EXHIBIT (h)(2)
OFFERING PARTICIPATION AGREEMENT
This Agreement, dated as of September , 2003, is entered into
among ING Clarion Real Estate Securities, L.P. (the "Investment Manager"), ING
Clarion Real Estate Income Fund (the "Trust") and ING Funds Distributor, LLC
("ING Funds") with respect to certain distribution assistance to be provided by
ING Funds to the Trust, limited exclusively to providing offering and marketing
materials and additional information to registered broker-dealers who are part
of the underwriting syndicate publicly offering common (the "Common Shares"). In
consideration of their mutual promises, the parties agree as follows:
1. STATUS OF ING FUNDS
(a) ING Funds represents and warrants to the Investment Manager
and the Trust that:
(i) It is a broker-dealer registered as such with the
Securities and Exchange Commission (the "SEC") and is
registered or qualified in all capacities and
jurisdictions required by reason of any participation
in the distribution of Common Shares by it while
providing the services described above and each
employee or agent of ING Funds who participates in
the distribution of Common Shares has all necessary
licenses and qualifications in all capacities and
jurisdictions required by reason of any participation
in a distribution of Common Shares pursuant to this
Agreement.
(ii) ING Funds is a registered broker-dealer and is a
member of the National Association of Securities
Dealers, Inc. (the "NASD") and it agrees to abide by
all of the rules and regulations of the NASD in
connection with the participation in the distribution
of Shares including, without limitation, the NASD
Rules of Fair Practice. ING Funds agrees to notify
the Investment Manager and the Trust in writing
immediately in the event of (1) its expulsion or
suspension from the NASD, or (2) its being found to
have violated any applicable federal or state law,
rule or regulation arising out of its activities as a
broker-dealer or in connection with this Agreement,
or which may otherwise affect in any material way its
ability to act in accordance with the terms of this
Agreement. ING Funds' expulsion from the NASD will
automatically terminate this Agreement immediately
without notice. Suspension of ING Funds from the NASD
for violation of any applicable federal or state law,
rule or regulation will terminate this Agreement
effective immediately upon the Investment Manager's
written notice of termination to ING Funds.
(iii) ING Funds is familiar with and understands the
requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and has substantial
experience with offers and sales of securities by
issuers involving a public offering under the 1933
Act.
(iv) ING Funds also represents and warrants to the Trust
that it is a corporation or other entity duly
organized and validly existing in good standing under
the laws of the jurisdiction in which it is
organized.
(b) The Trust assumes no obligation or responsibility as to ING
Funds' right to participate in the distribution of the Trust's Common Shares in
any jurisdiction. If ING Funds, while performing the services it provides the
Trust hereunder, becomes subject to the laws of any non-U.S. jurisdiction, ING
Funds will take, at its own expense, such action, if any, as may be necessary to
comply with the laws of such non-U.S. jurisdictions.
(c) ING Funds agrees that it will maintain the registrations,
qualifications, exemptions and memberships referred to in paragraphs (a) and (b)
in good standing and in full force and effect throughout the term of this
Agreement.
2. ING FUNDS' COVENANTS.
(a) ING Funds covenants and agrees that, in connection with
providing the services as described above, ING Funds will engage in the
permitted activities solely with registered broker-dealers, and will not
participate in any distribution of Common Shares to any person that is not a
registered broker-dealer, and will not offer Common Shares, or solicit offers
for Common Shares, of the Trust.
(b) ING Funds covenants and agrees that it will not make any
representations or provide any information to any person concerning the Trust
other than those contained in the Trust's registration statement on Form N-2
(the "Registration Statement") or any marketing materials approved by the Trust
and the Investment Manager.
(c) ING Funds covenants and agrees to use information provided by
the Trust or
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the Investment Manager only in the manner intended (e.g., documents marked
"internal use only" will not be disseminated to any person other than a
registered broker-dealer).
(d) ING Funds covenants that the execution and delivery of this
Agreement and the performance of its services contemplated hereby (i) have been
duly authorized by all necessary action and all other authorizations and
approvals (if any) required for its lawful execution and delivery of this
Agreement and its performance hereunder have been obtained and (ii) does not and
will not violate any federal or state laws, rules or regulations.
