-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Gq43BfwVXVRaJ/AE8/XnL9sTwTYsTO7ewbfMVn6+NH25B/7s7Zjnafw3qkNw2zAf Y3mentMZ1tE7UWQ5LL6GXw== 0000950110-95-000627.txt : 19950823 0000950110-95-000627.hdr.sgml : 19950823 ACCESSION NUMBER: 0000950110-95-000627 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950822 SROS: NONE GROUP MEMBERS: HIGH RIVER LIMITED PARTNERSHIP GROUP MEMBERS: ICAHN CARL C ET AL GROUP MEMBERS: RIVERDALE INVESTORS CORP., INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MCNEIL PACIFIC INVESTORS FUND 1972 CENTRAL INDEX KEY: 0000064309 STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF NONRESIDENTIAL BUILDINGS [6512] IRS NUMBER: 946279375 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39620 FILM NUMBER: 95565857 BUSINESS ADDRESS: STREET 1: 13760 NOEL RD STE 700 LB70 CITY: DALLAS STATE: TX ZIP: 75240 BUSINESS PHONE: 2144485800 MAIL ADDRESS: STREET 1: 13760 NOEL ROAD SUITE 700 LB 70 CITY: DALLAS STATE: TX ZIP: 75240 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C ET AL CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 100 SOUTH BEDFORD ROAD CITY: MT KISCO STATE: NY ZIP: 10549 BUSINESS PHONE: 9142427700 MAIL ADDRESS: STREET 1: 200 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10166 SC 14D1/A 1 SC 14D1/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 14D-1 Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 (Amendment No. 5)* MCNEIL PACIFIC INVESTORS FUND 1972 (Name of Subject Company [Issuer]) HIGH RIVER LIMITED PARTNERSHIP CARL C. ICAHN (Bidders) LIMITED PARTNERSHIP UNITS (Title of Class of Securities) 582566 10 5 (CUSIP Number of Class of Securities) Keith L. Schaitkin, Esq. Gordon Altman Butowsky Weitzen Shalov & Wein 114 West 47th Street, 20th Floor New York, New York 10036 (212) 626-0800 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Bidder) Calculation of Filing Fee - -------------------------------------------------------------------------------- Transaction Amount of filing fee: $136.16 Valuation*: $680,790 - -------------------------------------------------------------------------------- * For purposes of calculating the fee only. This amount assumes the purchase of 6,189 units of limited partnership interest (the "Units") of the subject partnership for $110.00 per Unit. The amount of the filing fee, calculated in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended, equals 1/50th of one percent of the aggregate of the cash offered by the bidder. [x] Check box if any part of the fee is offset as provided by Rule 0- 11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $136.16 Form or Registration No.: Schedule 14D-1, dated August 3, 1995 Filing Party: High River Limited Partnership & Carl C. Icahn Date Filed: August 4, 1995 *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). AMENDMENT NO. 5 TO SCHEDULE 14D-1 This Amendment No. 5 to Schedule 14D-1 amends and supplements the Tender Offer Statement on Schedule 14D-1 filed by High River Limited Partnership, a Delaware limited partnership ("High River"), Riverdale Investors Corp., Inc., a Delaware corporation ("Riverdale"), and Carl C. Icahn, a citizen of the United States (collectively, the "Reporting Persons"), with the U.S. Securities and Exchange Commission (the "Commission") on August 4, 1995, as amended by Amendment No. 1 filed with the Commission on August 9, 1995, Amendment No. 2 filed with the Commission on August 14, 1995, Amendment No. 3 filed with the Commission on August 18, 1995, and Amendment No. 4 filed with the Commission on August 21, 1995 (collectively, the "Statement"). All capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Offer to Purchase dated August 3, 1995, as amended and supplemented from time to time (the "Offer to Purchase") and the related Assignment of Partnership Interest, as amended through August 7, 1995 (collectively with the Offer to Purchase, the "Offer"). Item 3. Past Contacts, Transactions or Negotiations with the Subject Company. Item 3(b) is hereby amended to add the following: (b) The information set forth in Section 13 of the Offer to Purchase, entitled "Background of the Offer," is incorporated herein by reference. Item 5. Purpose of the Tender Offer and Plans or Proposals of the Bidder. Item 5(c) is hereby amended to add the following: The information set forth in the "INTRODUCTION" of the Offer to Purchase is incorporated herein by reference. Item 10. Additional Information. Item 10(e) is hereby amended and restated in its entirety as follows: (e) The information set