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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended September 30, 1997
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 0-19219
Brauvin Income Plus L.P. III
(Exact name of registrant as specified in its charter)
Delaware 36-3639043
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 South Wacker Drive, Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
(312) 443-0922
(Registrant's telephone number, including area code)
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 .
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BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
INDEX
Page
PART I Financial Information
Item 1. Consolidated Financial Statements . . . . . . . . . 3
Consolidated Balance Sheets at September 30, 1997
and December 31, 1996 . . . . . . . . . . . . . . . 4
Consolidated Statements of Operations for the nine
months ended September 30, 1997 and 1996. . . . . . 5
Consolidated Statements of Operations for the
three months ended September 30, 1997 and 1996. . . 6
Consolidated Statements of Partners' Capital for
the periods January 1, 1996 to September 30, 1997 . 7
Consolidated Statements of Cash Flows for the nine
months ended September 30, 1997 and 1996. . . . . . 8
Notes to Consolidated Financial Statements. . . . . 9
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . 29
PART II Other Information
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . 38
Item 2. Changes in Securities . . . . . . . . . . . . . . . 43
Item 3. Defaults Upon Senior Securities . . . . . . . . . . 43
Item 4. Submissions of Matters to a Vote of Security Holders 43
Item 5. Other Information . . . . . . . . . . . . . . . . . 43
Item 6. Exhibits and Reports on Form 8-K. . . . . . . . . . 43
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . 44
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PART I - FINANCIAL INFORMATION
ITEM 1. Consolidated Financial Statements.
Except for the December 31, 1996 Consolidated Balance Sheet, the
following Consolidated Balance Sheet as of September 30, 1997,
Consolidated Statements of Operations for the nine months ended
September 30, 1997 and 1996, Consolidated Statements of Operations
for the three months ended September 30, 1997 and 1996,
Consolidated Statements of Partners' Capital for the periods
January 1, 1996 to September 30, 1997 and Consolidated Statements
of Cash Flows for the nine months ended September 30, 1997 and 1996
for Brauvin Income Plus L.P. III (the "Partnership") are unaudited
and have not been examined by independent public accountants but
reflect, in the opinion of the management, all adjustments
necessary to present fairly the information required. All such
adjustments are of a normal recurring nature.
These consolidated financial statements should be read in
conjunction with the consolidated financial statements and notes
thereto included in the Partnership's 1996 Annual Report on Form
10-K.
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BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED BALANCE SHEETS
September 30, December 31,
1997 1996
ASSETS
Investment in real estate, at cost:
Land $7,845,528 $7,845,528
Buildings and improvements 10,463,264 10,463,264
18,308,792 18,308,792
Less: Accumulated depreciation (2,534,338) (2,254,604)
Net investment in real estate 15,774,454 16,054,188
Investment in Joint Ventures (Note 4):
Brauvin Gwinnett County Venture 150,418 151,818
Brauvin Bay County Venture 359,217 367,323
Cash and cash equivalents 1,679,504 1,442,263
Rent receivable 2,477 3,318
Deferred rent receivable 51,673 45,201
Prepaid offering costs 70,824 70,824
Other assets -- 2,690
Total Assets $18,088,567 $18,137,625
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES:
Accounts payable and accrued expenses $ 75,019 $ 41,591
Tenant security deposit 52,203 273,958
Due to affiliate 1,920 --
Rent received in advance 18,929 62,236
Total Liabilities 148,071 377,785
Minority Interest in Brauvin
Chili's Limited Partnership (617) (569)
PARTNERS' CAPITAL:
General Partners 103,437 78,152
Limited Partners 17,837,676 17,682,257
Total Partners' Capital 17,941,113 17,760,409
Total Liabilities and Partners'
Capital $18,088,567 $18,137,625
See accompanying notes to consolidated financial statements.
BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Nine Months Ended September 30,
1997 1996
INCOME:
Rental $1,732,414 $1,672,755
Interest 54,198 30,774
Other 472 704
Total income 1,787,084 1,704,233
EXPENSES:
General and administrative 130,094 120,858
Management fees 17,887 17,234
Transaction costs 123,320 187,303
Valuation fees -- 40,129
Depreciation 279,734 288,733
Total expenses 551,035 654,257
Income before minority interest and
equity interest in joint ventures 1,236,049 1,049,976
Minority interest's share in Brauvin
Chili's Limited Partnership's net income (387) (423)
Equity interest in net income from:
Brauvin Bay County Venture 18,414 --
Brauvin Gwinnett County Venture 10,185 10,157
Net income $ 1,264,261 $1,059,710
Net income allocated to the
General Partners $ 25,285 $ 21,194
Net income allocated to the
Limited Partners $ 1,238,976 $1,038,516
Net income per Unit outstanding (a) $ 0.56 $ 0.47
(a)Net income per Unit was based on the average Units outstanding
during the period since they were of varying dollar amounts and
percentages based upon the dates Limited Partners were admitted to
the Partnership and additional Units were purchased through the
distribution reinvestment plan (the "Plan").
See accompanying notes to consolidated financial statements.
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BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three Months Ended September 30,
1997 1996
INCOME:
Rental $602,635 $573,949
Interest 18,929 12,051
Other 178 162
Total income 621,742 586,162
EXPENSES:
General and administrative 26,640 41,959
Management fees 5,395 5,631
Transaction costs 52,334 177,435
Valuation fees -- 1,729
Depreciation 93,245 96,244
Total expenses 177,614 322,998
Income before minority interest and
equity interest in joint ventures 444,128 263,164
Minority interest's share in Brauvin
Chili's Limited Partnership's net income (140) (174)
Equity interest in net income from:
Brauvin Bay County Venture 6,779 --
Brauvin Gwinnett County Venture 3,434 3,526
Net income $454,201 $266,516
Net income allocated to the
General Partners $ 9,084 $ 5,330
Net income allocated to the
Limited Partners $445,117 $261,186
Net income per Unit outstanding (a) $ 0.20 $ 0.12
(a)Net income per Unit was based on the average Units outstanding
during the period since they were of varying dollar amounts and
percentages based upon the dates Limited Partners were admitted to
the Partnership and additional Units were purchased through the
distribution reinvestment plan (the "Plan").
See accompanying notes to consolidated financial statements.
BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED STATEMENTS OF PARTNERS' CAPITAL
For the period January 1, 1996 to September 30, 1997
General Limited
Partners Partners* Total
Balance, January 1, 1996 $70,772 $17,314,980 $17,385,752
Contributions, net -- 32,715 32,715
Selling commissions and
other offering costs -- (8,313) (8,313)
Net income 28,422 1,392,697 1,421,119
Cash distributions (21,042) (1,049,822) (1,070,864)
Balance, December 31, 1996 78,152 17,682,257 17,760,409
Net income 25,285 1,238,976 1,264,261
Cash distributions -- (1,083,557) (1,083,557)
Balance, September 30, 1997 $103,437 $17,837,676 $17,941,113
* Total Units sold at September 30, 1997 and December 31, 1996 were
2,230,375. Cash distributions to Limited Partners per Unit were
$0.49 and $0.47 for the nine months ended September 30, 1997 and
the year ended December 31, 1996, respectively. Cash
distributions to Limited Partners per Unit are based on the
average Units outstanding during the period since they were of
varying dollar amounts and percentages based upon the dates
Limited Partners were admitted to the Partnership and additional
Units were purchased through the Plan.
See accompanying notes to consolidated financial statements.
BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Nine Months Ended September 30,
1997 1996
Cash flows from operating activities:
Net income $1,264,261 $1,059,710
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 279,734 288,733
Minority interest's share of income from
Brauvin Chili's Limited Partnership 387 423
Equity interest in net income from:
Brauvin Bay County Venture (18,414) --
Brauvin Gwinnett County Venture (10,185) (10,157)
Decrease in rent receivables 841 --
Increase in deferred rent receivable (6,472) (6,472)
Decrease in due from affiliates -- 7,301
Decrease (increase) in other assets 2,690 (19,809)
Increase in accounts payable
and accrued expenses 33,428 92,775
Decrease in tenant security deposits (221,755) --
Increase in due to affiliate 1,920 --
(Decrease) increase in rent
received in advance (43,307) 3,762
Net cash provided by operating activities 1,283,128 1,416,266
Cash flows from investing activities:
Cash distribution from:
Brauvin Bay County Venture 26,520 --
Brauvin Gwinnett County Venture 11,585 11,521
Cash provided by investing activities 38,105 11,521
Cash flows from financing activities:
Sale of Units, net of liquidations
and selling commissions -- 25,848
Cash distributions to General Partners -- (21,042)
Cash distributions to Limited Partners (1,083,557) (1,049,588)
Cash distribution to minority interest -
Brauvin Chili's Limited Partnership (435) (410)
Net cash used in financing activities (1,083,992) (1,045,192)
Net increase in cash
and cash equivalents 237,241 382,595
Cash and cash equivalents at beginning
of period 1,442,263 1,069,555
Cash and cash equivalents
at end of period $1,679,504 $1,452,150
See accompanying notes to consolidated financial statements.
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BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
BRAUVIN INCOME PLUS L.P. III (the "Partnership") is a Delaware
limited partnership organized for the purpose of acquiring
debt-free ownership of existing, free-standing, income-producing
retail, office or industrial real estate properties predominantly
subject to "triple-net" leases. The General Partners of the
Partnership are Brauvin Realty Advisors III, Inc. and Jerome J.
Brault. Brauvin Realty Advisors III, Inc. is owned by Messrs.
Brault (beneficially) (50%) and Cezar M. Froelich (50%). Mr.
Froelich resigned as a director of Brauvin Realty Advisors III,
Inc. in December 1994 and as an Individual General Partner
effective as of September 17, 1996. Brauvin Securities, Inc., an
affiliate of the General Partners, was the selling agent for the
Partnership. The Partnership is managed by an affiliate of the
General Partners.
The Partnership was formed on July 31, 1989 and filed a
Registration Statement on Form S-11 with the Securities and
Exchange Commission which was declared effective on October 30,
1989. The sale of the minimum of $1,200,000 of limited partnership
interests of the Partnership (the "Units") necessary for the
Partnership to commence operations was achieved on January 15,
1990. The Partnership's offering was originally expected to close
on October 29, 1990 but the Partnership, with the receipt of the
necessary regulatory approval, extended the offering until it
closed on October 29, 1991. Through September 30, 1997 and
December 31, 1996, the Partnership has sold $22,766,719 of Units.
This total includes $1,459,119 of Units raised by Limited Partners
who utilized their distributions of Operating Cash Flow to purchase
additional Units through the distribution reinvestment plan (the
"Plan"). Units valued at $462,972, have been repurchased by the
Partnership from Limited Partners liquidating their investment in
the Partnership and have been retired as of September 30, 1997 and
December 31, 1996. As of September 30, 1997, the Plan participants
have acquired Units under the Plan which approximate 6% of the
total Units outstanding.
The Partnership has acquired the land and buildings underlying
five Ponderosa restaurants, two Chi-Chi's restaurants, one
International House of Pancakes restaurant, one Applebee's
restaurant, two Sports Unlimited stores, and three Steak n Shake
restaurants. The Partnership also acquired 99.5%, 6.4% and 34.0%
equity interests in three joint ventures with entities affiliated
with the Partnership. These ventures own the land underlying a
Chili's restaurant, a CompUSA store and a Blockbuster Video store,
respectively.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Management's Use of Estimates
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.
Accounting Method
The accompanying financial statements have been prepared using
the accrual method of accounting.
Rental Income
Rental income is recognized on a straight-line basis over the
life of the related leases. Differences between rental income
earned and amounts due per the respective lease agreements are
credited or charged as applicable to deferred rent receivable.
Federal Income Taxes
Under the provisions of the Internal Revenue Code, the
Partnership's income and losses are reportable by the partners on
their respective income tax returns. Accordingly, no provision is
made for Federal income taxes in the consolidated financial
statements. However, in certain instances, the Partnership has
been required under applicable state law to remit directly to the
tax authorities amounts representing withholding from distributions
paid to partners.
Consolidation of Joint Venture
The Partnership owns a 99.5% equity interest in one joint
venture, Brauvin Chili's Limited Partnership, which owns one
Chili's restaurant. The accompanying financial statements have
consolidated 100% of the assets, liabilities, operations and
partners' capital of Brauvin Chili's Limited Partnership. All
significant intercompany accounts have been eliminated.
Investment in Joint Venture
The Partnership owns a 6.4% and a 34.0% equity interest in two
joint ventures, Brauvin Gwinnett County Venture, which owns one
CompUSA store, and Brauvin Bay County Venture, which owns one
Blockbuster Video store, respectively. The accompanying financial
statements include the investments in Brauvin Gwinnett County
Venture and Brauvin Bay County Venture using the equity method of
accounting.
Investment in Real Estate
The operating properties acquired by the Partnership are stated
at cost including acquisition costs. Depreciation is recorded on
a straight-line basis over the estimated economic lives of the
properties which approximate 35 years.
In 1995, the Partnership adopted Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and Long-Lived Assets to be Disposed Of" (SFAS
121). The Partnership has performed an analysis of its long-lived
assets, and the Partnership's management determined that there were
no events or changes in circumstances that indicated that the
carrying amount of the assets may not be recoverable at June 30,
1997 and December 31, 1996. Accordingly, no impairment loss has
been recorded in the accompanying financial statements for the nine
months ended September 30, 1997 or the year ended December 31,
1996.
Organization and Offering Costs
Organization costs represent costs incurred in connection with
the organization and formation of the Partnership. Organization
costs were amortized over a period of five years using the
straight-line method. Offering costs represent costs incurred in
selling Units, such as the printing of the Prospectus and marketing
materials. Offering costs have been recorded as a reduction of
Limited Partners' Capital.
Prepaid offering costs represent amounts in excess of the defined
percentages of the gross proceeds. Prior to the commencement of
the Partnership's proxy solicitation (see Note 5), gross proceeds
were expected to increase due to the purchase of additional Units
through the Plan and the prepaid offering costs would be
transferred to offering costs and treated as a reduction in
Partners' Capital.
Cash and Cash Equivalents
Cash equivalents include all highly liquid debt instruments with
an original maturity within three months of purchase.
Estimated Fair Value of Financial Instruments
Disclosure of the estimated fair value of financial instruments
is made in accordance with the requirements of Statement of
Financial Accounting Standards No. 107, "Disclosures About Fair
Value of Financial Instruments." The estimated fair value amounts
have been determined by using available market information and
appropriate valuation methodologies. However, considerable
judgement is necessarily required in interpreting market data to
develop estimates of fair value.
The fair value estimates presented herein are based on
information available to management as of September 30, 1997, but
may not necessarily be indicative of the amounts that the
Partnership could realize in a current market exchange. The use of
different assumptions and/or estimation methodologies may have a
material effect on the estimated fair value amounts. Although
management is not aware of any factors that would significantly
affect the estimated fair value amounts, such amounts have not been
comprehensively revalued for purposes of these financial statements
since that date, and current estimates of fair value may differ
significantly from amounts presented herein.
The carrying amounts of the following items are a reasonable
estimate of fair value: cash and cash equivalents; rent receivable;
accounts payable and accrued expenses; tenant security deposits;
due to affiliate; and rent received in advance.
Reclassifications
Certain reclassifications have been made to the 1996 financial
statements to conform to classifications adopted in 1997.
(2) PARTNERSHIP AGREEMENT
Distributions
All Operating Cash Flow, as defined in the Partnership Agreement
(the "Agreement") shall be distributed: (a) first, to the Limited
Partners until the Limited Partners receive an amount equal to a
9-1/4% non-cumulative, non-compounded, annual return on Adjusted
Investment, as such term is defined in the Agreement, commencing on
the last day of the calendar quarter in which the Unit was
purchased (the "Current Preferred Return"); and (b) thereafter, any
remaining amounts will be distributed 98% to the Limited Partners
(on a pro rata basis) and 2% to the General Partners.