3. INDEPENDENT CONTRACTOR.
Neither the Investment Manager nor the Trust shall be liable for any
acts of ING Funds or any employee or agent of ING Funds, and nothing contained
herein shall be construed as creating, or be deemed to create, the relationship
of employer and employee between the parties, nor any agency, joint venture, or
partnership. ING Funds shall at all times be and be deemed to be an independent
contractor. ING Funds, its employees and agents shall, under no circumstances,
have any authority to act for or to bind the Investment Manager or the Trust in
any way or to sign the name of the Investment Manager or the Trust or to
represent that the Investment Manager or the Trust is in any way responsible for
the acts or omissions of ING Funds. ING Funds shall not be required to devote
any minimum amount of time to performing its obligations under this Agreement.
4. REPRESENTATIONS AND WARRANTIES BY THE TRUST. The Trust represents and
warrants to ING Funds as of the date hereof as follows:
(a) Compliance with Registration Requirements. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act, or order of suspension or revocation of registration pursuant to
Section 8(e) of the Investment Company Act of 1940, as amended (the "1940 Act"),
and no proceedings for any such purpose have been instituted or are pending or,
to the knowledge of the Trust, are contemplated by the SEC, and any request on
the part of the SEC for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, the Registration Statement, the Rule 462(b) Registration Statement,
the notification of Form N-8A and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1940 Act and did not and will not contain an untrue
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statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Neither the prospectus nor any amendments or supplements thereto, at the time
the prospectus or any such amendment or supplement was issued, included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 497 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and each preliminary prospectus and the
prospectus delivered to ING Funds for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the SEC
pursuant to XXXXX, except to the extent permitted by Regulation S-T. If a Rule
462(b) Registration Statement is required in connection with the offering and
sale of the Common Shares, the Trust has complied or will comply with the
requirements of Rule 111 under the 1933 Act relating to the payment of filing
fees thereof.
(b) Independent Accountants. The accountants who certified the
statement of assets and liabilities included in the Registration Statement are
independent public accountants as required by the 1933 Act.
(c) Financial Statements. The statement of assets and liabilities
included in the Registration Statement and the prospectus, together with the
related notes, presents fairly the financial position of the Trust at the date
indicated; said statement has been prepared in conformity with generally
accepted accounting principles ("GAAP").
(d) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement and the prospectus,
except as otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, or business
affairs of the Trust, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (ii) there have been no transactions entered into
by the Trust, other than those in the ordinary course of business, which are
material with respect to the Trust, and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Trust on any class of its
capital stock.
(e) Good Standing of the Trust. The Trust has been duly organized
and is validly existing as a statutory trust in good standing under the laws of
the State of Delaware and has statutory trust power and authority to own, lease
and operate its properties and to conduct its business as described in the
prospectus and to enter into and perform its obligations under
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this Agreement; and the Trust is duly qualified as a foreign statutory trust to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(f) No Subsidiaries. The Trust has no subsidiaries.
(g) Investment Company Status. The Trust is duly registered with
the SEC under the 1940 Act as a closed-end, non-diversified management
investment company, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or threatened by
the Commission.
(h) Capitalization. The authorized, issued and outstanding shares
of beneficial interest of the Trust is as set forth in the prospectus as of the
date thereof under the caption "Description of Shares." All issued and
outstanding shares of beneficial interest of the Trust have been duly authorized
and validly issued and are fully paid and non-assessable, except as provided for
in the Trusts' agreement and declaration of trust, and have been offered and
sold or exchanged by the Trust in compliance with all applicable laws
(including, without limitation, federal and state securities laws); none of the
outstanding shares of beneficial interest of the Trust was issued in violation
of the preemptive or other similar rights of any securityholder of the Trust.
(i) Description of Common Shares. The Common Shares conform to all
statements relating thereto contained in the prospectus and such description
conforms to the rights set forth in the instruments defining the same; no holder
of the Common Shares will be subject to personal liability by reason of being
such a holder; and the issuance of the Common Shares is not subject to the
preemptive or other similar rights of any securityholder of the Trust.
(j) Absence of Defaults and Conflicts. The Trust is not in
violation of its agreement and declaration of trust or by-laws, or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which it is a
party or by which it may be bound, or to which any of the property or assets of
the Trust is subject (collectively, "Agreements and Instruments") except for
such violations or defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the Registration
Statement and compliance by the Trust with its
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obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the agreement and declaration of trust or by-laws of the Trust or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Trust or any of its assets, properties or
operations.
