EXHIBIT(k)(3)
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BROKER-DEALER AGREEMENT
AMONG
ING CLARION REAL ESTATE INCOME FUND
THE BANK OF NEW YORK
AS AUCTION AGENT
_______________________
AS BROKER-DEALER
DATED AS OF NOVEMBER 21, 2003
RELATING TO
AUCTION PREFERRED SHARES OF
ING CLARION REAL ESTATE INCOME FUND
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BROKER-DEALER AGREEMENT dated as of November 21, 2003 (this
"Agreement"), among The Bank of New York, a New York banking corporation, as
auction agent (the "Auction Agent") (not in its individual capacity but solely
as agent) pursuant to authority granted to it in the Auction Agency Agreement,
ING Clarion Real Estate Income Fund (the "Trust"), and each broker-dealer whose
name appears on the signature page hereof, as broker-dealer (together with its
successors and assigns as such hereinafter referred to as "BD").
The Trust intends to issue shares of one or more series of Auction
Preferred Shares, liquidation preference $25,000 per share (the "APS"). The
shares of each series of APS shall be issued in book-entry form through the
facilities of the Securities Depository. References to "APS" in this Agreement
shall refer only to the beneficial interests in the APS unless the context
otherwise requires.
The Auction Procedures require the participation of a Broker-Dealer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Auction Agent, the Trust and BD
agree as follows:
1. Definitions and Rules of Construction
1.1 Terms Defined by Statement of Preferences.
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 Depositary
that will act on behalf of a Bidder.
(b) "Agreement" with
respect to the Trust shall mean this
Agreement as may be amended in writing with
written consent of the Trust.
(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 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) "Settlement
Procedures" shall mean the Settlement
Procedures attached to the Auction Agency
Agreement as Exhibit B.
(h) "Statement" shall mean
the Statement of Preferences of Auction
Preferred Shares, as the same may be
amended, supplemented or modified from time
to time.
(i) "Trust Officer" shall
mean the Chairman and Chief Executive
Officer, the President, each Vice President
(whether or not designated by a number or
word or words added before or after the
title "Vice President"), the Secretary, the
Treasurer, each Assistant Vice President,
each Assistant Secretary and each Assistant
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 this 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 this Agreement
nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and
other words of similar import refer to this 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.
1.4 Warranties of BD.
(a) BD hereby represents and warrants that this
Broker-Dealer Agreement has been duly authorized, executed and delivered by BD
and that, assuming the due
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authorization, execution and delivery hereof by the Auction Agent, this
Broker-Dealer Agreement constitutes a valid and binding agreement of BD,
enforceable against it in accordance with its terms. BD's representations and
warranties in this Section 1.4 shall survive the termination of this Agreement.
(b) BD further represents and warrants that BD
is a registered broker-dealer pursuant to Section 15(b) of the Securities and
Exchange Act of 1934, as amended. BD further represents and warrants that it is
a member of the NASD and, with respect to any sales in the United States, BD
agrees to abide by all of the rules and regulations of the NASD, including,
without limitation, its Rules of Fair Practice. BD agrees to comply with all
applicable federal and state laws, rules and regulations including, without
limitation, its Rules of Fair Practice. BD agrees to comply with all applicable
federal and state laws, rules and regulations, including, without limitation,
all suitability requirements applicable to BD's customers who own shares of any
Series of APS. BD agrees to notify the Auction Agent and the Fund immediately in
the event of the expulsion or suspension of BD from the NASD. The expulsion of
BD from the NASD will automatically terminate this Agreement immediately without
notice. The suspension of BD from the NASD will terminate this Agreement
effective immediately upon written notice of termination from the NASD.
(c) BD shall have policies and procedures in
place that comply with BD's obligations under the provisions of the
International Money Laundering Abatement Act, the USA Patriot Act, the Bank
Secrecy Act ("BSA") and any other anti-money laundering law, rule or regulation
applicable to BD, the Auction Agent and the Fund as financial institutions under
the BSA, or otherwise. Subject to legal restrictions, BD shall, upon the request
of the Auction Agent or the Fund, promptly provide to the requesting party
evidence of those policies and procedures and BD's compliance therewith and/or
evidence establishing the identities and sources of the funds for each customer
that owns shares of any Series of APS
2. The Auctions
2.1 Purpose; Incorporation by Reference of Auction
Procedures and Settlement Procedures.
