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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
SCHEDULE TO
Tender Offer Statement under Section
14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934
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MAXUS REAL PROPERTY INVESTORS-FOUR, L.P.
(Name of Subject Company)
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O. BRUCE MILLS
(Name of Filing Person--Offeror)
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LIMITED PARTNERSHIP UNITS
(Title of Class of Securities)
N/A
(CUSIP Number of Class of Securities)
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O. BRUCE MILLS
15480 ELK RIDGE LANE, SUITE 200
CHESTERFIELD, MISSOURI 63017
TELEPHONE: (636) 728-1000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
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COPY TO:
ROBERT M. LAROSE, ESQ.
THOMPSON COBURN LLP
ONE FIRSTAR PLAZA
ST. LOUIS, MISSOURI 63101
TELEPHONE: (314) 552-6000
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CALCULATION OF FILING FEE
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Transaction Valuation Amount of Filing Fee
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$4,859,200.00* $971.84
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[FN]
* For purposes of calculating amount of filing fee only. Based on the offer
to purchase 12,148 limited partnership units of Maxus Real Property
Investors - Four, L.P. at a purchase price of $400 per unit in cash.
[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: $971.84
Form or Registration No.: Schedule TO
Filing Party: O. Bruce Mills
Date Filed: July 10, 2001
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
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This Amendment No. 2 to Tender Offer Statement on Schedule TO
amends and supplements the Tender Offer Statement on Schedule TO filed with
the Securities and Exchange Commission on July 10, 2001 ("Schedule TO") by
O. Bruce Mills relating to the offer by O. Bruce Mills to purchase any and
all of the outstanding limited partnership units of Maxus Real Property
Investors - Four, L.P. at a purchase price of $400 per unit in cash, upon
the terms and subject to the conditions set forth in the Offer to Purchase
dated July 10, 2001 (the "Offer to Purchase") and the related Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), respectively.
On July 27, 2001, O. Bruce Mills sent a letter to all of the
limited partners of Maxus Real Property Investors - Four, L.P. supplementing
the disclosures contained in the Offer to Purchase in response to comments
Mr. Mills received from the Securities and Exchange Commission. A copy of
the letter is attached hereto as Exhibit (a)(6).
The offer will expire at 12:00 Midnight, Central Standard Time, on
Tuesday, August 7, 2001, unless Mr. Mills extends the time period for which
the offer is open, in which event the offer will expire at the later time
and date announced by Mr. Mills at the time of the extension. Mr. Mills may
extend the offer in his sole discretion by issuing a notice of extension by
press release or other public announcement not later than 9:00 a.m., Eastern
Daylight Time, on August 8, 2001. The notice of extension, if given, will
include an approximate number of the units tendered as of the original
expiration date.
ITEM 12. MATERIALS TO BE FILED AS EXHIBITS.
(a) (1) Letter to Partners dated July 10, 2001*
(a) (2) Offer to Purchase*
(a) (3) Letter of Transmittal*
(a) (4) Affidavit and Indemnification Agreement*
(a) (5) Letter to Partners dated July 24, 2001**
(a) (6) Letter to Partners dated July 27, 2001
(b) (1) Commitment Letter from Bank of Washington*
(c) - (h) Not applicable
[FN]
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* Previously filed as exhibits to Schedule TO filed July 10, 2001.
** Previously filed as exhibit to Amendment No. 1 to Schedule TO filed
July 24, 2001.
SIGNATURE
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: July 27, 2001
By: /s/ O. Bruce Mills
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O. Bruce Mills
EXHIBIT INDEX
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Exhibit Description
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(a) (1) Letter to Partners dated July 10, 2001*
(a) (2) Offer to Purchase*
(a) (3) Letter of Transmittal*
(a) (4) Affidavit and Indemnification Agreement*
(a) (5) Letter to Partners dated July 24, 2001**
(a) (6) Letter to Partners dated July 27, 2001
(b) (1) Commitment Letter from Bank of Washington*
(c) - (h) Not applicable
[FN]
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* Previously filed as exhibits to Schedule TO filed July 10, 2001
** Previously filed as exhibit to Amendment No. 1 to Schedule TO filed
July 24, 2001.
