UNITED STATES
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
Filed by the Registrantx [X]
Filed by a Party other than the Registrant¨ [ ]
Check the appropriate box:
| ||
[X] Preliminary Proxy Statement |
|
(as permitted by Rule 14a-6(e)(2)) |
[ ] Definitive Proxy Statement
|
|
[ ] Definitive Additional Materials
|
|
| [ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12 |
DIVALL INSURED INCOME PROPERTIES 2 LIMITED PARTNERSHIP
(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):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DIVALL INSURED INCOME PROPERTIES 2 LIMITED PARTNERSHIP
1100 Main Street, Suite 1830
Kansas City, Missouri 64105
REQUEST FOR CONSENT OF LIMITED PARTNERS
Dear Limited Partner:
IMPORTANT: Biennial Consent for Sale
During the consent process in May 2001, we expressed to you that if the majority voted against the sale (in 2001, 74% voted against the sale) that we would circulate a new consent every two years to measure the pulse of our investors’ preferences.
The two years has passed and it’s that time again. Enclosed you will find a consent form.Please read it carefully.Your Advisory Board has been supportive of a selective “pruning” of properties (through individual sales) with higher potential risk profiles with respect to future earnings. The Advisory Board, does however, believe it is prudent to hold the majority of this portfolio because of the fundamental strength of the core assets . . . namely Wendy’s. The Partnership expects a stable annual return of approximately 7% going forward, which would be difficult to replace in the current interest rate environment.
Therefore, although we are circulating consents to poll the Limited Partners, the General Partner recommends against the sale and liquidation of the Partnership.
If, however, 51% of all outstanding units vote to sell, we will move forward immediately with a competitive bid process. If we do not receive a majority vote for sale, we will continue to operate the Partnership . . . business as usual. We will also circulate a new consent in two years to again poll Limited Partner preferences.
If you do not return your vote it will be considered a vote “against” a sale.
As always, if you have questions, please feel free to contact DiVall Investor Relations at (800) 547-7686.
Your consent is important. Please sign and date the enclosed Consent Card and return it promptly in the enclosed return envelope. You may revoke your Consent in writing.
Very truly yours,
THE PROVO GROUP, INC.,
as General Partner of
DIVALL INSURED INCOME PROPERTIES 2 LIMITED PARTNERSHIP
May 15, 2007(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):
[X] | No fee required. |
[ ] | Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and O-11. |
1) | Title of each class of securities to which transaction applies: |
2) | Aggregate number of securities to which transaction applies: |
3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule O-11(c)(2): |
4) | Proposed maximum aggregate value of transaction: |
5) | Total fee paid: |
[ ] | Fee paid previously with preliminary materials. |
[ ] | Check box if any part of the fee is offset as provided by Exchange Act Rule O-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: |
DIVALL INSURED INCOME PROPERTIES 2[Letterhead of The Provo Group, Inc.]
REQUEST FOR CONSENT OF LIMITED PARTNERSHIPPARTNERS
July 31, 2009
Dear Limited Partner:
1100 MAIN STREET, SUITE 1830IMPORTANT:Consent to Extend Term of Partnership
KANSAS CITY, MISSOURI 64105
CONSENT STATEMENT
May 15, 2007
ThisThese Consent Statement isSolicitation materials are being furnishedsent to holders (“Limited Partners”) ofyou and the other limited partnership interests (“Units”)partners in DiVall Insured Income Properties 2 Limited Partnership a Wisconsin limited partnership (“Partnership”), in connection withto solicit your consent to an amendment to the solicitationAmended Agreement of written consents byLimited Partnership extending the term of the Partnership. The Consent Solicitation is made on behalf of the Partnership by The Provo Group, Inc., as General Partner of the Partnership.
During the Consent process in May 2001, we expressed to approve ayou that if the majority voted against the bulk sale of all of the Partnership’s properties (the “Proposed Sale”),(in 2001, 74% voted against the sale) that we would circulate a new Consent every two years to provide the limited partners’ additional opportunities to submit their consent regarding such a sale. We have conducted a similar Consent process in 2003, 2005 and 2007, and in each instance you have not voted in favor of such a sale.
The two years have passed and once again we are providing our limited partners an opportunity to subsequently liquidateconsent to a bulk sale of the Partnership’s properties and the winding-up and dissolution of the Partnership. No meetingHowever, this year is a little different. The Partnership Agreement provides that the term of the Partnership will expire on November 30, 2010, at which time the Partnership will dissolve. This means that unless this provision of the Partnership Agreement is amended, the Partnership will berequired to sell all of the Partnership properties and wind-up the Partnership’s affairs in the next 16 months. This liquidation and winding up of the Partnership would be heldessentially the equivalent result of voting in connection with this solicitationfavor of consentsprior Consents that would have authorized the sale of the Partnership’s properties.
Therefore, you will find a Consent Statement enclosed, which requests your consent to an amendment of the Partnership Agreement extending the term of the Partnership from the Limited Partners. To be counted, a properly signedNovember 30, 2010 to November 30, 2020.Please read it carefully.The Consent Card must be received by the independent voting tabulator Phoenix American Financial Services, Inc. (the “Tabulator”) on or before June 30, 2007. Failure of a Limited Partner to returnStatement and a Consent Card will constitute a voteAGAINSTare also available on the Proposed Sale.Internet athttp://www.divallproperties.com.
This ConsentWe believe that the amendment to the Partnership Agreement extending its term is solicited by The Provo Group, Inc. (the “General Partner”),in the sole general partnerbest interest of the Partnership. SolicitationPartnership and the limited partners because, among other reasons and as more specifically described in the Consent Statement, the quality of consents other than by mail may be made by telephone, facsimilethe Partnership’s portfolio has improved due to the General Partner’s selective “pruning” (through individual sales) of properties with higher risk profiles with respect to future earnings. Your Advisory Board has been supportive of our selective pruning of the Partnership’s portfolio, however, the Advisory Board believes that it is prudent to hold the majority of the Partnership’s portfolio because of the fundamental strength of its core assets . . . namely the Wendy’s leases. In addition, “cap rates,” which are being applied in the triple-net lease marketplace, have risen markedly in the past eight months. As such cap rates rise, the sales prices drop. We do not know if this rise in cap rates is a short term phenomenon or a long term adjustment in person by regularly employed officers, agents and employees ofthe market. However, we believe it is prudent not to try to sell into the current market if it is not necessary. Finally, the General Partner whoexpects a stable annual return of approximately 6% going forward, which would be difficult to replace in the current interest rate environment.
As your General Partner we recommend that you vote“FOR” the amendment to the Partnership Agreement to extend the term of the Partnership a period of 10 years to November 30, 2020.
If we receive a majority vote to amend the Partnership Agreement extending the term of the Partnership, then we will not receive additional compensation for their efforts. The total cost of soliciting consentscontinue to operate the Partnership . . . business as usual. Business as usual would mean that we will be borne byalso circulate a new consent in two years to again provide the Partnership.
Only Limited Partners of record at the close of business on April 30, 2007 will be entitledlimited partners an opportunity to vote by executingfor the bulk sale of the Partnership’s properties.
