ING CLARION REAL ESTATE INCOME FUND AUCTION AGENCY AGREEMENT dated as of November 24, 2003 Relating to Auction Preferred Shares Series W28 of ING CLARION REAL ESTATE INCOME FUND The Bank of New York, as Auction Agent
Exhibit (k)(2)
dated as of November 24, 2003
Relating to
Auction Preferred Shares
Series W28
of
The Bank of New York,
as Auction Agent
as Auction Agent
This Auction Agency Agreement (this “Agreement”), dated as of November 24, 2003, is between
ING Clarion Real Estate Income Fund (the “Trust”) and The Bank of New York, a New York banking
corporation.
The Trust proposes to issue an aggregate of 4,200 preferred shares, par value $0.001 per
share, liquidation preference $25,000 per share, designated as Series W28 Preferred Shares (the
“APS”), pursuant to the Statement of Preferences (as defined below).
The Trust desires that The Bank of New York perform certain duties as agent in connection with
each Auction (as defined below) (in such capacity, the “Auction Agent”), and as the transfer agent,
registrar, dividend paying agent and redemption agent with respect to the APS (in such capacity,
the “Paying Agent”), upon the terms and conditions of this Agreement, and the Trust hereby appoints
The Bank of New York as said Auction Agent.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
the Trust and the Auction Agent agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined By Reference to Statement.
Capitalized terms not defined herein shall have the respective meanings specified in the
Statement.
1.2 Terms Defined Herein.
As used herein and in the Settlement Procedures, the following terms shall have the following
meanings, unless the context otherwise requires:
(a) “Agent Member” of any Person shall mean the member of, or participant in, the Securities
Depository that will act on behalf of a Bidder.
(b) “Agreement” shall mean the Agreement relating to one or more series of APS.
(c) “APS” shall mean the preferred shares, par value $.001 per share, of the Trust designated
as its “Auction Preferred Shares” and bearing such further designation as to series as the Board of
Trustees, of the Trust or any committee thereof shall specify.
(d) “Auction” shall have the meaning specified in Section 2.1 hereof.
(e) “Auction Procedures” shall mean the auction procedures constituting Part II of the form of
Statement as of the filing thereof.
(f) “Authorized Officer” of the Auction Agent shall mean each Vice President, Assistant Vice
President and Assistant Treasurer of the Auction Agent assigned to the
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Dealing and Trading Group of
its Corporate Trust Department and every other officer or employee of the Auction Agent designated
as an “Authorized Officer” for purposes hereof in a written communication to the Trust.
(g) “Broker-Dealer Agreement” shall mean each agreement between the Auction Agent and a
Broker-Dealer substantially in the form attached hereto as Exhibit A.
(h) “Settlement Procedures” shall mean the Settlement Procedures attached hereto as Exhibit B.
(i) “Statement” shall mean the Statement of Preferences of Auction Preferred Shares, as the
same may be amended, supplemented or modified from time to time.
(j) “Trust Officer” shall mean the Chairman and Chief Executive Officer, the President, the
Secretary and the Treasurer of the Trust and every other officer or employee of the Trust
designated as a “Trust Officer” for purposes hereof in a notice to the Auction Agent.
1.3 Rules of Construction.
Unless the context or use indicates another or different meaning or intent, the following
rules shall apply to the construction of the Agreement:
(a) Words importing the singular number shall include the plural number and vice versa.
(b) The captions and headings herein are solely for convenience of reference and shall not
constitute a part of the Agreement nor shall they affect its meaning, construction or effect.
(c) The words “hereof”, “herein”, “hereto” and other words of similar import refer to the
Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York City time.
(e) This Agreement shall apply separately but equally to all series of APS that may be issued.
Sections 1 and 2 hereof shall be read in conjunction with the Statement and in the event of any
conflict with the Statement, the Statement shall take precedence.
2. The Auction.
2.1 Purpose; Incorporation by Reference of Auction Procedures and Settlement Procedures.
(a) The Board of Trustees of the Trust has adopted a resolution appointing The Bank of New
York as Auction Agent for purposes of the Auction Procedures. The Auction Agent hereby accepts
such appointment and agrees that, on each Auction Date, it shall follow the procedures set forth in
this Section 2 and the Auction Procedures for the purpose of determining
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the Applicable Rate for
any Subsequent Rate Period. Each periodic implementation of such procedures is hereinafter
referred to as an “Auction.”
(b) All of the provisions contained in the Auction Procedures and the Settlement Procedures
are incorporated herein by reference in their entirety and shall be deemed to be a part hereof to
the same extent as if such provisions were fully set forth herein.
2.2 Preparation for Each Auction; Maintenance of Registry of Beneficial Owners.
(a) Not later than seven days prior to the first Auction Date, the Trust shall provide the
Auction Agent with a list of the Broker-Dealers. Not later than seven days prior to any Auction
Date for which any change in such list of Broker-Dealers is to be effective, the Trust will notify
the Auction Agent in writing of such change and, if any such change involves the addition of a
Broker-Dealer to such list, shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer; provided, however, that if
the Trust proposes to designate any Special Rate Period of APS pursuant to Section 3 of Part I of
the Statement, not later than 11:00 A.M. on the Business Day next preceding the Auction next
preceding the first day of such Rate Period or by such later time or date, or both, as may be
agreed to by the Auction Agent, the Trust shall provide the Auction Agent with a list of the
Broker-Dealers for the APS and a manually signed copy of each Broker-Dealer Agreement or a new
Schedule A to a Broker-Dealer Agreement (which Schedule A shall replace and supersede any previous
Schedule A to such Broker-Dealer Agreement) with each Broker-Dealer for the APS. The Auction Agent
and the Trust shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to
the participation of any such Broker-Dealer in any Auction.
(b) In the event that any Auction Date shall be changed after the Auction Agent shall have
given the notice referred to in clause (vi) of paragraph (a) of the Settlement Procedures, or after
the notice referred to in Section 2.3 hereof, if applicable, the Auction Agent, by such means as
the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers for the
APS not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction
Date.
(c) (i) The Auction Agent shall maintain a registry of the beneficial owners of the APS
who shall constitute Existing Holders for purposes of Auctions and shall indicate thereon
the identity of the respective Broker-Dealer of each Existing Holder, if any, on whose
behalf such Broker-Dealer submitted the most recent Order in any Auction which resulted in
such Existing Holder continuing to hold or purchasing APS. The Auction Agent shall keep
such registry current and accurate based on the information provided to it from time to time
by the Broker-Dealer. The Trust shall provide or cause to be provided to the Auction Agent
at or prior to the Date of Original Issue of the APS a list of the initial Existing Holders
of the APS, the number of shares purchased by each such Existing Holder and the respective
Broker-Dealer of each such Existing Holder or the affiliate thereof through which each such
Existing Holder purchased such shares. The Auction Agent may rely upon, as conclusive
evidence of the identities of the Existing Holders of APS (A) such list, (B) the results of
Auctions, (C) notices from any Broker-Dealer as described in the first sentence of Section
2.2(c)(iii)
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hereof and (D) the results of any procedures approved by the Trust that have
been devised for the purpose of determining the identities of Existing Holders in situations
where APS may have been transferred without compliance with any restriction on the transfer
thereof set forth in the Auction Procedures.
