UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________.
Commission File Number 0-18148
DEAN WITTER REALTY YIELD PLUS, L.P.
(Exact name of registrant as specified in governing instrument)
Delaware 13-3426531
(State of organization) (IRS Employer Identification No.)
2 World Trade Center, New York, NY 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 392-1054
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None None
Securities registered pursuant to Section 12(g) of the Act:
Units of Limited Partnership Interest
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ X ]
State the aggregate market value of the voting stock held by nonaffiliates of
the registrant. Not Applicable
DOCUMENTS INCORPORATED BY REFERENCE
None<PAGE>
PART I.
ITEM 1.BUSINESS.
The Registrant, Dean Witter Realty Yield Plus, L.P. (the
"Partnership"), is a limited partnership organized in January 1987 under
the Uniform Limited Partnership Act of the State of Delaware for the
purpose of investing in income-producing commercial, residential and
industrial properties.
The Managing General Partner of the Partnership is Dean Witter
Realty Yield Plus Inc. (the "Managing General Partner"), a Delaware
corporation which is wholly-owned by Dean Witter Realty Inc. ("Realty").
The Associate General Partner is Dean Witter Realty Yield Plus
Associates, L.P. (the "Associate General Partner"), a Delaware limited
partnership, the general partner of which is the Managing General
Partner. The Managing General Partner manages and controls all aspects
of the business of the Partnership. The terms of transactions between
the Partnership and its affiliates are set forth in the consolidated
financial statements in Item 8 and in Item 13 below.
The Partnership issued 8,909,969 units of limited partnership
interests (the "Units") for $178,199,380. The offering has been
terminated and no additional Units will be sold.
The proceeds from the offering were used to make investments in six
participating mortgage loans and land leases secured by interests in two
retail properties, two office buildings, one residential property, and
an office and parking garage complex. Additionally, proceeds were used
to make an investment in a short-term loan secured by eleven partnership
interests. The Partnership subsequently acquired the real estate
securing all but one of the foregoing loans through foreclosure or
through transfers of ownership in lieu of foreclosure and sold three
properties. The Partnership's properties and investment in participating
mortgage loan are described in Item 2 below.
The Partnership considers its business to include one industry
segment, investment in real property. Financial information regarding
the Partnership is in the Partnership's financial statements in Item 8
below.
The Partnership's real property investments are subject to
competition from similar types of properties in the vicinities in which
they are located. Further information regarding competition and market
conditions where the Partnership's properties are located is set forth
in Item 7. "Management's Discussion and Analysis of Financial Condition
and Results of Operations".
The Partnership has no employees.
All of the Partnership's business is conducted in the United States.
ITEM 2. PROPERTIES.
The Partnership's principal offices are located at Two World Trade
Center, New York, New York 10048. The Partnership has no other offices.
The Partnership owns directly or through a partnership interest the
following interests in real estate and real estate loan. Generally, the
leases pertaining to the properties provide for pass-throughs to the
tenants of their pro-rata share of certain operating expenses. In the
opinion of the Managing General Partner, all of the properties are
adequately covered by insurance.
<TABLE>
<CAPTION>
Date of Initial Net Rentable
Completion/ Investment2 Area Ownership of
Property, location and type Acquisition1 ($000) (000 sq. ft.) Land & Improvements
<S> <C> <C> <C> <C>
Greenway Pointe3 1988/1990 $8,315 120 99.99% general part-
Columbia, MD nership interest.4
3 office/R&D
buildings
401 East Ontario Street 1990/1992 $37,000 395 apts 100% through interests
Chicago, IL in general partner-
luxury residential ships and corpora-
building tions.
2600 Michelson Drive 1986-89/1990 $36,000 390 50.81% general part-
Irvine, Ca nership interest.5
3 office buildings
Deptford Crossing3 1991/1992 $18,291 200 100% through interests
Deptford, NJ in general partner-
shopping center ships and corporations.
Genessee Crossing3 1988/1994 $8,640 309 100% through interests
Flint, MI in general partnerships
shopping center and corporations.
Pine Ridge N/A/1994 $138 2.8 acres 100% through a limited
Flint, MI partnership and corp-
unimproved land orations.
Military Crossing N/A/1994 $300 .6 acres 100% through interests
Norfolk, VA in general partnerships
land and corporations.
One Congress Street 1990,91/1989 $34,350 office-246 58% of a permanent
Boston, MA retail-37 second mortgage
office building and loan.
garage
Farmington Crossroads7 1985/1994 $4,022 84 50% through interests
Farmington Hills, MI in general partnerships
shopping center and corporations.6
Hampton Village Centre7 1988-1993/1993 $42,798 450 100% through interests
Rochester Hills, MI in general partner-
shopping center ships and corporations.
Midway Crossing7 1987/1994 $8,919 134 100% through interests
Elyria, OH in general partnerships
shopping center and corporations.
1. Acquisition date is date of foreclosure or in-substance foreclosure.
2. Estimated fair value on foreclosure or in-substance foreclosure date, or loan
amount.
3. Property is subject to a mortgage loan. See note 7 to the consolidated financial
statements in Item 8.
4. The Managing General Partner owns the remaining .01% general partnership interest
in the partnership.
5. Dean Witter Realty Yield Plus II, L.P., an affiliate of the Partnership owns the
remaining 49.19% general partnership interest. The total cost of the property was
approximately $71 million.
6. The remaining 50% interest was owned by a principal of the developer of the
property.
7. Property sold in December 1995. See Note 5 to the consolidated financial statements
in Item 8.
</TABLE>
Each property has been built with on-site parking facilities.
An affiliate of Realty is the property manager for Greenway Pointe,
2600 Michelson Drive and Deptford Crossing.
Further information relating to the Partnership's properties is
included in Item 7 and footnotes 4, 5 and 6 to the consolidated financial
statements in Item 8 below.
ITEM 3. LEGAL PROCEEDINGS.
On December 27, 1995, a class action lawsuit (the "Grigsby Action")
naming various public real estate partnerships sponsored by Realty
(including the Partnership and its Managing General Partner and Associate
General Partner), Realty, Dean Witter Reynolds Inc. and others as
defendants was filed in Superior Court in California. The complaint
alleges fraud, negligent misrepresentation, intentional and negligent
breach of fiduciary duty, unjust enrichment and related claims and seeks
compensatory and punitive damages in unspecified amounts and injunctive
and other equitable relief. The defendants have removed the case to the
United States District Court for the Southern District of California.
The parties have signed a stipulation requesting that the action be
transferred to the United States District Court for the Southern District
of New York. The defendants have not yet responded to the complaint and
intend to vigorously defend the action.
On February 14, 1996, a class action lawsuit (the "Schectman
Action") naming various public real estate partnerships sponsored by
Realty (including the Partnership and its Managing General Partner),
Realty, Dean Witter Discover & Co., and Dean Witter Reynolds Inc. as
defendants was filed in the Chancery Court of Delaware for New Castle
County. The complaint alleges reckless and/or negligent
misrepresentation and nondisclosure, breach of fiduciary duty and related
claims and seeks an accounting of profits and rescissory and/or
compensatory damages in unspecified amounts. The defendants have not yet
responded to the complaint and intend to vigorously defend the action.
On February 23, 1996, a class action lawsuit (the "Dosky Action")
naming various public real estate partnerships sponsored by Realty
(including the Partnership and its Managing General Partner), Realty,
Dean Witter Discover & Co., Dean Witter Reynolds Inc. and others as
defendants was filed in the Chancery Court of Delaware for New Castle
County. The complaint alleges breach of fiduciary duty and seeks an
accounting of profits, compensatory damages in unspecified amounts,
possible liquidation of the Partnership under a receiver's supervision
and other equitable relief. The defendants have not yet responded to the
complaint and intend to vigorously defend the action.
On February 29, 1996, a class action lawsuit (the "Segel Action")
naming various public real estate partnerships sponsored by Realty
(including the Partnership and its Managing General Partner), Realty,
Dean Witter Reynolds Inc., Dean Witter Discover & Co. and others as
defendants was filed in the Chancery Court of Delaware for New Castle
County. The complaint alleges breach of fiduciary duty and seeks an
accounting of profits, compensatory damages in unspecified amounts,
possible liquidation of the Partnership under a receiver's supervision
and other equitable relief. The defendants have not yet responded to the
complaint and intend to vigorously defend the action.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matter was submitted during the fourth quarter of the fiscal year
to a vote of Unit holders.
PART II.
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
An established public trading market for the Units does not exist,
and it is not anticipated that such a market will develop in the future.
Accordingly, information as to the market value of a Unit at any given
date is not available. However, the Partnership does allow limited
partners (the "Limited Partners") to transfer their Units, if a suitable
buyer can be located.
As of March 18, 1996, there were 17,459 holders of limited
partnership interests.
The Partnership is a limited partnership and, accordingly, does not
pay dividends. It does, however, make quarterly distributions of cash
to its partners. Pursuant to the Partnership Agreement, distributable
cash, as defined, is paid 90% to the Limited Partners and 10% to the
general partners (the "General Partners"). Pursuant to the agreement,
$1,239,345 of the General Partner's share of such net cash flow
distributable to them through December 31, 1990, was deferred subject to
receipt by the Limited Partners of an 8% annual return on their invested
capital through that date.
During each of the years ended December 31, 1995 and 1994, the
Partnership paid quarterly cash distributions aggregating $.60 per Unit
to Limited Partners. The total distributions each year amounted to
$5,939,976, with $5,345,980 distributed to the Limited Partners and
$593,996 distributed to the General Partners.
In January 1996, the Partnership paid a cash distribution of $0.15
per Unit to Limited Partners. The distribution was $1,484,994 with
$1,336,495 distributed to Limited Partners and $148,499 distributed to
the General Partners. The Partnership also paid a distribution in
January 1996 of the net proceeds from the sale of the shopping centers.
All of the net proceeds of $6,412,164 ($.72 per Unit) were distributed
to the Limited Partners; the General Partner deferred receipt of any
proceeds, as permitted by the Partnership agreement.
The Partnership anticipates making regular distributions to its
partners in the future.
Sale or financing proceeds will be distributed, to the extent
available: first, 97% to the Limited Partners and 3% to the General
Partners until each Limited Partner has received a return of their
invested capital plus an amount sufficient to provide a 10% cumulative
annual return thereon; second, 100% to the General Partners until they
have received the amount of any net cash flow previously deferred and not
distributed; and third, 85% to the Limited Partners and 15% to the
General Partners. During the years ended December 31, 1995 and 1994, the
Partnership did not distribute any sale or financing proceeds.
Taxable income (subject to certain adjustments) will be allocated
to the partners in proportion to the distribution of distributable cash
or sale or financing proceeds, as the case may be (or 90% to the Limited
Partners and 10% to the General Partners if there is no distributable
cash or sale or financing proceeds). Tax losses, if any, will be
allocated 90% to the Limited Partners and 10% to the General Partners.
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. SELECTED FINANCIAL DATA.
The following sets forth a summary of selected financial data for
the Partnership:
DEAN WITTER REALTY YIELD PLUS, L.P.
For the years ended December 31, 1995, 1994, 1993, 1992 and 1991
19951 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Total revenues $ 34,399,506 $ 29,051,935 $ 21,141,666$ 14,170,837 $ 17,485,712
Income (loss) before 2 3
extraordinary item$ 1,343,582 $ 4,024,646 $(7,155,221)2$(30,160,877)$ 8,364,953
Extraordinary item $ - $ 626,375 $ - $ - $ -
1 2 3
Net income (loss) $ 1,343,582 $ 4,651,021 $(7,155,221)2$(30,160,877)$ 8,364,953
Per Unit of limited
partnership interest:
Income (loss) before
extraordinary item $.17 $.41 $(.72) $(3.05) $ .84
Extraordinary item $ - $.06 - - -
Net income (loss) $.17 $.47 $(.72) $(3.05) $ .84
Cash distribution paid per Unit
of limited partnership
interest4 $.60 $.60 $.60 $.97 $1.20
Total assets at
December 31 $141,753,976 $195,810,917 $175,847,369$139,074,207 $192,070,715
Long term debt due
after one year $ 19,823,736 $ 66,887,850 $ 45,554,079 $ - $ -
1. Revenues and income include a $3.3 million gain on sale of real estate and income is net of a $6.9
million loss on impairment of real estate. See Item 7 and Note 5 to the consolidated financial
statements in Item 8.
2. Includes a $12.9 million impairment loss in 1993 on the mortgage loan at One Congress Street, and
a $1.7 million impairment loss in 1994 relating to the same loan.
3. Includes losses of $16.3 million on impairment of real estate and a $15.6 million writedown of loan
and reclassification to real estate upon in-substance foreclosure of real estate.
4. Distributions paid to limited partners include a return of capital per Unit of limited partnership
interest of $0.43, $0.13, $0.60, $0.97 and $0.36 for the years ended December 31, 1995, 1994, 1993,
1992 and 1991, respectively, calculated as the excess of cash distributed per Unit over accumulated
earnings per Unit not previously distributed.
The above financial data should be read in conjunction with the consolidated financial statements.
/TABLE
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
Liquidity and Capital Resources
The Partnership raised $178,199,380 through a public offering which
terminated in 1987. The Partnership has no plans to raise additional
capital.
The Partnership originally committed the proceeds raised in the
offering to seven investments in loans or land leases, which provided for
a fixed current return and participation in the long-term appreciation
and/or revenue from operation of the properties involved in such
investments. Due to weaknesses in real estate markets, most of the
properties did not generate sufficient cash flow to fully service their
debt. As a result, prior to December 31, 1994, the Partnership acquired,
through foreclosure, or through transfers of ownership interests in lieu
of foreclosure, all but one of the properties in which it originally
invested. The resulting foreclosures have effectively changed the
Partnership from a participating lender to an equity owner of real
estate. As a result, the Partnership receives all cash flow from the
properties it owns, and will be required to expend funds for tenant
improvements and leasing commissions in connection with the leasing of
vacant space as is customary in most real estate markets. See note 4 to
the consolidated financial statements in Item 8.
Many real estate markets are stabilizing or improving primarily due
to the continued absence of significant construction activity. The
relative absence of office construction as well as growth in business
services has resulted in absorption of office space in cities such as
Boston, the location of One Congress Street. In contrast, office vacancy
levels in southern California (the location of 2600 Michelson Drive)
remain essentially unchanged from the prior year as certain large
corporations and financial companies continued to restructure and
consolidate their operations. In most markets, office construction is
limited to build-to-suit projects. Office/research and development
properties in certain regions are benefiting from growth in the computer,
communications and electronics industries. At retail properties, the
demand for space for the first half of 1995 was subdued as result of
generally sluggish retail sales and competition from large power centers,
discounters and reorganized department stores. Continued tenant demand
for units at many residential properties has resulted in stable
occupancies and rent growth during 1995.
The Partnership's liquidity depends upon the cash flow from
operations of its real estate investments, interest on its participating
mortgage loan and expenditures for tenant improvements and leasing
commissions in connection with the leasing of space. In 1995, all of the
Partnership's properties generated positive cash flow from operations,
and it is anticipated that they will continue to do so.
In addition, the Partnership's liquidity will be affected by the sale of
the Partnership's properties. In accordance with the provisions of the
Partnership Agreement, the net sales proceeds from the sale by the
Partnership of three shopping centers of $6.4 million ($.72 per Unit) was
distributed to the Limited Partners in January 1996, representing a
return of invested capital. Because the Partnership has fewer income
producing investments, the Partnership's cash from operations available
for distribution will decline in 1996 and thereafter.
In the fourth quarter of 1995, the partnership sold the Farmington
Crossroads, Hampton Village Centre and Midway Crossing shopping centers
for approximately $58.3 million (see Note 5 to the consolidated financial
statements). Proceeds of approximately $48.7 million were used to pay
closing costs, repay mortgage loans and repay the loan from an affiliate
of Realty. After reserves relating to the 401 East Ontario Street
property (see Note 4 to the consolidated financial statements), the
Partnership distributed approximately $6.4 million ($.72 per Unit) to
Limited Partners in January 1996. Aggregate net income and cash flow in
1995 of the properties sold approximated $1.9 million and $2.6 million,
respectively.
In December 1995, the Partnership refinanced the mortgage loan
payable on the Deptford Crossing shopping center and paid down $4.5
million of principal from its cash reserves. See Note 7 to the
consolidated statements.
In 1995, the Partnership incurred approximately $505,000 primarily
for lease-related capital expenditures at 2600 Michelson Drive, and
approximately $236,000 primarily relating to the retail space at 401 East
Ontario Street. In addition, the Partnership expended approximately $1.5
million in connection with the repairs at 401 East Ontario Street (see
Note 4 to the consolidated financial statements), and funded its
remaining $300,000 loan commitment to One Congress Street
As of December 31, 1995, the Partnership has commitments to
contribute approximately $1 million to DW Michelson Associates, primarily
for lease-related capital expenditures, and expects to expend
approximately $6 million to complete the repairs at 401 East Ontario
Street. These expenditures are expected to be funded from cash reserves.
The Partnership's participating mortgage loan is secured by the One
Congress Street property. The General Services Administration ("GSA"),
which leases all of the office space at the property, had a one-time
option to cancel all or a portion of its lease at any time prior to its
lease expiration in August 1997. In March 1996, GSA notified the
owner/borrower of the One Congress Street property that it will vacate
approximately 67,500 Square feet (approximately 28%) of the office space
at the property in June 1996. The borrower continues discussions with
the GSA regarding renewal of its remaining space at the property as well
as the pending claim against the GSA relating to the original
construction of its space. If the owner/borrower can not re-lease the
space which GSA will vacate, property cash flow will be reduced, and the
owner/borrower of the property may not be able to meet its minimum debt
service obligation.
Except as discussed above and in the consolidated financial
statements, the Managing General Partner is not aware of any trends or
events, commitments or uncertainties that will have a material impact on
liquidity.
In January 1996, in addition to the distribution of the sale
proceeds described above, the Partnership paid the fourth quarter cash
distribution of $.15 per unit to Limited Partners. The total cash
distribution was $1,484,994 with $1,336,495 distributed to Limited
Partners and $148,499 distributed to the General Partner.
Operations
Fluctuations in the Partnership's operating results for the year
ended December 31, 1995 compared to 1994 and for 1994 compared to 1993
are primarily attributable to the following:
The increase in rental income in 1995 compared to 1994 was
approximately $2.1 million. The increase resulted from higher rental
income of approximately $1.5 million at the Midway Crossing, Genessee
Crossing and Farmington Crossroads shopping centers, which began to be
included in operations in 1994 (collectively, the "1994 Shopping
Centers"). The remaining increase resulted from higher rental revenue
associated with higher occupancy at Greenway Pointe, 2600 Michelson Drive
and 401 East Ontario Street partially offset by the loss of one month of
rental income at Hampton Village Centre due to its sale.
The increase in rental income in 1994 compared to 1993 was
approximately $7.4 million. The increase resulting from the inclusion
of the operations of the 1994 Shopping Centers and the Hickory Ridge
shopping center was approximately $2.8 million, and the increase caused
by the inclusion of a full year of operations of the Deptford and Hampton
properties was approximately $5.7 million. The remaining difference, a
decrease of approximately $1.1 million, was caused by lower rental income
from the Michelson and Greenway Pointe properties, partially offset by
higher rental income from 401 East Ontario Street.
The increase in property operating expenses in 1995 compared to 1994
primarily results from the costs of repair work at 401 East Ontario
Street, offset by lower operating expenses at 2600 Michelson Drive as a
result of a significant refund of prior year real estate taxes.
The increase in property operating expense in 1994 compared to 1993
was approximately $3.4 million. The increase resulting from the
inclusion of the operations of the 1994 Shopping Centers and Hickory
Ridge shopping center was approximately $1.2 million, and the increase
caused by inclusion of the first full year of operations of the Deptford
and Hampton properties was approximately $1.7 million. The remaining
increase was primarily caused by higher operating costs at 401 East
Ontario Street.
The increase in interest income from the participating mortgage loan
in 1995 compared to 1994 resulted from the higher loan balance
outstanding during 1995. The decrease in 1994 compared to 1993 primarily
resulted from the reclassification of Hampton Village Centre to real
estate effective in September 1993.