If, however, more than 50% of all outstanding units do not vote to extend the term of the Partnership, we will move forward immediately with a competitive bid process to sell the Partnership’s portfolio of properties.
As always, if you have questions, please feel free to contact DiVall Investor Relations at (800) 547-7686.
Your consent is very important. We urge you to please sign and returningdate the enclosed Consent Card. A vote “FOR”Card and return it in the Consent will authorizeenclosed return envelope as soon as possible and no later than the Partnership to proceed withexpiration date of the Proposed Sale. A Limited Partnerconsent solicitation period which is October 31, 2009. You may revoke itsyour Consent Cardin writing at any time prior to June 30, 2007 or other conclusionbefore the expiration of the Consent process (whichever is earlier), by mailing a properly executed Consent Card bearing a later date or by mailing a signed, written notice of revocation to the attention of the General Partner or the Tabulator. Revocation of a Consent Card will be effective upon receipt by the General Partner or the Tabulator of either (i) an instrument revoking the Consent Card or (ii) a duly executed Consent Card bearing a later date. This Consent Statement and Consent Card were first mailed to Limited Partners on or about May 15, 2007. Once the General Partner has received Consent Cards from a majority of the Limited Partners voting “FOR” the Proposed Sale or voting against the Proposed Sale, the General Partner may declare the Consent process concluded and be bound by the results of such process. In any event, unless the General Partner elects to extend the deadline, the Consent process and the opportunity to vote by returning a Consent Card, will end on June 30, 2007. Failure to return a Consent Card will be deemed a vote “AGAINST” Proposed Sale.consent solicitation.
Very truly yours, |
THE PROVO GROUP, INC., as General Partner of DIVALL INSURED INCOME PROPERTIES 2 LIMITED PARTNERSHIP |
INTRODUCTION
General Information
The Partnership is currently engaged in the business of owning and operating its investment portfolio of commercial real estate. The Partnership currently owns 1816 properties (collectively the “Properties” and individually a “Property”). All of the Properties, except for the vacant Park Forest, IL Property, are leased on a triple-net basis with the Partnership as lessor and the operator of a business as tenant (collectively the “Leases,” individually a “Lease”). MostAll of the tenants operate as fast-food, family style or casual/theme restaurants (such as Wendy’s, Applebee’s, Denny’s, etc.).
The Partnership’s Agreement of Limited Partnership dated as of November 18, 1987, and amended as of November 25, 1987, February 20, 1988, June 21, 1988, February 8, 1993, May 26, 1993 and June 30, 1994 (collectively, the “Partnership Agreement”) provides that the Partnership be dissolved on November 30, 2010, or earlier upon the prior occurrence of any of the following events: (i) the disposition of all properties of the Partnership; (ii) the written determination by the General Partner that the Partnership’s assets may constitute “plan assets” for purposes of ERISA; (iii) the agreement of Limited Partners owning a majority of the outstanding interests to dissolve the Partnership; or (iv) the dissolution, bankruptcy, death, withdrawal, or incapacity of the last remaining General Partner, unless an additional General Partner is elected previously by a majority of the Limited Partners. Upon a majority vote from the Limited Partners, the Partnership Agreement may be amended to extend the term of the Partnership.
During the Second Quarters of 2001, 2003, 2005 and 2007, consent solicitations were circulated (the “2001,2003,2005 and2007Consents”, respectively), which if approved would have authorized the sale of the Partnership’s assets and dissolution of the Partnership. A majority of the Limited Partners did not vote in favor of any of the 2001, 2003, 2005 or 2007 Consents. Therefore, the Partnership continues to operate as a going concern.
The Partnership is hereby soliciting written consentsConsents from each partnerLimited Partner
Through this Consent process, the General Partner is seeking an indication from the Partnership’s Limited Partners whether they want to (i) allow the Partnership to terminate on November 30, 2010, in which case the Partnership will act now activelyto pursue a sale of all of the assets of the Partnership and then liquidate and dissolve the subsequent liquidation and dissolutionPartnership, or (ii) to extend the term of the Partnership.Partnership ten (10) years to November 30, 2020.
The Partnership’s AmendedPartnership Agreement provides in Section 2.2 that the Partnership terminate and Restateddissolve on November 30, 2010. The Partnership Agreement of Limited Partnershipalso provides in Section 10.2 that the General PartnerPartnership Agreement may not sell substantially allbe amended upon the vote of the properties without the approval of Limited Partners holding more than 50% of the outstanding Units. The total number of outstanding Units as of December 31, 2006,2008, was 46,280.3 Units. Each Unit is entitled to one vote. There is no established trading market for the Units.
As of December 31, 2006,2008, the Partnership had 2,0451,922 record holders of Units in the Partnership. To the best knowledge of the General Partner, no person or group owns more than five percent of the Partnership’s outstanding Units. Neither the General Partner, nor any of its officers or directors, areis the beneficial ownersowner of any Units.
Forward-Looking Statements
This Consent Statement contains forward-looking statements. When used in this Consent Statement the words “believes,” “anticipates,” “intends,” “expects” and similar expressions are intended to identify forward-looking statements; however, not all forward-looking statements will contain such expressions. Such statements are subject to a number of risks and uncertainties.uncertainties, including but not limited to those risks described in the Partnership’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 27, 2009. Actual results or events in the future could differ materially from those described in the forward-looking statements as a result of these and other risks, including the inability of the general partner to find a suitable purchaser for the properties, the inability to agree on an acceptable purchase price or contract terms, a decrease in the financial performance of the properties, the discovery of an environmental condition impacting one or more of the properties, an economic downturn in the markets in which the properties are located and various other factors. The partnershipPartnership undertakes no obligation to publicly release any updates or revisions to these forward-looking statements that may be made to reflect any future events or circumstances.
DIVALL INSURED INCOME PROPERTIES 2 LIMITED PARTNERSHIP
1100 MAIN STREET, SUITE 1830
KANSAS CITY, MISSOURI 64105
CONSENT STATEMENT
July 31, 2009
This Consent Statement is being furnished to holders (“Limited Partners”) of limited partnership interests (“Units”) in DiVall Insured Income Properties 2 Limited Partnership, a Wisconsin limited partnership (“Partnership”). The Partnership is soliciting the written consent of the Limited Partners to amend the Partnership Agreement to extend the term of the Partnership for ten (10) years from November 30, 2010 to November 30, 2020 (the “Extension Proposition”). No meeting will be held in connection with this solicitation of Consents from the Limited Partners. To be counted, properly signed Consent Cards must be received by the independent voting tabulator Phoenix American Financial Services, Inc. (the “Tabulator”) on or before October 31, 2009.
Consents for the Extension Proposition are solicited on behalf of the Partnership by The Provo Group, Inc., the general partner of the Partnership (the “General Partner”). Solicitation of consents other than by mail may be made by telephone, facsimile or in person by regularly employed officers, agents and employees of the General Partner, who will not receive additional compensation for their efforts.
We also may make arrangements with brokers, banks and other custodians, nominees, fiduciaries and limited partners of record to forward solicitation material to the beneficial owners of Units held of record by such persons. The total cost of soliciting the Consents will be borne by the Partnership.