(k) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Trust,
threatened, against or affecting the Trust, which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties or
assets of the Trust or the consummation of the transactions contemplated in this
Agreement or the performance by the Trust of its obligations hereunder. The
aggregate of all pending legal or governmental proceedings to which the Trust is
a party or of which any of its property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(l) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
prospectus or to be filed as exhibits thereto by the 1933 Act or the 1940 Act
which have not been so described and filed as required.
(m) Possession of Intellectual Property. The Trust owns or
possesses, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by the Trust, and the Trust has not received any notice or
is not otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Trust therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding)
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or invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(n) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be required under
the 1933 Act, the 1940 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or under the rules of the NASD.
(o) Possession of Licenses and Permits. The Trust possesses such
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to operate its properties and to
conduct the business as contemplated in the Prospectus; the Trust is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and the Trust has not received
any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(p) Subchapter M. The Trust intends to direct the investment of
the proceeds of the offering described in the Registration Statement in such a
manner as to comply with the requirements of Subchapter M of the Internal
Revenue Code of 1986, as amended ("Subchapter M of the Code" and the "Code,"
respectively), and intends to qualify as a regulated investment company under
Subchapter M of the Code.
(q) Absence of Undisclosed Payments. To the Trust's knowledge,
neither the Trust nor any employee or agent of the Trust has made any payment of
funds of the Trust or received or retained any funds, which payment, receipt or
retention of funds is of a character required to be disclosed in the prospectus.
(r) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Trust under the 1933 Act.
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(s) AMEX Listing. The Common Shares have been duly authorized for
listing, upon notice of issuance, on the American Stock Exchange ("AMEX") and
the Trust's registration statement on Form 8-A under the 1934 Act has become
effective.
5. REPRESENTATIONS AND WARRANTIES BY THE INVESTMENT MANAGER. The
Investment Manager represents and warrants to ING Funds as of the date
hereof as follows:
(a) Good Standing of the Investment Manager. The Investment
Manager has been duly organized and is validly existing and in good standing as
a limited liability company under the laws of the State of Delaware with full
limited liability company power and authority to own, lease and operate its
properties and to conduct its business as described in the prospectus and is
duly qualified as a foreign limited liability company to transact business and
is in good standing in each other jurisdiction in which such qualification is
required.
(b) Investment Advisor Status. The Investment Manager is duly
registered and in good standing with the SEC as an investment advisor under the
Advisers Act, and is not prohibited by the Advisers Act or the 1940 Act, or the
rules and regulations under such acts, from acting under the investment
management agreement for the Trust as contemplated by the prospectus.
(c) Description of Investment Manager. The description of the
Investment Manager in the Registration Statement and the prospectus (and any
amendment or supplement to either of them) complied and complies in all material
respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act and
the Advisers Act Rules and Regulations and is true and correct and does not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) Capitalization. The Investment Manager has the financial
resources available to it necessary for the performance of its services and
obligations as contemplated in the prospectus, this Agreement and under the
investment management agreement to which it is a party with the Trust.
(e) Authorization of Agreements; Absence of Defaults and
Conflicts. This Agreement and the investment management agreement to which it is
a party with the Trust have each been duly authorized, executed and delivered by
the Investment Manager, and the investment management agreement to which it is a
party with the Trust constitutes a valid
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and binding obligation of the Investment Manager, enforceable in accordance with
its terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law); and neither the execution and delivery of
this Agreement or the investment management agreement to which it is a party
with the Trust nor the performance by the Investment Manager of its obligations
hereunder or thereunder will conflict with, or result in a breach of any of the
terms and provisions of, or constitute, with or without the giving of notice or
lapse of time or both, a default under, any agreement or instrument to which the
Advisor is a party or by which it is bound, the certificate of formation, the
operating agreement, or other organizational documents of the Investment
Manager, or to the Investment Manager's knowledge, by any law, order, decree,
rule or regulation applicable to it of any jurisdiction, court, federal or state
regulatory body, administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the Investment
Manager or its properties or operations; and no consent, approval, authorization
or order of any court or governmental authority or agency is required for the
consummation by the Investment Manager of the transactions contemplated by this
Agreement or the investment management agreement to which it is a party with the
Trust, except as have been obtained or may be required under the 1933 Act, the
1940 Act, the 1934 Act or state securities laws.
(f) No Material Adverse Change. Since the respective dates as of
which information is given in the Registration Statement and the prospectus,
except as otherwise stated therein, there has not occurred any event which
should reasonably be expected to have a material adverse effect on the ability
of the Investment Manager to perform its obligations under this Agreement and
the investment management agreement to which it is a party with the Trust.
