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EX-32.2 - EX-32.2 - NTS REALTY HOLDINGS LPa09-36054_1ex32d2.htm
EX-32.1 - EX-32.1 - NTS REALTY HOLDINGS LPa09-36054_1ex32d1.htm
EX-21.01 - EX-21.01 - NTS REALTY HOLDINGS LPa09-36054_1ex21d01.htm

Table of Contents

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

(Mark One)

 

x

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2009

 

OR

 

o

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 001-32389

 

NTS REALTY HOLDINGS LIMITED PARTNERSHIP

(Exact name of registrant as specified in its charter)

 

Delaware

 

41-2111139

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

10172 Linn Station Road Louisville, Kentucky

 

40223

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code (502) 426-4800

 

Securities registered pursuant to Section 12 (b) of the Act:

 

Title of each class:

 

Name of each exchange on which registered:

Limited Partnership Units

 

NYSE Amex

 

Securities registered pursuant to section 12(g) of the Act:

 

None

(Title of Class)

 

 

(Title of Class)

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes o No x

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yes o No x

 

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 o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files.  Yes o No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer o

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

Smaller reporting company x

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).  Yes o No x

 

As of June 30, 2009, the aggregate market value of the registrant’s limited partnership units held by nonaffiliates of the registrant was $17,477,591, based on the closing price of the NYSE Amex.  As of March 29, 2010, there were 11,380,760 limited partnership units of the registrant issued and outstanding.

 

Documents Incorporated by Reference: Portions of the registrant’s proxy statement for the annual meeting of limited partners to be held in 2010 are incorporated by reference into Part III of this Form 10-K.

 

 

 



Table of Contents

 

NTS REALTY HOLDINGS LIMITED PARTNERSHIP

 

FORM 10-K

 

TABLE OF CONTENTS

 

PART I

 

 

 

ITEM 1

BUSINESS

3

ITEM 1A

RISK FACTORS

7

ITEM 1B

UNRESOLVED STAFF COMMENTS

11

ITEM 2

PROPERTIES

12

ITEM 3

LEGAL PROCEEDINGS

17

ITEM 4

RESERVED

17

 

 

 

PART II

 

 

 

ITEM 5

MARKET FOR REGISTRANT’S LIMITED PARTNERSHIP UNITS AND RELATED PARTNER MATTERS

18

ITEM 6

SELECTED FINANCIAL DATA

20

ITEM 7

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

21

ITEM 7A

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

32

ITEM 8

CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

33

ITEM 9

CHANGE IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

58

ITEM 9A

CONTROLS AND PROCEDURES

58

ITEM 9A (T)

CONTROLS AND PROCEDURES

58

ITEM 9B

OTHER INFORMATION

59

 

 

 

PART III

 

 

 

ITEM 10

DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT

60

ITEM 11

EXECUTIVE COMPENSATION

60

ITEM 12

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

60

ITEM 13

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

60

ITEM 14

PRINCIPAL ACCOUNTANT FEES AND SERVICES

60

 

 

 

PART IV

 

 

 

ITEM 15

EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

61

SIGNATURES

 

67

 

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Table of Contents

 

PART I

 

ITEM 1 - BUSINESS

 

General

 

NTS Realty Holdings Limited Partnership (“NTS Realty,” “we,” “us” or “our”) was organized as a limited partnership in the State of Delaware in 2003 and was formed by the merger of NTS-Properties III; NTS-Properties IV; NTS-Properties V, a Maryland limited partnership; NTS-Properties VI, a Maryland limited partnership; and NTS-Properties VII, Ltd. (the “Partnerships”), along with other real estate entities affiliated with their general partners, specifically Blankenbaker Business Center 1A and the NTS Private Group’s assets and liabilities.  The merger was completed on December 28, 2004, after a majority of each Partnership’s limited partners voted for the merger.  The Partnerships and Blankenbaker Business Center 1A were terminated by the merger and ceased to exist.  Concurrent with the merger, ORIG, LLC (“ORIG”), a Kentucky limited liability company, affiliated with the Partnerships’ general partners, contributed substantially all of its assets and liabilities to NTS Realty, including the NTS Private Group properties.  The merger was part of a court approved settlement of class action litigation involving the Partnerships.  Prior to the merger and contribution, we had no operations and a limited amount of assets.  On December 29, 2004, the American Stock Exchange began to list our limited partnership units (the “Units”) for trading.  Our Units currently are listed on the NYSE Amex under the trading symbol “NLP.”  As used in this Form 10-K, the terms “we”, “us” or “our”, as the context requires, may refer to NTS Realty, its wholly-owned properties and its interests in consolidated and unconsolidated joint venture investments.

 

At December 31, 2009, we owned wholly, as a tenant in common with an unaffiliated third party or through joint venture investments, 24 properties, comprised of 7 office and business centers, 14 multifamily properties and 3 retail properties.  The properties are located in and around Louisville (8) and Lexington (1), Kentucky; Fort Lauderdale (3) and Orlando (2), Florida; Indianapolis (4), Indiana; Memphis (1) and Nashville (2), Tennessee; Richmond (2), Virginia; and Atlanta (1), Georgia.  Our office and business centers aggregate approximately 671,000 square feet.  Our multifamily properties contain 4,029 units.  Our retail properties contain approximately 210,000 square feet.

 

NTS Realty Capital, Inc. (“NTS Realty Capital”) and NTS Realty Partners, LLC serve as our general partners.  Our partnership agreement vests principal management discretion in our managing general partner, NTS Realty Capital, which has the exclusive authority to oversee our business and affairs, subject only to the restrictions in our certificate of limited partnership and partnership agreement.  NTS Realty Capital has a five-member board of directors, the majority of whom must be considered to be “independent directors” under the standards promulgated by the New York Stock Exchange.  Our limited partners have the power to elect these directors on an annual basis.

 

We do not have any employees.  NTS Development Company (“NTS Development”), an affiliate of our general partners, oversees and manages the day-to-day operations of our properties pursuant to an amended and restated management agreement and management agreements with our eight newly formed wholly-owned subsidiaries financed through Federal Home Loan Mortgage Corporation referred to as our collective management agreements.  Pursuant to these agreements, NTS Development receives fees for a variety of services performed for our benefit.  NTS Development receives fees under separate management agreements for each of our consolidated joint venture properties and unconsolidated joint venture properties owned as a tenant in common with an unaffiliated third party.  Property management fees are paid in an amount equal to 5% of the gross collected revenue from our wholly-owned properties, consolidated joint venture properties and our eight newly formed wholly-owned subsidiaries financed through Federal Home Loan Mortgage Corporation.  Fees are paid in an amount equal to 3.5% of the gross collected revenue from our unconsolidated joint venture properties owned as a tenant in common with an unaffiliated third party.  We were the beneficiary of a preferential ownership interest, disproportionately greater than our initial cash investment in each property owned as a tenant in common with an unaffiliated third party.  Construction supervision fees are paid in an amount equal to 5% of the costs incurred which relate to capital improvements.  Also pursuant to the agreements, NTS Development receives commercial leasing fees equal to 4% of the gross rental amount for new leases and 2% of the gross rental amount for new leases in which a broker is used and for renewals or extensions.  Disposition fees are paid to NTS Development in an amount of 1% to 4% of the aggregate sales price of a property pursuant to our management agreement and up to a 6% fee upon disposition of our properties owned as a tenant in common with an unaffiliated third party under separate management agreements.  NTS Development is reimbursed its actual costs for services rendered to NTS Realty.  NTS Development has agreed to accept a lower management fee for the properties we own as a tenant in common with an unaffiliated third party in exchange for a larger potential disposition fee.