Exhibit (a)(6)
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[Letterhead of Mills Properties, Inc.]
July 27, 2001
TO THE LIMITED PARTNERS OF
MAXUS REAL PROPERTY INVESTORS - FOUR, L.P.
On July 10, 2001, I commenced a tender offer for any and all of the limited
partnership units of Maxus Real Property Investors, L.P. at $400 per unit in
cash. Since the commencement, I mailed you a letter dated July 24, 2001 in
which I absolutely and irrevocably waived the condition to my original offer
that required the tender of a minimum number of units that would result in
my holding a majority of the outstanding units upon completion of my tender
offer.
On the same day as I mailed my July 24th letter, I received a letter from
the Securities and Exchange Commission providing comments on my original
offer to purchase. I have responded to each of the SEC's comments and, for
the sake of completeness and clarity, I am supplementing the disclosures in
the original offer to purchase with the following additional disclosures:
TERMINATION OF PARTNERSHIP; VOIDING OF TENDERS. In the General
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Partner's filing with the SEC and in a simultaneous communication to you,
the General Partner asserts that my offer could result in the termination of
the Partnership, thereby making the tenders of units void and ineffectual
under the Partnership Agreement. My legal counsel has evaluated these
provisions of the Partnership Agreement and has advised me that those
sections were included in the Partnership Agreement at a time when
termination of the Partnership could have resulted in adverse federal income
tax consequences to both the existing partners and any purchaser of
partnership units. Since 1997, those adverse federal income tax consequences
have been eliminated as they relate to the Partnership. Therefore, the
sections of the Partnership Agreement cited by the General Partner have no
continuing effect. I will challenge any attempt by the General Partner to
rely upon these out-dated provisions to void purchase and transfers of units
pursuant to my offer.
POSSIBLE ACCELERATION OF PARTNERSHIP'S MORTGAGE LOAN. The General
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Partner has also asserted in its filings with the SEC and its communications
with you that if my offer succeeds it would result in an event of default
under the Partnership's mortgage loan with Northland/Marquette Center
Capital Group, Inc. The deed of trust for the mortgage loan states that a
transfer of either a general partnership interest or 51% or more of the
limited partnership interests would constitute an event of default unless
the lender consents to the transfer. The deed of trust contains criteria
which, if satisfied, shall require the lender's consent to the transfer.
While I will take all actions necessary to obtain the approval of the lender
and while I believe that I will be able to satisfy the criteria in the deed
of trust required for the approval, no assurance can be made that the lender
will ultimately give its approval. If the lender's consent to the transfer
cannot be obtained, the lender will be entitled to exercise its remedies
applicable to events of default under the deed of trust, which could include
the acceleration of the mortgage loan. This risk would only be applicable to
limited partners who do not tender. In the past 20 years I have never been
turned down by a lender in being approved to assume a loan or to take over
management of a property.
REVISED NUMBER OF UNITS OUTSTANDING. The General Partner had
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originally announced in a press release on June 14, 2001 that the
Partnership had redeemed 1,376 units in the Partnership's tender offer that
closed on June 5, 2001, leaving 12,153 units outstanding. The General
Partner revised the
number of units redeemed in its latest filing with the SEC, now stating that
1,356 were purchased in the tender offer. This leaves 12,173 units currently
outstanding according to the latest filing by the General Partner. I have now
waived the condition that would require tenders of a minimum number of units
such that, when added to the five units that I currently own, would result in
my owning a majority of the outstanding units after the tender offer. However,
for me to own a majority of the units after the tender offer, 6,082 units
would have to be tendered in the tender offer.
