-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LmTCchmIFXWV8tZHDXJSAArmqbhw1x/T30KZzZ6MEBgDdolHs9hgB0NfxhcYPO1R GyRkYwH5lqwWeGGej6bBDw== 0000921749-95-000201.txt : 19951119 0000921749-95-000201.hdr.sgml : 19951119 ACCESSION NUMBER: 0000921749-95-000201 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19951113 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 REAL ESTATE FUND XV LTD /CA CENTRAL INDEX KEY: 0000751044 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 942941516 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48304 FILM NUMBER: 95590705 BUSINESS ADDRESS: STREET 1: 13760 NOEL RD STE 700 LB70 CITY: DALLAS STATE: TX ZIP: 75240 BUSINESS PHONE: 2144485800 MAIL ADDRESS: STREET 2: 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 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. 20)* (Final Amendment) AND SCHEDULE 13D MCNEIL REAL ESTATE FUND XV, LTD. (Name of Subject Company [Issuer]) HIGH RIVER LIMITED PARTNERSHIP CARL C. ICAHN (Bidders) LIMITED PARTNERSHIP UNITS (Title of Class of Securities) 582568 87 9 (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: $879.24 Valuation*: $4,396,220 - ------------------------------------------------------------------- * For purposes of calculating the fee only. This amount assumes the purchase of 46,276 units of limited partnership interest (the "Units") of the subject partnership for $95.00 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: $879.24 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). SCHEDULE 14D-1/SCHEDULE 13D CUSIP No. Page of Pages 1 NAME OF REPORTING PERSON High River Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) // 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,044 Units (See Item 6 below) 8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.77% 10 TYPE OF REPORTING PERSON* PN SCHEDULE 14D-1/SCHEDULE 13D CUSIP No. Page of Pages 1 NAME OF REPORTING PERSON Riverdale Investors Corp., Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) // 3 SEC USE ONLY 4 SOURCE OF FUNDS* AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,044 Units (See Item 6 below) 8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.77% 10 TYPE OF REPORTING PERSON* CO SCHEDULE 14D-1/SCHEDULE 13D CUSIP No. Page of Pages 1 NAME OF REPORTING PERSON Carl C. Icahn S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) // 3 SEC USE ONLY 4 SOURCE OF FUNDS* AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America 7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,703 Units (See Item 6 below) 8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.41% 10 TYPE OF REPORTING PERSON* IN SCHEDULE 14D-1/SCHEDULE 13D CUSIP No. Page of Pages 1 NAME OF REPORTING PERSON Unicorn Associates Corporation S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) // 3 SEC USE ONLY 4 SOURCE OF FUNDS* AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) // 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York 7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 659 Units (See Item 6 below) 8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* // 9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.64% 10 TYPE OF REPORTING PERSON* CO AMENDMENT NO. 20 TO SCHEDULE 14D-1 AND SCHEDULE 13D This Amendment No. 20 (final amendment) to Schedule 14D-1 constitutes (i) the final amendment to 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, Amendment No. 4 filed with the Commission on August 21, 1995, Amendment No. 5 filed with the Commission on August 22, 1995, Amendment No. 6 filed with the Commission on August 25, 1995, Amendment No. 7 filed with the Commission on August 31, 1995, Amendment No. 8 filed with the Commission on September 7, 1995, Amendment No. 9 filed with the Commission on September 8, 1995, Amendment No. 10 filed with the Commission on September 12, 1995, Amendment No. 11 filed with the Commission on September 15, 1995, Amendment No. 12 filed with the Commission on September 15, 1995, Amendment No. 13 filed with the Commission on September 18, 1995 Amendment No. 14 filed with the Commission on September 28, 1995, Amendment No. 15 filed with the Commission on September 29, 1995 Amendment No. 16 filed with the Commission on October 2, 1995, Amendment No. 17 filed with the Commission on October 2, 1995, Amendment No. 18 filed with the Commission on October 11, 1995, and Amendment No. 19 filed with the Commission on October 12, 1995, and (ii) the Statement on Schedule 13D of the Reporting Persons. 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 (collectively with the Offer to Purchase, the "Offer"). Item 6. Interest in Securities of Subject Company. (a)-(b) The 10,703 Units which are listed above as being beneficially owned by the reporting persons are based upon the preliminary report of the depositary of Units which were tendered and accepted for payment as referred to in the press release dated October 12, 1995 (previously filed as an exhibit to Amendment No. 19). The Reporting Persons are seeking to obtain transfer of the Units pursuant to the litigation referred to in the Press Release attached hereto as Exhibit 38 and the Complaint attached hereto as Exhibit 39. Item 10. Additional Information Item 10(f) is hereby amended to add the following: (f) The information set forth in Exhibits 38 and 39 attached hereto are 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 38 Press Release dated November 7, 1995 (c) Exhibit 40 Joint Filing Agreement dated November 