AGREEMENT TO TENDER
THIS AGREEMENT TO TENDER, dated as of August 17, 2007 (the "AGREEMENT"),
is between ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC (the "STOCKHOLDER") and ▇▇▇▇ ▇▇▇▇▇ Trust No. 1B
(the "LOLA TRUST").
W I T N E S S E T H:
WHEREAS, concurrently with the execution of this Agreement, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Real Estate Income Fund Inc. ("NRL"), the Lola Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trust No. 1B, Badlands Trust Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇ will enter into the Agreement of Compromise, Settlement and Release
(the "SETTLEMENT AGREEMENT"; defined terms used herein and not capitalized shall
have the meanings ascribed to them as provided for in the Settlement Agreement);
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Stockholder and the Lola Trust hereby agree as follows:
ARTICLE I.
TENDER OF SHARES OF COMMON STOCK AND
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. COMMENCEMENT OF THE REVISED TENDER OFFER. In accordance
with the Settlement Agreement, within two Business Days of the Effective Date of
the Settlement Agreement, the Lola Trust shall, in accordance with applicable
rules under the 1934 Act, announce and make the Revised Tender Offer and
publish, send or give the Revised Tender Offer to NRL common stockholders, which
shall provide for an expiration date no earlier than the 20[th] Business Day
following (and including the day of) the commencement of the Revised Tender
Offer.
SECTION 1.2. TENDER OF SHARES OF COMMON STOCK. In consideration of the
commencement of the Revised Tender Offer, if the Lola Trust shall have complied
with SECTION 1.1 and shall not subsequently have amended the Revised Tender
Offer (other than as permitted pursuant to Section 4.4 of the Settlement
Agreement, a "PERMITTED SUBSEQUENT AMENDMENT"), the Stockholder shall take all
actions which the Stockholder has the power to take in order to cause the
tender, on or before the second Business Day prior to the Closing Date of the
Revised Tender Offer of all of the shares of Common Stock owned by the
Stockholder or any affiliates controlled by the Stockholder (together, in the
aggregate, the "OWNED SHARES"), and shall not withdraw any such tendered shares
unless this Agreement is terminated in accordance with its terms.
SECTION 1.3. NO INCONSISTENT ACTIONS OR ARRANGEMENTS. Except as
contemplated by this Agreement, provided that the Lola Trust has complied with
SECTION 1.1 and shall not subsequently have amended the Revised Tender Offer
(other than by a Permitted Subsequent Amendment), the Stockholder shall not,
during the period from the date hereof until the termination of this Agreement
in accordance with its terms (i) transfer (which term shall include, without
limitation, any sale, assignment, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the Owned Shares or
any interest therein, or create or permit to exist any pledge, lien, security
interest, mortgage, trust, charge, claim, equity, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind on any or all of the Owned Shares (other than margin loans entered into
in the ordinary course of business, such loans referred to herein as "PERMITTED
ENCUMBRANCES"); (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Owned Shares or
any interest therein; or (iii) take any other action that would in any way
restrict, limit or interfere with the performance of the Stockholder's
obligations hereunder or the transactions contemplated hereby.
SECTION 1.4. Stop Transfer. Provided that the Lola Trust has complied
with SECTION 1.1 and shall not subsequently have amended the Revised Tender
Offer (other than by a Permitted Subsequent Amendment), the undersigned
Stockholder shall not request that NRL register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Owned Shares, unless such transfer is made to perform the Stockholder's
obligations under SECTION 1.2.
ARTICLE II.
MISCELLANEOUS
SECTION 2.1. TERMINATION. This Agreement shall terminate and be of no
further force and effect upon the written mutual consent of the parties hereto.
In addition, this Agreement shall automatically terminate and be of no further
force and effect, without any action on the part of any of the parties hereto
upon the expiration or termination of the Settlement Agreement. No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
SECTION 2.2. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES; TIME OF THE
ESSENCE. This Agreement constitutes the entire agreement and supersedes any and
all other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof, and this
Agreement is intended to confer rights or remedies hereunder only to the parties
hereto; PROVIDED, HOWEVER, the rights and remedies under this Agreement shall
inure to the benefit of and be enforceable by and against the Stockholder's
personal or legal representatives, executors, administrators, successors, and
heirs. In interpreting this Agreement, time shall be of the essence.
SECTION 2.3. GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by, and construed in accordance with the laws of the State of Maryland,
without regard to the principles of conflicts of law therein. Should any
conflicts arise requiring judicial determination or enforcement of the terms of
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this Agreement, venue shall lie in the United States District Court for the
District of Maryland.
SECTION 2.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the Stockholder and the Lola Trust have caused this
Agreement to be executed as of the date first written above.
STOCKHOLDER
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
By:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Existing Owned Shares: 184,183.816
▇▇▇▇ ▇▇▇▇▇ Trust No. 1B
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President,
Badlands Trust Company, LLC,
administrative trustee of the ▇▇▇▇ ▇▇▇▇▇
Trust, No. 1B
SIGNATURE PAGE
Agreement to Tender
