-----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, VBD4ORo70S+eBN4flu4ieRqWqnxlSVjl4jRTtDqfbLYzTzbOQjj1R/uGyv8vpI8G Fpfb0FsBgbUVjwqCHQJiNQ== 0000950172-96-000176.txt : 19960418 0000950172-96-000176.hdr.sgml : 19960418 ACCESSION NUMBER: 0000950172-96-000176 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960417 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DE ANZA PROPERTIES X CENTRAL INDEX KEY: 0000215628 STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF NONRESIDENTIAL BUILDINGS [6512] IRS NUMBER: 953005938 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38912 FILM NUMBER: 96548060 BUSINESS ADDRESS: STREET 1: 9171 WILSHIRE BLVD STE 627 CITY: BEVERLY HILLS STATE: CA ZIP: 90210 BUSINESS PHONE: 3105501111 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MORAGA CAPITAL LLC CENTRAL INDEX KEY: 0001004152 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1640 SCHOOL STREET STREET 2: SUITE 214 CITY: MORAGA STATE: CA ZIP: 94556 BUSINESS PHONE: 5106319100 MAIL ADDRESS: STREET 1: 1640 SCHOOL STREET STREET 2: SUITE 214 CITY: MORAGA STATE: CA ZIP: 94556 SC 13D/A 1 SCHEDULE 13D AMENDMENT NO. 2 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D AMENDMENT NO. 2 UNDER THE SECURITIES EXCHANGE ACT OF 1934 _______________________ DE ANZA PROPERTIES - X (Name of Subject Company) LIMITED PARTNERSHIP INTERESTS (Title of Class of Securities) NONE (CUSIP Number) _______________________ Michael L. Ashner Copy to: Jericho Associates, L.P. James E. Lyons, Esq. 100 Jericho Quandrangle, Ste. 214 Skadden, Arps, Slate, Meagher Jericho, New York 11753 & Flom (516) 822-0022 Four Embarcadero Center San Francisco, California 94111 (415) 984-6400 Copy to: C.E. Patterson Paul J. Derenthal, Esq. MacKenzie Patterson Inc. Derenthal & Dannhauser 1640 School Street, Suite 100 455 Market Street, Suite 1600 Moraga, California 94556 San Francisco, California 94105 (510) 631-9100 (415) 243-8070 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) APRIL 3, APRIL 10 AND APRIL 15, 1996 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ]. This Amendment No. 2 to the Schedule 13D filed on November 29, 1995 by Moraga Capital, LLC (the "Schedule 13D") is being filed to amend and supplement Item 4 of the Schedule 13D. Unless otherwise indicated, each capitalized term used but not otherwise defined herein shall have the meaning assigned to such term in the Schedule 13D. The information set forth in the Exhibits attached hereto is hereby expressly incorporated herein by reference and the responses to the each item contained in this Amendment are qualified in their entirety by the provisions of such Exhibits. Item 4. Purpose of Transaction. Item 4 is hereby amended and supplemented as follows: By letter dated April 3, 1996 to the Issuer (the "Request Letter"), Moraga, certain Members and the Affiliated Holders, all of which are limited partners of the Issuer (collectively, the "Affiliated Limited Partners"), requested, pursuant to the Third Amended and Restated Partnership Agreement of De Anza Properties - X, as amended, that a special meeting of the limited partners of the Issuer be called for the purposes specified in the Request Letter. A copy of the Request Letter is attached hereto as Exhibit 1. The Request Letter was transmitted to the Issuer under cover of a letter dated April 3, 1996 from Moraga to Herbert M. Gelfand, Chairman of the Board of De Anza Corporation, the Operating General Partner of the Issuer. A copy of such letter is attached hereto as Exhibit 2. Following receipt of the Request Letter by the Issuer, representatives of the Reporting Person and representatives of the Issuer discussed a possible meeting among the Reporting Person, the Issuer and their respective representatives to discuss the matters referenced in the Request Letter. To facilitate such meeting, and to postpone the scheduling and notice of a meeting of the limited partners of the Issuer pending such meeting, by letter to the Issuer dated April 10, 1996 (the "Withdrawal Letter") from counsel to the Reporting Person, such counsel informed the Issuer that the Reporting Person and the other Affiliated Limited Partners had authorized such counsel to withdraw the Request Letter, without prejudice to reinstating the Request Letter in the future. A copy of the Withdrawal Letter is attached hereto as Exhibit 3. On April 15, 1996, a representative of each of the Reporting Person and the Issuer, together with their respective counsel, met to discuss matters referenced in the Request Letter. While no agreement was reached with respect to such matters, such representatives agreed to continue such discussions in an attempt to reach an agreement with respect to such matters. The Reporting Person intends to review on a continuing basis its investment in the Issuer and, subject to market and general economic conditions, the discussions among the Reporting Person, the Issuer and their respective representatives referenced above, the business and affairs and financial condition of the Issuer, the availability of Interests at favorable prices, alternative investment opportunities available to the Reporting Person and other factors deemed relevant by the Reporting Person, may acquire (through privately negotiated transactions, one or more tender offers or otherwise) additional Interests. Alternatively, the Reporting Person reserves the right to dispose (through privately negotiated transactions with a third party, the Issuer or an Affiliate of the Issuer or otherwise) of some or all of the Interests owned by it. Except as set forth herein, neither the Reporting Person nor the Members have any present plans or proposals that relate to or would result in any actions or events required to be described in Item 4 of Schedule 13D. