SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Amendment No. 1
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional
Materials
[ ] Soliciting Material Pursuant to ss. 240.14a-11(c) or ss. 240.14a-12
.........................REAL-EQUITY PARTNERS..................................
(Name of registrant as specified in its charter)
...............................................................................
(Name of person(s) filing proxy statement if other than the registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
. . . . .Units of Limited Partnership Interest...................
2) Aggregate number of securities to which transaction applies:
. . . . .30,000 Units............................................
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
. . . . .$552....................................................
4) Proposed maximum aggregate value of transaction:
. . . . .$16,720,992.............................................
5) Total fee paid:
. . . . .$3,344..................................................
[X] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No:
3) Filing Party:
4) Date Filed:
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REAL-EQUITY PARTNERS
9090 Wilshire Boulevard
Beverly Hills, California 90211
___________ __, 1998
To the Limited Partners:
National Partnership Investments Corp., the managing general partner
("NAPICO" or the "Managing General Partner") of REAL-Equity Partners (the
"Partnership" or "REP"), is writing to recommend, and seek your consent to, a
proposed sale of the five real estate properties owned by the Partnership (the
"Properties") to JH Real Estate Partners, Inc., a California corporation, and
American Apartment Communities III, L.P., a Delaware limited partnership
(collectively, the "Buyers"), neither of which are affiliated with the
Partnership or the Managing General Partner. The transactions by which the
Partnership proposes to sell the Properties to the Buyers is hereinafter
referred to as the "Sale." If the Sale is consummated, it will result in a
dissolution of the Partnership under the terms of the Partnership Agreement.
In evaluating the proposed Sale, the Limited Partners should note that:
o Based upon a purchase price for the Properties of $31,900,000 and the
assumption of certain indebtedness (the "Purchase Price"), it is
anticipated that the Partnership will make an aggregate distribution
to Limited Partners of approximately $16,707,000, or $557 per unit.
The distribution amount is anticipated to be sufficient to pay any
federal and state income taxes incurred in connection with the Sale
and Limited Partners may be able to utilize suspended passive losses
to offset their tax liabilities. In connection with the Sale, the
Partnership will pre-pay or assign its mortgage indebtedness, which
totaled $14,257,046 as of September 30, 1998. The units were sold at
an original cost of $1,000 per unit.
o The Managing General Partner believes that it is an opportune time
for the Partnership to sell the Properties.
o The terms of the Sale have been negotiated at arm's length.
o The Managing General Partner believes that selling the Partnership's
entire portfolio of real estate assets in a single transaction (as
opposed to a series of individual sales) will enable the Partnership
to reduce transaction expenses and dispose of its portfolio in an
expedited time frame.
There are certain risk factors that the Limited Partners should
consider in evaluating the proposed Sale, such as:
o As a result of the Sale, the Partnership will forego any potential
benefits of continuing to own the Properties.
o The Sale and liquidation of the Partnership will have a tax impact on
Limited Partners. For Limited Partners who have been able to use all
of the passive losses generated by the Partnership on a current
basis, the Sale should result in a net cash distribution, after
payment of tax liabilities, of $384 per Unit in excess of the federal
and state income taxes that would be due in connection with the Sale.
On July 29, 1998, the Partnership filed a preliminary consent solicitation
statement with the Securities and Exchange Commission regarding a proposed sale
of the Properties to an affiliate of the Managing General Partner for a purchase
price of $24,876,300, $10,432,977 of which was to be payable in cash and
$14,443,323 through the assumption of certain mortgage indebtedness.
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On August 14, 1998, JH Real Estate Partners, Inc. of Anaheim, California
contacted the Partnership to express its interest in acquiring the Properties.
After satisfactorily demonstrating its ability to finance the proposed
transaction, JH Real Estate Partners commenced a due diligence review of the
Properties. As of September 25, 1998, the affiliate of the Managing General
Partners withdrew its offer of $24,876,300 and the Partnership entered into a
purchase and sale agreement with the Buyers that included a purchase price of
$31,900,000 and the assumption of certain indebtedness. The terms of the Sale
were determined in arm's-length negotiations between the Partnership and the
Buyers.
Under the terms of the Partnership's Amended and Restated Certificate and
Agreement of Limited Partnership, a copy of which was included as an exhibit to
the offering materials Limited Partners received in connection with their
investments in the Partnership, the Partnership is obligated to pay the Managing
General Partner a fee for services rendered to the Partnership in connection
with the selection, purchase, development and management of the Properties (the
"Deferred Acquisition Fee"). The Partnership Agreement provides that
distributions of the Deferred Acquisition Fee will cease upon the distribution
made with respect to the 15th year of the Partnership term, which the
Partnership Agreement states commenced September 9, 1981 with the filing of the
Partnership's Certificate and Agreement of Limited Partnership with the Recorder
of Los Angeles County, California. However, it is the position of the Managing
General Partner that the Partnership's term did not commence until the admission
of Limited Partners in connection with the Partnership's offering of Units
through E.F. Hutton and, as a result, the Deferred Acquisition Fee remains due
and payable. Although the Managing General Partner believes that the Partnership
is required to pay the Deferred Acquisition Fee in connection with the Sale, it
is seeking the consent of the Limited Partners to the payment of such Fee. As of
September 30, 1998, $767,192 of the Deferred Acquisition Fee was due and payable
to the Managing General Partner. The payment of the Deferred Acquisition Fee
will be paid out of the proceeds of the Sale and will reduce the Limited
Partners' distributions from $582 to $557 per Unit. The Managing General Partner
is requesting that Limited Partners approve both the Sale and the payment of the
Deferred Acquisition Fee. Approval of the proposed Sale will be deemed to
include approval of the Deferred Acquisition Fee.
Consummation of the Sale is subject to the approval of a
majority-in-interest of the Limited Partners. If the Limited Partners do not
approve the Sale, the Partnership will most likely retain ownership of the
Properties.
We urge you to carefully read the enclosed Consent Solicitation Statement
in order to vote your interests. YOUR VOTE IS IMPORTANT. BECAUSE APPROVAL
REQUIRES THE AFFIRMATIVE VOTE OF A MAJORITY OF THE OUTSTANDING UNITS OF LIMITED
PARTNERSHIP INTEREST, FAILURE TO VOTE WILL HAVE THE SAME EFFECT AS A VOTE
AGAINST THE SALE. To be sure your vote is represented, please sign, date and
return the enclosed consent as promptly as possible.
The proposed Sale is fully described in the enclosed Consent Solicitation
Statement. Please read the enclosed materials carefully, then return your signed
consent form either by facsimile to 303-705-6171 or in the enclosed envelope on
or before ________ __, 1998.
If you have any questions, please do not hesitate to contact MacKenzie
Partners, the Partnership's consent solicitation agent, toll free at
800-322-2885 or collect at 212-929-5500.
Very truly yours,
National Partnership Investments Corp.
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REAL-EQUITY PARTNERS
9090 Wilshire Boulevard
Beverly Hills, California 90211
________ __, 1998
CONSENT SOLICITATION STATEMENT
On the terms described in this Consent Solicitation Statement, National
Partnership Investments Corp., the managing general partner ("NAPICO" or the
"Managing General Partner") of REAL-Equity Partners, a California limited
partnership (the "Partnership" or "REP"), is seeking the consent of the Limited
Partners of the Partnership to the sale of the five real estate properties owned
by Partnership (the "Properties") to JH Real Estate Partners, Inc., a California
corporation, and American Apartment Communities III, L.P., a Delaware limited
partnership (collectively, the "Buyers"), for a purchase price of $31,900,000
and the assumption of certain indebtedness (the "Purchase Price"). The
transaction by which the Partnership proposes to sell the Properties to the
Buyers is hereinafter referred to as the "Sale."
Each of the Properties is a conventional multi-unit residential apartment
complex. The mortgage on one of the Properties is insured by the United States
Department of Housing and Urban Development ("HUD") and during the period for
which the mortgage is so insured, its rents will be subject to regulation by
HUD.
It is anticipated that the Partnership will make a distribution to Limited
Partners of approximately $557 per unit of limited partnership interest in the
Partnership from the net proceeds of the Sale. If the Sale is consummated, it
will result in a dissolution of the Partnership under the terms of the
Partnership Agreement.
The Sale is conditioned upon approval of a majority-in-interest of the
Limited Partners of the Partnership. Under the Partnership Agreement and
California law, Limited Partners do not have dissenters' rights of appraisal. If
the Sale is approved by a majority-in-interest of the Limited Partners, all
Limited Partners, both those voting in favor of the Sale and those not voting in
favor, will be entitled to receive the resulting cash distributions.
The Managing General Partner has approved the Sale, has concluded that the
Sale, including the Purchase Price for the Properties, is fair to the Limited
Partners and recommends that the Limited Partners consent to the Sale.
