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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 year ended March 31, 1999
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.)
30 North LaSalle Street, Chicago, Illinois 60602
(Address of principal executive offices) (Zip Code)
(312)759-7660
(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 March 31, 1999 and
December 31, 1998 . . . . . . . . . . . . . . . . . 4
Consolidated Statements of Operations for the three
months ended March 31, 1999 and 1998. . . . . . . . . 5
Consolidated Statements of Partners' Capital for
the periods January 1, 1998 to March 31, 1999 . . . 6
Consolidated Statements of Cash Flows for the three
months ended March 31, 1999 and 1998. . . . . . . . . 7
Notes to Consolidated Financial Statements. . . . . 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . 26
Item 3. Quantitative and Qualitative Disclosures about
Market Risk . . . . . . . . . . . . . . . . . . . . 34
PART II
Other Information
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . 35
Item 2. Changes in Securities . . . . . . . . . . . . . . . 40
Item 3. Defaults Upon Senior Securities . . . . . . . . . . 40
Item 4. Submissions of Matters to a Vote of Security Holders 40
Item 5. Other Information . . . . . . . . . . . . . . . . . 40
Item 6. Exhibits and Reports on Form 8-K. . . . . . . . . . 40
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . 41
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PART I - FINANCIAL INFORMATION
ITEM 1. Consolidated Financial Statements
Except for the December 31, 1998 Consolidated Balance Sheet, the
following Consolidated Balance Sheet as of March 31, 1999,
Consolidated Statements of Operations for the three months ended
March 31, 1999 and 1998, Consolidated Statements of Partners'
Capital for the periods January 1, 1998 to March 31, 1999 and
Consolidated Statements of Cash Flows for the three months ended
March 31, 1999 and 1998 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 1998 Annual Report on Form
10-K.
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BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED BALANCE SHEETS
March 31, December 31,
1999 1998
ASSETS
Investment in real estate, at cost:
Land $ 7,397,633 $ 7,397,633
Buildings and improvements 10,065,524 10,065,524
17,463,157 17,463,157
Less: Accumulated depreciation (2,980,737) (2,888,332)
Net investment in real estate 14,482,420 14,574,825
Investment in Joint Ventures (Note 4):
Brauvin Gwinnett County Venture 145,640 147,518
Brauvin Bay County Venture 356,046 355,532
Cash and cash equivalents 882,681 849,223
Rent receivable 4,922 7,992
Deferred rent receivable 63,597 59,407
Other assets 1,280 --
Prepaid offering costs 70,824 70,824
Total Assets $16,007,410 $16,065,321
LIABILITIES AND PARTNERS' CAPITAL
LIABILITIES:
Accounts payable and accrued expenses $ 271,775 $ 245,228
Rent received in advance 58,918 9,881
Tenant security deposits 51,626 51,626
Due to affiliate 2,292 1,587
Total Liabilities 384,611 308,322
Minority Interest in Brauvin
Chili's Limited Partnership (824) (768)
PARTNERS' CAPITAL:
General Partners 124,028 116,693
Limited Partners 15,499,595 15,641,074
Total Partners' Capital 15,623,623 15,757,767
Total Liabilities and Partners'
Capital $16,007,410 $16,065,321
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 March 31,
(Unaudited)
1999 1998
INCOME:
Rental $547,625 $563,595
Interest 6,225 8,382
Other 6,822 107
Total income 560,672 572,084
EXPENSES:
General and administrative 47,567 46,843
Management fees (Note 3) 6,100 5,838
Transaction costs (Note 5) 58,282 22,762
Depreciation 92,405 96,245
Total expenses 204,354 171,688
Income before gain on the sale of
property and minority interest and
equity interest in joint ventures 356,318 400,396
Gain on the sale of property -- 14,614
Income before minority interest and
equity interest in joint ventures 356,318 415,010
Minority interest share in Brauvin
Chili's Limited Partnership's net income (119) (96)
Equity interest in net income from:
Brauvin Bay County Venture 7,314 7,013
Brauvin Gwinnett County Venture 3,242 3,196
Net income $366,755 $425,123
Net income allocated to the
General Partners $ 7,335 $ 8,502
Net income allocated to the
Limited Partners $359,420 $416,621
Net income per Unit outstanding (a) $ 0.16 $ 0.19
(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 PARTNERS' CAPITAL
For the period January 1, 1998 to March 31, 1999
(Unaudited)
General Limited
Partners Partners* Total
Balance, January 1, 1998 $110,896 $16,469,102 $16,579,998
Net income 23,748 1,163,640 1,187,388
Return of capital
distribution -- (439,619) (439,619)
Cash distributions (17,951) (1,552,049) (1,570,000)
Balance, December 31, 1998 116,693 15,641,074 15,757,767
Net income 7,335 359,420 366,755
Cash distributions -- (500,899) (500,899)
Balance, March 31, 1999 $124,028 $15,499,595 $15,623,623
* Total Units sold at March 31, 1999 and December 31, 1998 were
2,230,375. Cash distributions to Limited Partners per Unit were
$0.22 and $0.69 for the three months ended March 31, 1999 and the
year ended December 31, 1998, respectively. In addition, a return
of capital distribution of approximately $0.20 per Unit was made
during the year ended December 31, 1998.
