-----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, D8Qkoor1anD+qqnTp3k2Hiymd3T/h4fl4zvwp2QyzPTNylfUlgXNh4KpcG7pSEb/ 1/Z08a7UeP/YS+4ozL077Q== 0001037955-05-000024.txt : 20061003 0001037955-05-000024.hdr.sgml : 20061003 20051206171932 ACCESSION NUMBER: 0001037955-05-000024 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051206 DATE AS OF CHANGE: 20060217 GROUP MEMBERS: DIXON MILL INVESTOR, LLC GROUP MEMBERS: EVEREST PROPERTIES II, LLC GROUP MEMBERS: MPF PACIFIC GATEWAY, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WILDER RICHMAN HISTORIC PROPERTIES II LP CENTRAL INDEX KEY: 0000827830 STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF APARTMENT BUILDINGS [6513] IRS NUMBER: 133481443 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79056 FILM NUMBER: 051247773 BUSINESS ADDRESS: STREET 1: 599 W PUTNAM AVENUE STREET 2: C/O RICHMAN GROUP INC CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2038690900 MAIL ADDRESS: STREET 1: 599 WEST PUTNAM AVENUE STREET 2: C/O RICHMAN GROUP INC CITY: GREENWICH STATE: CT ZIP: 06830 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 wilder2_sctota120605amd1.txt AMD NO.1 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 Wilder Richman Historic Properties II, L.P. - -------------------------------------------------------------------------------- (Name of Subject Company [Issuer]) Everest Properties II, LLC (offeror) Dixon Mill Investor, LLC (offeror) MPF Pacific Gateway, 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: $8,170,000(1) Amount of Filing Fee: $1,634 - -------------------------------------------------------------------------------- (1) Calculated as the product of the total Units available for purchase 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, LLC, a California limited liability company ("Everest"), Dixon Mill Investor, LLC, a New Jersey limited liability company ("Dixon"), and MPF Pacific Gateway, LLC, a California limited liability company ("MPF") (Everest, Dixon and MPF are referred to herein as the "Purchasers"), to purchase ALL Units of limited partnership interests ("Units") not already held by Purchasers and their affiliates in Wilder Richman Historic Properties II, L.P. (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: SUMMARY OF THE OFFER The last bullet point of the original section is hereby amended and restated in its entirety as follows: o "Unit Holders who sell all of their Units will also eliminate the need to file Form K-1 information for the Partnership with their federal tax returns for years after 2005, if their transfer is recognized by the end of 2005. The General Partner has confirmed to the Purchasers that it will recognize transfers submitted in December 2005, including submissions by facsimile, as year-end transfers, which will enable the Partnership to issue a final K-1 to the transferring Unit Holder for their 2005 tax return. If the Purchasers extend the Expiration Date to a date that would not allow the Purchasers to submit transfers in December 2005, or if the Purchaser becomes aware of any other reason that Unit Holders may not obtain a year-end transfer and a final K-1 for 2005, the Purchasers will disseminate additional tender offer materials to Unit Holders to advise them of such development and the effect thereof." The bullet points are supplemented by adding the following bullet point. o "The Operating General Partner and Dixon are under common control with each other, but neither are in an affiliate relationship with the Partnership or its General Partner. The Operating General Partner pays bills, collects rents and handles day to day real estate management issues, but does not have any decision-making authority or responsibility with respect to the Partnership. Decisions of the Partnership, including, for example, acquisitions or dispositions by the Partnership or approval of transfers of interests in the Partnership, are made by the General Partner (with a vote of the limited partners, where required). None of the Purchasers or the Operating General Partner has any control over the General Partner of the Partnership, or shares any equity owners, officers, directors or control persons with the General Partner of the Partnership." DETAILS OF THE OFFER 1. Terms of the Offer; Expiration Date; Proration. The third paragraph of the Section is hereby amended and restated in its entirety as follows. "The Purchasers will accept for payment ALL Properly Tendered Units. References in this Offer to Purchase to proration or the effects of proration may be disregarded." 2. Acceptance for Payment and Payment of Purchase Price. Clause (iii) in the first paragraph of the Section is hereby amended and supplemented by adding to the end of the clause the following: "or the General Partner confirms ownership of and changes the distribution address for the Units". 