9, 1995 by and among High River Limited Partnership, Riverdale Investors Corp., Inc. and Carl C. Icahn 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: November 13, 1995 HIGH RIVER LIMITED PARTNERSHIP By: Riverdale Investors Corp., Inc. Title: General Partner By: /s/ Robert J. Mitchell Robert J. Mitchell Title: Vice President RIVERDALE INVESTORS CORP., INC. By: /s/ Robert J. Mitchell Robert J. Mitchell Title: Vice President UNICORN ASSOCIATES CORPORATION By: /s/ Gail Golden Gail Golden Title: Vice President /s/ Theodore Altman Carl C. Icahn By: Theodore Altman as Attorney-in-fact [Signature Page for Amendment No. 20 to McNeil Real Estate Fund XV, LTD. Schedule 14D-1] EXHIBIT INDEX Page Number ----------- Exhibit 38 Press Release dated November 7, 1995 Exhibit 39 Complaint dated November 7, 1995 Exhibit 40 Joint Filing Agreement dated November 9, 1995 by and among High River Limited Partnership, Riverdale Investors Corp., Inc., Unicorn Associates Corporation and Carl C. Icahn Exhibit 41 Power of Attorney dated November 9, 1995 granted by Carl C. Icahn to Theodore Altman EX-99 2 FOR IMMEDIATE RELEASE Contact: Tina Sims (212) 921-3355 Date: November 6, 1995 RE: HIGH RIVER LIMITED PARTNERSHIP--McNEIL REAL ESTATE FUNDS New York, New York--High River Limited Partnership, an affiliate of Carl C. Icahn, announced today that it has determined that it will seek to remove McNeil Partners, L.P. ("McNeil") from its position as general partner of each of McNeil Pacific Investors Fund 1972, McNeil Real Estate Fund V, Ltd., McNeil Real Estate Fund IX, Ltd., McNeil Real Estate Fund X, Ltd., McNeil Real Estate Fund XI, Ltd., McNeil Real Estate Fund XIV, Ltd., McNeil Real Estate Fund XV, Ltd., McNeil Real Estate Fund XX, L.P., McNeil Real Estate Fund XXIV, L.P., and McNeil Real Estate Fund XXV, L.P. (collectively, the "Partnerships"). The Partnerships were all the subject of tender offers conducted by High River which expired on October 6, 1995. The assertion of claims against McNeil, is exploring for mismanagement, excessive fees and accountings, including claims that those Partnerships organized prior to July 1984 were statutorily dissolved when they were reorganized in 1992 and, accordingly, McNeil is not properly authorized to act as General Partner or receive the compensation it has taken. The decision was, among other things, a response to the obstacles that have been created by McNeil to the completion of the transfer of units to High River and admission of High River as a limited partner in each of the Partnerships. Most recently, High River received a letter from an affiliate of McNeil dated October 30, 1995, setting forth various "concerns" with respect to the transfer of units to High River. In response to the letter, Mr. Icahn stated, "We cannot help but view the ostensible concerns set forth in that letter as an extension of the self interested delaying tactics which caused the federal court in New York to find that McNeil had irreparably harmed its limited partners and enjoin it from further violations of the law. In our view, McNeil should not continue as the general partner of any of the partnerships." EX-99 3 THEODORE ALTMAN (TA 8368) GORDON ALTMAN BUTOWSKY WEITZEN SHALOV & WEIN 114 WEST 47TH STREET NEW YORK, NEW YORK 10036 TELEPHONE: (212) 626-0800 ATTORNEYS FOR PLAINTIFF UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - -----------------------------------X HIGH RIVER LIMITED PARTNERSHIP, : A DELAWARE LIMITED PARTNERSHIP, ON ITS OWN BEHALF AND DERIVATIVELY : ON BEHALF OF MCNEIL REAL ESTATE FUND IX LTD., MCNEIL REAL FUND XI, : LTD. MCNEIL REAL ESTATE FUND XV, LTD., MCNEIL REAL ESTATE FUND : XXIV, LTD. AND MCNEIL REAL ESTATE FUND XXV, LTD., : PLAINTIFF, : : - AGAINST - COMPLAINT AND : JURY DEMAND MCNEIL PARTNERS L.P., MCNEIL INVESTORS, INC., MCNEIL : PACIFIC INVESTORS FUND 1972, LTD., MCNEIL REAL ESTATE FUND V, LTD., : MCNEIL REAL ESTATE FUND IX, LTD., MCNEIL REAL ESTATE FUND X, LTD., : MCNEIL REAL ESTATE FUND XI, LTD., MCNEIL REAL ESTATE FUND XIV, LTD., : MCNEIL REAL ESTATE FUND XV, LTD., MCNEIL REAL ESTATE FUND XX, L.P., : MCNEIL REAL ESTATE FUND XXIV, L.P., MCNEIL REAL ESTATE FUND XXV, L.P., : ROBERT A. MCNEIL AND CAROLE J. MCNEIL, : DEFENDANTS. : - -----------------------------------X Plaintiff, High River Limited Partnership ("High River"), by its attorneys, Gordon Altman Butowsky Weitzen Shalov & Wein hereby alleges, upon personal knowledge as to its own acts and upon information and belief as to all other matters, as follows: NATURE OF THE ACTION 1. Plaintiff High River has commenced tender offers for units of ten California limited partnerships (the "California Limited Partnerships" or the "Partnerships"), as described below. On August 10, 1995, High River filed an action in this Court, pursuant to Rule 14d-5 of the Securities Exchange Act of 1934, to compel the general partner of those partnerships, McNeil Partners, L.P., ("McNeil Partners" or the "General Partner"), and the remaining defendants (all of which are affiliated with or controlled by defendant Robert A. McNeil) to comply with the specific provisions of Rule 14d-5 which require it to promptly provide the tender offeror with a list of the unit holders and their addresses or to promptly mail copies of High River's tender offers to the limited partners. On August 10, 1995, this Court (Hon. Peter K. Leisure, J.) found that Defendants had failed to comply with Rule 14d-5 and that the unit holders of the partnerships were being irreparably harmed. Accordingly, Judge Leisure issued a injunction (the "August 10 Injunction") directing the -2- defendants to comply with the tender offer rules and either provide High River with a list of the unit holders and their addresses or mail High River's tender offer materials. 