National Partnership Investments Associates II, a California limited
partnership ("NPIA II"), is the non- managing General Partner of the
Partnership. Pursuant to an agreement between NAPICO and NPIA II, NAPICO is
responsible for the performance of any duties required to be performed by the
General Partners and has sole and final discretion to manage and control the
business of the Partnership and make all decisions relating thereto. NPIA II has
not participated in the management of the Partnership, or in decisions made by
the Partnership in connection with the proposed Sale. NPIA II has not taken a
position with respect to the Sale nor has it participated in the preparation of
this Consent Solicitation Statement.
This Consent Solicitation Statement and the accompanying form of Consent of
Limited Partner are first being mailed to Limited Partners on or about ________
__, 1998.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF
SUCH TRANSACTION NOR PASSED UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION
CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THIS
SOLICITATION OF CONSENTS EXPIRES NO LATER THAN 11:59 P.M. EASTERN TIME ON
________ __, 1998, UNLESS EXTENDED.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
I. SUMMARY OF CONSENT SOLICITATION STATEMENT.....................................................................1
The Partnership..........................................................................................1
The Sale.................................................................................................1
Potential Adverse Effects of the Sale....................................................................2
Potential Benefits of the Sale...........................................................................3
Limited Partner Approval.................................................................................3
Recommendation of the Managing General Partner; Fairness.................................................3
Summary Financial Information............................................................................4
Transaction Expenses.....................................................................................5
Voting Procedures........................................................................................5
II. THE SALE.....................................................................................................5
Background and Reasons for the Sale......................................................................5
Acquisition Agreement....................................................................................6
Transaction Costs........................................................................................6
Distribution of Sale Proceeds; Accounting Treatment......................................................7
Recommendation of the Managing General Partner; Fairness.................................................7
III. THE PARTNERSHIP.............................................................................................8
General..................................................................................................8
The Properties...........................................................................................9
Market for Partnership Interests and Related Security Holder Matters....................................10
Distribution History...............................................................................11
Year 2000 Information...................................................................................12
IV. SELECTED FINANCIAL INFORMATION..............................................................................13
V. FEDERAL INCOME TAX CONSEQUENCES..............................................................................14
VI. LEGAL PROCEEDINGS ..........................................................................................15
VII. LIMITED PARTNERS CONSENT PROCEDURE.........................................................................16
Distribution of Solicitation Materials..................................................................16
Voting Procedures and Consents..........................................................................16
Completion Instructions.................................................................................17
Withdrawal and Change of Election Rights................................................................17
No Dissenters' Rights of Appraisal......................................................................17
Solicitation of Consents................................................................................18
VIII. IMPORTANT NOTE............................................................................................18
</TABLE>
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ANNEXES
Annex A The Partnership's Amended Annual Report on Form 10-K/A for the fiscal
year ended December 31, 1997.
Annex B - The Partnership's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
Annex C - The Partnership's Current Report on Form 8-K dated March 9, 1998.
Annex D - The Partnership's Current Report on Form 8-K dated September 25, 1998.
782016.1
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AVAILABLE INFORMATION
REAL-Equity Partners is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, consent solicitation statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, consent solicitation statements and other information filed with the
Commission can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices, Seven World Trade Center,
13th Floor, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. In addition, the Commission
maintains a site on the World Wide Web portion of the Internet that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of such
site is http://www.sec.gov. Copies of the latest Annual Report on Form 10-K and
Quarterly Report on Form 10-Q may also be obtained from NAPICO without charge.
All requests should be made in writing to National Partnership Investments
Corp., 9090 Wilshire Boulevard, Suite 201, Beverly Hills, California 90211;
Attention: Investor Services; Telephone 800-666-6274.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Partnership
are incorporated by reference in this Consent Solicitation Statement:
Amended Annual Report on Form 10-K/A of the Partnership for the fiscal
year ended December 31, 1997.
Quarterly Report on Form 10-Q of the Partnership for the quarter ended
September 30, 1998.
Current Report on Form 8-K of the Partnership dated March 9, 1998.
Current Report on Form 8-K of the Partnership dated September 25,
1998.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Consent
Solicitation Statement to the extent that a statement contained herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Consent Solicitation Statement.
No person is authorized to give any information or to make any
representation not contained in this Consent Solicitation Statement in
connection with the solicitation of proxies made hereby, and, if given or made,
any such information or representation should not be relied upon as having been
authorized by the Partnership or any other person. The delivery of this Consent
Solicitation Statement shall not, under any circumstances, create any
implication that there has been no change in the information set forth herein or
in the affairs of the Partnership since the date of this Consent Solicitation
Statement.
782016.1
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I. SUMMARY OF CONSENT SOLICITATION STATEMENT
The following summary is intended to provide only highlights of the
materials contained in this Consent Solicitation Statement. This summary is not
intended to be a complete statement of all material features of the proposed
Sale and is qualified in its entirety by the more detailed information contained
herein. Cross references in the summary are to the indicated captions or
portions of this Consent Solicitation Statement.
The Partnership
REAL-Equity Partners is a California limited partnership, the general
partners of which are National Partnership Investments Corp. and National
Partnership Investments Associates II, a California limited partnership.
The Partnership holds title to five Properties. Each of the Properties
is a conventional multi-unit apartment complex. The mortgage on one of the
Properties is insured by HUD. During the period for which the mortgage is so
insured, its rents will be subject to regulation by HUD. Four of the Properties
are located in California and one is located in Nevada. See "THE PARTNERSHIP -
The Properties."
The Partnership maintains offices at 9090 Wilshire Boulevard, Beverly
Hills, California 90211 (310-278-2191). The Partnership was organized as a
California limited partnership on September 9, 1981. See "THE PARTNERSHIP."
The Sale
The Partnership proposes to sell the Properties to the Buyers for a
Purchase Price of $31,900,000. Under the terms of the Partnership Agreement, the
Sale will result in the dissolution of the Partnership. It is the intention of
the Managing General Partner to liquidate the Partnership in accordance with its
Amended and Restated Certificate and Agreement of Limited Partnership (the
"Partnership Agreement") following the consummation of the Sale.
Neither the Partnership nor the Managing General Partner is affiliated
with the Buyers. The address of JH Real Estate Partners, Inc. is 600 City
Parkway West, Suite 730, Orange, California 92862, Attention: Hugo F. Aviles,
714-712-9400. The address of American Apartment Communities III, Inc. is 21 W.
Broad Street, 11th Floor, Columbus, Ohio 43215, 614-220-8900.
The aggregate consideration for the Properties is $31,900,000 and the
assumption of the mortgage indebtedness encumbering the Arbor Glen Property. The
Sale will enable the Partnership to pre-pay or assign all of the mortgage
indebtedness encumbering the Properties, which totaled $14,257,046 as of
September 30, 1998. The net proceeds of the Sale will be distributed to the
Limited and General Partners in accordance with the cash distribution provisions
of the Partnership Agreement. See "THE SALE--Distribution of Sale Proceeds" for
a summary of the cash distribution rules applicable to such distributions.
Limited Partners are expected to receive a distribution of approximately $557 in
cash per unit in connection with the Sale. The units (the "Units"), each of
which represents one limited partnership interest, were originally sold for
$1,000 per Unit. All of the Partnership's expenses incurred in connection with
the Sale will be borne by the Partnership.
The distribution of $557 per Unit is anticipated to be sufficient to
pay the federal and state income taxes that would be due in connection with the
Sale, assuming that Limited Partners have suspended passive losses of $297 per
Unit from the Partnership that could be deducted in full against such Limited
Partners' ordinary income and assuming such Limited Partner has sufficient
taxable income taxed at federal tax rates of 39.6% on ordinary income and 25% on
long-term capital gain attributable to depreciation (and assuming an effective
5% state tax). For Limited Partners who do not have sufficient taxable income to
be taxed at a 39.6% marginal federal rate or who have other losses available to
deduct against their taxable income and therefore could not fully utilize such
suspended passive losses to offset their ordinary income, the Sale could result
in a lower net cash distribution. For Limited Partners who have been able to use
all of the passive losses generated by the Partnership on a current basis, the
Sale should result in a net cash distribution of $388 per Unit after payment of
their tax liability. Each Limited Partner is urged to consult his,
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her or its own tax advisor for a more detailed explanation of the specific tax
consequences to such Limited Partner from the Sale.
