator accepts such appointment and agrees
to render the services stated herein.
2. DELIVERY OF DOCUMENTS
The Administrator will promptly deliver to the Financial Administrator
copies of each of the following documents and all future amendments and
supplements, if any, to the extent such amendments and supplements relate to the
Trust's preferred shares:
a. The Trust's Agreement and Declaration of Trust (the
"Declaration") and Amended and Restated Bylaws (the "Bylaws");
b. The currently effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act for the
Trust, the prospectus and statement of additional information relating to the
Trust and all amendments and supplements thereto as in effect from time to time;
and
c. Upon request, such other certificates, documents or opinions which the
Financial Administrator may, in its reasonable discretion, deem necessary or
appropriate in the proper performance of its duties.
3. REPRESENTATIONS AND WARRANTIES OF THE FINANCIAL ADMINISTRATOR
The Financial Administrator represents and warrants to the other
parties hereto that:
a. It is a Massachusetts trust company, duly organized and existing
under the laws of The Commonwealth of Massachusetts;
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b. It has the corporate power and authority to carry on its business
in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
d. No legal or administrative proceedings have been instituted or
threatened which would materially impair the Financial Administrator's ability
to perform its duties and obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a material breach of or be
in material conflict with any other agreement or obligation of the Financial
Administrator or any law or regulation applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR AND THE TRUST
The Administrator represents and warrants to the other parties hereto
that:
a. The Administrator is a Maryland corporation, duly organized and
existing under the laws of the State of Maryland;
b. It has the corporate power and authority under applicable laws
and by its charter and bylaws to enter into and perform this
Agreement;
c. All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement;
d. No legal or administrative proceedings have been instituted or
threatened which would impair the Administrator's ability to
perform its duties and obligations under this Agreement; and
e. Its entrance into this Agreement will not cause a material breach
or be in material conflict with any other agreement or obligation
of the Administrator or any law or regulation applicable to it.
The Trust hereby represents and warrants to the other parties that:
a. It is a business trust, duly organized, existing and in good
standing under the laws of The Commonwealth of Massachusetts;
b. It is an investment company registered under the 1940 Act;
c. A registration statement under the 1940 Act has been filed and will
be effective and remain effective during the term of this
Agreement;
d. As of the close of business on the date of this Agreement, the
Trust is authorized to issue shares of beneficial interest;
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e. It has the corporate power and authority under applicable laws and
by its charter and bylaws to enter into and perform its obligations
under this Agreement; and
f. All requisite proceedings have been taken to authorize it to enter
into and perform its obligations under this Agreement.
5. FINANCIAL ADMINISTRATION SERVICES
The Financial Administrator shall provide the following services, in
each case, subject to the control, supervision and direction of the
Administrator and subject to any necessary review and comment by the Trust's
auditors and legal counsel and in accordance with procedures or policies that
may be established from time to time by and between the Administrator and the
Financial Administrator (the "Compliance Procedures"):
a. Complete monthly (and at such other times as is required by the
Bylaws) calculation of the preferred shares asset coverage test
(the "1940 Act Preferred Shares Asset Coverage Test") following
the Compliance Procedures;
b. Complete weekly (and at such other times as is required by the
Bylaws) calculation of the preferred shares basic maintenance
amount test (the "Preferred Shares Basic Maintenance Amount
Test") following the Compliance Procedures; and
c. In connection with its provision of the 1940 Act Preferred Shares
Asset Coverage Test and the Preferred Shares Basic Maintenance
Amount Test (collectively, the "Tests"), the Financial
Administrator shall (i) complete the Tests with data as of the
last Friday of each calendar month (or, if such day is not a
business day (as such day is defined in the Bylaws), the
immediately preceding business day) and deliver such Tests to the
Administrator for delivery to the Trust's designated auction
agent; (ii) complete the Tests with data as of each quarterly
valuation date (as such date is defined in the Bylaws) and
deliver such Tests to the Administrator for delivery to each of
Fitch Ratings, Ltd. ("Fitch") and ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") on the third business day after such date; and (iii)
complete the Tests with data as of the date of original issue of
any preferred shares (as such date is defined in the Bylaws) and
deliver such Tests to the Administrator for delivery to each of
Fitch and Moody's on the first business day after such date.
The Financial Administrator shall provide the office facilities and
personnel required by it to perform the services contemplated herein at no
additional cost to the Trust or the Administrator.