(ii) In the event of any partial redemption of any APS, the Auction Agent shall, at
least two Business Days prior to the next Auction for the APS, request each Broker-Dealer to
provide the Auction Agent with a list of Persons who such Broker-Dealer believes should
remain Existing Holders after such redemption based upon inquiries of those Persons such
Broker-Dealer believes are Beneficial Owners as a result of the most recent Auction and with
respect to each such Person, the number of APS such Broker-Dealer believes are owned by such
Person after such redemption. In the absence of receiving any such information from any
Broker-Dealer, the Auction Agent may continue to treat the Persons listed in its registry of
Existing Holders as the beneficial owner of the number of APS shown in such registry.
(iii) The Auction Agent shall be required to register a transfer of APS from an
Existing Holder of such APS only if such transfer is to another Existing Holder, or other
Person if permitted by the Trust, and only if such transfer is made (A) pursuant to an
Auction, (B) the Auction Agent has been notified in writing (I) in a notice substantially in
the form of Exhibit C to the Broker-Dealer Agreements by a Broker-Dealer of such transfer or
(II) in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreements by
the Broker-Dealer of any Existing Holder, or other Person if permitted by the Trust, that
purchased or sold such APS in an Auction of the failure of such APS to be transferred as a
result of such Auction or (C) pursuant to procedures approved by the Trust that have been
devised for the purpose of determining the identities of Existing Holders in situations
where APS may have been transferred without compliance with any restriction on the transfer
thereof set forth in the Auction Procedures. The Auction Agent is not required to accept
any such notice for an Auction unless it is received by the Auction Agent by 1:00 P.M. on
the Business Day preceding such Auction.
(d) The Auction Agent may, but shall have no obligation to, request the Broker-Dealers, as set
forth in the Broker-Dealer Agreements, to provide the Auction Agent with a list of Persons who such
Broker-Dealer believes should be Existing Holders based upon inquiries of those Persons such
Broker-Dealer believes are Beneficial Owners as a result of the most recent Auction and with
respect to each such Person, the number of APS such Broker-Dealer believes to be owned by such
Person. The Auction Agent shall keep confidential such registry of Existing Holders and shall not
disclose the identities of the Existing Holders of such APS to any Person other than the Trust and
the Broker-Dealer that provided such information; provided, however, that the Auction Agent
reserves the right and is authorized to disclose any such information if (a) it is ordered to do so
by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or
authority having the authority to compel such disclosure, (b) it is advised by its counsel that its
failure to do so would be unlawful or (c) failure to do so would expose the Auction Agent to loss,
liability, claim, damage or expense for which it has not received indemnity or security
satisfactory to it.
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2.3 Auction Schedule.
The Auction Agent shall conduct Auctions in accordance with the schedule set forth below. Such
schedule may be changed by the Auction Agent with the consent of the Trust, which consent shall not
be unreasonably withheld. The Auction Agent shall give written notice of any such change to each
Broker-Dealer. Such notice shall be given prior to the close of business on the Business Day next
preceding the first Auction Date on which any such change shall be effective.
| Time | Event | |
By 9:30 A.M.
|
Auction Agent advises the Trust and Broker-Dealers of the applicable Maximum Rate and the Reference Rate used in determining such Maximum Rate. | |
9:30 A.M. – 1:30 P.M.
|
Auction Agent assembles information communicated to it by Broker-Dealers as provided in Section 2(a) of the Auction Procedures. Submission Deadline is 1:30 P.M. | |
Not earlier than 1:30 P.M.
|
Auction Agent makes determinations pursuant to Section 3(a) of the Auction Procedures. | |
By approximately 3:30 P.M.
|
Auction Agent advises Trust of results of Auction as provided in Section 3(b) of the Auction Procedures. | |
| Submitted Bids and Submitted Sell Orders are accepted and rejected and APS allocated as provided in Section 4 of the Auction Procedures. Auction Agent gives notice of Auction results as set forth in paragraph(a) of the Settlement Procedures. |
The Auction Agent shall follow the notification procedures set forth in paragraph (a) of the
Settlement Procedures.
2.4 Notice of Auction Results.
The Auction Agent will advise each Broker-Dealer who submitted a Bid or Sell Order in an
Auction whether such Bid or Sell Order was accepted or rejected in whole or in part and of the
Applicable Rate for the next Dividend Period for the related APS by telephone or by other
electronic means acceptable to the parties through its Auction Processing System as set forth in
paragraph (a) of the Settlement Procedures.
2.5 Broker-Dealers.
(a) Not later than 12:00 Noon on each Auction Date for the APS, the Trust shall pay to the
Auction Agent an amount in cash equal to the aggregate fees payable to the
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Broker-Dealers pursuant
to Section 2.7 of the Broker-Dealer Agreements. The Auction Agent shall apply such moneys as set
forth in Section 2.7 of each such Broker-Dealer Agreement.
(b) The Trust shall obtain the consent of the Auction Agent prior to selecting any Person to
act as a Broker-Dealer, which consent shall not be unreasonably withheld.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as set forth therein if so
directed in writing by the Trust, provided that at least one Broker-Dealer Agreement would be in
effect for the APS after such termination.
(d) Subject to the Auction Agent’s having consented to the selection of the relevant
Broker-Dealer pursuant to Section 2.5(b) hereof, the Auction Agent shall from time to time enter
into such Broker-Dealer Agreements with one or more Broker-Dealers as the Trust shall request, and
shall enter into such schedules to any such Broker-Dealer Agreements as the Trust shall request,
which schedules, among other things, shall set forth the series of APS to which such Broker-Dealer
Agreement relates.
2.6 Information Concerning Rates.
(a) The Applicable Percentage on the date of the Agreement is that rate as determined by the
Trust and provided to the Auction Agent on the date even herewith. If there is any change in the
credit rating of APS by the rating agency (or substitute or successor rating agencies) referred to
in the definition of “Applicable Percentage” resulting in any change in the Applicable Percentage
for APS after the date given herewith, the Trust shall notify the Auction Agent in writing of such
change in the Applicable Rate prior to 12:00 Noon on the Business Day prior to the next Auction
Date for the APS succeeding such change. In determining the Maximum Rate for the APS on any
Auction Date as set forth in 2.6(a)(i) hereof, the Auction Agent shall be entitled to rely on the
last Applicable Percentage for APS of which it has most recently received notice from the Trust
(or, in the absence of such notice, the percentage determined by reference to the definition of
Applicable Percentage).