2. Despite this Court's August 10 Injunction, Defendants have continued, in violation of the spirit, if not the letter of this Court's August 10 Injunction, to block High River's tender offers. On October 6, 1995, High River's tender offers expired and High River accepted for payment all units properly tendered pursuant to the offers. Defendants, however, continue to seek to delay and block High River from obtaining units in the Partnerships. Most recently, on October 30, 1995, High River's transfer agent, IBJ Schroder, received a letter from Defendants which purported to outline several alleged deficiencies in High River's transfer documents. 3. Defendants wish to avoid having a limited partner such as High River because of its ability to monitor McNeil Partners and hold them accountable. For the past several years, McNeil Partners has been operating all of the Partnerships for its own benefit, but at the limited partners' expense. McNeil Partners' improper conduct includes, but is not limited to: -3- o paying itself and entities owned and controlled by it exorbitant fees and so- called reimbursements of general and administrative expenses while permitting the Partnerships to sustain staggering continued losses so that the Partnerships' current value is now a fraction of its original value; o trafficking in control of the Partnerships for its own benefit, by selling and repurchasing its general partnership interests, at great profit, without regard to the substantial detriment suffered by the Partnerships and their limited partners; o taking control of the general partnership interest in some of the partnerships in violation of the California partnership law; and o managing the Partnerships so as to extend indefinitely the fat fee arrangements enjoyed by the General Partner and its affiliates. 4. After having soaked the Partnerships of over $12 million dollars in fees in 1994 alone, McNeil Partners desires to continue its lucrative, but unlawful arrangement. Defendants, having failed to derail High River's tender offer, now seek to block High River from completing the transfers of limited partner interest and from obtaining admission as a limited partner. Defendants motivation is clear. A motivated, well-financed investor with a large stake in the Partnership, such as High River, can challenge Defendants' abusive conduct and effectively hold them accountable to the limited partners. Defendants' forms 14d-9 filed with the Securities and Exchange Commission (the -4- "SEC") offer various pretenses for opposing the tender offers, but never disclose Defendants' intention to resist High River's admission into the partnership without a good faith basis. Accordingly, High River has been forced to seek an injunction compelling Defendants to approve the transfer of ownership from the tendering unit holders to High River. 5. Certain of the Partnerships that were formed prior to mid-1984 (the "Pre-1984 Partnerships") were statutorily dissolved in the early 1990's by reason of a failed attempt to transfer their general partner interests. As a result of this dissolution, the Pre-1984 Partnerships terminated and McNeil Partners is today acting as if it were the general partner of a lawfully constituted entity, when, in fact, it has no such authority. In so doing, the General Partner is maintaining an extremely lucrative and wasteful position at the expense of the Pre-1984 Partnerships, without any lawful basis. 6. Prior to commencing its tender offer, High River, purchased units of limited partnership interest in McNeil Real Estate Fund IX, Ltd., McNeil Real Estate Fund, XI, Ltd, McNeil Real Estate Fund XV, Ltd. (collectively "McNeil, IX, IX and XV"), McNeil Real Estate Fund XXIV, L.P. and McNeil Real Estate Fund XXV, L.P. High River has been admitted as a limited partner in each of these -5- partnerships. Accordingly, with respect to each of these partnerships, High River brings derivative claims seeking an accounting from the McNeil Partners for the fees that it earned while it unlawfully acted as the general partner of McNeil IX, XI and XV and it seeks an order requiring McNeil Partners to disgorge the excessive fees that it has earned since McNeil IX, XI and XV dissolved. High River also brings derivative claims against McNeil Partners for breach of its fiduciary duty to each of the partnerships in which High River has been admitted. JURISDICTION AND VENUE 7. Jurisdiction of this Court is conferred by Section 27 of the Securities Exchange Act of 1934 (15 U.S.C. ss. 78aa) and 28 U.S.C. ss. 1367, the Supplemental Jurisdiction statute. 8. Venue is appropriate in this jurisdiction pursuant to 28 U.S.C. ss. 1391 and 15 U.S.C. ss. 78aa because the improper actions of defendants, in violation of federal securities laws, took place and will have a substantial impact within this district. -6- PARTIES 9. Plaintiff High River is a limited partnership organized pursuant to the laws of Delaware, and is located in New York, c/o Riverdale Investors Corp., Inc., 100 South Bedford Road, Mount Kisco, New York 10549. High River is an entity controlled by Carl C. Icahn. 