Under the terms of the Partnership Agreement, the Partnership is
obligated to pay the Managing General Partner a fee for services rendered to the
Partnership in connection with the selection, purchase, development and
management of the Properties (the "Deferred Acquisition Fee"). The Partnership
Agreement provides that distributions of the Deferred Acquisition Fee will cease
upon the distribution made with respect to the 15th year of the Partnership
term, which the Partnership Agreement states commenced September 9, 1981 with
the filing of the Partnership's Certificate and Agreement of Limited Partnership
with the Recorder of Los Angeles County, California. However, it is the position
of the Managing General Partner that the Partnership's term did not commence
until the admission of Limited Partners in connection with the Partnership's
offering of Units through E.F. Hutton and, as a result, the Deferred Acquisition
Fee remains due and payable. Although the Managing General Partner believes that
the Partnership is required to pay the Deferred Acquisition Fee in connection
with the Sale, it is seeking the consent of the Limited Partners to the payment
of such Fee. As of September 30, 1998, $767,192 of the Deferred Acquisition Fee
was due and payable to the Managing General Partner. The payment of the Deferred
Acquisition Fee will be paid out of the proceeds of the Sale and will reduce the
Limited Partners' distributions from $582 to $557 per Unit. The Managing General
Partner requests that Limited Partners approve both the Sale and the payment of
the Deferred Acquisition Fee. Approval of the proposed Sale will be deemed to
include approval of the Deferred Acquisition Fee. If the Sale is approved,
NAPICO and NPIA II, the General Partners, will be entitled to receive
distributions in connection with the Sale of $935,950 in the aggregate.
The Sale, including payment of the Deferred Acquisition Fee to the
Managing General Partner, is conditioned upon approval of a majority-in-interest
of the Limited Partners of the Partnership.
Potential Adverse Effects of the Sale
Limited Partners should also consider the following risk factors in
determining whether to approve or disapprove the Sale:
o Loss of Opportunity to Benefit from Future Events. It is possible
that the future performance of the Properties will improve or
that prospective buyers may be willing to pay more for the
Properties in the future. It is possible that Limited Partners
might earn a higher return on their investment if the Partnership
retained ownership of the Properties. By approving the Sale,
Limited Partners will also be foregoing certain current benefits
of ownership of the Properties, such as continuing distributions.
See "THE SALE -- Background and Reasons for the Sale."
o No Solicitation of Third Party Offers. The Managing General
Partner has not solicited offers from third parties to acquire
the Properties. There is no assurance that the Managing General
Partner would not be able to obtain higher or better offers for
the Properties if such offers were to be solicited from
independent third parties.
o Tax Consequences. The Sale will have a tax impact on Limited
Partners, producing a long-term capital gain of approximately
$541 per Unit. In addition, the Sale will produce ordinary income
attributable to accelerated depreciation recapture of
approximately $16 per Unit. For Limited Partners who have been
able to use all of the passive losses generated by the
Partnership on a current basis, the Sale should result in a net
cash distribution of $388 per Unit after payment of their tax
liability. Limited Partners who have available all of the
suspended passive losses generated by the Partnership, but whose
ordinary income is not taxed at the 39.6% marginal federal rate,
may receive a lower net cash distribution made in connection with
the Sale. For a discussion of the tax impact of the Sale, and the
Partnership's assumptions and the bases therefor, see "FEDERAL
INCOME TAX CONSEQUENCES." THE SPECIFIC TAX IMPACT OF THE SALE ON
LIMITED PARTNERS SHOULD BE DETERMINED BY LIMITED PARTNERS IN
CONSULTATION WITH THEIR TAX ADVISORS.
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o No Dissenter's Rights. Under the Partnership Agreement and
California law, Limited Partners do not have dissenters' rights
of appraisal.
Potential Benefits of the Sale
The Managing General Partner believes that the Sale achieves the
Partnership's investment objectives for the following reasons:
o Receipt of Cash. The Sale will result in a cash distribution of
$557 per Unit to Limited Partners, which amount is anticipated to
be sufficient to pay any federal and state income taxes that
would be payable in connection with the Sale, assuming (i) that
Limited Partners have suspended passive losses of $297 per Unit
from the Partnership; (ii) that such losses are available to
offset ordinary income taxed at the 39.6% marginal federal rate
and (iii) federal and state effective capital gains rates of 25%
and 5%, respectively. For a discussion of the bases of these
assumptions, see "FEDERAL INCOME TAX CONSEQUENCES." If the Sale
is not completed, there can be no assurance that the Partnership
will be able to make distributions at the current rate or that
the Partnership will be able to make any future distributions.
o Eliminating the Risks of Real Estate Investing. Continued
ownership of the Properties subjects the Partnership to continued
risks inherent in real estate ownership, such as national and
local economic trends, supply and demand factors in the local
property market, the cost of operating and maintaining the
physical condition of the Properties and the cost and
availability of financing for prospective buyers of the
Properties. No assurance can be given that a prospective buyer
would be willing to pay an amount equal to or greater than the
Purchase Price for the Properties in the future.
o Attractive Sale Terms. The Managing General Partner believes that
the Purchase Price for the Properties is fair to the Limited
Partners and, based on its experience in the real estate
industry, believes that it exceeds the price that the Partnership
would be likely to receive in a sale to a third party or parties.
o Reduced Transaction Costs. The Partnership will not be required
to pay brokerage commissions in connection with the Sale, which
would typically be paid when selling real property to third
parties. As a result, the Sale is likely to produce a higher cash
distribution to Limited Partners than a comparable sale to
another unaffiliated third party. In addition, the Managing
General Partner believes that selling the Partnership's portfolio
of real estate assets in a single transaction (as opposed to a
series of individual sales) will enable the Partnership to
dispose of its portfolio in an expedited time frame and provide
additional transaction cost savings, although the Partnership
will pay certain expenses, such as the costs of environmental
inspections and costs relating to proxy solicitation which may be
higher than comparable expenses in a transaction with another
unaffiliated third party. See "THE SALE-- Transaction Costs" for
a schedule of the costs the Partnership is expected to incur in
connection with the Sale.
Limited Partner Approval
The Managing General Partner is seeking the consent of the Limited
Partners to the Sale. If a majority-in-interest of the Limited Partners do not
approve the Sale, there will be no change in its investment objectives, policies
and restrictions and the Partnership will continue to be operated in accordance
with the terms of the Partnership Agreement. The Partnership will bear the costs
of the consent solicitation process whether or not the Sale is approved or
ultimately consummated.
Recommendation of the Managing General Partner; Fairness
The Managing General Partner believes that the Sale is fair from a
financial point of view and in the best interests of the Limited Partners.
Accordingly, the Managing General Partner has approved the Sale and recommends
that it be approved by the Limited Partners.
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Summary Financial Information
The following table sets forth selected historical financial and
operating data of the Partnership for the fiscal years ended December 31, 1997,
1996, 1995, 1994, 1993 and for the nine-month periods ended September 30, 1998
and 1997. The following information should be read in conjunction with the
Partnership's Annual Report on Form 10-K and Quarterly Report on Form 10-Q,
which are attached hereto as Annexes B and C, respectively.
The selected historical financial and operating data of the
Partnership for the nine-month periods ended September 30, 1998 and September
30, 1997 are derived from unaudited consolidated financial statements of the
Partnership which, in the opinion of the Managing General Partner, include all
adjustments (consisting only of normal recurring items unless otherwise
disclosed) necessary for a fair presentation of the Partnership's financial
position and results of operations. The results set forth for the nine-month
periods ended September 30, 1998 and September 30, 1997 are not necessarily
indicative of results to be expected for a full year.
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
------------------------------------------------------------------- --------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1997 1996 1995 1994 1993 1998 1997
------------ ------------ ----------- ------------- ------------ ------------- ------------
Partnership Operations
Interest Income............. $ 105,777 $ 89,711 $ 49,476 $ 37,710 $ 12,779 $ 36,790 $ 91,285
Operating Expenses.......... 355,249 158,460 185,584 226,208 353,825 275,659 191,239
------------ ------------ ----------- ------------- ------------ ------------- ------------
Loss from Partnership
Operations.................. (249,472) (68,749) (136,108) (188,498) (341,046) (238,869) (99,954)
------------ ------------ ----------- ------------- ------------ ------------- ------------
Rental Operations
Revenues.................... 4,925,227 4,935,895 5,486,329 5,678,656 5,463,671 3,863,069 3,643,576
Expenses.................... 4,921,727 4,942,160 5,675,071 6,514,923 5,402,010 3,971,338 3,608,643
------------ ------------ ----------- ------------- ------------ ------------ --------
Income (Loss) from Rental
Operations 3,500 (6,265) (188,742) (836,267) 61,661 (108,269) 34,933
------------ ------------ ----------- ------------- ------------ ------------ --------
Gain on Foreclosure of
Rental Property........... -- 259,088 -- -- -- -- --
------------ ------------ ----------- ------------- ------------ ------------ --------
Net Income (Loss)........... $ (245,972) $ 184,074 $ (324,850) $ (1,024,765)$ (279,385)$ (347,138) $ (65,021)
============ ============ =========== ============= ============ ============ ===========
Net Income (Loss)
allocated to
Limited Partners.......... $ (243,512) $ 182,234 $ (321,601) $ (1,014,517)$ (276,591)$ (343,666) $ (64,370)
=========== ============ =========== ============= ============ ============ ===========
Net Income (Loss) per
Limited Partnership
Interest.................. $ (8) $ 6 $ (11) $ (34) $ (9)$ (12) $ (2)
=========== ============ =========== ============= =========== ============ ===========
Total assets................ $ 20,791,123 $ 22,049,995 $26,365,792 $ 26,668,029 $ 27,182,103 $ 19,936,686 $ 21,098,918
============ ============ =========== ============= ============ ============= ============
Mortgage Notes Payable...... $ 14,443,323 $ 14,064,914 $17,747,363 $ 17,959,940 $ 15,517,461 $ 14,257,046 $ 14,502,497
============ ============ =========== ============= ============ ============= ============
Cash Distribution per
Limited Partnership
Interest $20.00 $10.00 $ -- $15.00 $10.00 $10.00 $15.00
============ ============ =========== ============= ============ ============= ============
Partners' Equity............ $ 4,562,631 $ 6,309,459 $ 6,425,385 $ 6,750,235 $ 8,225,000 $ 3,882,159 $ 4,910,249
============ ============ =========== ============= ============ ============= ============
Limited Partners'
Equity.................... $ 6,184,431 $ 7,027,943 $ 7,145,709 $ 7,467,310 $ 8,931,827 $ 5,540,765 $ 6,513,573
=========== ============ =========== ============= ============ ============= ============
Limited Partners' Equity
per Limited Partnership
Interest.................. $ 206 $ 234 $ 238 $ 249 $ 298 $ 185 $ 217
============ ============ =========== ============= ============ ============= ============
</TABLE>
-4-
<PAGE>
Transaction Expenses
The Partnership will bear its direct costs relating to the Sale,
including customary closing costs such as the seller's portion of title
insurance and escrow fees, and the costs incurred in connection with this
solicitation of consents. The aggregate amount of such costs is expected to be
approximately $247,000, which the Partnership expects to pay using cash
equivalents held by the Partnership. The transaction costs will be borne by the
Partnership as they are incurred, whether or not the Sale is approved by the
Limited Partners or ultimately consummated.