(a) On each Auction Date, the provisions of the
Auction Procedures will be followed by the Auction Agent for the purpose of
determining the Applicable Rate for the APS for the next Dividend 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 of this Agreement
to the same extent as if such provisions were fully set forth herein.
(c) BD agrees to act as, and assumes the
obligations of and limitations and restrictions placed upon, a Broker-Dealer
under this Agreement.
(d) BD acknowledges and agrees that each
provision of the Auction Procedures that requires BD to perform an obligation or
procedure is hereby incorporated herein by reference and that this Agreement
shall constitute the Trust's instruction, and BD hereby
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agrees, to perform such obligations and procedures without further request by or
instructions from the Trust.
(e) BD may participate in Auctions for its own
account.
2.2 Preparation for Each Auction.
(a) Not later than 9:30 A.M. on each Auction
Date the Auction Agent shall notify the Trust and BD of the Maximum Rate and the
Reference Rate used to make such determination.
(b) BD shall cause the Maximum Rate to be
communicated as promptly as practicable to its customers who hold or may be
interested in acquiring APS.
(c) As promptly as practicable after determining
each Auction Date, but not later than 9:15 a.m. on the Business Day preceding
such Auction Date, the Auction Agent shall notify BD, by such means as the
Auction Agent deems practicable, of the scheduled date of such Auction Date. If
the Auction Date for any Auction shall be changed after the Auction Agent has
given such notice or the notice referred to in clause (vii) of paragraph (a) of
the Settlement Procedures, the Auction Agent, by such means as the Auction Agent
deems practicable, shall give notice of such change to BD not later than the
earlier of (x) 9:15 a.m. on the Business Day preceding the new Auction Date, and
(y) 9:15 a.m. on the original Auction Date. Thereafter, BD shall promptly notify
customers of BD that are Existing Holders of such change in the Auction Date.
(d) If required by applicable law, or requested
by the Auction Agent, BD shall provide a list of Existing Holders based upon
inquiries of those Persons such Broker-Dealer believes are Beneficial Owners as
a result of the most recent Auction to the Auction Agent promptly after any date
so requested by the Auction Agent. The Auction Agent shall keep confidential any
such information, including information received as to the identity of Bidders
in any Auction, and shall not disclose any such information so provided to any
Person other than the other parties hereto, provided that the Auction Agent
reserves the right to disclose any such information if (a) it is ordered to do
so by a court of competent jurisdiction or a regulatory, judicial or
quasi-judicial agency, (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 satisfactory to it.
(e) BD agrees to maintain a list of customers
relating to a series of APS and to use its best efforts, subject to existing
laws and regulations, to contact the customers on such list whom BD believes may
be interested in participating in the Auction on each Auction Date, as a
Potential Holder or a Potential Beneficial Owner, for the purposes set forth in
the Auction Procedures. Nothing herein shall require BD to submit an Order for
any customer in any Auction.
(f) The Auction Agent's registry of Existing
Holders of shares of a series of APS shall be conclusive and binding on BD. BD
may inquire of the Auction Agent between 3:00 p.m. on the Business Day preceding
an Auction for shares of a series of APS and 9:30 a.m. on the Auction Date for
such Auction to ascertain the number of shares of such series in respect of
which the Auction Agent has determined BD to be an Existing Holder. If BD
believes it is the
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Existing Holder of fewer shares of such series than specified by the Auction
Agent in response to BD's inquiry, BD may so inform the Auction Agent of that
belief. BD shall not, in its capacity as Existing Holder of shares of such
series, submit Orders in such Auction in respect of shares of such series
covering in the aggregate more than the number of shares of such series
specified by the Auction Agent in response to BD's inquiry.