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit Description 1 Letter dated April 3, 1996 to De Anza Properties -X from Moraga Capital, LLC, Real Estate Securities Fund 1983, MacKenzie Fund III, Mackenzie Fund IV, MacKenzie Fund VI, MacKenzie Specified Income Fund, MacKenzie Patterson Special Fund, Previously Owned Partnerships Income Fund 2, Previously Owned Mortgage Partnerships Income Fund 3, L.P. and Vanderbilt Income and Growth Associates, L.L.C. 2 Letter dated April 3, 1996 to Mr. Herbert M. Gelfand, Chairman of the Board of De Anza Corporation, the Operating General Partner of De Anza Properties - X, from Moraga Capital, LLC 3 Letter dated April 10, 1996 to De Anza Properties - X from Skadden, Arps, Slate, Meagher & Flom After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct. MORAGA CAPITAL, LLC BY ITS MEMBERS: JERICHO ASSOCIATES, L.P. By: /s/ MICHAEL L. ASHNER April 15, 1996 Michael L. Ashner, Date Its General Partner MORAGA PARTNERS, INC. By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date CAL-KAN, INC. By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date LP SECONDARY MARKET FUND, L.P. By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date MACKENZIE SPECIFIED INCOME FUND, A CALIFORNIA LIMITED PARTNERSHIP By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date MACKENZIE PATTERSON SPECIAL FUND, A CALIFORNIA LIMITED PARTNERSHIP By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date PREVIOUSLY OWNED MORTGAGE PARTNERSHIPS INCOME FUND 3, L.P. By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date CFS SECONDARY MARKET FUND, L.P. By: /s/ WILLIAM R. COUSINS April 15, 1996 William R. Cousins, Date Its General Partner MORAGA FUND 1, L.P. By: Moraga Partners, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date ACCELERATED HIGH YIELD INCOME FUND I, L.P. By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date ACCELERATED HIGH YIELD INCOME FUND II, L.P. By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date ACCELERATED HIGH YIELD GROWTH FUND I, L.P. By: MacKenzie Patterson, Inc., Its General Partner By: /s/ C.E. PATTERSON April 15, 1996 C.E. Patterson, President Date EXHIBIT INDEX Exhibit Description Page 1 Letter dated April 3, 1996 to De Anza Properties -X from Moraga Capital, LLC, Real Estate Securities Fund 1983, MacKenzie Fund III, Mackenzie Fund IV, MacKenzie Fund VI, MacKenzie Specified Income Fund, MacKenzie Patterson Special Fund, Previously Owned Partnerships Income Fund 2, Previously Owned Mortgage Partnerships Income Fund 3, L.P. and Vanderbilt Income and Growth Associates, L.L.C. 2 Letter dated April 3, 1996 to Mr. Herbert M. Gelfand, Chairman of the Board of De Anza Corporation, the Operating General Partner of De Anza Properties - X, from Moraga Capital, LLC 3 Letter dated April 10, 1996 to De Anza Properties - X from Skadden, Arps, Slate, Meagher & Flom EX-99 2 EXHIBIT 1 Exhibit 1 April 3, 1996 De Anza Properties - X c/o De Anza Corporation Operating General Partner 9171 Wilshire Boulevard, Suite 627 Beverly Hills, California 90210 Re: Meeting of the Limited Partners of De Anza Properties - X Ladies and Gentlemen: All capitalized terms used but not defined herein shall have the meanings set forth in the Third Amended and Restated Agreement of Limited Partnership of De Anza Properties - X, as amended (the "Partnership Agreement"). As you are aware, Moraga Capital, LLC ("Moraga Capital") is the beneficial owner of 1,652 Units of De Anza Properties - X, constituting approximately 7.3% of the outstanding Interests. In addition, each of the following entities (together with Moraga Capital, the "Affiliated Limited Partners") is the beneficial owner of the number of Units set forth opposite its name, constituting, in the aggregate, approximately 7.19% of the outstanding Interests: Entity Number of Units Real Estate Securities Fund 1983 10 MacKenzie Fund III 81 MacKenzie Fund V 281 MacKenzie Fund VI 402 MacKenzie Specified Income Fund 279 MacKenzie Patterson Special Fund 270 Previously Owned Partnerships Income Fund 2 231 Previously Owned Mortgage Partnerships Income Fund 3, L.P. 5 Vanderbilt Income and Growth Associates, L.L.C.5 Pursuant to Section 25.1 of the Partnership Agreement, the Affiliated Limited Partners hereby request that a meeting of the Limited Partners (the "Special Meeting") be called for the following purposes: 1. To consider and vote upon an amendment to the Partnership Agreement that would (a) delete Section 12.3.1 thereof and (b) provide that (i) any written property management agreement to be entered into by the Partnership with respect to any Property must be the subject of a competitive bidding process in which bids are solicited from not less than three nationally or regionally recognized apartment property management firms and (ii) any existing management