forth in Section 13 of the Offer To Purchase, entitled "Background of the Offer," is incorporated herein by reference. Item 10(f) is hereby amended to add the following: (f) The information set forth in the Supplement to the Offer to Purchase dated August 21, 1995 and the Confirmation Letter dated August 21, 1995, copies of which are attached hereto as Exhibits 14 and 15, respectively, is incorporated herein by reference. Item 11. Materials to be Filed as Exhibits. The following documents are filed as exhibits to this Schedule 14D-1: (a) Exhibit 14 Supplement to the Offer to Purchase dated August 21, 1995 Exhibit 15 Confirmation Letter dated August 21, 1995 (g) Exhibit 16 Press Release dated August 22, 1995 SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 22, 1995 HIGH RIVER LIMITED PARTNERSHIP By: Riverdale Investors Corp., Inc. Title: General Partner By: /s/ Robert J. Mitchell Robert J. Mitchell Title: Vice President and Treasurer RIVERDALE INVESTORS CORP., INC. By: /s/ Robert J. Mitchell Robert J. Mitchell Title: Vice President and Treasurer /s/ Carl C. Icahn Carl C. Icahn [Signature Page for Amendment No. 5 to McNeil Pacific Investors Fund 1972 Schedule 14D-1] EXHIBIT INDEX Page Number ----------- Exhibit 14 Supplement to the Offer to Purchase dated August 21, 1995 Exhibit 15 Confirmation Letter dated August 21, 1995 Exhibit 16 Press Release dated August 22, 1995 EX-20.1 2 SUPPLEMENT TO OFFER EXHIBIT 14 Supplement to the Offer to Purchase for Cash Up To 6,189 Units Of Limited Partnership Interest in McNEIL PACIFIC INVESTORS FUND 1972 for $110.00 Net Per Unit by HIGH RIVER LIMITED PARTNERSHIP - ------------------------------------------------------------------------------- THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON SEPTEMBER 6, 1995, UNLESS THE OFFER IS EXTENDED. - ------------------------------------------------------------------------------- IMPORTANT HIGH RIVER LIMITED PARTNERSHIP, a Delaware limited partnership (the "Purchaser"), hereby supplements and amends its Offer to Purchase dated August 3, 1995, as amended on August 7, 1995. The Purchaser is offering to purchase up to 6,189 units of limited partnership interest ("Units") in McNEIL PACIFIC INVESTORS FUND 1972, a California limited partnership (the "Partnership"), at a purchase price of $110.00 per Unit (the "Purchase Price"), net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in: (i) the Offer to Purchase dated August 3, 1995, as amended on August 7, 1995; (ii) this Supplement thereto (such Offer to Purchase, as amended on August 7, 1995 and as amended and supplemented by this Supplement, the "Offer to Purchase"); and (iii) the related Assignment of Partnership Interest (which collectively constitute the "Offer"). Unless the context otherwise requires, capitalized terms used in this Supplement but not defined herein shall have the meanings ascribed to them in the Offer to Purchase. The bullets on the inside front cover page of the Offer to Purchase are hereby amended and restated in their entirety as follows: Limited Partners are urged to consider the following factors: o The Purchaser is making the Offer with a view to making a profit. Accordingly, there is a conflict between the desire of the Purchaser to purchase Units at the lowest possible price and the desire of the Limited Partners to sell their Units at the highest possible price. o The net asset value per Unit of approximately $146.00 (exclusive of cash and cash equivalents equal to approximately $70.00 per Unit as of March 31, 1995) estimated by the Purchaser is greater than the Purchase Price. When determining the value of his Units and deciding whether to tender his Units pursuant to the Offer, a Limited Partner should consider BOTH the net asset value as estimated by the Purchaser and the cash and cash equivalents (which, due to its method of valuation of the Units, the Purchaser did not include in such net asset value). See "Introduction" and Section 13 of the Offer to Purchase. o If the Purchaser is successful in acquiring a substantial number of Units pursuant to the Offer, the Purchaser, which is controlled by Carl C. Icahn, will have the right to vote those Units and may thereby be in (continued on following page) -------------- For More Information or for Further Assistance, Please Call the Information Agent: D.F. King & Co., Inc. (212) 269-5550 (Collect) or (800) 628-8538 (Toll Free) August 21, 1995 (continued from previous page) a position to influence voting decisions with respect to the