2.3 Auction Schedule; Method of Submission of Orders.
(a) The Auction Agent shall conduct Auctions in
accordance with the schedule set forth below. Such schedule may be changed at
any time 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 BD which shall have the right to review such change. Such notice
shall be received one Business Day prior to 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 the
Broker-Dealer of the applicable Maximum Rate and
the Reference Rate as set forth in Section 2.2(a)
hereof.
9:30 a.m. - 1:30 p.m. Auction Agent assembles information communicated
to it by Broker-Dealer as provided in Section
2(a) of the Auction Procedures. Submission
Deadline is 1:30 p.m.
Not earlier than Auction Agent makes determinations pursuant to
1:30 p.m. 3(a) of the Auction Procedures.
By approximately Auction Agent advises the Trust of results of
3:30 p.m. Auction as provided in Section 3(b) of the
Auction Procedures. Submitted Bids and Submitted
Sell Orders are accepted and rejected in whole or
in part and APS are 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.
(j)
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(b) BD may designate one or more individuals in
its organization who will coordinate its procedures in connection with Auctions
and purchases and sales of shares of any series of APS.
(c) BD agrees to handle its customers' order in
accordance with its duties under applicable securities laws and rules.
(d) To the extent that pursuant to Section 4 of
the Auction Procedures of the Trust, BD continues to hold, sells or purchases a
number of shares that is fewer than the number of shares in an Order submitted
by BD to the Auction Agent in which BD designated itself as an Existing Holder
or Potential Holder in respect of customer Orders, BD shall make appropriate pro
rata allocations among its customers for which it submitted Orders of similar
tenor. If as a result of such allocations, any Beneficial Owner would be
entitled or required to sell, or any Beneficial Owner would be entitled or
required to purchase, a fraction of an APS on any Auction Date, BD shall, in
such manner as it shall determine in its sole discretion, round up or down the
number of APS to be purchased or sold on such Auction Date by any Beneficial
Owner or Potential Beneficial Owner on whose behalf BD submitted an Order so
that the number of shares so purchased or sold by each such Beneficial Owner or
Potential Beneficial Owner on such Auction Date shall be whole shares.
(e) BD shall submit Orders to the Auction Agent
in writing in substantially the form attached hereto as Exhibit A. BD shall
submit separate Orders to the Auction Agent for each Potential Holder or
Existing Holder on whose behalf BD is submitting an Order and shall not net or
aggregate the Orders of Potential Holders or Existing Holders on whose behalf BD
is submitting Orders.
(f) BD shall deliver to the Auction Agent a
written notice, substantially in the form attached hereto as Exhibit B, of
transfers of APS made through BD by an Existing Holder to another Person other
than pursuant to an Auction and a written notice, substantially in the form
attached hereto as Exhibit C, of the failure of any APS to be transferred to or
by any Person that purchased or sold APS through BD pursuant to an Auction. The
Auction Agent is not required to accept any notice delivered pursuant to the
terms of the foregoing sentence with respect to an Auction unless it is received
by the Auction Agent by 3:30 p.m. on the Business Day next preceding the
applicable Auction Date.
2.4 Notices.
(a) On each Auction Date, the Auction Agent
shall notify BD by telephone or facsimile (or other electronic means acceptable
to both parties) of the results of the Auction as set forth in paragraph (a) of
the Settlement Procedures. By approximately 11:30 a.m. on the Business Day next
succeeding such Auction Date, the Auction Agent shall notify BD in writing of
the disposition of all Orders submitted by BD in the Auction held on such
Auction Date.
(b) BD shall notify each Existing Holder or
Potential Holder on whose behalf BD has submitted an Order as set forth in
paragraph (b) of the Settlement Procedures and take such other action as is
required of BD pursuant to the Settlement Procedures.
2.5 Designation of Special Rate Period.
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(a) If the Trust delivers to its Auction Agent a
notice of the Auction Date for any series of APS of the Trust for a Rate Period
thereof that next succeeds a Rate period that is not a Minimum Rate Period in
the form of Exhibit C to the Auction Agency Agreement, and BD is a Broker-Dealer
of such series, the Auction Agent shall deliver such notice to BD as promptly as
practicable after its receipt of such notice from the Trust.