See accompanying notes to consolidated financial statements.
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BRAUVIN INCOME PLUS L.P. III
(a Delaware limited partnership)
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Three Months Ended March 31,
(Unaudited)
1999 1998
Cash flows from operating activities:
Net income $ 366,755 $ 425,123
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 92,405 96,245
Gain on the sale of property -- (14,614)
Minority interest's share of income from
Brauvin Chili's Limited Partnership 119 96
Equity interest in net income from:
Brauvin Bay County Venture (7,314) (7,013)
Brauvin Gwinnett County Venture (3,242) (3,196)
Changes in:
Rent receivables 3,070 5,555
Deferred rent receivable (4,190) (2,157)
Other assets (1,280) --
Accounts payable
and accrued expenses 26,547 (5,942)
Rent received in advance 49,037 501
Due to affiliates 705 1
Tenant security deposits -- (577)
Net cash provided by operating activities 522,612 494,022
Cash flows from investing activities:
Proceeds from the sale of property -- 150,000
Cash distribution from:
Brauvin Bay County Venture 6,800 8,840
Brauvin Gwinnett County Venture 5,120 3,648
Cash provided by investing activities 11,920 162,488
Cash flows from financing activities:
Cash distributions to General Partners -- (15,069)
Cash distributions to Limited Partners (500,899) --
Cash distribution to minority interest -
Brauvin Chili's Limited Partnership (175) (50)
Cash used in financing activities (501,074) (15,119)
Net increase in cash and
cash equivalents 33,458 641,391
Cash and cash equivalents at beginning
of period 849,223 463,110
Cash and cash equivalents at
end of period $882,681 $1,104,501
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
(Unaudited)
(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 March 31, 1998 and December
31, 1997, the Partnership has sold $22,766,719 of Units. This
total include $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 March 31, 1999 and
December 31, 1998. As of March 31, 1999, 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 (one of which was sold in 1998, see Note
6), 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.
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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 Partnership's rental properties 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.
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 March 31,
1999 and December 31, 1998. Accordingly, no impairment loss has
been recorded in the accompanying financial statements for the
three months ended March 31, 1999 and the year ended December 31,
1998.
Offering Costs
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 March 31, 1999 and
December 31, 1998, 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.
The carrying amounts of the following items are a reasonable
estimate of fair value: cash and cash equivalents; rent receivable;
other assets; accounts payable and accrued expenses; rent received
in advance; and due to affiliate.
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(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 one of the General Partners 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 three months ended March
31, 1999 and 1998 were as follows:
1999 1998
Management fees $ 6,100 $ 5,838
Reimbursable operating expenses 29,832 25,800
As of March 31, 1999 and December 31, 1998, the Partnership has
made all payments to affiliates except for $2,292 and $1,587,
respectively, related to management fees.
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(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
March 31, 1999 December 31, 1998
Land and buildings, net $2,227,816 $2,239,254
Other assets 66,026 85,048
$2,293,842 $2,324,302
Liabilities $ 23,914 $ 25,029
Partners' capital 2,269,928 2,299,273
$2,293,842 $2,324,302
Three months Ended March 31,
1999 1998
Rental and other income $68,066 $68,938
Expenses:
Depreciation 11,438 10,582
Management fees 658 446
Operating and
administrative 5,315 7,980
17,411 19,008
Net income $50,655 $49,930
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BRAUVIN BAY COUNTY VENTURE
March 31, December 31,
1999 1998
Land and buildings, net $1,029,530 $1,033,942
Other assets 30,423 17,330
$1,059,953 $1,051,272
Liabilities $ 11,465 $ 4,296
Partners' capital 1,048,488 1,046,976
$1,059,953 $1,051,272
Three months Ended March 31,
1999 1998
Rental and other income $27,313 $27,357
Expenses:
Depreciation 4,412 4,412
Management fees 501 291
Operating and
administrative 887 2,027
5,800 6,730
Net income $21,513 $20,627
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(5) MERGER AND LITIGATION
Merger
Pursuant to the terms of an agreement and plan of merger dated
as of June 14, 1996, as amended March 24,1997, June 30, 1997,
September 30, 1997, December 31, 1997, March 31, 1998 and June 30,
1998 (the "Merger Agreement"), the Partnership proposed to merge
with and into 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.
