SEC Company Response from REAL ESTATE ASSOCIATES — Jul 7, 2005
REAL ESTATE ASSOCIATES LTD/CA (CIK 0000225789)
Date: July 7, 2005 · CIK: 0000225789 · Accession: 0000711642-05-000290
AI Filing Summary & Sentiment
Referenced dates: April 14, 2005, June 8, 2005
Letter
Re: Real Estate Associates Limited/CA, II, III, IV, V, VI and VII Form 10-KSB for the year ended December 31, 2004 File No. 0-09262, 0-09782, 0-10673, 0-12439, 0-12438, 0-13112 and 0-13810
REAL ESTATE ASSOCIATES LIMITED/CA, II, III, IV, V, VI and VII 55 Beattie Place, P.O. Box 1089 Greenville, SC 29602
July 7, 2005
Correspondence Filing Via Edgar and Overnight Delivery
United States Securities and Exchange Commission Division of Corporation Finance Mail Stop 4561 450 Fifth Street, NW Washington, D.C. 20549 Attn: Mr. Daniel Gordon
Ladies and Gentlemen:
This letter responds to the comments of the staff of the Securities and Exchange Commission (the "Staff") addressed to Real Estate Associates Limited/CA ("REAL"), Real Estate Associates Limited II ("REAL II"), Real Estate Associates Limited III ("REAL III"), Real Estate Associates Limited IV ("REAL IV"), Real Estate Associates Limited V ("REAL V"), Real Estate Associates Limited VI ("REAL VI") and Real Estate Associates Limited VII ("REAL VII"), California limited partnerships (collectively the "Partnerships"), in a letter dated June 8, 2005, which was sent in response to the Partnerships' May 10, 2005 response to the Staff's original comment letters dated April 14, 2005 for REAL II and April 18, 2005 for the other six partnerships. The Partnerships' response to the Staff's comments are set forth below and are numbered to correspond to the numbering of the Staff's comments in the Staff's letter dated June 8, 2005.
* * * * *
Form 10-KSB for the year ended December 31, 2004
Note 1 - Organization and Summary of Significant Accounting Policies
Recent Accounting Pronouncements
1. Comment: We have read and reviewed your response to comment 1. Please address the following points in your response: o Tell us the name of the general partner of the local limited partnerships and if they are currently consolidating the variable interest entities. o Please provide us with the excerpts from the local limited partnerships agreements that discuss the fact that the general partner is prohibited from selling, assigning, transferring, mortgaging, pledging or otherwise encumbering or disposing of its interests.
Response: The accompanying Exhibit A provides the name of the general partner of each of the local limited partnerships and the Partnerships' understanding of whether the general partner is consolidating the respective variable interest entity ("VIE"). Most of the general partners of the local limited partnerships are not affiliates of the Partnerships and have not informed the Partnerships of their accounting policies with respect to their investments in the local limited partnerships.
The accompanying Exhibit B provides a representative excerpt from the local limited partnership agreement for an investee of each of the Partnerships that describes the restriction on the general partner's ability to sell, assign, transfer, mortgage, pledge or otherwise encumber or dispose of its interest in the local limited partnership.
2. Comment: In your response you list a number of indicators that you believe make the general partner the principal and the limited partner the agent. A number of the indicators related to the general partner appear to be the role of a management company. In addition, under the terms of the partnership agreement, the general partner is prohibited from selling, transferring, or encumbering its interest in the partnership without the approval of the limited partner. This also appears to indicate that the general partner is the agent. Refer to page 3 of the 10-K. Please explain to the staff in detail all kick-out rights that the limited partner possesses. Tell us how you addressed the above factors in determining which party is the principal and agent.
Response: Paragraph 17(b) of FIN 46R requires consideration of "The relationship and significance of the activities of the variable interest entity to various parties within the related party group," in making the determination of which party within the related party group is most closely associated with the VIE. The rights and obligations of the general partners listed in the Partnerships' responses dated May 10, 2005 are detailed in Section 5 of the local limited partnership agreements. These rights and obligations are granted to the general partner and not to the management company. The Partnerships concluded that these rights and obligations granted to the general partners are factors that strongly indicate that the general partners are the parties most closely associated with the local limited partnerships.
The Partnerships recognize that the requirement of limited partner consent to the general partner's sale, transfer or encumbering of its interest could be interpreted in isolation to indicate that the limited partner is the principal and the general partner is the agent in a de facto agency relationship. However, the Partnerships note that there is a similar requirement of general partner consent to the limited partner's assignment of its interest that could be interpreted in isolation to indicate that the general partner is the principal and the limited partner is the agent. The Partnerships do not believe that these mutual restrictions indicate that the general partner is an agent of the limited partner.