(b) If the Board of Trustees of the Trust
proposes to designate any succeeding Subsequent Rate Period of any series of APS
of the Trust as a Special Rate Period and the Trust delivers to its Auction
Agent a notice of such proposed Special Rate Period in the form of Exhibit D to
the Auction Agency Agreement, and BD is a Broker-Dealer for such series, such
Auction Agent shall deliver such notice to BD as promptly as practicable after
its receipt of such notice from the Trust.
(c) If the Board of Trustees of the Trust
determines to designate such succeeding Subsequent Rate Period as a Special Rate
Period, and the Trust delivers to its Auction Agent a notice of such Special
Rate Period in the form of Exhibit E to the Auction Agency Agreement not later
than 11:00 a.m. on the second Business Day next preceding the first day of such
Rate Period, and BD is a Broker-Dealer for such series, such Auction Agent shall
deliver such notice to BD not later than 3:00 p.m. on such second Business Day.
(d) If the Trust shall deliver to its Auction
Agent a notice not later than 11:00 a.m. on the second Business Day next
preceding the first day of any Rate Period stating that the Trust has determined
not to exercise its option to designate such succeeding Subsequent Rate Period
as a Special Rate Period, in the form of Exhibit F to the Auction Agency
Agreement, or shall fail to timely deliver either such notice or a notice in the
form of Exhibit E to the Auction Agency Agreement, and BD is a Broker-Dealer for
such series, such Auction Agent shall deliver a notice in the form of Exhibit F
to the Auction Agency Agreement to BD not later than 3:00 p.m. on such second
Business Day.
2.6 Failure to Deposit.
(a) If: (i) any Failure to Deposit shall have
occurred with respect to shares of any series of APS of the Trust 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) of
the Auction Agency Agreement and the Trust shall have paid to the Auction Agent
for such series the applicable Late Charge as described in Section 2.8(a) of the
Auction Agency Agreement; or (ii) any Failure to Deposit shall have occurred
with respect to shares of any series of APS of the Trust 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, 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) of the Auction Agency
Agreement and the Trust shall have paid to the Auction Agent for such series the
applicable Late Charge as described in Section 2.8(a) of the Auction Agency
Agreement; then, if BD is a Broker-
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Dealer for such series, such Auction Agent shall deliver a notice in the form of
Exhibit G to the Auction Agency Agreement by first-class mail, postage prepaid,
to BD 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 shares of any series of APS of the Trust 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 as described in Section 2.8(c) of the
Auction Agency Agreement or the Trust shall not have paid to the Auction Agent
for such series the applicable Late Charge described in Section 2.8(a) of the
Auction Agency Agreement; or (ii) any Failure to Deposit shall have occurred
with respect to shares of any series of APS of the Trust 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 as described in Section 2.8(c) of the Auction
Agency Agreement and the Trust shall not have paid to the Auction Agent for such
series the applicable Late Charge described in Section 2.8(a) of the Auction
Agency Agreement; then such Auction Agent shall deliver a notice in the form of
Exhibit H to the Auction Agency Agreement to the Broker-Dealers for such series
not later than one Business Day after the receipt of the payment from the Trust
curing such Failure to Deposit and Late Charge.
2.7 Service Charge to Be Paid to BD.
(a) No later than 12:00 noon on each Dividend
Payment Date, the Auction Agent after each Auction will pay a service charge
from funds provided by the Trust to each Broker-Dealer on the basis of the
purchase price of APS placed by such Broker-Dealer at such Auction. The service
charge shall be (i) in the case of any Auction Date immediately preceding a
twenty-eight-day Dividend Period, the product of (A) a fraction, the numerator
of which is the number of days in such Dividend Period (calculated by counting
the date of original issue of such shares to but excluding the next succeeding
dividend payment date of such shares) and the denominator of which is 365, times
(B) 1/4 of 1%, times (C) $25,000, times (D) the sum of the aggregate number of
shares of outstanding APS for which the Auction is conducted and (ii) in the
case of any Special Dividend Period the amount determined by mutual consent of
the Trust and any such Broker-Dealers and shall be based upon a selling
concession that would be applicable to an underwriting of fixed or variable rate
APS with a similar final maturity or variable rate dividend period,
respectively, at the commencement of the Dividend Period with respect to such
Auction.