Only Limited Partners of record at the close of business on June 30, 2009 will be entitled to vote by executing and returning the enclosed Consent Card. A vote “FOR” the Extension Proposition will extend the term of the Partnership by ten (10) years to November 30, 2020. If the term of the Partnership is extended, the General Partner does not intend to sell the Partnership’s assets during the next two years, but does intend to provide an opportunity for the Limited Partners to vote again in 2011 for or against a bulk sale of the Partnership’s properties at that time.
A vote “AGAINST” the Extension Proposition will cause the Partnership to proceed promptly with the sale of all of the Partnership’s properties and the subsequent liquidation and dissolution of the Partnership by November 30, 2010, the current date of termination of the Partnership under the Partnership Agreement.
Because the proposed amendment to the Partnership Agreement requires a majority of “FOR” consents to pass, a vote “ABSTAIN” to the Extension Proposition would have the same effect as a vote “no” or as the failure to return a Consent Card for the Extension Proposition.
A Limited Partner may revoke its Consent Card at any time prior to October 31, 2009 or other conclusion of the Consent solicitation process (whichever is earlier), by mailing a properly executed Consent Card bearing a later date or by mailing a signed, written notice of revocation to the attention of the General Partner or the Tabulator. Revocation of a Consent Card will be effective upon receipt by the General Partner or the Tabulator of either (i) an instrument revoking the Consent Card or (ii) a
duly executed Consent Card bearing a later date. This Consent Statement and Consent Card were first mailed to Limited Partners on or about July 31, 2009. Once the General Partner has received Consent Cards from a majority of the Limited Partners voting either “FOR” or “AGAINST” the Extension Proposition, the General Partner may declare the Consent solicitation process concluded and will be bound by the results of such process. In any event, unless the General Partner elects to extend the deadline of the consent solicitation, the Consent solicitation processes and the opportunity to vote by returning a Consent Card, will end on October 31, 2009.
Important Notice Regarding the Availability of Consent Materials for the Consent Solicitation. This Consent Statement, the accompanying Consent Card, and the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, are available atwww.divallproperties.com. Under new rules issued by the SEC, we are providing access to our consent materials both by sending you this full set of consent materials and by notifying you of their availability on the Internet.
BACKGROUND AND RECOMMENDATIONS OF THE GENERAL PARTNER
Background of Partnership
The Partnership is a limited partnership organized under the Wisconsin Uniform Limited Partnership Act pursuant to an Agreement of Limitedthe Partnership dated as of November 18, 1987, and amended as of November 25, 1987, February 20, 1988, June 21, 1988, February 8, 1993, May 26, 1993 and June 30, 1994 (collectively, the “Partnership Agreement”).Agreement. As of December 31, 2002, the Partnership consisted of one General Partner and 2,204 Limited Partners owning an aggregate of 46,280.3 Limited Partnership Interests (the “Interests”) acquired at a public offering price of $1,000 per Interest before volume discounts.46,280 Units. The InterestsUnits were sold commencing February 23, 1988, pursuant to a Registration Statement on Form S-11 filed under the Securities Act of 1933 (Registration 33-18794) as amended. On June 30, 1989, the former general partners exercised their option to extend the offering period to a date no later than February 22, 1990. On February 22, 1990, the Partnership closed the offering at 46,280.3 Interests ($46,280,300), providing net proceeds to the Partnership after volume discounts and offering costs of $39,358,468.Units. The Units are not currently traded on any exchange or other public market.
During the Second Quarter of 1998, the General Partner received the written consent of a majority of the Limited Partners to liquidate the Partnership’s assets and dissolve the Partnership. NoHowever, no buyer was identified for the Partnership’s assets, and Managementthe General Partner continued normal operations. DuringThe 2001, 2003, 2005 and 2007 Consents were circulated during the Second Quartersecond quarter of 2001, (the “2001 Consent”), the Second Quarter of 2003, (the “2003 Consent”)2005 and the Second Quarter of 2005 (the “2005 Consent”), additional consent solicitations were circulated,2007, respectively, which if approved would have authorized the sale of the Partnership’s assets and dissolution of the Partnership. A majority of the Limited Partners did not vote in favor of any of the 2001, 2003, 2005 or 2005 Consents authorizing2007 Consents. Therefore, the sale of all of the assets of the Partnership. The Partnership therefore, continues to operate as a going concern.
Extension Proposition
The amendment to the Partnership Agreement to extend the term of the Partnership by ten (10) years to November 30, 2020 would be effected by an Amendment to the Amended Agreement of Limited Partnership, which would state as follows:
Section 2.2 of the Partnership Agreement is deleted in its entirety and the following substituted in lieu thereof:
“2.2 The term of the Partnership shall continue in full force and effect until November 30, 2020 or until dissolution prior thereto pursuant to the provisions of Article VIII.” | ||||
The General Partner recommends a vote“FOR” the proposed amendment to the Partnership Agreement to extend the term of the Partnership by ten (10) years to November 30, 2020 as set forth below:
Description of Partnership’s Business
The Partnership is currently engaged in the business of owning and operating its investment portfolio of commercial real estate properties. The Properties are leased on a triple net basis to, and operated primarily by, franchisors or franchisees of national, regional and local retail chains under long-term leases. The lessees are primarilyall fast food, family style, and casual/theme restaurants, but also include a video rental store and a child-care center.restaurants. At the date of this Consent, the Partnership owned 18 properties with specialty leasehold improvements16 Properties, which included one vacant property in 5Park Forest, IL (formerly a Popeye’s restaurant). Each of these properties.the Properties is described more fully under “The Properties” below.
The original Lease terms for the majorityalmost all of the Properties are generally 5 - 20were five to twenty years from their inception. TheMost of the Leases generally provide for minimum “base” rents (“Base Rents”) and additional rents based upon percentagesa percentage of gross sales in excess of specified breakpoints.breakpoints (“Percentage Rents”). The lessee is responsible for occupancy costs such as maintenance, insurance, real estate taxes, and utilities. ManagementThe General Partner has determined that the leases are properly classified as operating leases; therefore, rental income is reported when earned on a straight-line basis and the cost of the property, excluding the cost of the land, is depreciated over its estimated useful life.
As of AprilJune 30, 2007,2009, the aggregate minimum operating leaseannual Base Rent payments estimated to be received under the current operating leases for the Partnership’s properties are as follows (doesfollows:
Year ending December 31, | ||||||
2009 | $1,133,650 | |||||
2010 | 1,009,500 | |||||
2011 | 962,500 | |||||
2012 | 939,500 | |||||
2013 | 851,028 | |||||
Thereafter | 5,866,425 | |||||
| $10,762,603* | ||||||
*(Does not include month-to- month rent charged to and/or collected from Daytona’s (Des Moines, IA) following the Sunrise Preschool- Phoenix, AZ property, which was soldexpiration of its Lease on February 28, 2009).
