SEC Company Response from AEI Income & Growth Fund 26 LLC (CIK 0001326321) — Aug 26, 2005
AEI Income & Growth Fund 26 LLC (CIK 0001326321)
Date: Aug. 26, 2005 · CIK: 0001326321 · Accession: 0001326321-05-000007
AI Filing Summary & Sentiment
File numbers found in text: 333-125266
Referenced dates: August 7, 2005
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Michael McTiernan
Charito A. Mittelman
August 26, 2005
VIA FEDERAL EXPRESS
Michael McTiernan
Charito A. Mittelman
Securities & Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: AEI Income & Growth Fund 26 LLC
Registration Statement on Form SB-2
File May 26, 2005
Registration No. 333-125266
Dear Mr. McTiernan and Ms. Mittelman:
This letter is in response to your letter dated August 7,
2005 conveying comments on the above-referenced registration
statement. We are not filing Amendment No. 2 at this time
because we continue to await final response from state securities
regulators in approximately four states and from the NASD. Some
of the responses contained in this letter represent that changes
will be made in the prospectus disclosure in Amendment No. 2 to
the Registration Statement. With respect to those responses, we
acknowledge that the Commission may reserve final comment until
Amendment No. 2 is filed.
We have repeated your comments below followed by the
supplemental response of the registrant.
General
1. In response to previous comment 1, please revise the
registration fee table and prospectus cover page to disclose
the number of units being registered under the distribution
reinvestment plan.
We acknowledge your suggestion that the distribution
reinvestment plan is a "different offering" and that the
number of units offered under that plan should be
categorized separate and discussed separately on the cover
page. Please understand, however, that this is not the type
of distribution reinvestment plan offered by REITS and
commonly registered with your branch. This is not a
continuous offering that continues after the primary
offering is terminated.
In reality, the distribution reinvestment plan in this
registration is not a different offering. Although
characterized as a "distribution reinvestment plan" at the
insistence of state securities administrators so that it can
be scrutinized for compliance with the NASAA Guidelines
relating to such plans, it is in fact only a convenient
manner of making additional investment in the primary
offering after the purchaser has met the minimum investment
requirement.
Because this is a tax flow-through entity (unlike a REIT,
which is a tax offset entity), it is extremely awkward, and
requires revaluation and reallocation of capital accounts,
to continue to offer units in a limited liability company or
limited partnership after the initial offering period.
Because this would require the application of considerable
judgment, units are not offered through distribution
reinvestment after the offering expires.
The distributions during the initial offering period consist
primarily of portfolio income on short-term investments and
rental income for a short period of time. The amount of
these distributions is small and the reinvestment is a very
minor part of the capital raised by the company. For the
most recently completed offering, AEI Income & Growth Fund
25 LLC, only $571,439 of the $42,539,763 raised was derived
from cash that would have otherwise have been distributed.
We believe that where the reinvestments are small and the
ability to apply them to repurchase is a convenience offered
to investors to allow them to compound earnings on the short-
term investments, and where the use of these distributions
to purchase units is restricted solely to the offering
period, it would be more confusing than helpful to investors
to separately describe the reinvestments as a "plan"
prominently on the cover.
2. We note your response to previous comment 3. Please be
advised that you are responsible for analyzing the
applicability of the tender offer rules to your share
repurchase plan and determining the availability of any
exemption under Rule 13e-4 and regulation 14E. We are not
taking a position on the conclusions described in your
response and urge you to consider all the elements of your
share repurchase program in determining whether the program
is consistent with relief granted by the Division of
Corporation Finance in prior no action letters
On behalf of the registrant, we acknowledge your response
and the registrant's responsibility for compliance with Rule
13E-4 and regulation 14E.
3. We note your response to comment 10. Please relocate the
"Who May Invest" section to immediately after the cover page.
Refer to Item 2 of Guide 5.