agreement with respect to any Property that was not the subject of such a competitive bidding process be terminated as soon as practicable (but, in any event, no later than 60 days following the adoption of such amendment by the Limited Partners) and that the management of such Property following such termination be determined as specified in clause (i); 2. To consider and vote upon an amendment to the Partnership Agreement that would require that (a) the Partnership retain a qualified and experienced firm to provide administrative services to the Partnership that are necessary for the operation of the Partnership and its Properties, including, without limitation, bookkeeping, computer services and transfer services, such retention to be based upon a competitive bidding process in which bids are solicited from not less than three such firms and (b) any existing agreement, arrangement or understanding with respect to the provision of such services that constitutes an Interested Partner Transaction (without giving effect to the provisos contained in the definition of "Interested Partner Transaction") be terminated as soon as practicable (but, in any event, no later than 60 days following the adoption of such amendment by the Limited Partners) and that such services thereafter be provided in the manner specified in clause (a); 3. To consider and vote upon an amendment to the Partnership Agreement that would (a) insert the word "Limited" in two instances: (i) prior to the word "Partners" in the fifth line of Section 24.2 and (ii) prior to the word "Partner" in the penultimate line of Section 24.2; and 4. To consider and vote upon an amendment to the Partnership Agreement that would amend the relevant portions of Sections 10 and 11 of the Partnership Agreement such that (i) each time the percentage of Distributable Cash or Profits allocable to the General Partners is referenced as 23.6816%, such percentage would be reduced by 5% of such amount as of the last day of each month occurring in the period commencing 90 days following the adoption of such amendment and continuing until such time as the sole remaining Property has been sold and at least 95% of the proceeds attributable to such sale have been distributed to the Partners (any such reduction, a "Reduction Percentage") and (ii) each time the percentage of Distributable Cash or Profits allocable to the Limited Partners is referenced as 76.3184%, such percentage would be increased as of the last day of each month occurring in such period by the amount of the Reduction Percentage applicable to such month. Pursuant to Section 25.2 of the Partnership Agreement, the Affiliated Limited Partners hereby elect to set the record date for the Special Meeting. Upon your advising Moraga Capital of the date for the Special Meeting, the Affiliated Limited Partners will advise you of such record date. The address of Moraga Capital is: 1640 School Street, Suite 100, Moraga, California 94556. Pursuant to Section 22.1 of the Partnership Agreement, the Affiliated Partners hereby request the opportunity to inspect and copy the books and records of the Partnership referred to in such Section. A representative of the Affiliated Partners will notify you shortly of proposed dates and times for such inspection. Very truly yours, Moraga Capital, LLC By: /s/ C. E. Patterson Name: C. E. Patterson Title: Member Real Estate Securities Fund 1983 By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP MacKenzie Fund III By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP MacKenzie Fund V By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP MacKenzie Fund VI By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP MacKenzie Specified Income Fund By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP MacKenzie Patterson Special Fund By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP Previously Owned Partnerships Income Fund 2 By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP Previously Owned Mortgage Partnerships Income Fund 3, L.P. By: /s/ C. E. Patterson Name: C. E. Patterson Title: President of GP Vanderbilt Income and Growth Associates, L.L.C. By: /s/ Michael L. Ashner Name: Michael L. Ashner Title: Managing Director EX-99 3 EXHIBIT 2 Exhibit 2 MORAGA CAPITAL LLC 1640 School Street, Suite 100 Moraga, California 94556 April 3, 1996 Mr. Herbert M. Gelfand Chairman of the Board De Anza Corporation Operating General Partner De Anza Properties - X 9171 Wilshire Boulevard, Suite 627 Beverly Hills, California 90210 Re: De Anza Properties - X Dear Mr. Gelfand: Enclosed is a letter from the undersigned and certain other limited partners of De Anza Properties - X requesting a meeting of the limited partners of De Anza Properties - X. The reasons for calling the meeting, which are spelled out more fully in the enclosed letter, relate to: * entering into a new management contract for the Woodbridge Meadows Apartments with a nationally or regionally recognized, experienced and qualified apartment property management firm following a competitive bidding process; * entering into an arrangement with a real estate syndication firm to provide administrative services to the partnership that are necessary for the operation of the partnership and its properties; * amending Section 24.2 of the