 

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The independent directors engaged an independent nationally recognized real estate expert (the “expert”) to assist them in their review of the management agreement entered into as of December 28, 2004, as amended.  The expert made suggestions as to the types and amounts of fees and reimbursements to be included in the amended and restated management agreement and assisted in the drafting of the amended and restated management agreement.  The amended and restated management agreement was approved by the independent directors and entered into on April 11, 2006, and was effective as of December 29, 2005.  It is automatically renewed annually unless terminated pursuant to its terms.  The independent directors review the amended and restated management agreement periodically.

 

Employee costs are allocated among NTS Realty, other affiliates of our managing general partner and for the benefit of third parties so that a full-time employee can be shared by multiple entities.  Each employee’s services, which are dedicated to a particular entity’s operations, are allocated as a percentage of each employee’s costs to that entity.  We only reimburse NTS Development Company for actual costs of employer services incurred for our benefit.

 

Business and Investment Objectives and Operating Strategies

 

Since our formation, our business and investment objectives have been to:

 

·                  generate cash flow for distribution;

·                  obtain long-term capital gain on the sale of any properties;

·                  make new investments in properties either wholly, as tenants in common or through joint ventures, including by, directly or indirectly, developing new properties; and

·                  preserve and protect the limited partners’ capital.

 

The board of directors of NTS Realty Capital, in the board’s sole discretion, may change these investment objectives as it deems appropriate and in our best interests.  Prior to changing any of the investment objectives, the board of directors will consider, among other factors, expectations, changing market trends, management expertise and ability and the relative risks and rewards associated with any change.

 

We intend to reach our business and investment objectives through our acquisition and operating strategies.  Our acquisition and operating strategies are to:

 

·                  maintain a portfolio which is diversified by property type and to some degree by geographical location;

·                  achieve and maintain high occupancy and increase rental rates through: (1) efficient leasing strategies, and (2) providing quality maintenance and services to tenants;

·                  control operating expenses through operating efficiencies and economies of scale;

·                  attract and retain high quality tenants;

·                  invest in properties that we believe offer significant growth opportunity; and

·                  emphasize regular repair and capital improvement programs to enhance the properties’ competitive advantages in their respective markets.

 

Competition

 

We compete with other entities to locate suitable properties for acquisition, to locate purchasers for our properties and to locate tenants for each of our properties.  Although our business is competitive, it is not seasonal to a material degree.  While the markets in which we compete are highly fragmented with no dominant competitors, we face substantial competition.  This competition is generally for the retention of existing tenants at lease expiration or for new tenants when vacancies occur.  There are numerous other similar types of properties located in close proximity to each of our properties.  We maintain the suitability and competitiveness of our properties primarily on the basis of effective rents, amenities and services provided to tenants.  The amount of leasable space available in any market could have a material adverse effect on our ability to rent space and on the rents charged.

 

Competitive Advantages

 

We believe that we have competitive advantages that will enable us to be selective with respect to additional real estate investment opportunities.  Our competitive advantages include:

 

·                  substantial local market expertise where we own many of our properties;

·                  long standing relationships with tenants, real estate brokers and institutional and other owners of real estate in our markets; and

 

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·                  fully integrated real estate operations that allow us to respond quickly to acquisition opportunities.

 

Distribution Policy

 

We pay distributions if and when authorized by our managing general partner.  We are required to pay distributions on a quarterly basis of an amount no less than sixty-five percent (65%) of our “net cash flow from operations” as this term is defined in regulations promulgated by the Treasury Department under the Internal Revenue Code of 1986, as amended; provided that if a law is enacted or existing law is modified or interpreted in a manner that subjects us to taxation as a corporation or otherwise subjects us to entity level taxation for federal, state or local income tax purposes, we will adjust the amount distributed to reflect our obligation to pay tax.  Any distribution other than a distribution with respect to the final quarter of a calendar year shall be made no later than forty-five (45) days after the last day of such quarter based on our estimate of “net cash flow from operations” for the year.  Any distribution with respect to the final quarter of a calendar year shall be made no later than ninety (90) days after the last day of such quarter based on actual “net cash flow from operations” for the year, adjusted for any excess or insufficient distributions made with respect to the first three quarters of the calendar year.  For these purposes, “net cash flow from operations” means taxable income or loss increased by:

 

·                  tax-exempt interest;

·                  depreciation;

·                  amortization;

·                  cost recovery allowances; and

·                  other noncash charges deducted in determining taxable income or loss, and decreased by:

·                  principal payments on indebtedness;

·                  property replacement or reserves actually established;

·                  capital expenditures when made other than from reserves or from borrowings, the proceeds of which are not included in operating cash flow; and

·                  any other cash expenditures not deducted in determining taxable income or loss.

 

As noted above, “net cash flow from operations” is reduced by the amount of reserves as determined by us each quarter.  NTS Realty Capital may establish these reserves for, among other things, working capital or capital improvement needs.  Therefore, there is no assurance that we will have “net cash flow from operations” from which to pay distributions in the future.  For example, our partnership agreement permits our managing general partner to reinvest sales or refinancing proceeds in new and existing properties or to create reserves to fund future capital expenditures.  Because “net cash flow from operations” is calculated after reinvesting sales or refinancing proceeds or establishing reserves, we may not have any “net cash flow from operations” from which to pay distributions.

 

Investment and Financing Policies

 

We will consider the acquisition of additional multifamily properties, retail properties, office buildings and business centers from time to time, with our primary emphasis on multifamily properties.  These properties may be located anywhere within the continental United States.  However, we will continue to focus on the Midwest and Southeast portions of the United States.  We will evaluate all new real estate investment opportunities based on a range of factors including, but not limited to: (1) rental levels under existing leases; (2) financial strength of tenants; (3) levels of expense required to maintain operating services and routine building maintenance at competitive levels; and (4) levels of capital expenditure required to maintain the capital components of the property in good working order and in conformity with building codes, health, safety and environmental standards.  We also plan not to acquire any new properties at a capitalization rate less than five percent (5%).  Any properties we acquire in the future would be managed and financed in the same manner as the properties that we acquired in the merger, and we will continue to enforce our policy of borrowing no more than seventy-five percent (75%) of the sum of: (a) the appraised value of our fully-constructed properties and (b) the appraised value of our properties in the development stage as if those properties were completed and ninety-five percent (95%) leased.

 

In addition to the foregoing, we may engage in transactions structured as “like-kind exchanges” of property to obtain favorable tax treatment under Section 1031 of the Internal Revenue Code.  If we are able to structure an exchange of properties as a “like-kind exchange,” then any gain we realize from the exchange would not be recognized for federal income tax purposes.  The test for determining whether exchanged properties are of “like-kind” includes  whether the properties are of the same nature or character.

 

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Other Policies

 

On April 11, 2006, the board of directors of NTS Realty Capital, our managing general partner, approved the Amended and Restated Agreement of Limited Partnership of NTS Realty Holdings Limited Partnership effective December 29, 2005.  The following policies were included:

 

We must obtain the approval of the majority of NTS Realty Capital’s independent directors before we may:

 

·                  enter into a contract or a transaction with either of our general partners or their respective affiliates;

·                  acquire or lease any properties from, or sell any properties to, either of our general partners or their respective affiliates;

·                  enter into leases with our general partners or their affiliates; or

·                  acquire any properties in exchange for Units.

