EXHIBIT 99.(k)(2)
ING CLARION GLOBAL REAL ESTATE INCOME FUND
AUCTION AGENCY AGREEMENT
dated as of , 2004
Relating to
Auction Preferred Shares
Series
of
ING CLARION GLOBAL REAL ESTATE INCOME FUND
The Bank of New York, as
Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of ,
2004, is between ING Clarion Global Estate Income Fund (the "Trust") and The
Bank of New York, a New York banking corporation.
The Trust proposes to issue an aggregate of preferred shares,
par value $0.001 per share, liquidation preference $25,000 per share, designated
as Series 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.
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(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) "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:
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(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 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
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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
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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) 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
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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.
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.
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Time Event
---- -----
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 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
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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 Index Rate for such Rate Period of more than 364
Rate Period Days and the LIBOR 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
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the Trust of the applicable Reference Rate and Treasury Index Rate.
(iii) If any LIBOR Rate or Treasury Index 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 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.
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 seven or
twenty-eight days, as applicable, subject to certain exceptions) and (ii) each
Rate Period following a Rate Period that is other than seven or twenty-eight
days, as applicable, will be seven or twenty-eight days in duration, as
applicable. Not less than 10 nor more than 20 days prior to the last day of any
such Rate Period that is not seven or twenty-eight days in duration, as
applicable, (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
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Trust.
(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
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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 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
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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 364 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.
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.
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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 Preferred Shares issued
on such date shall be issued by the Trust and, at the request of the Trust,
registered in the name of Cede & Co. and countersigned by the Auction Agent.
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4.2 Registration of Transfer of Shares.
Shares of Series 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.
15
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 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
16
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:
(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.
17
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.
18
(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 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
19
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.
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,
20
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 Global Estate Income Fund
000 Xxxxx Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Secretary
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
If to the Auction Agent, The Bank of New York
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
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.
21
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
Xxxxx-Xxxxx-Xxxxx Act ("Regulation S-P"). "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 publicly available;
and (iii) any other information that a Customer or the Transfer Agent is
prohibited from using or disclosing pursuant to Regulation S-P.
22
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.
23
ING CLARION GLOBAL REAL
ESTATE INCOME FUND
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
THE BANK OF NEW YORK
By:
-----------------------------
Name:
Title:
[Auction Agency Agreement]
EXHIBIT A
FORM OF
BROKER-DEALER AGREEMENT
A-1
EXHIBIT B
SETTLEMENT PROCEDURES
X-0
XXXXXXX X
XXX XXXXXXX XXXXXX XXXX XXXXXX INCOME FUND
NOTICE OF AUCTION DATE FOR
AUCTION PREFERRED SHARES
("APS")
NOTICE IS HEREBY GIVEN that the Auction Date of the next Auction for
Series of the Trust's APS is scheduled to be _______________, 20___ and the
next Dividend Payment Date for Series of the Trust's APS will be
__________________, 20___.
[A Failure to Deposit in respect of the Series 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 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 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 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 APS will
be delivered when such Failure to Deposit is cured and the applicable Late
Charge is paid.(2)]
ING CLARION GLOBAL REAL ESTATE
INCOME FUND
------------------------------
(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 GLOBAL REAL ESTATE INCOME FUND
NOTICE OF PROPOSED CHANGE OF
LENGTH OF RATE PERIOD OF
AUCTION PREFERRED SHARES
("APS")
ING Clarion Global Real Estate Income Fund (the "Trust") may
exercise its option to designate the Rate Period of its Series 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.
ING CLARION GLOBAL REAL ESTATE
INCOME FUND
------------------------------
Dated: , 20
---------- --
D-1
EXHIBIT E
ING CLARION GLOBAL REAL ESTATE INCOME FUND
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 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 Xxxxx'x 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
E-1
corresponding Moody's Exposure Period or Fitch Exposure Period then applicable
to the Trust).
ING CLARION GLOBAL REAL ESTATE
INCOME FUND
-------------------------------
Dated: , 20
---------- --
E-2
EXHIBIT F
ING CLARION GLOBAL REAL ESTATE INCOME FUND
NOTICE OF DETERMINATION NOT TO CHANGE
LENGTH OF RATE PERIOD OF
AUCTION PREFERRED SHARES
("APS")
NOTICE IS HEREBY GIVEN that ING Clarion Global Real Estate Income
Fund (the "Trust") has determined not to exercise its option to designate a
Special Rate Period of its Series APS and the next succeeding Rate
Period of such series will be a Rate Period of 28 Rate Period Days.
ING CLARION GLOBAL REAL ESTATE
INCOME FUND
-------------------------------
Dated: , 20
---------- --
F-1
EXHIBIT G
ING CLARION GLOBAL REAL ESTATE INCOME FUND
NOTICE OF CURE OF FAILURE TO DEPOSIT ON
AUCTION PREFERRED SHARES
("APS")
NOTICE IS HEREBY GIVEN that ING Clarion Global Real Estate Income
Fund (the "Trust") has cured its Failure to Deposit and paid the applicable
Late Charge with respect to its Series APS. The dividend rate on the
shares of Series 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 GLOBAL REAL ESTATE
INCOME FUND
-------------------------------
Dated: , 20
---------- --
X-0
XXXXXXX X
XXX XXXXXXX XXXXXX XXXX XXXXXX INCOME FUND
NOTICE OF CURE OF FAILURE TO DEPOSIT ON INCOME
AUCTION PREFERRED SHARES
("APS")
NOTICE IS HEREBY GIVEN that ING Clarion Global Real Estate Income
Fund (the "Trust") has cured its Failure to Deposit and paid the applicable Late
Charge with respect to its Series APS. The next Auction Date for the Series
APS is scheduled to be on _________________, 20___.
ING CLARION GLOBAL REAL ESTATE
INCOME FUND
-------------------------------
Dated: , 20
---------- --
H-1
