-----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, ExJtmSVuLdOTGNUBOItDzDIvRcSdFWEjBVbjlG1o6k9bUDwPNR4wdeGi6rz84krO 0xn1pAVj7RU/Rl8vZoZQPg== 0001037955-05-000007.txt : 20060817 0001037955-05-000007.hdr.sgml : 20060817 20050630171523 ACCESSION NUMBER: 0001037955-05-000007 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050630 DATE AS OF CHANGE: 20060206 GROUP MEMBERS: EVEREST PROPERTIES II, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN REPUBLIC REALTY FUND I CENTRAL INDEX KEY: 0000711512 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 391421936 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-55579 FILM NUMBER: 05929416 BUSINESS ADDRESS: STREET 1: 2800 N DALLAS PKWY STREET 2: #100 CITY: PLANO STATE: TX ZIP: 75093-4707 BUSINESS PHONE: 9728368010 MAIL ADDRESS: STREET 1: 2800 N DALLAS PKWY STREET 2: #100 CITY: PLANO STATE: TX ZIP: 75093-4707 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EVEREST PROPERTIES II LLC CENTRAL INDEX KEY: 0001037955 IRS NUMBER: 954599059 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 199 S. LOS ROBLES AVE STREET 2: SUITE 200 CITY: PASADENA STATE: CA ZIP: 91101 BUSINESS PHONE: 6265855920 MAIL ADDRESS: STREET 1: 199 S. LOS ROBLES AVE STREET 2: SUITE 200 CITY: PASADENA STATE: CA ZIP: 91101 SC TO-T/A 1 americanrep_sctota063005.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------- SCHEDULE TO (Amendment No. 1) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AMERICAN REPUBLIC REALTY FUND I - -------------------------------------------------------------------------------- (Name of Subject Company [Issuer]) Everest Properties II, LLC (offeror) - -------------------------------------------------------------------------------- (Filing Persons) Units of Limited Partnership Interest - -------------------------------------------------------------------------------- (Title of Class of Securities) None - -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) Christopher K. Davis Everest Properties II, LLC 199 S. Los Robles Ave., Suite 200 Pasadena, CA 91101 Telephone (626) 585-5920 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) CALCULATION OF FILING FEE - -------------------------------------------------------------------------------- Transaction Valuation: $300,000(1) Amount of Filing Fee: $60(2) - -------------------------------------------------------------------------------- (1) Calculated as the product of the number of Units on which the Offer is made and the gross cash price per Unit. (2) Already paid. [ ] 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: Not Applicable Filing party: Not Applicable Form or registration no.: Not Applicable Date filed: Not Applicable [ ] Check 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: [ ] This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO (the "Schedule TO") filed by Everest Properties II, L.P. ("Everest" or the "Purchaser"), a California limited partnership, to purchase up to 1,500 units ("Units") of limited partnership interests in AMERICAN REPUBLIC REALTY FUND I (the "Partnership"), as set forth in the Schedule TO. Capitalized terms used but not defined herein have the meaning ascribed to them in the Offer to Purchase filed as Exhibit 12.1 to the Schedule TO (the "Offer to Purchase"). ITEM 11. ADDITIONAL INFORMATION. The response to Item 11 is hereby amended and supplemented with the following changes to the Offer to Purchase: DETAILS OF THE OFFER 5. Withdrawal Rights. The first sentence of the first paragraph of the section is amended and restated in its entirety as follows: "Tenders of Units made pursuant to the Offer are irrevocable, except that Units tendered pursuant to the Offer may be withdrawn at any time on or prior to the Expiration Date and, unless already accepted for payment by the Purchaser pursuant to the Offer, may also be withdrawn at any time after August 1, 2005." 7. Conditions of the Offer. In subsection (d), the phrase "results of operations or prospects" is hereby replaced with "or results of operations". CERTAIN INFORMATION CONCERNING THE PARTNERSHIP Trading History of the Units. The following sentence is hereby added to the end of the section. "Except for the block purchase described below in `Certain Information Concerning the Purchaser - Prior Acquisitions of Units and Prior Contacts' the Purchaser is not aware of any trades of units that were not reported in the Direct Investment Spectrum." CERTAIN INFORMATION CONCERNING THE PURCHASER Prior Acquisitions of Units and Prior Contacts. The following sentence is hereby added to the end of the first paragraph of the section. "In October 2004, Everest Management, LLC, acquired 1,637 Units in a block purchase, for $225 per Unit." FUTURE PLANS OF THE PURCHASER The first sentence of the second paragraph of the section is hereby amended and restated in its entirety as follows. "Other than as set forth above, the Purchaser does not currently intend to change current management, indebtedness, capitalization, corporate structure or business operations of the Partnership or to seek to influence the management and affairs of the Partnership, and does not have current plans for any extraordinary transaction such as a merger, reorganization, liquidation or sale or transfer of assets involving the Partnership." FEDERAL INCOME TAX MATTERS The first sentence of the section is hereby amended and restated in its entirety as follows. "The following summary is a general discussion of the principal federal income tax consequences of a sale of Units pursuant to the Offer." The response to Item 11 is hereby further amended and supplemented by the Letter to Unit Holders dated June 30, 2005 (Exhibit 12.4 to the Schedule TO), which is incorporated herein by reference. ITEM 12. EXHIBITS. 12.4 Letter to Unit Holders dated June 30, 2005. 