The net proceeds of a sale or refinancing of a Partnership
property shall be distributed as follows:
. first, pro rata to the Limited Partners until each Limited
Partner has received an amount equal to a 10.5% cumulative,
non-compounded, annual return of Adjusted Investment (the
"Cumulative Preferred Return");
. second, to the Limited Partners until each Limited Partner has
been paid an amount equal to his Adjusted Investment, as defined
in the Agreement, apportioned pro rata among the Limited
Partners based on the amount of the Adjusted Investment; and
. thereafter, 95% to the Limited Partners (apportioned pro rata
based on Units) and 5% to the General Partners.
Profits and Losses
Net profits and losses from operations of the Partnership
[computed without regard to any allowance for depreciation or cost
recovery deductions under the Internal Revenue Code of 1986, as
amended (the "Code")] for each taxable year of the Partnership
shall be allocated to each Partner in the same ratio as the cash
distributions received by such Partner attributable to that period
bears to the total cash distributed by the Partnership. In the
event that there are no cash distributions, net profits and losses
from operations of the Partnership (computed without regard to any
allowance for depreciation or cost recovery deductions under the
Code) shall be allocated 99% to the Limited Partners and 1% to the
General Partners. Notwithstanding the foregoing, all depreciation
and cost recovery deductions allowed under the Code shall be
allocated 2% to the General Partners and 98% to the Taxable Class
Limited Partners, as defined in the Agreement.
The net profit of the Partnership from any sale or other
disposition of a Partnership property shall be allocated (with
ordinary income being allocated first) as follows: (a) first, an
amount equal to the aggregate deficit balances of the Partners'
Capital Accounts, as such term is defined in the Agreement, shall
be allocated to each Partner who or which has a deficit Capital
Account balance in the same ratio as the deficit balance of such
Partner's Capital Account bears to the aggregate of the deficit
balances of all Partners' Capital Accounts; (b) second, to the
Limited Partners until the Capital Account balances of the Limited
Partners are equal to any unpaid Cumulative Preferred Return, as of
such date; (c) third, to the Limited Partners until the Capital
Account balances of the Limited Partners are equal to the sum of
the amount of their Adjusted Investment plus any unpaid Cumulative
Preferred Return; (d) fourth, to the General Partners until their
Capital Account balances are equal to any previously subordinated
fees; and (e) thereafter, 95% to the Limited Partners and 5% to the
General Partners. The net loss of the Partnership from any sale or
other disposition of a Partnership property shall be allocated as
follows: (a) first, an amount equal to the aggregate positive
balances in the Partners' Capital Accounts, to each Partner in the
same ratio as the positive balance in such Partner's Capital
Account bears to the aggregate of all Partners' positive Capital
Accounts balances; and (b) thereafter, 95% to the Limited Partners
and 5% to the General Partners.
(3) TRANSACTIONS WITH RELATED PARTIES
The Partnership pays an affiliate of the General Partners an
annual property management fee equal to up to 1% of gross revenues
derived from Partnership properties managed by such affiliate. The
property management fee is subordinated to receipt by the Limited
Partners of distributions of Operating Cash Flow in an amount equal
to the Current Preferred Return.
An affiliate of a former General Partner provided securities and
real estate counsel to the Partnership.
The Partnership pays affiliates of the General Partners selling
commissions of 7-1/2% of the capital contributions received for
Units sold by the affiliates.
The Partnership pays an affiliate of the General Partners an
acquisition fee in the amount of up to 5% of the gross proceeds of
the Partnership's offering for the services rendered in connection
with the process pertaining to the acquisition of a property.
Acquisition fees related to the properties not ultimately purchased
by the Partnership are expensed as incurred.
Fees, commissions and other expenses paid or payable to the
General Partners or its affiliates for the nine months ended
September 30, 1997 and 1996 were as follows:
1997 1996
Selling commissions $ -- $6,867
Management fees 17,887 17,234
Reimbursable operating expenses 79,870 83,800
Legal fees 197 4,229
Acquisition fees -- 19,179
As of September 30, 1997, the Partnership has made all payments
to affiliates except for $1,920 related to management fees.
(4) INVESTMENT IN JOINT VENTURES
The Partnership owns equity interests in the Brauvin Gwinnett
County Venture and the Brauvin Bay County Venture and reports its
investments on the equity method. The following are condensed
financial statements for the Brauvin Gwinnett County Venture and
the Bay County Venture:
BRAUVIN GWINNETT COUNTY VENTURE
September 30, 1997 December 31, 1996
Land and buildings, net $2,299,014 $2,330,758
Other assets 69,414 59,531
$2,368,428 $2,390,289
Liabilities $ 23,823 $ 23,820
Partners' capital 2,344,605 2,366,469
$2,368,428 $2,390,289
For the nine months ended September 30,
1997 1996
Rental income $205,483 $198,607
Expenses:
Depreciation 31,744 34,314
Management fees 2,178 1,656
Operating and
administrative 12,424 3,941
46,346 39,911
Net income $159,137 $158,696
<PAGE>
BRAUVIN BAY COUNTY VENTURE
September 30,1997 December 31, 1996
Land and buildings, net $1,057,470 $1,069,277
Other assets 1,532 13,531
$1,059,002 $1,082,808
Liabilities $ 1,191 $ 1,155
Partners' capital 1,057,811 1,081,653
$1,059,002 $1,082,808
For the nine months ended September 30,
1997
Rental and other income $82,628
Expenses:
Depreciation 11,807
Management fees 879
Operating and administrative 15,783
28,469
Net income $54,159
(5) MERGER AND LITIGATION
Merger
Pursuant to the terms of the an agreement and plan of merger
dated as of June 14, 1996, as amended March 24, 1997, June 30, 1997
and September 30, 1997(the "Merger Agreement") the Partnership
proposes to merge with and into the Brauvin Real Estate Funds
L.L.C., a Delaware limited liability company affiliated with
certain of the General Partners (the "Purchaser") through a merger
(the "Merger") of its Units. In connection with the Merger, the
Limited Partners will receive approximately $8.85 per Unit in cash.
Promptly upon consummation of the Merger, the Partnership will
cease to exist and the Purchaser, as the surviving entity, will
succeed to all of the assets and liabilities of the Partnership.
The Limited Partners holding a majority of the Units approved the
Merger on November 8, 1996. By approving the Merger, the Limited
Partners also approved an amendment of the Agreement allowing the
Partnership to sell or lease property to affiliates (this
amendment, together with the Merger shall be referred to herein as
the "Transaction").
The redemption price to be paid to the Limited Partners in
connection with the Merger is based on the fair market value of the
properties of the Partnership (the "Assets"). Cushman & Wakefield
Valuation Advisory Service ("Cushman & Wakefield"), an independent
appraiser, the largest real estate valuation and consulting
organization in the United States, was engaged by the Partnership
to prepare an appraisal of the Assets, to satisfy the Partnership's
requirements under the Employee Retirement Income Security Act of
1974, as amended. Cushman & Wakefield determined the fair market
value of the Assets to be $19,129,150, or $8.58 per Unit. The
redemption price of $8.85 per Unit also includes all remaining cash
of the Partnership, less net earnings of the Partnership from and
after August 1, 1996 through December 31, 1996, less the
Partnership's actual costs incurred and accrued through the
effective time of the filing of the certificate of merger,
including reasonable reserves in connection with: (i) the proxy
solicitation; (ii) the Transaction (as detailed in the Merger
Agreement); and (iii) the winding up of the Partnership, including
preparation of the final audit, tax return and K-1s (collectively,
the "Transaction Costs") and less all other Partnership
obligations.
The General Partners will not receive any payment in exchange for
the redemption of their general partnership interests nor will they
receive any fees from the Partnership in connection with the
Transaction. The Managing General Partner and his son, James L.
Brault, an executive officer of the Corporate General Partner, will
have a minority ownership interest in the Purchaser.
The Merger has not been completed primarily due to certain
litigation, as described below, that is still pending. The
General Partners believe that these lawsuits are without merit and,
therefore, continue to vigorously defend against them.