(i) On each Auction Date, the Auction Agent shall determine the Maximum Rate in
accordance with Part I of the Statement. Not later than 9:30 A.M. on each Auction Date the
Auction Agent shall notify the Trust and the Broker-Dealers of the Maximum Rate and the
Reference Rate used to make such determination.
(ii) From and after a Failure to Deposit by the Trust during any Rate Period, until
such failure is cured and a Late Charge is paid, in accordance with subparagraph (e)(i) of
Section 2 of Part I of the Statement, on the first day of each Rate Period the Auction Agent
shall determine the Treasury Note Rate for such Rate Period of more than 364 Rate Period
Days and the Reference Rate for Rate Periods of 364 Rate Period Days or fewer. Not later
than 9:30 A.M. on each such first day, the Auction Agent shall notify the Trust of the
applicable Reference Rate and Treasury Note Rate.
(iii) If any “AA” Composite Commercial Paper Rate, Treasury Note Rate or Treasury ▇▇▇▇
Rate, as the case may be, is not quoted on an interest or bond equivalent, as the case may
be, basis, the Auction Agent shall convert the quoted rate to the interest or bond
equivalent thereof as set forth in the definition of such rate in the
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Statement if the rate
obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a
basis other than an interest or bond equivalent or discount basis the Auction Agent shall
convert the quoted rate to an interest or bond equivalent rate after consultation with the
Trust as to the method of such conversion.
(iv) If any “AA” Composite Commercial Paper Rate is to be based on rates supplied by
Commercial Paper Dealers and one or more of the Commercial Paper Dealers shall not provide a
quotation for the determination of such “AA” Composite Commercial Paper Rate, the Auction
Agent shall promptly notify the Trust so that the Trust can determine whether to select a
Substitute Commercial Paper Dealer or Substitute Commercial Paper Dealers to provide the
quotation or quotations not being supplied by any Commercial Paper Dealer or Commercial
Paper Dealers. The Trust shall promptly advise the Auction Agent of any such selection.
(v) If any Treasury Note Rate or Treasury ▇▇▇▇ Rate is to be based on rates supplied by
U.S. Government Securities Dealers and one or more of the U.S. Government Securities Dealers
shall not provide a quotation for the determination of such Treasury Rate, the Auction Agent
shall immediately notify the Trust so that the Trust can determine whether to select a
Substitute U.S. Government Securities Dealer or Substitute U.S. Government Securities
Dealers to provide the quotation or quotations not being supplied by any U.S. Government
Securities Dealer or U.S. Government Securities Dealers. The Trust shall promptly advise
the Auction Agent of any such selection.
2.7 Designation of Special Rate Period.
(a) The Statement will provide that, subject to the Trust’s option to designate a Special Rate
Period as referred to in paragraph (b) of this Section 2.7, (i) each Rate Period of APS will have a
duration of twenty-eight days, subject to certain exceptions) and (ii) each Rate Period following a
Rate Period that is other than twenty-eight days will be twenty-eight days in duration. Not less
than 10 nor more than 20 days prior to the last day of any such Rate Period that is not
twenty-eight days in duration, (i) the Trust shall deliver to the Auction Agent a notice of the
Auction Date of the next succeeding Auction in the form of Exhibit C hereto and (ii) the Auction
Agent shall deliver such notice by first-class mail, postage prepaid, to each Existing Holder at
the address set forth for such Existing Holder in the records of the Auction Agent and to the
Broker-Dealers as promptly as practicable after its receipt of such notice from the Trust.
(b) Pursuant to the Statement, the Trust may, at its option, designate a Special Rate Period
for the APS in the manner described in Section 3 of Part I of the Statement.
(i) If the Board of Trustees proposes to designate any succeeding Subsequent Rate
Period of the APS as a Special Rate Period, (A) the Trust shall deliver to the Auction Agent
a notice of such proposed Special Rate Period in the form of Exhibit D hereto and (B) the
Auction Agent on behalf of the Trust shall deliver such notice by first-class mail, postage
prepaid, to each Existing Holder of APS at the address set forth for such Existing Holder in
the records of the Auction Agent and to the Broker-Dealers as promptly as practicable after
its receipt of such notice from the Trust.
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(ii) If the Board of Trustees determines to designate such succeeding Subsequent Rate
Period as a Special Rate Period, (A) the Trust shall deliver to the Auction Agent and the
Broker-Dealers a notice of such determination in the form of Exhibit E hereto not later than
11:00 A.M. on the second Business Day next preceding the first day of such proposed Special
Rate Period.
(iii) If the Board of Trustees determines not to designate such succeeding Subsequent
Rate Period as a Special Rate Period, the Trust shall deliver to the Auction Agent and each
Broker-Dealer a notice not later than 11:00 A.M. on the second Business Day next preceding
the first day of such proposed Special Rate Period in the form of Exhibit F hereto, or if
the Trust shall fail to timely deliver either such notice or a notice in the form of Exhibit
E hereto, the Trust shall be deemed to have delivered a notice in the form of Exhibit F
hereto to the Auction Agent and the Broker-Dealers.
Such change in the length of any Rate Period shall not occur if (1) an Auction for APS shall
not be held on such Auction Date for any reason, (2) an Auction for APS shall be held on such
Auction Date but Sufficient Clearing Bids for APS shall not exist in such Auction, or (3) any other
precondition for a Special Rate Period stated in Section 3(a) of Part I of the Statement is not
met; provided that the Auction Agent shall be authorized to act in accordance with any notice
establishing a Special Rate Period, absent its receipt of written notice that the preconditions of
Section 3(a) of Part I of the Statement have not been satisfied.
2.8 Failure to Deposit.
(a) If any Failure to Deposit shall have occurred with respect to APS during any Rate Period
thereof (other than any Special Rate Period of more than 364 Rate Period Days or any Rate Period
succeeding any Special Rate Period of more than 364 Rate Period Days during which a Failure to
Deposit occurred that has not been cured), but, prior to 12:00 Noon, New York City time, on the
third Business Day next succeeding the date on which such Failure to Deposit occurred, such Failure
to Deposit shall have been cured in accordance with Section 2.8(c) hereof and the Trust shall have
paid to the Auction Agent a late charge (a “Late Charge”) equal to the sum of (1) if such Failure
to Deposit consisted of the failure timely to pay to the Auction Agent the full amount of dividends
with respect to any Dividend Period on such shares, an amount computed by multiplying (x) 200% of
the Reference Rate for the Rate Period during which such Failure to Deposit occurs on the Dividend
Payment Date for such Dividend Period by (y) a fraction, the numerator of which shall be the number
of days for which such Failure to Deposit has not been cured in accordance with Section 2.8(c)
hereof (including the day such Failure to Deposit occurs and excluding the day such Failure to
Deposit is cured) and the denominator of which shall be 360, and applying the rate obtained against
the aggregate liquidation preference of the outstanding APS and (2) if such Failure to Deposit
consisted of the failure timely to pay to the Auction Agent the Redemption Price of the APS, if
any, for which Notice of Redemption has been given by the Trust, an amount computed by multiplying
(x) 300% of the Reference Rate for the Rate Period during which such Failure to Deposit occurs on
the redemption date by (y) a fraction, the numerator of which shall be the number of days for which
such Failure to Deposit is not cured in accordance with Section 2.8(c) hereof (including the day
such Failure to Deposit occurs and excluding the day such Failure to Deposit is cured) and the
denominator of which shall be 360, and applying the rate obtained
against the aggregate
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liquidation
preference of the outstanding APS to be redeemed, then the Auction Agent shall deliver a notice in
the form of Exhibit G hereto by first-class mail, postage prepaid, to the Broker-Dealers not later
than one Business Day after its receipt of the payment from the Trust curing such Failure to
Deposit and such Late Charge.