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Financial Administrator shall receive from the Administrator such
compensation for the Financial Administrator's services provided pursuant to
this Agreement as may be agreed to from time to time in a written fee schedule
approved by the parties and initially set forth in the Fee Schedule to this
Agreement. The fees are accrued daily and billed monthly and shall be due and
payable upon receipt of the invoice. Upon the termination of 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 termination of
this Agreement. In addition, the Administrator shall reimburse the Financial
Administrator for its reasonable out-of-pocket costs incurred in connection with
this Agreement.
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The Administrator agrees promptly to reimburse the Financial
Administrator for any equipment or supplies specially ordered by or for the
Administrator through the Financial Administrator and for any other expenses not
contemplated by this Agreement that the Financial Administrator may incur at the
Administrator's request or with the Administrator's consent.
The Financial Administrator is authorized to and may employ or
associate with such person or persons as the Financial Administrator may deem
desirable to assist it in performing its duties under this Agreement; provided,
however, that the compensation of such person or persons shall be paid by the
Financial Administrator and that the Financial Administrator shall be as fully
responsible to the Administrator for the acts and omissions of any such person
or persons as it is for its own acts and omissions.
7. INSTRUCTIONS AND ADVICE
At any time, the Financial Administrator may apply to the
Administrator for instructions with respect to any matter arising in connection
with the services to be performed by the Financial Administrator under this
Agreement. The Financial Administrator shall not be liable, and shall be
indemnified by the Administrator, for any action taken or omitted by it in good
faith without negligence in reliance upon any such instructions or advice or
upon any paper or document believed by it to be genuine and to have been signed
by the Administrator. The Financial Administrator shall not be held to have
notice of any change of authority of any officer or individual of the
Administrator until receipt of written notice thereof from the Administrator.
Nothing in this Section shall be construed as imposing upon the Financial
Administrator any obligation to seek such instructions.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Financial Administrator, in its capacity as such, shall be
responsible for the performance of only such duties as are set forth in this
Agreement, and, except as otherwise provided under Section 6, shall have no
responsibility for the actions or activities of any other party, including other
service providers. The Financial Administrator shall have no liability for any
error of judgment or mistake of law or for any loss or damage resulting from the
performance or nonperformance of its duties hereunder, except to the extent
caused by or resulting from the negligence, reckless disregard, bad faith or
willful misconduct of the Financial Administrator, its officers or employees and
those parties contemplated under Section 6 of the Agreement. The Financial
Administrator shall not be liable for any special, indirect, incidental, or
consequential damages of any kind whatsoever (including, without limitation,
attorneys' fees relating thereto) under any provision of this Agreement or for
any such damages arising out of any act or failure to act hereunder. In any
event, for any liability or loss suffered by the Administrator, the Financial
Administrator's total cumulative liability under this Agreement shall be limited
to such amount as may be agreed upon from time to time by the Administrator.
The Financial Administrator, and those parties contemplated under
Section 6 of the Agreement, shall not be responsible or liable for any failure
or delay in performance of their obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond the reasonable
control of the Financial Administrator or its agents, including without
limitation, work stoppage, power or other mechanical failure, computer virus,
natural disaster, governmental action or communication disruption.
The Administrator shall indemnify and hold the Financial Administrator
harmless from all loss, cost, damage and expense, including reasonable fees and
expenses for counsel, incurred by the Financial Administrator resulting from any
claim, demand, action or suit in connection with the Financial Administrator's
acceptance of this Agreement, any action or omission by the Financial
Administrator in the performance of its duties hereunder, or as a result of the
Financial Administrator's acting upon any instructions reasonably believed by it
to have been duly authorized by the Administrator, provided that this
indemnification shall not apply to actions or omissions of the Financial
Administrator, its officers or employees or other agents in cases of its or
their own negligence, reckless disregard, willful misconduct, or bad faith.
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The limitation of liability and indemnification contained herein shall
survive the termination of this Agreement.
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9. CONFIDENTIALITY
The Financial Administrator agrees that, except as otherwise required
by law or in connection with any required disclosure to a banking or other
regulatory authority, it will keep confidential all records and information in
its possession relating to the Trust, the Administrator or the Trust's
shareholders or shareholder accounts and will not disclose the same to any
person except at the written request or with the written consent of the Trust or
the Administrator.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Trust assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Financial Administrator agrees that all records which it maintains for the
Trust shall at all times remain the property of the Trust, shall be readily
accessible during normal business hours, and shall be promptly surrendered upon
the termination of the Agreement or otherwise on written request. The Financial
Administrator further agrees that all records which it maintains for the Trust
pursuant to Rule 31a-1 under the 1940 Act will be preserved for the periods
prescribed by Rule 31a-2 under the 1940 Act unless any such records are earlier
surrendered as provided above. Records shall be surrendered in usable
machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Financial Administrator to the Administrator on
behalf of the Trust are not to be deemed exclusive, and the Financial
Administrator shall be free to render similar services to others. The Financial
Administrator shall be deemed to be an independent contractor and, unless
otherwise expressly provided herein or authorized by the Administrator from time
to time, shall have no authority to act or represent the Trust or the
Administrator in any way or otherwise be deemed an agent of the Trust or the
Administrator.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective as of the date first above
written. The Agreement shall remain in effect unless terminated by any party on
sixty (60) days' prior written notice. This Agreement and any schedule hereto
may be modified or amended from time to time by mutual written agreement of the
parties hereto.