The Managing General Partner believes that, under the terms of the
Partnership Agreement, the Partnership is obligated to the Managing General
Partner for the Deferred Acquisition Fee for services rendered to the
Partnership in connection with the selection, purchase, development and
management of the Properties. As of September 30, 1998, $767,192 of the Deferred
Acquisition Fee was due and payable to the Managing General Partner, all of
which will be paid out of the proceeds of the Sale.
Voting Procedures
This Consent Solicitation Statement outlines the procedures to be
followed by Limited Partners in order to consent to the Sale. A form of Consent
of Limited Partner (a "Consent") is attached hereto. These procedures must be
strictly followed in order for the instructions of a Limited Partner as marked
on such Limited Partner's Consent to be effective. The following is a summary of
certain of these procedures:
1. A Limited Partner may make his or her election on the Consent only
during the solicitation period commencing upon the date of delivery of this
Consent Solicitation Statement and continuing until the earlier of (i)
___________, 1998 or such later date as may be determined by the Managing
General Partner and (ii) the date upon which the Managing General Partner
determines that the Sale has been approved by a majority-in-interest of the
Limited Partners (the "Solicitation Period").
2. Limited Partners are encouraged to return a properly completed and
executed Consent in the enclosed envelope prior to the expiration of the
Solicitation Period.
3. A Consent delivered by a Limited Partner may be changed prior to
the expiration of the Solicitation Period by delivering to the Partnership a
substitute Consent, properly completed and executed, together with a letter
indicating that the Limited Partner's prior Consent has been revoked.
4. A Limited Partner submitting a signed but unmarked Consent will be
deemed to have voted FOR the Partnership's participation in the Sale.
II. THE SALE
Background and Reasons for the Sale
On July 29, 1998, the Partnership filed a preliminary consent
solicitation statement with the Securities and Exchange Commission regarding a
proposed sale of the Properties to an affiliate of the Managing General Partner
for a purchase price of $24,876,300, $10,432,977 of which was to be payable in
cash and $14,443,323 through the assumption of certain mortgage indebtedness.
On August 14, 1998, JH Real Estate Partners, Inc. of Anaheim,
California contacted the Partnership to express its interest in acquiring the
Properties. After satisfactorily demonstrating its ability to finance the
proposed transaction, JH Real Estate Partners commenced a due diligence review
of the Properties. As of September 25, 1998, the affiliate of the Managing
General Partners withdrew its offer of $24,876,300 and the Partnership entered
into a purchase and sale agreement with the Buyers that included a purchase
price of $31,900,000. The terms of the Sale were determined in arm's-length
negotiations between the Partnership and the Buyers. Consummation of the Sale is
subject to the approval of a majority-in-interest of the Limited Partners.
782016.1
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<PAGE>
Limited Partners realized an aggregate of approximately $24.00 per
Unit in current passive activity rental losses for 1997. Limited Partners
realized approximately $4.29 per Unit in interest income for 1997. The Managing
General Partner believes that it is in the best interests of the Partnership to
sell its interests in the Properties at this time.
Pursuant to the terms of the Partnership Agreement, the Sale will
result in the dissolution of the Partnership.
Acquisition Agreement
The Partnership has entered into a purchase and sale agreement with
the Buyers. The purchase and sale agreement sets forth the terms and conditions
under which the Partnership and the Buyers are obligated to proceed with the
Sale and sets forth certain other agreements of such parties with respect to the
Sale.
Consideration. The purchase and sale agreement provides for a purchase
price of $31,900,000 in cash for the Properties.
Representations and Warranties. The Partnership has not made any
representations and warranties to the Buyers in the purchase and sale agreement
with respect to the Properties, and the Properties will be sold "as is." In
addition, the Buyers will assume certain mortgage indebtedness in connection
with the Sale.
Conditions. The purchase and sale agreement includes a number of
conditions to the Buyer's obligation to consummate the Sale, including the
receipt of any required third-party consents to the Sale and that no material
adverse change shall have occurred with respect to a Property.
Amendment and Closing. The Partnership and the Buyers may mutually
agree to amend the terms of the purchase and sale agreement in a manner which,
in the good faith judgment of the Managing General Partner (consistent with the
Managing General Partner's fiduciary duty to the Partnership and the Limited
Partners), does not materially reduce the benefits to be received by the Limited
Partners from the Sale without resoliciting the consent of the Limited Partners.
Approval of the proposed Sale by the Limited Partners will be deemed to include
authorization of the Managing General Partner to (i) execute on behalf of the
Partnership such amendments, instruments and documents as shall be necessary to
effectuate the Sale, and (ii) make modifications to the terms of the proposed
Sale that, in the good faith determination of the Managing General Partner, are
in the best interests of the Limited Partners. If the closing does not occur by
December 31, 1998 the purchase and sale agreement will be terminated.
Transaction Costs
The transaction costs incurred in connection with the Sale will be
borne by the Partnership as they are incurred, whether or not the Sale is
approved by the Limited Partners or ultimately consummated. The Managing General
Partner estimates that the transaction costs will be as follows:
Accounting .............................................. $ 50,000
Legal ................................................... 50,000
Escrow Costs (seller's portion).......................... 25,000
Title Policy (seller's portion).......................... 35,000
Consent Solicitation Costs............................... 6,000
Miscellaneous Costs...................................... 81,000
------------
Total.................................................... $247,000
=========
The General Partners will receive a distribution of approximately
$168,758 for their interests in the Partnership in connection with the Sale,
plus $767,192 in consideration of the Deferred Acquisition Fee.
782016.1
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<PAGE>
Distribution of Sale Proceeds; Accounting Treatment
Following the Sale it is anticipated that the Partnership's affairs
will be wound up and the Partnership will be liquidated. After the payment of
all liabilities and expenses, the consideration to be paid to the Partnership
for the Properties will be allocated and distributed among Limited and General
Partners in accordance with the cash distribution rules set forth in the
Partnership Agreement. Pursuant to the Partnership Agreement, net distribution
proceeds are distributable as follows:
o Proceeds from the liquidation of the Partnership shall be
distributed first to creditors in the order of priority as
provided for by law, second to the setting up of such reserves as
the General Partners deem necessary, and third to the Limited and
General Partners as follows: (a) first to the General Partners in
an amount equal to any fees owed to the General Partners under
the Partnership Agreement that have not yet been paid, including
the Deferred Acquisition Fee; (b) next, 99% to the Limited
Partners and 1% to the General Partners until the Limited
Partners have received an amount equal to their adjusted capital
accounts plus an amount equal to a cumulative non-compounded
6%annual return on their aggregate adjusted capital accounts from
time to time (which annual return shall, with respect to each
Limited Partner, be calculated commencing with the fiscal quarter
after termination of the offering, and shall be reduced by any
cash distributions actually distributed to such Limited Partner
or predecessor in interest); and (c) the balance, if any, 85% to
the Limited Partners and 15% to the General Partners; provided,
that upon dissolution of the Partnership, such balance, if any,
shall be distributed to the Limited Partners and the General
Partners in proportion to their respective positive account
balances.