(b) If:
(i) any Failure to Deposit shall have occurred with respect to APS during any Rate
Period thereof (other than any Special Rate Period of more than 364 Rate Period Days or any
Rate Period succeeding any Special Rate Period of more than 364 Rate Period Days during
which a Failure to Deposit occurred but has not been cured), and, prior to 12:00 Noon, New
York City time, on the third Business Day next succeeding the date on which such Failure to
Deposit occurred, such Failure to Deposit shall not have been cured in accordance with
Section 2.8(c) hereof or the Trust shall not have paid the applicable Late Charge to the
Auction Agent; or
(ii) any Failure to Deposit shall have occurred with respect to APS during a Special
Rate Period thereof of more than 364 Rate Period Days, or during any Rate Period thereof
succeeding any Special Rate Period of more than 364 Rate Period Days during which a Failure
to Deposit occurred that has not been cured, and, prior to 12:00 noon, New York City time,
on the fourth Business Day preceding the Auction Date for the Rate Period subsequent to such
Rate Period, such Failure to Deposit shall not have been cured in accordance with Section
2.8(c) hereof or the Trust shall not have paid the applicable Late Charge to the Auction
Agent in accordance with Section 2(e)(i)(D) of Part I of the Statement (such Late Charge,
for purposes of this clause (b) (ii) of this Section 2.8, to be calculated by using, as the
Reference Rate, the Reference Rate applicable to a Rate Period (x) consisting of more than
182 Rate Period Days and (y) commencing on the date on which the Rate Period during which
Failure to Deposit occurs commenced);
then the Auction Agent shall deliver a notice in the form of Exhibit H hereto to the Broker-Dealers
not later than one Business Day after the receipt of the payment from the Trust curing such Failure
to Deposit and such Late Charge.
(c) A Failure to Deposit with respect to APS shall have been cured (if such Failure to Deposit
is not solely due to the willful failure to the Trust to make the required payment to the Auction
Agent) with respect to any Rate Period if, within the respective time periods described immediately
above, the Trust shall have paid to the Auction Agent (i) all accumulated and unpaid dividends on
the APS and (ii) without duplication, the Redemption Price for the APS, if any, for which Notice of
Redemption has been mailed; provided, however, that the foregoing clause (ii) shall not apply to
the Trust’s failure to pay the Redemption Price in respect of APS when the related Redemption
Notice provides that redemption of such shares is subject to one or more conditions precedent and
each such condition precedent shall not have been satisfied at the time or times and in the manner
specified in such Notice of Redemption.
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2.9 Ownership of Shares of APS.
The Trust shall notify the Auction Agent if the Trust or, insofar as the Trust has knowledge,
any affiliate of the Trust acquires any APS. Neither the Trust nor any affiliate of the Trust shall
submit any Order in any Auction for APS, except as set forth in the next sentence. Any
Broker-Dealer that is an affiliate of the Trust may submit Orders in Auctions, but only if such
Orders are not for its own account. For purposes of this Section 2.9, a Broker-Dealer shall not be
deemed to be an affiliate of the Trust solely because one or more of the directors or executive
officers of such Broker-Dealer or of any Person controlled by, in control of or under common
control with such Broker-Dealer is also a director of the Trust. The Auction Agent shall have no
duty or liability with respect to enforcement of this Section 2.9.
2.10 Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Trust, its agents, independent public accountants and
counsel and the Broker-Dealers, access at reasonable times during normal business hours to review
and make extracts or copies of all books, records, documents and other information concerning the
conduct and results of Auctions (at no cost to the Auction Agent), provided that any such agent,
accountant, counsel or Broker-Dealer shall furnish the Auction Agent with a letter from the Trust
requesting that the Auction Agent afford such person access. The Auction Agent shall maintain
records relating to any Auction for a period of six years after such Auction, and such records
shall, in reasonable detail, accurately and fairly reflect the actions taken by the Auction Agent
hereunder.
3. The Auction Agent as Dividend and Redemption Price Disbursing Agent.
The Auction Agent, as dividend and redemption price disbursing agent, shall pay to the Holders
of APS (i) on each Dividend Payment Date, dividends on the APS, (ii) on any date fixed for
redemption of APS, the Redemption Price of APS called for redemption and (iii) any Late Charge
related to any payment of dividends or Redemption Price, in each case after receipt of the
necessary funds from the Trust with which to pay such dividends, Redemption Price or Late Charge.
The amount of dividends for any Rate Period to be paid by the Auction Agent to the Holders of such
APS will be determined by the Trust as set forth in Section 2 of Part I of the Statement. The
Redemption Price of any shares to be paid by the Auction Agent to the Holders will be determined by
the Trust as set forth in Section 10 of Part I of the Statement. The Trust shall notify the
Auction Agent in writing of a decision to redeem APS at least five days prior to the date a notice
of redemption is required to be mailed to the Holders of the shares to be redeemed by paragraph (c)
of Section 10 of Part I of the Statement. Such notice by the Trust to the Auction Agent shall
contain the information required by paragraph (c) of Section 10 of Part I of the Statement to be
stated in the notice of redemption required to be mailed by the Trust to such Holders.
4. The Auction Agent as Transfer Agent and Registrar.
4.1 Issue of Stock or Shares Certificates.
Upon the Date of Original Issue of APS, one or more certificates representing all of the
shares of such Series W28 Preferred Shares issued on such date shall be issued by the
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Trust and, at
the request of the Trust, registered in the name of Cede & Co. and countersigned by the Auction
Agent.
4.2 Registration of Transfer of Shares.
Shares of Series W28 Preferred Shares shall be registered solely in the name of the Securities
Depository or its nominee.
4.3 Removal of Legend on Restricted Shares.
All requests for removal of legends on APS of any series indicating restrictions on transfer
shall be accompanied by an opinion of counsel stating that such legends may be removed and such
shares freely transferred, such opinion to be delivered under cover of a letter from a Trust
Officer authorizing the Auction Agent to remove the legend on the basis of said opinion.