 

We are prohibited from:

 

·                  making any loans to our general partners or their affiliates;

·                  paying any insurance brokerage fee to, or obtaining an insurance policy from, our general partners or their affiliates; and

·                  commingling our funds with funds not belonging to us.

 

Change in Policies

 

NTS Realty Capital, through its board of directors, determines our distribution, investment, financing and other policies.  The board of directors reviews these policies at least annually to determine whether they are being followed and if they are in the best interests of our limited partners.  The board of directors may revise or amend these policies at any time without a vote of the limited partners.

 

Working Capital Practices

 

Information about our working capital practices are included in Management’s Discussion and Analysis of Financial Condition and Results of Operations in Part II, Item 7.

 

Conflicts of Interest

 

Each of our general partners is controlled directly or indirectly by Mr. J.D. Nichols.  As of December 31, 2009, Mr. Nichols beneficially owns approximately 60.0% of the issued and outstanding limited partnership units.  Other entities controlled directly or indirectly by Mr. Nichols have made and may continue to make investments in properties similar to those that we acquired in the merger or contribution.  In addition, affiliates of our general partners currently own vacant lots located adjacent to our Outlet Mall property, located in Louisville, Kentucky.  These affiliates may acquire additional properties in the future, which are located adjacent to properties that we acquired in the merger or contribution.

 

Environmental Matters

 

We believe that our portfolio of properties complies in all material respects with all federal, state and local environmental laws, ordinances and regulations regarding hazardous or toxic substances.  Independent environmental consultants have conducted Phase I or similar environmental site assessments on a majority of the properties and joint ventures that we acquired in the merger and all properties acquired by us since the merger.  Site assessments are intended to discover and evaluate information regarding the environmental condition of the surveyed property and surrounding properties.  These assessments may not, however, have revealed all environmental conditions, liabilities or compliance concerns.

 

Access to Company Information

 

We electronically file our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to those reports with the Securities and Exchange Commission (the “SEC”).  The public may read and copy any of the reports that are filed with the SEC at the SEC’s Public Reference Room at 450 Fifth Street, NW, Washington, DC 20549.  The public may obtain information on the operation of the Public Reference Room by calling the SEC at (800)-SEC-0330.  The SEC maintains an Internet site at www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically.

 

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Information concerning NTS Realty Holdings Limited Partnership is available through the NTS Development Company website (www.ntsdevelopment.com).  Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) of the Securities Exchange Act are available and may be accessed free of charge through the “Investor Services” section of our website as soon as reasonably practicable after we electronically file this material with, or furnish it to, the SEC. Our website and the information contained therein or connected thereto are not incorporated into this Annual Report on Form 10-K.

 

ITEM 1A - RISK FACTORS

 

Factors That May Affect Our Future Results

 

Cautionary Statements under the Private Securities Litigation Reform Act of 1995.

 

Certain information included in this report or in other materials we have filed or will file with the Securities and Exchange Commission (the “SEC”) (as well as information included in oral statements or other written statements made or to be made by us) contains or may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended.  You can identify these statements by the fact that they do not relate strictly to historical or current facts.  They contain words such as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” “may,” “can,” “could,” “might” and other words or phrases of similar meaning in connection with any discussion of future operating or financial performance.  Such statements include information relating to anticipated operating results, financial resources, changes in revenues, changes in profitability, interest expense, growth and expansion, anticipated income to be realized from our investments in unconsolidated entities, the ability to acquire land, the ability to gain approvals and to open new communities, the ability to sell properties, the ability to secure materials and subcontractors, the ability to produce the liquidity and capital necessary to expand and take advantage of opportunities in the future, and stock market valuations. From time to time, forward-looking statements also are included in our other periodic reports on Forms 10-Q and 8-K, in press releases, in presentations, on our website and in other material released to the public.

 

Any or all of the forward-looking statements included in this report and in any other reports or public statements made by us may turn out to be inaccurate.  This can occur as a result of incorrect assumptions or as a consequence of known or unknown risks and uncertainties.  Many factors mentioned in this report or in other reports or public statements made by us, such as government regulation and the competitive environment, will be important in determining our future performance.  Consequently, actual results may differ materially from those that might be anticipated from our forward-looking statements.

 

We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise.  However, any further disclosures made on related subjects in our subsequent reports on Forms 10-K, 10-Q and 8-K should be consulted.  The following cautionary discussion of risks, uncertainties and possible inaccurate assumptions relevant to our business includes factors we believe could cause our actual results to differ materially from expected and historical results.  Other factors beyond those listed below, including factors unknown to us and factors known to us, which we have not determined to be material, could also adversely affect us.  This discussion is provided as permitted by the Private Securities Litigation Reform Act of 1995, and all of our forward-looking statements are expressly qualified in their entirety by the cautionary statements contained or referenced in this section.

 

Our principal unit holders may effectively exercise control over matters requiring unit holder approval.

 

As of December 31, 2009, Mr. J.D. Nichols beneficially owns approximately 60.0% of the outstanding NTS Realty Holdings Limited Partnership Units.  Mr. Nichols effectively has the power to elect all of the directors and control the management, operations and affairs of NTS Realty Holdings Limited Partnership.  His ownership may discourage someone from making a significant equity investment in NTS Realty Holdings Limited Partnership, even if we needed the investment to operate our business.  His holdings could be a significant factor in delaying or preventing a change of control transaction that other limited partners may deem to be in their best interests, such as a transaction in which the other limited partners would receive a premium for their units over their current trading prices.

 

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Adverse economic conditions and disruptions in the function of credit markets could have a material adverse effect on our results of operations, financial condition and ability to pay distributions to you.

 

The global financial markets are currently undergoing pervasive and fundamental disruptions.  The continuation or intensification of such volatility has had and may continue to have an adverse impact on the availability of credit to businesses, generally, and has resulted in and could lead to further weakening of the U.S. and global economies.  The U.S. Department of Labor has acknowledged that the economic “slowdown” has resulted in a recession, and many economists believe that the recession may last several more quarters.  Our business may be affected by market and economic challenges experienced by the U.S. economy or real estate industry as a whole or by the local economic conditions in the markets in which our properties are located, including the current dislocations in the credit markets and general global economic recession. These current conditions, or similar conditions existing in the future, may have the following consequences:

 

·                       the financial condition of our tenants may be adversely affected, which may result in us having to increase concessions, reduce rental rates or make capital improvements in order to maintain occupancy levels, or which may result in tenant defaults under leases due to bankruptcy, lack of liquidity, operational failures or for other reasons;

 

·                       significant job losses may occur, which may decrease rental demand, causing market rental rates and property values to be negatively impacted;

 

·                       our ability to borrow on terms and conditions that we find acceptable, or at all, may be limited, which could reduce our ability to pursue acquisition opportunities and refinance existing debt, reduce our returns from our acquisitions and increase our future interest expense;

 

·                       reduced values of our properties may limit our ability to dispose of assets at attractive prices or to obtain debt financing secured by our properties and may reduce the availability of unsecured loans; and

 

·                       the value and liquidity of our short-term investments and cash deposits could be reduced as a result of a deterioration of the financial condition of the institutions that hold them.

 

Our cash flows and results of operations could be adversely affected if legal claims are brought against us and are not resolved in our favor.

 

Claims have been brought against us in various legal proceedings, which have not had, and are not expected to have, a material adverse effect on our business or financial condition.  Should claims be filed in the future, it is possible that our cash flows and results of operations could be affected, from time to time, by the negative outcome of one or more of such matters.