(b) If the Trust determines to change the rate
at which the Broker-Dealer Fee accrues, the Trust shall mail to the Auction
Agent a notice thereof within two Business Days of such change. Any change in
the Broker-Dealer Fee Rate shall be effective on the Auction Date next
succeeding the Auction Agent's receipt of notice of such change.
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2.8 Settlement.
(a) If any Existing Holder selling APS in an
Auction fails to deliver such APS (by authorized book-entry), the BD of any
Person that was to have purchased APS in such Auction may deliver to such Person
a number of APS that is less than the number of APS that otherwise were to be
purchased by such Person. In such event, the number of APS to be so delivered
shall be determined by BD. Delivery of such lesser number of APS shall
constitute good delivery. Upon the occurrence of any such failure to deliver
APS, BD shall deliver to the Auction Agent the notice required by Section
2.2(c)(ii) of the Auction Agency Agreement. Notwithstanding the foregoing
provisions of this Section 2.8, any delivery or non delivery of APS which
represents 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 terms
of Section 2.2(c)(ii) of the Auction Agency Agreement. The Auction Agent shall
have no duty or liability with respect to enforcement of this Section 2.8.
(b) Neither the Auction Agent nor the Trust
shall have any responsibility or liability with respect to the failure of an
Existing Holder, a Potential Holder or an Agent Member or any of them to deliver
APS or to pay for APS sold or purchased pursuant to the Auction Procedures or
otherwise.
(c) Notwithstanding any provision of the Auction
Procedures or the Settlement Procedures to the contrary, in the event BD is an
Existing Holder with respect to shares of a series of APS and the Auction
Procedures provide that BD shall be deemed to have submitted a Sell Order in an
Auction with respect to such shares if BD fails to submit an Order in that
Auction with respect to such shares, BD shall have no liability to any Person
for failing to sell such shares pursuant to such a deemed Sell Order if (i) such
shares were transferred by the beneficial owner thereof without notification of
such transfer in compliance with the Auction Procedures or (ii) BD has indicated
to the Auction Agent pursuant to Section 2.2(f) of this Agreement that,
according to BD's records, BD is not the Existing Holder of such shares.
(d) Notwithstanding any provision of the Auction
Procedures or the Settlement Procedures to the contrary, in the event an
Existing Holder or Beneficial Owner of shares of a series of APS with respect to
whom a Broker-Dealer submitted a Bid to the Auction Agent for such shares that
was accepted in whole or in part, or submitted or is deemed to have submitted a
Sell Order for such shares that was accepted in whole or in part, fails to
instruct its Agent Member to deliver such shares against payment therefore,
partial deliveries of APS that have been made in respect of Potential Holders'
or Potential Beneficial Owners' Submitted Bids for shares of such series that
have been accepted in whole or in part shall constitute good delivery to such
Potential Holders and Potential Beneficial Owners.
3. The Auction Agent
3.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as a
non-fiduciary agent for the Trust hereunder and owes no duties or otherwise, to
any other Person.
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(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, the
Auction Agency Agreement, Auction Procedures or the Settlement Procedures
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
resulting from the use or reliance on a source of information used in good faith
and without negligence to make any determination, calculation or declaration
hereunder. 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
or failing to ascertain the pertinent facts. In no event shall the Auction Agent
be liable for special, punitive, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Auction
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(d) The Auction Agent shall not be: (i) required
to, and does not, make any representations or have any responsibilities as to
the validity, accuracy, value or genuineness of any signatures or endorsements,
other than its own; (ii) obligated to take any legal action hereunder that
might, in its judgment, involve any expense or liability, unless it has been
furnished with indemnity satisfactory to the Auction Agent; and (iii)
responsible for or liable in any respect on account of the identity, Trust or
rights of any Person (other than itself and its agents and attorneys) executing
or delivering or purporting to execute or deliver any document under this
Agreement or any Broker-Dealer Agreement.