(g) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the
Investment Manager, threatened against or affecting the Investment Manager or
any "affiliated person" of the Investment Manager (as such term is defined in
the 0000 Xxx) or any partners, directors, officers or employees of the
foregoing, whether or not arising in the ordinary course of business, which
might reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, or earnings, business affairs or business
prospects of the Investment Manager, materially and adversely affect the
properties or assets of the Investment Manager or materially impair or adversely
affect the ability of the Investment Manager to function as an investment
advisor or perform its obligations under the investment management agreement to
which it is a party with the Trust, or which is required to be disclosed in the
Registration
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Statement and the prospectus.
(h) Absence of Violation or Default. The Investment Manager is not
in violation of certificate of formation, its operating agreement or other
organizational documents or in default under any agreement, indenture or
instrument.
6. COVENANTS OF THE TRUST.
(a) The Trust covenants with ING Funds as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Trust, subject to Section 6(a)(ii),
will comply with the requirements of Rule 430A or
Rule 434, as applicable, and will notify ING Funds
immediately, and confirm the notice in writing, (A)
when any post-effective amendment to the Registration
Statement shall become effective, or any supplement
to the prospectus or any amended prospectus shall
have been filed, (B) of the receipt of any comments
from the SEC, (C) of any request by the SEC for any
amendment to the Registration Statement or any
amendment or supplement to the prospectus or for
additional information and (D) of the issuance by the
SEC of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the
Common Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Trust
will promptly effect the filings necessary pursuant
to Rule 497 and will take such steps as it deems
necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was
received for filing by the SEC and, in the event that
it was not, it will promptly file such prospectus.
The Trust will make every reasonable effort to
prevent the issuance of any stop order, or order of
suspension or revocation of registration pursuant to
Section 8(e) of 1940 Act and, if any such stop order
or order of suspension or revocation of registration
is issued, to obtain the lifting thereof at the
earliest possible moment.
(ii) Filing of Amendments. The Trust will give ING Funds
notice of its intention to file or prepare any
amendment to the Registration
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Statement (including any filing under Rule 462(b)),
any term sheet or any amendment, supplement or
revision to the prospectus included in the
Registration Statement at the time it became
effective, will furnish ING Funds with copies of any
such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and
will not file or use any such document to which ING
Funds shall object.
(iii) Delivery of Registration Statements. The Trust has
furnished or will deliver to ING Funds, without
charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated
by reference therein) and signed copies of all
consents and certificates of experts, and will also
deliver to ING Funds, without charge, a conformed
copy of the Registration Statement as originally
filed and of each amendment thereto (without
exhibits). The copies of the Registration Statement
and each amendment thereto furnished to ING Funds
will be identical to the electronically transmitted
copies thereof filed with the SEC pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Trust has delivered to
ING Funds, without charge, as many copies of each
preliminary prospectus as ING Funds reasonably
requested, and the Trust hereby consents to the use
of such copies for purposes permitted by the 1933
Act, except as provided in Section 2(a) of this
Agreement. The Trust will furnish to ING Funds,
without charge, during the period when the prospectus
is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the prospectus (as
amended or supplemented) as ING Funds may reasonably
request. The prospectus and any amendments or
supplements thereto furnished to ING Funds will be
identical to the electronically transmitted copies
thereof filed with the SEC pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. If at any
time it shall be necessary, in the opinion of ING
Fund's counsel, to amend the Registration Statement
or amend or supplement the prospectus in order to
comply with the requirements of the 1933 Act, the
Trust will
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promptly prepare and file with the SEC, subject to
Section 6(a)(ii), such amendment or supplement as may
be necessary to correct such statement or omission or
to make the Registration Statement or the prospectus
comply with such requirements, and the Trust will
furnish to ING Funds such number of copies of such
amendment or supplement as ING Funds may reasonably
request.
