Exhibit (a)(37)
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Supplement Dated September 13, 2005
Relating to the Amended and Restated Offer to Purchase Dated May 24, 2005
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XXXX XXXXX TRUST NO. 1B
Has Amended Its Offer to Purchase for Cash
Up to 1,620,000 Outstanding Shares of Common Stock
of
XXXXXXXXX XXXXXX REAL ESTATE INCOME FUND INC.
at
$19.89 Net Per Share
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED, AND WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON TUESDAY, JANUARY 3, 2006, UNLESS THE OFFER IS
FURTHER EXTENDED.
THE OFFER IS NOT CONDITIONED UPON THE RECEIPT OF FINANCING OR UPON ANY MINIMUM
NUMBER OF SHARES BEING TENDERED. THE OFFER IS SUBJECT TO CERTAIN CONDITIONS. SEE
"THE OFFER -- SECTION 14."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THIS TRANSACTION OR PASSED UPON THE
MERITS OR FAIRNESS OF THIS TRANSACTION OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THE INFORMATION CONTAINED IN THE OFFER OR THIS SUPPLEMENT. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
IMPORTANT
Any shareholder desiring to tender all or any portion of the shareholder's
shares should either:
|X| Request the shareholder's broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for the shareholder. A shareholder
whose shares are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee must contact such broker, dealer,
commercial bank, trust company or other nominee if the shareholder desires
to tender such shares; or
|X| Complete and sign the letter of transmittal (or a facsimile thereof) in
accordance with the instructions in the letter of transmittal, have the
shareholder's signature guaranteed if required by Instruction 1 to the
letter of transmittal, mail or deliver the letter of transmittal (or such
facsimile), or, in the case of a transfer effected pursuant to the
book-entry transfer procedures set forth in "THE OFFER -- Section 7,"
transmit an "agent's message" (as defined in "THE OFFER -- Section 6"), and
any other required documents to the depositary and either deliver the
certificates for such shares to the depositary along with the letter of
transmittal (or such facsimile) or deliver the shares pursuant to the
book-entry transfer procedures set forth in "THE OFFER -- Section 7."
If a shareholder desires to tender shares and the share certificates are not
immediately available, or the procedure for book-entry transfer cannot be
completed on a timely basis, or time will not permit all required documents to
reach the depositary prior to the "expiration date" (as defined herein), then
the tender may be effected by following the procedure for guaranteed delivery
set forth in "THE OFFER -- Section 7."
Questions and requests for assistance may be directed to MacKenzie Partners,
Inc., the information agent, at the address and telephone number set forth on
the back cover of this offering document. Additional copies of this offering
document, the letter of transmittal, the notice of guaranteed delivery and other
related materials may be obtained from the information agent.
THE INFORMATION AGENT FOR THIS OFFER IS:
[Graphic Omitted]
MacKenzie Partners Inc.
The following information amends and supplements the Amended and Restated Offer
to Purchase dated May 24, 2005 (the "Restated Offer to Purchase"), of the Xxxx
Xxxxx Trust No. 1B, an irrevocable grantor trust domiciled and administered in
South Dakota (the "Lola Trust", and also referred to herein as "we," "our" or
"us"), pursuant to which the Trust is offering to purchase up to 1,620,000 of
the outstanding shares of common stock, par value $0.0001 per share (the
"shares") of Xxxxxxxxx Xxxxxx Real Estate Income Fund Inc., a Maryland
corporation ("NRL"), not owned by the Trust, at a price of $19.89 per share, net
to the seller in cash (subject to applicable withholding of United States
federal, state and local taxes), without interest, upon the terms and subject to
the conditions set forth in this Supplement to the Restated Offer to Purchase
(the "Supplement"), the Restated Offer to Purchase and the related letter of
transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer").
Except as otherwise set forth in this Supplement, the terms and conditions set
forth in the Restated Offer to Purchase and the letter of transmittal are
applicable in all respects to the Offer. The information set forth below should
be read in conjunction with the Restated Offer to Purchase and the letter of
transmittal and terms not defined herein which are defined in the Restated Offer
to Purchase have the meanings ascribed to them in the Restated Offer to
Purchase.
QUESTIONS AND ANSWERS
How have you amended the offer?
We are amending our offer to extend the expiration date and to provide you
with information regarding NRL's adoption of a new poison pill set forth
below in this Supplement. We have not changed the number of shares we are
offering to purchase, the offer price, the procedures for tendering and
withdrawing shares or any of the other terms of our offer other than the
expiration date.
What is the new expiration date for the offer?
We are extending the expiration date for the offer to 5:00 P.M., New York
City Time on Tuesday, January 3, 2006, unless further extended.
Why did you extend the expiration date for the offer?
In order to halt the offer, NRL's Board of Directors has adopted a series
of stockholder rights plans, or poison pills, which are required by federal
law to expire no later than 120 days after the issuance of rights under
each plan. The first poison pill was adopted by NRL's Board of Directors in
September of last year and expired on January 21, 2005, the second poison
pill was adopted on January 18, 2005 and expired on May 18, 2005, and the
third poison pill was adopted on May 13, 2005 and expired on September 11,
2005. Our offer was scheduled to expire on September 14, 2005. NRL's board
has now adopted a fourth poison pill, virtually identical to the previous
ones. This fourth poison pill will expire on December 30, 2005. The
validity of the fourth poison pill, and whether NRL's Board of Directors
can continue to adopt poison pills indefinitely, are two of the issues in
our litigation with NRL.