10. Defendant McNeil Partners is a Delaware Limited Partnership, with offices in Dallas, Texas. McNeil Partners is in the business of real estate management, and is general partner of all of the California Limited Partnerships defendants, as described below. 11. Defendant McNeil Investors, Inc. ("McNeil Investors") is a Delaware Corporation which is the general partner of McNeil Partners. 12. Defendant Robert A. McNeil ("McNeil") is the Chairman of the Board and sole limited partner of the McNeil Partners. McNeil is also Chairman of McNeil Investors. 13. Defendant Carole J. McNeil is Co-Chairman of the Board of McNeil Investors and is McNeil's wife. Carole J. McNeil, along with McNeil, McNeil Partners and McNeil Investors shall be referred to collectively as the "Management Defendants". -7- 14. The defendants McNeil Pacific Investor Fund 1972 ("McNeil Pacific"), McNeil Real Estate Fund V, Ltd. ("McNeil V"), McNeil Real Estate Fund IX, Ltd. ("McNeil IX"), McNeil Real Estate Fund X, Ltd. ("McNeil X"), McNeil Real Estate Fund XI, Ltd. ("McNeil XI"), McNeil Real Estate Fund XIV, Ltd. ("McNeil XIV"), McNeil Real Estate Fund XV, Ltd. ("McNeil XV"), McNeil Real Estate Fund XX, L.P. ("McNeil XX"), McNeil Real Estate Fund XXIV, L.P. ("McNeil XXIV"), and McNeil Real Estate Fund XXV, L.P. ("McNeil XXV") purport to be limited partnerships organized under California Law. As described below, however, High River contends that many of these Partnerships have, in fact, dissolved. 15. McNeil Partners and any other persons constituting management of the Partnerships are controlled by McNeil. Accordingly, any demand on McNeil Partners or other persons constituting management of the Partnerships to bring this action on behalf of the Partnership would be futile. THE HISTORY OF THE PARTNERSHIPS 16. The California Limited Partnerships were formed between 1971 and 1985 for the purpose of investing, -8- holding, managing and disposing of real estate and real- estate related investments. 17. Most of the California Limited Partnerships were founded by Robert A. McNeil, who is a member of the California bar and has been actively involved in the management of real estate for at least 25 years. McNeil and The Robert A. McNeil Corporation ("Ramco"), a corporation McNeil controlled, acted as the general partner for most of the Partnerships that McNeil founded. 18. In 1986, McNeil sold his general partnership interests in the seven California Limited Partnerships that he had founded to Southmark. As part of the sale of the assets of the Partnerships, McNeil received substantial compensation, and remained a co-general partner in most of the Partnerships, along with Southmark. McNeil also received an indemnification from Southmark, insulating him from liability for claims brought against the general partners for mismanagement of the Partnerships. 19. A mere three years after McNeil sold his general partnership interests to it, Southmark filed for bankruptcy protection. After having received substantial compensation for his general partnership interests from Southmark in 1986, McNeil approached Southmark to repurchase the general -9- partnership interests in 1990, proposing to pay only a small fraction of what Southmark had paid for them. 20. McNeil's attempts to repurchase the general partnership interests should be viewed against the backdrop of a $5.4 million claim for indemnification that he had brought against Southmark in 1989, that apparently arose out of claims against McNeil and Southmark by third parties. Thus, McNeil had substantial leverage in exercising control from Southmark. Indeed, when McNeil attempted to repurchase the general partnership interests from Southmark, he agreed to settle his claims for indemnification as part of the deal. 21. Under California law, limited partnerships formed prior to July 1, 1984, such as many of the California Limited Partnerships named as defendants in this action, are governed by the California Uniform Limited Partnership Act. Cal. Corp. ss. 15501 (1995) et seq. (the "Old Act") California limited partnerships formed on or after July 1, 1984 are governed by the California Revised Limited Partnership Act. Cal. Corp. ss. 15611 (1993) et seq. (the "New Act") 22. The Old Act provides that if a limited partnership's original general partners transfer their interest, without first admitting a successor general partner, the partnership dissolves. -10- The Old Act in section 15520.5 states: The retirement, death or insanity of a general partner dissolves the partnership, UNLESS THE BUSINESS IS CONTINUED BY THE REMAINING GENERAL PARTNERS (a) Under a right so to do stated in the certificate, or (b) With the consent of all members. Old Act ss. 15520.5 (emphasis added). 23. Subsection 15509(1) of the Old Act states, in part, that: "without the written consent or ratification of the specific act by all of the limited partners, a general partner or all the general partners have no authority to . . . (e) Admit a person as a general partner . . ." Old Act ss. 15509(1) (emphasis added). 