Following receipt of Limited Partner approval, the Purchaser
commenced the finalization of Purchaser's financing and its due
diligence review of the Assets and the assets of the Affiliated
Partnerships (as defined below). The due diligence process has
revealed certain concerns relating to potential environmental
problems at one of the the Affiliated Partnerships. The due
diligence review has also raised questions regarding the
interpretation of certain terms in the leases governing some of the
Partnership's and the Affiliated Partnerships' properties. A very
significant tenant is interpreting certain purchase options
contained in its leases in a way that would cause the value of the
properties leased by such tenant to be significantly below the
current appraised value. Members of management of the Partnership
and the Affiliated Partnerships have been working with the
Purchaser to assess these risks and to resolve them in a way that
will allow the Merger and the related transactions to be
consummated without any changes to the terms or the Merger price.
The Purchaser is continuing to assess certain lease provisions,
assess the costs and risks of the litigation discussed below, and
finalize its financing in light of these developments.
In accordance with the terms of the Merger Agreement, the General
Partners suspended all distributions to Limited Partners; however,
as a result of the unforeseen delays brought about by the
litigation and the due diligence issues highlighted above, the
General Partners felt it was appropriate that an earnings
distribution be made to the Limited Partners. Although the terms
of the Merger Agreement entered into by the Partnership and the
Purchaser provide that the Assets being acquired by the Purchaser
in connection with the Merger include all earnings of the
Partnership from and after August 1, 1996, the Purchaser has agreed
to allow the Partnership to make distributions to the Limited
Partners of net earnings for the period from and after January 1,
1997 until the Merger is consummated. In exchange, the Partnership
has agreed to extend the termination date of the Merger Agreement
to December 31, 1997 to allow the Purchaser time to complete its
due diligence. Notwithstanding the extension of the termination
date, the Partnership and the Purchaser continue to work through
the due diligence issues outlined above, with the intent of closing
the merger as soon as possible.
Distributions of the Partnership's net earnings for the periods
January 1, 1997 to March 31, 1997 and April 1, 1997 to June 30,
1997 were made to the Limited Partners on March 31, 1997 and July
15, 1997, respectively in the amounts of approximately $534,400 and
$533,000, respectively. A distribution of the Partnership's net
earnings for the period July 1, 1997 to September 30, 1997 was made
to the Limited Partners on October 22, 1997 in the amount of
approximately $470,600. Net earnings accruing after September 30,
1997 through the closing date will be included with the final cash
distribution to the Limited Partners from the Merger.
The lawsuit as described below has now been pending for
approximately 14 months. The suit continues to command the time,
attention and resources of the Partnership. The General Partners
believe the lawsuit is unfounded and without merit. The delay and
expense of this action continues to frustrate the will and majority
vote of the Limited Partners. Unfortunately, the General Partners
are unable to predict when this matter will be resolved, however
the delay is having an adverse effect on the Partnership today as
well as on future prospects.
For example, the 1997 distributions are based on the net earnings
of the Partnership for the nine months ended September 30, 1997.
These distributions are lower than they otherwise would be because
the Partnership has incurred significant legal costs to defend
against the lawsuit. The General Partners anticipate that these
costs will continue as long as the litigation is pending. In
addition, the remaining term on the Partnership's properties'
leases continue to shrink. This fact is causing the Partnership to
potentially face the risks and costs of lease rollover. This
heightened degree of risk may also have an adverse effect on the
ultimate value of the Assets. Further, the Partnership's most
significant tenant, Ponderosa, has recently closed and vacated
seven of the Affiliated Partnerships' properties. Fortunately, none
of the Partnership's properties has been closed. However, this is
the type of risk the Partnership was seeking to avoid with the
successful completion of the Merger.
Litigation
Three legal actions, as hereinafter described, were filed against
the General Partners and affiliates of such General Partners, as
well as against the Partnership on a nominal basis in connection
with the Merger. Each of these actions was brought by limited
partners of the Partnership. The Partnership and the General
Partners and their named affiliates deny all allegations set forth
in the complaints and are vigorously defending against such claims.
A. The Florida Lawsuit
On September 17, 1996, a lawsuit was filed in the Circuit Court
of the Seventeenth Judicial Circuit in and for Broward County,
Florida, styled Rebecca Scialpi and Helen Friedlander v. Jerome J.
Brault, Brauvin Realty Advisors, Inc., Brauvin Realty Advisors II,
Inc., Brauvin Realty Advisors III, Inc., and Brauvin Realty
Advisors IV, Inc., James L. Brault, and Brauvin Real Estate Funds,
L.L.C. and Brauvin High Yield Fund L.P., Brauvin High Yield Fund
L.P. II, Brauvin Income Plus L.P. III, and Brauvin Corporate Lease
Program IV, L.P., Docket No. 96012807. The Partnership and the
other affiliated partnerships named in this lawsuit (the
"Affiliated Partnerships") that are proposed to be a party to a
merger or sale with the Purchaser, are each named as a "Nominal
Defendant" in this lawsuit. The named plaintiffs are not limited
partners in the Partnership. Rather, the named plaintiffs are
limited partners in Brauvin High Yield Fund L.P. II, one of the
Affiliated Partnerships. Jerome J. Brault, the Managing General
Partner of the Partnership, and Brauvin Realty Advisors III, Inc.,
the Corporate General Partner of the Partnership, as well as
certain corporate general partners of the Affiliated Partnerships,
have been named as defendants in this lawsuit. James L. Brault, an
officer of the Corporate General Partner and the son of Jerome J.
Brault, is also named as a defendant.
Plaintiffs filed an amended complaint on October 8, 1996. The
amended complaint alleges a purported class action consisting of
claims for breach of fiduciary duties, fraud, breach of the
Agreement, and civil racketeering. The amended complaint seeks
injunctive relief, as well as compensatory and punitive damages,
relating to the proposed Transactions with the Purchaser. The
defendants have answered plaintiffs' amended complaint, and have
denied each of the plaintiffs' allegations of wrongful conduct.
On October 2, 1996, the plaintiffs in this action requested that
the Circuit Court enjoin the special meetings of the limited
partners and the proposed transactions with the Purchaser. This
motion was denied by the Circuit Court on October 8, 1996, and the
Florida appellate court denied plaintiffs' appeal of the Circuit
Court's October 8, 1996 ruling. There have been no material
developments with respect to this lawsuit since October 8, 1996.
B. The Illinois Christman Lawsuit
On September 18, 1996, a class action lawsuit was filed in the
United States District Court for the Northern District of Illinois,
styled M. Barbara Christman, Joseph Forte, Janet M. Toolson, John
Archbold, and Ben O. Carroll v. Brauvin Realty Advisors, Inc.,
Brauvin Realty Advisors II, Inc., Brauvin Realty Advisors III,
Inc., Brauvin Realty Advisors IV, Inc., Jerome J. Brault, Brauvin
Real Estate Funds, L.L.C. and Brauvin High Yield Fund L.P., Brauvin
High Yield Fund L.P. II, Brauvin Income Plus L.P. III, and Brauvin
Corporate Lease Program IV L.P., Docket No. 96C6025. The
Partnership and the Affiliated Partnerships are each named as a
"Nominal Defendant" in the lawsuit. Jerome J. Brault and the
Corporate General Partner of the Partnership, as well as the
corporate general partners of the Affiliated Partnerships, are
named as defendants.
The plaintiffs filed an amended complaint on October 8, 1996,
which alleges claims for breach of fiduciary duties, breaches of
the Agreement, and violation of the Illinois Deceptive Trade
Practices Act. The amended complaint seeks injunctive relief,
as well as compensatory and punitive damages, relating to the
proposed Transaction with the Purchaser.
On October 2, 1996, the District Court certified plaintiffs'
proposed class as all of the limited partners of the Partnership
and of the Affiliated Partnerships, and appointed plaintiffs'
counsel, The Mills Law Firm, as counsel for the class. On October
2, 1996, the District Court also conducted a hearing on plaintiffs'
motion to preliminarily enjoin the special meetings of the limited
partners and the proposed Transaction with the Purchaser. The
District Court denied plaintiffs' motion for a preliminary
injunction at the conclusion of the October 2, 1996 hearing.