The Percentage Rent generated from operations of the Partnership’s current portfolio of properties in April of2008, 2007, and the Wendy’s- 1515 Savannah Hwy., Charleston, SC property, which was reclassified as property held for sale in the First Quarter of 2007, respectively):
Year ending December 31, | |||
2007 | $ | 1,375,727 | |
2008 | 1,169,060 | ||
2009 | 1,126,930 | ||
2010 | 937,500 | ||
2011 | 938,500 | ||
Thereafter | 4,232,277 | ||
| $ | 9,779,994 | ||
Percentage rentals included in rental income from operations in 2006 2005, and 2004 were approximately $427,000, $444,000 and $423,000, $425,000 and $467,000, respectively (percentage rentals from the Wendy’s- 1515 Savannah Hwy., Charleston, SC property, which was reclassified to property held for sale in March of 2007, were not included).respectively.
Nine (9)Three of the properties (does not include 1515 Savannah Hwy., Charleston, SC, which was reclassified as property held for sale in March of 2007) are leased to Wencoast Restaurants, Inc.Wendcharles I, LLC (“Wencoast”Wendcharles”), and six of the properties were leased to Wendgusta, LLC (“Wendgusta”). Wendcharles and Wendgusta are each a franchisee of Wendy’s restaurants. Wencoast base rentsWendcharles’ and Wendgusta��s Base Rents accounted for 55%18% and 43%, respectively, of the total 2006 operating base rents (does2008 Base Rents. In each case, the percentage calculation does not include rental income from properties held for salesold during 2006 and 2007).2008.
Expenses: The General Partner believes that the expenses associated with managing the Partnership compare favorably with other partnerships managing similar portfolios in the industry. The General Partner believes that the expenses incurred by the Partnership in 20062008 generally represent the expected level of expenses. Although the General Partner will continue to work to reduce expenses
while retaining the quality of services, the General Partner does not predict significant reductions in expenses for the foreseeable future.
The Properties
As of AprilJune 30, 20072009, the Partnership owned the following properties (includes property held for sale):properties:
Acquisition Date | Expiration of Current Lease | Tenant | Location | Base Rent | Internal 12/31/06 | Expiration of Current Lease | Tenant/ Concept | Location | 2009 Base Rent $ | Internal 12/31/08 NAV $ | ||||||||||
10/10/88 | 06/30/18 | Kentucky | 1014 S. St. Francis | 60,000 | 706,000 | 06/30/18 | Kentucky Fried Chicken | 1014 S. St. Francis Dr. Santa Fe, NM | 60,000 | 697,000 | ||||||||||
12/29/88 | 12/31/09 | Popeye’s | 2562 Western Ave. | 77,280 | 687,000 | NA | Vacant | 2562 Western Ave. Park Forest, IL | 0 | 50,000 | ||||||||||
| 04/20/89 | NA | Daytona’s All Sports Café | 4875 Merle Hay Des Moines, IA | 12,000 | 698,000 | |||||||||||||||
| 12/28/89 | 6/30/2013 | Panda Buffet | 2451 Columbia Rd. Grand Forks, ND | 38,000 | 380,000 | |||||||||||||||
| 05/31/90 | 10/31/09 | Applebee’s | 2770 Brice Rd. Columbus, OH | 113,150 | 2,056,000 | |||||||||||||||
| 06/15/88 | 01/20/13 | Chinese Super Buffet | 8801 N. 7th St. Phoenix, AZ | 72,000 | 576,000 | |||||||||||||||
| 08/15/88 | 04/30/11 | Denny’s | 2360 W. Northern Ave. Phoenix, AZ | 72,000 | 668,000 | |||||||||||||||
| 12/22/88 | 11/06/21 | Wendy’s | 1721 Sam Rittenburg Blvd. Charleston, SC | 76,920 | 1,121,000 | |||||||||||||||
| 12/22/88 | 11/06/21 | Wendy’s | 3013 Peach Orchard Rd. Augusta, GA | 86,160 | 1,245,000 | |||||||||||||||
| 02/21/89 | 11/06/21 | Wendy’s | 1901 Whiskey Rd. Aiken, SC | 96,780 | 1,511,000 | |||||||||||||||
l730 Walton Way | ||||||||||||||||||||
Acquisition Date | Expiration of Current Lease | Tenant | Location | Base Rent | Internal 12/31/06 | |||||
04/20/89 | 2/28/08 | Daytona’a | 4875 Merle Hay | 72,000 | 748,000 | |||||
12/28/89 | 6/30/2013 | Panda | 2451 Columbia Rd. | 36,000 | 550,000 | |||||
01/31/90 | 01/31/08 | Blockbuster | 336 E. 12th St. | 108,000 | 982,000 | |||||
05/31/90 | 10/31/09 | Applebee’s | 2770 Brice Rd. | 135,780 | 2,072,000 | |||||
06/15/88 | 01/20/13 | Chinese | 8801 N. 7th St. | 66,000 | 574,000 | |||||
08/15/88 | 10/31/07 | Denny’s | 2360 W. Northern | 54,167 | 822,000 | |||||
12/22/88 | 11/06/16 | Wendy’s | 1721 Sam Rittenburg | 76,920 | 987,000 | |||||
12/22/88 | 11/06/16 | Wendy’s | 3013 Peach Orchard | 86,160 | 1,056,000 | |||||
02/21/89 | 11/06/16 | Wendy’s | 1901 Whiskey Rd. | 96,780 | 1,430,000 | |||||
02/21/89 | 11/06/16 | Wendy’s | l730 Walton Way | 96,780 | 1,172,000 | |||||
02/21/89 | 11/06/16 | Wendy’s | 347 Folly Rd. | 70,200 | 951,000 | |||||
02/21/89 | 11/06/16 | Wendy’s | 361 Hwy. 17 Bypass | 77,280 | 921,000 | |||||
Acquisition Date | Expiration of Current Lease | Tenant | Location | Base Rent | Internal 12/31/06 NAV | Expiration of Current Lease | Tenant/ Concept | Location | 2009 Base Rent $ | Internal NAV $ | ||||||||||||
| 02/21/89 | 11/06/21 | Wendy’s | Augusta, GA | 96,780 | 1,252,000 | |||||||||||||||||
| 02/21/89 | 11/06/21 | Wendy’s | 343 Foley Rd. Charleston, SC | 70,200 | 1,005,000 | |||||||||||||||||
| 02/21/89 | 11/06/21 | Wendy’s | 361 Hwy. 17 Bypass Mount Pleasant, SC | 77,280 | 1,048,000 | |||||||||||||||||
03/14/89 | 11/06/16 | Wendy’s | 1004 Richland Ave. | 90,480 | 1,133,000 | 11/06/21 | Wendy’s | 1004 Richland Ave. Aiken, SC | 90,480 | 1,257,000 | ||||||||||||
12/29/89 | 11/06/16 | Wendy’s | 1717 Martintown Rd. | 87,780 | 1,302,000 | |||||||||||||||||
12/29/89 | 11/06/16 | Wendy’s | 1515 Savannah Hwy. | 77,280 | 911,000 | 11/06/21 | Wendy’s | 1717 Martintown Rd. N. Augusta, GA | 87,780 | 1,402,000 | ||||||||||||
12/29/89 | 11/06/16 | Wendy’s | 3869 Washington Rd. | 84,120 | 859,000 | 11/06/16 | Wendy’s | 3869 Washington Rd. Martinez, GA | 84,120 | 935,000 | ||||||||||||
Total: | $ | 1,453,007 | $ | 17,863,000 | ||||||||||||||||||
Total: | $1,133,650 | $15,901,000 | ||||||||||||||||||||
Recent Developments
Wendy’s- 1515 Savannah Hwy., Charleston, SCDaytona’s All Sports Café- Des Moines, IA Property
In May of 2008, Management executed a one-year lease extension agreement with Daytona’s All Sports Café (“Daytona’s”). The lease extension began, and was effective, as of March 1, 2008. The lease, with an annual base rent of $72,000, expired on February 28, 2009. Daytona’s is currently paying rent of $6,000 on a month-to-month basis. Management continues to negotiate with the tenant to possibly extend the lease.