24. The amended partnership agreements and proxy statements for each of the Pre-1984 Partnerships indicate that their existing general partners conveyed their general partner interest, and, as a result, ceased to be general partners of the Pre-1984 Partnerships, prior to the purported admission of McNeil Partners (which in any event was not unanimously elected) as the new general partner, resulting in dissolution under the Old Act. Neither the partnership agreements (or any provision therein), nor any action taken by the new general partner could resurrect the Pre-1984 Partnerships once they had, as here, -11- dissolved under California law. 25. McNeil nevertheless took control of the partnership assets of McNeil IX, XI and XV, as well as the other Pre-1984 Partnerships and began behaving as if the Pre-1984 Partnership had not dissolved and as if McNeil Partners, which was wholly under his control, was the lawfully appointed general partner. When McNeil took control of the partnerships, he not only greatly increased his own compensation from the majority of the Partnerships, as described above, but he also imposed ostensible amendments to the partnership agreements, varying in specifics from partnership to partnership, and purported to insulate himself from liability for misconduct as a general partner. 26. McNeil, therefore, through his sales and alleged repurchases of the general partner's interests in the various Partnerships, trafficked in control of the Partnerships, and in the case of the Pre-1984 partnerships, including McNeil IX, XI and XV, took control of the assets of these partnerships unlawfully, for his own personal gain and without regard to the detriment that he caused to the Partnerships and the limited partners. -12- 27. Since approximately 1991-1992, McNeil Partners has operated the Partnerships as its own personal piggy bank, through an unconscionable compensation and "reimbursement" scheme, and an incestuous web of self-dealing with affiliated entities. EXCESSIVE FEES 28. McNeil Partner has paid its affiliates enormous property management fees -- in amounts wholly disproportionate with the services actually performed. At the same time, McNeil Partner has caused the Partnerships to reimburse its affiliates for certain general and administrative expenses and has received certain other distributions in the form of both cash and other consideration. As a result, much of the property management and other fees represent pure profit. All the while the limited partners suffered with a thankless, losing investment. 29. The property management fees, expenses resulting from payment of general and administrative expenses and other distributions paid to McNeil Partners or its affiliates from each Partnership for the fiscal year ended December 31, 1994, and the distributions to limited partners for the same year are compared below: -13- o The General Partner took $66,285 in general and administrative expenses and $72,765 in property management fees from McNeil Pacific. The limited partners of McNeil Pacific have not received distributions since 1990. o The General Partner took $30,000 in general and administrative expenses and $193,145 in property management fees from McNeil V. The same year the limited partners of McNeil V received distributions of $570,008. o The General Partner took $719,703 in general and administrative expenses and $915,989 in property management fees from McNeil IX. The General Partner also received $973,023 as a "Contingent Management Incentive Distribution." Distributions to the limited partners of McNeil IX have been suspended since 1986 and will remain suspended for the foreseeable future. o The General Partner took $609,197 in general and administrative expenses and $868,408 in property management fees from McNeil X. The General Partner also received $634,802 as a "Contingent Management Incentive Distribution." Distributions to the limited partners of McNeil X have been suspended since 1986 and will remain suspended for the foreseeable future. o The General Partner took $434,577 in general and administrative expenses and $671,785 in property management fees from McNeil XI. The General Partner also received $769,448 as a "Contingent Management Incentive Distribution." Distributions to the limited partners of McNeil XI have been suspended since 1986 and will remain suspended for the foreseeable future. o The General Partner took $346,327 in general and administrative expenses and $441,082 in property management fees from McNeil XIV. The General Partner also received $573,908 as a "Contingent Management Incentive Distribution." Distributions to the limited partners of McNeil XIV have been suspended since 1986 and will remain suspended for the foreseeable future. o The General Partner took $236,077 in general and administrative expenses and $376,559 in property -14- management fees from McNeil XV. The General Partner also received $508,862 as a "Contingent Management Incentive Distribution." The same year the limited partners received distributions of $499,993. o The General Partner took $199,786 in general and administrative expenses and $57,289 in property management fees from McNeil XX. The General Partner also received a $167,194 "Asset Management Fee." The same year the limited partners received distributions of $249,933. o The General Partner took $291,507 in general and administrative expenses and $235,662 in property management fees from McNeil XXIV. The General Partner also received a $316,808 "Asset Management Fee." No distributions have been paid to the limited partners since 1991 and none are anticipated in 1995. o The General Partner took $269,869 in general and administrative expenses and $534,044 in property management fees from McNeil XXV. The General Partner also received a $626,282 "Asset Management Fee." The same year the limited partners were paid $400,207. 