On September 27, 1996, counsel for plaintiffs, The Mills Law
Firm, mailed a solicitation to all of the Limited Partners,
requesting that they revoke their previously-mailed proxies in
favor of the Merger. On October 11, 1996, the General Partners
filed a counterclaim against plaintiffs and their counsel, The
Mills Law Firm, alleging that plaintiffs and The Mills Law Firm
violated the federal securities laws and proxy rules by sending
their September 27, 1996 letter to the Limited Partners. The
plaintiffs and The Mills Law Firm have moved to dismiss this
counterclaim. The District Court has taken this motion under
advisement and has yet to issue a ruling.
On October 10 and 11, 1996, the District Court conducted an
evidentiary hearing on the motion of the General Partners to
invalidate revocations of proxies procured as a result of The Mills
Law Firm's September 27, 1996 letter. In that evidentiary hearing,
The Mills Law Firm admitted that it violated the proxy rules by
sending its September 27, 1996 letter to the Limited Partners
without filing such letter with the Commission in violation of the
Commission's requirements. At the conclusion of the hearing on
October 10 and 11, the District Court found that the General
Partners have a likelihood of succeeding on the merits with respect
to their claim that the September 27, 1996 letter sent to the
Limited Partners by plaintiffs and The Mills Law Firm is false or
misleading in several significant respects.
Notwithstanding this finding, the District Court did not
invalidate the revocations of proxies resulting from The Mills Law
Firm's September 27, 1996 letter because it did not believe it
possessed the authority to do so under present law. This ruling
was appealed to the Seventh Circuit Court of Appeals. The Seventh
Court of Appeals subsequently dismissed this appeal on the grounds
that the appeal was rendered moot by the Limited Partners' approval
November 8, 1996 of the Merger.
On October 16, 1996 and on November 6, 1996, the parties filed
cross-motions for partial summary judgement addressing the
allegation in plaintiffs' amended complaint that the Partnership
Agreement does not allow the Limited Partners to vote in favor of
or against the proposed Transaction with the Purchaser by proxy.
These cross-motions for partial summary judgement were taken under
advisement by the District Court, and the District Court has yet to
issue a ruling.
On April 2, 1997, the Court granted plaintiffs' leave to again
amend their complaint. In their second amended complaint,
plaintiffs have named the Partnership as a "Nominal Defendant."
Plaintiffs have also added a new claim, alleging that the General
Partners violated certain of the Commission's rules by making false
and misleading statements in the Proxy. Plaintiffs also allege
that the General Partners breached their fiduciary duties, breached
various provisions of the Agreement, violated the Illinois
Deceptive Trade Practice Act, and violated section 17-305 of the
Delaware Revised Uniform Limited Partnership Act. The General
Partners deny those allegations and will continue to vigorously
defend against these claims.
On April 2, 1997, plaintiffs again requested that the District
Court enjoin the closing of the Transaction with the Purchaser.
After conducting a lengthy hearing on May 1, 1997, the District
Court denied plaintiffs' motion to preliminarily enjoin the closing
of the Transaction with the Purchaser. Plaintiffs filed a notice
of appeal to the Seventh Circuit Court of Appeals from the District
Court's May 1, 1997 order denying plaintiffs' motion to
preliminarily enjoin the closing of the Transaction with the
Purchaser. This appeal is pending and the parties are currently
engaging in discovery.
C. The Scialpi Illinois Lawsuit
On June 20, 1997, another lawsuit was filed in the United States
District Court for the Northern District of Illinois, styled
Benjamin Siegel, Rebecca Scialpi, Helen Friedlander, and BHS &
Associates, Inc. v. Jerome J. Brault, Brauvin Realty Advisors,
Inc., Brauvin Realty Advisors II, Inc., Brauvin Realty Advisors
III, Inc., Brauvin Realty Advisors IV, Inc., James L. Brault,
Brauvin Real Estate Funds LLC, Brauvin High Yield Fund L.P.,
Brauvin High Yield Fund II L.P., Brauvin Income Plus L.P. III, and
Brauvin Corporate Lease Program IV, L.P. docket number 97 C 4450.
The Partnership and the Affiliated Partnerships are each named as
"Nominal Defendant" in the lawsuit, Jerome J. Brault and the
Corporate General Partner of the Partnership, as well as the
corporate general partners of the Affiliated Partnerships, have
been named as defendants in this lawsuit. James L. Brault, an
officer of the Corporate General Partner and the son of Jerome J.
Brault, is also named as a defendant.
Notably, the complaint was filed by two of the same parties,
Scialpi and Friedlander, who are plaintiffs in the Florida lawsuit,
which is described above. As also indicated above, Scialpi and
Friedlander are not limited partners of the Partnership, but are
limited partners in one of the Affiliated Partnerships, Brauvin
High Yield Fund L.P. II. On August 15, 1997 the plaintiffs filed
an amended complaint dropping Benjamin Siegel as a plaintiff. The
plaintiffs are also represented by the same lawyers that represent
them in the Florida lawsuit. Neither the complaint nor the amended
complaint has been served upon any of the defendants.
The complaint alleges a putative class action consisting of
claims that certain Commission rules were violated by making false
and misleading statements in the Proxy, the defendants breached
their fiduciary duties, and breached the Agreement. The complaint
was consolidated with the Christman lawsuit, which is described
above, pursuant to General Rule 2.31 of the United States District
Court of the Northern District of Illinois, and is presently
pending before Judge Gottschall.
Pursuant to the Agreement and Delaware law, the Partnership will
advance to the defendants their defense costs. The Corporate
General Partner has agreed to repay the Partnership for the
advances if it is ever determined that the parties were not
entitled to receive the advances. No estimate can reasonably be
made at this time of any potential liability from the litigation or
the costs of defense.
(6) SUBSEQUENT EVENT
On October 22, 1997, the Partnership paid Limited Partners a
distribution that totaled approximately $470,600.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
General
Certain statements in this Quarterly Report that are not
historical fact constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995.
Discussions containing forward-looking statements may be found in
this section. Without limiting the foregoing, words such as
"anticipates," "expects,""intends,""plans" and similar expressions
are intended to identify forward-looking statements. These
statements are subject to a number of risks and uncertainties.
Actual results could differ materially from those projected in the
forward-looking statements. The Partnership undertakes no
obligation to update these forward-looking statements to reflect
future events or circumstances.
Liquidity and Capital Resources
The Partnership commenced an offering to the public on October
30, 1989 of 2,500,000 Units. The offering was anticipated to close
on October 29, 1990 but was extended by the General Partners with
the necessary regulatory approval to October 29, 1991. The
Offering was conditioned upon the sale of $1,200,000, which was
achieved on January 15, 1990. The Offering closed on October 29,
1991 with the Partnership raising a cumulative total of
$21,307,600. Until the proxy solicitation process began, the
Partnership continued to raise additional funds through the Plan.
The Plan raised $1,459,119 as of September 30, 1997 and December
31, 1996 from Limited Partners investing their distributions of
Operating Cash Flow in additional Units, which process was
discontinued when the proxy solicitation process began. As of
September 30, 1997 and December 31, 1996, Units valued at $462,972
have been repurchased by the Partnership from Limited Partners
liquidating their investment in the Partnership and have been
retired.
The Partnership purchased the land, buildings and improvements
underlying five Ponderosa restaurants on January 19, 1990, February
16, 1990, March 19, 1990, April 24, 1990 and June 4, 1990,
respectively. In addition, the Partnership closed on the land,
buildings and improvements underlying two Chi-Chi's restaurants;
the first closed on March 12, 1991 and the second closed on March
27, 1991. The land, buildings and improvements underlying an IHOP
restaurant were purchased on April 26, 1991, an Applebee's
restaurant on June 5, 1991 (which was expanded in 1992), two Sports
Unlimited sporting goods stores on September 17, 1991, a Chili's
restaurant on February 7, 1992 and three Steak n Shake restaurants
on April 16, 1992.