Denny’s- Phoenix, Arizona Property
The lease, with an annual base rent of $72,000, expired on April 30, 2009. Month–to-month rent of $6,000 was charged to the tenant for May of 2009. A letter of intent to enter a purchase agreement for the sale of the propertynew twenty-three month lease was executed in late MarchJune of 2007. As2009 and commenced on June 1, 2009. The first year base rent amounts to $72,000.
Vacant Park Forest, IL Property (formerly Popeye’s
Popeye’s ceased its operations at this location in June of April 30, 2007, a sales contract2008. The lease was being negotiatedterminated and the tenant vacated the property in July of 2008. A settlement and lease termination agreement was executed in the Third Quarter of 2008 in exchange for the salePartnership receipt of all past due obligations from Popeye’s through June 30, 2008.
The Partnership had been unsuccessful in finding a new tenant for this vacant property in a distressed location, therefore during the Third Quarter of 2008, the Partnership agreed to sell the property to an unaffiliated party for $1.17 million. Closing is anticipated to be during the fall of 2007 and commissions totaling 6%, which includes 3%$50,000 to a General Partner affiliate, are expectedprospective purchaser. Negotiations ended in the Fourth Quarter due to be paid. The net bookuncertainty over 2008 real estate tax obligations due in 2009. Accordingly, the carrying value of the vacant Park Forest, IL property was reduced by $276,186 to its estimated fair market value of $50,000 at AprilSeptember 30, 2007, classified as property held for sale, was approximately $421,000, which2008. The reduction included $286,000$129,450 related to land $128,000and $137,736 related to buildings and improvements, $2,000 relatedimprovements.
The Partnership is obligated to deferred rent, $16,000 relatedpay the second installment of the 2008 property tax to deferred lease commissions, and $11,000 related to security deposits and prepaid rent.the Cook County taxing authority in the Third Quarter of 2009 (the first installment of approximately $22,000 was paid by the Partnership in February of 2009). Such property tax payments will not be reimbursed by the former tenant. As of June 30, 2009, the Partnership has accrued six months of estimated 2009 property taxes totaling approximately $29,000 which will be due in 2010.
Sunrise Preschool- Phoenix, AZApplebee’s- Columbus, OH Property
A listing agreement for the saleThe lease, with an annual Base Rent of the property was executed in June 2006. In early January of 2007, a sales contract was executed for the sale of the property for $1.6 million. Per notice from the Partnership, tenant, Borg Holdings, Inc. (“Borg”), had 30 days from January 16, 2007,$135,780, is set to act upon their right of first refusalexpire on October 31, 2009. Management plans to purchase the Phoenix property, since a separate buyer entered into a real estate contract for the purchase of the property. On January 29, 2007, Borg informed the Partnership that they would be exercising their right to accept the terms of the contract for the sale of the Phoenix, AZ property. The closing date on the sale of the property was April 23, 2007 and the net sales proceeds totaled approximately $1.49 million. A net gain on the sale of approximately $867,000 will be recognized in the Second Quarter of 2007. Closing and other sale related costs amounted to approximately $105,000, which included $96,000 in sales commissions, of which $48,000 was paid to a General Partner affiliate.
Popeye’s- Park Forest, IL
As of April 30, 2007, Popeye’s is delinquent on its April and May 2006 rent obligations and property taxes escrow payments totaling approximately $13,000 and $10,000, respectively. These unpaid amounts are accrued for at April 30, 2007. As of April 30, 2007,negotiate with the tenant has a $4,300 property tax escrow cash balance held withto extend the Partnership. The Partnership has received the required June of 2006 through April of 2007 rent and property taxes escrow payments.
In the Second Quarter of 2006, Management defaulted Popeye’s for failure to meet its lease obligations, and filed for possession of the Park Forest property in the Cook County Judicial Court. The Partnership continues to pursue all legal remedies available to recover possession and terminate the Lease. Popeye’s remains responsible for monthly rent obligations and property taxes through the remainder of its Lease (expires December 31, 2009).
4785 Merle Hay Road- Des Moines, IA
Beginning in December of 2005, Management requested that Daytona’s escrow its future property taxes liabilities with the Partnership on a monthly basis. Daytona’s remains current on its property tax escrow obligations. As of April 30, 2007, escrow payments held by the Partnership totaled approximately $14,000.lease.
Reason for Consentthe Extension Proposition
In 1998, the General Partner determined for a variety of reasons, that it was in the best interest of the Limited Partners andThe Partnership is currently set to expire on November 30, 2010 which would require the Partnership to attemptinitiate efforts to sellliquidate the Properties and then liquidate and dissolvePartnership’s assets in the Partnership.next few months. The General Partner solicitedbelieves there are few investment alternatives available in these current turbulent times that provide the stability and obtainedsecurity of triple net leased properties without mortgage encumbrances. The Partnership has no debt and therefore, no refinancing or sale pressures. The Partnership simply collects the consent (the “1998 Consent”)rents on its Leases (half of the holders ofwhich have more than fifty percent (50%) oftwelve (12) years remaining on their terms), pays its management and operating expenses, and distributes the Unitsbalance to attempt to dispose ofthe Limited Partners. So long as the Properties upon certain terms.remain leased and the tenants are viable, the investment returns are stable.
AlthoughOver the Partnership made substantial effort to market the Properties during 1998, it did not receive a bid for the Properties which met the terms of the 1998 Consent. Thoughyears, the Partnership has entertained some proposals to acquire the Properties over the past several years, none met the criteria established in the 1998 Consent, nor have they been of a nature thatselectively sold properties where the General Partner believed warranted seekingit was receiving a fair price. In some instances the approvalsales were motivated by a desire to improve the overall risk portfolio of the Limited Partners. The General Partner believes thatPartnership’s portfolio. If the 1998 Consent is so stale at this point that it no longer serves as appropriate authority to proceed with a sale, even if one were available on the terms outlined in such Consent.
The General Partner is willing to be guided by the preferencesterm of the holders of a majority of the outstanding Units with respect to whether to actively market the Properties for the purpose of liquidating the Partnership. Thus, as it did with the 2001, 2003 and 2005 Consents,Partnership is extended, the General Partner is solicitingmay continue to “prune” the Limited Partners to determine their desiresportfolio on a selective basis.