Based on the distribution priority in the Partnership Agreement, and
assuming the net proceeds of the Sale are $16,875,762 (after payment of the
Deferred Acquisition Fee), the Limited Partners will be entitled to receive
$16,707,004 in cash ($557 per Unit). NAPICO and NPIA II will be entitled to
receive a distribution in connection with the Sale of $168,758 and the
Partnership will pay, using proceeds from the Sale, $767,192 to the Managing
General Partner in connection with the unpaid Deferred Acquisition Fee. The
Deferred Acquisition Fee is for services rendered to the Partnership in
connection with the selection, purchase, development and management of the
Properties. The Partnership will also distribute any cash reserves remaining
after winding down its operations and liquidating after the Sale. Such reserves
are expected to be insignificant.
Recommendation of the Managing General Partner; Fairness
The recommendation of the Managing General Partner in favor of the
Sale is based upon its belief that the Sale is fair to the Limited Partners for,
among others, the following reasons: (a) its belief that the terms and
conditions of the Sale, including the Purchase Price, are fair to the Limited
Partners of the Partnership; (b) its belief that the alternatives available to
the Partnership are not as attractive to the Limited Partners as the Sale; (c)
its belief that now may be an opportune time for the Partnership to sell the
Properties, given current conditions in the real estate and capital markets; and
(d) its belief that the Purchase Price represents the highest amount that a
third party would offer the Partnership for the Properties. The Managing General
Partner did not attempt to market the Properties to any third parties.
The Purchase Price of $31,900,000 was determined as a result of
arm's-length negotiations and it exceeded the proposed purchase price offered by
affiliates of the Managing General Partner, which the Managing General Partner
believed was fair. The Managing General Partner believes that the Purchase Price
is fair and reasonable and exceeds the price that the Partnership would likely
receive if the Properties were to be marketed to a third party or parties. Due
to changes in the tax laws pursuant to which losses of the Partnership are
treated as passive losses and can only be deducted against passive income, most
Limited Partners are not realizing material tax benefits from continuing to own
their limited partnership interests.
782016.1
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<PAGE>
III. THE PARTNERSHIP
General
The Partnership is a limited partnership that was formed under the
laws of the State of California on September 9, 1981. On September 27, 1983, the
Partnership offered 30,000 Units, each Unit consisting of one limited
partnership interest in the Partnership, at $1,000 per Unit through an offering
managed by E.F. Hutton & Company Inc. As of September 30, 1998 there were 30,000
limited partnership interests in the Partnership outstanding.
The Managing General Partner of the Partnership is NAPICO. The
business of the Partnership is conducted primarily by NAPICO. NPIA II is the
non-managing General Partner of the Partnership. Pursuant to an agreement
between NAPICO and NPIA II, NAPICO has the primary responsibility for the
performance of any duties required to be performed by the General Partners and,
in general, has sole and final discretion to manage and control the business of
the Partnership and make all decisions relating thereto. NPIA II has not
participated in the management of the Partnership, or in decisions made by the
Partnership in connection with the proposed Sale. NPIA II has not taken a
position with respect to the Sale nor has it participated in the preparation of
this Consent Solicitation Statement. The Partnership has no employees of its
own.
Casden Investment Corporation owns 100 percent of NAPICO's stock. The
current members of NAPICO's Board of Directors are Charles H. Boxenbaum, Bruce
E. Nelson, Alan I. Casden and Henry C. Casden. Alan I. Casden is the sole
director and stockholder of Casden Investment Corporation and, accordingly,
controls NAPICO.
The original objectives of the Partnership were to own and operate the
Properties (and certain other real estate assets) for investment so as to (i)
generate cash distributions for Limited Partners from operations of the
Properties, of which all or a portion of would be a return of capital or "tax
sheltered"; (ii) provide protection for the Partnership's capital investments;
and (iii) provide capital gains through appreciation, and equity build up
through principal reduction of mortgage loans on the properties over a period of
five to seven years.
The Partnership holds interests in five Properties, each of which is a
conventional multi-unit apartment complex. The mortgage on one of the Properties
is insured by HUD. During the period for which the mortgage is so insured, its
rents will be subject to regulation by HUD.
The Properties in which the Partnership has invested generated $3,500
in income to the Partnership in 1997, before Partnership expenses of
approximately $355,249 and interest income of $105,777. At September 30, 1998,
the Partnership had a cash reserve of $883,570.
782016.1
-8-
<PAGE>
The Properties
During 1997, all of the Properties in which the Partnership had
invested were substantially rented. The following is a schedule of the status,
as of December 31, 1997, of the Properties owned by the Partnership.
No. of Percentage of
Name & Location Units Units Occupied Total Units
Arbor Glenn 208 195 94%
West Covina, CA
Park Creek 123 112 91%
Canoga Park, CA
Warner Willows I 74 74 100%
Woodland Hills, CA
Warner Willows II 73 70 96%
Woodland Hills, CA
Willowbrook Apartment 183 175 96%
Reno, NV
- ----------------- ----- ----- -----
Total 661 626 95%
- ----- ===== ===== =====
The Properties range in age from 17 to 25 years. Routine repair,
maintenance and capital expenditures made out of operating cash reserves by the
Partnership amounted to approximately $1,781,359 in the aggregate for the year
ended December 31 1997. Due to the age of the Properties, capital expenditures
are expected to increase progressively over the remaining useful lives of the
Properties. In addition, recent engineering studies of the Properties performed
by the Managing General Partner indicate that the Properties require immediate
capital expenditures of approximately $3,000,000 in order to maintain the
Properties' competitive position within their respective markets.
Each of the five Properties is encumbered by a mortgage note. The
outstanding principal balance as of September 30, 1998 were as follows:
Arbor Glen $ 5,545,461
Park Creek 1,256,395
Warner Willows I 2,679,046
Warner Willows II 2,618,505
Willowbrook 2,157,639
-----------
$14,257,046
===========
782016.1
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<PAGE>
The following is a summary of the operating budgets for the Properties
for 1998.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Arbor Glen Park Creek Warner Willows I Warner Willows II Willowbrook
Gross Potential Income $ 1,686,600 $ 874,704 $ 756,660 $ 735,060 $1,431,252
Vacancy & Concessions (84,330) (133,387) (37,836) (36,753) (82,761)
Bad Debt Expense (15,120) (14,244) (13,320) (22,572) (8,400)
------------- ------------ -------------- ---------------- -----------
Net Rental Income 1,587,150 727,073 705,504 675,735 1,340,091
Total Other Income 61,704 39,492 17,400 22,980 42,780
------------- ------------ -------------- ---------------- -----------
Total Revenue 1,648,854 766,565 722,904 698,715 1,382,871
------------- ------------ -------------- ---------------- -----------
Payroll 127,235 107,294 66,057 65,955 194,093
Utilities 166,560 61,716 59,136 54,996 231,269
Grounds and Pool 98,892 23,460 32,460 28,584 34,750
Repairs and Maintenance 121,504 63,144 39,693 45,991 60,590
Taxes and Insurance 205,917 100,058 77,515 74,566 141,884
Rental Expense 20,304 8,832 6,384 6,384 12,120
General Administrative 120,612 59,700 51,829 45,616 113,113
------------- ------------ -------------- ---------------- -----------
Total Operating Expenses 861,024 424,204 333,074 322,092 787,819
------------- ------------ -------------- ---------------- -----------
Net Operating Income 787,830 342,361 389,830 376,623 595,052
Total Capital Expenditures 172,181 63,690 19,080 19,080 214,601
------------- ------------ -------------- ---------------- -----------
Net Cash Flow Before Debt-Service 615,649 278,671 370,750 357,543 380,451
Total Debt Service 548,764 164,051 330,836 319,629 234,842
------------- ------------ -------------- ---------------- -----------
Net Cash Flow $ 66,885 $ 114,620 $ 39,914 $ 37,914 $ 145,609
============== =========== ============== ================ ===========
</TABLE>
Market for Partnership Interests and Related Security Holder Matters
Limited partnership interests in the Partnership were sold through a
public offering managed by an affiliate of the predecessor of Lehman Brothers
Inc., and are not traded on a national securities exchange or listed for
quotation on the Nasdaq Stock Market. There is no established trading market for
Units and it is not anticipated that any market will develop for the purchase
and sale of the Units. Pursuant to the Partnership Agreement, Units may be
transferred only with the written consent of the Managing General Partner,
unless the proposed transfer is to a member of the family of the transferring
Limited Partner, a trust set up for the benefit of the Limited Partner's family,
or a corporation or other entity in which the Limited Partner has a majority
interest. At September 30, 1998, there were 2,781 registered holders of Units in
the Partnership. None of the Units are beneficially owned by the Managing
General Partner or its affiliates.
No established trading market for the Units was ever expected to
develop and the sales transactions for the Units have been limited and sporadic.
On March 9, 1998, the Limited Partners received an unsolicited offer from a
third party to purchase up to 3.3% of the outstanding Units at a purchase price
of $300.00 per Unit. On May 15, 1998, the Limited Partners received an
unsolicited offer from a third party to purchase 4.9% of the outstanding Units
at a purchase price of $350.00 per Unit.