 

There is no assurance we will have net cash flow from operations from which to pay distributions.

 

Our partnership agreement requires us to distribute at least sixty-five percent (65%) of our “net cash flow from operations” to our limited partners.  There is no assurance that we will have any “net cash flow from operations” from which to pay distributions.  Our partnership agreement also permits our managing general partner to reinvest sales or refinancing proceeds in new or existing properties or to create reserves to fund future capital expenditures.  Because “net cash flow from operations” is calculated after reinvesting sales or refinancing proceeds or establishing reserves, we may not have any “net cash flow from operations” from which to pay distributions.

 

Risks Related to Our Business and Properties

 

We may suffer losses at our properties that are not covered by insurance.

 

We carry comprehensive liability, fire, extended coverage, terrorism and rental loss insurance covering all of our properties.  We believe the policy specifications and insured limits are appropriate given the relative risk of loss, the cost of the coverage and industry practice.  None of the entities carry insurance for generally uninsured losses such as losses from riots, war, acts of God or mold.  Some of the policies, like those covering losses due to terrorism, earthquakes and floods, are insured subject to limitations involving large deductibles or co-payments and policy limits, which may not be sufficient to cover losses.  If we experience a loss which is uninsured or which exceeds policy limits, we could lose the capital invested in the damaged property as well as the anticipated future

 

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cash flows from that property.  In addition, if the damaged property is subject to recourse indebtedness, we would continue to be liable for the indebtedness, even if it was irreparably damaged.

 

Future terrorist attacks in the United States could harm the demand for and the value of our properties.

 

Future terrorist attacks in the U.S., such as the attacks that occurred in New York, Washington, D.C. and Pennsylvania on September 11, 2001, and other acts of terrorism or war could harm the demand for, and the value of, our properties.  A decrease in demand could make it difficult for us to renew or re-lease our properties at lease rates equal to, or above, historical rates.  Terrorist attacks also could directly impact the value of our properties through damage, destruction, loss, or increased security costs, and the availability of insurance for these acts may be limited or costly.  To the extent that our tenants are impacted by future attacks, their ability to honor obligations under their existing leases with us could be adversely affected.

 

Our ability to pay distributions and the value of our properties and the Units are subject to risks associated with real estate assets and with the real estate industry in general.

 

Our ability to pay distributions depends on our ability to generate revenues in excess of expenses, scheduled principal payments on debt and capital expenditure requirements.  Events and conditions generally applicable to owners and operators of real property that are beyond our control that could impact our ability to pay distributions, the value of our properties and the value of the Units include:

 

·                  local oversupply, increased competition or reduction in demand for office, business centers or multifamily properties;

·                  inability to collect rent from tenants;

·                  vacancies or our inability to rent space on favorable terms;

·                  increased operating costs, including insurance premiums, utilities and real estate taxes;

·                  costs of complying with changes in governmental regulations;

·                  the relative illiquidity of real estate investments;

·                  changing market demographics; and

·                  inability to acquire and finance properties on favorable terms.

 

In addition, periods of economic slowdown or recession, rising interest rates or declining demand for real estate, or the public perception that any of these events may occur, could result in a general decline in rents or in increased defaults under existing leases, which could adversely affect our financial condition, results of operations, cash flow, the value of the Units and ability to satisfy our debt service obligations and to pay distributions.

 

We face significant competition, which may decrease the occupancy and rental rates of our properties.

 

We compete with several developers, owners and operators of commercial real estate, many of which own properties similar to ours.  Our competitors may be willing to make space available at lower prices than the space in our properties.  If our competitors offer space at rental rates below current market rates, we may lose potential tenants and be pressured to reduce our rental rates to retain an existing tenant when its lease expires.  As a result, our financial condition, results of operations, cash flow, the value of the Units and ability to satisfy our debt service obligations and to pay distributions could be adversely affected.

 

Our debt level reduces cash available for distribution and could expose us to the risk of default under our debt obligations.

 

Payments of principal and interest on borrowings could leave us with insufficient cash resources to operate our properties or to pay distributions.  Our level of debt could have significant adverse consequences, including:

 

·                  cash flow may be insufficient to meet required principal and interest payments;

·                  we may be unable to borrow additional funds as needed or on favorable terms;

·                  we may be unable to refinance our indebtedness at maturity or the terms may be less favorable than the terms of our original indebtedness;

·                  we may be forced to dispose of one or more of our properties, possibly on disadvantageous terms;

·                  we may default on our obligations and the lenders or mortgagees may foreclose on the properties securing their loans or receiving an assignment of rents and leases;

·                  we may violate restrictive covenants in our loan documents, which would entitle the lenders to accelerate our debt obligations; and

 

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·                  default under any one of the mortgage loans with cross default provisions could result in a default on other indebtedness.

 

If any one of these events were to occur, our financial condition, results of operations, cash flow, the value of the Units, our ability to satisfy our debt service obligations and to pay distributions could be adversely affected.  In addition, foreclosures could create taxable income, which would be allocated to all of the partners, but we may not be able to pay a cash distribution to the partners to pay the resulting taxes.

 

We could incur significant costs related to government regulation and private litigation over environmental matters.

 

Under various federal, state and local laws, ordinances and regulations relating to the protection of the environment, a current or previous owner or operator of real estate may be held liable for contamination resulting from the presence or discharge of hazardous or toxic substances at that property, and may be required to investigate and clean up any contamination at, or emanating from, that property.  These laws often impose liability, which may be joint and several, without regard to whether the owner or operator knew of, or was responsible for, the presence of the contaminants.  The presence of contamination, or the failure to remediate contamination, may adversely affect the owner’s ability to sell, lease or develop the real estate or to borrow using the real estate as collateral.  In addition, the owner or operator of a site may be subject to claims by third parties based on personal injury, property damage or other costs, including costs associated with investigating or cleaning up the environmental contamination present at, or emanating from, a site.

 

These environmental laws also govern the presence, maintenance and removal of asbestos containing building materials, or “ACBM.”  These laws require that ACBM be properly managed and maintained, and may impose fines and penalties on building owners or operators who fail to comply with these requirements.  These laws may also allow third parties to seek recovery from owners or operators for personal injury associated with exposure to asbestos fibers.  Some of our properties could contain ACBM.

 

Some of the properties in our portfolio contain or could have contained, or are adjacent to or near other properties that have contained or currently contain underground storage tanks used to store petroleum products or other hazardous or toxic substances.  These operations create a potential for the release of petroleum products or other hazardous or toxic substances.  For example, one of our properties currently has a service station located adjacent to it, and two of our properties are located on a former operating farm under which an underground tank was removed several years ago.

 

Recent news accounts suggest that there is an increasing amount of litigation over claims that mold or other airborne contaminants have damaged buildings or caused poor health.  We have, infrequently, discovered relatively small amounts of mold-related damage at a limited number of our properties, generally caused by one or more water intrusions, such as roof leaks, or plugged air conditioner condensation lines.  Mold and certain other airborne contaminants occur naturally and are present in some quantity in virtually every structure.  A plaintiff could successfully establish that mold or another airborne contaminant at one of our properties causes or exacerbates certain health conditions.  We generally have no insurance coverage for the cost of repairing or replacing elements of a building or its contents that are affected by mold or other environmental conditions, or for defending against this type of lawsuit.

 

We may incur significant costs complying with other regulations.