The increase in interest on short term investments in 1995 compared
to 1994 was primarily a result of higher interest rates and amounts
invested in 1995. The increase in interest on short-term investments in
1994 compared to 1993 is attributable to higher interest rates in 1994.
The decrease in other income in 1995 compared to 1994 is due to the
absence of cash received in 1994 from the partnerships which owned four
community shopping centers that were foreclosed upon by their respective
first mortgage lenders, and cash received from the developer of 401 East
Ontario Street in exchange for the Partnership releasing it of any
continuing liability under the deficit guaranty, offset by a lease
termination fee received at Michelson in 1995. The increase in other
income in 1994 compared to 1993 primarily represents the cash received
from the foreclosed shopping centers and the release from the developer
at 401 East Ontario as noted above.
The increase in interest expense for 1995 compared to 1994 primarily
resulted from the inclusion in 1995 of a full year's interest on the
mortgage loans on the 1994 Shopping Centers which were acquired in April
1994. The increase in interest expense in 1994 when compared to 1993
represent interest on the Hampton Village Centre, Deptford Crossing and
1994 Shopping Centers first mortgage loans which the Partnership began
to record when it obtained ownership of these properties.
The decrease in general and administrative expense in 1995 compared
to 1994 resulted from the absence of legal costs incurred in connection
with the foreclosures of the 1994 Shopping Centers. General and
administrative expenses were higher in 1993 compared to 1994 because of
significant legal fees incurred in connection with foreclosures and
restructurings in 1993.
Losses on impairments of real estate and investments in
participating mortgage loans and other secured loans consisted of the
provisions for losses on Deptford Crossing in 1995 and One Congress
Street in 1994 and 1993. See Notes 4 and 6 to the consolidated financial
statements in Item 8.
The increase in the minority interest share of income in 1995
compared to 1994 is due to higher income from 2600 Michelson Drive and
lower property operating expenses as described above. The decreases in
minority interests in 1994 compared to 1993 primarily resulted from lower
rents in 1994 as compared to 1993 at 2600 Michelson Drive.
A summary of the office, retail, residential and research and
development building markets where the Partnership's properties are
located, and the performance of each property is as follows:
The current vacancy rate in the Columbia, Maryland research and
development market, the location of Greenway Pointe, is 13%; this market
suffers from an oversupply of buildings which will take several years to
work off. However, at December 31, 1995, occupancy at the property
increased to 100%. The lease of G Tech, which occupies approximately 20%
of the property's space, expires in September 1996; it is unlikely that
this tenant will renew its space. This center is leased to 11 tenants.
Major tenants include G Tech, Energetics, Caremark and LGIT.
The 401 East Ontario property is located in a strong luxury
residential submarket in the central business district of Chicago,
Illinois. There is currently no new luxury high rise construction in
this submarket, and other competing properties are in the process of
converting to condominium ownership. At December 31, 1995, new and
existing residents have continued to pay rental increases and the
property is 93% occupied. The current occupancy is slightly below
market; this may be caused by construction activity described in Note 4
to the consolidated financial statements. It is not known at this time
the effect, if any, the repair program will have on rents and occupancy
in the near future.
Favorable lease rates are attracting tenants to the office market in
Irvine, California, the location of 2600 Michelson Drive, where the
market vacancy rate is approximately 15%. The steady absorption of space
and the lack of new construction are leading to a tightening of available
quality office space in this sub-market. During 1995, average occupancy
at the property was 87%, and at December 31, 1995,the property was 92%
leased to 41 tenants. The lease of AVCO Financial expires in 2002.
Approximately 9% of the leased space is up for renewal in 1996.
Deptford, New Jersey, the location of Deptford Crossing, has a high
vacancy rate which has exerted downward pressure on rents and has made
further leasing difficult. During 1995, occupancy at the property
decreased from 82% to 80%. No significant leases are scheduled to expire
before 1997. The center is leased to 14 tenants. Major tenants include
TJ MAXX, Marshalls, Office Warehouse & Petstuff. Because of continuing
weakness in the Deptford, New Jersey retail market, and the likelihood
that such weakness would persist for several years, in the third quarter
of 1995, the Partnership concluded that there was a decline in the value
of the Deptford Crossing shopping center and that the decline was other-
than-temporary. Accordingly, the Partnership recorded a loss on
impairment of the property of approximately $6,931,000 at September 30,
1995.
The vacancy level in the Boston office market, the location of One
Congress Street, is approximately 10%, a decrease from approximately 12%
at the beginning of the year. However, recent leasing activity has
slowed from the 1994 pace and consolidations of banks with major office
leases in Boston may add additional space to the market. The property
may be affected by this because GSA has announced it will vacate 67,500
square feet of the property's space in June 1996 and its lease on the
remaining space terminates in August 1997. Also, the retail space has
been difficult to lease. During 1995, occupancy at the office and garage
space remained at 100% and the retail space, which is not a significant
portion of the overall space, is substantially vacant.
Flint, Michigan, the location of the Genessee Crossing shopping
center, is an active retail market with a relatively low vacancy rate.
During 1995, occupancy at the property remained at 99%. No significant
leases are scheduled to expire in the near future. Builder's Square,
which owns an 80,000 square foot store at the center, has announced it
will leave its building at the end of the year and move into a bigger
location in the area. Builder's Square has leased the space to two new
tenants which are home entertainment and electronics retailers. The
Partnership believes that the new retailers will increase traffic at the
property. This center is leased to 11 tenants. Major tenants include
Joann Fabrics, Fashion Bug and Burlington Coat Factory.
Inflation
Inflation has been consistently low during the periods presented in
the financial statements and, as a result, has not had a significant
effect on the operations of the Partnership or its properties.
<PAGE>
<TABLE>
<CAPTION>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
DEAN WITTER REALTY YIELD PLUS, L.P.
INDEX
(a) Financial statements Page
<S> <C>
Independent Auditors' Report - 1995-1994 16
Independent Auditors' Report 1993 17
Consolidated Balance Sheets at December 31, 1995 and 1994 18
Consolidated Statements of Operations for the years ended
December 31, 1995, 1994 and 1993 19
Consolidated Statements of Changes in Partners' Capital
for the years ended December 31, 1995, 1994 and 1993 20
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1994 and 1993 21-22
Notes to Consolidated Financial Statements 23-35
(b) Financial statement schedule
Real Estate and Accumulated Depreciation III 42-46
All schedules other than those indicated above have been omitted because
either the required information is not applicable or the information is
shown in the consolidated financial statements or notes thereto.
/TABLE
<PAGE>
Independent Auditors' Report
The Partners
Dean Witter Realty Yield Plus, L.P.:
We have audited the accompanying consolidated balance sheets of Dean
Witter Realty Yield Plus, L.P. and consolidated partnerships (the
"Partnership") as of December 31, 1995 and 1994, and the related
consolidated statements of operations, partners' capital (deficiency) and
cash flows for the years then ended. Our audits also included financial
statement schedule III. These financial statements and the financial
statement schedule are the responsibility of the Partnership's
management. Our responsibility is to express an opinion on there
financial statements and the financial statement schedule based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly,
in all material respects, the financial position of Dean Witter Realty
Yield Plus, L.P. and consolidated partnerships as of December 31, 1994
and 1994, and the results of their operations and their cash flows for
the years then ended in conformity with generally accepted accounting
principles. Also, in our opinion, financial statement schedule III, when
considered in relation to the basic consolidated financial statements
taken as a whole, presents fairly, in all material respects, the
information set forth therein.
Deloitte & Touche LLP
/s/Deloitte & Touche LLP
New York, New York
March 29, 1996
<PAGE>
Independent Auditors' Report
The Partners
Dean Witter Realty Yield Plus, L.P.
We have audited the accompanying consolidated statements of operations,
changes in partners' capital (deficiency) and cash flows of Dean Witter
Realty Yield Plus, L.P. and consolidated partnerships for the year ended
December 31, 1993. These consolidated financial statements are the
responsibility of the Partnership's management. Our responsibility is
to express an opinion on these consolidated financial statements based
on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the results of operations and
cash flows of Dean Witter Realty Yield Plus, L.P. and consolidated
partnerships for the year ended December 31, 1993, in conformity with
generally accepted accounting principles.
KPMG Peat Marwick LLP
New York, New York
March 25, 1994
<PAGE>
<TABLE>
<CAPTION>
DEAN WITTER REALTY YIELD PLUS, L.P.
CONSOLIDATED BALANCE SHEETS
December 31, 1995 and 1994
ASSETS
1995 1994
<S> <C> <C>
Real estate, at cost:
Land $ 13,444,875 $ 31,695,941
Buildings and improvements 99,540,590 142,956,910
112,985,465 174,652,851
Accumulated depreciation 14,468,727 12,098,192
98,516,738 162,554,659
Investment in participating mortgage
loan, net of allowance of $14,570,278 19,974,382 19,584,348
Cash and cash equivalents 18,939,265 4,772,726
Deferred expenses, net 1,626,335 1,488,502
Other assets 2,697,256 2,410,682
Cash in escrow - 5,000,000
$141,753,976 $195,810,917
LIABILITIES AND PARTNERS' CAPITAL
Mortgage notes payable $ 20,003,736 $ 57,714,877
Accounts payable and other liabilities 4,249,284 4,615,541
Minority interests 19,566,955 19,873,023
Loan from affiliate - 1,726,524
Loans payable to bank - 9,350,557
43,819,975 93,280,522
Partners' capital (deficiency):
General partners (6,407,938) (5,614,897)
Limited partners ($20 per Unit,
8,909,969 issued and outstanding) 104,341,939 108,145,292
Total partners' capital 97,934,001 102,530,395
$141,753,976 $195,810,917
See accompanying notes to consolidated financial statements.
/TABLE
<PAGE>
<TABLE>
<CAPTION>
DEAN WITTER REALTY YIELD PLUS, L.P.
CONSOLIDATED STATEMENTS OF OPERATIONS
Years ended December 31, 1995, 1994 and 1993
1995 1994 1993
<S> <C> <C> <C>
Revenues:
Rental $27,033,215 $24,937,731 $ 17,554,056
Interest on participating mortgage
loans 2,745,433 2,588,341 3,013,236
Gain on sale of real estate 3,334,036 - -
Interest on short-term investments 496,283 369,191 292,974
Other 790,539 1,156,672 281,400
34,399,506 29,051,935 21,141,666
Expenses:
Property operating 12,942,778 11,601,150 8,101,873
Interest 5,794,644 5,280,383 1,497,011
Depreciation 4,342,062 4,144,709 2,826,887
Amortization 547,318 410,772 234,645
General and administrative 786,283 1,129,135 1,405,769
Losses on impairment of real
estate, and participating
mortgage loan 6,931,459 1,711,683 12,858,595
31,344,544 24,277,832 26,924,780
Income (loss) before minority
interests 3,054,962 4,774,103 (5,783,114)
Minority interests 1,711,380 749,457 1,372,107
Income (loss) before extraordinary
item 1,343,582 4,024,646 (7,155,221)
Extraordinary item:
Gain on refinancing of debt - 626,375 -
Net income (loss) $ 1,343,582 $ 4,651,021 $ (7,155,221)
Net income (loss) allocated to:
Limited partners $ 1,542,627 $ 4,185,919 $ (6,439,699)
General partners (199,045) 465,102 (715,522)
$ 1,343,582 $ 4,651,021 $ (7,155,221)
Per Unit of limited partnership
interest:
Income (loss) before extraordinary
item $.17 $.41 $(0.72)
Extraordinary item - .06 -
Net income (loss) $.17 $.47 $(0.72)
See accompanying notes to consolidated financial statements.
/TABLE
<PAGE>
<TABLE>
<CAPTION>
DEAN WITTER REALTY YIELD PLUS, L.P.
CONSOLIDATED STATEMENTS OF PARTNERS' CAPITAL
Years ended December 31, 1995, 1994 and 1993
Limited General
Partners Partners Total
<S> <C> <C> <C>
Partners' capital (deficiency)
at January 1, 1993 $121,091,031 $(4,176,484) $116,914,547
Net loss (6,439,699) (715,522) (7,155,221)
Cash distributions (5,345,979) (593,997) (5,939,976)
Partner's capital (deficiency)
at December 31, 1993 109,305,353 (5,486,003) 103,819,350
Net income 4,185,919 465,102 4,651,021
Cash distributions (5,345,980) (593,996) (5,939,976)
Partners' capital (deficiency)
at December 31, 1994 108,145,292 (5,614,897) 102,530,395
Net income 1,542,627 (199,045) 1,343,582
Cash distributions (5,345,980) (593,996) (5,939,976)
Partners' capital (deficiency)
at December 31, 1995 $ 104,341,939 $(6,407,938) $ 97,934,001
See accompanying notes to consolidated financial statements.
/TABLE
<PAGE>
<TABLE>
<CAPTION>
DEAN WITTER REALTY YIELD PLUS, L.P.
Consolidated Statements of Cash Flows
Years ended December 31, 1995, 1994 and 1993
1995 1994 1993
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $1,343,582 $4,651,021 $(7,155,221)
Adjustments to reconcile net income (loss)
to net cash provided by operating activities:
Depreciation and amortization 4,889,380 4,555,481 3,061,532
Minority interests in earnings of
consolidated partnerships 1,711,380 749,457 1,372,107
Losses on impairment of real estate,
participating mortgage
and secured loans 6,931,459 1,711,683 12,858,595
Gain on sale of real estate (3,334,036) - -
Increase in deferred expenses (593,204) (624,948) (248,428)
Increase in other assets (802,195) (231,675) (99,140)
Decrease accounts payable and other
liabilities (366,257) (473,368) 2,560,493
Net cash provided by operating activities 9,780,109 10,337,651 12,349,938
Cash flows from investing activities:
Proceeds from sales of real estate,
net of closing costs 57,343,595 - -
Investments in participating mortgage loans (390,034)(1,318,423)(776,610)
Release of cash in escrow 5,000,000 - 400,000
Additions to real estate (821,485) (2,465,304) (989,174)
Net cash provided by (used in)
investing activities 61,132,076 (3,783,727) (1,365,784)
Cash flows from financing activities:
Repayments of mortgage notes payable(37,711,141) (8,878,006) (53,910)
Repayments of bank loans (9,350,557) (267,180) -
Loans from (repayments to) affiliates (1,726,524) 3,409 51,088
Cash distributions (5,939,976) (5,939,976) (5,939,976)
Minority interest in distributions
from consolidated partnerships (2,507,440) (1,357,785) (1,716,964)
Contributions by minority interest
to consolidated partnerships 489,992 989,425 -
Proceeds from bank loans - 8,555,404 1,062,333
Effect of the change in cash from
acquisitions (foreclosures) of
partnerships - 253,660 (153,794)
Net cash used in financing activities (56,745,646) (6,641,049) (6,751,223)
Increase (decrease) in cash and cash equivalents 14,166,539 (87,125) 4,232,931
Cash and cash equivalents at beginning of year 4,772,726 4,859,851 626,920
Cash and cash equivalents at
end of year $ 18,939,265 $ 4,772,726 $ 4,859,851
Supplemental disclosure of cash flow information:
Cash paid for interest $ 5,794,644 $ 5,280,383 $ 1,497,011
See accompanying notes to consolidated financial statements.
(Continued)
/TABLE
<PAGE>
<TABLE>
<CAPTION>
DEAN WITTER REALTY YIELD PLUS, L.P.
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ended December 31, 1995, 1994 and 1993
1995 1994 1993
Supplemental disclosure of non-cash investing activities:
<S> <C> <C> <C>
Real estate acquired through in-substance
foreclosure and foreclosure
of mortgage loans $ - $(25,731,946)$(58,989,831)
Investment in participating mortgage
loans transferred to real estate $ - $ - $ 13,271,336
Mortgage notes payable assumed $ - $ 25,598,317 $ 45,198,476
Other assets acquired through
foreclosures $ - $ (95,541) $ 1,028,511
Accounts payable and accrued
liabilities acquired through
foreclosures $ - $ 482,830 $(1,394,736)
Foreclosure of real estate:
Real estate $ - $ 4,150,000 $ -
Mortgage note $ - $(4,150,000) $ -
See accompanying notes to consolidated financial statements.
/TABLE
<PAGE>
DEAN WITTER REALTY YIELD PLUS, L.P.
Notes to Consolidated Financial Statements
December 31, 1995, 1994 and 1993
1. The Partnership
Dean Witter Realty Yield Plus, L.P. (the "Partnership") is a limited
partnership organized under the laws of the State of Delaware in 1987.
The Managing General Partner of the Partnership is Dean Witter Realty
Yield Plus Inc., which is wholly-owned by Dean Witter Realty Inc.
("Realty").
The Partnership was formed to invest in the development and operation of
income-producing commercial, residential and industrial properties.
The Partnership issued 8,909,969 units of limited partnership interests
(the "Units") for $178,199,380. No additional Units will be sold.
2. Summary of Significant Accounting Policies
The financial statements include the accounts of the Partnership, DW
Columbia Gateway Associates, DW Michelson Associates, DW Lakeshore
Associates (formerly Lakeshore Ontario Associates), Deptford Crossing
Associates (effective July 16, 1993), Hampton Crossing Associates
(effective September 7, 1993), and DW Community Centers Limited
Partnership and DW Maplewood Inc. (effective April 4, 1994) on a
consolidated basis. All significant intercompany accounts and
transactions have been eliminated.
The Partnership's records are maintained on the accrual basis of
accounting for financial reporting and tax purposes. The preparation of
financial statements in conformity with generally accepted accounting
principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
Real estate acquired in settlement of loans was recorded at the lower of
the book value of the investment or estimated fair value of the property
at the date of foreclosure or in-substance foreclosure. Costs of
improvements to the properties are capitalized and repairs are expensed.
Depreciation is recorded on the straight-line method over useful lives
ranging from 15 to 40 years.
At least annually, and more often if circumstances dictate, the
Partnership evaluates the recoverability of the net carrying value of its
real estate. As part of this evaluation, the fair values of each of the
properties are estimated (in some cases with the assistance of
independent real estate consultants) based on discounted cash flows. The
fair values are compared to the properties' carrying amounts in the
financial statements. A deficiency in fair value relative to carrying
amount is an indication of the need for a writedown due to impairment.
In such case, the expected future net cash flows from the property are
estimated for a period of approximately five years ( or a shorter period
if the Partnership expects that the property may be disposed of sooner),
along with estimated sales proceeds at the end of the period. If the
total of these future undiscounted cash flows were less than the carrying
amount of the property, the property would be written down to its fair
value and a loss on impairment recognized by a charge to earnings. The
Partnership's accounting policy complies with Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-
Lived Assets and for Long-Lived Assets to be Disposed Of".
The Partnership also periodically evaluates the collectibility of both
interest and principal of its investment in the participating mortgage
loan to determine whether it is impaired. The mortgage loan is
considered to be impaired when, based on current information and events,
it is probable that the Partnership will be unable to collect all amounts
due according to the existing contractual terms of the loan. When the
mortgage loan is considered to be impaired, the Partnership establishes
a valuation allowance equal to the difference between a) the carrying
value of the loan, and b) the present value of the expected cash flows
from the loan at its effective interest rate, or, for practical purposes,
at the estimated fair value of the real estate collateralizing the loan.
The Partnership's accounting policy complies with Statements of Financial
Accounting Standards No. 114 and No. 118 with respect to accounting by
creditors for impairment of a loan.
Because the determination of fair value is based upon projections of
future economic events such as property occupancy rates, rental rates,
operating cost inflation and market capitalization rates which are
inherently subjective, the amounts ultimately realized at disposition may
differ materially from the net carrying value as of December 31, 1995.
The cash flows used to determine fair value are based on good faith
estimates and assumptions developed by the Managing General Partner.
Unanticipated events and circumstances may occur and some assumptions may
not materialize; therefore actual results may vary from the estimates and
the variances may be material. The Partnership may provide additional
writedowns on its real estate or valuation allowance on its loan which
could be material, in subsequent years if real estate markets or local
economic conditions change.