During the current unprecedented economic hardship, the market for triple net lease properties, especially those with respect to such approach. Ifhigh credit tenants, has remained relatively active. However, prices have declined. The capitalization or “cap” rates in the Limited Partners do not vote in favor ofindustry have risen several points over the sale ofpast 6 – 12 months. As investors demand higher cap rates, the Partnership’s assets and dissolution pursuant to this Consent,resulting sales prices have declined. Although the General Partner intendscannot predict with certainty that cap rates will decline in the future, it seems prudent to seek a similar consent every two (2) yearsretain the properties given the current real estate market conditions, unless absolutely necessary. Since the Partnership’s underlying business model remains strong and is producing consistent above market returns, the General Partner does not think it is necessary to sell at this time – absent the current provision in order to remain informed as to whether the holders of Units want to disposePartnership Agreement that the Partnership must be terminated by November 30, 2010. An extension of the Properties and dissolveterm of the Partnership.Partnership to November 30, 2020 would remove any artificial or other external pressure to liquidate the Partnership at an inappropriate time.
If the holders of more than fifty percent (50%)50% of the Units voteFORthe proposed sale, the General Partner will proceed in good faith to solicit a sale of the Properties on the terms set forth below and proceed with the dissolution of the Partnership. If the Limited Partners do not authorize
such sale,Extension Proposition, the General Partner will continue to manage the Partnership as a going concern and use its business judgment in an effort to enhance the value of the Partnership. Of course, the General Partner reserves the right at any time in the future, to seek the approval of the Limited Partners with respect to any disposition of all or substantially all of the Partnership’s assets if the General Partner deems such disposition to be in the best interest of the Limited Partners.
If the holders ofEven if a majority of the Units voteFOR the proposed sale, there is no assurance that a sale on the terms outlined can be consummated.
DESCRIPTION OF PROPOSED SALE
If more than 50% of the Units vote in favoragainst the Extension Proposition, the Partnership will dissolve on November 30, 2010 pursuant to the terms of this Consent,the Partnership Agreement and the General Partner will proceed in good faith to solicit buyers to purchase the Properties on the terms set forth below and proceed with the dissolution of the Partnership.
DESCRIPTION OF SALE OF PARTNERSHIP PROPERTIES IF THE EXTENSION PROPOSITION FAILS
If we donot receive more than 50% of the Consent Cards marked “FOR” the Extension Proposition, it will fail and the Partnership will terminate on November 30, 2010 causing the General Partner to proceed toward the solicitation of competitive bids for the purchase of all the Partnership Properties. The General Partner willwould attempt to obtain a fair market price for the Properties. Upon completion of the sale of the Properties, the assets of the Partnership would be distributed to the Limited Partners, net of all normal and customary costs of such sale, and other reserves as the General Partner deems appropriate (if any).
Purchase Price
The minimumIf the Extension Proposition fails, the General Partner would solicit bids which include both (i) a purchase price for all of the Properties in the aggregate, and (ii) a purchase price for each of the Properties individually. New appraisals for all of the Partnership Properties shallwould be secured and the Total Appraised Value of the Properties would be the minimum asking price (the “Minimum PurchaseAsking Price”). The last time appraisals were received was February 5, 2001. At that time, the Total Appraised Value was $21,626,500, which included the values of nineeleven (11) properties no longer owned by the Partnership, with an aggregate appraised value of $6,504,500. If the sale is approved, new appraisals will be secured.$8,088,500. The internal 12/31/0608 net asset value (NAV) for the Partnership’s Properties was $19,463,000 (included properties held for sale or sold during 2007). Each Bid shall include both (i) a purchase price for all of$15,390,000. Since the Properties inPartnership would be required to terminate on November 30, 2010, the aggregate, and (ii) a purchase price for each ofPartnership may be required to accept an offer lower than the Properties individually.Asking Price.
Certain fees, costs and expenses willwould be incurred by the Partnership in the Proposed Salesale process (the “Expenses”). Such Expenses may include (i) appraisal fees (ii) title insurance fees, (iii) survey fees, (iv) legal fees, (v) brokerage fees/commissions, (vi) filing fees, and (vii) such other fees and expenses as are ordinary and necessary in connection with a large real estate transaction. The General Partner estimates such Expenses at approximately 5.5% of the Total Price.
Following the consummation of the Proposed Sale,sale of the Properties, the Partnership willwould incur additional expenses associated with winding up the Partnership’s affairs, and liquidating its assets.assets and dissolving the Partnership. Those expenses may include, without limitation: (i) wind-up insurance premiums, (ii) escheat fees, (iii) legal fees, (iv) consent solicitation fees, (v) printing and postage expenses, (vi) tax preparation and audit fees, (vii) investor servicing fees, (viii) taxes, and (ix) management fees and supplies.
Effects on the Limited Partners
Advantages:Advantages: There is currently no active or established trading market for Partnership Units. The values available to Limited Partners in the secondary market usually represent a discount from the value of the underlying assets of the Partnership, due in part to the lack of liquidity. The Proposed Saleliquidation and dissolution of the Partnership would provide a manner for Limited Partners to realize the value of their Units without having to comply with the conditions and restrictions of selling its Units individually and without being subjected to the normal secondary market discount and relatively high transaction fees. Further,
following liquidation and dissolution, Limited Partners would no longer be subject to any of the risk factors attendant to the operation of a portfolio of triple-net based properties.
Disadvantages:Disadvantages One of the reasons the General Partner advocated the liquidation of the Properties in 1998 was the remaining terms on the majority of the Leases was approaching ten (10) years. Since the values of triple-net leased properties tends to decline as the lease terms “burn off”, the General Partner felt that 1998 was an optimal time to sell. With the extension in 2000, of ten (10) of the Leases to Wendy’s franchises on favorable terms until late in 2016, the concern that the portfolio value would begin to erode in the near future was greatly reduced, as noted in the 2001, 2003 and 2005 Consents. Although the General Partner recognizes that the remaining terms on the Wendy’s leases are currently just under ten (10) years, it is also recognized that the properties are leased to a strong national chain with a good track record.
: The General Partner anticipates (but does not guarantee) that the portfolio of Properties will continue to generate net distributable income in line with historical performance for at least the next seven to nine (7 - 9) years. This represents a cash return of approximately 7%6% of the Internal 12/31/0608 NAV. Since the Partnership’s assets are depreciable real property, some of the distributable net income may be tax sheltered, leading to a slightly higher “after tax” rate of return. In today’s low interest rate environment, these returns compare favorably to alternative investments of similar risk profiles into which Limited Partners could re-invest their after-tax liquidation proceeds.
Additionally, because of the “forced” nature of the sale of the Partnership Properties in such circumstance and the generally depressed conditions of the current real estate market, the price received for the Properties may be lower than if sold at a later date under difference circumstances.
If the Proposed SalePartnership is consummated,liquidated, the Partnership will no longer have any interest in the Properties and therefore no longer enjoy any of the benefits of real estate ownership (e.g., no cash flow from operation, no potential benefit from future appreciation). Further, Limited Partners will be subject to capital gains taxes to the extent the net proceeds from the Proposed Salesale of Properties on a per Unit basis exceeds the Limited Partners’ adjusted tax basis in each Unit.
