AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT dated as of November 28, 2005
(this "AMENDMENT"), is entered into by and between XXXXXXXXX XXXXXX REAL ESTATE
INCOME FUND INC., a Maryland corporation (the "COMPANY"), and THE BANK OF NEW
YORK, as Rights Agent (the "RIGHTS AGENT").
RECITALS:
WHEREAS, the Company and the Rights Agent entered into a Rights Agreement
dated as of September 1, 2005 (the "RIGHTS AGREEMENT");
WHEREAS, Section 27 of the Rights Agreement provides that, in certain
circumstances, the Company may from time to time supplement or amend the Rights
Agreement, without the approval of any holders of Rights; and
WHEREAS, the Company desires to modify the terms of the Rights Agreement in
certain respects as set forth herein, and in connection therewith, is entering
into this Amendment and directing the Rights Agent to enter into this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. EFFECT OF AMENDMENT. Except as expressly provided herein, the Rights
Agreement shall be and remain in full force and effect.
2. CAPITALIZED TERMS. All capitalized, undefined terms used in this
Amendment shall have the meanings assigned thereto in the Rights Agreement.
3. AMENDMENT TO SECTION 1. The following sentence is to be added at the
end of the definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement:
Furthermore, notwithstanding the foregoing, if the Board of Directors
of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person", as defined pursuant to the
foregoing provisions of this paragraph (a), has become such as a result
of being the Beneficial Owner of a DE MINIMUS number of Common Shares
of the Company in excess of 11.5% of the Common Shares of the Company
then outstanding, then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement until such time
as the Board of Directors of the Company determines in good faith that
the aggregate number of Common Shares beneficially owned by such Person
in excess of 11.5% of the Common Shares of the Company then outstanding
exceeds a DE MINIMUS number.
4. EFFECTIVE DATE. This Amendment is effective as of November 28, 2005.
5. GOVERNING LAW. This Amendment shall be interpreted and construed in
accordance with the internal substantive laws (and not the choice of law rules)
of the State of New York.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
7. DESCRIPTIVE HEADINGS. Descriptive headings hereof are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
Attest: XXXXXXXXX XXXXXX REAL ESTATE
INCOME FUND INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx
Title: Vice President
Attest: THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxxx Xxxxxxxx
--------------------- ---------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