Partnership, including, without limitation, decisions concerning amendments to the Partnership Agreement and removal and replacement of the Partnership's general partner. This means that (i) those who remain Limited Partners after the expiration of the Offer could be prevented from taking action they desire but that the Purchaser opposes and (ii) the Purchaser may be able to take action desired by the Purchaser but opposed by such remaining Limited Partners. o The Purchaser may seek to remove the Partnership's general partner but, while reserving such right, the Purchaser has no present intention of doing so. Such removal may require the Partnership to pay a fee to the Partnership's general partner and/or its affiliates and may result in acceleration of certain of the Partnership's debt obligations, which may have an adverse effect on the Partnership. See "Introduction" of the Offer to Purchase. o As discussed in Section 6 of the Offer to Purchase, the sale of 50 percent or more of the Units in the Partnership over a period of twelve months will result in the termination of the Partnership for federal income tax purposes. Such a termination would result in lower depreciation deductions to the Partnership for the next few years. Accordingly, it is possible that the acquisition of Units pursuant to the Offer, when combined with other transfers within twelve months, will result in a termination of the Partnership for income tax purposes. In such a case, non-tendering Limited Partners may, depending on their individual circumstances, have a greater tax liability with respect to the Partnership than they would have had in the absence of a termination. See Section 6 of the Offer to Purchase. INTRODUCTION The bullets in the "INTRODUCTION" of the Offer to Purchase are hereby amended and restated in their entirety as follows: SOME FACTORS TO BE CONSIDERED BY LIMITED PARTNERS. In considering the Offer, Limited Partners may wish to consider the following: o The Purchaser is making the Offer with a view to making a profit. Accordingly, there is a conflict between the desire of the Purchaser to purchase Units at the lowest possible price and the desire of the Limited Partners to sell their Units at the highest possible price. o If the Purchaser is successful in acquiring a substantial number of Units pursuant to the Offer, the Purchaser, which is controlled by Mr. Icahn, will have the right to vote those Units and may thereby be in a position to influence voting decisions with respect to the Partnership, including, without limitation, decisions concerning amendments to the Partnership Agreement and removal and replacement of the Partnership's general partner. This means that (i) those who remain Limited Partners after the expiration of the Offer could be prevented from taking action they desire but that the Purchaser opposes and (ii) the Purchaser may be able to take action desired by the Purchaser which may be opposed by, and which may not be in the best interests of, such remaining Limited Partners. o Although the Purchaser is making the Offer for investment purposes, it may, depending on the number of Units it acquires pursuant to the Offer, be in a position to influence control of the business of the Partnership. If the Purchaser acquires a substantial number of the outstanding Units, the Purchaser will be in a position to influence voting decisions with respect to the Partnership. The Purchaser may seek to remove the general partner of the Partnership but, while reserving such right, the Purchaser has no present intention of doing so. Such removal may require the Partnership to pay a fee to the Partnership's general partner and/or its affiliates and may result in acceleration of certain of the Partnership's debt obligations, which may have an adverse effect on the Partnership. (continued on following page) -------------- Questions and requests for assistance or for additional copies of the Offer to Purchase, the Assignment of Partnership Interest and the Confirmation Letter may be directed to the Information Agent at the address and telephone numbers set forth on the back cover of this Supplement. No soliciting dealer fees or other payments to brokers for tenders are being paid by the Purchaser. 