In response to your comment, the "Who May Invest' section of
the prospectus will be moved in amendment No. 2 to the
Registration Statement to immediately follow the cover page
(prior to the current table of contents).
4. We note your response to comment 6. We may have
additional comments once we have received and reviewed
copies of the referenced reports.
Please accept our apologies for omitting these materials
from prior correspondence. The supportive materials were
submitted by letter of the undersigned dated as of August
10, 2005.
Estimated Use of Proceeds, page 13
5. The amount of expenses disclosed in the table appear to be
inconsistent with the amount disclosed in the compensation
table on page 27. Please revise to confirm.
We acknowledge your comment and believe that the disclosure
in the use of proceeds table may have become confusing when
footnote disclosure was deleted to render the table
consistent with the plain English rules. Please know that
the compensation table on page 27 of the prospectus
discloses compensation to broker-dealers participating in
the selling group as dealers, through AEI Securities Inc. as
dealer-manager, totaling 10.5% of offering proceeds, but
that only 10% of such compensation is fixed: the .5% of
proceeds due diligence expense reimbursement is
"accountable" and is paid only upon invoice from a broker
dealer. It is therefore included in "other offering
expenses" rather than in selling commission and
nonaccountable expense reimbursements on page 13.
In response to your comment, the prospectus will be revised
in Amendment No. 2 to the Registration Statement to add a
paragraph immediately following the use of proceeds table on
page 13 that reads as follows:
"Other offering expenses shown in the table above
include an accountable expense reimbursement to
participating dealers of up to .5% of offering proceeds,
federal and state registration fees, accountant's fees
and fees of counsel, printing costs, and personnel costs
of the managing member for coordinating the admission of
members, the processing of subscriptions, and other
investor relations matters. Other offering costs also
includes, to the extent that total other offering costs
is less than 5% of offering proceeds, an organizational
fee to the managing member equal to 1.5% of offering
proceeds."
Financial Statements
6. Please continue to monitor the updating requirements of
Rule 310(g) of Regulation S-B
Your comment is acknowledged and the registrant will
continue to monitor the effectiveness of the registration
statement and the requirement to update financial
information.
7. Financial Statement Presentation, page 50.
We have reviewed your response to comment 18. Since the
scope of EITF 04-5 is limited to entities that are not
variable interest entities under FIN 46(R), please
further expand your response to clarify your
consideration of FIN 46(R). Please also consider
disclosing the basis of your consolidation policy and the
early adoption of EITF 04-5 within your financial
statements.
We acknowledge your comment and appreciate the ability to
speak with Mr. Flinn regarding this comment. Please note
that we do not believe the accounting literature related
to variable interest entities is in any way inconsistent
with SOP 78-9 and the accounting treatment afforded
investments by AEI Fund Management XXI, Inc. as managing
partner or managing member of real estate programs.
Please know that each of the real estate programs listed
under the caption "Organization" in footnote 1 to the
financial statements of AEI Fund Management XXI, Inc. was
a publicly offered real estate program with a structure
substantially identical to AEI Income & Growth Fund 26
LLC. Each program raised cash through a public offering
of units of limited partnership, or limited liability
company interest and invested that cash, without
leverage, in commercial real estate triple net leased by
recognized tenants in the restaurant or retail industry
at the time of purchase under long-term leases. None of
the programs employed any leverage and the general
partner/managing member guaranteed none of the
obligations of the programs. Each of the programs has a
partnership or operating agreement that provides the
equity holders with democracy rights (the right to vote)
substantially similar to those provided shareholders in a
corporation. Limited partners or limited members have
the right, by majority vote, among other things, (1) to
amend the partnership or operating agreement; (2) to
remove the managing partner or managing member and to
elect a new managing member or managing partner; (3) to
approve or disapprove a sale of substantially all of the
assets of the program; and (4) to dissolve the program.
