June 3, 2005
VIA EDGAR & HAND DELIVERY
Abby Adams, Esq.
Office of Mergers and Acquisitions
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-0303
Re: NATIONAL PROPERTY INVESTORS III, FOX STRATEGIC HOUSING
INCOME PROPERTIES CENTURY PROPERTIES FUND XIV, XV, XIX,
AND XXII, DAVIDSON INCOME REAL ESTATE LP, AND DAVIDSON
GROWTH PLUS LP
AMENDED SCHEDULE TO-T/13E-3S
FILED APRIL 27, 2005 BY AIMCO PROPERTIES LP, ET AL.
Dear Ms. Adams:
On behalf of AIMCO Properties, L.P. ("AIMCO OP"), we are responding to
the Staff's comment letter, dated May 5, 2005, regarding the Tender Offer
Statements and Rule 13e-3 Transaction Statements on Schedule TO (the "Schedule
TOs") referred to above. For your convenience, we are providing supplementally a
copy of this letter, and a copy of an Amended and Restated Offer to Purchase for
Century Properties Fund XIX ("CPF XIX"), which has been marked to show proposed
changes in response to the Staff's comments. We have set forth below each of the
Staff's comments and AIMCO OP's response to each comment.
1. We note your response to comment 2. Rule 14d-4(d)(1) and Rule
13e-3(f)(1)(iii) require you to promptly disseminate notice of any
material changes to your offers to security holders. Please provide us
with your analysis of your compliance with these Rules. We note that
you have amended the Schedules and, in some cases, you have issued
press releases with respect to changes; however, it does not appear
that you have mailed revised information.
RESPONSE: In accordance with Rule 14d-4(d)(l) and Rule
13e-3(f)(l)(iii), AIMCO OP has promptly disseminated notice of material
changes to its offers. On April 27, 2005, AIMCO OP filed with the SEC
amended Schedule TOs for the offers. These filings on EDGAR are
available to anyone with access to the Internet. Also, on April 27,
2005, AIMCO OP issued a press release and mailed a letter to security
holders, each announcing an extension of the expiration date of all of
the offers, and an increase in price for two of the offers. Except for
these letters, AIMCO OP has not yet mailed revised information to
security holders. AIMCO OP's intention, which is consistent with our
discussions with the Staff, is that it would resolve
Securities and Exchange Commission
June 3, 2005
Page 2
all of the Staff's comments before mailing to security holders the
amended and restated offers to purchase, so as to avoid any unnecessary
confusion of investors. Accordingly, AIMCO OP intends to file an
amendment to the Schedule TO for each of the partnerships next week and
mail to security holders the amended and restated offers to purchase as
soon as possible.
2. We note that the Court of Appeals vacated the trial court's approval of
the Nuanes and Heller litigation settlement. Please further explain, on
a supplemental basis, the significance of this ruling and status of
those cases and the settlement fund, with a view toward clarified
disclosure. We note that several of your prior offers were conducted
pursuant to the agreements of settlement.
RESPONSE: The Court of Appeals has remanded the matter to the trial
court for further findings related to the issue of the adequacy of the
derivative representatives. It has yet to make a substantive decision
regarding the fairness and adequacy of the settlement. Indeed, the
Court of Appeals has deferred such findings until the trial court has
addressed the issue raised on the remand. In the meantime, the Objector
filed a Petition for Review with the California Supreme Court.
Apartment Investment and Management Company ("AIMCO") filed an answer
to the Objector's petition on May 18, 2005. If the California Supreme
Court denies review, remittitur will issue and the trial court can
proceed with making the further findings required by the Court of
Appeals. Pending the Court's continuing review of the settlement, the
remainder of the settlement fund (after authorized withdrawals totaling
$ 326,216 as reported to the trial court on October 27, 2004) remains
segregated in an interest bearing account. With regard to the previous
litigation settlement offers, the plaintiffs and the defendants in the
litigation agreed that AIMCO OP should proceed with the litigation
settlement offers in the face of the appeal and notified the trial
court of this fact. AIMCO OP fully disclosed in several places in the
tender offer documents the existence of the appeal and the possibility
that the Court of Appeals could reverse or vacate the order approving
the settlement.
3. We note that you will file the appraisals obtained in connection with
refinancing properties held in the CPF XIX and DIRE tender offers. Also
revise your Item 1014 analysis in light of this information. In
addition, tell us whether the appraisals were completed at the time of
any prior offers you conducted for units of these partnerships. If so,
provide us your analysis of AIMCO's compliance with the disclosure
requirements of Items 1014 and 1015 of Regulation M-A in connection
with its Schedule 13E-3 filings.
RESPONSE: As reflected in the changes to the Amended and Restated Offer
to Purchase for CPF XIX, which has been provided to you supplementally,
AIMCO OP proposes to revise the disclosure regarding the fairness of
the offers to include the appraisals obtained in connection with the
refinancings. On behalf of AIMCO OP, we supplementally advise the Staff
that the appraisals relating to the refinancings of Covington Pointe
Apartments, Lakeside Apartments, Plantation Crossing Apartments, Wood
Lake Apartments and Vinings Peak Apartments were completed at the time
AIMCO OP conducted the litigation settlement offers in November 2003.