2 (continued from previous page) o Based solely on financial and other information relating to the Partnership that is publicly available in its Form 10-K filed with the Commission, the Purchaser, solely for consideration with other information in connection with preparing a bid, estimated the net asset value per Unit to be approximately $146.00 (exclusive of cash and cash equivalents equal to approximately $70.00 per Unit as of March 31, 1995). When determining the value of his Units and deciding whether to tender his Units pursuant to the Offer, a Limited Partner should consider both the net asset value as estimated by the Purchaser and the cash and cash equivalents (which, due to its method of valuation of the Units, the Purchaser did not include in such net asset value). THE PURCHASER HAS NOT CONDUCTED ANY APPRAISAL OF THE PARTNERSHIP'S PROPERTIES AND HAS NO INDEPENDENT BASIS WHATSOEVER FOR DETERMINING THE ACCURACY OR COMPLETENESS OF THE PARTNERSHIP'S PUBLICLY FILED FINANCIAL INFORMATION OR FOR DETERMINING TO WHAT EXTENT, IF ANY, THE PURCHASER'S ESTIMATE OF NET ASSET VALUE REPRESENTS THE TRUE NET ASSET VALUE OF EACH UNIT. See Section 13 of the Offer to Purchase. o As discussed in Section 6 of the Offer to Purchase, the sale of 50 percent or more of the Units in the Partnership over a period of twelve months will result in the termination of the Partnership for federal income tax purposes. Such a termination would result in lower depreciation deductions to the Partnership for the next few years. If the acquisition of Units pursuant to the Offer, when combined with other transfers within twelve months, results in a termination of the Partnership, non-tendering Limited Partners may, depending on their individual circumstances, have a greater tax liability with respect to the Partnership than they would have had in the absence of a termination. See Section 6 of the Offer to Purchase. THE OFFER Section 3. Procedure for Tendering Units. The first paragraph of Section 3 of the Offer to Purchase, entitled "Valid Tender", is hereby amended to read in its entirety as follows: VALID TENDER. To validly tender Units, a properly completed and duly executed Assignment of Partnership Interest, any other documents required by the Assignment of Partnership Interest (or facsimiles thereof) and the associated Certificates as well AS AN EXECUTED COPY OF THE CONFIRMATION LETTER DATED AUGUST 21, 1995 (OR A FACSIMILE THEREOF) (THE "CONFIRMATION LETTER") must be received by the Depositary, at its address set forth on the back cover of the Offer to Purchase, on or prior to the Expiration Date. Subject to the Minimum Units Requirements, a Limited Partner may tender any or all of the Units owned by that Limited Partner. No alternative, conditional or contingent tenders will be accepted. The fifth paragraph of Section 3 of the Offer to Purchase, entitled "Appointment as Proxy", is hereby amended by adding the sentence set forth below as the last sentence of such fifth paragraph: The proxy and power of attorney granted by a Limited Partner to the Purchaser upon his execution of the Assignment of Partnership Interest shall be effective from acceptance for payment of the Units tendered and shall remain effective and be irrevocable until August 1, 2005. 3 Section 9. Certain Information Concerning the Partnership. Section 9 of the Offer to Purchase is hereby amended by adding the following immediately prior to the last paragraph of such Section 9: SELECTED FINANCIAL DATA
Years Ended December 31, ---------------------------------------------------------------------------------- Statements of Operations 1994 1993 1992 1991 1990 - ------------------------ ----------- ----------- ----------- ----------- ---------- Rental revenue ............................. $ 1,475,264 $ 1,894,385 $ 1,815,723 $ 632,703 $ -- Gain on disposition of real estate ......... 574,701 -- -- -- -- Total revenue .............................. 2,095,660 1,906,162 1,870,452 1,170,484 1,143,585 Loss on foreclosure of mortgage note receivable ........................... -- -- -- (95,864) -- Write-down for permanent impairment of real estate ................. -- 2,700,000 -- -- -- Net income (loss) .......................... 433,544 (3,102,551) (816,851) 25,183 803,572 Net income (loss) per limited partnership unit .......................... $ 48.52 $ (224.90) $ (59.21) $ 1.83 $ 58.25 =========== =========== =========== =========== =========== Distributions per limited partnership unit .......................... $ -- $ -- $ -- $ -- $ 38.50 =========== =========== =========== =========== =========== As of December 31, ---------------------------------------------------------------------------------- Balance Sheets 1994 1993 1992 1991 1990 - -------------- ----------- ----------- ----------- ----------- ---------- Real estate investments, net ............... $6,239,081 $5,814,474 $11,528,672 $11,631,995 $ -- Asset held for sale, net ................... -- 3,209,269 -- -- -- Notes receivable ........................... -- -- -- -- 8,212,572 Total assets ............................... 