4.4 Lost Stock or Share Certificates.
The Auction Agent shall issue and register replacement certificates for certificates
represented to have been lost, stolen or destroyed upon the fulfillment of such requirements as
shall be deemed appropriate by the Trust and the Auction Agent, subject at all times to provisions
of law, the By-Laws of the Trust governing such matters and resolutions adopted by the Board of
Trustees of the Trust with respect to lost securities. The Auction Agent may issue new
certificates in exchange for and upon the cancellation of mutilated certificates. Any request by
the Trust to the Auction Agent to issue a replacement or new certificate pursuant to this Section
4.4 shall be deemed to be a representation and warranty by the Trust to the Auction Agent that such
issuance will comply with such provisions of law and the By-Laws and resolutions of the Board of
Trustees of the Trust.
4.5 Disposition of Cancelled Certificates; Record Retention.
The Auction Agent shall retain all stock or share certificates which have been cancelled in
transfer or exchange and all accompanying documentation in accordance with applicable rules and
regulations of the Securities and Exchange Commission for two calendar years. The Trust shall also
undertake to furnish to the Securities and Exchange Commission and to the Board of Governors of the
Federal Reserve System, upon demand, at either the principal office or at any regional office,
complete, correct and current hard copies of any and all such records.
4.6 Stock or Record Books.
For so long as the Auction Agent is acting as the transfer agent for any series of APS
pursuant to the Agreement, it shall maintain a stock or record book containing a list of the
Holders of the APS of each such series. In case of any request or demand for the inspection of the
stock or record books of the Trust or any other books in the possession of the Auction Agent, the
Auction Agent will notify the Trust and secure instructions as to permitting or refusing such
inspection. The Auction Agent reserves the right, however, to exhibit the stock or record books or
other books to any Person if (a) it is ordered to do so by a court of competent jurisdiction or a
12
regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such
disclosure, (b) it is advised by its counsel that its failure to do so would be unlawful or (c)
failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for
which it has not received indemnity or security satisfactory to it.
4.7 Return of Funds.
Any funds deposited with the Auction Agent hereunder by the Trust for any reason, including
but not limited to redemption of APS of any series, that remain unpaid after ninety days shall be
repaid to the Trust upon the written request of the Trust.
5. Representations and Warranties.
5.1 Representations and Warranties of the Trust
The Trust represents and warrants to the Auction Agent that:
(a) the Trust is duly organized and existing statutory trust in good standing under the laws
of the State of its incorporation or organization and has full corporate power or all requisite
power to execute and deliver the Agreement and to authorize, create and issue the APS, and the APS
when issued, will be duly authorized, validly issued, fully paid and nonassessable;
(b) the Agreement has been duly and validly authorized, executed and delivered by the Trust
and constitutes the legal, valid and binding obligation of the Trust;
(c) the form of the certificate evidencing the APS complies or will comply with all applicable
laws of the State of its incorporation or organization;
(d) when issued, the APS will have been duly registered under the Securities Act of 1933, as
amended, and no further action by or before any governmental body or authority of the United States
or of any state thereof is required in connection with the execution and delivery of the Agreement
or will have been required in connection with the issuance of APS;
(e) the execution and delivery of the Agreement and the issuance and delivery of the APS do
not and will not conflict with, violate or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, the Agreement and Declaration of Trust (as amended by
one or more Statements) or the By-Laws of the Trust, any law or regulation, any order or decree of
any court or public authority having jurisdiction, or any mortgage, indenture, contract, agreement
or undertaking to which the Trust is a party or by which it is bound the effect of which conflict,
violation, default or breach would be material to the Trust or the Trust and its subsidiaries taken
as a whole; and
(f) no taxes are payable upon or in respect of the execution of the Agreement or the issuance
of the APS of any series.
5.2 Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Trust that:
13
(i) The Auction Agent is duly organized and is validly existing as a banking
corporation in good standing under the laws of the State of New York and has the corporate
power to enter into and perform its obligations under this Agreement; and
(ii) this Agreement has been duly and validly authorized, executed and delivered by the
Auction Agent and constitutes the legal, valid and binding obligation of the Auction Agent,
enforceable against the Auction Agent in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equitable principles.
6. The Auction Agent.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as a non-fiduciary agent for the Trust hereunder and
owes no duties to any Person, other than the Trust, by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction Agent shall not be
liable for any action taken, suffered, or omitted or for any error of judgment made by it in the
performance of its duties under this Agreement. The Auction Agent shall not be liable for any
error of judgment made in good faith unless the Auction Agent shall have been negligent in
ascertaining the pertinent facts.
6.2 Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely and shall be protected in acting or refraining
from acting upon any communication authorized hereby and upon any written instruction, notice,
request, direction, consent, report, certificate, share certificate or other instrument, paper or
document believed in good faith by it to be genuine. The Auction Agent shall not be liable for
acting upon any telephone communication authorized hereby which the Auction Agent believes in good
faith to have been given by the Trust or by a Broker-Dealer. The Auction Agent may record
telephone communications with the Trust or with the Broker-Dealers or both.
(b) The Auction Agent may consult with counsel of its choice and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk its own funds or
otherwise incur or become exposed to financial liability in the performance of its duties
hereunder.
(d) The Auction Agent may perform its duties and exercise its rights hereunder either directly
or by or through agents or attorneys and shall not be responsible for any
14
misconduct or negligence
on the part of any agent or attorney appointed by it with due care hereunder.
(e) The Auction Agent shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, it being understood that the Auction
Agent shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
6.3 Compensation, Expenses and Indemnification.
(a) The Trust shall pay the Auction Agent an annual fee as compensation for all services
rendered by it under the Agreement and the Broker-Dealer Agreements as the Trust and the Auction
Agent have agreed to in writing from time to time.
(b) The Trust shall reimburse the Auction Agent upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Auction Agent in
accordance with any provision of the Agreement and the Broker-Dealer Agreements (including the
compensation and the reasonable expenses and disbursements of its agents and counsel), except any
expense or disbursement attributable to its negligence or bad faith. In no event shall the Auction
Agent be responsible or liable for special, indirect or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit), even if the Auction Agent has been
advised of the likelihood of such loss or damage and regardless of the form of action.
(c) The Trust shall indemnify the Auction Agent for and hold it harmless against any loss,
liability or expense incurred without negligence or bad faith on its part, arising out of or in
connection with its agency under the Agreement and the Broker-Dealer Agreements, including the
costs and expenses of defending itself against any such claim or liability in connection with its
exercise or performance of any of its duties hereunder and thereunder.
6.4 Auction Agent’s Disclaimer.
The Auction Agent makes no representation as to the validity or adequacy of this Agreement,
the Broker-Dealer Agreements, the APS of any series, or any documents related thereto, except that
the Auction Agent hereby represents that this Agreement has been duly authorized, executed and
delivered by the Auction Agent and constitutes a legal and binding obligation of the Auction Agent.