782016.1
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<PAGE>
The following table sets forth the quarterly high and low sales prices
for the Units for each quarterly period during the last two years (including
transfers made in connection with unsolicited tender offers).
High Low
Fourth Quarter 1996 $215.00 $50.00
First Quarter 1997 $242.00 $176.00
Second Quarter 1997 $263.00 $195.00
Third Quarter 1997 $287.04 $140.50
Fourth Quarter 1997 $265.00 $142.00
First Quarter 1998 $287.00 $227.00
Second Quarter 1998 $300.00 $150.00
Third Quarter 1998 $350.00 $245.00
The Managing General Partner monitors transfers of the Units (a)
because the admission of a substitute limited partner requires the consent of
the Managing General Partner under the Partnership Agreement, and (b) in order
to track compliance with safe harbor provisions under the Securities Act to
avoid treatment as a "publicly traded partnership" for tax purposes. While the
Partnership requests to be provided with the price at which a transfer is being
made, and the Partnership receives some information regarding the price at which
secondary sale transactions in the Units have been effectuated, the Managing
General Partner does not maintain comprehensive information regarding the
activities of all broker/dealers and others known to facilitate from time to
time, or on a regular basis, secondary sales of the Units. It should be noted
that some transactions may not be reflected on the records of the Partnership.
It is not known to what extent Unit sales transactions are between buyers and
willing sellers, each having access to relevant information regarding the
financial affairs of the Partnerships, expected value of their assets, and their
prospects for the future. Many Unit sales transactions are believed to be
distressed sales where sellers are highly motivated to dispose of the Units and
willing to accept substantial discounts from what might otherwise be regarded as
the fair value of the interest being sold, to facilitate the sales. The prices
paid recently for Units generally do not reflect the current market of the
Partnerships' assets, nor are they indicative of total return, since prior cash
distributions and tax benefits received by the original investor are not
reflected in the price. Nonetheless, notwithstanding these qualifications, the
Unit sales prices, to the extent that the reported data are reliable, are
indicative of the prices at which the Units have recently been sold. None of the
Unit sales transactions have involved the Managing General Partner or its
affiliates.
The Partnership is not aware of any person that holds 5% or more of
the Units. Neither NAPICO nor its officers and directors hold any Units.
Distribution History
It was the intention of the Partnership that distributions of net cash
from operations be made quarterly, pro rata, in proportion to the number of
Units held. From November 1994 through May 1996, distributions to Limited
Partners were not made due to the Partnership's setting aside funds for losses
incurred as a result of the January 17, 1994 Northridge earthquake. The
Partnership made distributions of $600,000 and $300,000 to the Limited Partners
in 1997 and 1996, respectively. In addition, total distributions of $900,856
were made to NAPICO in 1997 consisting of $834,188 related to the period July 1,
1987 through December 31, 1996 and $66,668 related to 1997. Under the terms of
the Partnership Agreement, cash available for distribution is to be allocated 90
percent to the Limited Partners as a group and 10 percent to the General
Partners. Based on cash distributions made to the Limited Partners as of
December 31, 1996, $834,188 was due to the General Partners as their 10% percent
share of cash available for distribution. This amount was paid to the General
Partners in February 1997. For the nine months ended September 30, 1998,
$300,000 and $33,334 was distributed to the Limited Partners and NAPICO,
respectively. Future distributions will depend in part on the operating results
of the Properties and will be impacted significantly by anticipated capital
expenditures to cure certain items of deferred maintenance, including roof and
wall repairs and repairs relating to earthquake damage.
782016.1
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<PAGE>
In the case of the sale or refinancing of the property, the General
Partners are entitled to receive 1% of the net proceeds from the sale or
refinancing until the Limited Partners have received an amount equal to their
adjusted capital value (as defined in the Partnership Agreement) plus cumulative
distributions (including net cash from operations) equal to a non-compounded 6%
annual distribution with respect to their adjusted capital value, after which
the General Partners shall receive 15% of the balance of any net proceeds from
sale or refinancing. In addition, the Partnership will pay, using proceeds from
the Sale, approximately $767,000 to the Managing General Partner in connection
with the Deferred Acquisition Fees. The Deferred Acquisition Fee is for services
rendered to the Partnership in connection with the selection, purchase,
development and management of the Properties. Income and losses are allocated
99% to Limited Partners and 1% to the General Partners.
There are no regulatory or legal restrictions on the Partnership's
current or future ability to pay distributions, however, the rental rates of one
of the Properties are subject to HUD regulation during the period that the
mortgage of such Property is insured by HUD.
Year 2000 Information
The Partnership has assessed the potential impact of the Year 2000
computer systems issue on its operations. The Partnership believes that no
significant actions are required to be taken by the Partnership to address the
issue and that the impact of the Year 2000 computer systems issue will not
materially affect the Partnership's future operating results or financial
condition. Due to the nature of its operations and its relationships with third
parties, the Partnership does not anticipate having to make any material
expenditures related to the Year 2000 computer systems issue.
782016.1
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<PAGE>
IV. SELECTED FINANCIAL INFORMATION
The following table sets forth selected historical financial and
operating data of the Partnership for the fiscal years ended December 31, 1997,
1996, 1995, 1994, 1993 and for the nine-month periods ended September 30, 1998
and 1997. The following information should be read in conjunction with the
Partnership's Annual Report on Form 10-K and Quarterly Report on Form 10-Q,
which are attached hereto as Annexes B and C, respectively.
The selected historical financial and operating data of the
Partnership for the nine-month periods ended September 30, 1998 and September
30, 1997 are derived from unaudited consolidated financial statements of the
Partnership which, in the opinion of the Managing General Partner, include all
adjustments (consisting only of normal recurring items unless otherwise
disclosed) necessary for a fair presentation of the Partnership's financial
position and results of operations. The results set forth for the nine-month
periods ended September 30, 1998 and September 30, 1997 are not necessarily
indicative of results to be expected for a full year.
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
------------------------------------------------------------------- --------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1997 1996 1995 1994 1993 1998 1997
------------ ------------ ----------- ------------ ------------ ------------- ------------
Partnership Operations
Interest Income............. $ 105,777 $ 89,711 $ 49,476 $ 37,710 $ 12,779 $ 36,790 $ 91,285
Operating Expenses.......... 355,249 158,460 185,584 226,208 353,825 275,659 191,239
------------ ------------ ----------- ------------ ------------ ------------- ------------
Loss from Partnership
Operations.................. (249,472) (68,749) (136,108) (188,498) (341,046) (238,869) (99,954)
------------ ------------ ----------- ------------ ------------ ------------- ------------
Rental Operations
Revenues.................... 4,925,227 4,935,895 5,486,329 5,678,656 5,463,671 3,863,069 3,643,576
Expenses.................... 4,921,727 4,942,160 5,675,071 6,514,923 5,402,010 3,971,338 3,608,643
------------ ------------ ----------- ------------ ------------ ------------- ------------
Income (Loss) from Rental
Operations 3,500 (6,265) (188,742) (836,267) 61,661 (108,269) 34,933
------------ ------------ ----------- ------------ ------------ ------------- ------------
Gain on Foreclosure of
Rental Property........... -- 259,088 -- -- -- -- --
------------ ------------ ----------- ------------ ------------ ------------- ------------
Net Income (Loss)........... $ (245,972) $ 184,074 $ (324,850) $ (1,024,765) $ (279,385)$ (347,138) $ (65,021)
============ ============ =========== ============ ============ ============ ===========
Net Income (Loss)
allocated to
Limited Partners.......... $ (243,512) $ 182,234 $ (321,601) $ (1,014,517) $ (276,591)$ (343,666) $ (64,370)
============ ============ =========== ============ ============ ============ ===========
Net Income (Loss) per
Limited Partnership
Interest.................. $ (8) $ 6 $ (11) $ (34) $ (9) $ (12) $ (2)
============ ============ =========== ============ ============ ============ ===========
Total assets................ $ 20,791,123 $ 22,049,995 $26,365,792 $ 26,668,029 $ 27,182,103 $ 19,936,686 $ 21,098,918
============ ============ =========== ============ ============ ============ ===========
Mortgage Notes Payable...... $ 14,443,323 $ 14,064,914 $17,747,363 $ 17,959,940 $ 15,517,461 $ 14,257,046 $ 14,502,497
============ ============ =========== ============ ============ ============ ===========
Cash Distribution per
Limited Partnership
Interest $20.00 $10.00 $ -- $15.00 $10.00 $10.00 $15.00
============ ============ =========== ============ ============ ============ ===========
Partners' Equity............ $ 4,562,631 $ 6,309,459 $ 6,425,385 $ 6,750,235 $ 8,225,000 $ 3,882,159 $ 4,910,249
============ ============ =========== ============ ============ ============ ===========
Limited Partners'
Equity.................... $ 6,184,431 $ 7,027,943 $ 7,145,709 $ 7,467,310 $ 8,931,827 $ 5,540,765 $ 6,513,573
============ ============ =========== ============ ============ ============ ===========
Limited Partners' Equity
per Limited Partnership
Interest.................. $ 206 $ 234 $ 238 $ 249 $ 298 $ 185 $ 217
============ ============ =========== ============ ============ ============ ===========
</TABLE>
782016.1
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<PAGE>
V. FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material tax consequences relating
to the proposed Sale and the distribution of approximately $557 per Unit to the
Limited Partners. However, each Limited Partner is urged to consult his, her or
its own tax advisor for a more detailed explanation of the specific tax
consequences to such Limited Partner from the Sale.