 

Our properties are subject to various federal, state and local regulatory requirements, such as state and local fire and life safety requirements.  If we fail to comply with these various requirements, we may be fined or have to pay private damage awards.  We believe that our properties materially comply with all applicable regulatory requirements.  These requirements could change in the future requiring us to make significant unanticipated expenditures that could adversely impact our financial condition, results of operations, cash flow, the value of the Units, our ability to satisfy our debt service obligations and to pay distributions.

 

We may invest in properties through joint ventures or as tenants in common, which add another layer of risk to our business.

 

We may acquire properties through joint ventures or as tenants in common, which could subject us to certain risks, which may not otherwise be present, if we made the investments directly.  These risks include:

 

·                  the potential that our joint venture partner or tenants in common may not perform;

 

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·                  the joint venture partner or tenants in common may have economic or business interests or goals that are inconsistent with or adverse to our interests or goals;

·                  the joint venture partner or tenants in common may take actions contrary to our requests or instructions or contrary to our objectives or policies;

·                  the joint venture partner or tenants in common might become bankrupt or fail to fund its share of required capital contributions;

·                  we and the joint venture partner or tenants in common may not be able to agree on matters relating to the property; and

·                  we may become liable for the actions of our third-party joint venture partners or tenants in common.

 

Any disputes that may arise between joint venture partners or tenants in common and us may result in litigation or arbitration that would increase our expenses and prevent us from focusing our time and effort on the business of the joint venture.

 

Tax Risks

 

Tax gain or loss on disposition of Units could be different than expected.

 

If you sell your Units, you will recognize a gain or loss equal to the difference between the amount realized and your tax basis in those Units.  Prior distributions to you in excess of the total net taxable income you were allocated for a Unit, which decreased your tax basis in that Unit, will, in effect, become taxable income to you if the Unit is sold at a price greater than your tax basis in that Unit, even if the price is less than your original cost.  A substantial portion of the amount realized, whether or not representing gain, may be ordinary income.

 

If you are a tax-exempt entity, a mutual fund or a foreign person, you may experience adverse tax consequences from owning Units.

 

Investment in Units by tax-exempt entities, including employee benefit plans and individual retirement accounts, regulated investment companies or mutual funds and non-U.S. persons raises issues unique to them.  For example, a significant amount of our income allocated to organizations exempt from federal income tax, including individual retirement accounts and other retirement plans, will be unrelated business taxable income and will be taxable to such a holder.  Very little of our income will be qualifying income to a regulated investment company.  Distributions to non-U.S. persons will be reduced by withholding tax at the highest marginal tax rate applicable to individuals, and non-U.S. holders will be required to file United States federal income tax returns and pay tax on their share of our taxable income.

 

We will treat each purchaser of Units as having the same tax benefits without regard to the Units purchased.  The IRS may challenge this treatment, which could adversely affect the value of the Units.

 

Because we cannot match transferors and transferees of Units, we will adopt certain positions that do not conform with all aspects of existing Treasury Regulations.  A successful IRS challenge to those positions could adversely affect the timing or amount of tax benefits available to you, the amount of gain from your sale of Units or result in audit adjustments to your tax returns.

 

You likely will be subject to state and local taxes in states where you do not live as a result of an investment in Units.

 

In addition to federal income taxes, you likely will be subject to other taxes, including state and local taxes, unincorporated business taxes and estate, inheritance or intangible taxes that are imposed by the various jurisdictions in which we do business or own property, even if you do not live in any of those jurisdictions.  You likely will be required to file state and local income tax returns and pay state and local income taxes in some or all of these jurisdictions.  Further, you may be subject to penalties for failure to comply with those requirements.  You must file all required United States federal, state and local tax returns.  Our counsel has not rendered an opinion on the state or local tax consequences of an investment in the Units.

 

ITEM 1B - UNRESOLVED STAFF COMMENTS

 

None.

 

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ITEM 2 - PROPERTIES

 

General

 

We own wholly, as a tenant in common with an unaffiliated third party or as a joint venture investment, 7 office buildings and business centers, 14 multifamily properties and 3 retail properties.  Set forth below is a description of each property:

 

Wholly-Owned Properties

 

Office Buildings and Business Centers

 

·                  NTS Center, which was constructed in 1977, is an office complex with approximately 123,000 net rentable square feet in Louisville, Kentucky.  As of December 31, 2009, there were 8 tenants leasing office space aggregating approximately 70,700 square feet, including 5,400 square feet which was leased but unoccupied.  NTS Center’s tenants are professional service entities, principally in real estate, secondary education and information services.  One of these tenants individually lease more than 10% of the net rentable area at NTS Center.  NTS Center was 58% occupied as of December 31, 2009.

 

·                  Sears Office Building, which was constructed in 1987, is an office building with approximately 66,900 net rentable square feet in Louisville, Kentucky.  Sears Office Building was vacant as of December 31, 2009.  See Item 7 Future Liquidity - for a discussion of our sale agreement for Sears Office Building dated February 23, 2010. (1)

 

·                  Clarke American, which was constructed in 2000, is a business center with approximately 50,000 net rentable square feet in Louisville, Kentucky.  As of December 31, 2009, one tenant was leasing all 50,000 square feet.  The tenant is a professional service entity in the check printing industry.  Clarke American was 100% occupied as of December 31, 2009.

 

·                  Lakeshore Business Center Phase I, which was constructed in 1986, is a business center with approximately 100,400 net rentable square feet in Fort Lauderdale, Florida.  As of December 31, 2009, there were 16 tenants leasing space aggregating approximately 88,700 square feet.  The tenants are professional service entities, principally in engineering, insurance and financial services, telecommunication and dental equipment suppliers.  Three of these tenants individually lease more than 10% of the net rentable area at Lakeshore Business Center Phase I.  Lakeshore Business Center Phase I was 88% occupied as of December 31, 2009.

 

·                  Lakeshore Business Center Phase II, which was constructed in 1989, is a business center with approximately 95,700 net rentable square feet in Fort Lauderdale, Florida.  As of December 31, 2009, there were 18 tenants leasing space aggregating approximately 75,200 square feet.  The tenants are governmental and professional service entities, principally in medical equipment sales, financial and engineering services and technology.  One of these tenants individually leases more than 10% of the net rentable area at Lakeshore Business Center Phase II.  Lakeshore Business Center Phase II was 79% occupied as of December 31, 2009.

 

·                  Lakeshore Business Center Phase III, which was constructed  in 2000, is a business center with approximately 38,900 net rentable square feet in Fort Lauderdale, Florida.  As of December 31, 2009, there were 4 tenants leasing space aggregating all 38,900 square feet.  The tenants are professional service entities, principally in insurance services, consulting services, real estate development and engineering.  Three of these tenants individually lease more than 10% of the net rentable area at Lakeshore Business Center Phase III.  Lakeshore Business Center Phase III was 100% occupied as of December 31, 2009.

 

·                  Peachtree Corporate Center, which was constructed in 1979, is a business park with approximately 196,000 net rentable square feet in Atlanta, Georgia.  As of December 31, 2009, there were 41 tenants leasing space aggregating approximately 143,700 square feet.  The tenants are professional service entities, principally in sales-related services.  None of these tenants individually lease more than 10% of the net rentable area at Peachtree.  Peachtree was 73% occupied as of December 31, 2009.

 


(1)          These properties’ assets and liabilities are classified as held for sale on our consolidated balance sheet.  The results of their operations are classified as discontinued operations in our consolidated statement of operations for all years presented.