The local limited partnership agreements provide the limited partner with the right to designate an additional or successor general partner if:
o The general partner or the partnership shall be in material default in the performance of any of their respective obligations so as to seriously impair the operations or prospects of the partnership and/or the project; o The net worth of the general partner endangers the status of the partnership as a partnership for Federal tax purposes; o The general partner shall retire or cease to exist; o A material breach of any of the general partner's duties or obligations under the local limited partnership agreement; o A material breach of the mortgage or mortgage note, the Regulatory Agreement or any other agreement given with respect to the financing of the project; provided, however, the general partner shall have 30 days to cure said breach but only if during said 30 days the general partner takes all steps necessary to prevent a foreclosure of the mortgage loan; o Termination, withdrawal or reduction of any governmental subsidy relating to the project, unless a comparable subsidy has been obtained; or o Failure of the net worth of the general partner to meet both the test for ruling purposes of a sole corporate general partner, under Internal Revenue Service Rev. Proc. 72-13, and the then-current such test, if any, applicable to the general partner at any time during the term hereof.
The Partnerships believe that limited partner rights to remove a general partner without cause would indicate that the general partner is the agent of the limited partner. However, the rights described above may be exercised only in the event of a breach or material default of a specific obligation. These rights are protective in nature and do not indicate that the general partner is the agent of the limited partner.
In summary, the factors noted above do not conclusively indicate which party is principal or agent in the de facto agency relationship that is deemed to exist under paragraph 16 of FIN 46R. As discussed in the Partnerships' responses dated May 10, 2005, the Partnership believes the general partner has characteristics commonly associated with the principal.
3. Comment: Please provide us with a more quantitative analysis to determine the exposures of the Partnership and general partners to the expected losses of the respective local limited partnerships.
Response: The Partnerships did not perform a quantitative analysis of the exposure to the expected losses based on their assessment that the Partnerships as the limited partner bear the majority of the expected losses due to provisions of the local limited partnership agreements that provide for 95 to 99 percent allocations and distributions to the Partnerships. The Partnerships considered this factor in conjunction with the other factors set forth in paragraph 17 of FIN 46R in the overall determination of which party within the related party group is most closely associated with the VIEs. The Partnerships concluded based upon consideration of all factors, that the general partner is the party within the related party group that is most closely associated with the local limited partnerships.
<PAGE>
* * * * *
As requested by the Staff in its letters dated April 14, 2005 and April 18, 2005, the Partnerships again acknowledge that: (a) the Partnerships are responsible for the adequacy and accuracy of the disclosure in their filings; (b) Staff comments or changes to disclosure in response to Staff comments do not foreclose the Commission from taking any action with respect to the filings; and (c) the Partnerships may not assert Staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
If you have further questions regarding the information provided, please contact the undersigned or Stephen Waters. Mr. Waters can be reached directly at (864) 239-1554 or by fax at (864) 239-5824.
Sincerely,
/s/ David R. Robertson
David R. Robertson
President and Chief Executive Officer
National Partnership Investments Corp.,
the corporate general partner of Real
Estate Associates Limited/CA, II, III,
IV, V, VI and VII
Show Raw Text
<DOCUMENT>
<TYPE>CORRESP
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<TEXT>
REAL ESTATE ASSOCIATES LIMITED/CA, II, III, IV, V, VI and VII
55 Beattie Place, P.O. Box 1089
Greenville, SC 29602
July 7, 2005
Correspondence Filing Via Edgar and Overnight Delivery
United States Securities and Exchange Commission
Division of Corporation Finance
Mail Stop 4561
450 Fifth Street, NW
Washington, D.C. 20549
Attn: Mr. Daniel Gordon
Re: Real Estate Associates Limited/CA, II, III, IV, V, VI and VII
Form 10-KSB for the year ended December 31, 2004
File No. 0-09262, 0-09782, 0-10673, 0-12439, 0-12438, 0-13112 and
0-13810
Ladies and Gentlemen:
This letter responds to the comments of the staff of the Securities and Exchange
Commission (the "Staff") addressed to Real Estate Associates Limited/CA
("REAL"), Real Estate Associates Limited II ("REAL II"), Real Estate Associates
Limited III ("REAL III"), Real Estate Associates Limited IV ("REAL IV"), Real
Estate Associates Limited V ("REAL V"), Real Estate Associates Limited VI ("REAL
VI") and Real Estate Associates Limited VII ("REAL VII"), California limited
partnerships (collectively the "Partnerships"), in a letter dated June 8, 2005,
which was sent in response to the Partnerships' May 10, 2005 response to the
Staff's original comment letters dated April 14, 2005 for REAL II and April 18,
2005 for the other six partnerships. The Partnerships' response to the Staff's
comments are set forth below and are numbered to correspond to the numbering of
the Staff's comments in the Staff's letter dated June 8, 2005.