Cash and cash equivalents consist of cash and highly liquid investments
with maturities, when purchased, of three months or less.
Deferred expenses consist of origination fees in connection with the
participating mortgage loan and leasing commissions. Origination fees
are amortized over the loan term, which approximates the effective yield
method. Leasing commissions are amortized over the applicable lease
terms.
Rental income is accrued on a straight-line basis over the terms of the
leases. Accruals in excess of amounts payable by tenants pursuant to
their leases (resulting from rent concessions or rents which periodically
increase over the term of a lease) are recorded as receivables and
included in other assets.
Net income (loss) per Unit amounts are calculated by dividing net income
(loss) allocated to Limited Partners, in accordance with the Partnership
agreement, by the weighted-average number of Units outstanding.
No provision for income taxes has been made in the financial statements,
since the liability for such taxes is that of the partners rather than
the Partnership.
The accounting policies used for tax reporting purposes differ from those
used for financial reporting as follows: (a) depreciation is calculated
using accelerated methods, (b) rental income is recognized based on the
payment terms in the applicable leases, and (c) writedowns for
impairments of real estate and the participating mortgage loan are not
deductible. In addition, offering costs are treated differently for tax
and financial reporting purposes. The tax basis of the Partnership's
assets and liabilities is approximately $58 million higher than the
amounts reported for financial statement purposes at December 31, 1995.
3. Partnership Agreement
The Partnership Agreement provides that net cash flow, as defined, will
be paid 90% to the Limited Partners and 10% to the General Partners.
Pursuant to the Agreement, $1,239,345 of the General Partners' share of
such net cash flow distributable to them through December 31, 1990 was
deferred, subject to receipt by the Limited Partners of an 8% annual
return on their invested capital.
Sale or financing proceeds will be distributed, to the extent available:
first, 97% to the Limited Partners and 3% to the General Partners until
Limited Partners receive a return of their invested capital plus an
amount sufficient to provide a 10% cumulative annual return thereon;
second, 100% to the General Partners until they have received the amount
of any net cash flow deferred through December 31, 1990; and third, 85%
to the Limited Partners and 15% to the General Partners. The General
Partners are permitted to defer receipt of distributions otherwise
payable to them.
Taxable income generally will be allocated to the partners in proportion
to the distribution of distributable cash or sale or financing proceeds,
as the case may be (or 90% to the Limited Partners and 10% to the General
Partners if there is no distributable cash or sale or financing
proceeds). Tax losses, if any, are allocated 90% to the Limited Partners
and 10% to the General Partners.
Distributions paid to limited partners include returns of capital per
Unit of limited partnership interest of $0.46, $0.13 and $0.60, for the
years ended December 31, 1995, 1994 and 1993, respectively, calculated
as the excess of cash distributed per Unit over accumulated earnings per
Unit not previously distributed.
4. Investments in Real Estate
2600 Michelson Drive, Irvine, California
DW Michelson Associates, a general partnership which is owned by the
Partnership (50.81%) and Dean Witter Realty Yield Plus II ("Yield Plus
II"), an affiliated partnership (49.19%) had made a land purchase, a
subsequent land lease, and a mortgage loan on 2600 Michelson Drive, an
office complex consisting of three office buildings and underlying land,
in 1988. The total investment in the property is approximately $71
million, of which the Partnership contributed $36 million. In 1990, the
borrower/land lessee defaulted on the loan and, in 1991, DW Michelson
effectively obtained ownership of the property. DW Michelson contributed
a portion of its loan as equity to the ownership entity, which is a
limited partnership of which DW Michelson is the managing general partner
and the principal of the original borrower is a limited partner. DW
Michelson receives interest on its loan, lease payments on the land and
a preferred return on its equity. DW Michelson also received a
promissory note of approximately $1.2 million from the borrower. In July
1994, the note, which was past due, was extended until December 31, 1999.
At December 31, 1995, the balance of this note is approximately $1.2
million.
An affiliate of Realty manages the property.
Greenway Pointe, Columbia, Maryland
In 1990, the Partnership acquired Greenway Pointe, which consists of
three office/research and development buildings and land from the
borrower for an amount equal to the then-outstanding loan balance. An
affiliate of Realty manages the property.
401 East Ontario Street, Chicago, Illinois
Through 1990, the Partnership funded an approximately $47,000,000
leasehold mortgage loan, land purchase and participating land lease for
401 East Ontario Street, a high rise luxury apartment building. The
property was developed and owned by Lakeshore Ontario Associates, a 50/50
joint venture between a Chicago developer ("Chicago Developer") and an
entity comprised of former and current Realty employees, several of whom
are former or current officers of the Managing General Partner. The
Partnership received a completion guaranty and a $6,000,000 operating
deficits guaranty from the borrower/land lessee. One half of these
guarantees was the obligation of Realty and the other half was the
obligation of the principals of the Chicago Developer. Realty funded all
of the additional construction costs (approximately $2,300,000) and had
fully funded its obligation under the operating deficits guaranty of
$4,509,212 as of December 31, 1993.
Beginning in March 1992, the Chicago Developer failed to fund its
obligation under the operating deficits guaranty plus accrued interest
on the unpaid balance which was reserved in full. This resulted in a
default on its loan. As of December 31, 1992, the Partnership accounted
for this loan as if the property were foreclosed upon, wrote down the
loan to its estimated fair value, which resulted in a loss of
$10,915,869, and reclassified the loan to real estate.
In January 1994, the borrower transferred to the Partnership the
ownership of the improvements by deed-in-lieu of foreclosure. In
addition, the Chicago Developer paid the Partnership $350,000 (included
in other income) in exchange for the Partnership's and Realty's releasing
the principals of the Chicago Developer from any continuing liability
under their deficit guarantee.
In late February 1995, cracks and spalling were observed on certain
portions of the concrete exterior at the 401 East Ontario Street property
in Chicago, IL. The worst spalls were removed and temporary repairs were
completed. Beginning in March, the Partnership retained the services of
three independent engineering firms which completed studies and submitted
separate reports. Their reports confirmed that cracking and spalling of
this nature is highly unusual for a building of this age, and attribute
the problems to both the defective design and construction of the
building. The Partnership also retained two architectural firms to work
with the engineers in developing permanent repair specifications.
Drawings and specifications for the exterior concrete repair work were
submitted to five qualified contractors for bidding purposes; the
contract was awarded to the lowest bidder. Permanent repair work began
in September and is currently scheduled to be completed prior to December
31, 1996. Expenditures in 1995 for the extensive testing and engineering
analysis and the repairs was approximately $1.5 million and the cost of
permanent repairs is expected to approximate $6 million. Other costs
(litigation, rent loss, increased maintenance, etc.) are still being
developed.
The Partnership has notified its insurance carrier of these problems and
its remedial activities to date and, in early May 1995, the Partnership
initiated litigation against those it deemed responsible for the design
and construction of the building including the architect, structural
engineer, general contractor and others.
The extent to which the above-described costs may be recoverable through
insurance or litigation proceeds cannot be determined at this time.
Deptford Crossing, Deptford, New Jersey
In March 1991, the Partnership made a participating loan secured by
partnership interests on Deptford Crossing, a community shopping center.
Beginning in 1992, the borrower defaulted on the loan. As of December
31, 1992, the Partnership accounted for the loan as if the property was
foreclosed upon and reclassified the loan to real estate. In July 1993,
the ownership interests in the project were transferred to the
Partnership in lieu of foreclosure.
Because of continuing weakness in the Deptford, New Jersey retail market,
and the likelihood that such weakness would persist for several years,
in the third quarter of 1995, the Partnership concluded that the property
was impaired. Accordingly, the Partnership recorded a loss on impairment
of the property of approximately $6,931,000 at September 30, 1995.
The property is subject to a first mortgage loan. See note 7.
An affiliate of Realty manages the property.
Hampton Village Centre, Rochester Hills, Michigan
The Partnership's borrower had obtained a first mortgage loan of
$29,000,000 secured by Phase I of the project. See note 7.
The Partnership had made three mortgage loans totaling approximately
$13,300,000 to Hampton Village Centre which provided for a 50%
participation in the property's excess cash flow and appreciation over
$40,000,000. Two of these loans were in default and were placed on non-
accrual status in 1992; debt service continued to be paid through August
1993 on the remaining loan in the amount of $3,000,000 and bearing
interest at 10.5%.
During the first quarter of 1993, the Partnership accelerated all of its
loans and instituted foreclosure proceedings. In September 1993, the
Partnership indirectly acquired one-half of the partnership interests of
Hampton Crossing Associates, the owner of Hampton Village Centre, thereby
obtaining effective control of the center, and began accounting for the
loans as if the property were owned, by reclassifying the loans to real
estate and recording the $29,000,000 first mortgage loan. During the
first quarter of 1994, the Partnership indirectly acquired all of the
partnership interests of Hampton Crossing Associates not previously owned
by it.
Contractors who worked on the property had brought claims of about
$2,000,000 against the borrower and had filed liens against the property.
During 1994, the Partnership settled all but one of these claims for
approximately $300,000. Settlement of the remaining claim in 1995 did
not have a material impact on the financial statements.
An affiliate of Realty managed the property.
In December 1995, the Partnership sold this property. See Note 5.
Shopping Centers Investments, Michigan, Ohio, and Tennessee
In 1990, the Partnership loaned $6,000,000 to the partners of the
developer of eleven community shopping centers and the Hampton Crossing
and Deptford Crossing properties. The loan was secured by interests in
eleven partnerships which owned the eleven community shopping centers,
all of which were encumbered by mortgages. During the second quarter of
1991, as a result of the sale of three of the shopping centers, the
Partnership received a partial payment on the loan, but the borrower
failed to pay the balance when due in August 1991. The Partnership fully
reserved the remaining balance of the loan of $4,664,471 as of December
31, 1992.
During the first six months of 1994, the mortgagees foreclosed on four
of the properties.
In April 1994, the Partnership obtained sole control of the partnerships
which own the Hickory Ridge Crossing, Midway Crossing and Genessee
Crossing community shopping centers and joint control of the partnership
which owns the Farmington Crossroads Center. At that date, the
Partnership consolidated these partnerships and recorded their assets and
liabilities at estimated fair values. The Partnership also retained two
parcels of land not subject to mortgages.
The Hickory Ridge Crossing Center was encumbered by a $4,150,000 mortgage
note which was not repaid when due in June 1994. In September 1994, the
mortgagee foreclosed on the property. The loss of the property did not
have a material impact on the financial statements.
In December 1995, the Partnership sold the Midway Crossing and Farmington
Crossroads shopping centers. See Note 5.
<PAGE>
<TABLE>
<CAPTION>
The locations, years of acquisition through foreclosure or in-substance
foreclosure and net carrying values of the Partnership's properties are
as follows:
Year of December 31,
Property Acquisition 1995 1994
<S> <C> <C> <C>
2600 Michelson Drive
Irvine, CA 1990 $ 38,512,516 $ 39,700,273
Greenway Pointe
Columbia, MD 1990 5,666,304 6,051,875
401 East Ontario Street
Chicago, IL 1992 34,746,550 35,353,149
Deptford Crossing
Deptford, NJ 1992 10,903,021 18,211,229
Genessee Crossing
Flint, MI 1994 8,253,600 8,425,440
Pine Ridge (land)
Flint, MI 1994 134,747 134,747
Military Crossing (land)
Norfolk, VA 1994 300,000 300,000
Hampton Village Centre1
Rochester Hills, MI 1993 - 41,839,241
Midway Crossing1
Elyria, OH 1994 - 8,674,725
Farmington Crossroads1
Farmington Hills, MI 1994 - 3,863,980
$ 98,516,738 $162,554,659
1This property was sold in December 1995.
</TABLE>
5. Sales of Real Estate
On October 19, 1995, the Partnership and certain of its subsidiaries
entered into an agreement with New Plan Realty, to sell the land and
buildings which comprise the Hampton Village Centre, Midway Crossing,
Farmington Crossroads and Genessee Crossing shopping centers. The
agreement was subsequently amended to, among other things, eliminate the
sale of the Genessee Crossing shopping center.
The closing of the sale of the Hampton Village Centre, Midway Crossing
and Farmington Crossroads shopping centers, for a negotiated sales price
of approximately $58,250,000, took place on December 11, 1995.
At closing, a portion of the sales proceeds were used to prepay the
existing mortgages encumbering Hampton Village Centre and Farmington
Crossroads. Secured borrowings under two bank lines of credit and the
loan from an affiliate were also prepaid in full. After reserves
relating to the 401 East Ontario Street property (see Note 4), the
Partnership distributed approximately $6.4 million to the Limited
Partners in January 1996. See Notes 7, 8 and 10.
The aggregate net income and cash flow from operations from the shopping
centers sold for the year ended December 31, 1995 was approximately
$1,870,000 and $2,550,000, respectively. Interest expense relating to
the loans secured by the shopping centers was approximately $3,600,000.
6. Investment in Participating Mortgage
One Congress Street, Boston, Massachusetts
In 1989, the Partnership and Yield Plus II entered into an agreement to
provide $59.2 million of participating mortgage construction and
permanent financing for the One Congress Street building. As modified
in 1991 and 1993, the investment is a 10-year permanent second mortgage
loan. Base interest is payable at 8% and the first $250,000 of net
revenues in any calendar year from the property is payable as Additional
Interest. Also, the Partnership and Yield Plus II own a 58% interest in
adjusted net revenue and capital proceeds generated by the property.
The Partnership and Yield Plus II have fully funded their commitments of
$34.35 and $24.85 million, respectively.
The General Services Administration ("GSA"), leased all of the office
space at the property, and had a one-time option to cancel all or a
portion of its lease at any time prior to its lease expiration in August
1997. In March 1996, GSA notified the owner/borrower of the One Congress
Street property that it will vacate approximately 67,500 Square feet
(approximately 28%) of the office space at the property in June 1996.
The borrower continues discussions with the GSA regarding renewal of its
remaining space at the property as well as the pending claim against the
GSA relating to the original construction of its space. If the borrower
can not re-lease the space which GSA will vacate, property cash flow will
be reduced, and the borrower may not be able to meet its minimum debt
service obligation.
In 1993, the Partnership concluded that the value of the One Congress
Street property and the Partnership's related loan were impaired.
Accordingly, as of December 31, 1993, the Partnership established an
allowance of $12,858,595 against the loan. The $1.7 million loss on
impairment in 1994 represents approximately $1.3 million funded and
reserved in 1994 and approximately $0.4 million reserved in 1994 and
funded in early 1995.
One of the general partners of the borrower filed a voluntary petition
under Chapter 11 of the Bankruptcy Code in 1991. This matter constitutes
an event of default under the first and second mortgage loans. However,
neither the first mortgage lender (Aetna Life and Casualty) nor the
Partnership has declared a default. The ultimate impact of the
bankruptcy on the loan is uncertain.
The estimated fair value of the Partnership's loan at December 31, 1995
is approximately $20.3 million. The fair value estimate is based on the
net present value of the estimated future cash flows from the loan. The
discount rate used is based on current lending rates and market
conditions. The Partnership intends to hold the participating mortgage
loan to maturity.
7. Mortgage Notes Payable
The Partnership's properties are subject to first mortgage notes as follows:
<TABLE>
<CAPTION>
December 31,
1995 1994
<S> <C> <C>
Mortgage note due March 14, 1997; $11,413,736 $16,051,554
secured by the Deptford Crossing shopping
center: Interest at the Partnership's
election of LIBOR plus .375%, the bank's
quoted variable rate plus 1.375% or
the bank's fixed rate; interest and $15,000
of principal payable monthly through maturity.
Mortgage notes due May 15, 1997; secured by 8,590,000 8,590,000
the Genessee Crossing Shopping Center: interest-
only payable monthly at 9.375%.
Mortgage note due May 16, 2000; secured by - 29,000,000
Phase I of the Hampton Village Centre shopping
center: interest at 9.375%; interest-only payable
monthly through May 16, 1997, at which time
monthly payments adjust to equal a 25-year
amortization of principal and interest.
Note repaid when property was sold
(See Note 5).
Mortgage note due September 1, 1999; secured - 4,073,323
by Farmington Crossroads Shopping Center:
interest at 7.875%; principal and interest of
$32,338 payable monthly. Note repaid when property
was sold (See Note 5.)
$20,003,736 $57,714,877
</TABLE>
The fair value of the mortgage notes payable are approximately equal to
their carrying values. The fair value is estimated by discounting future
principal and interest payments using current lending rates and market
conditions for instruments with similar maturities and credit quality.
The mortgage note securing the Deptford Crossing property, originally
maturing in March 1996 was modified in November 1995. As part of the
modification, the maturity of the note was extended until March 1997,
with an option to extend to September 1997 if certain conditions are met,
and the semiannual principal payments of $53,910 were revised to monthly
principal payments of $15,000. The Partnership had provided a $5 million
letter of credit, secured by Partnership cash reserves to the lender to
secure repayment. As part of the restructuring, $4.5 million of the cash
reserves were used to repay principal and $500,000 was used to establish
a real estate tax escrow account. At December 31, 1995, the interest
rate was 7% on this loan.
Future principal payments as of December 31, 1995 on the mortgage notes
are as follows:
<TABLE>
<CAPTION>
Year Amount
<C> <C>
1996 $ 180,000
1997 19,823,736
Total $ 20,003,736
</TABLE>
8. Loans Payable
In August 1994, the Partnership increased its existing $3 million bank
line of credit to $5 million and borrowed the available amount of
approximately $4.1 million. Contemporaneously, the Partnership
established an additional $6 million line of credit with the bank and
borrowed approximately $4.5 million.
These borrowings were used to repay mortgage loans secured by the Midway
Crossing Shopping Center aggregating approximately $8.2 million (after
forgiveness of $626,375 of the loan by the mortgagee), and delinquent
real estate taxes and closing costs totaling approximately $312,000. The
remaining borrowings were used to increase Partnership cash reserves.
Borrowings under both of the bank lines of credit, which bore interest
at the prime rate (8.5% at December 31, 1995 and 1994) plus one quarter
percent and were secured by certain of the Partnership's properties were
repaid from the proceeds from the sale of the shopping centers described
in Note 5.
9. Leases
Minimum future rentals under noncancellable operating leases as of
December 31, 1995 are as follows:
<TABLE>
<CAPTION>
Year ending December 31,
<C> <C>
1996 $ 9,434,858
1997 8,310,074
1998 6,973,394
1999 4,488,463
2000 3,295,238
Thereafter 5,657,237
Total $38,159,264
</TABLE>
The Partnership has determined that all leases relating to its properties
are operating leases. These leases range in term from one to twenty-two
years, and generally provide for fixed minimum rent with rental
escalation and/or expense reimbursement clauses.
10. Related Party Transactions
An affiliate of Realty provided property management services for four
properties in 1995, 1994 and 1993. The Partnership paid the affiliate
property management fees (included in property operating expenses) of
$327,228, $316,768 and $312,070 for the years ended December 31, 1995,
1994 and 1993, respectively.
Realty performs administrative functions, and processes certain investor
and tax information on behalf of the Partnership. For the years ended
December 31, 1995, 1994 and 1993, the affiliate was reimbursed $445,383,
422,199 and $437,969, respectively (included in general and
administrative expenses), for these services. As of December 31, 1995,
the affiliate was owed $55,996, which is included in accounts payable and
other liabilities.
In 1991, the Partnership borrowed funds from an affiliate of Realty to
fund investments in participating mortgage loans and capital
expenditures. Interest expense, which was calculated using the prime
rate, was $154,491 in 1995, $123,508 in 1994 and $103,437 in 1993. The
loan was repaid in December 1995 out of the proceeds of the sale of the
shopping centers see Note 5.
11. Litigation
Various public partnerships sponsored by Realty (including the
Partnership and its Managing General Partner) have been named as
defendants in four class actions lawsuits pending in state and federal
courts. The complaints allege a variety of claims, including breach of
fiduciary duty, fraud, misrepresentation and related claims, and seek
compensatory and other damages and equitable relief. The defendants have
not yet responded to the complaints and intend to vigorously defend the
actions. It is impossible to predict the effect, if any, the outcome of
these actions might have on the Partnership's financial statements.
