MRTI Maxus Realty Trust (MM)

Mercury Requests Ownership Waiver From Maxus Realty Trust, Inc. GREENWICH, Conn., Dec. 22 /PRNewswire/ -- Mercury Real Estate Advisors LLC, an affiliate of Mercury Partners LLC, a real estate investment management company based in Greenwich, CT, issued this press release today to Maxus Realty Trust, Inc.'s (NASDAQ:MRTI) Board of Directors. Mercury Real Estate Advisors LLC 100 Field Point Road Greenwich, Connecticut 06830 December 22, 2004 Maxus Realty Trust, Inc. Attn: The Board of Directors 104 Armour Road North Kansas City, Missouri 64116 Gentlemen: As you are aware from our Schedule 13-D filing made November 8, 2004 with the Securities and Exchange Commission, Mercury Real Estate Advisors LLC, on behalf of its affiliates, at that time was the beneficial owner of 7.1% of the shares of common stock of Maxus Realty Trust, Inc. (the "Company"). We have subsequently purchased additional shares of common stock so as to bring our beneficial ownership of the Company to 7.59%, slightly below the ownership limit of 7.6% artificially imposed by the Company. We are hereby requesting a waiver to allow Mercury Real Estate Advisors LLC to purchase up to 19.6% of the common shares of the Company, an identical percentage to which David L. Johnson, the Chairman and Chief Executive Officer of the Company, has the right to purchase. As our ownership entities are limited partnerships which are "look through" vehicles for Federal tax purposes, this will not trigger or jeopardize the "5 in 50" REIT qualification test you used in the Proxy (as defined below) as your sole justification for the 7.6% limit. Therefore, we assume you will extend to us the same, equal ownership limit of 19.6% you afforded Mr. Johnson. In your Schedule 14A Proxy Statement dated March 31, 2001 (the "Proxy"), the Company solicited and recommended shareholder approval for an amendment to the Company's Bylaws, which proposed the following change: " ... (i) increases the stock ownership limitation for David L. Johnson, Chairman of the Board and Chief Executive Officer of the [Company] from 9.8% to 19.6% and (ii) decreases the stock ownership limitation for all other shareholders of the [Company] from 9.8% to 7.6%. The Board believes the Bylaw amendment is in the best interests of the shareholders because it allows Mr. Johnson to have a larger ownership stake in the [Company], which would provide a greater incentive to Mr. Johnson to increase the [Company's] performance and shareholder value. One risk associated with the Bylaw Amendment is that it helps entrench Mr. Johnson as Chairman of the Board and Chief Executive Officer because he will have the ability to own almost twenty (20%) of the outstanding shares of the [Company], which will make it much more difficult for the remainder of the shareholders to gather the necessary votes to elect new trustees or to remove management. The Bylaw Amendment has the effect of an anti-takeover measure because it reduces even further the percentage that other individual shareholders can acquire to mount a potential takeover." Specifically, in your Proxy section entitled Proposal One, you recommend the following resolution, which was approved by the Company's shareholders on May 8, 2001: "8.8 Limitation on Acquisition and Ownership of Shares and Warrants. (a) In order to guard against the concentration of ownership of Shares and warrants or similar rights to purchase Shares to an extent which is contrary to the requirements of the REIT Provisions of the Internal Revenue Code, no Person other than David L. Johnson may at any time ...acquire ownership of or own, directly or indirectly ... a number of Shares in excess of 7.6% of the outstanding shares of the [Company] ..." You later in that section define Person as "any individual, corporation, partnership, trust or other entity." The question is thus very simple. Will the Board of Directors waive the ownership limit in a situation that does not threaten the sole stated justification for the limit for an existing shareholder to the same extent it did for another shareholder, Mr. Johnson? Or, was the Proxy correct in the result of entrenching Mr. Johnson, even if the goal in the Proxy of maintaining REIT status should perhaps instead be the goal of entrenching Mr. Johnson? In other words, as you well know, it is possible to have certain owners own in excess of the artificial limit without jeopardizing your REIT status. We look forward to your prompt reply and approval. Sincerely yours, MERCURY REAL ESTATE ADVISORS LLC David R. Jarvis Malcolm F. MacLean IV Managing Member Managing Member DATASOURCE: Mercury Real Estate Advisors LLC CONTACT: Malcolm F. MacLean IV of Mercury Real Estate Advisors LLC, +1-203-769-2980 Web site: http://www.mercuryrealestate.com/

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