Although the Merger will not be consummated, the following text
describes the transaction. Promptly upon consummation of the
Merger, the Partnership would have ceased to exist and the
Purchaser, as the surviving entity, would succeed to all of the
assets and liabilities of the Partnership. The Limited Partners
holding a majority of units voted in favor of the Merger on
November 8, 1996. A majority of the Limited Partners also voted in
favor of an amendment of the Agreement allowing the Partnership to
sell or lease property to affiliates (this amendment, together with
the Merger shall be referred herein as the "Transaction").
However, as described below, on August 12, 1998, the District Court
in the Christman Litigation (as defined below) granted plaintiffs'
motion for partial summary judgement, holding that the Partnership
Agreement did not allow the Limited Partners to vote in favor or
against the Transaction.
The redemption price to be paid to the Limited Partners in
connection with the Merger was 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, on April 1, 1996. Subsequently, the Partnership purchased a
34% interest in Brauvin Bay County Venture. Based on the terms of
the Merger Agreement, the fair market value of the Assets was to
be increased by the amount of the investment in Brauvin Bay County
Venture, and correspondingly, the Partnership's cash holdings were
to be reduced by the same amount and, therefore, the total
redemption amount would remain unchanged. The redemption price of
$8.85 per Unit also included 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. Of the total redemption price
stated above, approximately $0.27 was distributed to Limited
Partners in the December 31, 1997 distribution.
The General Partners were not to receive any payment in exchange
for the redemption of their general partnership interests nor would
they have received 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,
were to have a minority ownership interest in the Purchaser.
The Merger was not completed primarily due to certain
litigation, as described below, that was still pending at December
31, 1998. The General Partners believe that these lawsuits are
without merit and, therefore, continue to vigorously defend against
them. Because of the August 12, 1998 rulings of the District Court
in the Christman Litigation, as described below, it is not possible
for the Merger to be consummated.
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.
Additionally, on September 3, 1998, the Partnership sold this
property to an unaffiliated third party for a sales price of
approximately $300,000, which resulted in a loss on the sale of
approximately $289,500.
Distributions of the Partnership's net earnings for the periods
January 1, 1998 to March 31, 1998, April 1, 1998 to June 30, 1998,
July 1, 1998 to September 30, 1998 and October 1, 1998 to December
31, 1998 were made to Limited Partners on May 8, 1998, August 15,
1998 , November 15, 1998 and February 15, 1999, respectively, in
the amounts of approximately $525,800, $361,400, $644,100 and
$500,900. In addition, distributions of approximately $21,500 were
paid to various states for income taxes on behalf of all Limited
Partners in 1998.
A distribution of the Partnership's net earnings for the periods
January 1, 1999 to March 31, 1999 was made to Limited Partners on
May 17, 1999, in the amount of approximately $512,200.
Litigation
Two legal actions, as hereinafter described, were pending at
December 31, 1998 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, with
regard to the Illinois Christman lawsuit, as described below. On
April 13, 1999, all the parties to the litigation reached an
agreement to settle the litigation, subject to the approval by the
United States District Court for the Northern District of Illinois.
Management believes that the settlement will not have a material
financial impact on the Partnership. The terms of the settlement
agreement, along with a Notice to the Class, will be forwarded to
the Limited Partners in the second quarter. One additional legal
action, which was dismissed on January 28, 1998 had also been
brought against the General Partners of the Partnership and
affiliates of such General Partners, as well as the Partnership on
a nominal basis in connection with the Merger. With respect to
these actions the Partnership and the General Partners and their
named affiliates denied all allegations set forth in the complaints
and are vigorously defended against such claims.
A. The Dismissed 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 were proposed to be a party to a
merger or sale with the Purchaser, were each named as a "Nominal
Defendant" in this lawsuit. The named plaintiffs were 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,
were named as defendants in this lawsuit. James L. Brault, an
officer of the Corporate General Partner and the son of Jerome J.