12. Subsequent Event
In January 1996 the Partnership paid a cash distribution of $.15 per Unit
to Limited Partners. The distribution was $1,484,994 with $1,336,495 of
cash distributed to Limited Partners and $148,499 of cash distributed to
the General Partners.
The Partnership also paid a distribution in January 1996 of the net
proceeds from the sale of the shopping centers. All of the net proceeds
of $6,412,164 ($.72 per Unit) were distributed to the Limited Partners.
The General Partner deferred receipt of any proceeds as permitted by the
partnership agreement.
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
PART III.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The Partnership is a limited partnership and has no directors or
officers.
The directors and executive officers of the Managing General Partner
are as follows:
Position with the
Name Managing General Partner
William B. Smith Chairman of the Board of Directors
E. Davisson Hardman, Jr. President and Director
Lawrence Volpe Controller, Assistant Secretary and Director
Ronald T. Carman Secretary and Director
All of the directors have been elected to serve until the next
annual meeting of the Shareholders of the Managing General Partner or
until their successors are elected and qualify. Each of the officers has
been elected to serve until his successor is elected and qualifies.
William B. Smith, age 52, is a Managing Director of Dean Witter
Realty Inc. and has been with Dean Witter Realty Inc. since 1982. He is
an Executive Vice President of Dean Witter Reynolds Inc.
E. Davisson Hardman, Jr., age 46 is a Managing Director of Dean
Witter Realty Inc. and has been with Dean Witter Realty Inc. since 1982.
Lawrence Volpe, age 48, is a Director and the Controller of Dean
Witter Realty Inc. He is a Senior Vice President and Controller of Dean
Witter Reynolds Inc., which he joined in 1983.
Ronald T. Carman, age 44, is a Director and the Secretary of Dean
Witter Realty, Inc. He is a Senior Vice President and Associate General
Counsel of Dean Witter, Discover & Co. and Dean Witter Reynolds Inc.,
which he joined in 1984.
There is no family relationship among any of the foregoing persons.
ITEM 11. EXECUTIVE COMPENSATION
The General Partners are entitled to receive cash distributions,
when and as cash distributions are made to the Limited Partners, and a
share of taxable income or tax loss. Descriptions of such distributions
and allocations are contained in Item 5 above. The General Partners
received cash distributions totalling $593,996, 593,996 and $593,997
during the years ended December 31, 1995, 1994 and 1993, respectively.
The General Partners and their affiliates were paid certain fees and
reimbursed for certain expenses. Information concerning such fees and
reimbursements is contained in Note 10 to the consolidated financial
statements in Item 8 above.
The directors and executive officers of the Partnership's Managing
General Partner received no renumeration from the Partnership.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
(a) No person is known to the Partnership to be the beneficial
owner of more than five percent of the Units.
(b) The executive officers and directors of the Managing General
Partner own the following Units as of December 31, 1995:
<TABLE>
<CAPTION>
Amount and
Nature of
Title of Class Name of Beneficial Owner Beneficial Ownership
<S> <S> <S>
Limited William B. Smith *
Partnership
Interests E. Davisson Hardman, Jr. *
All directors and executive *
officers of the Managing
General Partner, as a group
*Owns, by virtue of ownership of limited partnership interests in the
Associate General Partner, less than 1% of the Units of the Partnership.
</TABLE>
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
As a result of their being partners of a limited partnership which
is the limited partner of the Associate General Partner, certain current
and former officers and directors of the Managing General Partner also
own indirect general partnership interests in the Partnership. The
Partnership Agreement of the Partnership provides that cash distributions
and allocations of income and loss to the general partners shall be
distributed or allocated 50% to the Managing General Partner and 50% to
the Associate General Partner. The general partners' share of cash
distributions and income or loss is described in Item 5 above.
All of the outstanding shares of common stock of the Managing
General Partner are owned by Dean Witter Realty Inc., a Delaware
corporation which is a wholly-owned subsidiary of Dean Witter, Discover
& Co. The general partner of the Associate General Partner is Dean
Witter Realty Yield Plus Inc., which is a wholly-owned subsidiary of Dean
Witter Realty Inc. The limited partner of the Associate General Partner
is LSYP 87, L.P., a Delaware limited partnership. Certain current and
former officers and directors of the Managing General Partner are
partners of LSYP 87, L.P. Additional information with respect to the
directors and executive officers and compensation of the Managing General
Partner and affiliates is contained in Items 10 and 11 above.
The 401 East Ontario Street property was developed by a joint
venture between the Chicago Developer and an entity comprised of former
and current Realty executives, several of whom are former or current
executive officers of the Managing General Partner. In January 1994, the
Partnership obtained ownership of the property by deed-in-lieu of
foreclosure.
The Hampton Village Centre property was developed by Hampton
Crossing Associates, a joint venture between the Partnership and an
entity comprised of former and current Realty executives, several of whom
are former or current executive officers of the Managing General Partner.
In the first quarter of 1994, the Partnership indirectly obtained
ownership of all the partnership interests in Hampton Crossing
Associates.
The One Congress Street property was developed by a partnership
between a Maryland-based developer and an entity comprised of former
Realty executives, some of whom were formerly executive officers of the
Managing General Partner. This entity withdrew as a partner of the
borrower in September 1993, so the borrower partnership is now controlled
solely by the Maryland-based developer.
The General Partners and their affiliates were paid certain fees and
reimbursed for certain expenses. Information concerning such fees and
reimbursements is contained in Note 10 of the Notes to Consolidated
Financial Statements in Item 8 above. The Partnership believes that the
payment of fees and the reimbursement of expenses to the General Partners
and their affiliates are on terms as favorable as would be obtained from
unrelated third parties.
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) The following documents are filed as part of this Annual Report:
1. Financial Statements (see Index to Financial Statements filed as part of
Item 8 of this Annual Report).
2. Financial Statement Schedules (see Index to Financial Statements filed
as part of Item 8 of this Annual Report).
3. Exhibits
(2) Not applicable.
(3)(a) Amended and Restated Agreement of Limited Partnership dated as of
April 29, 1987 set forth in Exhibit A to the Prospectus included in
Registration Statement Number 33-11648 is incorporated herein by
reference.
(3)(b) Certificate of Limited Partnership dated as of April 29, 1987
incorporated by reference in Registration Statement Number 33-11648
is incorporated herein by reference.
(4)(a) Amended and Restated Agreement of Limited Partnership dated as of
April 29, 1987 set forth in Exhibit A to the Prospectus included in
Registration Statement Number 33-11648 is incorporated herein by
reference.
(4)(b) Certificate of Limited Partnership dated as of April 29, 1987
incorporated by reference in Registration Statement Number 33-11648
is incorporated herein by reference.
(9) Not applicable.
(10) Not applicable.
(11) Not applicable.
(12) Not applicable.
(13) Not applicable.
(16) Letter regarding change in certifying accountant Incorporated by
reference in Partnership's Current Report on Form 8-K dated
December 15, 1994.
(18) Not applicable.
(19) Not applicable.
(21) Subsidiaries:
Deptford Crossing Associates, a New Jersey limited partnership.
Hampton Crossing Associates, a Michigan limited partnership.
DW Lakeshore Associates, an Illinois limited partnership.
DW Columbia Gateway Associates, a Maryland limited partnership.
Midway Crossing Limited Partnership, a Michigan limited partnership.
Genessee Crossing Limited Partnership, a Michigan limited
partnership.
Farmington/9 Mile Associates, a Michigan limited partnership.
Michelson Company Limited Partnership, a California limited
partnership.
(22) Not applicable.
(23) Not applicable.
(24) Not applicable.
(27) Financial Data Schedule
(28) Not applicable.
(99) Not applicable.
(b) Reports on Form 8-K -
Report dated December 15, 1994 of the change in the Partnership's
Independent Auditor for the year ending December 31, 1995.
(c) See 3 above
(d) Financial Statements Schedule
1. Financial statements of GCGA Limited Partnership, an office
building/parking garage located in Boston, Massachusetts. To be
filed by 10-K/A when received by GCGA Limited Partnership.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE III
DEAN WITTER REALTY YIELD PLUS, L.P.
Real Estate and Accumulated Depreciation
December 31, 1995
Initial cost to Partnership (A)
Building and
Description Encumbrances Land Improvements Total
<S> <C> <C> <C> <C>
Residential
Building
Chicago, IL - 4,063,111 32,936,889 37,000,000
Office Building
Columbia, MD - 1,976,457 6,338,507 8,314,964
Office Buildings
Irvine, CA - 6,549,305 61,019,949 67,569,254
Shopping center
Deptford, NJ 11,413,736 6,250,094 12,041,180 18,291,274
Shopping center
Rochester
Hills, MI - 12,643,133 30,155,424 42,798,557
Shopping Center
Elyria, OH - 700,984 8,118,725 8,819,709
Shopping Center
Flint, MI 8,590,000 1,709,535 6,830,465 8,540,000
Shopping Center
Farmington,
Hills, MI - 426,855 3,495,382 3,922,237
Land
Pine Ridge
Flint, MI - 134,747 - 134,747
Land
Military Crossing
Norfolk, VA - 300,000 - 300,000
20,003,736 34,754,221 160,936,521 195,690,742
/TABLE
<PAGE>
<TABLE>
<CAPTION>
Gross Amount at which
Carried at End of Period (B)
Cost Losses on
Capitalized Impairment of
Subsequent to Sale of Land and
Description Acquisition Real Estate Real estate Land
<S> <C> <C> <C> <C>
Residential
Building
Chicago, IL 236,084 - - 4,063,111
Office Building
Columbia, MD 2,506,385 - (2,719,485) 1,387,066
Office Buildings
Irvine, CA 3,436,223 - (24,202,321) 4,080,416
Shopping center
Deptford, NJ 509,799 - (6,931,459) 1,770,000
Shopping center
Rochester
Hills, MI 16,908 (42,815,465) - -
Shopping Center
Elyria, OH - (8,819,709) - -
Shopping Center
Flint, MI - - - 1,709,535
Shopping Center
Farmington,
Hills, MI - (3,922,237) -
Land
Pine Ridge
Flint, MI - - - 134,747
Land
Military Crossing
Norfolk, VA - - - 300,000
6,705,399 (55,557,411) (33,853,265) 13,444,875
/TABLE
<PAGE>
<TABLE>
<CAPTION>
Accumulated
Buildings and Depreciation Date of
Description Improvements Total (c) Construction
<S> <C> <C> <C> <C>
Residential
Building
Chicago, IL 33,172,973 37,236,084 2,489,534 1990
Office Building
Columbia, MD 6,714,798 8,101,864 2,435,560 1988
Office Buildings
Irvine, CA 42,722,740 46,803,156 8,290,640 1986-1989
Shopping center
Deptford, NJ 10,099,614 11,869,614 966,593 1991
Shopping Center
Rochester
Hills, MI - - - 1988 - 1993
Shopping Center
Elyria, OH - - - 1987
Shopping Center
Flint, MI 6,830,465 8,540,000 286,400 1988
Shopping Center
Farmington
Hills, MI - - - 1985
Land
Pine Ridge - 134,747 - N/A
Flint, MI
Land
Military Crossing
Norfolk, VA - 300,000 - N/A
99,540,590 112,985,465 14,468,727
/TABLE
<PAGE>
<TABLE>
<CAPTION>
Life on which
Depreciation
in latest income
Date Statements is
Description Acquired Computed
<S> <S> <C>
Residential
Building
Chicago, IL Dec. 1992 40 years
Office Building
Columbia, MD May 1990 15-40 years
Office Buildings
Irvine, CA Nov 1990 15-40 years
Shopping Center
Deptford, NJ Dec 1992 40 years
Shopping Center
Rochester
Hills, MI Sept 1993 40 years
Shopping Center
Elyria, OH April 1994 40 years
Shopping Center
Flint, MI April 1994 40 years
Shopping Center
Farmington
Hills, MI April 1994 40 years
Pine Ridge
Flint, MI June 1994 -
Military Crossing
Norfolk, VA April 1994 -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Notes:
(A) The basis in the properties for financial reporting purposes is net
realizable value or fair market value at the date of foreclosure or in-
substance foreclosure. The loss in the amount of $26,921,806 on
foreclosure of real estate does not reduce the basis for federal income tax
purposes.
(B) Reconciliation of real estate owned:
1995 1994 1993
<S> <C> <C> <C>
Balance at beginning of period $174,652,851 $150,605,601 $ 90,626,596
Additions during period:
Acquisition through foreclosures - 25,731,946 58,989,831
Improvements 821,485 2,465,304 989,174
Deductions during year:
Foreclosure of real estate - (4,150,000) -
Sale of real estate (55,557,412) - -
Losses on impairment of real
estate (6,931,459) - -
Balance at end of period $112,985,465 $174,652,851 $150,605,601
(C) Reconciliation of accumulated depreciation:
Balance at beginning of year $ 12,098,192 7,953,483 5,126,596
Depreciation expense 4,342,062 4,144,709 2,826,887
Sale or real estate (1,971,527) - -
Balance end of period $ 14,468,727 $ 12,098,192 $ 7,953,483
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
DEAN WITTER REALTY YIELD PLUS, L.P.
By: Dean Witter Realty Yield Plus Inc.
Managing General Partner
By: /s/E. Davisson Hardman, Jr. Date: April 1, 1996
E. Davisson Hardman, Jr.
President
By: /s/Lawrence Volpe Date: April 1, 1996
Lawrence Volpe
Controller
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
DEAN WITTER REALTY YIELD PLUS INC.
Managing General Partner
/s/William B. Smith Date: April 1, 1996
William B. Smith
Chairman of the Board of Directors
/s/E. Davisson Hardman, Jr. Date: April 1, 1996
E. Davisson Hardman, Jr.
Director
/s/Lawrence Volpe Date: April 1, 1996
Lawrence Volpe
Director
/s/Ronald T. Carman Date: April 1, 1996
Ronald T. Carman
Director<PAGE>
<TABLE>
<CAPTION>
Exhibit Index for Dean Witter Realty Yield Plus, L.P.
Exhibit Description Sequential
No. Page No.
_________ ____________ ________
<C> <S>
(3)(a)* Amended and Restated Agreement of Limited Partnership dated as of
April 29, 1987 set forth in Exhibit A to the Prospectus included
in Registration Statement Number 33-11648 is incorporated herein
by reference.
(3)(b)* Certificate of Limited Partnership dated as of April 29, 1987
incorporated by reference in Registration Statement Number 33-
11648 is incorporated herein by reference.
(4)(a)* Amended and Restated Agreement of Limited Partnership dated as of
April 29, 1987 set forth in Exhibit A to the Prospectus included
in Registration Statement Number 33-11648 is incorporated herein
by reference.
(4)(b)* Certificate of Limited Partnership dated as of April 29, 1987
incorporated by reference in Registration Statement Number 33-
11648 is incorporated herein by reference.
(10)(a) Partnership Agreement for DW Michelson Associates dated March 14,
1988.
(10)(b)* First Mortgage Promissory Note, dated April 26, 1989, between the
Government Center Garage Realty Trust (Maker) and Dean Witter
Realty Yield Plus, L.P. (Holder) was filed as Exhibit to
Amendment No. 2 to Current Report on Form 8-K on April 26, 1989
and is incorporated herein by reference.
(10)(c)* Construction Loan Agreement, dated April 26, 1989, between
Government Center Garage Realty Trust, as Borrower and Dean
Witter Realty Yield Plus, L.P. and Dean Witter Realty Yield Plus
II, L.P., as Lender was filed as Exhibit to Amendment No. 2 to
Current Report on Form 8-K on April 26, 1989 and is incorporated
herein by reference.
(10)(d)* Intercreditor Agreement among Dean Witter Realty Yield
Plus, L.P., Dean Witter Realty Yield Plus II, L.P., and Realty
Management Services Inc. dated as of April 26, 1989 was filed as
Exhibit to Amendment No. 2 to Current Report on Form 8-K on April
26, 1989 and is incorporated herein by reference.
(10)(e) First Amendment to Construction Loan Agreement dated October 12,
1989 between Government Center Garage Realty Trust, as Borrower
and Dean Witter Realty Yield Plus, L.P. and Dean Witter Realty
Yield Plus II, L.P., as Lender.
(10)(f) Amended and Restated Construction Loan/Office Loan Promissory
Note dated October 12, 1989 between Government Center Garage
Realty Trust (Maker) and Dean Witter Realty Yield Plus, L.P.
(Holder).
(10)(g) Second Amendment to Construction Loan Agreement dated June 22,
1990 between Government Center Garage Realty Trust, as Borrower
and Dean Witter Realty Yield Plus, L.P. and Dean Witter Realty
Yield Plus II, L.P., as Lender.
(10)(h) First Amendment to Amended and Restated Construction Loan/Office
Loan Promissory Note dated June 22, 1990 between Government
Center Garage Realty Trust (Maker) and Dean Witter Realty Yield
Plus, L.P. (Holder).
(10)(i) Supplemental Loan Agreement dated September 20, 1993 between
Government Center Garage Realty Trust, as Borrower and Dean
Witter Realty Yield Plus, L.P. and Dean Witter Realty Yield Plus
II, L.P., as Lender.
(10)(j) Second Amendment to Notes dated September 20, 1993 between
Government Center Garage Realty Trust (Maker) and Dean Witter
Realty Yield Plus, L.P. and Dean Witter Realty Yield Plus II,
L.P., (Holders).
*incorporated by reference
</TABLE>
Exhibit (10)(a)
PARTNERSHIP AGREEMENT dated as of March 14,
1988, between DEAN WITTER REALTY YIELD PLUS, L.P.,
a Delaware limited partnership, and DEAN WITTER
REALTY YIELD PLUS II, L.P., a Delaware limited
partnership (each individually a "Partner" and
collectively the "Partners").
In consideration of the mutual covenants contained
herein, the Partners hereby form a general partnership under the
laws of the State of California (the "Partnership") as follows:
ARTICLE I
General Provisions
SECTION 1.01. Name of the Partnership. The name of
the Partnership shall be DW Michelson Associates or such other
name as the Partners may from time to time determine. The
Partners shall execute and cause to be filed on behalf of the
Partnership such partnership or assumed or fictitious name
certificates as may from time to time be required by law to be
published or filed in connection with the formation and operation
of the Partnership.
SECTION 1.02. Business of the Partnership. The
business of the Partnership shall be (i) to acquire interests in
real and personal property, tangible and intangible, located at
2600 Michelson Drive and 18851 Teller Avenue, Irvine, California
(the "Irvine Property"), and (ii) to engage in any and all
activities relating to the foregoing. The Partnership shall not
engage in any other business without the prior unanimous approval
of the Partners. The interests in the Irvine Property from time
to time acquired by the Partnership together with any other
property, real or personal, tangible or intangible, hereafter
acquired by the Partnership is hereinafter collectively called
the "Property."
SECTION 1.03. Place of Business of the Partnership.
The principal place of business of the Partnership shall be
located at 130 Liberty Street, New York, New York, or at such
other place or places as both Partners may from time to time
designate.
SECTION 1.04. Partners' Names and Addresses. The
names and addresses of the Partners are as set forth in Schedule
A.
SECTION 1.05. Term of the Partnership. The
Partnership shall commence as of the date of this Agreement and
shall continue until terminated pursuant to the provisions of
Article VII.
SECTION 1.06. Partnership Act. Except as otherwise
expressly provided in this Agreement, the rights and obligations
of the Partners and the administration and dissolution of the
Partnership shall be governed by the Partnership Law of the State
of California as it may be from time to time amended.
SECTION 1.07. Title to Partnership Property. The
interest of each Partner in the Partnership is personal property.