(vi) Blue Sky Qualifications. The Trust will use its best
efforts, in cooperation with ING Funds, to qualify
the Common Shares for offering and sale under the
applicable securities laws of such states and other
jurisdictions of the United States as ING Funds may
designate and to maintain such qualifications in
effect for a period of not less than one year from
the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement;
provided, however, that the Trust shall not be
obligated to file any general consent to service of
process or to qualify as a foreign statutory trust or
as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to
taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the common shares have
been so qualified, the Trust will file such
statements and reports as may be required by the laws
of such jurisdiction to continue such qualification
in effect for a period of not less than one year from
the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(vii) Rule 158. The Trust will timely file such reports
pursuant to the 1934 Act as are necessary in order to
make generally available to its securityholders as
soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933
Act.
(viii) Use of Proceeds. The Trust will use the net proceeds
received by it from the sale of the Common Shares in
the manner specified in the prospectus under "Use of
Proceeds."
(ix) Listing. The Trust will use its reasonable best
efforts to effect the listing of the Common Shares on
the AMEX, subject to notice of issuance, concurrently
with the effectiveness of the Registration Statement.
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(x) Reporting Requirements. The Trust, during the period
when the prospectus is required to be delivered under
the 1933 Act or the 1934 Act, will file all documents
required to be filed with the SEC pursuant to the
1940 Act and the 1934 Act within the time periods
required by the 1940 Act and the 1934 Act and the
rules and regulations of the SEC thereunder,
respectively.
(xi) Rule 462(b) Registration Statement. If the Trust
elects to rely upon Rule 462(b), the Trust shall file
a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 9:00
A.M., Washington, D.C. time, on the day after the
date of this Agreement, and the Trust shall at the
time of filing either pay to the SEC the filing fee
for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the 1933 Act.
7. STANDARD OF CARE.
ING Funds shall perform its duties and obligations hereunder as a
reasonable person in like circumstances would perform such duties and
obligations.
8. INDEMNIFICATION.
(a) ING Funds shall indemnify and hold harmless the Trust, the
Investment Manager and their respective affiliates, partners, members, managers,
shareholders, officers, directors, agents and employees from and against any
losses, claims, damages, liabilities or expenses (including reasonable
attorneys' fees and expenses) to which they may become subject insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon: (i) any breach by ING Funds of any provision of
this Agreement; (ii) any willful misfeasance or gross negligence by ING Funds in
the performance of its duties and obligations hereunder; (iii) any violation of
any applicable law by ING Funds, its employees, agents or representatives; or
(iv) any acts or omissions of the Investment Manager or the Trust and their
respective affiliates, partners, members, managers, shareholders, officers,
directors, agents and employees taken or not taken, as the case may be, in
reliance upon any untrue statement or alleged untrue statement of a material
fact contained in the Trust's Registration Statement or any amendment thereto,
or the ommission or alleged ommission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading
arising out of any untrue statement or alleged
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untrue statement of a material fact included in any preliminary prospectus or
final prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, regarding ING Funds and the services it provides the Trust
and the Investment Manager.
(b) The Trust shall indemnify and hold harmless ING Funds and its
affiliates, partners, members, managers, shareholders, officers, directors,
agents and employees from and against any and all losses, claims, damages,
liabilities or expenses (including reasonable attorneys' fees and expenses) to
which it may become subject insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are based upon: (i)
any breach by the Trust of any provision of this Agreement; (ii) any willful
misfeasance or gross negligence by the Trust in the performance of its duties
and obligations hereunder; or iii) any violation of any applicable law by the
Trust, its employees, agents or representatives.
(c) The Investment Manager shall indemnify and hold harmless ING
Funds and its affiliates, partners, members, managers, shareholders, officers,
directors, agents and employees from and against any and all losses, claims,
damages, liabilities or expenses (including reasonable attorneys' fees and
expenses) to which it may become subject insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of or
are based upon: (i) any breach by the Investment Manager of any provision of
this Agreement; or (ii) any willful misfeasance or gross negligence by the
Investment Manager in the performance of its duties and obligations hereunder;
or iii) any violation of any applicable law by the Investment Manager, its
employees, agents or representatives.