On February 7, 1992, the Partnership purchased a 99.5% equity
interest in a joint venture with an affiliate, Brauvin Chili's
Limited Partnership, which owns one Chili's restaurant.
On November 9, 1993, the Partnership purchased a 6.4% interest
in a joint venture with affiliated public real estate limited
partnerships (the "Venture"). The Venture acquired the land and
building underlying a 25,000 square foot CompUSA computer
superstore from an unaffiliated seller.
On October 31, 1996, the Partnership purchased a 34% joint
venture equity interest in a joint venture with affiliated public
real estate limited partnerships, the Brauvin Bay County Venture.
The Brauvin Bay County Venture purchased real property upon which
is operated a newly constructed Blockbuster video store. The
property contains a 6,466 square foot building located on a 40,075
square foot parcel of land.
These operating properties are expected to generate cash flow
for the Partnership after deducting certain operating and general
and administrative expenses from their rental income. The
Partnership has no funds available to purchase additional property,
excluding those raised through the Plan.
Below is a table summarizing the four year historical data for
distribution rates per unit:
Distribution
Date 1997 (a) 1996 1995 1994
February 15 $.2396 $.2313 $.2313 $.2250
May 15 .2390 .2313 .2313 .2250
August 15 .2109 -- .2313 .2250
November 15 -- -- .2313 .2313
(a) The 1997 distributions were made on March 31, 1997, July 15,
1997 and October 22, 1997.
Should the Merger not occur, future increases in the
Partnership's distributions will largely depend on increased sales
at the Partnership's properties resulting in additional percentage
rent and, to a lesser extent, on rental increases, which will occur
due to increases in receipts from certain leases based upon
increases in the Consumer Price Index or scheduled increases of
base rent.
Pursuant to the terms of the Merger Agreement, the Limited
Partners will receive approximately $8.85 per Unit in cash.
Promptly upon consummation of the Merger, the Partnership will
cease to exist and the Purchaser, as the surviving entity will
succeed to all of the assets and liabilities of the Partnership.
The Limited Partners holding a majority of the Units approved the
Merger on November 8, 1996.
The Partnership drafted a proxy statement, which required
prior review and comment by the Commission, to solicit proxies for
use at the Special Meeting originally to be held at the offices of
the Partnership on September 24, 1996. As a result of various
pending legal issues, as described in legal proceedings, the
Special Meeting was adjourned to November 8, 1996 at 10:00 a.m.
The purpose of the Special Meeting was to vote upon the Merger and
certain other matters as described in the Proxy.
By approving the Merger, the Limited Partners also approved an
amendment of the Agreement allowing the Partnership to sell or
lease property to affiliates (this amendment, together with the
Merger shall be referred to herein as the "Transaction"). The
Delaware Revised Uniform Limited Partnership Act (the "Act")
provides that a merger must also be approved by the general
partners of a partnership, unless the limited partnership agreement
provides otherwise. Because the Agreement did not address this
matter, at the Special Meeting, Limited Partners holding a majority
of the Units were also asked to approve the adoption of an
amendment to the Agreement to allow the majority vote of the
Limited Partners to determine the outcome of the Transaction with
the Purchaser without the vote of the General Partners of the
Partnership. Such approval was also received. Neither the Act nor
the Agreement provides the Limited Partners not voting in favor of
the Transaction with dissenters' appraisal rights.
The redemption price to be paid to the Limited Partners in
connection with the Merger is based on the fair market value of the
properties of the Partnership (the "Assets"). Cushman & Wakefield
Valuation Advisory Services ("Cushman & Wakefield"), an independent
appraiser, the largest real estate valuation and consulting
organization in the United States, was engaged by the Partnership
to prepare an appraisal of the Assets, to satisfy the Partnership's
requirements under the Employee Retirement Income Security Act of
1974, as amended. Cushman & Wakefield determined the fair market
value of the Assets to be $19,129,150, or $8.58 per Unit. The
redemption price of $8.85 per Unit also includes all remaining cash
of the Partnership, less net earnings of the Partnership from and
after August 1, 1996 through December 31, 1996, less the
Partnership's actual costs incurred and accrued through the
effective time of the filing of the certificate of merger,
including reasonable reserves in connection with: (i) the proxy
solicitation; (ii) the Transaction (as detailed in the Merger
Agreement); and (iii) the winding up of the Partnership, including
preparation of the final audit, tax return and K-1s (collectively,
the "Transaction Costs") and less all other Partnership
obligations.
Cushman & Wakefield subsequently provided an opinion as to the
fairness of the Transaction to the Limited Partners from a
financial point of view. In its opinion, Cushman & Wakefield
advised that, the price per Unit reflected in the Transaction is
fair, from a financial point of view to the Limited Partners.
Cushman & Wakefield's determination that a price is "fair" does not
mean that the price is the highest price which might be obtained in
the marketplace, but rather that based on the appraised values of
the properties, the price reflected in the Transaction is believed
by Cushman & Wakefield to be reasonable.
The General Partners of the Partnership are Mr. Jerome J.
Brault, the Managing General Partner, and Brauvin Realty Advisors
III, Inc., the Corporate General Partner, Mr. Cezar M. Froelich
resigned his position as an Individual General Partner of the
Partnership effective as of September 17, 1996. The General
Partners will not receive any payment in exchange for the
redemption of their general partnership interests nor will they
receive any fees from the Partnership in connection with the
Transaction.
The Managing General Partner and his son, James L. Brault, an
executive officer of the Corporate General Partner, will have a
minority ownership interest in the Purchaser. Therefore, the
Messrs. Brault have an indirect economic interest in consummating
the Transaction that is in conflict with the economic interests of
the Limited Partners. Mr. Froelich has no affiliation with the
Purchaser.
Although the Special Meeting was held and the necessary
approvals received, the Merger has not been completed primarily due
to the lawsuits that are still pending (see Part II Item 1). The
General Partners believe that these lawsuits are without merit and,
therefore, continue to vigorously defend against them.
Following receipt of Limited Partner approval, the Purchaser
commenced the finalization of Purchaser's financing and its due
diligence review of the Assets and the assets of the Affiliated
Partnerships. The due diligence process has revealed certain
concerns relating to potential environmental problems at one of the
the Affiliated Partnerships. The due diligence review has also
raised questions regarding the interpretation of certain terms in
the leases governing some of the Partnership's and the Affiliated
Partnerships' properties. A very significant tenant is
interpreting certain purchase options contained in its leases in a
way that would cause the value of the properties leased by such
tenant to be significantly below the current appraised value.
Members of management of the Partnership and the Affiliated
Partnerships have been working with the Purchaser to assess these
risks and to resolve them in a way that will allow the Merger and
the related transactions to be consummated without any changes to
the terms or the Merger price. The Purchaser is continuing to
assess certain lease provisions, assess the costs and risks of the
litigation discussed below, and finalize its financing in light of
these developments.
In accordance with the terms of the Merger Agreement, the
General Partners suspended all distributions to Limited Partners,
however, as a result of the unforeseen delays brought about by the
litigation and the due diligence issues highlighted above, the
General Partners felt it was appropriate that an earnings
distribution be made to the Limited Partners. Although the terms
of the Merger Agreement entered into by the Partnership and the
Purchaser provides that the assets being acquired by the Purchaser
in connection with the merger include all earnings of the
Partnership from and after August 1, 1996, the Purchaser has agreed
to allow the Partnership to make distributions to the Limited
Partners of net earnings for the period from and after January 1,
1997 until the merger is consummated. In exchange, the Partnership
has agreed to extend the termination date of the Merger Agreement
to December 31, 1997 to allow the Purchaser time to complete its
due diligence. Notwithstanding the extension of the termination
date, the Partnership and the Purchaser continue to work through
the due diligence issues outlined above, with the intent of closing
the Merger as soon as possible. Net earnings accruing after
September 30, 1997 through the closing date will be included with
the final cash distribution to the Limited Partners from the
Merger.