6. Extension of Tender Period; Amendment. The second bullet point in the Section is hereby deleted in its entirety. EFFECTS OF THE OFFER Limitations on Resales. The subsection is hereby amended and restated in its entirety as follows. "The Partnership Agreement prohibits a transfer of Units if the transfer would result in 50% or more of the Units being transferred in a 12 month period (a "Tax Termination"). This provision may limit sales of Units on the secondary market and in private transactions following completion of the Offer. Because 75 Units were transferred to the Purchasers or their affiliates within the last 12 months, there is also a theoretical possibility that enough Units could be tendered pursuant to this Offer to cause a Tax Termination, although the Purchasers believe such possibility is minimal due to the small number of outstanding Units of the Partnership, the absence of any trading activity reported in the Direct Investment Spectrum, and the Purchasers' estimate that approximately 325 Units would have to be tendered pursuant to this Offer to cause a Tax Termination. In such case, the Partnership may delay recognition of transfers of Units that would result in a Tax Termination, or the General Partner may elect to accept such transfers if the General Partner determines that the actual effect of such a Tax Termination is not material to the Partnership or remaining Unit Holders." CERTAIN INFORMATION CONCERNING THE PARTNERSHIP The introductory first paragraph of the section is hereby amended and restated in its entirety as follows. "For information about the Partnership, please refer to the annual report prepared and distributed by the Partnership, particularly Items 1 and 2 of the Partnership's Form 10-K for the fiscal year ended February 29, 2004 (the "Form 10-K"), any subsequent Quarterly Reports on Form 10-Q, and any other materials sent to you by the Partnership. These documents contain and periodically update information concerning the Partnership, including detailed information regarding the properties owned, including mortgages, rental rates, operations, management, and taxes. In addition, the Partnership is subject to the information and reporting requirements of the Exchange Act and information about the Partnership can be obtained on the Commission's EDGAR system, at its internet web site at www.sec.gov, and are available for inspection at the Commission's principal office in Washington, D.C., at Station Place, 100 F Street, N.E., Washington, D.C. 20549." General. The subsection entitled "General" is hereby deleted in its entirety. Selected Financial and Property Related Data. The first paragraph of the subsection is hereby deleted in its entirety. APPENDIX A Appendix A is hereby deleted in its entirety from the Offer to Purchase. ITEM 12. EXHIBITS. 12.5 Letter to Unit Holders dated December 6, 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: December 6, 2005 EVEREST PROPERTIES II, LLC By: /S/ DAVID I. LESSER ------------------------ David I. Lesser Executive Vice President DIXON MILL INVESTOR, LLC By: /S/ MARK M. BAVA --------------------- Mark M. Bava Authorized Agent MPF PACIFIC GATEWAY, LLC By: MacKenzie Patterson Fuller, Inc., Manager By: /S/ CHIP PATTERSON --------------------- Chip Patterson Senior Vice President EX-99 3 wilder2_sctota120605exhltr.txt EXH 12.5 LETTER TO UNIT HOLDERS DATED 12-6-05 EVEREST 199 S. LOS ROBLES AVE., #200 PASADENA, CA 91101 TEL: 626-585-5920 FAX: 626-585-5929 December 6, 2005 TO HOLDERS OF UNITS OF WILDER RICHMAN HISTORIC PROPERTIES II, L.P. Re: Offer to Purchase Units for $20,000 Per Unit Dear Unit Holder: We are writing to provide you with updated and supplemental information regarding our Offer to Purchase your Units of limited partnership interests in Wilder Richman Historic Properties II, L.P. (the "Partnership"), dated November 14, 2005. o The General Partner of the Partnership has made no recommendation regarding our Offer. The Offer price is $9,200 (85%) more than the estimated distributions that Unit Holders would receive from a sale of the Partnership's property at the prices offered between 2002 and 2005. o There is no assurance that anyone will consider the property to have condominium conversion potential, that high prices for such properties will continue, or that the Partnership's property could obtain a price that would pay Unit Holders the same or more than the Offer price. Therefore, Unit Holders should make their own decisions based on their own personal views and considerations. o Unit Holders who sell all of their Units will also eliminate the need to file Form K-1 information for the Partnership with their federal tax returns for years after 2005, if their transfer is recognized by the end of 2005. The General Partner has confirmed to the Purchasers that it will recognize transfers submitted in December 2005, including submissions by facsimile, as year-end transfers, which will enable the Partnership to issue a final K-1 to the transferring Unit Holder for their 2005 tax return. o The Partnership recently sent to Unit Holders its Annual Report on Form 10-K for the fiscal year ended February 29, 2004. We urge you to read the Offer to Purchase and the enclosed amendment completely and to return your completed Agreement of Transfer and Letter of Transmittal promptly (yellow form) in the envelope provided. The Offer is scheduled to expire on December 20, 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 DIXON MILL INVESTOR, LLC MPF PACIFIC GATEWAY, LLC CORRESP 4 filename4.txt EVEREST 199 S. LOS ROBLES AVE., #200 PASADENA, CA 91101 December 5, 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. 