The Auction Agent shall have no obligation or liability in respect of the registration or
exemption therefrom of the APS under federal or state securities laws in respect of the sufficiency
or the conformity of any transfer of the APS pursuant to the terms of this Auction Agency
Agreement, any Broker Dealer Agreement or any other document contemplated hereby or thereby.
15
7. Miscellaneous.
7.1 Term of Agreement.
(a) The term of the Agreement is unlimited unless it shall be terminated as provided in this
Section 7.1. The Trust may terminate the Agreement at any time by so notifying the Auction Agent,
provided that the Trust has entered into an agreement in substantially the form of the Agreement
with a successor Auction Agent. The Auction Agent may terminate the Agreement upon written notice
to the Trust on the date specified in such notice, which date shall be no earlier than 45 days
after the date of delivery of such notice. In the event the APS are no longer held in electronic
book entry form, the Auction Agent’s responsibilities under the Agreement, as they relate to
Auctions, shall be suspended until such time as the APS are again held in electronic book entry
form.
(b) Except as otherwise provided in this paragraph (b), the respective rights and duties of
the Trust and the Auction Agent under the Agreement with respect to any series of APS shall cease
upon termination of the Agreement with respect to such series. The Trust’s representations,
warranties, covenants and obligations to the Auction Agent under Sections 5 and 6.3 hereof shall
survive the termination of the Agreement with respect to any series of APS. Upon termination of
the Agreement with respect to any series of APS, the Auction Agent shall, at the Trust’s request,
promptly deliver to the Trust copies of all books and records maintained by it with respect to APS
in connection with its duties hereunder.
7.2 Communications.
Except for (i) communications authorized to be by telephone pursuant to the Agreement or the
Auction Procedures and (ii) communications in connection with Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to any party hereunder
shall be in writing (including telecopy or similar writing) and shall be given to such party,
addressed to it, at its address or telecopy number set forth below and, where appropriate,
reference the particular Auction to which such notice relates:
If to the Trust,
|
ING Clarion Real Estate Income Fund | |
| 25▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: Secretary | ||
| Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇ | ||
If to the Auction Agent,
|
The Bank of New York | |
| 10▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| Attention: Corporate Trust Dealing and Trading | ||
| Group — Auction Desk | ||
| Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇ |
16
Each such notice, request or communication shall be effective when delivered at the address
specified herein. Communications shall be given on behalf of the Trust by a Trust Officer and on
behalf of the Auction Agent by telephone (confirmed by telecopy or in writing) by an Authorized
Officer.
7.3 Entire Agreement.
This Agreement contains the entire agreement between the parties relating to, and superseding
any prior agreement between the parties relating to, the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings, oral, written or
implied, between the parties relating to the subject matter hereof except for agreements relating
to the compensation of the Auction Agent.
7.4 Benefits.
Nothing herein, express or implied, shall give to any Person, other than the Trust, the
Auction Agent and their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim hereunder.
7.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified, amended, rescinded,
cancelled or waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged.
(b) Failure of either party hereto to exercise any right or remedy hereunder in the event of a
breach hereof by the other party shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
7.6 Successors and Assigns.
This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the
respective successors and assigns of each of the Trust and the Auction Agent. This Agreement may
not be assigned by any party hereto absent the prior written consent of the other party.
7.7 Severability.
If any clause, provision or section hereof shall be ruled invalid or unenforceable by any
court of competent jurisdiction, the invalidity or unenforceability of such clause, provision or
section shall not affect any of the remaining clauses, provisions or sections hereof.
7.8 Disclosure of Information.
The Auction Agent agrees that it will not disclose or use any “non-public personal
information” about the Trust’s shareholders other than such uses or disclosures as are permitted by
Regulation S-P under Section 504 of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇ Act (“Regulation S-P”).
17
“Nonpublic personal information” about a shareholder shall mean: (i) personally identifiable
financial information; (ii) any list, description, or other grouping of consumers that is derived
from using any personally identifiable information that is not publically available; and (iii) any
other information that a Customer or the Transfer Agent is prohibited from using or disclosing
pursuant to Regulation S-P.
7.9 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK). The parties agree that all actions and
proceedings arising out of this Auction Agency Agreement or any of the transactions contemplated
hereby shall be brought in the County of New York and, in connection with any such action or
proceeding, submit to the jurisdiction of, and venue in, such County. Each of the parties hereto
also irrevocably waives all right to trial by jury in any action, proceeding or counterclaim
arising out of this Auction Agency Agreement or the transactions contemplated hereby.
18
| ING CLARION REAL ESTATE INCOME FUND |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Secretary | |||
| THE BANK OF NEW YORK |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
EXHIBIT A
FORM OF
BROKER-DEALER AGREEMENT
BROKER-DEALER AGREEMENT
A-1
Exhibit B
SETTLEMENT PROCEDURES
The following summary of Settlement Procedures sets forth the procedures expected to be
followed in connection with the settlement of each Auction and will be incorporated by reference in
the Auction Agent Agreement and each Broker-Dealer Agreement. Nothing contained in this Appendix
constitutes a representation by the Trust that in each Auction each party referred to herein will
actually perform the procedures described herein to be performed by such party.
(a) On each Auction Date, the Auction Agent shall notify by telephone the Broker-Dealers that
participated in the Auction held on such Auction Date and submitted an order on behalf of any
Existing Holder or Potential Holder of:
(i) the Applicable Rate fixed for the next succeeding Dividend Period;
(ii) whether Sufficient Clearing Bids existed for the determination of the Applicable
Rate;
(iii) if such Broker-Dealer (a “Seller’s Broker-Dealer”) submitted a Bid or Sell Order
on behalf of an Existing Holder, the number of shares, if any, of APS to be sold by such
Existing Holder;
(iv) if such Broker-Dealer (a “Buyer’s Broker-Dealer”) submitted a Bid on behalf of a
Potential Holder, the number of shares, if any, of AMPS to be purchased by such Potential
Holder;
(v) if the aggregate number of AMPS to be sold by all Existing Holders on whose behalf
such Broker-Dealer submitted a Bid or a Sell Order exceeds the aggregate number of AMPS to
be purchased by all Potential Holders on whose behalf such Broker-Dealer submitted a Bid,
the name or names of one or more Buyer’s Broker-Dealers (and the name of the Agent Member,
if any, of each such Buyer’s Broker-Dealer) acting for one or more purchasers of such excess
number of AMPS and the number of such shares to be purchased from one or more Existing
Holders on whose behalf such Broker-Dealer acted by one or more Potential Holders on whose
behalf each of such Buyer’s Broker-Dealers acted;
(vi) if the aggregate number of AMPS to be purchased by all Potential Holders on whose
behalf such Broker-Dealer submitted a Bid exceeds the aggregate number of AMPS to be sold by
all Existing Holders on whose behalf such Broker-Dealer submitted a Bid or a Sell Order, the
name or names of one or more Seller’s Broker Dealers (and the name of the Agent Member, if
any, of each such Seller’s Broker-Dealer) acting for one or more sellers of such excess
number of AMPS and the number of such shares to be sold to one or more Potential Holders on
whose behalf such Broker-Dealer acted by one or more Existing Holders on whose behalf each
of such Seller’s Broker-Dealers acted; and
(vii) the Auction Date of the next succeeding Auction with respect to the AMPS.