 

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Multifamily Properties

 

·                  Park Place Apartments, which was constructed in three phases, is a 464-unit luxury apartment complex located on a 44.8-acre tract in Lexington, Kentucky.  Phases I and II were constructed between 1987 and 1989, and Phase III was constructed in 2000.  As of December 31, 2009, the property was 93% occupied.

 

·                  The Willows of Plainview Apartments, which was constructed in three phases between 1985 and 1988, is a 310-unit luxury apartment complex located on two tracts of land totaling 19.1-acres in Louisville, Kentucky.  As of December 31, 2009, the property was 96% occupied.

 

·                  Willow Lake Apartments, which was constructed in 1985, is a 207-unit luxury apartment complex located on an 18-acre tract in Indianapolis, Indiana.  As of December 31, 2009, the property was 96% occupied.

 

·                  The Lakes Apartments, which was purchased in 2005 and constructed in 1997, is a 230-unit luxury apartment complex located on a 19.7-acre tract in Indianapolis, Indiana.  As of December 31, 2009, the property was 94% occupied.

 

·                  The Grove at Richland Apartments, which was purchased in 2006 and constructed in 1998, is a 292-unit luxury apartment complex located on a 10.5-acre tract in Nashville, Tennessee.  As of December 31, 2009, the property was 97% occupied.

 

·                  The Grove at Whitworth Apartments, which was purchased in 2006 and constructed in 1994, is a 301-unit luxury apartment complex located on 12.1-acre tract in Nashville, Tennessee.  As of December 31, 2009, the property was 93% occupied.

 

·                  The Grove at Swift Creek Apartments, which was purchased in 2006 and constructed in 2000, is a 240-unit luxury apartment complex located on a 32.9-acre tract in Richmond, Virginia.  As of December 31, 2009, the property was 87% occupied.

 

·                  Castle Creek Apartments, which was purchased in 2006 and constructed in 1999, is a 276-unit luxury apartment complex located on a 16-acre tract in Indianapolis, Indiana.  As of December 31, 2009, the property was 92% occupied.

 

·                  Lake Clearwater Apartments, which was purchased in 2006 and constructed in 1999, is a 216-unit luxury apartment complex located on a 10.6-acre tract in Indianapolis, Indiana.  As of December 31, 2009, the property was 92% occupied.

 

·                  Shelby Farms Apartments, which was purchased in 2008 and constructed in two phases, is a 450-unit luxury apartment complex located on a 30.2-acre tract in Memphis, Tennessee. Phase I was constructed in 1997 and Phase II was constructed in 2007.  As of December 31, 2009, the property was 98% occupied.

 

Retail Properties

 

·                  Bed, Bath & Beyond, which was constructed in 1999, is an approximately 35,000 square foot facility in Louisville, Kentucky.  As of December 31, 2009, one tenant was leasing all 35,000 square feet.  The tenant is a retail service entity principally in the sale of domestic merchandise and home furnishings.  Bed, Bath & Beyond was 100% occupied as of December 31, 2009.

 

·                  Outlet Mall, which was constructed in 1983, is an approximately 162,600 square foot mall in Louisville, Kentucky.  As of December 31, 2009, one tenant, Garden Ridge L.P., was leasing all 162,600 square feet.  The tenant is a retail service entity principally in the sale of domestic merchandise and home furnishings.  Outlet Mall was 100% occupied as of December 31, 2009.  See Item 7 Future Liquidity - for a discussion of our sale of Outlet Mall. (1)

 

·                  Springs Station, which was constructed in 2001, is a retail facility with approximately 12,000 net rentable square feet in Louisville, Kentucky.  As of December 31, 2009, there were 7 tenants leasing space aggregating all 12,000 square feet.  The tenants are professional service entities, principally in

 

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staffing, financial and medical equipment sales.  Three of these tenants individually lease more than 10% of the net rentable area at Springs Station.  Springs Station was 100% occupied as of December 31, 2009.

 


(1)          These properties’ assets and liabilities are classified as held for sale on our consolidated balance sheet.  The results of their operations are classified as discontinued operations in our consolidated statement of operations for all years presented.

 

Consolidated Joint Venture Properties

 

Multifamily Properties

 

·                  Golf Brook Apartments, which was purchased in 2009 and constructed between 1987 and 1988, is a 195-unit luxury apartment complex located on a 19.2-acre tract in Orlando, Florida.  As of December 31, 2009, the property was 93% occupied.  We own a 51% interest in this property.

 

·                  Sabal Park Apartments, which was purchased in 2009 and constructed in 1986, is a 162-unit luxury apartment complex located on a 14.3-acre tract in Orlando, Florida.  As of December 31, 2009, the property was 91% occupied.  We own a 51% interest in this property.

 

Unconsolidated Joint Venture Properties

 

Multifamily Properties

 

·                  The Overlook at St. Thomas Apartments, which was purchased in 2007 and constructed in 1991, is a 484-unit luxury apartment complex located on a 24.9-acre tract in Louisville, Kentucky.  As of December 31, 2009, the property was 94% occupied.  We own a 60% tenant in common interest in this property.

 

·                  Creek’s Edge at Stony Point Apartments, which was purchased in 2007 and constructed in 2006, is a 202-unit luxury apartment complex located on a 26.3-acre tract in Richmond, Virginia.  As of December 31, 2009, the property was 93% occupied.  We own a 51% tenant in common interest in this property.

 

Corporate Headquarters

 

Our executive offices are located at 10172 Linn Station Road, Suite 200, Louisville, Kentucky 40223, and our phone number is (502) 426-4800.

 

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Occupancy Rates

 

The table below sets forth the average occupancy rate for each of the past three years with respect to each of our properties.

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

OFFICE BUILDING OCCUPANCY

 

 

 

 

 

 

 

NTS Center (1)

 

52%

 

87%

 

78%

 

Sears Office Building (2)

 

0%

 

0%

 

0%

 

 

 

 

 

 

 

 

 

BUSINESS CENTER OCCUPANCY

 

 

 

 

 

 

 

Clarke American

 

100%

 

100%

 

100%

 

Lakeshore Business Center Phase I

 

89%

 

86%

 

73%

 

Lakeshore Business Center Phase II (3)

 

65%

 

73%

 

82%

 

Lakeshore Business Center Phase III

 

100%

 

100%

 

98%

 

Peachtree Corporate Center

 

76%

 

82%

 

84%

 

 

 

 

 

 

 

 

 

MULTIFAMILY OCCUPANCY

 

 

 

 

 

 

 

Park Place Apartments

 

94%

 

96%

 

95%

 

The Willows of Plainview Apartments

 

96%

 

95%

 

96%

 

Willow Lake Apartments

 

94%

 

96%

 

97%

 

The Lakes Apartments

 

93%

 

94%

 

97%

 

The Grove at Richland Apartments

 

94%

 

95%

 

95%

 

The Grove at Whitworth Apartments

 

93%

 

94%

 

96%

 

The Grove at Swift Creek Apartments

 

88%

 

88%

 

94%

 

Castle Creek Apartments

 

92%

 

96%

 

97%

 

Lake Clearwater Apartments

 

93%

 

95%

 

95%

 

The Overlook at St. Thomas Apartments

 

93%

 

90%

 

93%

 

Creek’s Edge at Stony Point Apartments

 

91%

 

87%

 

84%

 

Shelby Farms Apartments

 

94%

 

90%

 

N/A

 

Golf Brook Apartments

 

93%

 

N/A

 

N/A

 

Sabal Park Apartments

 

92%

 

N/A

 

N/A

 

 

 

 

 

 

 

 

 

RETAIL OCCUPANCY

 

 

 

 

 

 

 

Bed, Bath & Beyond

 

100%

 

100%

 

100%

 

Outlet Mall

 

100%

 

100%

 

100%

 

Springs Station

 

94%

 

60%

 

69%

 

 


(1)          We believe the changes in average occupancy from period to period are temporary effects of each property’s specific mix of lease maturities and are not indicative of any known trend.  NTS Center was 58% occupied as of December 31, 2009.