Brault, was also named as a defendant. This lawsuit was dismissed
for want of prosecution on January 28, 1998.
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
Transaction.
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 Transaction. 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 (as defined below)
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
Circuit 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 Agreement does
not allow the Limited Partners to vote in favor of or against the
Transaction by proxy. On August 12, 1998, the District Court
granted plaintiffs' motion for partial summary judgement, holding
that the Agreement did not allow the Limited Partners to vote in
favor or against the Transaction by proxy.
On April 2, 1997, the Court granted plaintiffs' leave to again
amend their complaint. In their second amended complaint,
plaintiffs named the Partnership as a "Nominal Defendant."
Plaintiffs also added a new claim, alleging that the General
Partners violated certain of the rules of the Securities and
Exchange Commission (the "Commission") 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. 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. This appeal
was dismissed by the Seventh Circuit Court of Appeals on January
23, 1998, based on the appellate court's finding that the District
Court's order of January 16, 1998 rendered the appeal moot.
On January 16, 1998, by agreement of the Partnership and the
General Partners and pursuant to a motion of the General Partners,
the District Court entered an order preventing the Partnership and
the General Partners from completing the Merger, or otherwise
disposing of all or substantially all of the Partnership's assets,
until further order of the Court.
On January 28, 1998, the District Court entered an Order of
Reference to Special Master, designating a Special Master and
vesting the Special Master with authority to resolve certain
aspects of the lawsuit subject to the District Court's review and
confirmation. The Special Master was empowered to determine how
the assets of the Partnership should be sold or disposed of in a
manner which allows the Limited Partners to maximize their
financial return in the shortest practicable time frame. In
addition, early in the second quarter of 1998, the Special Master
retained a financial advisor (the "Financial Advisor"), at the
expense of the Partnership, to assist the Special Master. The
Financial Advisor was engaged to perform a valuation of the
Partnership. The cost to the Partnership for the services of the
Financial Advisor is $110,000.
On August 4, 1998, the Special Master filed a Report and
Recommendation with the District Court, expressing the Special
Master's recommendation that the Partnership's properties be
disposed of in an auction conducted by the Financial Advisor under
the direction of the Special Master. The District Court accepted
this Report and Recommendation. On November 4, 1998, the Special
Master filed an additional Report and Recommendation with the
District Court, requesting that the Court withdraw its Order of
Reference to Special Master on the grounds it would be impossible
to effect the sale of the Partnerships in a manner that maximizes
the financial return to Limited Partners in a short time frame,
unless certain litigation issues are resolved. The District Court
has accepted this Report and Recommendation.
On January 21, 1999, plaintiffs filed another amended complaint,
adding additional claims against the General Partners and seeking
class certification under Federal Rule 23 as to the newly added
claims, and as to all other claims in plaintiffs' complaint which
had not been previously certified. The District Court granted
plaintiffs' request for class certification as to all of the claims
not previously certified, and certified all of the claims of the
plaintiffs' complaint under Rule 23(b)(1), 23(b)(2)and 23(b)(3).
In addition, pursuant to the General Partners' motion, the
District Court dismissed as moot certain of plaintiffs' claims,
including plaintiffs' claim that the General Partners violated
certain of the rules of the Securities and Exchange Commission by
allegedly making false and misleading statements in the Proxy. The
District Court similarly dismissed as moot a counterclaim that had
been made against class plaintiffs and their counsel for violating
the federal securities laws.
On April 13, 1999, all of the parties reached a Settlement
Agreement encompassing all matters in the lawsuit. The Settlement
Agreement is subject to the approval by the District Court, and the
Limited Partners will be provided with a written notice concerning
its terms. The settlement will not have a material financial
impact on the Partnership.
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 were plaintiffs in the Florida
lawsuit, which is described above. As also described above,
Scialpi and Friedlander are not limited partners in 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 represented them in the Florida lawsuit.
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. The General Partners
deny these allegations and intend to vigorously defend these
claims. There have been no material developments with respect to
this lawsuit since it was filed on June 20, 1997; however,
management believes that the terms of the April 13, 1999 settlement
agreement described above will encompass this lawsuit.
(6) PROPERTY SALES
On March 18, 1998, the Partnership sold approximately .332 acres
of land on which a Steak-n-Shake restaurant is situated to an
unaffiliated third party for approximately $150,000, resulting in
a gain of approximately $14,600.