7,516,368 9,405,117 12,665,342 13,504,953 11,068,001 Mortgage notes payable ..................... 2,287,341 4,523,714 4,738,775 4,865,866 2,400,102 Partners' equity ........................... 5,000,868 4,567,324 7,669,875 8,486,726 8,461,543 Six Months ended June 30, (in thousands, except per Unit data) --------------------- 1995 1994 ------ ------ (unaudited) Statements of Operations Data: Total Revenues ................................................................. $ 736 $1,379 Net Income (Loss) before extraordinary items, if any ........................... $ (87) $ 496 Net Income (Loss) allocated to limited partners ................................ $ (87) $ 730 Net Income (Loss) per limited partnership unit before extraordinary items, if any .................................................. $(6.36) $53.08 Distributions per limited partnership unit ..................................... $ -- $ -- As of June 30, 1995 (in thousands, except per Unit data) --------------------- (unaudited) Balance Sheet Data: Total Assets ................................................................... $ 7,300 Total Liabilities .............................................................. $ 2,387 Limited Partners' Equity. ...................................................... $ 4,604 Limited partnership units outstanding .......................................... 13,752.5 Book Value per Unit ............................................................ $334.78
4 Competitive Conditions--Palm Bay Apartments Palm Bay Apartments--The financial performance of Palm Bay Apartments has solidly improved as a result of the capital renovation program. Occupancy rates have risen from 63% at the date the Partnership repossessed Palm Bay Apartments in 1992 to 82% at the end of 1994. Occupancy rates for the local area average 89%. Rental rates have also improved due to the renovation program. The renovation program has made the property much more competitive in its market. The local area offers diverse competition from high quality property to low quality subsidized housing. The property's location and townhouse units give it a competitive edge in the market. The renovation program is addressing the dated appearance of the property so that the property can compete effectively with the newer properties in the area. Section 13. Background of the Offer. The first paragraph of Section 13 of the Offer to Purchase, entitled "Prior Contacts with the Partnership", is hereby amended to read in its entirety as follows: PRIOR CONTACTS WITH THE PARTNERSHIP. On or about July 27, 1995, Robert A. McNeil, Carol J. McNeil (the Chairman and Co-Chairman of the Partnership's general partner's corporate general partner) and Mr. Icahn, spoke by telephone. Mr. Icahn told the McNeils that he had been informed that they were interested in selling the Partnership's general partner. The McNeils said that they were not interested in selling the Partnership's general partner but urged Mr. Icahn to contact their counsel, Scott Wallace. In the conversation with the McNeils, Mr. Icahn indicated that he intended to make a tender offer for Units and a joint tender offer was discussed. Again, the McNeils urged Mr. Icahn to contact Scott Wallace. No agreements were reached. In the days that followed up to on or about August 1, 1995, Mr. Icahn participated in several telephone conversations with Scott Wallace. The same subjects were explored and Mr. Icahn confirmed his intention to conduct a tender offer for Units. Again, no agreements were reached. One of these conversations, which took place on or about August 1, 1995 among Scott Wallace, Mr. Icahn and a former counsel for the Partnership, became a subject of the litigation described below. The McNeils delivered a letter to the Purchaser on August 9, 1995 claiming that the former counsel divulged confidential information concerning the McNeils' personal tax situation during the August 1, 1995 telephone conversation, that the Offer was based on confidential information and that the Partnership would not mail the Offer unless the Purchaser and Mr. Icahn signed a certificate concerning the purported confidential information. Later that day, the Purchaser and Mr. Icahn, through