12.5 Press Release dated June 30, 2005. 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: June 30, 2005 EVEREST PROPERTIES II, LLC By: /S/ DAVID I. LESSER ------------------------ David I. Lesser Executive Vice President EX-99 3 amrep_sctota063005exh4.txt LETTER June 30, 2005 TO HOLDERS OF UNITS OF AMERICAN REPUBLIC REALTY FUND I Re: Offer to Purchase Units for $200 Per Unit Dear Unit Holder: Enclosed is an amendment relating to our OFFER TO PURCHASE up to 1,500 Units of limited partnership interests in AMERICAN REPUBLIC REALTY FUND I (the "Partnership") at a cash purchase price of $200 per Unit, without interest, less the amount of distributions made to you after the date of the Offer and less any transfer fees imposed by the Partnership for each transfer, which the Partnership advises us are $50 per transfer (regardless of the number of units transferred). Please consider the following points, which are discussed in greater detail in the Offer to Purchase that was sent to you previously, as amended and supplemented by the enclosures: o The Offer is $25 per Unit (14%) more than the highest prior third-party offer for Units of which Purchaser is aware (which we made on July 2, 2004), based on a review of public SEC filings. In a private purchase, the Purchaser's affiliate acquired a substantial block of Units for $225 per Unit, in October 2004. o The Partnership's reported 2004 revenue is down by more than $219,000 compared to 2003 revenue and vacancy at its properties has increased. o The Partnership will not be required to terminate before December 31, 2012, unless a majority of the limited partners approve an earlier dissolution or an event occurs that would require a dissolution, according to the Partnership's limited partnership agreement, and, according to the Partnership's public reports, the termination date can be extended if certain events occur. o You may be able to obtain a tax benefit by selling if you have accumulated passive losses that you can use once you have disposed of your investment in the Partnership; you should consult your tax advisor about this possibility. We urge you to read the Offer to Purchase completely and to return your completed Agreement of Transfer and Letter of Transmittal promptly (blue form) in the envelope provided. The Offer is now scheduled to expire on July 18, 2005. For answers to any questions you might have regarding these materials or our Offer, or assistance in the procedures for accepting our Offer and tendering your Units, please contact us at (800) 611-4613 (toll free). Very truly yours, EVEREST PROPERTIES II, LLC EX-99 4 amrep_sctota063005ex5.txt PRESS RELEASE EVEREST PROPERTIES II, LLC 199 S. Los Robles Avenue, Suite 200 Pasadena, CA 91101 CONTACT: Chris Davis or Stacey McClain of Everest Properties II, LLC (626)585-5920 FOR IMMEDIATE RELEASE PASADENA, CALIFORNIA, June 30, 2005 - Everest Properties II, LLC today announced that it has extended the expiration date of its outstanding tender offer for limited partnership interests in American Republic Realty Fund I, L.P. The expiration date for the tender offer has been extended to 5:00 p.m., Los Angeles time, on Monday, July 18, 2005. The offer was previously scheduled to expire at 5:00 p.m., Los Angeles time, on Friday, July 8, 2005. Everest reported that approximately 223 units have been deposited to date in response to the offer. CORRESP 5 filename5.txt June 30, 2005 Via Facsimile: (202) 772-9203 and submitted via EDGAR Abby Adams Office of Mergers and Acquisitions Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549-0303 Re: American Republic Realty Fund I Schedule TO-T filed June 2, 2005, by Everest Properties II, LLC Dear Ms. Adams: This letter responds to the Staff's comments conveyed in your letter of June 10, 2005. Numbered paragraphs below correspond to the numbered paragraphs in your letter. 1. In response to the comment, the offer has been amended in "Future Plans of the Purchaser" to clarify that there is no current intention to seek to influence the management and affairs of the Partnership. The offeror's financial statements are not material to persons considering the Offer, for the following reasons. The distinction made in the instruction to Item 10 between full and partial tender offers is meaningless in all-cash offers. Whether an all-cash offer is for all of the class of securities or only part of the class does not affect the materiality of the financial statements to security holders receiving the offer, who in both cases must choose between selling or continuing to hold. For persons who would sell, the offer is for cash, so the reasonable selling investor would only be concerned with the bidder's current source of funding to pay for the selling investors' units. That information is disclosed in "Source of Funds," stating "cash and cash equivalents." Beyond that disclosure, the financial position of the bidder and its historical operating results are irrelevant, as the instructions to Item 10 implicitly acknowledge by deeming such financials immaterial when the offer is for all of the securities of the class. For persons who will continue to hold the security (either because they choose not to tender or they get prorated), Purchaser does not believe its financial statements are material to persons considering the Offer. Limited partnership agreements in general, and this Partnership's specific limited partnership agreement, require any approval by limited partners to be made by an actual majority of the outstanding securities (as opposed to a majority of a quorum). Therefore, the general partner has sole legal and practical control over the partnership until a limited partner (or a `group') has more than 50% of the limited partner interests, because only then could a limited partner (or