30. In total, the General Partner and its affiliates received approximately $12 million in cash and other consideration as property management fees, "reimbursements" for general and administrative expenses, and other distributions in 1994. By contrast, the limited partners, the owners of the enterprises, received approximately only $1.7 million during the same year. -15- THE GENERAL PARTNER'S PERPETUATION OF THE EXCESSIVE FEE ARRANGEMENTS 31. Upon taking the general partners' interest in the Partnerships, McNeil coupled his unconscionable boost of the Partnerships' payment obligations to him with an extension of the dates for the sale of the Partnerships' assets. The purpose stated by McNeil Partners for extending the time period was to allow the real estate market and the performance of the Partnership's investment to improve. It is apparent, however, that McNeil Partners intends to prolong for as long as possible the excessive and unlawful compensation, fees and reimbursement schemes that McNeil Partners and its affiliated entitles are enjoying at the Partnerships' expense, and at the expense of the limited partners. 32. McNeil Partner's plans for the Partnerships are apparent from the latest "10-K" filings that it has filed with the Securities Exchange Commission (the "SEC"), which describe an intention to continue to operate the Partnerships indefinitely, and only consider sale of some or all of their assets at some indefinite time in the future. The Partnership's most recent 10-Ks therefore demonstrate that McNeil Partners intends to extend for as long as possible the gravy-train provided by its unconscionable 23 compensation and reimbursement schemes. -16- RESISTANCE TO HIGH RIVER'S TENDER OFFERS. 33. On August 4, 1995, High River commenced a series of tender offers for up to 45% of the units of the California Limited Partnerships (the "Tender Offers"). In connection with the Tender Offer, High River requested by telecopied letter of August 3, 1995, that McNeil Partners comply with Rule 14d-5 of the Securities Exchange Act of 1934 (the "Act"), which requires that pursuant to a request by a tender offeror, that the subject company (here, the Partnerships) must either mail the tender offer materials to the limited partners, or supply the offeror with a list of the limited partners and their addresses. 34. High River received no response to its request until four business days later, and three days after the Tender Offers were filed with the S.E.C., when it received two telecopied letters from New York Counsel Skadden, Arps, Slate, Meagher & Flom ("Skadden Arps"). 35. One of the letters, dated August 8, 1995 (but received on August 9), signed by defendants Robert A. McNeil and Carole J. McNeil, demanded that High River and Carl C. Icahn sign a certificate stating that they had not received any confidential information relating to the Partnerships from an unnamed former lawyer of the McNeils. The accompanying letter signed by Patrick J. Foye of Skadden Arps, indicated that the General -17- Partner would not supply the limited partner list, nor would it begin to mail the Tender Offers to any limited partners, until it received the signed certificate that had been attached to the letter from the McNeils. High River, through its counsel, responded on the same day by stating that there was no basis for defendants' claims that it had obtained confidential information and that, in any event, there was no excuse for the defendants' refusal to honor their 14d-5 obligation. 36. On August 10, 1995, Judge Leisure issued an injunction directing Defendants to either provide High River with a list of the unit holders and their addresses or to mail High River's tender offer materials. Defendants chose to mail. In granting High River's injunction, the Court found that Defendants were irreparably harming their limited partners by attempting to block access to information regarding High River's tender offers. 37. On August 17, 1995, High River wrote to McNeil Partners forwarding copies of its proposed transfer documents. Unlike almost all other public held entities, the Partnerships do not have an independent transfer agent. Instead McNeil Partners, or its designee, act as transfer agent. As such, McNeil Partners owes its limited partners the highest fiduciary obligations with respect to the transfer process. Accordingly, High River sought to confirm that -18- Defendants would take the necessary ministerial actions necessary to complete the transfer of units obtained in the tender offer to High River and to insure Defendants' cooperation in the transfer process. (Exhibit A). 38. On approximately August 22, 1995 High River amended its tender offer and forwarded it to the Partnership for mailing. Shortly thereafter, on approximately August 24, 1995, the parties entered a standstill agreement and began to negotiate a friendly transaction. While the negotiations were being conducted, High River learned that Defendants failed to timely mail High River's amended tender offer materials and thereby ignored the clear direction of this Court. It was not until after the negotiations broke off in late September that Defendants mailed the amended offers. Defendants thereby again flagrantly violated Rule 14d-5, ignored the directive of Judge Leisure's order and materially delayed and damaged High River's offers. 