(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.
3.2 Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
communication authorized by this Agreement and upon any written instruction,
notice, request, direction, consent, report, certificate, share certificate or
other instrument, paper or document believed by it to be genuine. The Auction
Agent shall not be liable for acting upon any communication authorized by this
Agreement (including, but not limited to, any made by telephone, telecopier or
other means of electronic communication acceptable to the parties hereto) which
the Auction Agent believes in good faith to have been given by the Trust or by
BD. The Auction Agent may record telephone communications with BD.
(b) The Auction Agent may consult with counsel
of its own 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.
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(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 misconduct or negligence on the
part of any agent or attorney appointed by it with due care.
(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.
3.3 Auction Agent's Disclaimer. The Auction Agent makes
no representation as to, and shall have no liability with respect to, the
correctness of the recitals in, or the validity, adequacy or accuracy of, this
Agreement, the Auction Agency Agreement, the Auction Procedures, the offering
material used in connection with the offer and sale of the APS or any other
agreement or instrument executed in connection with the transactions
contemplated herein or in any thereof. 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 the Auction
Agency Agreement, any Broker Dealer Agreement or any other document contemplated
hereby or thereby.
4. Miscellaneous
4.1 Termination. (a) Any party may terminate this
Agreement at any time upon five (5) days' written notice to the other parties,
which notice may be given by facsimile as provided in Section 4.3 hereof. This
Agreement shall automatically terminate upon the redemption of all outstanding
APS or upon termination of the Auction Agency Agreement.
(b) BD represents that it (or if BD does not act
as Agent Member, one of its affiliates) shall make all dividend payments on the
APS available in same-day funds on each Dividend Payment Date to customers that
use BD or affiliate as Agent Member.
4.2 Agent Member. BD is, and shall remain for the term of
this Agreement, a member of, or participant in, the Securities Depository (or an
affiliate of such a member or participant).
4.3 Communications. Except for (i) communications
authorized to be by telephone pursuant to this Agreement or the Auction
Procedures and (ii) communications in connection with the Auctions (other than
those expressly required to be in writing), all notices, requests and other
communications to any party hereunder shall be in writing (for the purposes of
this Agreement, telecopy or other means of electronic communication acceptable
to the parties shall be deemed to be in writing) and shall be given to such
party, addressed to it, at its address, telecopy number set forth below and,
where appropriate reference the particular Auction to which such notice relates:
11
If to BD,
addressed:
If to the Auction The Bank of New York
Agent, addressed: 000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Dealing and Trading Group
- Auction Desk
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other parties. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer, on behalf of the
Auction Agent by an Authorized Officer and on behalf of the Trust by an
Authorized Trust Officer. Telephone communications may be recorded.
4.4 Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations, endorsements, promises, agreements or
understandings, oral, written or inferred, between the parties relating to the
subject matter hereof.
4.5 Benefits. Nothing in this Agreement, express or
implied, shall give to any person, other than the Auction Agent, the Trust and
BD and their respective successors and permitted assigns, any benefit of any
legal or equitable right, remedy or claim under this Agreement.
4.6 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 each of the parties hereto.
(b) Failure of any party to this Agreement to
exercise any right or remedy hereunder in the event of a breach of this
Agreement by any other party shall not constitute a waiver of any such right or
remedy with respect to any subsequent breach.
4.7 Successors and Assigns. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the respective
successors and permitted assigns of each of
12
the parties hereto. This Agreement may not be assigned by any party hereto
absent the prior written consent of the other parties.
4.8 Severability. If any clause, provision or section of
this Agreement 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 remaining clause, provision or section hereof.