Upon consummation of the Sale, and subject to the passive activity
rules described below, each Limited Partner will recognize his, her or its share
of the taxable gain of the Partnership to the extent that the sum of (i) the
cash, plus (ii) the fair market value of any property received by the
Partnership on the Sale plus (iii) the outstanding principal amount of the
Partnership's nonrecourse indebtedness, exceeds the Partnership's adjusted basis
for the Properties. Gain realized by the Partnership on the Sale will generally
be a Section 1231 gain (i.e., long-term capital gain, except for the portion
thereof which is taxable as ordinary income due to depreciation recapture). A
Partner's share of gains and losses from Section 1231 transactions from all
sources would be netted and would be taxed as capital gains or constitute
ordinary losses, as the case may be. A net Section 1231 gain for a taxable year
will be treated as capital gain only to the extent such gain exceeds the net
Section 1231 losses for the five most recent prior taxable years not previously
recaptured. Any gain attributable to a Limited Partner's share of depreciation
recapture will be taxed at ordinary income rates.
The taxable income realized by each Limited Partner by reason of the
Sale should be characterized as income from a "passive activity" and may be
offset by a Limited Partner's available "passive activity losses" (including
suspended losses). Under the Tax Reform Act of 1986 (the "1986 Act") losses from
passive activities may only be offset against income from passive activities or
may be deducted in full when the taxpayer disposes of the passive activity from
which the loss arose. However, pursuant to a transitional rule contained in the
1986 Act, a certain percentage of losses from a passive activity which was held
by the taxpayer on the date of the enactment of the 1986 Act (i.e., October 22,
1986) and at all times thereafter was permitted to offset any type of income
during the years 1987 through 1990.
It is estimated that as a consequence of the Sale, each Limited
Partner will have taxable income equal to approximately $557 per Unit, of which
$541 will constitute long-term capital gain and $16 of which will be ordinary
income due to recapture of accelerated depreciation. The income tax consequences
of the Sale to any Limited Partner depends in large part upon the amount of
losses that were allocated to such Limited Partner by the Partnership and the
amount of such losses which were applied by such Limited Partner to offset his
or her taxable income. If a Limited Partner has not utilized any of the passive
activity losses allocated to such Limited Partner in excess of those amounts
permitted under the transitional rule relief described above, the Limited
Partner will realize net cash in excess of any federal and state taxes of
approximately $520 per Unit. Because passive losses are only deductible against
passive income after 1986 (subject to the transitional rules described above),
the Managing General Partner does not have any basis for determining the amount
of such passive losses which have previously been utilized by Limited Partners.
The anticipated cash distribution of approximately $557 per Unit would be
sufficient to pay the federal and state tax liability arising from the Sale.
The net tax liability was calculated assuming a federal capital gains
rate of 25%, (the current capital gains rate for the portion of net Section 1231
gain attributable to unrecaptured depreciation not otherwise taxed as ordinary
income) and assuming an effective state tax rate of 5%, and that Limited
Partners have suspended passive losses of $297 per Unit from the Partnership
(which is the amount of passive losses that a Limited Partner would have it had
it not utilized any of its passive losses (except to the extent permitted under
the transitional rule)). The net tax liability was calculated by deducting from
the tax payable on the gain from the sale the tax benefit resulting from the
ability to deduct the suspended passive losses against ordinary income assuming
that the Limited Partner has sufficient ordinary income which would otherwise
have been taxed at the 39.6% marginal tax rate for federal income tax purposes
to fully utilize such losses at such rate, and assuming a state income tax rate
of 5%. In addition to assuming federal income tax rates, the calculation of
income tax liability of a Limited Partner assumes that such Limited Partner has
no net Section 1231 losses for the five most recent prior taxable years. If this
latter assumption is not applicable to a Limited Partner, the income tax
liability of such Limited Partner could increase because certain
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income would be taxed at ordinary, instead of capital gains tax rates. Limited
Partners are advised to consult with their own tax advisors for specific
application of the tax rules where the above-described assumption is not
applicable. The foregoing does not take into consideration the effect of any
local tax liabilities that may be applicable to the Sale.
While the financial circumstances of the Limited Partners may vary
considerably, the Managing General Partner believes it is reasonable to assume
that the majority of the current Limited Partners will be in the highest federal
tax bracket in 1998. The Managing General Partner believes that while state tax
rates vary from state-to- state, the effective average state tax rate for
individuals who itemize deductions is approximately 5%. The Managing General
Partner calculated the tax benefit from the suspended passive losses at 44.6%
(39.6% federal rate plus a 5% effective state rate).
To the extent that a Limited Partner was able to utilize more passive
activity losses than were available under the transitional rules (e.g., because
such Limited Partner had passive income from other sources) to offset his, her
or its taxable income, the estimated federal income tax liability of such
Limited Partner would substantially increase. Thus, for example, if a Limited
Partner had no suspended passive activity losses to carry forward, it is
estimated that such Limited Partner would have a federal and state income tax
liability equal to approximately $169 per Unit. Accordingly, net cash received
by such Limited Partners in connection with the Sale is anticipated to be
approximately $388 per Unit. In addition, to the extent that a Limited Partner
does not have sufficient ordinary income taxed at a 39.6% marginal rate to fully
utilize the suspended passive losses against such income, the Limited Partner's
net tax benefits from the Sale would be reduced and the Limited Partner is
likely to receive a lower net cash distribution.
BECAUSE IT IS IMPOSSIBLE TO KNOW THE AMOUNT OF LOSSES ANY LIMITED
PARTNER HAS APPLIED TO OFFSET HIS, HER OR ITS TAXABLE INCOME, THE GENERAL
PARTNERS CANNOT ESTIMATE THE INCOME TAX LIABILITY OF EACH LIMITED PARTNER
ARISING FROM THE SALE, THEREFORE, EACH LIMITED PARTNER SHOULD CONSULT HIS, HER
OR ITS TAX ADVISOR CONCERNING THE INCOME TAX CONSEQUENCES OF CONSENTING TO THE
SALE WITH RESPECT TO SUCH LIMITED PARTNER'S OWN TAX SITUATION.
VI. LEGAL PROCEEDINGS
On June 25, 1997, the Commission settled administrative proceedings
against NAPICO, three members of NAPICO's senior management and three affiliated
entities for their roles in two separate series of securities laws allegations.
In connection therewith, the Commission ordered certain NAPICO-related persons
and entities to cease and desist from committing or causing securities law
violations and ordered NPEI, a brokerage firm affiliated with NAPICO, to undergo
a review of certain of its policies and procedures and pay a $100,000 penalty.
The first series of securities law allegations involved a "part or
none" private placement offering of interests in National Corporate Tax Credit
Fund ("Corporate Fund"). The offering was to take place in phases, with the
first phase closing after the sale of five units, priced at $1 million each. The
Commission found that, in June 1992, NAPICO accomplished the closing of the
first phase through the use of a non-bona fide investor. The Commission found
that NAPICO and the Corporate Fund thereby violated Section 10(b) of the
Exchange Act and Rule 10b-9, provisions that prohibit misrepresentations in
connection with "all or none" or "part or none" offerings. The Corporate Fund
offering continued in 1992 and 1993, and the offering documents distributed to
potential investors contained no disclosure related to this transaction, which
the Commission found was in violation of Sections 17(a)(2) and (3) of the
Securities Act, which prohibit material misrepresentations or omissions in
connection with the offer and sale of securities. The Commission found that Alan
I. Casden, Vice Chairman of NAPICO's Board of Directors and NAPICO's beneficial
owner; Charles H. Boxenbaum, Chairman of NAPICO's Board of Directors; and Bruce
E. Nelson, NAPICO's President, caused these violations.
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The second series of violations involved a NAPICO-controlled public
partnership called Century HillCreste Apartment Investors ("HillCreste").
HillCreste was required to file annual and quarterly reports with the
Commission. The Commission found that HillCreste failed to disclose in its
reports filed with the Commission from 1991 through 1993 that HillCreste's cash
was used to pay the expenses of other properties that were managed by an
affiliated property management company, including properties syndicated by
entities affiliated with Casden or NAPICO. The Commission found that these
disclosure failures by HillCreste violated Sections 17(a)(2) and (3) of the
Securities Act, Sections 13(a) and Rules 13a-1, 13a-13 and 12(b)(2) thereunder,
which prohibit material misrepresentations or omissions in periodic reports
filed with the Commission. The Commission found that the failure of HillCreste
to maintain adequate internal controls to prevent these transactions from being
improperly recorded violated Sections 13(b)(2)(A) and (B) of the Exchange Act,
books and records provisions of the federal securities laws. The Commission
found Alan Casden to have caused HillCreste's violations of these provisions.