All property owned by the Partnership, whether real or personal,
tangible or intangible, shall be deemed to be owned by the
Partnership as an entity, and neither Partner, individually,
shall have any ownership of such property. The Partnership may
hold any of its assets in its own name or in the name of a
nominee, which may be one or more individuals, corporations,
partnerships, trusts or other entities. While this Agreement
remains in effect, neither Partner, nor any successor-in-interest
to either Partner, shall have the right to have the property of
the Partnership partitioned or to file a complaint or institute
any proceeding at law or in equity to have the property of the
Partnership partitioned, and each Partner, on behalf of itself,
its successors, representatives, heirs and assigns, waives any
such right. It is the intention of the Partners that, during the
term of this Agreement, the rights of the Partners and their
successors-in-interest, as among themselves, shall be governed by
the terms of this Agreement, and that the right of either Partner
or its successor-in-interest to assign, transfer, sell or
otherwise dispose of its interest in the property of the
Partnership shall be subject to the limitations and restrictions
of this Agreement.
SECTION 1.08. Other Activities. Each Partner agrees
that the other Partner or any person or entity affiliated with
the other Partner may engage in or possess an interest in other
business ventures of any nature and description, independently or
with others, including, but not limited to, ventures that
undertake activities similar to or in competition with the
Partnership, and neither the Partnership nor either Partner shall
have any rights by virtue of this Agreement in and to such
independent ventures or to the income or profits derived
therefrom.
ARTICLE II
Capital; Profits and Losses; Distributions
SECTION 2.01. Capital Contributions. (a) In order to
enable the Partnership to acquire, own, manage and operate the
Property, the Partners shall, from time to time, make such
capital contributions in such amounts and proportions as they may
both agree. The amounts of such contributions and the respective
shares of the Partners (the "Participation Percentages") in the
net profits, net losses and distributions of the Partnership
shall be set forth in a schedule substantially in the form of
Schedule A hereto that shall be approved by both Partners.
Schedule A attached hereto as of the date hereof is hereby
approved by the Partners. All contributions to the Partnership
shall be made in cash, and the respective Participation
Percentages of the Partners at any date shall bear the same
relationship to each other as do the Partners' respective
aggregate contributions made on or prior to such date.
(b) No interest shall accrue on any contributions to
the capital of the Partnership, and neither Partner shall have
the right to withdraw or to be repaid any capital contributed by
it except as otherwise specifically provided in this Agreement.
Each Partner shall look solely to the assets of the Partnership
for the return of their capital contributions and shall in no
event have recourse against the other Partner with respect
thereto.
SECTION 2.02. Capital Accounts. There shall be
established and maintained on the books of the Partnership a
capital account for each Partner. Capital accounts shall be
maintained in accordance with the rules of Treasury Regulation
Section 1.704(b)-1(b)(92)(iv). Accordingly, without limiting the
generality of the foregoing sentence, there shall be credited to
each Partner's capital account the amount of any capital
contributions made by it and its share of the net profits of the
Partnership. There shall be charged against each Partner's
capital account the amount of all distributions made by the
Partnership to such Partner and its share of the net losses of
the Partnership.
SECTION 2.03. Profits and Losses. (a) Subject to
Section 2.03(b) and (c), the net profits and losses of the
Partnership, and each item of income, gain, loss, deduction or
credit entering into the computation thereof, shall be allocated
between the Partners in accordance with the applicable
Participation Percentages.
(b) Capital Gains and Losses. Subject to Section
2.03(c),
(i) The net gain of the Partnership arising from a
sale of all or substantially all the assets of the
Partnership or associated with the liquidation of the
Partnership (a "Final Capital Event") shall be allocated as
follows:
(A) first, an amount of gain up to the aggregate
negative capital account balances of all Partners who
have such negative capital account balances shall be
allocated among such Partners in proportion to their
negative capital account balances;
(B) second, gain shall be allocated to the
Partners so as to cause the positive capital account
balances of the Partners, as rapidly as possible, to
stand in the same proportions to each other as the
Partners' Participation Percentages bear to each other;
(C) third, any additional gain shall be allocated
to the Partners in proportion to the Partners'
Participation Percentages.
(ii) The net losses of the Partnership arising from a
Final Capital Event of the Partnership shall be allocated as
follows:
(A) first, if more than one Partner has a
positive capital account balance, loss shall be
allocated to the Partners with positive capital account
balances until the positive account balances of the
Partners stand in the same proportions to each other as
the Partners' Participation Percentages bear to each
other;
(B) second, an amount of loss up to the aggregate
positive capital amount balances of all Partners who
have such positive capital account balances shall be
allocated among such Partners in proportion to their
positive capital account balances;
(C) third, loss shall be allocated to the
Partners so as to cause the negative capital account
balances of the Partners, as rapidly as possible, to
stand in the same proportions as the Partners'
Participation Percentages bear to each other;
(D) fourth, any additional loss shall be
allocated to the Partners in proportion to the
Partners' Participation Percentages.
(c) Section 704(b) Requirements. Notwithstanding
Section 2.03(a) and (b), it is the intention of the Partners to
conform the allocation of Profits and Losses in this Agreement to
the requirements of Treas. Reg. sec. 1.704-1(b). Accordingly,
(i) if the allocation of any Net Loss of the
Partnership for any fiscal year pursuant to Section 2.02(a)
or (b) would cause a Partner to have a negative capital
account balance which exceeds such Partner's share of the
Partnership's minimum gain (within the meaning of Treas.
Reg. sec. 1.704-1(b)(iv)(f)) at the end of such fiscal year,
the portion of such Net Loss that would have such result
shall instead be specially allocated to the other Partners
to the extent of such other Partners' positive capital
account balances;
(ii) items of Partnership income and gain shall be
specially allocated to any Partner with a negative capital
account balance to the extent required by the "qualified
income offset" requirement of Treas. Reg. sec.
1.704-1(b)(2)(ii)(d);
(iii) if the Partnership should incur any debt,
Partners shall be allocated items of income and gain as
required to satisfy the "minimum gain chargeback"
requirement of Treas. Reg. sec. 1.704-1(b)(4)(iv)(e); and
(iv) all items of loss or deduction attributable to
nonrecourse debt of the Partnership owed to a Partner shall be
allocated to the lending Partner to the extent required by Treas.
Reg. sec. 1.704-1(b)(4)(iv)(g) and appropriate corresponding
allocations shall be made of income or gain attributable to the
repayment of such debt.
(d) Net Income and Net Loss Defined. "Net Income" and
"Net Loss" for any fiscal year shall be the net income and net
loss of the Partnership for such fiscal year for Federal income
tax purposes, increased by the amount of any tax-exempt income of
the Partnership during such Fiscal Year and decreased by
expenditures of the Partnership described in Section 705(a)(2)(B)
of the Internal Revenue Code of 1986, as amended; provided,
however, that, if any Partner contributes property the basis of
which (for Federal income tax purposes) differs from its fair
market value on the date of contribution ("704(c) Property"),
depreciation, amortization, and gain and loss with respect to
such Section 704(c) Property shall be computed using such fair
market value as its initial basis to the Partnership in
accordance with the requirements of Section 704(b) of the Code
and the Regulations thereunder.
(e) Allocation of Net Income and Net Loss for Federal
Income Tax Purposes. The net income and net loss of the
Partnership for Federal income tax purposes shall be allocated
among the Partners in the same proportion as the Net Income and
Net Loss of the Partnership are allocated pursuant to this
Section 2.03; provided that Federal income tax items relating to
Section 704(c) Property shall be allocated among the Partners in
accordance with Section 704(c) principles as required by Sections
704(b) and 704(c) of the Code.
SECTION 2.04. Distributions. Distributions of cash in
excess of the reasonable business needs of the Partnership, and
distributions of interests in real estate, securities and other
noncash assets held by the Partnership, shall be made at such
times and in such aggregate amounts as the Partners may from time
to time determine. Distributions of cash or other assets shall
be allocated between the Partners in accordance with their
Participation Percentages. The Partners contemplate that cash in
excess of the reasonable business needs of the Partnership shall
be distributed as soon as practicable. Interests in real estate,
securities and other noncash assets shall be distributed on the
basis of their fair market value at the time of distribution.
ARTICLE III
Management of the Partnership
SECTION 3.01. Management. (a) The business and
affairs of the Partnership shall be managed jointly by both
Partners and all decisions to be made by the Partnership shall
require the approval of both Partners. Neither Partner shall
take any action on behalf, or in the name, of the Partnership
unless the other Partner has given its consent to, or approval
of, such action.
(b) With respect to all of their obligations, powers
and responsibilities under this Agreement, the Partners are
authorized to execute and deliver jointly, for and on behalf of
the Partnership, such notes and other evidences of indebtedness,
contracts, agreements, assignments, deeds, leases, loan
agreements, mortgages and other security instruments and
agreements as they both deem proper, all on such terms and
conditions as they both deem proper.
(c) Any person dealing with the Partnership or the
Partners may rely upon a certificate signed by either Partner
concerning
(i) the identity of either Partner;
(ii) the existence or nonexistence of any fact
or facts that constitute a condition precedent to acts by a
Partner or that concern the affairs of the Partnership;
(iii) the persons who are authorized to execute
and deliver any instrument or document of or on behalf of
the Partnership; or
(iv) any act or failure to act by the
Partnership or as to any other matter whatsoever involving
the Partnership or either Partner.
SECTION 3.02. Services of the Partners. Each Partner
shall devote such time and effort to the Partnership's business
as is reasonably necessary to carry out the purposes of the
Partnership and to promote the mutual interests of the Partners;
provided, however, that the Partners shall not be required to
devote their full time to Partnership business and may at any
time and from time to time engage in and possess an interest in
other business ventures as provided in Section 1.08.
SECTION 3.03. Liability and Indemnification. (a)
Neither Partner shall be liable, responsible or accountable in
damages or otherwise to the Partnership or the other Partner for
any act or omission performed or omitted by it in good faith on
behalf of the Partnership and in a manner reasonably believed by
it to be within the scope of the authority granted to it by this
Agreement and in the best interests of the Partnership unless it
shall have been guilty of gross negligence or wilful misconduct
with respect to such act or omission.
(b) Each Partner shall be indemnified by the
Partnership for any act performed by it within the scope of the
authority conferred upon it by this Agreement; provided, however,
that such indemnity shall be payable only if such Partner (i)
acted in good faith and in a manner it reasonably believed to be
in, or not opposed to, the best interests of the Partnership and
the Partners and (ii) had no reasonable grounds to believe that
its conduct constituted gross negligence or was unlawful. Any
act or omission performed or omitted by the Partners on advice of
legal counsel or an independent consultant shall be conclusively
deemed to have been performed or omitted in good faith and not an
act of gross negligence. Any indemnity under this Section 3.03
shall be paid from, and only to the extent of, Partnership assets
and neither Partner shall have any personal liability on account
thereof.
ARTICLE IV
Books, Records and Bank Accounts
SECTION 4.01. Books and Records. The Partners shall
keep true and correct books of account with respect to the
operations of the Partnership. Such books shall be maintained at
the principal place of business of the Partnership, or at such
other place as the Partners shall determine, and both Partners
and their duly authorized representatives shall at all reasonable
times and on reasonable notice to the Partnership have access to
such books.
SECTION 4.02. Accounting Basis and Fiscal Year. Such
books shall be kept on the accrual method of accounting, or on
such other method of accounting as the Partners may determine,
and shall be closed and balanced at the end of each year of the
Partnership. The fiscal year of the Partnership shall be the
calendar year or such other period as determined by both
Partners.
ARTICLE V
Assignment of Interests and
Admission of New Partners
SECTION 5.01. Assignment of a Partner's Interest.
Except as provided in Article VI, neither Partner may sell,
transfer, assign, pledge or otherwise dispose of all or any part
of its interest in the Partnership unless both Partners shall
have consented to such disposition in writing.
SECTION 5.02. Admission of Assignee into Partnership.
Subject to the provisions of Section 5.01 and to the terms of any
instrument, letter or memorandum of assignment executed and
delivered pursuant to Section 5.01, an assignee of all or part of
the interest of a Partner shall be admitted as a Partner of the
Partnership, entitled to all the rights and subject to all the
obligations of a Partner hereunder, upon the execution and
delivery by the assignee of such documents and instruments as the
Partners may deem necessary or desirable to confirm the agreement
of the assignee to be bound by all the terms and provisions of
this Partnership Agreement.
SECTION 5.03. Admission of Additional Partners. The
Partners may from time to time, for such contributions to the
capital of the Partnership and on such other terms as they may
deem appropriate, admit one or more additional Partners into the
Partnership. Any such additional Partner shall be admitted as a
Partner of the Partnership, entitled to all the rights and
subject to all the obligations of a Partner hereunder upon the
execution and delivery by the additional Partner of such
documents and instruments as the Partners may deem necessary or
desirable to confirm the agreement of the additional Partner to
be bound by all the terms and provisions of this Agreement.
ARTICLE VI
Transfers and Withdrawal or
Disability of a Partner
SECTION 6.01. Withdrawal or Disability of a Partner.
(a) A Partner may withdraw from the Partnership by giving
written notice thereof to each other Partner not less than 30
days prior to the effective date of withdrawal stated in such
notice.
(b) A Partner shall be deemed to have withdrawn from
the Partnership in the event and on the date that such Partner
files a voluntary petition in bankruptcy, is adjudicated as
bankrupt or insolvent, files any petition or answer seeking any
reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under the Bankruptcy Code, as from
time to time amended, or any other applicable Federal, state or
other statute or law regarding bankruptcy, insolvency or other
relief for debtors, or seeks, consents or acquiesces in the
appointment of any trustee, receiver, conservator or liquidator
of itself or all or any substantial portion of its property.
SECTION 6.02. Effect of Withdrawal. The withdrawal of
a Partner shall not effect the dissolution of the Partnership,
which shall be continued by the remaining Partner. The interest
of a withdrawing Partner (or of its trustee, receiver or other
legal representative, as the case may be, referred to herein as
such Partner's "Distributee") in the Partnership shall be limited
as provided in Section 6.03 and shall be subject to the
provisions of Section 6.04.
SECTION 6.03. Withdrawing Partner's Distributions.
(a) Subject to Section 6.04, from and after the effective date
of the withdrawal of any Partner, the withdrawing Partner, or his
Distributee, shall have the status of an assignee of the interest
in the Partnership held by such Partner and shall only be
entitled to receive the share of net profits, net losses and
distributions of the Partnership in accordance with the
Participation Percentage of such Partner.
(b) Until distributed as herein provided, all assets
to which a withdrawing Partner or his Distributee may be entitled
hereunder shall remain at the risk of the Partnership's business
and shall be considered as assets and capital of the Partnership
in the same manner and to the same extent as contributions by
Partners to the capital of the Partnership, and any claims of
such withdrawing Partner or his Distributee to such assets shall
be subordinate in right of payment and subject to the prior
payment or provision for payment in full of claims of all present
or future creditors of the Partnership.
SECTION 6.04. Buy/Sell. (a) At any time after the
date hereof, either Partner shall have the right as an initiating
Partner (the "Initiating Partner") to cause the Partnership to
sell the Property by delivery to the other Partner (the
"Responding Partner") of a notification (the "Buy/Sell
Notification") making an offer to purchase the Property for a
cash price specified in such Buy/Sell Notification (the "Buy/Sell
Price"). The Buy/Sell Notification shall (i) advise the
Responding Partner that the Initiating Partner is willing to
purchase the Property; (ii) state the Buy/Sell Price proposed by
the Initiating Partner; (iii) set forth the other material terms
of the purchase and state who will pay for documentary stamp and
transfer taxes, if any, and other costs of closing (the "Other
Buy/Sell Terms"); and (iv) give the Responding Partner the
following options: (x) to cause the Partnership to sell the
Property to the Initiating Partner at the Buy/Sell Price and upon
the Other Buy/Sell Terms, (y) to cause the Partnership to use its
best efforts to sell the Property to a third party at no less
than the Buy/Sell Price and upon terms no less favorable to the
Partnership than the Buy/Sell Terms, or (z) to purchase the
Property at the Buy/Sell Price and upon the Other Buy/Sell Terms.
(b) Within 30 days after the giving of the Buy/Sell
Notification, the Responding Partner shall give notice to the
Initiating Partner to the effect that:
(i) the Responding Partner has elected to
purchase the Property;
(ii) the Responding Partner wishes the Property
sold to a third party pursuant to clause (y) of Section
6.04(a); or
(iii) the Responding Partner does not wish to
purchase the Property and that it elects to cause the
Partnership to sell the Property to the Initiating Partner.
If the Responding Partner does not give notice to the Initiating
Partner in answer to the Buy/Sell Notification within such 30
days, the Responding Partner shall be deemed to have given the
answer set forth in clause (iii) above.
(c) The closing of any purchase and sale of the
Property pursuant to Section 6.04(b)(i) or (iii) shall take place
at the Partnership's office (or such other office as may be
agreed upon by the Initiating Partner and the Responding Partner)
not later than 60 days after the Responding Partner gives the
written notice to the Initiating Partner or such written notice
is deemed to have been given. Any sale of the Property pursuant
to Section 6.04(b)(ii) shall be consummated as soon as reasonably
practicable. At any closing under Section 6.04(b), the
Partnership and the Partners shall execute and deliver such
instruments as shall be appropriate to transfer the Property to
the purchaser, the purchaser shall simultaneously pay to the
Partnership the Buy/Sell Price, the Partnership, the Partners and
the purchaser shall perform the Other Buy/Sell Terms to be
performed by them, and the Partnership shall thereupon distribute
the Buy/Sell Price as provided in Section 2.04 hereof. In
connection with any such purchase and sale, the purchaser shall
have the right upon closing as herein contemplated to admit as
Partner(s) one or more persons or entities and make amendments to
this Agreement in connection therewith.
(d) In the event a purchasing Partner under this
Section 6.04 fails to fulfill its obligation to purchase the
Property, then the selling Partner may, at any time for a period
of 120 days after such default, cause the Partnership to sell the
Property to any person (including such selling Partner) at a
price and upon other terms no less favorable than those set forth
in the Buy/Sell Notification.
SECTION 6.05. First Refusal Rights. (a) If either
Partner shall desire to sell all but not less than all its
interest in the Partnership to a third party, then the Partner
desiring to sell as aforesaid (the "Selling Partner") shall
obtain a bona fide written offer from such third party. The
Selling Partner shall thereupon give notice to the other Partner
(the "Nonselling Partner") of such offer, setting forth the
identity of such third party, the sale price (which shall be
payable only in cash or purchase money obligations, which may be
secured solely by the interest being sold) and the terms and
conditions upon which the third party is willing to purchase the
interest being offered for sale, and offer to sell such interest
to the Nonselling Partner on such terms and conditions. The
Nonselling Partner shall then have 20 days within which to give
notice to the Selling Partner that it wishes to acquire the
interest offered for sale on such terms and conditions. Such
notice from the Nonselling Partner shall state a closing date not
later than the closing date specified in the offer from the third
party or 60 days after the date of such notice, whichever is
later. If the Nonselling Partner shall not give notice within
the 20-day period following the initial notice from the Selling
Partner that it wishes to acquire the interest, the Selling
Partner may sell its interest to such third party during the
period on or prior to the closing date set forth in the notice,
or, if no closing date was set forth, within 90 days of such
notice, and only on terms and conditions no less favorable to the
Selling Partner than those set forth in the original offer;
provided, however, that (i) not less than 20 days prior to the
execution of any proposed contract of sale to any such third
party, the Selling Partner shall give notice to the Nonselling
Partner of the name and address of such third party and provide
therewith any available information with respect to the relevant
experience and financial condition of such third party and, if
within 15 days from the date on which such notice is given the
Nonselling Partner shall give notice to the Selling Partner that
it reasonably objects to the proposed sale to such third party,
the Selling Partner may not sell its interest in the Partnership
to such third party and (ii) nothing contained herein shall be
construed to preclude the Selling Partner from presenting to the
Nonselling Partner in advance a list of prospective purchasers
and requesting a waiver of the rights of the Nonselling Partner
set forth in the foregoing proviso with respect to any sale to
any of the persons on such list; and provided further, however,
that such third party shall agree in writing to be subject to and
to assume the terms, conditions, obligations and liabilities of
this Agreement.
(b) If the Nonselling Partner fails to fulfill the
obligation to purchase such interest of the Selling Partner in
the Partnership on the same terms and conditions as those
contained in the offer after giving notice that such purchase
will be made, then, in addition to all other remedies available,
the Selling Partner may, at any time for a period of 120 days
after such default, sell such interest in the Partnership to any
person at any price and upon any other terms.