Distributions of the Partnership's net earnings for the
periods January 1, 1997 to March 31, 1997 and April 1, 1997 to June
30, 1997 were made to the Limited Partners on March 31, 1997 and
July 15, 1997, respectively in the amounts of approximately
$534,400 and $533,000. A distribution of the Partnership's net
earnings for the period July 1, 1997 to September 30, 1997 was made
to the Limited Partners on October 22, 1997 in the amount of
approximately $470,600.
The litigation has now been pending for approximately 14
months. The suits continues to command the time, attention and
resources of the Partnership. The General Partners believe the
litigation is unfounded and without merit. The delay and expense
of this action continues to frustrate the will and majority vote of
the Limited Partners. Unfortunately, the General Partners are
unable to predict when this matter will be resolved, however, the
delay is having an adverse effect on the Partnership today as well
as on future prospects.
For example, the 1997 distributions are based on the net
earnings of the Partnership for the nine months ended September 30,
1997. These distributions are lower than they otherwise would be
because the Partnership has incurred significant legal costs to
defend against the lawsuits. The General Partners anticipate that
these costs will continue as long as the litigation is pending. In
addition, the remaining term on the Partnership's properties'
leases continue to shrink. This fact is causing the Partnership to
potentially face the risks and costs of lease rollover. This
heightened degree of risk may also have an adverse effect on the
ultimate value of the Assets. Further, the Partnership's most
significant tenant, Ponderosa, has recently closed and vacated
seven of the Affiliated Partnerships' properties. Fortunately, none
of the Partnership's properties has been closed. However, this is
the type of risk the Partnership was seeking to avoid with the
successful completion of the Merger.
In September 1997, one of the Partnership's properties located
in Elmhurst, Illinois sustained extensive fire damage. The
Partnership is currently negotiating with the insurance company and
the tenant on the disposition of the insurance proceeds and the
lease. The tenant continues to fulfill its rental obligations.
Further the Partnership has received inquires from potential
purchasers regarding this damaged property. The Partnership is
currently studying all its alternatives regarding this property.
Results of Operation - Nine months ended September 30, 1997 and
1996
Results of operations for the nine months ended September 30,
1997 reflected net income of $1,264,261 compared to $1,059,710 for
the nine months ended September 30, 1996, an increase of
approximately $204,600.
Total income for the nine months ended September 30, 1997 was
$1,787,084 as compared to $1,704,233 for the nine months ended
September 30, 1996, an increase of approximately $82,900. The
increase in total income was due primarily to an increase in rental
income as a result of increased percentage rents. Also adding to
the increase in total income was an increase in interest income as
a result of increased cash balances in 1997.
Total expenses for the nine months ended September 30, 1997
was $551,035 as compared to $654,257 for the nine months ended
September 30, 1996, a decrease of approximately $103,200. The
decrease in expenses was primarily the result of a decrease in
transaction costs and valuation fees. Partially offsetting this
decrease in expenses was an increase in general and administrative
expenses associated with the Partnership's attempt to resolve some
of the due diligence issues and related items associated with the
Merger, as discussed above.
Results of Operations - Three months ended September 30, 1997 and
1996
Results of operations for the three months ended September 30,
1997 reflected net income of $454,201 compared to $266,516 for the
three months ended September 30, 1996, an increase of approximately
$187,700.
Total income for the three months ended September 30, 1997 was
$621,742 as compared to $586,162 for the three months ended
September 30, 1996, an increase of approximately $35,600. The
increase in total income was mainly due to an increase in rental
income as a result of increased percentage rents. Also adding to
the increase in total income was an increase in interest income as
a result of increased cash balances in 1997.
Total expenses for the three months ended September 30, 1997
was $177,614 as compared to $322,998 for the three months ended
September 30, 1996, a decrease of approximately $145,400. The
decrease in expenses was primarily the result of a decrease in
transaction costs related to the Merger Agreement of approximately
$125,100.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings.
Three legal actions, as hereinafter described, were filed against
the General Partners of the Partnership and affiliates of such
General Partners, as well as against the Partnership on a nominal
basis in connection with the Merger. Each of these actions was
brought by limited partners of the Partnership. The Partnership
and the General Partners and their named affiliates deny all
allegations set forth in the complaints and are vigorously
defending against such claims.
A. The Florida Lawsuit
On September 17, 1996, a lawsuit was filed in the Circuit Court
of the Seventeenth Judicial Circuit in and for Broward County,
Florida, styled Rebecca Scialpi and Helen Friedlander v. Jerome J.
Brault, Brauvin Realty Advisors, Inc., Brauvin Realty Advisors II,
Inc., Brauvin Realty Advisors III, Inc., and Brauvin Realty
Advisors IV, Inc., James L. Brault, and Brauvin Real Estate Funds,
L.L.C. and Brauvin High Yield Fund L.P., Brauvin High Yield Fund
L.P. II, Brauvin Income Plus L.P. III, and Brauvin Corporate Lease
Program IV, L.P., Docket No. 96012807. The Partnership and the
other affiliated partnerships named in this lawsuit (the
"Affiliated Partnerships") that are proposed to be a party to a
merger or sale with the Purchaser, are each named as a "Nominal
Defendant" in this lawsuit. The named plaintiffs are not limited
partners in the Partnership. Rather, the named plaintiffs are
limited partners in Brauvin High Yield Fund L.P. II, one of the
Affiliated Partnerships. Jerome J. Brault, the Managing General
Partner of the Partnership, and Brauvin Realty Advisors III, Inc.,
the Corporate General Partner of the Partnership, as well as
certain corporate general partners of the Affiliated Partnerships,
have been named as defendants in this lawsuit. James L. Brault, an
officer of the Corporate General Partner and the son of Jerome J.
Brault, is also named as a defendant.
Plaintiffs filed an amended complaint on October 8, 1996. The
amended complaint alleges a purported class action consisting of
claims for breach of fiduciary duties, fraud, breach of the
Agreement, and civil racketeering. The amended complaint seeks
injunctive relief, as well as compensatory and punitive damages,
relating to the proposed transactions with the Purchaser. The
defendants have answered plaintiffs' amended complaint, and have
denied each of the plaintiffs' allegations of wrongful conduct.
On October 2, 1996, the plaintiffs in this action requested that
the Circuit Court enjoin the special meetings of the limited
partners and the proposed transactions with the Purchaser. This
motion was denied by the Circuit Court on October 8, 1996, and the
Florida appellate court denied plaintiffs' appeal of the Circuit
Court's October 8, 1996 ruling. There have been no material
developments with respect to this lawsuit since October 8, 1996.
B. The Illinois Christman Lawsuit
On September 18, 1996, a class action lawsuit was filed in the
United States District Court for the Northern District of Illinois,
styled M. Barbara Christman, Joseph Forte, Janet M. Toolson, John
Archbold, and Ben O. Carroll v. Brauvin Realty Advisors, Inc.,
Brauvin Realty Advisors II, Inc., Brauvin Realty Advisors III,
Inc., Brauvin Realty Advisors IV, Inc., Jerome J. Brault, Brauvin
Real Estate Funds, L.L.C. and Brauvin High Yield Fund L.P., Brauvin
High Yield Fund L.P. II, Brauvin Income Plus L.P. III, and Brauvin
Corporate Lease Program IV L.P., Docket No. 96C6025. The
Partnership and the Affiliated Partnerships are each named as a
"Nominal Defendant" in the lawsuit. Jerome J. Brault and the
Corporate General Partner of the Partnership, as well as the
corporate general partners of the Affiliated Partnerships, are
named as defendants.
The plaintiffs filed an amended complaint on October 8, 1996,
which alleges claims for breach of fiduciary duties, breaches of
the Agreement, and violation of the Illinois Deceptive Trade
Practices Act. The amended complaint seeks injunctive relief,
as well as compensatory and punitive damages, relating to the
proposed transaction with the Purchaser.