NAPICO, NPEI, Corporate Fund, HillCreste, Mr. Casden, Mr. Boxenbaum
and Mr. Nelson all consented to the above relief without admitting or denying
the findings in the Commission's order.
VII. LIMITED PARTNERS CONSENT PROCEDURE
Distribution of Solicitation Materials
This Consent Solicitation Statement and the related Consent are first
being mailed to Limited Partners on or about ________ __, 1998. Only Limited
Partners of record on ___________, 1998 (the "Record Date") will be given notice
of, and allowed to give their consent regarding, the matters addressed in this
Consent Solicitation Statement.
This Consent Solicitation Statement, together with the Consent and the
letter from the Managing General Partner, constitute the Solicitation Materials
to be distributed to the Limited Partners to obtain their votes for or against
the Sale. The Solicitation Period is the time frame during which Limited
Partners may vote for or against the Sale. The Solicitation Period will commence
upon the date of this Consent Solicitation Statement and will continue until the
earlier of (i) _________, 1998 or such later date as may be determined by the
Managing General Partner and (ii) the date upon which the Managing General
Partner determines that a majority-in-interest of the Limited Partners have
approved the Sale. At its discretion, the Managing General Partner may elect to
extend the Solicitation Period. Under no circumstances will the Solicitation
Period be extended beyond ______________, 1998. Any Consents delivered to the
Partnership prior to the termination of the Solicitation Period will be
effective provided that such Consents have been properly completed, signed and
delivered.
As permitted by the Partnership Agreement, the Partnership has not
scheduled a special meeting of the Limited Partners to discuss the Solicitation
Materials or the terms of the Sale.
Voting Procedures and Consents
Limited Partners of record as of the Record Date will receive notice
of, and be entitled to vote, with respect to the Sale.
The Consent included in the Solicitation Materials constitutes the
ballot to be used by Limited Partners in casting their votes for or against the
Sale. By marking the Consent, the Limited Partner may either vote "for,"
"against" or "abstain" as to the Partnership's participation in the Sale. Once a
Limited Partner has voted, he may not revoke his vote unless he submits a second
Consent, properly signed and completed, together with a letter indicating that
this prior Consent has been revoked, and such second Consent is received by
Gemisys Corporation (the "Tabulator") prior to expiration of the Solicitation
Period. See "Withdrawal and Change of Election Rights" below.
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The Sale will not be completed unless it is approved by a
majority-in-interest of the Limited Partners. BECAUSE APPROVAL REQUIRES THE
AFFIRMATIVE VOTE OF A MAJORITY OF THE OUTSTANDING UNITS OF LIMITED PARTNERSHIP
INTEREST, FAILURE TO VOTE WILL HAVE THE SAME EFFECT AS A VOTE AGAINST THE SALE.
Any Limited Partner who returns his Consent signed but does not
specify "for," "against" or "abstain" will be deemed to have voted "for" the
Sale.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of the Consent will be determined by the
Tabulators, whose determination will be final and binding. The Tabulator
reserves the absolute right to reject any or all Consents that are not in proper
form or the acceptance of which, in the opinion of the Managing General
Partner's counsel, would be unlawful. The Tabulator also reserves the right to
waive any irregularities or conditions of the Consent as to particular Units.
Unless waived, any irregularities in connection with the Consents must be cured
within such time as the Tabulator shall determine. The Partnership, the Managing
General Partner and the Tabulator shall be under no duty to give notification of
defects in such Consents and shall not incur liabilities for failure to give
such notification.
Completion Instructions
Each Limited Partner is requested to complete and execute the Consent
in accordance with the instructions contained therein. For his Consent to be
effective, each Limited Partner must deliver his Consent to the Tabulator at any
time prior to the termination of the Solicitation Period to the Partnership at
the following address:
Gemisys Corporation
7103 South Revere Parkway
Englewood, Colorado 80112
A pre-addressed stamped envelope for return of the Consent has been
included with the Solicitation Materials. Limited Partners may also telecopy an
executed copy of this Consent to the Partnership at Tabulator at 303-705-6171.
The Consents will be effective only upon actual receipt by the Tabulator. The
method of delivery of the Consent to the Partnership is at the election and risk
of the Limited Partner, but if such delivery is by mail it is suggested that the
mailing be made sufficiently in advance of _______ __, 1998 to permit delivery
to the Partnership on or before such date.
Withdrawal and Change of Election Rights
Consents may be withdrawn at any time prior to the expiration of the
Solicitation Period. In addition, subsequent to submission of his Consent but
prior to expiration of the Solicitation Period, a Limited Partner may change his
vote in favor of or against the Sale. For a withdrawal or change in vote to be
effective, a written or facsimile transmission notice of withdrawal or change in
vote must be timely received by the Tabulator at its address set forth under
"Completion Instructions" above and must specify the name of the person having
executed the Consent to be withdrawn or vote changed and the name of the
registered holder if different from that of the person who executed the Consent.
No Dissenters' Rights of Appraisal
Under the Partnership Agreement and California law, Limited Partners
do not have dissenters' rights of appraisal. If the Sale is approved by a
Majority Vote, and the other conditions to consummation of the Sale are
satisfied, all Limited Partners, both those voting in favor of the Sale and
those not voting in favor, will be entitled to receive the resulting cash
distributions.
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Solicitation of Consents
The Managing General Partner and its officers, directors and employees
may assist in the solicitation of consents and in providing information to
Limited Partners in connection with any questions they may have with respect to
this Consent Solicitation Statement and the voting procedures. Such persons and
entities will be reimbursed by the Partnership for out-of-pocket expenses in
connection with such services. The Partnership may also engage third parties to
assist with the solicitation of Consents and pay fees and reimburse the expenses
of such persons.
YOUR CONSENT IS IMPORTANT. PLEASE MARK, SIGN, AND DATE THE ENCLOSED
CONSENT AND RETURN IT IN THE ENCLOSED SELF-ADDRESSED, STAMPED ENVELOPE PROMPTLY.
If you have any questions about the consent procedure or require
assistance, please contact: MacKenzie Partners, the Partnership's consent
solicitation agent, toll free at 800-322-2885 or collect at 212- 929-5500.
VIII. IMPORTANT NOTE
It is important that Consents be returned promptly. Limited Partners
are urged to complete, sign and date the accompanying form of Consent and mail
it in the enclosed envelope, which requires no postage if mailed in the United
States, so that their vote may be recorded.
_________ ___, 1998
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REAL-EQUITY PARTNERS
9090 WILSHIRE BOULEVARD
BEVERLY HILLS, CALIFORNIA 90211
THIS CONSENT IS SOLICITED BY THE MANAGING GENERAL PARTNER
OF REAL-EQUITY PARTNERS
CONSENT OF LIMITED PARTNER
The undersigned hereby gives written notice to the Partnership that,
with respect to the proposal to sell all of the Partnership's real estate assets
to JH Real Estate Partners, Inc., a California corporation, and American
Apartment Communities III, L.P., a Delaware limited partnership, and to
authorize the Managing General Partner to take any and all actions that may be
required in connection therewith, including the payment of the Deferred
Acquisition Fee and the execution on behalf of the Partnership of such
amendments, instruments and documents as shall be necessary to effectuate the
Sale, the undersigned votes all of his, her or its units of limited partnership
interest as indicated below:
FOR AGAINST ABSTAIN
|_| |_| |_|
The undersigned acknowledges receipt from the Managing General Partner
of the Consent Solicitation Statement dated _________ __, 1998.
Dated: _____________, 199_
------------------------------
Signature
-------------------------------
Print Name
-------------------------------
Signature (if held jointly)
-------------------------------
Print Name
-------------------------------
Title
Please sign exactly as name appears hereon.
When units are held by joint tenants, both
should sign. When signing as an attorney, as
executor, administrator, trustee or
guardian, please give full title of such. If
a corporation, please sign name by President
or other authorized officer. If a
partnership, please sign in partnership name
by authorized person.
PLEASE RETURN THIS FORM BY 5:00 P.M. (NEW YORK CITY TIME) ON ________
[__], 1998.
PLEASE MARK, SIGN, DATE AND RETURN THIS CONSENT BY FACSIMILE TO
303-705-6171 OR BY USING THE ENCLOSED PREPAID ENVELOPE. IF YOU HAVE ANY
QUESTIONS, PLEASE CALL 800-322-2885.
A LIMITED PARTNER SUBMITTING A SIGNED BUT UNMARKED CONSENT WILL BE
DEEMED TO HAVE VOTED IN FAVOR OF THE SALE.
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