ARTICLE VII
Dissolution and Termination
SECTION 7.01. Events of Dissolution. (a) The
Partnership shall be dissolved on the earliest of (i) a date
agreed to by both Partners, (ii) subject to Section 6.02, the
occurrence of any event specified under the laws of the State of
California as one effecting dissolution or (iii) December 31,
2044.
(b) Dissolution of the Partnership shall be effective
on the day on which the event giving rise to the dissolution
occurs, but the Partnership shall not terminate until the affairs
of the Partnership shall have been wound up and the assets of the
Partnership shall have been distributed as provided herein.
Notwithstanding the dissolution of the Partnership, prior to the
termination of the Partnership, as aforesaid, the business of the
Partnership and the affairs of the Partners, as such, shall
continue to be governed by this Agreement.
SECTION 7.02. Distributions upon Liquidation. After
payment or provision for all Partnership liabilities, the
remaining net assets of the Partnership shall be distributed
among the Partners as provided in Section 2.04.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. Any and all notices, elections
or demands permitted or required to be made under this Agreement
shall be in writing, signed by the Partner giving such notice,
election or demand and shall be delivered personally, or sent by
registered or certified mail, to the other Partner or Partners at
the addresses specified in Schedule A or at such other addresses
as may be supplied by written notice given in conformity with the
terms of this Section 8.01. The date of personal delivery or
five days after mailing, as the case may be, shall be the date of
such notice (if given in accordance with this Section 8.01).
SECTION 8.02. Successors and Assigns. Subject to the
restrictions on transfers set forth herein, this Agreement, and
each and every provision hereof, shall be binding upon and shall
inure to the benefit of the Partners, their respective
successors, successors-in-title and assigns, and each and every
successor-in-interest to any Partner, whether such successor
acquires such interest by way of purchase, foreclosure or by any
other method, shall hold such interest subject to all the terms
and provisions of this Agreement.
SECTION 8.03. Amendment. This Agreement may be
changed, modified or amended only by an instrument in writing
duly executed by both Partners.
SECTION 8.04. No Waiver. The failure of any Partner
to insist upon strict performance of a covenant hereunder or of
any obligation hereunder, irrespective of the length of time for
which such failure continues, shall not be a waiver of such
Partner's right to demand strict compliance in the future. No
consent or waiver, express or implied, to or of any breach or
default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation
hereunder.
SECTION 8.05. Entire Agreement. This Agreement
constitutes the full and complete agreement of the parties hereto
with respect to the subject matter hereof.
SECTION 8.06. Captions. Titles or captions of
Articles or Sections contained herein are inserted only as a
matter of convenience and for reference, and in no way define,
limit, extend or describe the scope hereof or the intent of any
provision hereof.
SECTION 8.07. Counterparts. This Agreement may be
executed in any number of counterparts, all of which together
shall for all purposes constitute one Agreement, binding on all
the Partners.
SECTION 8.08. Applicable Law. This Agreement and the
rights and obligations of the parties hereunder shall be governed
by and interpreted, construed and enforced in accordance with the
laws of the State of California.
DEAN WITTER REALTY YIELD PLUS,
L.P., a Delaware limited
partnership,
by DEAN WITTER REALTY YIELD PLUS
INC., a Delaware corporation,
Managing General Partner,
by E. Davisson Hardman, Jr.
Senior Vice President
DEAN WITTER REALTY YIELD PLUS II,
L.P., a Delaware limited
partnership
by DEAN WITTER REALTY YIELD PLUS
II INC., a Delaware corporation,
Managing General Partner,
by
E. Davisson Hardman, Jr.
Senior Vice President
<PAGE>
SCHEDULE A
Dated as of
March 14, 1988
DW MICHELSON ASSOCIATES
Capital Contributions and
Participation Percentages
Name and Capital Participation
Address of Partner Contribution Percentage
__________________ ____________ _____________
Dean Witter Realty Yield
Plus, L.P.
In care of Dean Witter
Realty Yield Plus Inc.
130 Liberty Street
New York, N.Y. 10006 $41,000,000 73.2306043699%
Dean Witter Realty Yield
Plus II, L.P.
In care of Dean Witter
Realty Yield Plus II Inc.
130 Liberty Street
New York, N.Y. 10006 14,987,521 26.7693956301
$55,987,521 100%
Exhibit (10)(e)
_______________
FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
This First Amendment to Construction Loan Agreement (the
"First Amendment") entered into as of the 12th day of October, 1989
among Richard H. Rubin, Myrna Putziger and Jonathan D. Albert as
Trustees of Government Center Garage Realty Trust under declaration
of trust dated November 1, 1983 and recorded in the Suffolk County
Registry of Deeds in Book 10615, Page 58 (the "Borrower"), and Dean
Witter Realty Yield Plus, L.P., a Delaware limited partnership and
Dean Witter Realty Yield Plus II, L.P., a Delaware limited
partnership (together the "Lender").
RECITALS
1. The Lender has made a loan to the Borrower in the
original principal sum of up to $57,700,000 (the "Loan") pursuant to
a Loan Agreement dated as of April 26, 1989 (the "Loan Agreement").
All defined terms used herein and not otherwise defined shall have
the meaning assigned to them in the Loan Agreement.
2. The parties are entering into this First Amendment to
modify the term of the Office Loan and to amend certain definitions
set forth in Schedule A of the Loan Agreement.
AMENDMENTS
1. Section 3.3 of the Loan Agreement is deleted and the
following is inserted in place thereof:
Term. The term of the Office Loan shall commence on
the date the Construction Loan is converted to the Office
Loan and terminate on the Office Loan Maturity Date.
2. Schedule A to the Loan Agreement is amended as follows:
A. The defined term "Note" and the definition
associated therewith on page 7 of Schedule A is deleted
and the following is inserted in place thereof:
"Note" means together, (i), the Amended and Restated
Construction Loan/Office Loan Promissory Note (Yield
Plus) of even date herewith, from Borrower to Dean Witter
Realty Yield Plus, L.P. and (ii) the Amended and Restated
Construction Loan/Office Loan Promissory Note (Yield Plus
II) of even date herewith, from Borrower to Dean Witter
Realty Yield Plus II, L.P.
B. The defined term "Office Loan Maturity Date" and
the definition associated therewith on page 8 of Schedule
A is deleted and the following is inserted in place
thereof:
"Office Loan Maturity Date" means November 1, 2001.
3. Except to the extent modified herein, the terms of the
Loan Agreement remain in full force and effect.
IN WITNESS WHEREOF the parties hereto have caused this First
Amendment to be executed by their duly authorized officers as of the
day and year first written above.
BORROWER:
Richard H. Rubin, as trustee of
the Government Center Garage Realty
Trust and not individually
Myrna Putziger, as trustee of
Government Center Garage Realty
Trust and not individually
Jonathan D. Albert, trustee of
Government Center Garage Realty
Trust and not individually
LENDER:
Dean Witter Realty Yield Plus, L.P.
By: Dean Witter Realty Yield Plus Inc.,
general partner
/S/Warren B. Lane
By: ________________________
Warren B. Lane
Senior Vice President
By: Dean Witter Realty Yield Plus
Associates, L.P., general partner
By: Dean Witter Realty Yield Plus,
Inc., general partner
/s/Warren B. Lane
By: _______________________
Warren B. Lane
Senior Vice President
Dean Witter Realty Yield Plus II, L.P.
By: Dean Witter Realty Yield Plus II
Inc., general partner
/s/Warren B. Lane
By: ________________________
Warren B. Lane
Senior Vice President
By: Dean Witter Realty Yield Plus
Associates II, L.P., general
partner
By: Dean Witter Realty Yield
Plus II Inc., general
partner
/s/Warren B. Lane
By: _____________________
Warren B. Lane
Senior Vice President
<PAGE>
Exhibit (10)(f)
______________
AMENDED AND RESTATED CONSTRUCTION
LOAN/OFFICE LOAN PROMISSORY NOTE (YIELD PLUS)*
$57,700,000 As of October 12, 1989
FOR VALUE RECEIVED, the undersigned, Richard H. Rubin, Myrna
Putziger and Jonathan D. Albert, Trustees of Government Center
Garage Realty Trust under declaration of trust dated November 1,
1983, recorded in the Suffolk County Registry of Deeds in Book
10615, Page 58, as amended (the "Trust"), having its principal place
of business at c/o The Richard H. Rubin Companies, 11200 Rockville
Pike, Suite 200, Rockville, Maryland 20852 ("Maker") promises to pay
to the order of Dean Witter Realty Yield Plus, L.P., a Delaware
limited partnership ("Holder"), having its principal place of
business c/o Realty Management Services, Inc. Credit Corporation
("Agent"), Two World Trade Center, New York, New York 10048 the
principal sum of FIFTY SEVEN MILLION SEVEN HUNDRED THOUSAND DOLLARS
($57,700,000) or so much thereof as may have been advanced from time
to time as evidenced on Schedule A (the "Loan"). In addition, the
Maker shall pay interest on the outstanding principal balance of the
Loan from time to time from the date hereof until the Loan is paid
in full as described below, as well as Additional Interest pursuant
to the terms of an Additional Interest Agreement of even date
herewith among Maker, Holder and Yield Plus II (as hereinafter
defined).
The Loan is to be advanced in accordance with the terms of a
Loan Agreement among Holder, Maker and Dean Witter Realty Yield Plus
II, L.P. ("Yield Plus II") of even date herewith (the "Loan
Agreement") and is to be repaid to Holder with interest thereon at
the rates, at the times and in the manner hereinafter provided. All
capitalized terms used herein without definition will have the
meanings set forth in the Loan Agreement. (Holder and Yield Plus II
are together referred to herein as the "Lenders" and individually as
a "Lender".)
____________________
*The purpose of this Amended and Restated Construction
Loan/Office Loan Promissory Note (Yield Plus) is to amend and
restate that certain Construction Loan/Office Loan Promissory Note
(Yield Plus) to change the Office Loan Maturity Date. From and
after the date hereof this Amended and Restated Promissory Note
(Yield Plus) and the Amended and Restated Promissory Note (Yield
Plus II) shall be the Note, as defined in the Loan Agreement and as
referred to in the Loan Documents.
<PAGE>
The Loan is to be advanced in conjunction with a Loan from
Yield Plus II to Maker evidenced by a certain Construction
Loan/Office Loan Promissory Note (Yield Plus II) of even date
herewith (referred to herein, together with this Note as the
"Constructions Notes"). Furthermore, simultaneously herewith each
Lender has made a first mortgage loan to Maker evidenced
respectively by a First Mortgage Loan Promissory Note (Yield Plus)
and a First Mortgage Loan Promissory Note (Yield Plus II) each of
even date herewith (together referred to herein as the "First
Mortgage Notes"). (The Construction Notes and the First Mortgage
Notes are collectively referred to herein as the "Notes"). Pursuant
to a certain Intercreditor Agreement of even date herewith between
the Lenders (the "Intercreditor Agreement"), the Lenders have agreed
that at all times prior to the refinancing of the First Mortgage
Loan, upon the funding of each advance by either Lender under the
Construction Notes, the amounts indicated as having been advanced by
each Lender under the Notes shall be adjusted so that the total
amount advanced by each Lender pursuant to its First Mortgage Note
shall bear the same proportion to the total amounts advanced by both
Lenders pursuant to all of the Notes; and accordingly the same
formula shall apply to the Construction Notes.
Coincident with disbursement, all Loan advances shall be
recorded by Holder and endorsed by Maker on Schedule A. In addition
coincident with each advance, any modification in the Loan balance
under this Note resulting from (i) the purchase by a Lender of a
portion of the outstanding balance of any of the Notes held by the
other Lender in order to maintain the proportions described above or
(ii) any other purchase of a portion of the outstanding balance
under the Notes permitted under the Intercreditor Agreement or
hereafter agreed to between the Lenders, shall also be recorded by
Holder and endorsed by Maker on Schedule A. The outstanding amount
of the Loan as reflected on Schedule A from time to time shall be
prima facie evidence of amounts outstanding hereunder.
Notwithstanding any provision herein to the contrary, the aggregate
maximum principal balance outstanding evidenced by the Construction
Notes shall never exceed $57,700,000.
Interest shall be computed on the basis of a 365-day year for
the actual number of days elapsed.
From the date hereof interest only on such principal sum shall
be payable monthly, in arrears, on the first day of the month
immediately following the date hereof and on the first day of each
month thereafter at a rate equal to eight percent (8%) per annum.
Unless the Construction Loan is converted to the Office Loan,
all unpaid principal and interest shall if not sooner paid, be due
and payable on the second anniversary date of the Loan Closing Date
(the "Construction Loan Maturity Date"). The Maker may extend the
Construction Loan Maturity Date for one additional twelve (12) month
period, upon at least thirty (30) days prior written notice and
payment of the Construction Loan Extension Fee (the "Construction
Loan Extension Period") and provided Maker also extends the
Construction Loan Maturity Date of the loan evidenced by the other
Construction Note in the manner provided in such note. If the
Construction Loan is converted to the Office Loan, all unpaid
principal and interest shall, if not sooner paid, be due and payable
on November 1, 2001 (the "Office Loan Maturity Date").
Provided, however, that the Holder shall be under no
obligation to Maker to so convert the Construction Loan to the
Office Loan unless such conversion occurs on or before the
Construction Loan Maturity Date, as the same may be extended
pursuant to the foregoing paragraph.
There shall be no prepayment of this Note, in whole or in
part, prior to the thirty-six (36) month period immediately
preceding the Office Loan Maturity Date. Maker shall, however, have
the right to prepay the entire principal balance of the Office Loan
outstanding hereunder, together with all accrued and unpaid interest
thereon and all other amounts due hereunder and under the other
Construction Note and all other amounts associated with the Loan,
(i) during the one-year period commencing thirty-six (36) months
prior to the Office Loan Maturity Date, upon payment of a prepayment
penalty equal to two percent (2%) of the then outstanding principal
balance of the Office Loan, (ii) during the one-year period
commencing twenty-four (24) months prior to the Office Loan Maturity
Date, upon payment of a prepayment penalty equal to one percent (1%)
of the then outstanding principal balance of the Office Loan, and
(iii) during the one-year period commencing twelve (12) months prior
to the Office Loan Maturity Date, without penalty. Notwithstanding
the foregoing, the portions of the Office Loan corresponding to the
LSA Contingency Reserve and the LSA Working Capital may be prepaid
at any time in whole or in part, without penalty, and if so prepaid,
may be readvanced by the Holder for the purposes permitted, and in
the manner provided, under the Loan Agreement.
In addition, in the event that Maker exercises its right to
the Construction Loan Extension Period, such extension request must
be accompanied by payment to Holder of the Construction Loan
Extension Fee.
Payments hereunder shall be made in lawful money of the United
States of America at the principal office of the Agent above set
forth, or at such other place as the Holder of this Note may from
time to time designate by written notice mailed to Maker.
If any monthly interest payment provided for herein shall be
made after the expiration of five (5) days after the due date
thereof, in addition to such payments as are otherwise due and
payable hereunder, there shall be immediately due and payable to
Holder a late charge of five ($.05) cents for each one ($1.00)
dollar of such payment (the "Late Charge") for failure to make
prompt payment. The Late Charge shall be secured by the Security
Documents referred to hereinafter. All expenditures made by the
Holder on account hereof not reimbursed by the Maker within five (5)
Business Days after demand, all amounts due under this Note after
maturity, and any amounts due if an Event of Default occurs, shall
bear interest at a rate per annum of five percent (5%) plus the
interest rate then in effect (the "Default Rate") until such amounts
as are due are paid to the Holder.
This Note is made pursuant to the Loan Agreement, and is
secured by the Security Documents each of even date herewith,
encumbering certain real and personal property located in Boston,
Massachusetts, more particularly described therein, and any other
instruments, now or hereafter executed by Maker in favor of Holder,
which in any manner constitute additional security for this Note.
The occurrence of any of the following events shall constitute
a default under this Note (each herein called an "Event of
Default"): (a) default in the payment when due of interest or
principal or other charges, as herein provided or as provided in the
other Construction Note or in the payment when due of any fees or
other payments to be made to Holder or Yield Plus II under any of
the Loan Documents which default continues for more than five (5)
Business Days after the due date; or (b) the occurrence of an Event
of Default under any of the Loan Documents.
Upon the occurrence of an Event of Default, or at any time
thereafter, the entire principal of this Note, irrespective of the
maturity date specified herein, together with (a) all accrued and
unpaid interest at the Default Rate; (b) a default premium (the
"Default Premium") equal to seven percent (7%) of the outstanding
principal balance of the Loan; and (c) Late Charges and any other
fees, expenses and payments due and payable hereunder or under any
of the Loan Documents to Holder shall, at the election of the Holder
hereof and immediately upon demand, become immediately due and
payable, and in such event the date of demand shall become the
Maturity Date.
This Note is a negotiable instrument which may be freely
assigned, negotiated or pledged by Holder to any person or entity,
including, but not limited to, an affiliate of Holder, and Holder
may sell participation interests to any person or entity, including,
but not limited to, an affiliate of Holder, on such terms as Holder
may determine. Notwithstanding the foregoing, the Holder may not
assign, negotiate, pledge, or sell any interest in this instrument
to any person or entity to whom or to which such a transfer is
prohibited pursuant to the Loan Agreement.
All Makers, endorsers, guarantors, sureties, accommodation
parties hereof and all other persons liable or to become liable for
all or any part of this indebtedness, jointly and severally waive
diligence, presentment, protest and demand, and also notice of
protest, of demand, of nonpayment, of dishonor and of maturity and
also recourse to suretyship defenses generally; and they also
jointly and severally hereby consent to any and all renewals,
extensions or modifications of the terms hereof, including time for
payment, and further agree that any such renewal, extension or
modification of the terms hereof or the release or substitution of
any security for the indebtedness evidenced hereby and any other
indulgences shall not affect the liability of any of said parties
for the indebtedness evidenced by this Note. Any such renewals,
extensions or modifications may be made without notice to any of
said parties.
The Maker, endorsers, guarantors, sureties, accommodation
parties hereof and all other persons liable or to become liable on
this Note, agree jointly and severally, to pay all costs of
collection, including reasonable attorneys' fees and all costs of
suit, in case the unpaid principal sum of this Note, or any payment
of interest or installment of principal and interest is not paid
when due, or in case it becomes necessary to protect the security
for the indebtedness evidenced hereby, or for the foreclosure by the
Holder of the Mortgage and other Security Documents, or in the event
the Holder is made party to any litigation because of the existence
of the indebtedness evidenced by this Note, or because of the
existence of the Mortgage or the other Loan Documents, whether suit
will be brought or not, and whether through courts of original
jurisdiction, as well as in courts of appellate jurisdiction or
through a bankruptcy court or other legal proceedings.
This Note may not be amended, modified, or changed, nor shall
any waiver of any provision hereof be effective, except only by an
instrument in writing and signed by the party against whom
enforcement of any waiver, amendment, change, modification or
discharge is sought. This Note may not be amended, modified or
changed unless simultaneously therewith a corresponding amendment,
modification or change is made to the other Construction Note.
Notwithstanding any provision herein or in any instrument now
or hereafter evidencing or securing the indebtedness herein set
forth, the total liability of Maker for payments in the nature of
interest shall not exceed the limits now imposed by the usury laws
of Massachusetts or the jurisdiction governing the provisions of
this Note.
Notwithstanding any provisions herein with respect to
prepayment, if the Maker chooses to make a prepayment in accordance
with the terms of the Loan Documents, then at the time of such
prepayment, it must prepay the whole outstanding principal balance
of the Loan and the loan evidenced by the other Construction Note
and all other sums due under the Loan Documents.