On September 3, 1998, the Partnership sold the Elmhurst,
Illinois property to an unaffiliated third party for approximately
$300,000, resulting in a loss of approximately $289,500. The
Partnership continues to negotiate with the insurance company and
the tenant on the disposition of the insurance proceeds as a result
of the September, 1997, fire at this property.
<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.
Without limiting the foregoing, words such as "anticipates,"
"expects,""intends,""plans" and similar expressions are intended to
identify forward-looking statements. Theses 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.
Year 2000
The "Year 2000" problem concerns the inability of computer
technology systems to correctly identify and process date sensitive
information beyond December 31, 1999. Many computers
automatically add the "19" prefix to the last two digits the
computer reads for the year when date information is needed in
computer software programs. Thus when a date beginning on January
1, 2000 is entered into a computer, the computer may interpret this
date as the year "1900" rather than "2000".
The Partnership's computer information technology systems
consists of a network of personal computers linked to a server
built using hardware and software from mainstream suppliers. The
Partnership does not own any equipment that contains embedded
microprocessors, which may also pose a potential Year 2000 problem.
Additionally, the Partnership has no internally generated software
coding to correct as all of the Partnership's software is purchased
and licensed from external providers. These external providers
have assured management that their systems are, or will be, Year
2000 compliant.
The Partnership has two main software packages that contain date
sensitive information, (i) accounting and (ii) investor relations.
In 1997, the Partnership initiated and completed the conversion
from its existing accounting software to a new software program
that is Year 2000 compliant. In 1998, the investor relations
software was also updated to a new software program that is Year
2000 compliant. Management has determined that the Year 2000 issue
will not pose significant operational problems for its remaining
computer software systems. All costs associated with these
conversions are expensed as incurred, and are not material.
Management does not believe that any further expenditures will be
necessary for the Partnership to be Year 2000 compliant. However,
additional personal computers may be purchased from time to time to
replace existing machines.
Also in 1997, management of the Partnership initiated formal
communications with all of its significant third party vendors,
service providers and financial institutions to determine the
extent to which the Partnership is vulnerable to those third
parties failure to remedy their own Year 2000 issue. There can be
no guarantee that the systems of these third parties will be timely
converted and would not have an adverse effect on the Partnership.
The most reasonably likely worst case scenario for the
Partnership with respect to the Year 2000 issue would be the
inability of certain tenants to timely make their rental payments
beginning in January 2000. This could result in the Partnership
temporarily suffering a depletion of the Partnership's cash
reserves as expenses will need to be paid while the cash flows from
revenues are delayed. The Partnership has no formal Year 2000
contingency plan.
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 through March 31, 1999 from Limited
Partners investing their distributions of Operating Cash Flow in
additional Units. As of March 31, 1999, Units valued at $462,972
have been repurchased by the Partnership from Limited Partners
liquidating their investment in the Partnership and have been
retired. Additionally, a return of capital distribution of $439,619
was distributed by the Partnership to Limited Partners during the
year ended December 31, 1998.
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 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.
Distributions of the Partnership's net earnings for the period
January 1, 1999 to March 31, 1999 was made to Limited Partners on
May 17, 1999 in the amount of approximately $512,200.
Distributions of the Partnership's net earnings for the period
January 1, 1998 to March 31, 1998, April 1, 1998 to June 30, 1998,
July 1, 1998 to September 30, 1998 and October 1, 1998 to December
31, 1998 were made to Limited Partners on May 8, 1998, August 15,
1998, November 15, 1998 and February 15, 1999, respectively, in the
amounts of approximately $525,000, $361,400, $644,100 and $500,900.
In addition, distributions of approximately $21,500 were paid to
various states for income taxes on behalf of all Limited Partners
during 1998.
Below is a table summarizing the four year historical data for
distribution rates per unit:
Distribution
Date 1999 (a) 1998 (b) 1997 (c) 1996
February 15 $.2246 $ -- $.2396 $.2313
May 15 .2296 .2368 .2390 .2313
August 15 -- .1621 .2190 --
November 15 (d) -- .2888 .5665 --
(a) The 1999 May distribution was made on May 17, 1999
(b) The 1998 distributions were made on May 8, 1998, August 15,
1998, November 15, 1998 and February 15, 1999.
(c) The 1997 distributions were made on March 31, 1997, July 15,
1997, October 22, 1997 and December 31, 1997.
(d) The November 15, 1998 distribution above does not include a
return of capital distribution of approximately $0.1971, per
Unit.