group) remove the general partner at will. Even ownership of a 39% position would give the Purchaser and affiliates no greater influence or control over the Partnership's management and affairs than the limited partner with the smallest position. This is true because there is no board of directors to which a director may be elected by someone with a large (but not majority) position. Even if a 39% limited partner could be considered a "dominant security holder," which Purchaser would dispute, the statement made in Note 195 of Exchange Act Release No. 42055, does not present any logical connection between the financial position or performance of a "dominant or controlling security holder" and what that security holder might do with its influence or control. How would knowing the financial information of such an influential security holder assist a co-owner in predicting what that influential security holder might do later with its influence? Financial statements of the bidder would not really provide security holders with a meaningful ability to predict the future actions of that influential security holder any better than they could without the financial statements. The foregoing reasoning is supported by the fact that Schedule 13D, which sets forth the disclosure requirements by which security holders will be able to understand and attempt to predict what a dominant security holder might do with its position of influence, does not require financial statements.[FN1] For the foregoing reasons, the financial statements of the Purchaser are immaterial to security holders considering the offer, whether they end up selling or holding the securities. - ------------ [1] I recognize the irony of this observation given Everest Management's delinquency in making its Schedule 13D filing, which is being redressed concurrently herewith. 2. In response to the comment, the offer has been amended in "Certain Information Concerning the Partnership - Trading History of the Units" and in "Certain Information Concerning the Purchaser - Prior Acquisitions of Units and Prior Contacts." Please also see the response herein to Comment 5. 3. In response to the comment, the offer has been amended in "Withdrawal Rights." 4. In response to the comment, the offer has been amended in "Conditions of the Offer." 5. Everest Management, LLC increased its holdings through a single, private block purchase. Details of the transaction are being included in the offer by the amendment being made concurrently herewith. An amended Schedule 13D is also being filed concurrently herewith. We acknowledge the Staff's admonition expressed in the comment and supplementally inform you that no interim acquisitions or votes of the securities have occurred. 6. As set forth in the section identified in the comment, the Purchaser is unable to make that determination. Only the general partner of the partnership would have the information necessary to make such determination. The process that bidder would apply if bidder is notified by the general partner that a tax termination could occur is set forth in "Terms of the Offer; Expiration Date; Proration" which refers to the possibility that "transfers of Units are limited by the Partnership Agreement to a number of Units (the "Transfer Limit") less than 1,500 Units, and the number of Units that are Properly Tendered exceeds the Transfer Limit . . . ." That description addresses the technical (although unlikely) possibility of a limit on transfers being imposed in order to avoid a tax termination. It is not really a condition to the offer because the bidder would accept the number of units that it could, up to such Transfer Limit (if imposed). 7. We do not believe this comment is appropriate because, by definition, any description of tax consequences to a group of individuals who have different individual tax situations is a "general discussion," i.e., not specific to the individual. In addition, the reference to "certain" tax consequences is also appropriate - it is not possible, or even helpful, to explain exhaustively all possible tax consequences. However, in response to the comment, we have revised the introductory statement to describe the section as "a general discussion of the principal federal income tax consequences." Furthermore, we disagree that security holders are entitled to rely on the tax consequences disclosure to determine their individual tax consequences - they must obtain advice from their own tax attorney or accountant or analyze their own circumstances to understand the actual tax consequences to them. A bidder does not become a security holder's tax advisor by making an offer. Closing paragraphs: While acknowledging the Staff's positions, and without implying any specific issue with such position, we respectfully decline to make the statements requested. There is no requirement that we do so. To the extent the requested statements are accurate statements of applicable law, there is no reason to obtain from bidders a recitation of such law. To the extent the statements go beyond applicable law or reflect interpretations of law that may be open to dispute, it would not be fair or appropriate to require bidders to make statements that might prejudice their right to take a contrary position at some later time, if the occasion arose. We are filing an amendment concurrently with this letter and disseminating it to the Unit Holders in the same manner as the initial materials were disseminated. Please contact the undersigned if you have any questions regarding our responses to the Staff's comments and to advise us if the Staff has any further comments. Very truly yours, /S/ Christopher K. Davis ------------------------ Christopher K. Davis Vice President and General Counsel CKD:ckd -----END PRIVACY-ENHANCED MESSAGE-----