Except as otherwise provided in the Guaranties, anything
contained herein to the contrary notwithstanding, no recourse shall
be had for the payment of any amounts provided for hereunder or for
any claim based thereon or otherwise in respect thereof or based on
or in respect of this Note or any of the other Loan Documents
against (i) GCG, GCA, LSA, the Maker, any trustee or beneficiary of
the Trust or any partner or any past, present or future subscriber
to the partnership interests in GCG, GCA or LSA or (ii) any partner,
shareholder, legal representative, heir, estate, successor or assign
of any thereof. The foregoing provisions of this paragraph shall
not (y) prevent recourse to the Project (as that term is defined in
the Loan Agreement) (z) constitute a waiver, release or discharge of
any obligation evidenced by this Note, but the same shall continue
until paid or discharged, and provided, further, that the foregoing
provisions of this paragraph shall not limit the right of any person
to name Maker or any transferee of any interest in the Project as a
party defendant in any action or suit for repossession of the
Project or in the exercise of any other remedy under this Note.
Whenever used herein, the words "Maker" and "Holder" shall be
deemed to include their respective heirs, personal representatives,
successors and assigns.
Any notices and other communications required or provided for
under this Note shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes three Business Days
after mailing by registered or certified United States mail, return
receipt requested, or one Business Day after delivery to a
recognized overnight delivery service for next day delivery, to the
following addresses or to such other address as may hereafter be
designated by notice as aforesaid:
To Maker:
Richard H. Rubin, as trustee of Government Center
Garage Realty Trust
c/o The Richard H. Rubin Companies
11200 Rockville Pike
Suite 200
Rockville, MD 20852
with a copy hand-delivered or mailed regular mail to:
Melville W. Feldman, Esq.
Feldman, Bodansky & Feldman
2019 Que Street, N.W.
Washington, DC 20009
and
Myrna Putziger, Esq.
McCormick & Putziger
265 Franklin Street
Boston, MA 02110
and
Jonathan D. Albert
c/o Albert Bros., Inc.
225 East Aurora Street
P.O. Box 1310
Waterbury, Connecticut 06721
To Holder:
Ronald J. DiPietro
Realty Management Services, Inc., as Agent
c/o Dean Witter Realty Inc.
Two World Trade Center
New York, New York 10048
with a copy hand-delivered or mailed regular mail to:
Stephen I. Burr, Esq.
Gaston & Snow
One Federal Street
Boston, MA 02110
This Note shall be construed according to and governed by the
laws of Massachusetts, and is intended to take effect as a sealed
instrument.
This Note may be executed in counterparts and as so executed
shall constitute but one Note.
Signed in the presence of MAKER:
/s/Richard H. Rubin
_______________________________ _______________________________
Richard H. Rubin, Trustee of
Government Center Garage Realty
Trust and not individually
Myrna Putziger
_______________________________ _______________________________
Myrna Putziger, Trustee of
Government Center Garage Realty
Trust and not individually
/s/Jonathan D. Albert
_______________________________ _______________________________
Jonathan D. Albert, Trustee of
Government Center Garage Realty
Trust and not individually
<PAGE>
Schedule A
to
Construction Loan/Office Loan Promissory Note (Yield
Plus)
Loan Advance/
Purchase of
Outstanding
Balance of
Construction
Loan/Office
Loan Promissory Portion of Loan
Note (Yield Balance Purchased Outstanding
Date Plus II) By Yield Plus II Loan Balance
4/26/89 $1,653,864 $1,653,864
5/01/89 197,679 1,851,543
5/15/89 376,970 2,228,513
6/01/89 229,896 2,458,409
6/14/89 657,951 3,116,360
7/01/89 212,771 3,329,131
7/21/89 325,840 3,654,971
7/24/89 47,746 3,702,717
8/01/89 213,926 3,916,643
8/16/89 252,358 4,169,001
<PAGE>
Exhibit (10)(g)
______________
SECOND AMENDMENT TO
CONSTRUCTION LOAN AGREEMENT
THIS SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (the
"Second Amendment") is entered into as of the th day of June, 1990
by and among RICHARD H. RUBIN, MYRNA PUTZIGER AND JONATHAN D. ALBERT
AS TRUSTEES OF GOVERNMENT CENTER GARAGE REALTY TRUST under
declaration of trust dated November 1, 1983 and recorded in the
Suffolk County Registry of Deeds in Book 10615, Page 58, having its
principal place of business at c/o The Richard H. Rubin Companies,
11200 Rockville Pike, Suite 200, Rockville, Maryland 20852 (the
"Borrower"), and DEAN WITTER REALTY YIELD PLUS, L.P., a Delaware
limited partnership ("Yield Plus"), and DEAN WITTER REALTY YIELD
PLUS II, L.P., a Delaware limited partnership ("Yield Plus II"),
each of the two entities having its principal place of business
c/o Realty Management Services, Inc., Two World Trade Center, New
York, New York 10048 (Yield Plus and Yield Plus II together, the
"Lender"). All defined terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Loan Agreement (as
defined hereinbelow).
WHEREAS, the Lender has made a loan to the Borrower in the
original principal sum of up to $57,700,000 pursuant to the
provisions of a certain Construction Loan Agreement dated as of
April 26, 1989 ("Loan Agreement") as amended by a certain First
Amendment to Construction Loan Agreement dated as of October 12,
1989 ("First Amendment"); and
WHEREAS, the Borrower and the Lender wish to amend the Loan
Agreement further by increasing the Loan amount by $1,500,000;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Borrower and the Lender agree as follows:
1. Amendment of Loan Agreement. At each of the
locations in the Loan Agreement cited hereinbelow, the reference to
the dollar amount "$57,700,000" is deleted and is replaced by the
dollar amount "$59,200,000":
(a) Page 1, line 2;
(b) Page 1, line 16;
(c) Page 2, Section 1.6.1., line 2;
(d) Page 2, Section 1.6.2., line 2;
(e) Page 3, Section 1.7., line 2;
(f) Page 3, Section 1.7A., line 2; and
(g) Page 3, Section 1.7B., line 2.
2. Amendment of Schedule A. On page 3 of Schedule A, in
line 2 of the defined term "Construction Loan," the reference to the
dollar amount "$57,700,000" is deleted and is replaced by the dollar
amount "$59,200,000."
3. Amendment of Exhibit H. Exhibit H is deleted and is
replaced by an amended and restated Exhibit H as attached hereto.
4. No Other Amendments. Except as expressly provided in
this Second Amendment, all of the terms and conditions of the Loan
Agreement shall remain in full force and effect.
5. Miscellaneous.
(a) This Second Amendment shall be construed, enforced
and governed by the laws of The Commonwealth of Massachusetts.
(b) This Second Amendment is intended to take effect as
a sealed instrument.
(c) This Second Amendment may be executed in
counterparts and as so executed shall constitute but one
Second Amendment.
IN WITNESS WHEREOF the parties hereto have caused this Second
Amendment to be executed by their duly authorized officers as of the
day and year first written above.
BORROWER:
Richard H. Rubin, as Trustee of the
Government Center Garage Realty Trust
and not individually
Myrna Putziger, as Trustee of the
Government Center Garage Realty Trust
and not individually
Jonathan D. Albert, as Trustee of the
Government Center Garage Realty Trust
and not individually
LENDER:
DEAN WITTER REALTY YIELD PLUS, L.P.
By: Dean Witter Realty Yield Plus
Inc., general partner
/s/Warren B. Lane
By: ____________________________
Name: Warren B. Lane
Title: Sr. Vice President
By: Dean Witter Realty Yield Plus
Associates, L.P., general partner
By: Dean Witter Realty Yield
Plus, Inc., general partner
/s/Warren B. Lane
By:_________________________
Name: Warren B. Lane
Title: Sr. Vice
President
DEAN WITTER REALTY YIELD PLUS II, L. P.
By: Dean Witter Realty Yield Plus II,
Inc., general partner
/s/Warren B. Lane
By:_____________________________
Name: Warren B. Lane
Title: Sr. Vice President
By: Dean Witter Realty Yield Plus
Associates II, L.P., general partner
By: Dean Witter Realty Yield Plus
II Inc., general partner
/s/Warren B. Lane
By:____________________________
Name: Warren B. Lane
Title: Sr. Vice
President
<PAGE>
Exhibit (10)(h)
________________
FIRST AMENDMENT
TO AMENDED AND RESTATED CONSTRUCTION
LOAN/OFFICE LOAN
PROMISSORY NOTE (YIELD PLUS)
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CONSTRUCTION
LOAN/OFFICE LOAN PROMISSORY NOTE (YIELD PLUS) (the "First Amendment")
is entered into this th day of June, 1990, by and among RICHARD H.
RUBIN, MYRNA PUTZIGER AND JONATHAN D. ALBERT AS TRUSTEES OF GOVERNMENT
CENTER GARAGE REALTY TRUST under declaration of trust dated November
1, 1983 and recorded in the Suffolk County Registry of Deeds in Book
10615, Page 58, having its principal place of business at c/o The
Richard H. Rubin Companies, 11200 Rockville Pike, Suite 200,
Rockville, Maryland 20852 (the "Maker"), and DEAN WITTER REALTY YIELD
PLUS L.P., a Delaware limited partnership, having its principal place
of business c/o Realty Management Services, Inc., Two World Trade
Center, New York, New York 10048 (the "Holder"). All defined terms
used herein and not otherwise defined shall have the same meanings
ascribed to them in the Note and the Loan Agreement (as defined
hereinbelow).
WHEREAS, the Maker delivered to the Holder a certain Amended and
Restated Construction Loan/Office Loan Promissory Note (Yield Plus) on
October 12, 1989 (the "Note"), in connection with a certain
Construction Loan Agreement dated as of April 26, 1989, as amended by
a certain First Amendment to Construction Loan Agreement dated as of
October 12, 1989 (which Construction Loan Agreement, as amended, is
referred to herein as the "Loan Agreement"); and
WHEREAS, pursuant to a certain Second Amendment to Construction
Loan Agreement of even date herewith, the parties have agreed to amend
the Loan Agreement to increase the Loan amount by $1,500,000;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment of Note.
(a) Page 1, paragraph 1, lines 13 and 14, the dollar
amount "FIFTY-SEVEN MILLION SEVEN HUNDRED THOUSAND DOLLARS
($57,700,000)" is deleted and is replaced by the dollar amount
"FIFTY-NINE MILLION TWO HUNDRED THOUSAND DOLLARS ($59,200,000")."
(b) Page 2, the last sentence of the second paragraph, the
dollar amount "$57,700,000" is deleted and is replaced by the
dollar amount "$59,200,000."
2. No Other Amendments. Except as expressly provided in this
First Amendment, all of the terms and conditions of the Note shall
remain in full force and effect.
3. Miscellaneous.
(a) This First Amendment shall be construed, enforced and
governed by the laws of The Commonwealth of Massachusetts.
(b) This First Amendment is intended to take effect as a
sealed instrument.
(c) This First Amendment may be executed in counterparts
and as so executed shall constitute but one First Amendment.
(d) This First Amendment is entered into by the parties in
conjunction with a certain First Amendment to Amended and
Restated Construction Loan/Office Loan Promissory Note (Yield
Plus II) of even date herewith.
IN WITNESS WHEREOF, each of the parties hereto has caused this
First Amendment to be executed by its duly authorized officer on the
date first written above.
WITNESS: MAKER:
/s/Richard H. Rubin
_______________________________ _______________________________
Richard H. Rubin, Trustee of
Government Center Garage Realty
Trust and not individually
/s/Myrna Putziger
_______________________________ _______________________________
Myrna Putziger, Trustee of
Government Center Garage Realty
Trust and not individually
/s/Jonathan D. Albert
_______________________________ _______________________________
Jonathan D. Albert, Trustee of
Government Center Garage Realty
Trust and not individually<PAGE>
Exhibit (10)(i)
_______________
SUPPLEMENTAL LOAN AGREEMENT
This Supplemental Loan Agreement (this "Agreement")
dated September 20, 1993 by and among Richard H. Rubin and Myrna
Putziger, as trustees under a declaration of trust dated November 1,
1983 and recorded in the Suffolk County Registry of Deeds in
Book 10615, Page 58, of GOVERNMENT CENTER GARAGE REALTY TRUST, a
Massachusetts nominee trust (together with the beneficiary of such
trust, the "Borrower"), having a principal place of business c/o The
Richard H. Rubin Companies, 11200 Rockville Pike, Suite 200,
Rockville, Maryland 19852, and DEAN WITTER REALTY YIELD PLUS, L.P., a
Delaware limited partnership, and DEAN WITTER REALTY YIELD PLUS II,
L.P., a Delaware limited partnership (collectively, the "Lender"),
each having its principal place of business at Two World Trade Center,
New York, New York 10048.
W I T N E S E T H :
WHEREAS, the Borrower and the Lender executed and
delivered that certain Construction Loan Agreement dated as of
April 26, 1989 (the "Original Loan Agreement"), that certain First
Amendment to Construction Loan Agreement dated as of October 12, 1989
(the "First Loan Amendment") and that certain Second Amendment to
Construction Loan Agreement dated as of June 21, 1990 (the "Second
Loan Amendment"; the Original Loan Agreement, as amended by the First
Loan Amendment, the Second Loan Amendment and by this Agreement, and
as the same may be further amended from time to time, is hereinafter
referred to as the "Amended Loan Agreement"), pursuant to which, inter
alia, the Lender agreed to lend up to an aggregate of Fifty Nine
Million Two Hundred Thousand Dollars ($59,200,000) (the "Loan") to the
Borrower; and
WHEREAS, in connection with the Original Loan Agreement,
the Borrower agreed to pay to the Lender, inter alia, Additional
Interest, as defined in, and on the terms and conditions set forth in,
that certain Additional Interest Agreement dated as of April 26, 1989
by and between the Borrower and the Lender, as amended by that certain
First Amendment to Additional Interest Agreement dated as of June 22,
1990 by and between the Borrower and the Lender and as further amended
by that certain Second Amendment to Additional Interest Agreement
dated the date hereof by and between the Borrower and the Lender (as
so amended, and as may be further amended from time to time, the
"Amended Additional Interest Agreement"); and
WHEREAS, the Borrower and the Lender desire to enter
into certain agreements relating to the Loan on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained, the Borrower and the Lender
hereby agree as follows:
1. All capitalized terms used and not defined in
this Agreement shall have the meanings ascribed to them in the Amended
Loan Agreement. All references in the Amended Loan Agreement to the
Additional Interest Agreement are hereby deemed to be references to
the Amended Additional Interest Agreement. This Agreement is hereby
deemed to be a Loan Document (as defined in the Amended Loan
Agreement).
2. As used in the following provisions, the
following terms shall have the following respective meanings:
(a) The term "Final Advance Date" shall have the
meaning set forth in paragraph 5 hereof.
(b) The term "Free Rent Period" shall mean the
period during which the GSA (as hereinafter defined) is, under
Supplemental Lease Agreements dated as of June 20, 1990, September 6,
1990 and February 1, 1991 and that certain letter agreement between
the GSA and Borrower dated April 5, 1991, all of which documents
constitute part of the GSA Lease (as hereinafter defined), the GSA is
entitled to deferred free rent with respect to its space at the
Project. Borrower represents and warrants that (X) the Free Rent
Period comprises five months and commences on the earlier of
(i) August 1, 1994 and (ii) the date described in the first sentence
of Section 2 of the Supplemental Lease Agreement dated June 21, 1990
between the Borrower and the GSA and (Y) the amount of deferred free
rent to which the GSA is entitled during the GSA Free Rent Period is
$2,925,293.
(c) The term "GSA" shall mean the General
Services Administration of the United States of America.
(d) The term "GSA Claim" shall mean those
certain claims for additional compensation dated November 26, 1990 and
February 28, 1991 filed by the Borrower with the GSA.
(e) The term "GSA Claim Resolution" shall mean
the occurrence of either (i) the entering into by the Borrower and the
GSA of a binding settlement concerning the resolution of the GSA Claim
or (ii) the making of a binding, non-appealable judicial (or
arbitrative) determination of the GSA Claim.
(f) The term "GSA Lease" shall mean that certain
lease of a portion of the Project dated December 29, 1989 between the
Borrower and the GSA, as such lease has been amended or supplemented
by the agreements listed in Exhibit A annexed hereto (the Borrower
hereby representing that the lease hereinabove referred to and the
agreements listed in Exhibit A constitute all of the agreements here-
tofore made between the Borrower and the GSA in respect of the lease
of space at the Project to the GSA), and as such lease may be further
amended or supplemented from time to time after the date hereof.
3. Notwithstanding any provision to the contrary in
any of the Loan Documents, at any time prior to the last day of the
Free Rent Period, Borrower may, at its option (but subject to the
provisions of the third sentence of this paragraph), deliver to the
Lender, to be credited as a payment and/or prepayment, whichever is
applicable, of interest installments under the Note (other than
Additional Interest (as defined in the Amended Additional Interest
Agreement)) due during the Free Rent Period (such interest being
hereinafter referred to as "Free Rent Period Interest"), any funds of
Borrower then on hand (including, without limitation, any cash
reserves or working capital). Any such prepayment shall be deemed to
have been made in an amount equal to the sum of (x) the amount of
funds delivered to the Lender on account of such prepayment and (y)
the amount of interest, at a rate of 5% per annum, that would be
earned on such funds from the date such prepayment is made until the
due date or dates of the installment or installments of Free Rent
Period Interest to which such prepayment is applied in accordance with
the following provisions of this paragraph 3. If, pursuant to the GSA
Claim Resolution, the Borrower receives one or more payments from the
GSA on account of the GSA Claim prior to the last day of the Free Rent
Period, each such payment (a "GSA Payment") shall, promptly upon
receipt, be forwarded to the Lender and credited as a payment and/or
prepayment, whichever is applicable, of Free Rent Period Interest, but
only to the extent that such interest has not previously been paid or
prepaid pursuant to this paragraph 3. Any such prepayment shall be
deemed to have been made in an amount calculated in accordance with
the formula set forth in the second sentence of this paragraph 3. Any
payments and prepayments of Free Rent Period Interest made pursuant to
this paragraph 3 shall be applied against installments of Free Rent
Period Interest in the order in which the same are due and payable.
4. During the Free Rent Period, provided that (a)
there is no outstanding Event of Default, (b) Borrower shall have
either (1) theretofore made no Borrower Distributions (as hereinafter
defined) or (2) if it has made Borrower Distributions, theretofore
deposited into the Project's working capital account from funds other
than Project revenues an amount equal to the sum of all Partner
Distributions (as hereinafter defined) theretofore made, (c) at such
time Borrower shall have expended all of its funds then on hand
(including, without limitation, all funds in any cash, working capital
and any other reserves and all amounts deposited pursuant to subclause
(2) of the foregoing clause (b)), and (d) Borrower complies with the
provisions of the immediately succeeding sentence, the Lender shall be
obligated, within five (5) Business Days after the Borrower so
requests, but not more than once in any calendar month, to make Loan
advances in the amount necessary for the Borrower to pay all expenses
then due and payable in connection with the ownership and operation of
the Project (including, without limitation, debt service on the First
Mortgage and the Loan); provided, however, that in no event shall
advances required to be made pursuant to this paragraph 4 exceed, in
the aggregate, $1,713,068 (the "Remaining Loan Amount"), the parties
hereby agreeing and acknowledging that the Remaining Loan Amount
constitutes the entire unadvanced portion of the Loan, and that the
Lender's only remaining obligation to make Loan advances is as set
forth in this paragraph 4 and in paragraph 5 hereof. Whenever the
Borrower so requests an advance hereunder, it shall be obligated,
prior to or simultaneously with such request, to make the deposit
described in subclause (2) of clause (b) of the immediately preceding
sentence, if applicable, and to provide the Lender with evidence of
such deposit. Each request for an advance hereunder (a) shall be
accompanied by a schedule certified as true and correct by the general
partner of the Borrower showing, in reasonable detail, the expenses on
account of which such request is being made, which expenses must
either conform to the budget for the Project then in effect (which
budget shall have been previously approved by the Lender, such
approval not to be unreasonably withheld) or be approved by the
Lender, such approval not to be unreasonably withheld, and (b) shall
not be on account of any expenses covered by a previous request for an
advance hereunder. As used herein, "Borrower Distributions" shall
mean, collectively, Partner Distributions and Lender Distributions (as
each such term is hereinafter defined). As used herein, "Partner
Distributions" shall mean any distributions or payments of cash by the
Borrower from and including the date hereof until and including the
Final Advance Date to or for the account of any of its then current or
former partners or to any affiliate of its then current or former
partners, whether on account of partnership distributions, Partner
Loans (as defined in the Partnership Agreement) or any other loans to
the Borrower, fees, line items in the construction budget provided for
in the Amended Loan Agreement, or otherwise, but excluding property
management fees to affiliates of Government Center Garage Associates
Limited Partnership in amounts set forth on Exhibit A attached hereto
and made a part hereof, and "Lender Distributions" shall mean any
payments by the Borrower to the Lender pursuant to the last sentence
of paragraph 5.3 hereof.