their counsel, responded to the McNeils stating, among other things, that the former counsel confirmed that he did not convey any confidential information, that Scott Wallace gave no indication that any of the information conveyed by the former counsel was confidential and that, in any event, the Purchaser was not aware that any information received from the former counsel was confidential. The McNeils nevertheless continued to refuse to mail. Therefore, on August 10, 1995, the Purchaser commenced an action in the United States District Court for the Southern District of New York against the Partnership's general partner, its corporate general partner, and the McNeils (collectively "Management"), as well as the Partnership and related partnerships (collectively with Management, the "Defendants") alleging Management breaches of fiduciary duty and that the Defendants' failure to mail the Offer violated the Securities and Exchange Commission's Rule 14d-5. On that same day, the Court, upon the Purchaser's application, issued a preliminary injunction. The Court found that "High River [the Purchaser] and the limited partners have been, and are being, irreparably harmed by defendants' failure timely to furnish the limited partner lists or mail the tender offer materials to the limited partners. . . . [D]efendants are depriving plaintiff [the Purchaser] of its opportunity to tender and are depriving the limited partners of their opportunity to consider whether to sell their units as contemplated by the tender offer rules." The Court further found that "plaintiff has a likelihood of success on the merits. Regulation 14d-5 is clear in its requirements, and plaintiff appears likely to be able to demonstrate the defendants violated the provisions of that regulation." The Court ordered the Defendants to either furnish the Purchaser with a list of the names and addresses of the Limited Partners or mail the Offer to the Limited Partners on the Purchaser's behalf. The Defendants elected to mail. On August 16, 1995, the Partnership, through its counsel, declined the Purchaser's request for a list of the Limited Partners, stating that the list was confidential and since the Purchaser was not a Limited Partner, such information was not required to be provided under applicable law. On August 17, 1995, the Purchaser sent a letter to the Partnership's general partner requesting that the Partnership's general partner agree to cooperate in satisfying certain conditions of the Offer and to facilitate the 5 transfer of Units, thereby enabling Limited Partners who wished to sell their Units pursuant to the Offer the opportunity to do so. On August 18, 1995, the Defendants in the above-described litigation served and filed a Counterclaim and Answer (the "Counterclaim"). Defendants' Counterclaim requests an injunction and alleges that the Offer was made in violation of federal securities laws, specifically Sections 10(b), 14(d) and 14(e) of the Exchange Act and the regulations promulgated thereunder, because it failed to disclose that the Purchaser based its Offer on confidential information. The Counterclaim also alleges that the Offer failed to disclose that the Purchaser seeks control of the Partnership and the related partnership Defendants, and that it failed to adequately disclose financial information pertaining to the Purchaser and the Purchaser's history of corporate acquisitions. The Purchaser denies the allegations and believes they are wholly without merit. The third paragraph of Section 13, entitled "Valuation Analysis", is hereby amended to read in its entirety as follows: VALUATION ANALYSIS. The Purchaser reviewed publicly available financial information relating to the Partnership for the fiscal year ended December 31, 1994 in order to determine an adjusted net income (reduced by an amount intended to reflect normal capital expenditures and operating expenses) of $447,936.00 and then capitalized that amount at 10.50%, which the Purchaser believes represents an appropriate capitalization rate for a real estate portfolio such as the Partnership's. That review process produced an estimated aggregate net asset value per Unit (exclusive of cash and cash equivalents equal to approximately $70.00 per Unit as of March 31, 1995) of approximately $146.00. When determining the value of his Units and deciding whether to tender his Units pursuant to the Offer, a Limited Partner should consider both the net asset value as estimated by the Purchaser and the cash and cash