Effect on the General Partner
The Partnership Agreement provides for the General Partner to receive up to a 3% commission (“Disposition Fee”) on the sale of any Partnership Properties if it provides a substantial portion of the services in the sales effort. If the Proposed Sale occurs,Extension Proposal fails and the Partnership is liquidated through sale of the Properties, the General Partner willwould collect such Disposition Fee earlier than it might otherwise if the Partnership remained an ongoing concern. Conversely, the General Partner willand would not be entitled to future management fees following liquidationas a result of the Partnership, but will be entitled to such management fees ifliquidation and dissolution of the Partnership is not liquidated.Partnership.
FEDERAL INCOME TAX CONSEQUENCES OF THE PROPOSED SALE OF THE PROPERTIES
The following is a summary of the material Federal income tax consequences resulting from the Proposed Saleliquidation and dissolution of the Partnership which may affect a Limited Partner. This summary is included solely for the information of the Limited Partners. This summary is not intended as a substitute for careful tax planning, and consequences may vary according to each Limited Partner’s individual circumstances. Therefore each Limited Partner is urged to consult his or her own tax adviser concerning the specific tax consequences of the Proposed Saleliquidation and dissolution of the Partnership to such Limited Partner.
This summary is based on the Internal Revenue Code of 1986, as amended (“Code”), as well as the applicable existing regulations thereunder, judicial decisions and current administrative rules and practices. The following discussion does not discuss the impact, if any, state or local taxes may have on the Proposed Sale.liquidation and dissolution of the Partnership. Furthermore, no assurance can be given as to the accuracy or completeness of this summary and there can be no assurance that the Internal Revenue Service will agree with the interpretations of the Code and the regulations set forth below. Each
Limited Partner should be aware that the Code and the regulations are subject to change and in some instances may be given retroactive effect.
Taxation of Partnerships in General
An entity classified as a partnership for federal income tax purposes is not subject to federal income tax. Rather, a partnership is an entity for which the items of income, orgain, loss, “flowsdeductions, and credits “flow through” to the partners, who are taxed in their individual capacities on their distributive shares of partnershipthe partnership’s income, gain, loss, orand deductions. However, the partnership is a tax reporting entity that must file an annual return disclosing the partnership’s gain or loss. The tax treatment of partnership items of taxable income or loss is generally determined at the partnership level. However, each partner must account separately for its distributive share of the following partnership items: (1) short-term capital gains and losses, (2) long-term capital gains and losses, (3) gains and losses from sales or exchanges of property used in a trade or business or subject to involuntary conversion, (4) charitable contributions, (5) dividends for which there is a dividends-received deduction, (6) taxes paid or accrued to foreign countries and to U.S. possessions, (7) taxable income or loss, exclusive of items requiring separate computation, and (8) other items required to be stated separately either by Treas. Reg. 1.702-1§1.702-1 or because separate statement could affect the income tax liability of any partner, including but not limited to the following: recovery of bad debts, prior taxes, and delinquency amounts, deductible investment expenses, alternative minimum tax adjustments and tax preference items, investment interest, and any items subject to a special allocation under the partnership agreement.
Each partner is required to treat partnership items on its return in a manner consistent with the treatment of such items on the partnership return and may be penalized for intentional disregard of the consistency requirement. Each partner must account for its distributive share of partnership taxable income or loss in computing its income tax, whether or not any actual cash distribution is made to such partner during its taxable year. Such consistency requirement may be waived if the partner files a statement (IRS Form 8082) identifying the inconsistency or shows that it resulted from an incorrect schedule furnished by the partnership.
Basis of Partnership Interests
A partner’s basis in its Unit is equal to its cost for such Unit, (i) reduced by its allocable share of partnership distributions, taxable losses and expenditures of the partnership not deductible in
computing its taxable income and not properly chargeable to its capital account, and (ii) increased by its allocable share of partnership taxable profits, income of the partnership exempt from tax and additional contributions to the partnership. For purposes of determining basis, an increase in a partner’s share of partnership liability is treated as a contribution of money by that partner to the partnership. Conversely, a decrease in its share of partnership liability is treated as distribution of money from the partnership. Generally, a partner may not take recourse liability into account in determining its basis except to the extent of any additional capital contribution it is required to make under the partnership agreement. However, if a partnership asset is subject to a liability for which no partner has any personal liability, in general, the partner’s allocable share of the nonrecourse liability will be taken into account to determine basis.
Effect of the Proposed SaleLiquidation of Partnership Properties
The Proposed Sale willsale of Partnership Properties in connection with the liquidation and dissolution of the Partnership would be a taxable event to the Limited Partners. Gain or loss on a sale of assets generally willwould be measured by the difference between the net amount realized (after deducting ordinary and necessary expenses of the sale) and the adjusted basis of the assets that are sold. Generally the amount realized is the sum of any money received, plus the fair market value of any property received, plus the amount of liability from which the Partnership is discharged as a result of the sale. The adjusted basis of property is generally the basis on the day the property was acquired less deductions, allowed or allowable, for depreciation.
A substantial portion of the assets, to be sold, including building, land and equipment, which were held for more than one year, are expected to be treated as “Code Section 1231 assets.” Code Section 1231 assets are property used in the trade or business of a character which is subject to the allowance for depreciation, held for more than one year, and real property used in the trade or business held for more than one year. Gains or losses from the sale of Code Section 1231 assets would be combined with any other Code Section 1231 gains or losses incurred by the Partnership in that year, and the Code Section 1231 gains or losses would be allocated to the Limited Partners as provided in the Partnership Agreement. Notwithstanding the foregoing, certain depreciation recapture rules may cause some or all of the gains realized upon the liquidation of the Partnership Properties to be taxed at the partner level as ordinary income under I.R.C. Section 1250(a) or at a 25% rate by virtue of the “unrecaptured I.R.C. Section 1250 gain” rules.
Effect of Liquidation
Generally, upon the liquidation of a partnership, gain will be recognized by and taxable to a partner to the extent the amount of cash distributed to it exceeds the partner’s basis in its Unit at the time of distribution. Any gain or loss which a Limited Partner recognizes from a liquidating distribution is generally taxed as capital gain or loss. However, any income or loss receivedallocated from the normal operations of the partnership during the year of liquidation may constitute ordinary income or loss.
Any capital gain or loss will be treated as long-term if the Limited Partner has held its Units for more than twelve (12) months when the liquidation is consummated. For non-corporate limited partners, long-term capital gains are generally taxed at a 15% rate. This rate may be 5% if a Limited Partner is in the 10% or 15% tax bracket. If the Limited Partner has held its Units for less than a year, any gain will be a short-term capital gain. Short-term capital gains are taxed as ordinary income. Capital losses generally are deductible only to the extent of capital gains plus, in the case of a non-corporate Limited Partner, up to $3,000 of ordinary income. Capital losses realized upon the liquidation may be utilized to offset capital gains from other sources and may be carried forward, subject to applicable limitations. If the selling partner has a basis of zero and a deficit or negative
capital account, it also realizeswill realize additional capital gainincome to the extent that it has been relieved of its obligation to repay the deficit.deficit or is subject to a qualified income offset.