Per the terms of the Merger, the Partnership's net earnings from
April 1996 through July 1996 were to be distributed to the Limited
Partners in conjunction with the closing of the Merger. However,
because of the lengthy delay and the uncertainty of the ultimate
closing date, the General Partners decided to make a significant
distribution on December 31, 1997 of the Partnership's earnings.
Included in the December 31, 1997 distribution was any prior period
earnings including amounts previously reserved for anticipated
closing costs.
Based on the August 12, 1998 ruling of the District Court in the
Christman Litigation, the reserves will be re-established by the
Partnership as soon as a definitive sale process has been
determined and associated costs and reserves can be identified.
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.
During the three months ended March 31, 1999 and the year ended
December 31, 1998, the General Partners and their affiliates earned
management fees of $6,100, $23,172, respectively, and received $0
and $17,951 in Operating Cash Flow distributions for the three
months ended March 31, 1999 and the year ended December 31, 1998,
respectively. Included in the $17,951 received in 1998 was
approximately $15,100 the Partnership paid the General Partners as
an Operating Cash Flow distribution for the year ended December 31,
1997.
Although the Merger will not be consummated, the following text
describes the Transaction. Pursuant to the terms of the Agreement,
the Limited Partners would have received approximately $8.85 per
Unit in cash; of this original amount, approximately $0.27 has
already been distributed to the Limited Partners. Promptly upon
consummation, the Partnership would have ceased to exist and the
Purchaser, as the surviving entity, would have succeeded to all of
the assets and liabilities of the Partnership.
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 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 would have
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. 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 was 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, on April 1, 1996. Subsequently, the Partnership purchased a
34% interest in Brauvin Bay County Venture. Based on the terms of
the Merger Agreement, the fair market value of the Assets will be
increased by the amount of the investment in Brauvin Bay County
Venture, and correspondingly, the Partnership's cash holdings were
reduced by the same amount and therefore the total redemption
amount would remain unchanged. The redemption price of $8.85 per
Unit also included 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. Of the original cash redemption amount
approximately $0.27 was distributed to Limited Partners in the
December 31, 1997 distribution.
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 was
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 was 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 was
believed by Cushman & Wakefield to be reasonable.
Mr. Jerome J. Brault is the Managing General Partner and Brauvin
Realty Advisors III, Inc. is 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 were not to receive any payment in exchange for
the redemption of their general partnership interests nor were they
to receive any fees from the Partnership in connection with the
Transaction. The remaining General Partners do not believe that
Mr. Froelich's lack of future involvement will have any adverse
effect on the Partnership.
The Managing General Partner and his son, James L. Brault, an
executive officer of the Corporate General Partner, were to have a
minority ownership interest in the Purchaser. Therefore, the
Messrs. Brault had an indirect economic interest in consummating
the Transaction that was 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 an affirmative vote of
the majority of the Limited Partners was received, the District
Court in the Christman Litigation ruled on August 12, 1998 in favor
of the Plaintiff's motion for partial summary judgement, holding
the Partnership Agreement did not allow the Limited Partners to
vote in favor or against the Transaction by proxy.
As discussed in "Legal Proceedings", all the parties to the
litigation reached an agreement to settle the litigation, subject
to the approval by the United States District Court for the
Northern District of Illinois.
The 1999 and 1998 distributions were based on the net earnings
of the Partnership for the three months ended March 31, 1999 and
the year ended December 31, 1998, respectively. These distributions
were lower than they otherwise would be because the Partnership has
incurred significant legal costs to defend against the lawsuits.
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 six
of the Affiliated Partnerships' properties. However, subsequent to
their closings, two properties have been reopened and subleased to
two unrelated local concept restaurant operators and two have been
sold to unaffiliated third parties. Fortunately, none of the
Partnership's properties has been closed, with the exception of the
Elmhurst property (as described below). 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 property 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. On
September 3, 1998, the Partnership sold the Elmhurst property to an
unaffiliated third party for approximately $300,000, resulting in
a loss of approximately $289,500.
As detailed in "Legal Proceedings" on January 16, 1998, by
agreement of the Partnership and the General Partners and pursuant
to a motion of the General Partners, the District Court entered an
order preventing the Partnership and the General Partners from
completing the Merger, or otherwise disposing of all or
substantially all of the Partnership's assets, until further order
of the Court.