(2)          Sears Office Building was vacant and unoccupied at December 31, 2009, 2008 and 2007.

(3)          We believe the changes in average occupancy from period to period are temporary effects of each property’s specific mix of lease maturities and are not indicative of any known trend.  Lakeshore Business Center Phase II was 79% occupied as of December 31, 2009.

 

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Tenant Information

 

We are not dependent upon any tenant for 10% or more of our revenues.  The loss of any one tenant should not have a material adverse effect on our business or financial performance.  The following table sets forth our ten largest tenants based on annualized base rent from continuing operations as of December 31, 2009.

 

Tenant

 

Total Leased
Square Feet

 

Annualized Base
Rent (1)

 

Percentage of
Annualized Base
Rent (1)

 

Lease
Expiration

 

Social Security Administration (3)

 

16,197

 

$

553,908

 

1.19

%

11/30/19

 

Clarke American Checks, Inc. (2)

 

50,000

 

512,500

 

1.10

%

08/31/15

 

ECI Telecom (3)

 

29,287

 

389,956

 

0.83

%

03/31/18

 

Bed, Bath & Beyond (2)

 

34,953

 

384,483

 

0.82

%

01/31/15

 

NTS Development Co. (2)

 

22,588

 

305,511

 

0.65

%

03/31/13

 

John J. Kirlin, Inc. (3)

 

20,135

 

264,010

 

0.56

%

08/10/14

 

Patterson Dental Supply (3)

 

15,497

 

194,849

 

0.42

%

10/31/13

 

Kimley-Horn & Associates (3)

 

12,061

 

167,236

 

0.36

%

02/28/14

 

Devry, Inc. (2)

 

9,294

 

158,712

 

0.34

%

03/31/13

 

First American Default Information Svcs. (2)

 

11,137

 

156,698

 

0.34

%

01/31/13

 

 


(1)          Annualized Base Rent means annual contractual rent.

(2)          A tenant of a Louisville, Kentucky property.

(3)          A tenant of a Fort Lauderdale, Florida property.

 

Indebtedness

 

The tables below reflect our outstanding indebtedness from mortgages and notes payable for our properties owned wholly, as a consolidated joint venture investment or as an unconsolidated joint venture investment in tenants in common as of December 31, 2009.  Properties that are not encumbered by mortgages or notes are not listed below.  Some of our mortgages and notes bear interest in relation to the Libor Rate.  As of December 31, 2009, the Libor Rate was 0.23%.  The Libor Rate is a variable rate of interest that is adjusted from time to time based on interest rates set by London financial institutions.

 

Wholly-Owned Properties and Consolidated Joint
Venture Properties

 

Interest
Rate

 

Maturity
Date

 

Balance as of December 31, 2009

 

Lakeshore Business Center Phases I, II and III (1)

 

Libor + 3.50

%

06/01/11

 

$

23,566,000

 

Bed, Bath & Beyond (2)

 

9.00

%

08/01/10

 

2,289,831

 

Clarke American

 

8.45

%

11/01/15

 

2,002,165

 

The Lakes Apartments (3)

 

5.11

%

12/01/14

 

11,381,809

 

Shelby Farms Apartments (4)

 

6.03

%

09/01/18

 

26,328,500

 

Castle Creek Apartments (5)

 

5.40

%

01/01/20

 

13,895,000

 

The Grove at Richland Apartments (6)

 

5.40

%

01/01/20

 

27,000,000

 

The Grove at Swift Creek Apartments (7)

 

5.40

%

01/01/20

 

16,845,000

 

The Grove at Whitworth Apartments (8)

 

5.40

%

01/01/20

 

27,675,000

 

Lake Clearwater Apartments (9)

 

5.40

%

01/01/20

 

11,390,000

 

Park Place Apartments (10)

 

5.40

%

01/01/20

 

30,625,000

 

Willow Lake Apartments (11)

 

5.40

%

01/01/20

 

10,945,000

 

Willows of Plainview Apartments (12)

 

5.40

%

01/01/20

 

17,920,000

 

Golf Brook Apartments (13)

 

Libor + 3.33

%

07/01/16

 

14,625,000

 

Sabal Park Apartments (14)

 

Libor + 3.50

%

07/01/16

 

9,600,000

 

 

 

 

 

 

 

$

246,088,305

 

 

Unconsolidated Joint Venture Properties

 

 

 

 

 

 

 

The Overlook at St. Thomas Apartments (15)

 

5.72

%

04/11/17

 

$

34,787,919

 

Creek’s Edge at Stony Point Apartments (16)

 

5.99

%

11/15/17

 

$

22,727,309

 

 


(1)          This note is guaranteed individually and severally by Mr. Nichols and Mr. Brian F. Lavin.  A balloon payment of $23,091,587 is due upon maturity.

(2)          A balloon payment of $2,229,695 is due upon maturity.

(3)          A balloon payment of $10,313,012 is due upon maturity.

(4)          A balloon payment of $23,148,594 is due upon maturity.

(5)          A balloon payment of $11,646,720 is due upon maturity.

(6)          A balloon payment of $22,631,265 is due upon maturity.

(7)          A balloon payment of $14,119,395 is due upon maturity.

(8)          A balloon payment of $23,197,045 is due upon maturity.

 

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(9)          A balloon payment of $9,547,040 is due upon maturity.

(10)    A balloon payment of $25,669,720 is due upon maturity.

(11)    A balloon payment of $9,174,043 is due upon maturity.

(12)    A balloon payment of $15,020,454 is due upon maturity.

(13)    A balloon payment of $12,973,564 is due upon maturity.

(14)    A balloon payment of $8,542,302 is due upon maturity.

(15)    A balloon payment of $30,492,392 is due upon maturity.  We are proportionately liable for this mortgage, limited to 60%, our interest as a tenant in common of this property.

(16)    A balloon payment of $20,100,323 is due upon maturity.  We are jointly and severally liable for this mortgage.  We own a 51% interest as a tenant in common of this property.

 

Our mortgages may be prepaid, but are generally subject to a yield-maintenance premium.

 

Property Tax

 

The following table sets forth for each property that we own wholly, as a tenant in common with an unaffiliated third party or through joint venture investments, the property tax rate and annual property taxes.

