SEC Comment Letter for AEI Income & Growth Fund 26 LLC (CIK 0001326321) — Jun 27, 2005
AEI Income & Growth Fund 26 LLC (CIK 0001326321)
Date: June 27, 2005 · CIK: 0001326321 · Accession: 0000000000-05-032629
AI Filing Summary & Sentiment
File numbers found in text: 333-125266
Referenced dates: August 13, 1998, June 4, 2001
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June 24, 2005
Mail Stop 4561
Robert P. Johnson
President
AEI Income & Growth Fund 26 LLC
1300 Wells Fargo Place
30 East Seventh Street
St. Paul, MN 55101
Re: AEI Income & Growth Fund 26 LLC
Registration Statement on Form SB-2
Filed May 26, 2005
Registration No. 333-125266
Dear Mr. Johnson:
We have reviewed your filing and have the following comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
General
1. We note on page 38 that you plan to establish a distribution
reinvestment available to investors in this offering. Please tell
us
whether you plan to file a registration statement for these units.
2. Please advise us whether the unit repurchase program may be
conducted during the offering period of the units being registered
under this registration statement. If so, please tell us how the
repurchases of units will be conducted in a manner that is
consistent
with the restrictions on activities by issuers during
distributions
of securities set forth in Regulation M. See CNL American
Properties
Fund, Inc., (Letter dated August 13, 1998) and T REIT Inc. (Letter
dated June 4, 2001).
3. Please supplementally provide us with your analysis regarding
the
applicability of the tender offer rules to the share repurchase
program. Refer to Rule 13e-4 and Regulation 14E of the Exchange
Act.
We note, for example, that the repurchases will not be made on a
pro
rata basis.
4. Supplementally, please provide us with any pictures, graphics
or
artwork that will be used in the prospectus.
5. Please note that any sales literature that is to be used in
connection with this offering must be submitted to us prior to
use,
including sales literature intended for broker-dealer use only.
Please submit all written sales materials proposed to be
transmitted
to prospective investors, orally or in writing, with your next
filing. In this regard, note that sales materials must set forth
a
balanced presentation of the risks and rewards to investors and
should not contain any information or disclosure that is
inconsistent
with or not also provided in the prospectus. For guidance, refer
to
Item 19.D of Industry Guide 5.
6. Please provide the reports supporting your statements and the
tables regarding the restaurant and retail industry performance
and
growth rates on pages 18 and 19, marking the relevant portions of
any
material you provide for our review.
Summary
AEI Fund 26
7. Please disclose your anticipated duration of the offering
period
and your intent with respect to the duration of the acquisition
period.
Compensation to managers
8. Expand to briefly discuss in your summary the most significant
fees and expenses you expect to pay to your managers and their
affiliates, including the selling commissions payable to AEI
Securities during the offering stage, the 3% of net income payable
to
your manager during the operating stage and the amounts due to
managers during the property sale and financing stage.
Risk Factors
General Risks
You will have little control over operations, page 6
9. Please disclose that there is no restriction on the types of
properties in which you may invest or on the amount of debt you
may
incur.
Real Estate Investment Risks
Who May Invest-Page 12
10. Please relocate this section to immediately follow the cover
page. Refer Item 2 of Guide 5. Please also expand the disclosure
to
provide a brief description of the suitability standards for the
states you intend to offer securities rather than provide a cross-
reference to Exhibit C.
Capitalization, page 13
11. We note that you have shown your capitalization assuming a
minimum number of units are sold. Tell us why you have not also
shown your capitalization assuming the maximum number of units are
sold or revise to include this information. Further, please
clearly
label the information as pro forma as appropriate.
Investment Objectives and Policies-Page 14
12. Expand to disclose in this section the geographic areas where
you
intend to purchase properties.
Distributions-Page 16
13. Please disclose whether you will use offering proceeds or
debt
to pay your investor distributions.
Prior Performance-page 24
14. Provide a cross-reference to all prior performance tables.
See
Item 8.A.1.
15. Please confirm our understanding that the figure on page 25
relating to properties acquired in the last three years by your
affiliates is less than that reported in Table VI because Table VI
includes a double count for properties held by affiliates as
partial
owners. It appears that the figure on page 25 accounts for
properties held jointly as one property for purposes of total
properties acquired by affiliates.
Compensation to Managers and Affiliates-Page 27
16. Your statement in the first paragraph that your managing
members
may receive an interest in net cash flow and net proceeds from the
sale of properties appears to conflict with the first sentence in
the
last paragraph of this section indicating that you will not pay
real
estate commissions to your managers or their affiliates for the
purchase or sale of any properties. Please revise or advise.
Financial Statements of AEI Fund Management XXI, Inc., page 49
General
17. Please note that you should update to include an unaudited
balance sheet of the management company, AEI Fund Management XXI,
Inc., as of a date within six months of the effectiveness date.
Financial Statement Presentation, page 50
18. We note that you are accounting your investments under the
equity
method of accounting. Given you are the managing general partner
and
managing member of these investments, please advise us why using
the
equity method is appropriate. Cite any relevant literature.
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
? should the Commission or the staff, acting pursuant to
delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
? the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
? the company may not assert this action as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Thomas Flinn, Accounting Examiner, at 202-
551-
3469 or Cicely Lucky, Accounting Branch Chief, at 202-551-3413 if
you have questions regarding comments on the financial statements
and
related matters. Please contact Charito A. Mittelman at 202-551-
3402
or me at 202-551-3852 with any other questions.
Sincerely,
Michael McTiernan
Special Counsel
cc: Thomas O. Martin, Esq. (via facsimile)
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Robert P. Johnson
AEI Income & Growth Fund 26 LLC
June 24, 2005
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