39. Defendants further damaged delayed and disrupted High River's tender offers by (a) communicating with unit holders in violation of the standstill agreement to discourage them from tendering units; (b) misleading unit holders concerning the purported existence of alternatives to High River's tender offers, such as their own tender offer and an increase in distributions -19- to partners; and, (c) in clear violationof the SEC's rules, mailing withdrawal forms to unit holders without making the necessary disclosures and filings with the SEC. 40. On October 30, 1995, three weeks after the expiration of High River's tender offers, High River's transfer agent, IBJ Schroder, received a letter from Defendants that raised several alleged concerns regarding High River's transfer documentation (Exhibit B). This letter was High River's first indication that Defendants intended to abuse the transfer process. Defendants' bad faith was manifest by their failure to respond to High River's August 17 letter, and Defendants' abuse of the transfer process was a serious breach of fiduciary duty. 41. The October 30 letter was only Defendants' latest attempt to prevent High River from increasing its stake in the Partnerships. Viewed in the context of the Partnership's history, however, it is not surprising that Defendants resisted High River's attempt to gain a significant foothold in the Partnerships. Defendants fear that any large investor who they do not control might challenge their fee arrangement and other management policies and make them accountable to unit holders. -20- FIRST CLAIM FOR RELIEF VIOLATIONS OF SECTION 14D AND 14E OF THE EXCHANGE ACT AND THE REGULATIONS PROMULGATED THEREUNDER 42. High River repeats and realleges the allegations of the preceding paragraphs as if fully set forth herein. 43. In violation of Sections 14(d) and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. 7, and the regulations promulgated thereunder, Defendants form 14d-9 failed to fully and accurately disclose Defendants intentions to wrongfully resist High River's admission into the limited partnerships. 44. Defendants also mailed withdrawal forms to limited partners of the Partnerships without making the necessary disclosures and filings with the Securities and Exchange Commission. 45. High River has no adequate remedy at law. SECOND CLAIM FOR RELIEF BREACH OF CONTRACT - THIRD PARTY BENEFICIARY 46. High River repeats and realleges the allegations of the preceding paragraphs as if fully set forth herein. 47. High River has received assignments of interest from unit holders tendering their units to High River. As an assignee, -21- High River has the right to enforce the terms of the agreements governing the Partnerships against McNeil. 48. McNeil has breached the terms of the partnership agreements and the underlying duty of good faith and fair dealing that is implied in all contracts by refusing, without justification or excuse, to admit High River as a limited partner. 49. High River has no adequate remedy at law. THIRD CLAIM FOR RELIEF BREACH OF FIDUCIARY DUTY WITH RESPECT TO MCNEIL IX, MCNEIL XI, MCNEIL XV, MCNEIL XXIV AND MCNEIL XXV 50. High River repeats and realleges the previous allegations as if fully set forth herein. 51. At all times relevant, the Management Defendants owed a fiduciary duty to the Partnerships and to the limited partners. This duty includes the duty of care, loyalty, good faith, fair dealing, honesty and candor in the management of the Partnerships. 52. The Management Defendants have breached and continue to breach their fiduciary duties to the Partnerships by wasting the Partnership's assets and causing the Partnerships to enter into a variety of one-sided sweetheart deals designed to serve only the interest of the Management -22- Defendants at the expense of the limited partners. 53. As a direct and proximate result of the Management Defendants' breaches of fiduciary duty, McNeil IX, McNeil XI, McNeil XV, McNeil XXIV and McNeil XXV (collectively, the "Derivative Partnerships") have been damaged in an amount to be determined at trial. FOURTH CLAIM FOR RELIEF BREACH OF CONTRACT WITH RESPECT TO MCNEIL IX, MCNEIL XI, MCNEIL XV, MCNEIL XXIV AND MCNEIL XXV 54. High River repeats and realleges the allegations of the preceding paragraphs as if fully set forth herein. 55. Each of the Partnerships is governed by a partnership agreement that constitutes a contract by the limited partners of the respective partnerships and McNeil Partners. 56. The governing partnership agreements contain numerous provisions designed to protect the limited partners from overreaching and self-dealing by McNeil Partners and its affiliates. 57. The Management Defendants have breached the partnership agreements and as a direct and proximate result of those breaches, -23- High River and the Derivative Partnerships have been damaged in an amount to be determined at trial. FIFTH CLAIM FOR RELIEF ACCOUNTING WITH RESPECT TO MCNEIL IX, XI AND XV 58. High River repeats and realleges the allegations of the proceeding paragraph as if fully set forth herein. 