20549-3628 Re: Wilder Richman Historic Properties II (the "Partnership") Schedule TO-T filed by Everest Properties II, LLC on November 14, 2005 Dear Ms. Adams: This letter responds to the Staff's comments conveyed in your letter of November 23, 2005. Numbered paragraphs below correspond to the numbered paragraphs in your letter. 1. The clause quoted in the comment, "otherwise not affiliated," means simply that, other than owning limited partner units in the Partnership, Dixon Mill Investor, LLC (the "Dixon Bidder") has no relation to the Partnership. As disclosed in the Offer to Purchase, members of the Dixon Bidder are shareholders of Dixon Venture Corp., the operating general partner of the Partnership. Dixon Venture Corp. and the Dixon Bidder are under common control with each other, but neither are in an affiliate relationship with the Partnership or its General Partner. Dixon Venture Corp. acts as the operating general partner at the property and operating level partnerships by paying bills, collecting rents and handling day to day real estate management issues, but does not have any decision-making authority or responsibility with respect to the Partnership. Decisions of the Partnership, including, for example, acquisitions or dispositions by the Partnership or approval of transfers of interests in the Partnership, are made by the General Partner (with a vote of the limited partners, where required). None of the bidders or the operating general partner has any control over the Partnership's General Partner or shares any equity owners, officers, directors or control persons with such General Partner. In response to the comment, the Offer to Purchase has been amended in "Summary of the Offer." 2. The subject partnership has just filed its Form 10-K for 2004. At the time the Offer was filed, the bidders had access to the information for 2004 that the bidders presented in the Offer to Purchase under Appendix A - Selected Financial Data - Combined Operating Partnerships, which information had not been in prior filings. The bidders did not have more recent information regarding the number of shares outstanding, although it appears from the Form 10-K for 2004 that the number has not changed. 3. Please see our response paragraph 1. Analyzing our status prior to commencement of the offer, pursuant to Rule 13e-3(a)(1), no bidder is an affiliate for the following reasons. No bidder is, directly or indirectly, in control of, controlled by or under common control with the Partnership or its General Partner. To elaborate, no bidder has influence or control over the management or policies of the Partnership. As a limited partner, no bidder has powers to act under the limited partnership agreement of the subject partnership or to cause the Partnership or its general partner to take, or desist from taking, any action, except each bidder may vote as any other limited partner may vote on matters that may be submitted to the limited partners for approval. This Partnership's limited partnership agreement requires any approval by limited partners to be made by 51% of the outstanding securities (as opposed to a majority of a quorum). There are no provisions in this Partnership's limited partnership agreement that allow a lesser vote to constitute an approval of the limited partners. Therefore, the General Partner has sole legal and practical control over the Partnership. There is no board of directors to which a director may be elected by someone with a large (but not majority) position. Further, the General Partner does not consult with any bidder in any way, or seek our informal approval or input on any matters whatsoever. In fact, if a bidder participated in the Partnership's management in that way, it would risk losing its limited liability status as a limited partner by becoming a de facto general partner. The bidders do not request, nor to our knowledge does any bidder receive, any information from the General Partner that is not made equally available to any limited partner. 4. In response to the comment, the Offer to Purchase is being amended in "Details of the Offer - 1. Terms of the Offer; Expiration Date; Proration; and - 2. Acceptance for Payment and Payment of Purchase Price" and in Effects of the Offer - Limitations on Resales" to clarify that, notwithstanding the Partnership Agreement provisions, the bidders will accept all Units that are tendered pursuant to the terms of the Offer and pay promptly after the General Partner confirms ownership and changes the distribution address. Thus, the Partnership Agreement will not restrict the number of Units purchased. 5. Please see response paragraph 4, above. 6. In response to the comment, the bullet point identified in the comment is being amended. 7. In response to the comment, the Offer is being amended to delete the bullet point identified in the comment. 