On January 28, 1998, the District Court entered an Order of
Reference to Special Master, designating a Special Master and
vesting the Special Master with authority to resolve certain
aspects of the lawsuit subject to the District Court's review and
confirmation. The Special Master has been empowered to determine
how the assets of the Partnership should be sold or disposed of in
a manner which allows the Limited Partners to maximize their
financial return in the shortest practicable time frame. In
addition, early in the second quarter of 1998, the Special Master
retained a financial advisor (the "Financial Advisor"), at the
expense of the Partnership, to assist the Special Master. The
Financial Advisor was engaged to perform a valuation of the
properties of the Partnership as well as a valuation of the
Partnership. The cost to the Partnership for the services of the
Financial Advisor was $110,000.
On August 4, 1998 the Special Master filed a Report and
Recommendation with the District Court expressing the Special
Master's recommendation that the Partnership's properties be
disposed of in an auction conducted by the Financial Advisor under
the direction of the Special Master. The District Court accepted
this Report and Recommendation. On November 4, 1998, the Special
Master filed an additional Report and Recommendation with the
District Court, requesting that the Court withdraw its Order of
Reference to Special Master on the grounds it would be impossible
to effect the sale of the Partnership's properties in a manner that
maximizes the financial return to Limited Partners in a short time
frame, unless certain litigation issues are resolved. The District
Court has accepted this Report and Recommendation.
Results of Operations - Three months ended March 31, 1999 and 1998
Results of operations for the three months ended March 31, 1999
reflected net income of $366,755 compared to $425,123 for the three
months ended March 31, 1998, a decrease of approximately $58,400.
Total income for the three months ended March 31, 1999 was
$560,672 as compared to $572,084 for the three months ended March
31, 1998, an decrease of approximately $11,400. The decrease in
total income was mainly due to an decrease in rental income as a
result of the loss of rental revenue associated with the sale of
the Elmhurst, Illinois property.
Total expenses for the three months ended March 31, 1999 were
$204,354 as compared to $171,688 for the three months ended March
31, 1998, an increase of approximately $32,700. The increase in
expenses was due to a increase in Transaction costs related to the
professional fees associated with the settlement of the class
action lawsuit.
Item 3. Quantitative and Qualitative Disclosures about Market
Risk.
The Partnership does not engage in any hedge transactions or
derivative financial instruments.
<PAGE>
Part II
Item 1. Legal Proceedings.
Two legal actions, as hereinafter described, were pending at
December 31, 1998 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, with
regard to the Illinois Christman lawsuit, as described below. On
April 13, 1999, all the parties to the litigation reached an
agreement to settle the litigation, subject to the approval by the
United States District Court for the Northern District of Illinois.
Management believes that the settlement will not have a material
financial impact on the Partnership. The terms of the settlement
agreement, along with a Notice to the Class, will be forwarded to
the Limited Partners in the second quarter. One additional legal
action, which was dismissed on January 28, 1998 had also been
brought against the General Partners of the Partnership and
affiliates of such General Partners, as well as the Partnership on
a nominal basis in connection with the Merger. With respect to
these actions the Partnership and the General Partners and their
named affiliates denied all allegations set forth in the complaints
and are vigorously defended against such claims.
A. The Dismissed 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 were proposed to be a party to a
merger or sale with the Purchaser, were each named as a "Nominal
Defendant" in this lawsuit. The named plaintiffs were 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,
were named as defendants in this lawsuit. James L. Brault, an
officer of the Corporate General Partner and the son of Jerome J.
Brault, was also named as a defendant. This lawsuit was dismissed
for want of prosecution on January 28, 1998.
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
Transaction.
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 Transaction. 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 (as defined below)
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
Circuit 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 Agreement does
not allow the Limited Partners to vote in favor of or against the
Transaction by proxy. On August 12, 1998, the District Court
granted plaintiffs' motion for partial summary judgement, holding
that the Agreement did not allow the Limited Partners to vote in
favor or against the Transaction by proxy.
On April 2, 1997, the Court granted plaintiffs' leave to again
amend their complaint. In their second amended complaint,
plaintiffs named the Partnership as a "Nominal Defendant."
Plaintiffs also added a new claim, alleging that the General
Partners violated certain of the rules of the Securities and
Exchange Commission (the "Commission") 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. 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. This appeal
was dismissed by the Seventh Circuit Court of Appeals on January
23, 1998, based on the appellate court's finding that the District
Court's order of January 16, 1998 rendered the appeal moot.