DETERMINATION OF THE UNIT PRICE IN THE TENDER OFFER. The SEC
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requested clarification on the methodologies that I used in determining a
price for my tender offer. As I previously disclosed in my offer to
purchase, I did not do any independent appraisal of the Partnership's
property, Woodhollow Apartments, nor did I retain any investment banking
firm or financial advisor to give me advice as to the valuation of the units
or the fairness of the price that I have offered. I commenced this tender
offer because I received the Partnership's offer of $300 per unit less a $75
transfer fee per transaction and compared that with the Partnership's
then-current determination that net liquidation value per unit was $530 (now
$567, after the Partnership's redemption and distribution). On the basis of
my review of the Partnership's publicly disclosed financial statements and
my knowledge and experience of the St. Louis, Missouri real estate market, I
had no reason to question the Partnership's calculation of net liquidation
value per unit. I simply compared the Partnership's $300 per unit offer to
the Partnership's calculation of the net liquidation value per unit in
determining that the Partnership's price was "significantly lower" than the
current value of the units.
I determined to offer $400 per unit in my offer because it was a 33% premium
over the Partnership's offer and, in addition, did not deduct any fees from
the amount paid to tendering partners. This was the entire extent of my
analysis as to price - that, by the Partnership's own calculations, the
units were worth significantly more than the Partnership's offering price
and that I was willing to pay $400 per unit for any and all units tendered.
EXTENSION OF THE OFFER. I have reserved the right, in my
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discretion, to extend my tender offer past the current expiration time of
12:00 Midnight, Central Daylight Time, on August 7, 2001. If I should decide
to extend, I am required under the federal securities laws and regulations
to do so by issuing a notice of extension by press release or other public
announcement not later than 9:00 A.M., Eastern Daylight Time, on August 8,
2001. The notice of extension, if given, will include an approximate number
of the units tendered as of the original expiration date.
WITHDRAWAL RIGHT. The federal securities laws and regulations
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require that tendering limited partners have the right to withdraw their
tendered units if the units have not been accepted for payment on or before
the sixtieth day after the date of the original tender offer. The sixtieth
day after the commencement of my tender offer is September 7, 2001. Under
the terms of my tender offer, any tendering limited partner may withdraw his
or her tendered units at any time prior to the expiration of the offer, at
which time, I intend to immediately accept all tendered units for purchase.
PROMPT RETURN OF UNPURCHASED UNITS. If for any reason I do not
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purchase any tendered units immediately after the expiration of my offer, I
will return the units to those limited partners who tendered the units
promptly after the expiration date of the offer as required by the federal
securities laws and regulations.
WAIVER OF CONDITION WITH RESPECT TO SIGNIFICANT CHANGES IN GENERAL
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LEVEL OF EQUITY PRICES IN THE UNITED STATES AND ABROAD. The SEC has pointed
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out that the condition contained in my original offer that there be no
significant change, in my judgment, in the general level of market prices of
equity securities in the United States or abroad is vague and not capable of
objective measurement. This was a condition of the Partnership's offer and I
included it in my offer to make the conditions of my offer
comparable to those of the Partnership. I agree with the SEC's view and
hereby absolutely and irrevocably waive this condition to my offer.
OTHER CONDITIONS OF THE OFFER. Any of the remaining conditions to
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my offer must be satisfied or waived prior to the expiration of my offer.
FEDERAL INCOME TAX CONSEQUENCES. Section 11 of my original offer to
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purchase discloses the material federal income tax consequences of the sale
of your units in my tender offer.
If you have any questions or comments concerning any aspect of my offer,
please contact me or my information agent at your earliest convenience. The
information agent is Georgeson Shareholder, 111 Commerce Road, Carlstadt,
New Jersey 07072, telephone number: (888) 385-0238, facsimile number: (201)
460-2889. If you wish to tender any of your units into my tender offer, you
may do so by delivering a signed and completed letter of transmittal and the
certificate or certificates for the tendered units to the depositary for the
offer, LaSalle Bank National Association, 135 South LaSalle Street, Suite
1811, Corporate Trust Operations, Chicago, Illinois 60603, telephone number:
(800) 246-5761, menu option #2, facsimile number: (312) 904-2584.
Thank you again for your consideration of my offer.
Respectfully yours,
/s/ O. Bruce Mills
O. Bruce Mills