partnership agreement to require that the consent of a limited partner to be adversely affected is required in the case of an amendment to alter the interest of a limited partner in profits or losses or in distributable cash or sale or refinancing proceeds; and * amending the allocation of profits and distributable cash as between the general partners and the limited partners such that the interest of the general partners, which is currently 23.6816%, would be reduced by 5% of such amount as of the last day of each month occurring in the period commencing 90 days after the adoption of such amendment and continuing until such time as the partnership's sole remaining property has been sold and at least 95% of the proceeds attributable to such sale have been distributed to the partners, and the interest of the limited partners would be increased as of the last day of each month occurring in such period by the amount of each such reduction. The first two proposed amendments referenced above relate to improving the economics of De Anza Properties - X for the benefit of all the partners of De Anza Properties - X. The Affiliated Partners (as such term is defined in the enclosed letter) believe that the terms of the property management and administrative arrangements that are currently in place at De Anza Properties - X can be replaced with comparable services provided by unaffiliated third parties at significant cost savings. In particular, we believe that various property management firms would be willing to assume the management of the Woodbridge Meadows Apartments for a fee equal to 4% of the aggregate gross receipts from the operation of the property without the need for any additional reimbursable cost or expense. Further, we believe that the administration of De Anza Properties - X by the Operating General Partner is an uneconomical endeavor, and that significant economies of scale could be recognized if administrative services were provided by a third party that provides similar services to other limited partnerships. We estimate that the cost savings that could be realized from these two areas would allow the dividend rate for the partnership to be increased from the current rate of 6% to approximately 10%. As to the latter two proposed amendments, the Affiliated Partners believe that the allocation of distributable cash and profits to the general partners is too high, as any future growth in value disproportionately benefits the general partners. We also believe that Woodbridge Meadows Apartments, the sole remaining real property owned by the partnership, should be sold in an expeditious manner. Further, we believe that the proposed reduction is an equitable one since it would not take effect until three months following its adoption and would then be implemented in steps on a monthly basis, creating an incentive for the general partners to arrange for the sale of the Woodbridge Meadows property and to distribute the proceeds therefrom in an expeditious manner. Representatives of the Affiliated Partners would be happy to meet with you to discuss the proposed amendments after you have had an opportunity to review the enclosed letter. You may contact the undersigned by telephone at (516) 822-0022, or, if you prefer, your counsel may contact James E. Lyons of Skadden, Arps, Slate, Meagher & Flom, counsel to the undersigned. Very truly yours, Moraga Capital, LLC By: /s/ Michael L. Ashner Name: Michael L. Ashner Title: Member EX-99 4 EXHIBIT 3 Exhibit 3 April 10, 1996 De Anza Properties - X c/o De Anza Corporation Operating General Partner 9171 Wilshire Boulevard, Suite 627 Beverly Hills, California 90210 Attention: Wendy Glenn Re: Withdrawal of Request for Special Meeting of the Limited Partners of De Anza Properties - X Ladies and Gentlemen: I am writing on behalf of our client, Moraga Capital, LLC ("Moraga Capital"). All capitalized terms used but not defined herein shall have the meanings set forth in the Request Letter (as defined below). By letter dated April 3, 1996 to De Anza Properties - X (the "Request Letter"), Moraga Capital and the other Affiliated Limited Partners requested that a Special Meeting of the Limited Partners of De Anza Properties - X be called for the purposes set forth in the Request Letter. Moraga Capital and the other Affiliated Limited Partners have authorized us to hereby withdraw the Request Letter, without prejudice to reinstating the Request Letter in the future. The Affiliated Limited Partners understand that, if they should determine to request the reinstatement of the Request Letter, you will provide the notice to the partners of De Anza Properties - X contemplated by the third sentence of Section 25.1 of the Partnership Agreement within five business days' of such a request (notwithstanding the requirement of such Section 25.1 that such notice be provided within 10 days of receipt of a written request). Please acknowledge your agreement with the foregoing by signing in the space indicated below and returning a copy of this letter to the undersigned. Very truly yours, /s/ James E. Lyons James E. Lyons Accepted and agreed as of the date first above written De Anza Properties - X By:__________________________ Name: Title: cc: Moraga Capital, LLC -----END PRIVACY-ENHANCED MESSAGE-----