5. On the day (the "Final Advance Date") which is
the earlier of (i) the last day of the Free Rent Period and (ii) the
date on which all Free Rent Period Interest shall have been prepaid or
paid pursuant to paragraph 3 hereof, the following shall occur:
(a) Provided that there is then no outstanding
Event of Default, and subject to the first sentence of paragraph 5.3
below, Lender shall make a Loan advance to the Borrower in the amount,
if any, by which (x) the Remaining Loan Amount, exceeds (y) the sum of
all Loan advances previously made by the Lender pursuant to paragraph
4 hereof (such excess being hereinafter referred to as the "Final Loan
Amount").
(b) Subject to the retention by the Borrower of
cash reserves and working capital to the extent permitted by the
Amended Additional Interest Agreement, all funds of the Borrower on
hand as of the Final Advance Date (including, for this purpose and
without limitation, (a) proceeds of the Loan advance to be made
pursuant to paragraph 5.1 hereof without deduction for the retained
amounts described in the first sentence of paragraph 5.3 below and (b)
GSA Payments) shall be payable (and paid) on the Final Advance Date as
follows and in the following order of priority:
(i) Such funds, up to the total amount of
all GSA Payments theretofore received (whether paid monthly or
otherwise), shall first be payable to the Borrower and the Lender in
accordance with Section 2(a) of the Amended Additional Interest
Agreement (including that portion of such Section requiring payment of
the Priority Amount, as such term is used therein, for each calendar
year on account of which such funds are payable as hereinafter
provided in this subparagraph 5.2.1, but only, in the case of calendar
year 1993, to the extent that the Priority Amount was not theretofore
paid in accordance with the last sentence of paragraph 5.3 hereof) as
if the Accrual Date, as such term is used in the Amended Additional
Interest Agreement, were January 1, 1993 and as if such payments made
by the GSA were Adjusted Gross Receipts, as such term is used in the
Amended Additional Interest Agreement, in the calendar year(s) in
which they were made;
(ii) The balance of such funds, up to the
Remaining Loan Amount, shall be payable 50% to the Lender and 50% to
the Borrower;
(iii) The balance of such funds, up to the
amount of $951,267.41, shall be payable 50% to the Lender and 50% to
the Borrower; and
(iv) The remaining balance of such funds
shall be payable to the Borrower and the Lender in accordance with
Section 2(a) of the Amended Additional Interest Agreement (including
that portion of such Section requiring payment of the Priority Amount)
as if the Accrual Date, as such term is used in the Amended Additional
Interest Agreement, were January 1, 1993 and as if such funds were
Adjusted Gross Receipts in calendar year 1993.
(c) The parties acknowledge and confirm that
the amounts payable to the Lender pursuant to subsections 5.2.1
through 5.2.4 above, up to the Final Loan Amount, shall, rather than
be paid to the Lender at the time of the Loan advance described in
paragraph 5.1 above, be retained by the Lender, and not advanced to
the Borrower pursuant to paragraph 5.1, in full satisfaction of the
Borrower's obligation, pursuant to subsections 5.2.1 through 5.2.4
above, to pay such retained amounts to the Lender. The Borrower
agrees that if the Borrower makes a Borrower Distribution prior to the
Final Advance Date, the amount thereof shall be paid to the Borrower
as a Partner Distribution and to the Lender as a Lender Distribution
in accordance with Section 2(a) of the Amended Additional Interest
Agreement (including the portion of such Section requiring payment of
the Priority Amount, as such term is used therein) as if the Accrual
Date, as such term is used in the Amended Additional Interest
Agreement, were January 1, 1993 and as if such funds were adjusted
Gross Receipts, as such term is used in the Amended Additional
Interest Agreement, in the calendar year 1993.
6. Borrower represents and warrants that as of the
date hereof, there are no outstanding Partner Loans (as defined in the
Partnership Agreement) that were made by or on behalf of Government
Center Garage Associates Limited Partnership.
7. The following sentence is hereby added to
Exhibit F of the Amended Loan Agreement:
"The beneficial interest of Edward J. McCormack, Jr. in
said Putnam Associates Realty Trust has been pledged to
Wainwright Bank as security for a loan having an
original principal balance of $1,750,000.
8. The Lender acknowledges and confirms that (a)
the Core and Shell Substantial Completion Date has occurred, (b) the
Shortfall Guaranty has terminated and is no longer of any force and
effect and (c) except with respect to the rehabilitation of the
elevators serving the parking garage portion of the Project, the
Completion and Cost Overrun Guaranty has terminated and is no longer
of any force and effect.
9. The Borrower shall not hire, engage or enter
into any contracts with Jonathan D. Albert ("Albert"), Warren B. Lane,
John J. Preotle, Jr. or any immediate family member of any of them, or
any entity that any of the foregoing persons has any right, title or
interest of any kind whatsoever, direct or indirect, in or to, without
the Lender's prior written consent, which consent may be withheld at
Lender's sole discretion. The foregoing, however, shall not be deemed
to (i) prohibit an entity affiliated with Albert from entering into a
lease of Project space on commercially reasonable terms for such
entity's own use as an office or (ii) prohibit Albert from acting as a
consultant or agent in any capacity (including in connection with the
Project) for The Rubin Companies, Richard H. Rubin or any family
member of Richard H. Rubin or any entity in which Richard H. Rubin has
an interest, other than directly with the Borrower, provided that:
(X) Any compensation which Albert receives for such
consulting or agency services shall not be paid by the Borrower or
otherwise from the revenues of the Project (whether as a fee or
operating expense or distribution or other direct or indirect charge
or payment of any kind whatsoever, but excluding partnership distri-
butions which have previously been paid from Project revenues);
provided, however, that Albert may be compensated by the Borrower or
otherwise out of Project revenues for consulting services rendered
with respect to the GSA Claim and the Borrower's dispute with Stolte
Inc. relating to the construction of the Project (and not with respect
to any other matters), provided that such compensation is on
commercially reasonably terms;
(Y) Albert shall not in connection with the Project
render on a regular basis services customarily performed by the
property manager of the Project, or otherwise be entitled to share
directly in the payment of property management fees payable in
connection with the Project; and
(Z) Albert shall not render advisory or other services
in connection with any negotiations, communications, disputes or
litigation between the Lender and the Borrower, or any question or
matter involving the Borrower's and/or the Lender's compliance with or
rights under the terms of the Loan.
10. The Borrower hereby acknowledges and confirms
that as of the date hereof, (a) the outstanding unpaid principal
balance of the Note is $57,486,932 and (b) to the best of its
knowledge, it has no defenses, offsets or counterclaims to its
obligations under, and no causes of action with respect to, the Note
and the other Loan Documents. The Lender hereby acknowledges and
confirms that to the best of its knowledge, as of the date hereof no
Event of Default exists and no event has occurred and no condition
exists which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default.
11. The definition of "Break-even Date" in
Schedule A of the Amended Loan Agreement is hereby amended to read in
its entirety "January 1, 1993".
12. Pursuant to Section 8.1.5 of the Amended Loan
Agreement, the Lender hereby expressly consents to the assignment by
LSA of its entire interest in GCG to GCA and Rubin pursuant to an
Assignment of Partnership Interests of even date herewith, and to the
withdrawal of LSA as a general partner of GCG.
13. The Lender and the Borrower hereby agree that
their respective addresses for notice under each of the Loan Documents
are changed to the following:
To the Borrower:
Richard H. Rubin, as trustee of Government Center
Garage Realty Trust
c/o The Richard H. Rubin Companies
11200 Rockville Pike
Suite 200
Rockville, MD 20852
with a copy to:
Feldman, Bodansky & Rubin
1819 L Street, N.W.
Seventh Floor
Washington, D.C. 20036
Attention: Steven K. Rubin, Esq.
and
Rubin and Rudman
50 Rowes Wharf
Boston, Massachusetts 02110
Attention: Myrna Putziger
To the Lender:
Dean Witter Realty Yield Plus, L.P.
and Dean Witter Realty Yield Plus II, L.P
c/o Dean Witter Realty Inc.
64th Floor
Two World Trade Center
New York, New York 10048
Attention: E. Davisson Hardman, Jr.
with a copy to:
Mitchell L. Berg, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
To Rubin, Rubin/GCA, and/or GCA:
Richard H. Rubin
c/o The Richard H. Rubin Companies
11200 Rockville Pike
Suite 200
Rockville, MD 20852
with a copy to:
Feldman, Bodansky & Rubin
1819 L Street, N.W.
Seventh Floor
Washington, D.C. 20036
Attention; Steven K. Rubin, Esq.
and
Rubin and Rudman
50 Rowes Wharf
Boston, Massachusetts 02110
Attention: Myrna Putziger
The parties further acknowledge that from and after the date hereof,
no notice need be given to LSA.
14. The Borrower represents and warrants to the
Lender that:
(1) This Agreement has been duly authorized,
executed and delivered by the Borrower;
(2) each of the Other Restructuring Documents
(as hereinafter defined) has been duly
authorized, executed and delivered by the
Borrower;
(3) this Agreement and the Other Restructuring
Documents constitute valid and binding
obligations of the Borrower in accordance
with their respective terms, except as
enforceability may be limited by
applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the enforcement of creditors'
rights generally and
(4) the execution, delivery and performance of
this Agreement and the Other Restructuring
Documents, compliance by the Borrower with
the provisions hereof and of the Other
Restructuring Documents, and the
consummation of the transactions
contemplated hereby and thereby have been
duly authorized by all necessary trust and
partnership action on the part of the
Borrower and will not conflict with,
result in a breach of or constitute a
default under (i) any agreement, indenture
or instrument to which the Borrower is a
party or by which it is bound or (ii) the
organizational documents of the Borrower.
As used herein, the term "Other Restructuring Documents"
shall mean, collectively, (i) the following documents of even date
herewith by and between the Borrower and the Lender: (a) Second
Amendment to Additional Interest Agreement; (b) Second Amendment to
Second Mortgage and Security Agreement; (c) Amendment to Second
Conditional Assignment of Rents and Leases; (d) Amendment to
Assignments and (e) Second Amendment to Notes and (ii) that certain
Government Center Garage Realty Trust Direction of Beneficiary of
even date herewith by GCGA Limited Partnership.
15. Each of the Borrower and the Lender shall
cooperate with the other, and shall execute, acknowledge and deliver
such documents and take such further actions as may be reasonably
requested by the other, to carry out the provisions hereof and of
the Other Restructuring Documents and the transactions contemplated
hereby and thereby.
16. As modified hereby, the Original Loan Agree-
ment, as modified by the First Loan Amendment and the Second Loan
Amendment, is hereby ratified and confirmed in all respects by the
parties hereto. Without limiting the foregoing, the parties hereto
hereby acknowledge and confirm the provisions of Section 11.14 of
the Original Loan Agreement, which provisions are, subject to
provisions of the Amended Additional Interest Agreement relating to
recourse liability after the End Transaction (as defined therein),
(i) hereby made applicable to the Original Loan Agreement, as
amended by the First Loan Amendment and the Second Loan Amendment
and as amended hereby, and (ii) hereby incorporated herein by
reference.
17. This Agreement is to be governed by and con-
strued in accordance with the laws of the Commonwealth of
Massachusetts.
18. This Agreement may be executed in counterparts
and as so executed under seal shall constitute but one Agreement.
IN WITNESS WHEREOF, the Borrower and the Lender have
duly executed this Agreement on the day and year first above
written.
BORROWER:
/s/Richard H. Rubin
___________________________________
Richard H. Rubin, as Trustee of Government
Center Garage Realty Trust and not
individually
/s/Myrna Putziger
___________________________________
Myrna Putziger, as Trustee of Government
Center Garage Realty Trust and not
individually
LENDER:
DEAN WITTER REALTY YIELD PLUS, L.P.
By: Dean Witter Realty Yield Plus
Inc., general partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
By: Dean Witter Realty Yield Plus
Associates, L.P., general
partner
By: Dean Witter Realty Yield
Plus, Inc., general
partner
/s/ E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
DEAN WITTER REALTY YIELD PLUS II, L.P.
By: Dean Witter Realty Yield Plus II
Inc., general partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
By: Dean Witter Realty Yield Plus
Associates II, L.P., general
partner
By: Dean Witter Realty Yield
Plus II, Inc.
general partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
<PAGE>
Exhibit (10)(j)
_______________
SECOND AMENDMENT TO NOTES
This SECOND AMENDMENT TO NOTES (this "Second
Amendment") dated September 20, 1993 by and among Richard H. Rubin
and Myrna Putziger, as trustees under a declaration of trust dated
November 1, 1983 and recorded in the Suffolk County Registry of
Deeds in Book 10615, Page 58, and filed with the Suffolk Registry
District of the Land Court on Certificate of Title No. 96370, of
GOVERNMENT CENTER GARAGE REALTY TRUST, a Massachusetts nominee trust
(the "Maker"), having a principal place of business c/o The Richard
H. Rubin Companies, 11200 Rockville Pike, Suite 200, Rockville,
Maryland 20852, and DEAN WITTER REALTY YIELD PLUS, L.P., a Delaware
limited partnership ("YP") and DEAN WITTER REALTY YIELD PLUS II,
L.P., a Delaware limited partnership ("YPII"; YP and YPII being
collectively referred to hereinafter as the "Holder"), each having
its principal place of business at Two World Trade Center, New York,
New York 10048.
W I T N E S S E T H :
WHEREAS, (a) the Maker executed and delivered to YP a
certain Amended and Restated Construction Loan/Office Loan
Promissory Note (Yield Plus) dated as of October 12, 1989 (the
"Original YP Note") and (b) the Maker and YP executed and delivered
a certain First Amendment to Amended and Restated Construction
Loan/Office Loan Promissory Note (Yield Plus II) dated June 22, 1990
(the "YP Note Amendment"; the Original YP Note, as amended by the YP
Note Amendment, being hereinafter referred to as the "YP Note"); and
WHEREAS, (a) the Maker executed and delivered to YPII
a certain Amended and Restated Construction Loan/Office Loan
Promissory Note (Yield Plus II) dated as of October 12, 1989 (the
"Original YPII Note") and (b) the Maker and YPII executed and
delivered a certain First Amendment to Amended and Restated
Construction Loan/Office Loan Promissory Note (Yield Plus II) dated
June 22, 1990 (the "YPII Note Amendment"; the Original YPII Note, as
amended by the YPII Note Amendment, being hereinafter referred to as
the "YPII Note," and the YP Note and the YPII Note being hereinafter
collectively referred to as the "Notes"); and
WHEREAS, the Maker and the Holder are this day
executing and delivering a Supplemental Loan Agreement ("SLA") and a
Second Amendment to Additional Interest Agreement ("Additional
Interest Amendment"), each of which documents amends in certain
respects the terms of the loan evidenced by the Notes; and
WHEREAS, the Maker and the Holder wish to modify both
of the Notes on the terms and conditions set forth herein to reflect
the provisions of the SLA and the Additional Interest Amendment;
NOW, THEREFORE, in consideration of the premises and
of the mutual covenants herein contained, the Maker and the Holder
hereby agree as follows:
19. All capitalized terms used and not defined
herein shall have the meanings ascribed to them in the Notes.
20. All references in the Notes to the Loan
Documents shall be deemed to refer to, collectively, the YP Note,
the YPII Note, the Loan Agreement, the Additional Interest
Agreement, the Indemnity Agreement and each Security Document, as
each such document has been amended or modified through the date
hereof (including, without limitation, hereby and by the SLA and the
Additional Interest Amendment) and may be amended or modified from
time to time. All references in the Notes to the Loan Agreement
shall be deemed to refer to the Loan Agreement, as such document has
been amended through the date hereof (including by the SLA) and may
be further amended from time to time. All references in the Notes
to the Additional Interest Agreement shall be deemed to refer to the
Additional Interest Agreement, as such document has been amended
through the date hereof (including by the Additional Interest
Amendment) and may be further amended from time to time.
21. The Maker hereby ratifies and confirms the YP
Note and the YPII Note, as amended hereby, in all respects. The
Lender and the Maker hereby acknowledge and confirm the non-recourse
provisions set forth in the third paragraph of page 6 of both the
Original YP Note and the Original YPII Note, which non-recourse
provisions are, subject to provisions in the Additional Interest
Agreement relating to recourse liability after the End Transaction
(as defined therein), (i) hereby made applicable to the Notes, as
amended hereby, and (ii) hereby incorporated herein by reference.
22. This Second Amendment shall be construed,
enforced and governed by the laws of the Commonwealth of
Massachusetts.
23. This Second Amendment may be executed in
counterparts and as so executed shall constitute but one Amendment.
IN WITNESS WHEREOF, the Maker and the Holder have
duly executed under seal this Amendment on the day and year first
above written.
Maker:
/s/Richard H. Rubin
___________________________________
Richard H. Rubin, as Trustee of Government
Center Garage Realty Trust and not
individually
/s/Myrna Putziger
___________________________________
Myrna Putziger, as Trustee of Government
Center Garage Realty Trust and not
individually
Holder:
DEAN WITTER REALTY YIELD PLUS, L.P.
By: Dean Witter Realty Yield Plus
Inc., general partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
By: Dean Witter Realty Yield Plus
Associates, L.P., general
partner
By: Dean Witter Realty Yield
Plus, Inc., general
partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
DEAN WITTER REALTY YIELD PLUS II, L.P.
By: Dean Witter Realty Yield Plus
Inc., general partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
By: Dean Witter Realty Yield Plus
Associates II, L.P., general
partner
By: Dean Witter Realty Yield
Plus Associates II, L.P.,
general partner
/s/E. Davisson Hardman, Jr.
By:__________________________
E. Davisson Hardman, Jr.
Name:_____________________
President
Title:____________________
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
Registrant is a limited partnership which invests in real estate,
participating mortgage loans,and real estate joint ventures. In accordance
with industry practice, its balance sheet is unclassified. For full
information, refer to the accompanying audited financial statements.
</LEGEND>
<NAME> DEAN WITTER REALTY YIELD PLUS, LP
<CIK> 0000810116
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 18,939,265
<SECURITIES> 0
<RECEIVABLES> 684,482
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 141,753,976<F1>
<CURRENT-LIABILITIES> 0
<BONDS> 0
<COMMON> 0
0
0
<OTHER-SE> 97,934,001<F2>
<TOTAL-LIABILITY-AND-EQUITY> 141,753,976<F3>
<SALES> 0
<TOTAL-REVENUES> 34,399,506<F4>
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 20,329,821
<LOSS-PROVISION> 6,931,459
<INTEREST-EXPENSE> 5,794,644
<INCOME-PRETAX> 1,343,582
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,343,582
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,343,582
<EPS-PRIMARY> .17<F5>
<EPS-DILUTED> 0
<FN>
<F1>In addition to cash and receivables, total assets include net investments
in real estate of $98,516,738, net investments in participating mortgage
loan of $19,974,382, net deferred expenses of $1,626,335 and other assets
of $2,012,774.
<F2>Represents partners' capital.
<F3>Liabilities include mortgage notes payable of $20,003,736, minority
interests of $19,566,955, and accounts payable and other liabilities
of $4,249,284.
<F4>Total revenue includes rent of $27,033,215, interest on participating
mortgage loan of $2,745,433, gain on sale of real estate of $3,334,036,
interest on short-term investments of $496,283 and other revenue of
$790,539.
<F5>Represents net income per Unit of limited partnership interest.
</FN>
</TABLE>