On October 2, 1996, the District Court certified plaintiffs'
proposed class as all of the limited partners of the Partnership
and of the Affiliated Partnerships, and appointed plaintiffs'
counsel, The Mills Law Firm, as counsel for the class. On October
2, 1996, the District Court also conducted a hearing on plaintiffs'
motion to preliminarily enjoin the special meetings of the limited
partners and the proposed Transaction with the Purchaser. The
District Court denied plaintiffs' motion for a preliminary
injunction at the conclusion of the October 2, 1996 hearing.
On September 27, 1996, counsel for plaintiffs, The Mills Law
Firm, mailed a solicitation to all of the Limited Partners,
requesting that they revoke their previously-mailed proxies in
favor of the Merger. On October 11, 1996, the General Partners
filed a counterclaim against plaintiffs and their counsel, The
Mills Law Firm, alleging that plaintiffs and The Mills Law Firm
violated the federal securities laws and proxy rules by sending
their September 27, 1996 letter to the Limited Partners. The
plaintiffs and The Mills Law Firm have moved to dismiss this
counterclaim. The District Court has taken this motion under
advisement and has yet to issue a ruling.
On October 10 and 11, 1996, the District Court conducted an
evidentiary hearing on the motion of the General Partners to
invalidate revocations of proxies procured as a result of The Mills
Law Firm's September 27, 1996 letter. In that evidentiary hearing,
The Mills Law Firm admitted that it violated the proxy rules by
sending its September 27, 1996 letter to the Limited Partners
without filing such letter with the Commission in violation of the
Commission's requirements. At the conclusion of the hearing on
October 10 and 11, the District Court found that the General
Partners have a likelihood of succeeding on the merits with respect
to their claim that the September 27, 1996 letter sent to the
Limited Partners by plaintiffs and The Mills Law Firm is false or
misleading in several significant respects.
Notwithstanding this finding, the District Court did not
invalidate the revocations of proxies resulting from The Mills Law
Firm's September 27, 1996 letter because it did not believe it
possessed the authority to do so under present law. This ruling
was appealed to the Seventh Circuit Court of Appeals. The Seventh
Court of Appeals subsequently dismissed this appeal on the grounds
that the appeal was rendered moot by the Limited Partners' approval
November 8, 1996 of the Merger.
On October 16, 1996 and on November 6, 1996, the parties filed
cross-motions for partial summary judgement addressing the
allegation in plaintiffs' amended complaint that the Partnership
Agreement does not allow the Limited Partners to vote in favor of
or against the proposed Transaction with the Purchaser by proxy.
These cross-motions for partial summary judgement were taken under
advisement by the District Court, and the District Court has yet to
issue a ruling.
On April 2, 1997, the Court granted plaintiffs' leave to again
amend their complaint. In their second amended complaint,
plaintiffs have named the Partnership as a "Nominal Defendant."
Plaintiffs have also added a new claim, alleging that the General
Partners violated certain of the Commission's rules by making false
and misleading statements in the Proxy. Plaintiffs also allege
that the General Partners breached their fiduciary duties, breached
various provisions of the Agreement, violated the Illinois
Deceptive Trade Practice Act, and violated section 17-305 of the
Delaware Revised Uniform Limited Partnership Act. The General
Partners deny those allegations and will continue to vigorously
defend against these claims.
On April 2, 1997, plaintiffs again requested that the District
Court enjoin the closing of the transaction with the Purchaser.
After conducting a lengthy hearing on May 1, 1997, the District
Court denied plaintiffs' motion to preliminarily enjoin the closing
of the Transaction with the Purchaser. Plaintiffs filed a notice
of appeal to the Seventh Circuit Court of Appeals from the District
Court's May 1, 1997 order denying plaintiffs' motion to
preliminarily enjoin the closing of the Transaction with the
Purchaser. This appeal is pending and the parties are currently
engaging in discovery.
C. The Scialpi Illinois Lawsuit
On June 20, 1997, another lawsuit was filed in the United States
District Court for the Northern District of Illinois, styled
Benjamin Siegel, Rebecca Scialpi, Helen Friedlander, and BHS &
Associates, Inc. v. Jerome J. Brault, Brauvin Realty Advisors,
Inc., Brauvin Realty Advisors II, Inc., Brauvin Realty Advisors
III, Inc., Brauvin Realty Advisors IV, Inc., James L. Brault,
Brauvin Real Estate Funds LLC, Brauvin High Yield Fund L.P.,
Brauvin High Yield Fund II L.P., Brauvin Income Plus L.P. III, and
Brauvin Corporate Lease Program IV, L.P. docket number 97 C 4450.
The Partnership and the Affiliated Partnerships are each named as
"Nominal Defendant" in the lawsuit, Jerome J. Brault and the
Corporate General Partner of the Partnership, as well as the
corporate general partners of the Affiliated Partnerships, have
been named as defendants in this lawsuit. James L. Brault, an
officer of the Corporate General Partner and the son of Jerome J.
Brault, is also named as a defendant.
Notably, the complaint was filed by two of the same parties,
Scialpi and Friedlander, who are plaintiffs in the Florida lawsuit,
which is described above. As also indicated above, Scialpi and
Friedlander are not limited partners of the Partnership, but are
limited partners in one of the Affiliated Partnerships, Brauvin
High Yield Fund L.P. II. On August 15, 1997 the plaintiffs filed
an amended complaint dropping Benjamin Siegel as a plaintiff. The
plaintiffs are also represented by the same lawyers that represent
them in the Florida lawsuit. Neither the complaint nor the amended
complaint has been served upon any of the defendants.
The complaint alleges a putative class action consisting of
claims that certain Commission rules were violated by making false
and misleading statements in the Proxy, the defendants breached
their fiduciary duties, and breached the Agreement. The complaint
was consolidated with the Christman lawsuit, which is described
above, pursuant to General Rule 2.31 of the United States District
Court of the Northern District of Illinois, and is presently
pending before Judge Gottschall.
Pursuant to the Agreement and Delaware law, the Partnership will
advance to the defendants their defense costs. The Corporate
General Partner has agreed to repay the Partnership for the
advances if it is ever determined that the parties were not
entitled to receive the advances. No estimate can reasonably be
made at this time of any potential liability from the litigation or
the costs of defense.
ITEM 2. Changes in Securities.
None.
ITEM 3. Defaults Upon Senior Securities.
None.
ITEM 4. Submission of Matters to a Vote of Security Holders.
None.
ITEM 5. Other Information.
None.
ITEM 6. Exhibits and Reports On Form 8-K.
Exhibit 27. Financial Data Schedule
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
l934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
BY: Brauvin Realty Advisors III, Inc.
Corporate General Partner of
Brauvin Income Plus L.P. III
BY: /s/ Jerome J. Brault
Jerome J. Brault
Chairman of the Board of Directors,
President and Chief Executive Officer
DATE: November 14, 1997
BY: /s/ B. Allen Aynessazian
B. Allen Aynessazian
Chief Financial Officer and Treasurer
DATE: November 14, 1997
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 1,679,504
<SECURITIES> 509,635 <F1>
<RECEIVABLES> 54,150
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 18,308,792 <F2>
<DEPRECIATION> 2,534,338
<TOTAL-ASSETS> 18,088,567
<CURRENT-LIABILITIES> 148,071
<BONDS> 0
0
0
<COMMON> 17,941,113 <F3>
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 18,088,567
<SALES> 0
<TOTAL-REVENUES> 1,787,084 <F4>
<CGS> 0
<TOTAL-COSTS> 551,035 <F5>
<OTHER-EXPENSES> (28,212) <F6>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,264,261
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> "SECURITIES" REPRESENTS INVESTMENT IN JOINT VENTURE
<F2> "PP&E" REPRESENTS INVESTMENT IN REAL ESTATE [LAND AND
BUILDING]
<F3> "COMMON" REPRESENTS TOTAL PARTNERS CAPITAL
<F4> "TOTAL REVENUES" REPRESENTS RENTAL, INTEREST, AND OTHER
INCOME
<F5> "TOTAL COSTS" REPRESENTS TOTAL EXPENSES
<F6> "OTHER EXPENSES" REPRESENTS MINORITY INTEREST AND JOINT
VENTURES' NET INCOME/LOSS
</FN>
</TABLE>