(b) On each Auction Date, each Broker-Dealer that submitted an Order on behalf of any Existing
Holder or Potential Holder shall:
(i) (A) in the case of a Broker-Dealer that is a Buyer’s Broker-Dealer, instruct each
Potential Holder on whose behalf such Broker-Dealer submitted a Bid that was accepted, in
whole or in part, to instruct such Potential Holder’s Agent Member to pay to such
Broker-Dealer (or its Agent Member) through the Securities Depository the amount necessary
to purchase the number of AMPS to be purchased pursuant to such Bid
against receipt of such shares and advise such Potential Holder of the Applicable Rate for the next succeeding
Dividend Period, and (B) in the case that the aggregate number of AMPS to be purchased by
all Potential Holders on whose behalf such Buyer’s Broker-Dealer submitted a Bid exceeds the
aggregate number of AMPS to be sold by all Existing Holders on whose behalf such
Broker-Dealer submitted a Bid or a Sell Order, as described in (a)(vi), then such Buyer’s
Broker-Dealer shall instruct each Potential Holder of such excess AMPS to instruct such
Potential Holder’s Agent Member to pay to the Seller’s Broker-Dealer (or its Agent Member),
the names of whom are to be provided pursuant to (a)(vi), through the Securities Depository
the amount necessary to purchase the number of such excess AMPS to be purchased by such
Potential Holder against receipt of such share;
(ii) (A) in the case of a Broker-Dealer that is a Seller’s Broker-Dealer, instruct each
Existing Holder on whose behalf such Broker-Dealer submitted a Sell Order that was accepted,
in whole or in part, to instruct such Existing Holder’s Agent Member to deliver to such
Broker-Dealer (or its Agent Member) through the Securities Depository the number of AMPS to
be sold pursuant to such Order against payment therefor and advise any such Existing Holder
that will continue to hold AMPS of the Applicable Rate for the next succeeding Dividend
Period, and (B) in the case that the aggregate number of AMPS to be sold by all Existing
Holders on whose behalf such Broker-Dealer submitted a Bid or a Sell Order exceeds the
aggregate number of AMPS to be purchased by all Potential Holders on whose behalf such
Broker-Dealer submitted a Bid, as described in (a)(v), then such Seller’s Broker-Deal shall
instruct each Existing Holder of such excess AMPS to instruct such Existing Holder’s Agent
Member to deliver to the Buyer’s Broker-Dealer (or its Agent Member), the names of whom are
to be provided pursuant to (a)(v), through the Securities Depository the number of AMPS to
be sold pursuant to such Order against payment therefor;
(iii) advise each Existing Holder on whose behalf such Broker-Dealer submitted a Hold
Order of the Applicable Rate for the next succeeding Dividend Period;
(iv) advise each Existing Holder on whose behalf such Broker-Dealer submitted an Order
of the Auction Date for the next succeeding Auction; and
2
(v) advise each Potential Holder on whose behalf such Broker-Dealer submitted a Bid
that was accepted, in whole or in part, of the Auction Date for the next succeeding Auction.
(c) On the basis of the information provided to it pursuant to (a) above, each Broker-Dealer
that submitted a Bid or a Sell Order on behalf of a Potential Holder or an Existing Holder shall,
in such manner and at such time or times as in its sole discretion it may determine, allocated any
funds received by it pursuant to (b)(i) above and any AMPS received by it pursuant to (b)(ii) above
among the Potential Holders, if any, on whose behalf such Broker-Dealer submitted Bids, the
Existing Holders, if any, on whose behalf such Broker-Dealer submitted Bids that were accepted or
Sell Orders, and any Broker-Dealer or Broker-Dealers identified to it by the Auction Agent pursuant
to (a)(v) or (a)(vi) above.
(d) On each Auction Date:
(i) each Potential Holder and Existing Holder shall instruct its Agent Member as
provided in (b)(i) or (ii) above, as the case may be;
(ii) each Seller’s Broker-Dealer which is not an Agent Member of the Securities
Depository shall instruct its Agent Member to (A) deliver the shares to be sold pursuant to
(b)(ii)(B) above through the Securities Depository to any Buyer’s Broker-Dealer (or its
Agent Member) identified to such Seller’s Broker-Dealer pursuant to (a)(v) above against
payment therefor; and (B) pay through the Securities Depository to the Agent Member of the
seller of such shares against receipt of such shares, and
(iii) each Buyer’s Broker-Dealer which is not an Agent Member of the Securities
Depository shall instruct its Agent Member to (A) pay through the Securities Depository to a
Seller’s Broker-Dealer (or its Agent Member) identified pursuant to (a) (vi) above the
amount necessary to purchase the shares to be purchased pursuant to (b) (i) above against
receipt of such shares, and (B) deliver such shares through the Securities Depository to the
Agent Member of the purchaser thereof against payment therefor.
(e) On the day after the Auction Date:
(i) each Bidder’s Agent Member referred to in (d) (i) above shall instruct the
Securities Depository to execute the transactions described under (b) (i) or (ii) above, and
the Securities Depository shall execute such transactions;
(ii) each Seller’s Broker-Dealer or its Agent Member shall instruct the Securities
Depository to execute the transactions described in (d) (ii) above, and the Securities
Depository shall execute such transactions; and
(iii) each Buyer’s Broker-Dealer or its Agent Member shall instruct the Securities
Depository to execute the transactions described in (d) (iii) above, and the Securities
Depository shall execute such transactions.
(f) If an Existing Holder selling AMPS in an Auction fails to deliver such shares (by
authorized book-entry), a Broker-Dealer may deliver to the Potential Holder on behalf
3
of which it submitted a Bid that was accepted a number of whole AMPS that is less than the
number of shares that otherwise was to be purchased by such Potential Holder. In such event, the
number of AMPS to be so delivered shall be determined solely by such Broker-Dealer. Delivery of
such lesser number of shares shall constitute good delivery. Notwithstanding the foregoing terms
of this paragraph (f), any delivery or non-delivery of shares which shall represent any departure
from the results of an Auction, as determined by the Auction Agent, shall be of no effect unless
and until the Auction Agent shall have been notified of such delivery or non-delivery in accordance
with the provisions of the Auction Agent Agreement and the Broker-Dealer Agreements.