equivalents (which, due to its method of valuation of the Units, the Purchaser did not include in such net asset value). It should be noted that the Purchaser does not have access to any information concerning the Partnership or its properties other than information that is publicly available, that the Purchaser's foregoing calculations are based on rough estimates and that the values resulting therefrom may not be indicative of actual values to any extent. It should also be noted that investors may disagree as to the appropriate capitalization rate to be applied, and Limited Partners are advised that the utilization of a lower capitalization rate results in a higher estimate of aggregate value. The following is hereby added as the last paragraph of Section 13: METHOD UTILIZED BY THE PURCHASER TO DETERMINE PURCHASE PRICE. In order to determine the Purchase Price, the Purchaser considered the information set forth above under "Valuation Analysis" and examined a summary of the trading activity of the Units for the period April 1, 1995 through May 31, 1995 (the "Summary Period") appearing in the May/June 1995 issue of the Partnership Spectrum (the "Trading Summary"). The Trading Summary indicated that during the Summary Period an aggregate of 25 Units were traded in a total of 1 trade at a price of $80.00 per Unit. The Purchaser determined to establish the Purchase Price at a premium over such trade price. Limited Partners should be aware that the Form 10-K states as follows: "[t]here is no established public trading market for limited partnership units nor is one expected to develop." Therefore, the price reflected in the Trading Summary may not accurately reflect the value of the Partnership's assets or of Units and Limited Partners may or may not be able to sell their Units independently of the Offer at the price reflected in the Trading Summary. Section 14. Conditions to the Offer. The last paragraph of Section 14 of the Offer to Purchase is hereby amended by adding the following as the last two sentences to such paragraph: No assurance can be given that the Partnership's general partner will voluntarily take the actions referred to in paragraphs (e) and (f). Accordingly, in order to cause the Partnership's general partner to take such actions, the Purchaser may be required to take appropriate actions, including, without limitation, the commencement of litigation, the effect of which may be to delay payment for tendered Units (except to the extent, if any, that the Purchaser waives the applicable conditions). HIGH RIVER LIMITED PARTNERSHIP August 21, 1995 6 Manually signed facsimile copies of the Assignment of Partnership Interest and the Confirmation Letter will be accepted. The Assignment of Partnership Interest, the Confirmation Letter and any other required documents should be sent or delivered by each Limited Partner or such Limited Partner's broker, dealer, bank, trust company or other nominee to the Depositary as set forth below. The Depositary for the Offer is: IBJ SCHRODER BANK & TRUST COMPANY By Mail: P.O. Box 84 Bowling Green Station New York, New York 10274-0084 Attn: Reorganization Operations Department By Hand/Overnight Delivery: One State Street New York, New York 10004 Attn: Securities Processing Window, Subcellar One, (SC-1) By Facsimile: (212) 858-2611 Confirm by Telephone: (212) 858-2103 Questions and requests for assistance or for additional copies of the Offer to Purchase, the Assignment of Partnership Interest and the Confirmation Letter may be directed to the Information Agent at its telephone number and address listed below. You may also contact your broker, dealer, bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: D.F. KING & CO., INC. 77 Water Street New York, New York 10005 (212) 269-5550 (Collect) or (800) 628-8538 (Toll Free) EX-20.2 3 CONFIRMATION LETTER EXHIBIT 15 McNEIL PACIFIC INVESTORS FUND 1972 CONFIRMATION LETTER August 21, 1995 Dear Limited Partner: Reference is made to the Assignment of Partnership Interest (the "Assignment") sent to you by High River Limited Partnership (the "Purchaser") in connection with its tender offer to purchase units of partnership interest ("Units") of McNeil Pacific Investors Fund 1972 (the "Partnership"). This letter will evidence and confirm your understanding and agreement that: (i) the proxy and power-of-attorney now, heretofore or hereafter granted to the Purchaser by you in the Assignment (and all related and associated rights, authority and power) shall be effective from acceptance