8. and 9. We respectfully submit that these comments are inappropriate because, as comment 9 recognizes, the relevant inquiry is whether a condition to an offer is within the direct or indirect control of the bidder, or is adequately objective so that the offer is not illusory. The relevant inquiry is not whether a condition can be verified by a security holder independently, while the Offer is pending. None of the conditions are within the direct or indirect control of the bidders, and we do not believe the conditions are so broad as to make the Offer illusory or unclear. Nonetheless, we hereby confirm our understanding of the Staff's previously stated position that we must promptly advise Unit Holders as to how we intend to proceed if we become aware of an event that we believe implicates a condition. If the bidders claimed the existence of a condition that would permit termination of the offer, objective verification would be possible at that time. For example, referring to the conditions specifically cited in the Staff's comments: condition (a)(iv) is prefaced by: "a preliminary or permanent injunction or other order of any federal or state court, government, administrative agency or other governmental authority shall have been issued and shall remain in effect which . . . ," therefore, a public record would be available to verify the triggering event; condition (f), similarly, requires that there shall have been "threatened, instituted or pending any action or proceeding before any court or governmental agency or other regulatory or administrative agency or commission or by any other person," which could be verified objectively by public records or by the party who made the threat; condition (c) requires that "there shall be any authorization, consent, order of, or filing with, or expiration of waiting periods imposed by, any court, government, administrative agency or other governmental authority," which could be verified objectively by public records or by the applicable government agency; condition (d) requires one of the following: (1) an event to occur, be disclosed or be threatened, which is verifiable by the actual occurrence or disclosure of the event, or in the case of a threatened event, by public information (e.g., a hurricane), by public record (e.g., a proposed law) or other means that would depend on the type of threatened event; (2) a lien, which is objectively verifiable through public records or through documents; or (3) the disclosure of a previously undisclosed fact, which is objectively demonstrated by the making of the new disclosure and a review of prior disclosure to see that it was not previously made (the Staff misstated this condition when paraphrasing it in comment 9). Although some conditions may also involve an element of reasonable judgment by the bidders, such as a material adverse effect on the Partnership, we believe that each condition is adequately objective to permit a Unit Holder to verify whether or not the condition was met, if asserted by the bidders. 10. We respectfully submit that this comment is not appropriate because it misstates the requirement of Item 1004(a)(xii) of Regulation M-A and it asks the bidders to include in the Offer a statement of warranty that is neither required nor appropriate. The item requires disclosure of "[t]he federal income tax consequences of the transaction, if [such tax consequences are] material." The "transaction" is the acquisition by bidder of all the Units of Limited Partnership Interest, for cash. We do not believe there are any federal income tax consequences to the target registrant of that transaction, other than the potential tax termination effect that is described. The description of tax consequences to the Unit Holders that is set forth in the Offer is provided as a courtesy to security holders, consistent with common practice. Even if the Staff believes that Item 1004(a)(xii) requires disclosure of the federal income tax consequences to the Unit Holders of selling their Units, if such tax consequences are material, tax consequences to the Unit Holders are described in the Offer to Purchase. Therefore, the bidders have either succeeded or failed to satisfy the requirement to state "[t]he federal income tax consequences of the transaction," which success or failure is not changed by a statement claiming that the bidder has "disclosed all material federal tax consequences of the transaction." There is no requirement that the bidders make such a specific warranty statement to security holders regarding the tax disclosure, just as there is no requirement that such a specific warranty statement be made to security holders regarding any particular topic for which disclosure is required or is made. 11. We respectfully submit that the comment is not appropriate because the Staff incorrectly infers that we claim we "are not responsible for the accuracy of the information . . . in [our] offering materials." No such statement is made or implied in Appendix A. In any event, the Offer is being amended to delete Appendix A and instead refer to the Form 10-K recently filed by the Partnership, which renders the comment moot. 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. We do not believe that the amendment materially changes the information already provided to the Unit Holders, although a copy of the amendment is being delivered with the letter included as Exhibit 12.5. 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 Enclosures with fax copy cc w/e: Mark Bava (Dixon) Chip Patterson (MPF) -----END PRIVACY-ENHANCED MESSAGE-----