Although the sale of a partnership interest (and the liquidation of the Partnership is treated as a sale of a partnership interest) generally gives rise to capital gain or loss, amounts received by a partner allocable to its share of unrealized receivables or substantially appreciated inventory may constitute ordinary income or loss. The term “unrealized receivables” includes any rights to income that have not been included in gross income under the method of accounting employed by the partnership (Reg. 1.751-1(c)(Treas. Reg. §1.751-1(c)).
Exempt Employee Trusts and Individual Retirement Accounts
Tax-exempt organizations, including trusts which hold assets of employee benefit plans, although not generally subject to federal income tax, are subject to tax on certain income derived from a trade or business carried on by the organization which is unrelated to its exempt activities. However, such unrelated business taxable income does not in general include income from real property, gain from the sale of property other than inventory, interest, dividends and certain other types of passive investment income that is derived from “debt-financed properties” as defined in Section 514 of the Code. Further, if, as the Partnership believes, the Properties are not characterized as “inventory,” and are not held primarily for sale to customers in the ordinary course of the Partnership’s business, the income from the sale of the Properties should not constitute unrelated business taxable income. Finally, the Partnership’s temporary investment of funds in interest-bearing instruments and deposits also should not give rise to unrelated business taxable income.
THE FOREGOING ANALYSIS CANNOT BE, AND IS NOT INTENDED AS, A SUBSTITUTE FOR CAREFUL TAX PLANNING. LIMITED PARTNERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THEIR OWN TAX SITUATIONS. THIS TRANSACTION MAY AFFECT SEVERAL FEDERAL TAXES, INCLUDING, BUT NOT LIMITED TO, INCOME AND ESTATE TAXES.
DISTRIBUTION UPON LIQUIDATION OF THE PARTNERSHIP
Upon completionIf more than 50% of the Proposed Sale,Limited Partners do not vote in favor of the Extension Proposition, then the Partnership will be dissolved and its business wound up in accordance with Article VIII of the Partnership Agreement.Agreement, including the liquidation of the Partnership Properties. The sale proceeds, after establishing any necessary cash reserves to cover liabilities, will be distributed to the Limited Partners and the General Partner in the manner set forth in the Partnership Agreement, although the distribution to the General Partner is expected to be limited to the minimum amount necessary to cover its tax obligations on its portion of the Partnership’s income resulting from the liquidation. The General Partner willwould attempt to obtain commercial insurance covering liabilities which the Indemnification Trust was established to cover. If such insurance is available, the Partnership willwould use proceeds from the Indemnification Trust to purchase such insurance coverage and the balance of the Indemnification Trust willwould be distributed with the sale proceeds during liquidation. If such insurance coverage is unavailable at a reasonable cost, the Indemnification Trust willwould be maintained for a period past termination of the Partnership in keeping with terms of such Indemnification Trust, and the proceeds willthereof would be subsequently distributed to the Limited Partners.
REGULATORY REQUIREMENTS
There are no regulatory requirements in connection with the Extension Proposition.
Other than the requirement under Wisconsin law that the Partnership file a Certificate of Cancellation to dissolve the Partnership, there are no federal or state regulatory requirements that would apply to a liquidation and dissolution of the Proposed Sale.Partnership.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following document and its exhibits filed by the Partnership with the Securities & Exchange Commission are hereby incorporated in this Consent Statement by reference:
Annual Report on Form 10-K for the fiscal year ended December 31, 20062008 (“Form 10-K”).
All reports and other documents filed by the Partnership after the date of this Consent Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 and prior to the final date on which written consents may be received shall be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such reports or documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Consent Statement to the extent that a statement contained herein or in another document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Consent Statement.
DIVALL INSURED INCOME PROPERTIES 2 LIMITED PARTNERSHIP,
a Wisconsin Limited Partnership
CONSENT OF LIMITED PARTNER TO SALE OFAMEND THE
ALLPARTNERSHIP AGREEMENT TO EXTEND THE LIFE OF THE PARTNERSHIP’S PROPERTY
PARTNERSHIP TEN (10) YEARS TO NOVEMBER 30, 2020
The undersigned Limited Partner acknowledges receipt of the Consent Statement dated May 15, 2007July 31, 2009 respecting the proposed saleamendment of the Partnership’s properties andPartnership Agreement to extend the subsequent liquidationterm of the Partnership.Partnership by ten (10) years from November 30, 2010 to November 30, 2020. The undersigned Limited Partner understands that the General Partner is seeking an indication ofapproval from the Limited Partner’s desire to initiate a sale of all ofso amend the Partnership’s properties to one or more buyers.Partnership Agreement.
The General Partner recommends a voteAGAINST“FOR” a salethe amendment to the Partnership Agreement to extend the term of the Partnership’s properties.Partnership by ten (10) years to November 30, 2020 as set forth below:
Section 2.2 of the Partnership Agreement is deleted in its entirety and the following substituted in lieu thereof:
“2.2 The term of the Partnership shall continue in full force and effect until November 30, 2020 or until dissolution prior thereto pursuant to the provisions of Article VIII.” |
THIS PROPOSED SALE OFAMENDMENT TO THE PARTNERSHIP’S PROPERTIESPARTNERSHIP AGREEMENT REQUIRES THE APPROVAL BY THE HOLDERS OF MORE THAN 50% OF THE OUTSTANDING UNITS OF THE PARTNERSHIP.
PLEASE CHECK THE APPROPRIATE BLANK BOX BELOW IN BLUE OR BLACK INK TO INDICATE YOUR VOTE ON THIS MATTER.
Consent to the Sale of the Partnership’s Properties: proposal to authorize the General Partner to sell all of the Partnership’s properties at such prices set forth in the May 15, 2007 Consent Statement and upon such terms as the General Partner shall determine. Approval of a sale of the Partnership’s properties will also be deemed a consent to the termination and dissolution of the Partnership.
Consent to amend the Partnership Agreement to extend the term of the Partnership ten (10) years to November 30, 2020 as set forth above: |
FOR [ ] AGAINST [ ] ABSTAIN [ ]¨ AGAINST¨ ABSTAIN¨
Date: | |||||||||
Signature of Unit Holder | |||||||||
Print Name | |||||||||
[LABEL] | |||||||||
Date: | |||||||||
Signature of Unit Holder, if held jointly | |||||||||
Print Name | |||||||||
PLEASE SIGN EXACTLY AS YOUR NAME APPEARS ON THE ABOVE LABEL REPRESENTING YOUR LIMITED PARTNERSHIP INTEREST. WHEN SUCH INTEREST(S) ARE HELD BY JOINT TENANTS, BOTH SHOULD SIGN. WHEN SIGNING AS AN ATTORNEY, EXECUTOR, ADMINISTRATOR, TRUSTEE OR GUARDIAN, PLEASE GIVE FULL TITLE OF SUCH. IF A CORPORATION, PLEASE HAVE SIGNED IN FULL CORPORATE NAME BY THE PRESIDENT OR OTHER AUTHORIZED OFFICER. IF A PARTNERSHIP, PLEASE HAVE SIGNED IN THE PARTNERSHIP’S NAME BY AN AUTHORIZED PERSON.