* * * * *
Form 10-KSB for the year ended December 31, 2004
Note 1 - Organization and Summary of Significant Accounting Policies
Recent Accounting Pronouncements
1. Comment: We have read and reviewed your response to comment 1.
Please address the following points in your response:
o Tell us the name of the general partner of the local limited
partnerships and if they are currently consolidating the
variable interest entities.
o Please provide us with the excerpts from the local limited
partnerships agreements that discuss the fact that the general
partner is prohibited from selling, assigning, transferring,
mortgaging, pledging or otherwise encumbering or disposing of
its interests.
Response: The accompanying Exhibit A provides the name of the
general partner of each of the local limited partnerships and the
Partnerships' understanding of whether the general partner is
consolidating the respective variable interest entity ("VIE"). Most
of the general partners of the local limited partnerships are not
affiliates of the Partnerships and have not informed the
Partnerships of their accounting policies with respect to their
investments in the local limited partnerships.
The accompanying Exhibit B provides a representative excerpt from
the local limited partnership agreement for an investee of each of
the Partnerships that describes the restriction on the general
partner's ability to sell, assign, transfer, mortgage, pledge or
otherwise encumber or dispose of its interest in the local limited
partnership.
2. Comment: In your response you list a number of indicators that you
believe make the general partner the principal and the limited
partner the agent. A number of the indicators related to the
general partner appear to be the role of a management company.
In addition, under the terms of the partnership agreement, the
general partner is prohibited from selling, transferring, or
encumbering its interest in the partnership without the approval
of the limited partner. This also appears to indicate that the
general partner is the agent. Refer to page 3 of the 10-K.
Please explain to the staff in detail all kick-out rights that
the limited partner possesses. Tell us how you addressed the
above factors in determining which party is the principal and
agent.
Response: Paragraph 17(b) of FIN 46R requires consideration of "The
relationship and significance of the activities of the variable
interest entity to various parties within the related party group,"
in making the determination of which party within the related party
group is most closely associated with the VIE. The rights and
obligations of the general partners listed in the Partnerships'
responses dated May 10, 2005 are detailed in Section 5 of the local
limited partnership agreements. These rights and obligations are
granted to the general partner and not to the management company.
The Partnerships concluded that these rights and obligations granted
to the general partners are factors that strongly indicate that the
general partners are the parties most closely associated with the
local limited partnerships.
The Partnerships recognize that the requirement of limited partner
consent to the general partner's sale, transfer or encumbering of
its interest could be interpreted in isolation to indicate that the
limited partner is the principal and the general partner is the
agent in a de facto agency relationship. However, the Partnerships
note that there is a similar requirement of general partner consent
to the limited partner's assignment of its interest that could be
interpreted in isolation to indicate that the general partner is the
principal and the limited partner is the agent. The Partnerships do
not believe that these mutual restrictions indicate that the general
partner is an agent of the limited partner.
The local limited partnership agreements provide the limited partner
with the right to designate an additional or successor general
partner if:
o The general partner or the partnership shall be in material
default in the performance of any of their respective obligations
so as to seriously impair the operations or prospects of the
partnership and/or the project;
o The net worth of the general partner endangers the status of the
partnership as a partnership for Federal tax purposes;
o The general partner shall retire or cease to exist;
o A material breach of any of the general partner's duties or
obligations under the local limited partnership agreement;
o A material breach of the mortgage or mortgage note, the
Regulatory Agreement or any other agreement given with respect to
the financing of the project; provided, however, the general
partner shall have 30 days to cure said breach but only if during
said 30 days the general partner takes all steps necessary to
prevent a foreclosure of the mortgage loan;
o Termination, withdrawal or reduction of any governmental subsidy
relating to the project, unless a comparable subsidy has been
obtained; or
o Failure of the net worth of the general partner to meet both the
test for ruling purposes of a sole corporate general partner,
under Internal Revenue Service Rev. Proc. 72-13, and the
then-current such test, if any, applicable to the general partner
at any time during the term hereof.
The Partnerships believe that limited partner rights to remove a
general partner without cause would indicate that the general
partner is the agent of the limited partner. However, the rights
described above may be exercised only in the event of a breach or
material default of a specific obligation. These rights are
protective in nature and do not indicate that the general partner is
the agent of the limited partner.
In summary, the factors noted above do not conclusively indicate
which party is principal or agent in the de facto agency
relationship that is deemed to exist under paragraph 16 of FIN 46R.
As discussed in the Partnerships' responses dated May 10, 2005, the
Partnership believes the general partner has characteristics
commonly associated with the principal.