(d) The indemnified party (the "Indemnified Party") shall give
notice to the other party (the "Indemnifying Party") promptly after the summons
or other first legal process is served on the Indemnified Party for any claim,
notice of claim or arbitration demand as to which indemnity may be sought
pursuant to paragraphs (a), (b) and (c) of this Section 8. The Indemnified Party
shall assume the defense of any such claim or any litigation resulting from it,
provided that the Indemnifying Party may participate in such defense at its own
expense. The failure of the Indemnified Party to give notice as provided in this
paragraph (d) shall not relieve the Indemnifying Party from any liability unless
such failure to give proper notice prohibits the Indemnifying Party from
defending the claim. No Indemnifying Party, in the defense of any such claim or
litigation, shall, without the consent of the Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term the giving by the claimant or plaintiff to the
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Indemnified Party of a release from all liability in respect of such claim or
litigation.
(e) The provisions of this Section 8 shall survive the termination
of this Agreement.
9. FEES
ING Funds shall not receive any compensation from the Trust.
10. NOTICES.
Except as otherwise specifically provided in this Agreement, all
notices required or permitted to be given pursuant to this Agreement shall be
given in writing and delivered by personal delivery or by postage prepaid,
registered or certified first class mail, return receipt requested, nationally
recognized overnight courier service, or by facsimile, electronic mail or
similar means of same day delivery (with a confirming copy by mail as provided
herein). Unless otherwise notified in writing, all notices to the Trust, the
Investment Manager and ING Funds shall be given or sent to the addresses set
forth below.
If to the Trust:
ING Clarion Real Estate Income Fund
000 Xxxxx Xxxxxx-Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxxx
tel: 000-000-0000
fax: 000-000-0000
e-mail: Xxxxxx.Xxxxxxxx@XXXXxxxxxx.xxx
If to the Investment Manager:
ING Real Estate Securities, L.P.
000 Xxxxx Xxxxxx-Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxxx
tel: 000-000-0000
fax: 000-000-0000
e-mail: Xxxxxx.Xxxxxxxx@XXXXxxxxxx.xxx
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If to ING Funds:
ING Funds Distributor, LLC
Attention:
tel:
fax:
e-mail:
11. TERMINATION AND AMENDMENT.
(a) This Agreement shall become effective as of the date set forth
above and may be terminated by the Trust or the Investment Manager upon 30 days
notice in writing to ING Funds.
(b) This Agreement may be amended only by a writing signed by the
parties hereto.
12. MISCELLANEOUS.
(a) This Agreement sets forth the entire Agreement between the
parties hereto and replaces and supersedes all other understandings,
commitments, and agreements relating to the subject matter hereto.
(b) This Agreement may be assigned only with the prior written
consent of the other parties hereto.
(c) No waiver of any provision of this Agreement or the
performance thereof shall be effective unless in writing signed by the party
making such waiver or shall be deemed to be a waiver of any other provision or
the performance thereof or of any future performance.
(d) If any provision of this Agreement is determined to be
unenforceable, the remaining provisions shall remain enforceable to the extent
permissible.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
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(f) The Court of Common Pleas of the Commonwealth of Pennsylvania
in the county of Xxxxxxxxxx shall have exclusive jurisdiction over any action,
suit or proceeding against any party with respect to this Agreement and each
party hereby irrevocably waives, to the fullest extent permitted by law, any
objection that it may have, whether now or in the future, to the laying of venue
in, or to the jurisdiction of, any and each of such courts for the purposes of
any such suit, action, proceeding or judgment and further waives any claim that
any such suit, action, proceeding or judgment has been brought in an
inconvenient forum, and each party hereby submits to such jurisdiction.
Notwithstanding the place where this Agreement may be executed by any of the
parties thereto, the parties expressly agree that all the terms and provisions
hereof shall be construed under the laws of the Commonwealth of Pennsylvania.
(g) The parties to this Agreement hereby irrevocably waive any and
all right to a trial by jury in any legal proceeding arising out of or related
to this Agreement or the transactions contemplated thereby.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the date first set forth above.
ING CLARION REAL ESTATE INCOME FUND
By: _____________________________
Name: X. Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
ING CLARION REAL ESTATE SECURITIES, L.P.
By: ______________________________
Name: X. Xxxxxx Xxxxxxxx
Title: Managing Director
ING FUNDS DISTRIBUTOR, LLC
By: ______________________________
Name:
Title:
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