4
EXHIBIT C
NOTICE IS HEREBY GIVEN that the Auction Date of the next Auction for Series W28 of the Trust’s
APS is scheduled to be
, 20___ and the next Dividend Payment Date for Series W28 of
the Trust’s APS will be , 20___.
[A Failure to Deposit in respect of the Series W28 APS currently exists. If, prior to 12:00
noon, New York City time, on the third Business Day following such Failure to Deposit, such Failure
to Deposit is not cured or the applicable Late Charge is not paid, the next auction will not be
held. Notice of the next Auction for the Series W28 APS will be disclosed when such failure to
Deposit is cured and the applicable Late Charge is paid.(1)]
[A Failure to Deposit in respect of the Series W28 APS currently exists. If, prior to 12:00
noon, New York City time, on the fourth Business Day preceding the next scheduled Auction Date of
the Series W28 APS, such Failure to Deposit is not cured or the applicable Late Charge is not paid,
the next Auction will not be held. Notice of the next Auction for the Series W28 APS will be
delivered when such Failure to Deposit is cured and the applicable Late Charge is paid.(2)]
| (1) | Include this language if a Failure to Deposit as described in Section 2(e)(i)(C) of Part I of the Statement exists. | |
| (2) | Include this language if a Failure to Deposit as described in Section 2(e)(i)(D) of Part I of the Statement exists. |
C-1
EXHIBIT D
ING CLARION REAL ESTATE INCOME FUND
NOTICE OF PROPOSED CHANGE OF
LENGTH OF RATE PERIOD OF
AUCTION PREFERRED SHARES
(“APS”)
NOTICE OF PROPOSED CHANGE OF
LENGTH OF RATE PERIOD OF
AUCTION PREFERRED SHARES
(“APS”)
ING Clarion Real Estate Income Fund (the “Trust”) may exercise its option to designate the
Rate Period of its Series W28 APS commencing [the first day of the Special Rate Period] as a
Special Rate Period.
By 11:00 A.M. on the second Business Day preceding the first day of such proposed Special Rate
Period, the Trust will notify of either (a) its determination to exercise
such option, designating the length of such Special Rate Period for such series or (b) its
determination not to exercise such option.
Dated: , 20__
D-1
EXHIBIT E
ING CLARION REAL ESTATE INCOME FUND
NOTICE OF CHANGE OF LENGTH OF RATE PERIOD
AUCTION PREFERRED SHARES
(“APS”)
NOTICE OF CHANGE OF LENGTH OF RATE PERIOD
AUCTION PREFERRED SHARES
(“APS”)
NOTICE IS HEREBY GIVEN that (the “Trust”) has determined to designate the Rate Period of its
Series W28 APS commencing on [the first day of the Special Rate Period] as a Special Rate Period.
The Special Rate Period will be [Rate Period Days].
The Auction Date for the Special Rate Period is [the Business Day next preceding the first day
of such Special Rate Period].
The Special Rate Period shall not commence if (a) an Auction for APS shall not be held on such
Auction Date for any reason, (b) an Auction for APS shall be held on such Auction Date but
Sufficient Clearing Bids for such shares shall not exist in such Auction or (c) any other
precondition for a Special Rate Period stated in Section 3(a) of Part I of the Statement is not
met; provided that the Auction Agent shall be authorized to act in accordance with any notice
establishing a Special Rate Period, absent its receipt of written notice that the preconditions of
Section 3(a) of Part I of the Statement have not been satisfied.
The scheduled Dividend Payment Dates for such series of APS during such Special Rate Period
will be .
[Special Redemption Provisions, if any]
Attached hereto is a Preferred Shares Basic Maintenance Report showing that, as of the third
Business Day next preceding such proposed Special Rate Period, Moody’s Eligible Assets (if ▇▇▇▇▇’▇
is rating such APS) and Fitch Eligible Assets (if Fitch is rating such APS) each have an aggregate
Discounted Value at least equal to the Preferred Shares Basic Maintenance Amount as of such
Business Day (assuming for purposes of the foregoing calculation that (i) the Maximum Rate is the
Maximum Rate on such Business Day as if such Business Day were the Auction Date for the proposed
Special Rate Period, and (ii) the Moody’s Discount Factors or Fitch Discount Factors applicable to
Moody’s Eligible Assets or Fitch Eligible Assets are determined by reference to the first Moody’s
Exposure Period or Fitch Exposure Period, whichever applicable, longer than the corresponding
Moody’s Exposure Period or Fitch Exposure Period then applicable to the Trust).
| ING CLARION REAL ESTATE INCOME FUND | ||||
Dated: , 20__
E-1
EXHIBIT F
ING CLARION REAL ESTATE INCOME FUND
NOTICE OF DETERMINATION NOT TO CHANGE
LENGTH OF RATE PERIOD OF
AUCTION PREFERRED SHARES
(“APS”)
NOTICE OF DETERMINATION NOT TO CHANGE
LENGTH OF RATE PERIOD OF
AUCTION PREFERRED SHARES
(“APS”)
NOTICE IS HEREBY GIVEN that ING Clarion Real Estate Income Fund (the “Trust”) has determined
not to exercise its option to designate a Special Rate Period of its Series W28 APS and the next
succeeding Rate Period of such series will be a Rate Period of 28 Rate Period Days.
| ING CLARION REAL ESTATE INCOME FUND | ||||
Dated: , 20__
F-1
EXHIBIT G
ING CLARION REAL ESTATE INCOME FUND
NOTICE OF CURE OF FAILURE TO DEPOSIT ON
AUCTION PREFERRED SHARES
(“APS”)
NOTICE OF CURE OF FAILURE TO DEPOSIT ON
AUCTION PREFERRED SHARES
(“APS”)
NOTICE IS HEREBY GIVEN that ING Clarion Real Estate Income Fund (the “Trust”) has cured its
Failure to Deposit and paid the applicable Late Charge with respect to its Series W28 APS. The
dividend rate on the shares of Series W28 APS for the current Dividend Period is % per
annum, the Dividend Payment Date for the current Dividend Period is scheduled to be ,
20___and the next Auction Date is scheduled to be , 20___.
| ING CLARION REAL ESTATE INCOME FUND | ||||
Dated: , 20__
G-▇
▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇NCOME FUND
NOTICE OF CURE OF FAILURE TO DEPOSIT ON INCOME
AUCTION PREFERRED SHARES
(“APS”)
NOTICE OF CURE OF FAILURE TO DEPOSIT ON INCOME
AUCTION PREFERRED SHARES
(“APS”)
NOTICE IS HEREBY GIVEN that ING Clarion Real Estate Income Fund (the “Trust”) has cured its
Failure to Deposit and paid the applicable Late Charge with respect to its Series W28 APS. The
next Auction Date for the Series W28 APS is scheduled to be on , 20___.
| ING CLARION REAL ESTATE INCOME FUND | ||||
Dated: , 20__
H-1