Upon termination of this Agreement, the Administrator shall pay to the
Financial Administrator such compensation and any reasonable and fully
documented and agreed upon 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.
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13. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Administrator: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Funds
Accounting; if to the Trust: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and if to the Financial Administrator: State
Street Bank and Trust Company, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Fund Administration Department, Fax: ▇▇▇-▇▇▇-▇▇▇▇.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by any party hereto without the
prior consent in writing of the other parties, except that the Administrator or
Financial Administrator 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 the Administrator or Financial Administrator.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of
the Trust, the Administrator and the Financial Administrator and their
respective successors and permitted assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing; PROVIDED, however, that the
duties and responsibilities of the Administrator referred to herein shall be
deemed to be part of the administrative services to be provided by the
Administrator pursuant to Section 3 of the Administrative Services Agreement and
subject to any conditions and standards of care set forth in the Administrative
Services Agreement.
17. 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
that term or any term of this Agreement. Any waiver must be in writing signed by
the waiving party.
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18. 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.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
20. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
21. SPECIAL PROVISIONS APPLICABLE TO THE TRUST
Notwithstanding anything herein to the contrary, the parties hereto
understand and agree that the Trust is a party to this Agreement solely for the
purposes of Paragraphs 4 and 9 through 21 to the extent such provisions are
expressly applicable to the Trust. Without limiting the generality of the
foregoing, it is further understood and agreed that (i) the Administrator shall
remain liable to the Trust for the acts and omissions of the Financial
Administrator as if they were the Administrator's own acts and omissions under
the Administrative Services Agreement, and (ii) the Financial Administrator
shall look solely to the Administrator, and not to the Trust, for satisfaction
of any claims that the Financial Administrator may have arising out of the
performance of its duties under this Agreement.
A copy of the Trust's Declaration is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed on behalf of the Trust by an officer or Trustee of the Trust in his or
her capacity as an officer or Trustee of the Trust and not individually and that
the obligations of or arising out of this Agreement are not binding upon any of
the Trustees, officers or shareholders individually but are binding only upon
the assets and property of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
STATE STREET BANK AND TRUST COMPANY
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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▇▇▇▇ ▇▇▇▇▇ FUND ADVISER, INC.
By:
Name:
Title:
WESTERN ASSET/CLAYMORE U.S. TREASURY
INFLATION PROTECTED SECURITIES FUND 2
By:
Name:
Title:
▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST COMPANY
FINANCIAL ADMINISTRATION FEE SCHEDULE FOR
WESTERN ASSET/CLAYMORE U.S. TREASURY INFLATION
PROTECTED SECURITIES FUND 2
I. FINANCIAL ADMINISTRATION SERVICES
Services to be performed by State Street Bank and Trust Company ("State
Street") shall include the 1940 Act Preferred Shares Asset Coverage Test
and the Preferred Shares Basic Maintenance Amount Test, as those tests are
defined and more fully described in the Financial Administration Agreement
dated April 12, 2004 (the "Financial Administration Agreement") among State
Street, ▇▇▇▇ ▇▇▇▇▇ Fund Adviser, Inc. and Western Asset/Claymore U.S.
Treasury Inflation Protected Securities Fund 2 (the "Trust").
ANNUAL FEE PER FUND
Financial Administration Service Fee $ 35,000
State Street has agreed to waive the annual fee for the Trust. Such waiver
shall remain in effect until this fee schedule is amended pursuant to the
terms of Section 12 of the
Financial Administration Agreement.
II. SPECIAL ARRANGEMENTS
Fees for activities of a non-recurring nature (such as reorganizations
and/or preparation of special reports) will be subject to negotiation.
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III. TERM OF THE CONTRACT
The parties agree that this fee schedule shall remain in effect until it is
revised as a result of an amendment pursuant to Section 12 of the
Financial
Administration Agreement.
▇▇▇▇ ▇▇▇▇▇ FUND ADVISER, INC. STATE STREET BANK AND TRUST COMPANY
By: By:
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Title: Senior Vice President
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