3. Comment: Please provide us with a more quantitative analysis to
determine the exposures of the Partnership and general partners to
the expected losses of the respective local limited partnerships.
Response: The Partnerships did not perform a quantitative analysis
of the exposure to the expected losses based on their assessment
that the Partnerships as the limited partner bear the majority of
the expected losses due to provisions of the local limited
partnership agreements that provide for 95 to 99 percent allocations
and distributions to the Partnerships. The Partnerships considered
this factor in conjunction with the other factors set forth in
paragraph 17 of FIN 46R in the overall determination of which party
within the related party group is most closely associated with the
VIEs. The Partnerships concluded based upon consideration of all
factors, that the general partner is the party within the related
party group that is most closely associated with the local limited
partnerships.
<PAGE>
* * * * *
As requested by the Staff in its letters dated April 14, 2005 and April 18,
2005, the Partnerships again acknowledge that: (a) the Partnerships are
responsible for the adequacy and accuracy of the disclosure in their filings;
(b) Staff comments or changes to disclosure in response to Staff comments do
not foreclose the Commission from taking any action with respect to the
filings; and (c) the Partnerships may not assert Staff comments as a defense
in any proceeding initiated by the Commission or any person under the federal
securities laws of the United States.
If you have further questions regarding the information provided, please
contact the undersigned or Stephen Waters. Mr. Waters can be reached directly
at (864) 239-1554 or by fax at (864) 239-5824.
Sincerely,
/s/ David R. Robertson
David R. Robertson
President and Chief Executive Officer
National Partnership Investments Corp.,
the corporate general partner of Real
Estate Associates Limited/CA, II, III,
IV, V, VI and VII
Exhibit A - Schedule of General Partners of Local Limited Partnerships
<TABLE>
<CAPTION>
GP an AIMCO GP
Registrant Local Limited Partnership General Partner (GP) (1) Affiliate Consolidating
<S> <C> <C> <C> <C>
REAL West Lafayette, Ltd. Rosewood Apts. Corp. Yes Yes
Williamson Towers Associates NDC Realty Investments, No Unknown
Inc.
REAL Bethel Towers Ltd Dividend Maurice Higgenbotham No Unknown
Housing Assoc.
REAL Emporia Limited R. Bjelland, R. Midura & No Unknown
R. Nidura
REAL Belleville Manor Apartments, J. Owen, J. Womack & No Unknown
Ltd. Marion Enterprises
REAL Clinton Apartments, Ltd. J. Owen, J. Womack & No Unknown
Marion Enterprises
REAL II Valebrook Associates B. Flynn, G. Marker & No Unknown
G/B/C Development
REAL II Azalea Court Invest. Group, R. Beaver & Olympia No Unknown
Brentwood Limited Develop. Co.
REAL II Crystal Springs Associates Ltd. R. Beaver No Unknown
REAL II Gulfport Associates, Ltd. R. Beaver No Unknown
(Magnolia)
REAL II Alabama Prop., Ltd. II R. Beaver & Olympia No Unknown
(Willowick) Develop. Co.
REAL II Branford Development W. Harp & Mr. Piscitelli No Unknown
Associates, LP
REAL II Sugar River Mills R. Bowditch, W. Finch & G. No Unknown
Slavet
REAL II Clearfield Manor Associates P. Lewis & PLL and Co. No Unknown
Ltd.
REAL II Lakeside Apartments I T.B. Brademas & No Unknown
Brooksfield Farm
REAL II Landmark Associates LP B. Bailey, T. Dobrusky & No Unknown
B. Westberg
REAL III Alabama Properties, Ltd. V R. Beaver & Olympia No Unknown
Develop. Co.
REAL III Charlotte Lake River Associates TFGLA Associates No Unknown
REAL III Village Apartment, Ltd. RL Ayers No Unknown
REAL III Lakeside Apart., Ltd. S. Oakowsky No Unknown
REAL III Santa Maria Ltd. Div. Puerto Rico Mgt. Yes No
Partnership Assoc.
REAL III Marina Del Ray, Ltd. Puerto Rick Mgt. Yes No
REAL III 300 Broadway Associates T. Dimeo & Deacon No Unknown
Development Co.
REAL III Vista Housing Associates, L.P. Bucare Development Co. No Unknown
REAL III Westgate Apartments, Ltd. B&B Enterprises No Unknown
REAL IV Oakridge Park Apartments I R. Crowell, B. Marcellus,
& RF Williamson No Unknown
REAL IV The Branford Group Limited J. Prete & T. Rice
Partnership
REAL IV Scituate Vista Apartments National Investments, Inc. No Unknown
REAL IV One Madison Avenue Associates Brown & One Madison Avenue No Unknown
REAL IV Gren-Ko Enterprises of D. Kittleson No Unknown