We do not believe that any of these investment programs
is a variable interest entity. We believe that it is
indisputable that the total equity investment at risk in
these programs far exceeds the expected losses from the
entity and is ample to permit the entities to finance
their operations. In fact, these entities do not incur
substantial operating expenses and uniformly generate
rental income that far exceeds any operating expense,
even absent borrowings. The 15 public programs that these
entities and their affiliates have sponsored have
generated net distributions in virtually every quarter of
operations from rental income (or portfolio income in
early stages). Bank financing for the millions of
dollars of unencumbered commercial properties owned by
the programs is always available, but never used.
Indeed, the balance sheets of these entities are cleaner
and include proportionately more unencumbered and readily
financeable assets than what we suggest most of the
corporate entities that file with the Commission possess.
All of the investments by all of the equity investors are
for cash: neither the managing member or partner, nor any
limited member or partner, contributes fees or services,
or interests in another entity, for its equity
investment. None of the investments in the entity are
financed by the entities or by AEI Fund Management XXI,
Inc. Further, as outlined above, the investors have (1)
substantial voting rights, (2) have placed at risk their
entire investment in the entity with no guarantee or
surety of return of investment, and (3) have the right to
receive residual returns on their investment (there is no
cap on the residual return of either the limited, or the
managing, member or partners in these entities).
Please know that AEI Fund Management XXI, Inc. did not
early adopt EITF 2004-5. AEI Fund Management XXI, Inc.
has accounted for these investments on the equity method,
and each of the affiliates that have sponsored public
programs since 1984 have accounted for these investments
on the equity method, since 1984. The managing member
believes this accounting is, and always has been, the
method required under SOP 78-9. The managing member also
believes that EITF 2004-5 is simply supportive of this
conclusion. Indeed, the managing members believe the
discussion of kick-out rights in EITF 2004-5 is wholly
consistent with the discussion of voting privileges in
paragraph 5(b) of FIN 46(R). Finally, as discussed with
Mr. Flinn, the managing members believe that the basis of
the consolidation is presented as required--the footnote
relating to financial statement presentation indicates
that the company accounts for the investments on the
equity method. The managing member does not believe that
a discussion of the individual attributes of the
underlying programs to support a conclusion that these
are not variable interest entities, or entities that
possess "kickout rights," would be helpful to the reader
and instead respectfully suggest that they would be
confusing.
Sales Literature
Broker Fact Sheet
8. Since the Fund will not be listed and is not a REIT, the
returns of the NAREIT Index are not an appropriate indicator
of performance or volatility. In addition, NAREIT Index
returns are not an appropriate proxy for "real estate
investments" generally. Accordingly, please remove reference
to NAREIT returns.
In response to your comment, we are enclosing a revised
"broker fact sheet" that has eliminated references to the
NAREIT Index. Instead, the fact sheet references statistics
from National Counsel of Real Estate Investment Fiduciaries.
Because this index references actual real estate
investments, most of which are illiquid, held by real estate
fiduciaries, the managing members believes this is an
appropriate indicator of volatility in investments in real
estate generally. A copy of the supportive data for such
statistics is submitted supplementally.
Tombstone Advertisement
9. Please advise us how the various headlines and the legend
comply with the requirements of Rule 134 of the Securities
Act.
The managing member has determined not to use the tombstone
advertisements and hereby withdraws them as submitted
materials
Public Fund Composite Historical Distribution Summary
10. Please provide us the data underlying the chart for each
of the funds, including information on the source of
distributions. In addition, please advise us whether the
information in the graph is derived from information included
in the prior performance tables in the prospectus. In
addition, please include balancing summary risk factor
disclosure.
Please know that the distribution summary is a composite
summary of total annual distributions from all public real
estate programs sponsored by the managing member and its
affiliates (15 total), excepting distributions that
constitute a return of capital or that constitute final
liquidating distributions upon final sale of properties. As
such, the table is not derived from, nor can it be
specifically generated from, the prior performance tables
included in the prospectus. We are including as
supplemental information, the data that underlies the
tables.
In response to you