for payment of the Units tendered and shall remain effective and be irrevocable until August 1, 2005; and (ii) the Purchaser may assign such proxy and/or power-of-attorney to any person with or without assigning the related Units with respect to which such proxy and/or power-of-attorney was granted. In order to complete the tender of your Units to the Purchaser, you must sign the reverse side of this Confirmation Letter and return it immediately to the Depositary for the Offer, IBJ Schroder Bank & Trust Company, in the manner indicated on the reverse side hereof. Your failure to return this Confirmation Letter may result in the rejection of your tender. Unless otherwise defined herein, capitalized terms used herein shall have the meanings attributed to them in the Purchaser's Offer to Purchase dated August 3, 1995, as amended and supplemented. If you have any questions or need assistance in completing this Confirmation Letter, please call the Information Agent for the Offer, D.F. King & Co., Inc., at (212) 269-5550 (Collect) or at (800) 628-8538(Toll Free). HIGH RIVER LIMITED PARTNERSHIP THIS LETTER MUST BE SIGNED ON THE REVERSE SIDE AND RETURNED TO THE DEPOSITARY TO COMPLETE YOUR TENDER McNEIL PACIFIC INVESTORS FUND 1972 CONFIRMATION LETTER TO: HIGH RIVER LIMITED PARTNERSHIP By executing this document in the space provided below, the undersigned Limited Partner of McNeil Pacific Investors Fund 1972 (or authorized person signing on behalf of the registered Limited Partner) hereby: (i) evidences and confirms the undersigned's understanding and agreement that: (a) the proxy and power-of-attorney now, heretofore or hereafter granted to the Purchaser by the undersigned in the Assignment of Partnership Interest (the "Assignment") (and all related and associated rights, authority and power) shall be effective from acceptance for payment of the Units tendered by the undersigned and shall remain effective and be irrevocable until August 1, 2005; and (b) the Purchaser may assign such proxy and/or power-of-attorney to any person with or without assigning the related Units with respect to which such proxy and/or power-of-attorney was granted; and (ii) evidences and confirms the undersigned's agreement to and acceptance of all of the terms, provisions and matters set forth in the Confirmation Letter, the Assignment and the Offer to Purchase. X____________________________________ ______________________________ Area Code and Telephone Number X____________________________________ Signature(s) of Limited Partners (SIGN HERE) (Must be signed by registered Limited Partner(s) exactly as name(s) appear(s) on the Certificate(s) or in the Partnership's records. If signature is by an officer of a corporation, attorney-in-fact, agent, executor, administrator, trustee, guardian or other person(s) acting in fiduciary or representative capacity, please complete the line captioned "Capacity (Full Title)" and see Instruction 5 of the Assignment.) Date:_________________________________ In addition to signing your name above, PLEASE PRINT YOUR NAME(S) in the following space: ________________________________________________________ Capacity (Full Title):__________________________________ Unless otherwise defined herein, capitalized terms used herein shall have the meanings attributed to them in the Purchaser's Offer to Purchase dated August 3, 1995, as amended and supplemented. The Depositary for the Offer is: IBJ SCHRODER BANK & TRUST COMPANY
By Mail: By Facsimile: To Confirm: By Hand/Overnight Delivery: P.O. Box 84 (212) 858-2611 (212) 858-2103 One State Street Bowling Green Station New York, New York 10004 New York, New York 10274-0084 Attn: Securities Processing Attn: Reorganization Operations Window, Subcellar One, Department (SC-1)
THIS LETTER MUST BE SIGNED AND RETURNED TO THE DEPOSITARY TO COMPLETE YOUR TENDER EX-99 4 PRESS RELEASE EXHIBIT 16 FOR IMMEDIATE RELEASE Contact: Tina Simms (212) 921-3355 HIGH RIVER TENDER OFFER EXTENDED August 22, 1995--High River Limited Partnership, a Delaware limited partnership controlled by Carl C. Icahn, announced today that it is extending the expiration date of its outstanding tender offers for ten McNeil real estate limited partnerships to September 6, 1995. High River said that it is also supplementing its existing offer to purchase to provide additional and updated information to unitholders. The supplements are being delivered today for mailing to unitholders. The offer is not subject to financing. -----END PRIVACY-ENHANCED MESSAGE-----