Because we cannot close the offer while a poison pill continues to exist,
we do not expect to close the offer unless we are successful in our
litigation against NRL's poison pills as well as certain of the other steps
NRL has taken to halt the offer. On October 22, 2004, the federal court in
Maryland issued the poison pill order upholding the validity of NRL's first
poison pill. We filed an appeal of the poison pill order to the United
States Court of Appeals for the Fourth Circuit. The appeals court dismissed
our appeal on January 25, 2005, with permission to refile our appeal once
all matters in the litigation have been resolved at the trial court level.
We have extended the expiration date for our offer to preserve our offer
while we continue to seek a final judgment in our favor with respect to
NRL's fourth poison pill and other matters involved in the litigation.
If I already tendered my shares in the offer, do I have to do anything now?
No. Shareholders who validly tendered their shares previously and have not
withdrawn them do not have to take any further action. If the Offer is
completed, these shares will be accepted for payment and the tendering
shareholders will receive the offer price of $19.89 per share in cash,
without interest, less any required withholding taxes, subject to proration
if more shares have been tendered in the Offer than we have offered to buy.
See "THE OFFER -- Section 5."
Can I withdraw my previously tendered shares?
You may withdraw all or a portion of your tendered shares at any time prior
to the time the shares are accepted for payment, after which they cannot be
withdrawn. See "THE OFFER -- Section 8."
How do I withdraw previously tendered shares?
To withdraw shares, you must deliver a written notice of withdrawal with
the required information to the depositary while you still have the right
to withdraw the shares. If you have tendered your shares by giving
instructions to a bank, broker, dealer, trust company or other nominee, you
must instruct them to arrange for the withdrawal of your shares. See "THE
OFFER -- Section 8."
How many shares have been tendered in response to your offer?
As of the close of business on September 9, 2005, 88,622 shares have been
tendered for sale to us in response to our offer.
Who can I contact if I have additional questions about the offer?
If you have questions or you need assistance, you should contact MacKenzie
Partners, Inc., the information agent for the offer, at (000) 000-0000
(collect) or (000) 000-0000 (toll-free).
MISCELLANEOUS
The Offer is not being made to, nor will tenders be accepted from or on behalf
of, holders of shares in any jurisdiction in which the making of the Offer or
the acceptance thereof would not comply with the laws of that jurisdiction. We
are not aware of any jurisdiction in which the making of the Offer or the tender
of shares in connection therewith would not be in compliance with the laws of
such jurisdiction. If we become aware of any state law prohibiting the making of
the Offer or the acceptance of shares pursuant thereto in such state, we will
make a good faith effort to comply with any such state statute or seek to have
such state statute declared inapplicable to the Offer. If, after such good faith
effort, we cannot comply with any such state statute, the Offer will not be made
to (nor will tenders be accepted from or on behalf of) the holders of shares in
such jurisdiction. In any jurisdiction where the securities, blue sky or other
laws require the Offer to be made by a licensed broker or dealer, the Offer
shall be deemed to be made on behalf of the Trusts by one or more registered
brokers or dealers which are licensed under the laws of such jurisdiction.
No person has been authorized to give any information or to make any
representation on our behalf not contained in the Offer and, if given or made,
that information or representation must not be relied on as having been
authorized.
We filed with the SEC a Schedule TO dated September 10, 2004, an Amendment No. 1
to Schedule TO dated October 1, 2004, an Amendment No. 2 to Schedule TO dated
October 7, 2004, an Amendment No. 3 to Schedule TO dated October 14, 2004, an
Amendment No. 4 to Schedule TO dated October 26, 2004, an Amendment No. 5 to
Schedule TO dated November 5, 2004, an Amendment No. 6 to Schedule TO dated
January 25, 2005, an Amendment No. 7 to Schedule TO dated May 24, 2005, and an
Amendment No. 8 to Schedule TO dated September 13, 2005, under Exchange Act
Rule 14d-3, together with exhibits, furnishing additional information with
respect to the Offer, and may file additional amendments thereto. That schedule
and any amendments thereto, including exhibits, may be examined and copies may
be obtained from the offices of the SEC in the same manner as discussed in "THE
OFFER -- Section 12" with respect to information concerning NRL.
XXXX XXXXX TRUST NO.1B
September 13, 2005
Facsimile copies of the letter of transmittal, properly completed and duly
executed, will be accepted. The letter of transmittal, certificates for shares
and any other required documents should be sent or delivered by each shareholder
of NRL or his or her broker, dealer, commercial bank, trust company or other
nominee to the depositary at one of its addresses set forth below:
The Depositary for the Offer is:
The Colbent Corporation
By Mail: By Overnight Courier: By Hand:
The Colbent Corporation The Colbent Corporation The Colbent Corporation
Attn: Corporate Actions Attn: Corporate Actions Attn: Corporate Actions
POB 859208 000 Xxx Xxxxx Xxxxx 000 Xxx Xxxxx Xxxxx
Xxxxxxxxx XX 00000-0000 Xxxxxxxxx XX 00000 Xxxxxxxxx XX 00000
By Xxxxxxxxx:
(781-380-3388)
Confirm Facsimile Transmission:
(000-000-0000 Ext. 200)
Questions and requests for assistance may be directed to the information
agent at its address and telephone numbers listed below. Additional copies of
this Supplement, the Offer to Purchase, the letter of transmittal and other
tender offer materials may be obtained from the information agent, and will be
furnished promptly at our expense. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
[Graphic Omitted]
MacKenzie Partners Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (Call Collect)
or
(000) 000-0000 (Toll Free)
E-MAIL: xxxxx@xxxxxxxxxxxxxxxxx.xxx