The appraisal for Covington Pointe Apartments is dated May 29, 2003,
for Lakeside Apartments is dated April 15, 2003, and for each of
Plantation Crossing Apartments, Wood Lake Apartment and Vinings Peak
Apartments is dated June 12, 2003.
Securities and Exchange Commission
June 3, 2005
Page 3
Although AIMCO OP was aware that the lenders were obtaining the
appraisals, it did not know what the appraised values were, only that
they were sufficient for the lenders to proceed with the refinancing
transactions. AIMCO OP did not receive copies of the appraisals until
April 2005, after the 2003 offers were completed.
AIMCO OP believes that it has complied with the disclosure requirements
of Items 1014 and 1015 of Regulation M-A. In addition to the fact that
AIMCO OP did not receive the refinancing appraisals until after the
2003 offers closed, AIMCO OP also believes that the refinancing
appraisals were not materially related to the 2003 offers. Pursuant to
the litigation settlement agreement relating to the November 2003
tender offers, AIMCO and plaintiffs' counsel were required to obtain
appraisals from a court-appointed independent appraiser, and the
results of these appraisals were disclosed in the 2003 offers. These
appraisals were addressed to AIMCO and counsel for the class action
plaintiffs and obtained for the express purpose of facilitating
security holders' analysis of AIMCO's offer price. The refinancing
appraisals for Lakeside Apartments, Plantation Crossing Apartments,
Wood Lake Apartments, Vinings Peak Apartments and Covington Pointe
Apartments, on the other hand, were solicited and obtained by the
lenders for their benefit in connection with the refinancings of such
properties for purposes of providing the lenders with information
necessary for their underwriting. AIMCO OP and its affiliates had no
role in initiating the appraisal process, had no control over the
process and were not parties to the agreement between the lender and
the appraiser that produced the appraisal. In fact, the appraisals
prohibit their disclosure to third parties without the appraiser's
consent. AIMCO OP has sought, and believes it will soon obtain, the
appraiser's consent to their disclosure in the offers.
4. We reissue comment 10. We note the increased offer prices in the
competed offers. It appears the filing persons should revise their
Schedule 13E3, and in particular the analysis required by Item 1014 to
reflect the competing offers. See Instruction 2(i) to Item 1014(b). In
addition, tell us when AIMCO learned of the mini-tender offers
discussed in your supplemental response and how AIMCO became aware of
the mini-tender offers. Clarify AIMCO's compliance with the disclosure
requirements of Item 1014(b) of Regulation M-A, and in particular,
Instruction 2(i) to Item 1014(b) with respect to the mini tender
offers.
RESPONSE: In accordance with Instruction 2(i) to Item 1014 of
Regulation M-A, the Amended and Restated Offers to Purchase for each of
Century Properties Fund XV ("CPF XV") and Davidson Growth Plus, L.P.
("DGP"), which were filed with the Securities and Exchange Commission
on April 27, 2005, include, as a factor in favor of fairness, a
discussion of the competing offers under the section entitled "Special
Factors - Position of the General Partner of Your Partnership With
Respect to the Offer." On behalf of AIMCO OP, we supplementally advise
the Staff that AIMCO OP was not aware of the mini-tender offers until
after the Offers to Purchase for each of CPF XV and DGP were
disseminated, and AIMCO OP only learned of these offers when limited
partners of these partnerships contacted AIMCO OP with questions
regarding the competing offers. AIMCO OP subsequently received a copy
of each of the mini-tender offers from limited partners of these
partnerships.
Securities and Exchange Commission
June 3, 2005
Page 4
In addition, AIMCO OP supplementally advises the Staff that on May 19,
2005, CPF XIX and National Property Investors III ("NPI III"), together with
seven other partnerships that are not a part of the offers, entered into a
Purchase and Sale Contract (the "Purchase Agreement") with a third party,
Juniper Investment Group, Ltd, a Texas limited partnership (the "Purchaser"), to
sell a portfolio of nine properties, which includes Misty Woods Apartments
(owned by CPF XIX) and Pinetree Apartments (owned by NPI III). As indicated in
the enclosed copy of the proposed Amended and Restated Offer to Purchase for CPF
XIX, disclosure will be added to describe the proposed sale, the general
partner's plans regarding distribution of any net sale proceeds to limited
partners, and the impact on the general partner's analysis of the fairness of
the offer price. Similar changes will be made for NPI III as well.
We would appreciate your prompt attention to this letter. Please do not
hesitate to contact the undersigned at (213) 687-5527 or Jonathan Friedman at
(213) 687-5396 if you have any questions or comments regarding this letter.
Very truly yours,
/s/ Jonathan Ko
Jonathan Ko
cc: Daniel L. Jablonsky, Esq. - Securities and Exchange Commission,
Division of Enforcement
Martha Long - Apartment Investment and Management Company
Miles Cortez, Esq. - Apartment Investment and Management Company
Joseph Coco, Esq. - Skadden, Arps, Slate, Meagher & Flom LLP
Jonathan Friedman, Esq. - Skadden, Arps, Slate, Meagher & Flom LLP