On January 16, 1998, by agreement of the Partnership and the
General Partners and pursuant to a motion of the General Partners,
the District Court entered an order preventing the Partnership and
the General Partners from completing the Merger, or otherwise
disposing of all or substantially all of the Partnership's assets,
until further order of the Court.
On January 28, 1998, the District Court entered an Order of
Reference to Special Master, designating a Special Master and
vesting the Special Master with authority to resolve certain
aspects of the lawsuit subject to the District Court's review and
confirmation. The Special Master was empowered to determine how
the assets of the Partnership should be sold or disposed of in a
manner which allows the Limited Partners to maximize their
financial return in the shortest practicable time frame. In
addition, early in the second quarter of 1998, the Special Master
retained a financial advisor (the "Financial Advisor"), at the
expense of the Partnership, to assist the Special Master. The
Financial Advisor was engaged to perform a valuation of the
Partnership. The cost to the Partnership for the services of the
Financial Advisor is $110,000.
On August 4, 1998, the Special Master filed a Report and
Recommendation with the District Court, expressing the Special
Master's recommendation that the Partnership's properties be
disposed of in an auction conducted by the Financial Advisor under
the direction of the Special Master. The District Court accepted
this Report and Recommendation. On November 4, 1998, the Special
Master filed an additional Report and Recommendation with the
District Court, requesting that the Court withdraw its Order of
Reference to Special Master on the grounds it would be impossible
to effect the sale of the Partnerships in a manner that maximizes
the financial return to Limited Partners in a short time frame,
unless certain litigation issues are resolved. The District Court
has accepted this Report and Recommendation.
On January 21, 1999, plaintiffs filed another amended complaint,
adding additional claims against the General Partners and seeking
class certification under Federal Rule 23 as to the newly added
claims, and as to all other claims in plaintiffs' complaint which
had not been previously certified. The District Court granted
plaintiffs' request for class certification as to all of the claims
not previously certified, and certified all of the claims of the
plaintiffs' complaint under Rule 23(b)(1), 23(b)(2)and 23(b)(3).
In addition, pursuant to the General Partners' motion, the
District Court dismissed as moot certain of plaintiffs' claims,
including plaintiffs' claim that the General Partners violated
certain of the rules of the Securities and Exchange Commission by
allegedly making false and misleading statements in the Proxy. The
District Court similarly dismissed as moot a counterclaim that had
been made against class plaintiffs and their counsel for violating
the federal securities laws.
On April 13, 1999, all of the parties reached a Settlement
Agreement encompassing all matters in the lawsuit. The Settlement
Agreement is subject to the approval by the District Court, and the
Limited Partners will be provided with a written notice concerning
its terms. The settlement will not have a material financial
impact on the Partnership.
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 were plaintiffs in the Florida
lawsuit, which is described above. As also described above,
Scialpi and Friedlander are not limited partners in 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 represented them in the Florida lawsuit.
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. The General Partners
deny these allegations and intend to vigorously defend these
claims. There have been no material developments with respect to
this lawsuit since it was filed on June 20, 1997; however,
management believes that the terms of the April 13, 1999 settlement
agreement described above will encompass this lawsuit.
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: May 17, 1999
BY: /s/ Thomas E. Murphy
Thomas E. Murphy
Chief Financial Officer and Treasurer
DATE: May 17, 1999
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<CASH> 882,681
<SECURITIES> 501,686 <F1>
<RECEIVABLES> 68,519
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 17,463,157 <F2>
<DEPRECIATION> 2,980,737
<TOTAL-ASSETS> 16,007,410
<CURRENT-LIABILITIES> 384,611
<BONDS> (824) <F3>
0
0
<COMMON> 15,623,623 <F4>
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 16,007,410
<SALES> 0
<TOTAL-REVENUES> 560,672 <F5>
<CGS> 0
<TOTAL-COSTS> 204,354 <F6>
<OTHER-EXPENSES> (10,675) <F7>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 366,755
<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> "BONDS" REPRESENTS MINORITY INTEREST IN JOINT VENTURE
<F4> "COMMON" REPRESENTS TOTAL PARTNERS CAPITAL
<F5> "TOTAL REVENUES" REPRESENTS RENTAL, INTEREST, AND OTHER
INCOME
<F6> "TOTAL COSTS" REPRESENTS TOTAL EXPENSES
<F7> "OTHER EXPENSES" REPRESENTS MINORITY INTEREST AND JOINT
VENTURES' NET INCOME/LOSS
</FN>
</TABLE>