59. The Management Defendants took control of the assets of McNeil IX, XI and XV after the Pre-1984 Partnerships had dissolved and McNeil Partners behaved as if it were a lawfully appointed general partner of McNeil IX, XI and XV. 60. Because McNeil Partners had no authority to act as a general partner, High River is entitled to an accounting of the fees the Management Defendants removed from McNeil IX, XI and XV. McNeil Partners and its affiliates must also disgorge the profits received from McNeil IX, XI and XV that were greater than the fair value of the services that they rendered while acting as a general partner. -24- WHEREFORE High River demands judgment: 1. Granting preliminary and permanent injunctive relief compelling defendants to admit High River as a limited partner in each of the ten Partnerships and to transfer the tendered units of interest in the Partnerships to High River; 2. Awarding High River damages in an amount to be determined at trial; 3. Ordering the Management Defendants to discharge their fiduciary duties to the Derivative Partnerships; 4. Ordering the Management Defendants to account to McNeil IX, XI and XV and to disgorge profits in excess of the reasonable value of services rendered to those partnerships; 5. Awarding damages to the Derivative Partnerships in an amount to be determined at trial; and 6. Awarding High River and the Derivative Partnerships the cost of this suit, including reasonable attorneys fees and such other and further relief as the Court deems just and proper. -25- JURY DEMAND High River and the Derivative Partnerships hereby demand a jury trial. Dated: New York, New York November 7, 1995 GORDON ALTMAN BUTOWSKY WEITZEN SHALOV & WEIN By:___________________________ Theodore Altman (TA 8368) Howard S. Koh (HK 4730) 114 West 47th Street New York, New York 10036 (212) 626-0800 Attorneys for Plaintiff -26- EX-99 4 JOINT FILING AGREEMENT In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of statements on Schedule 13D (including amendments thereto) with respect to the units of limited partnership interest of each of McNeil Pacific Investors Fund 1972, Ltd., McNeil Real Estate Fund V, Ltd., McNeil Real Estate Fund IX, Ltd., McNeil Real Estate Fund X, Ltd., McNeil Real Estate Fund XI, Ltd., McNeil Real Estate Fund XIV, Ltd., McNeil Real Estate Fund XV, Ltd., McNeil Real Estate Fund XX, L.P., McNeil Real Estate Fund XXIV, L.P. and McNeil Real Estate Fund XXV, L.P. and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filings. In evidence thereof, the undersigned, being duly authorized, have executed this Joint Filing Agreement this 9th day of November, 1995. HIGH RIVER LIMITED PARTNERSHIP By: RIVERDALE INVESTORS CORP., INC. Its: General Partner By: /s/ Robert J. Mitchell Robert J. Mitchell Its: Vice President and Treasurer RIVERDALE INVESTORS CORP., INC. By: /s/Robert J. Mitchell Robert J. Mitchell Its: Vice President and Treasurer UNICORN ASSOCIATES CORPORATION By: /s/ Gail Golden Gail Golden Its: Vice President /s/ Theodore Altman Carl C. Icahn By: Theodore Altman, as attorney-in-fact [Joint Filing Agreement for Schedule 13D with respect to McNeil Partnership] EX-24 5 POWER OF ATTORNEY KNOW EVERYONE BY THESE PRESENTS, which are intended to constitute a Power of Attorney, that I, CARL C. ICAHN, residing at Museum Towers, 15 W. 53rd Street, Apt. 51C, New York, N.Y., do hereby appoint THEODORE ALTMAN, residing at 94 Haights Cross Road, Chappaqua, New York. MY ATTORNEY-IN-FACT TO ACT: As Attorney-In-Fact for the limited purpose of executing (i) amendments to statements on Schedule 14D-1 in connection with those certain tender offers (the "McNeil Tender Offers") with respect to each of McNeil Pacific Investors Fund 1972, Ltd., McNeil Real Estate Fund V, Ltd., McNeil Real Estate Fund IX, Ltd., McNeil Real Estate Fund X, Ltd., McNeil Real Estate Fund XI, Ltd., McNeil Real Estate Fund XIV, Ltd., McNeil Real Estate Fund XV, Ltd., McNeil Real Estate Fund XX, L.McNeil Real Estate Fund XXIV, L.P. and McNeil Real Estate Fund XXV, L.P.; (ii) a Schedule 13D and all amendments thereto, in connection with the McNeil Tender Offers, including joint filing agreements in connection thereto; (iii) Forms 3,4 and 5, and all amendments thereto, in connection with the McNeil Tender Offers; (iv) amendments to statements on Schedule 14D-1 in connection with those certain tender offers (the "Shelter Tender Offers") with respect to each of Shelter Properties I Limited Partnerhsip, Shelter Properties II Limited Partnership, Shelter Properties III Limited Partnership, Shelter Properties IV Limited Partnership, Shelter Properties V Limited Parternship and Shelter Properties VI Limited Partnership; (v) a Schedule 13D and all amendments thereto, in connection with the Shelter Tender Offers, including joint filing agreements in connection thereto; and (vi) Forms 3, 4 and 5, and all amendments thereto, in connection with the Shelter Tender Offers. To induce any third party to act hereunder, I hereby agree that any third party receiving a duly executed copy or facsimile of this instrument may act hereunder, and that revocation or termination hereof, shall be ineffective as to such third party unless and until actual notice or knowledge of such revocation or termination shall have been received by such third party. IN WITNESS WHEREOF, I have hereunto signed my name this 9th day of November, 1995. /s/ Carl C. Icahn Carl C. Icahn STATE OF NEW YORK } COUNTY OF NEW YORK} On November 9, 1995 before me, Alice Blumberg the undersigned officer, personally appeared CARL C. ICAHN, known personally to me to be the individual described in and who executed the foregoing instrument and acknowledged that he executed the same. /s/ Alice Blumberg Notary Public [Signature Page to Power of Attorney for McNeil and Shelter Partnerships] -----END PRIVACY-ENHANCED MESSAGE-----