4.9 Execution in Counterparts. This Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
4.10 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 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 Agreement or the transactions contemplated hereby.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
ING CLARION REAL ESTATE INCOME FUND
By:__________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
THE BANK OF NEW YORK
as Auction Agent
By: ___________________________
Name:
Title:
as Broker-Dealer
By: ___________________________
Name:
Title:
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
ING CLARION REAL ESTATE INCOME FUND
By: __________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
THE BANK OF NEW YORK
as Auction Agent
By: ___________________________
Name:
Title:
as Broker-Dealer
By: ___________________________
Name:
Title:
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
ING CLARION REAL ESTATE INCOME FUND
By: __________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
THE BANK OF NEW YORK
as Auction Agent
By: ___________________________
Name:
Title:
as Broker-Dealer
By: ___________________________
Name:
Title:
16
Exhibit A
To BROKER-DEALER
AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
ING CLARION REAL ESTATE INCOME FUND
Auction Preferred Shares ("APS")
To: The Bank of New York Date of Auction __________
Corporate Trust Administration Series of APS (indicate by
000 Xxxxxx Xxxxxx, 0xx Xxxxx Number Designation)
Xxx Xxxx, Xxx Xxxx 00000 _______
Attention: Dealing and Trading Group
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: __________________________________
Bidder placed the Order listed below covering the number of
shares indicated (complete only one blank):
_________________ number of APS now held by
Bidder (an Existing Holder), and the Order is a (check one):
[ ] Hold Order; or
[ ] Bid at a rate of ____%; or
[ ] Sell Order;
-- or -
_________________ number of APS not now held
by Bidder (a Potential Holder), and the Order is
a Bid at a rate of ______%
Notes:
(1) If submitting more than one Bid for one Bidder, use additional Order
Forms.
(2) If one or more Bids covering in the aggregate more than the outstanding
number of APS held by any Existing Holder are submitted, such Bids
shall be considered valid in the order of priority set forth in the
Auction Procedures.
(3) A Hold or Sell Order may be placed only by an Existing Holder covering
a number of APS not greater than the number of APS currently held by
such Existing Holder.
(4) Potential Holders may make Bids only, each of which must specify a
rate. If more than one Bid is submitted on behalf of any Potential
Holder, each Bid submitted shall be a separate Bid with the rate
specified.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order must be submitted in whole APS with an aggregate liquidation
preference of $25,000.
Name of Broker-Dealer: _____________________
By: __________________________
A-1
Exhibit B
To BROKER-DEALER
AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
ING CLARION REAL ESTATE INCOME FUND
Auction Preferred Shares ("APS")
Series _____ APS
(indicate by Number Designation)
We are (check one):
[ ] the Existing Holder named below; or
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder will transfer
_____ APS to ____________________.
ING CLARION REAL ESTATE INCOME FUND
________________________________________________________________________________
By: _______________________________
Name:
Title:
________________________________________________________________________________
(Name of Existing Holder)
________________________________________________________________________________
(Name of Broker-Dealer)
________________________________________________________________________________
(Name of Agent Member)
________________________________________________________________________________
By: _______________________________
Name:
Title:
B-1
Exhibit C
To BROKER-DEALER
AGREEMENT
(To be used only for failures to deliver
APS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
ING CLARION REAL ESTATE INCOME FUND
Auction Preferred Shares ("APS")
Series _____ APS
(indicate by Number Designation)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"),
which purchased ____ APS in the Auction held on
__________________ from the seller of such APS.
II. We are a Broker-Dealer for _____________ (the "Seller"), which
sold ____ APS in the Auction held on ____________________ to
the purchaser of such APS.
We hereby notify you that (check one):
_________ the Seller failed to deliver such APS to the
Purchaser; or
_________ the Purchaser failed to make payment to the Seller
upon delivery of such APS.
Name: ________________________________
(Name of Broker-Dealer)
________________________________________________________________________________
By: __________________________________
Printed Name:
Title:
C-1
Capitalized terms used in this letter, unless otherwise defined herein,
shall have the meanings set forth in the Offering Documents.
(Name of Purchaser)
By: _______________________________
Name:
Title:
Address: ___________________________
____________________________________
____________________________________
Dated:
S-1
