FORM OF
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT dated as of August 23, 2007
(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 July 16, 2007 (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(a). Section 1(a) of the Rights Agreement is
amended to add the following sentence after the last sentence thereof:
Anything in this Section 1(a) or this Agreement to the contrary
notwithstanding, Xxxx Xxxxx Trust No. 1B, an irrevocable grantor
trust domiciled and administered in Alaska (the "LOLA TRUST"), is
not deemed to be an "Acquiring Person" by virtue of (i) the
execution of, or the Lola Trust's entry into, the Agreement of
Compromise, Settlement and Release by and among the Company, the
Lola Trust, Xxxxxx Xxxxxxx Trust No. 1B, Badlands Trust Company,
Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxx, dated
August 17, 2007 (as it may be amended from time to time, the
"SETTLEMENT AGREEMENT"), (ii) the Lola Trust's acquisition of, or
its right to acquire, beneficial ownership of Common Shares as a
result of its execution of the Settlement Agreement, (iii) the
consummation of the Revised Tender Offer (as defined in the
Settlement Agreement), in accordance with, pursuant to, and on the
terms and subject to the conditions set forth in the Settlement
Agreement; it being the purpose of the Company that neither the
execution of the Settlement Agreement by any of the parties thereto
nor the consummation of the transactions contemplated thereby, in
each case in accordance with, pursuant to and upon the terms and
conditions of the Settlement Agreement, shall in any respect give
rise to any provision of this Agreement becoming effective.
4. AMENDMENT TO SECTION 1(m). Section 1(m) of the Rights Agreement is
amended to add the following sentence after the last sentence thereof:
The foregoing or any provision to the contrary in this Agreement
notwithstanding, a Shares Acquisition Date shall not occur or be
deemed to have occurred as a result of the approval, execution,
delivery or performance of the Settlement Agreement or the
announcement or consummation of the transactions contemplated
thereby, in each case in accordance with, pursuant to and upon the
terms and conditions of the Settlement Agreement.
5. TERMINATION OF SETTLEMENT AGREEMENT. If for any reason the
Settlement Agreement is terminated, then this Amendment shall be of no further
force and effect and the Agreement shall remain the same as it existed
immediately prior to execution of this Amendment.
6. EFFECTIVE DATE. This Amendment is effective as of August 17, 2007.
7. 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.
8. 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.
9. 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.
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: By:
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Name: Name:
Title:
Attest: THE BANK OF NEW YORK
By: By:
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Name: Name:
Title:
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Amendment No. 1 to Rights Agreement