 

SCHEDULE OF ANNUAL PROPERTY TAX RATES AND TAXES-2009

 

State

 

Property

 

Property
Tax Rate
(per $100)

 

Gross Amount
Annual Property
Taxes (1)

 

FL

 

Lakeshore Business Center Phase I

 

1.99

 

$

188,856

 

FL

 

Lakeshore Business Center Phase II

 

1.99

 

189,884

 

FL

 

Lakeshore Business Center Phase III

 

1.99

 

77,672

 

FL

 

Golf Brook Apartments

 

1.70

 

251,173

 

FL

 

Sabal Park Apartments

 

1.70

 

176,865

 

GA

 

Peachtree Corporate Center

 

3.18

 

110,412

 

IN

 

Willow Lake Apartments

 

2.29

 

330,741

 

IN

 

The Lakes Apartments

 

2.29

 

361,081

 

IN

 

Castle Creek Apartments

 

1.81

 

511,338

 

IN

 

Lake Clearwater Apartments

 

1.81

 

392,228

 

KY

 

Bed, Bath & Beyond

 

1.19

 

26,528

 

KY

 

Clarke American

 

1.14

 

36,988

 

KY

 

NTS Center

 

1.14

 

100,647

 

KY

 

Outlet Mall

 

1.14

 

45,652

 

KY

 

The Willows of Plainview Apartments

 

1.14

 

155,428

 

KY

 

Park Place Apartments

 

1.10

 

285,164

 

KY

 

Sears Office Building

 

1.14

 

35,233

 

KY

 

Springs Station

 

1.19

 

20,512

 

KY

 

The Overlook at St. Thomas Apartments

 

0.99

 

415,939

 

TN

 

Shelby Farms Apartments

 

7.22

 

1,002,518

 

TN

 

The Grove at Richland Apartments

 

4.13

 

431,565

 

TN

 

The Grove at Whitworth Apartments

 

4.13

 

478,636

 

VA

 

The Grove at Swift Creek Apartments

 

0.95

 

211,001

 

VA

 

Creek’s Edge at Stony Point Apartments

 

1.20

 

348,576

 

 

 

 

 

 

 

$

6,184,637

 

 


(1)          Does not include any offset for property taxes reimbursed by tenants.  Property taxes in Jefferson County, Kentucky; Fayette County, Kentucky; City of Jeffersontown, Kentucky; and the City of St. Matthews, Kentucky, are discounted by approximately 2% if they are paid prior to the due date.  Payments made prior to the due date in other states generally provide no discount to the gross amount of property tax.

 

ITEM 3 - LEGAL PROCEEDINGS

 

None.

 

ITEM 4 - RESERVED

 

17



Table of Contents

 

PART II

 

ITEM 5 - MARKET FOR REGISTRANT’S LIMITED PARTNERSHIP UNITS AND RELATED PARTNER MATTERS

 

Common Stock Market Prices and Distributions

 

Beginning December 29, 2004, our Units were listed for trading on the American Stock Exchange under the symbol NLP.  Beginning December 1, 2008, our Units ceased trading on the American Stock Exchange and now trade on the NYSE Amex under the symbol NLP.  The NYSE Amex is the successor to the American Stock Exchange.  The approximate number of record holders of our Units at December 31, 2009, was 2,124.

 

High and low Unit prices for the period January 1, 2009, through December 31, 2009, were $5.51 to $2.95, respectively.  Quarterly distributions are determined based on current cash balances, cash flow generated by operations and cash reserves needed for future leasing costs, tenant finish costs and capital improvements.

 

High and low Unit prices for the period January 1, 2008, through December 31, 2008, were $6.65 to $3.00, respectively.  Quarterly distributions are determined based on current cash balances, cash flow generated by operations and cash reserves needed for future leasing costs, tenant finish costs and capital improvements.

 

The following table sets forth the price range of our limited partnership units on the NYSE Amex or its predecessor, the American Stock Exchange, and distributions declared for each quarter during the years ended December 31, 2009 and 2008.

 

 

 

Three Months Ended

 

 

 

March 31

 

June 30

 

September 30

 

December 31

 

2009

 

 

 

 

 

 

 

 

 

High

 

$

4.45

 

$

4.44

 

$

5.51

 

$

5.50

 

Low

 

$

2.95

 

$

3.01

 

$

3.12

 

$

3.55

 

Distributions declared

 

$

569,038

 

$

569,038

 

$

569,038

 

$

569,038

 

 

 

 

 

 

 

 

 

 

 

2008

 

 

 

 

 

 

 

 

 

High

 

$

5.20

 

$

6.65

 

$

6.50

 

$

5.55

 

Low

 

$

4.50

 

$

4.85

 

$

4.43

 

$

3.00

 

Distributions declared

 

$

1,138,076

 

$

910,461

 

$

910,461

 

$

569,038

 

 

We have a policy of paying regular distributions, although there is no assurance as to the payment of future distributions because they depend on, among other things, our future earnings, capital requirements and financial condition.  In addition, the payment of distributions is subject to the restrictions described in Part II, Item 8, Note 2, Section L, to the financial statements and discussed in Part II, Item 7-Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

On December 1, 2009, three entities created or controlled by Mr. Nichols commenced pre-arranged trading plans to purchase limited partnership units of NTS Realty pursuant to Rule 10b5-1 under the Act.  Each of the plans authorize its administrator, Wells Fargo Investments, LLC, to purchase approximately $225,000, $52,000 and $26,000, respectively, of NTS Realty’s limited partnership units from time to time through no later than November 2010.  Under the terms of the plans, Mr. Nichols has no discretion or control over the timing, effectuation or the amount of each purchase.

 

During the year ended December 31, 2009, 136,400 units were purchased by the entities created or controlled by Mr. Nichols pursuant to the trading plans announced May 16, 2008; December 1, 2008; December 15, 2008; and December 1, 2009, respectively.  The table below summarizes activity pursuant to these plans for the quarterly period ended December 31, 2009.

 

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Table of Contents

 

Period

 

Total Number of
Units Purchased

 

Average Price Paid
Per Unit

 

Total Number of
Units Purchased as
Part of Publicly
Announced Plans or
Programs

 

Maximum Number
(or Approximate
Dollar Value) of Units
That May Yet Be
Purchased Under the
Plans or Programs (1)

 

October 2009

 

9,900

 

$

4.18

 

375,391

(2)

(1

)

 

 

 

 

 

 

 

 

 

 

November 2009

 

26,300

 

$

4.51

 

401,691

(2)

(1

)

 

 

 

 

 

 

 

 

 

 

December 2009

 

6,800

 

$

4.68

 

408,491

(2)

(1

)

 

 

 

 

 

 

 

 

 

 

Total

 

43,000

 

$

4.46

 

408,491

(2)

(1

)

 


(1)          A description of the maximum amount that may be used to purchase our units under the trading plans is included in the narrative preceding this table.

(2)          Represents the total number of our limited partnership units that have been purchased pursuant to the trading plans by entities created or controlled by Mr. Nichols, pursuant to the current or any previous publicly announced plan or program by trading plans.

 

19



Table of Contents

 

ITEM 6 - SELECTED FINANCIAL DATA

 

The following table sets forth our selected financial data for 2009, 2008, 2007, 2006 and 2005.  We have derived the consolidated statement of operations and consolidated balance sheet data for the years ended December 31, 2009, 2008, 2007, 2006 and 2005 from our audited financial statements.

 

SUMMARY OF CONSOLIDATED STATEMENT OF OPERATIONS AND BALANCE SHEET DATA

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

2006

 

2005

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF OPERATIONS DATA

 

 

 

 

 

 

 

 

 

 

 

REVENUE:

 

 

 

 

 

 

 

 

 

 

 

Rental income

 

$

42,730,803

 

$

39,141,215

 

$

35,115,717

 

$

31,687,637

 

$

15,481,567

 

Tenant reimbursements

 

1,787,103

 

1,775,192

 

1,708,710

 

1,650,809

 

1,644,367

 

 

 

 

 

 

 

 

 

 

 

 

 

Total revenue

 

44,517,906

 

40,916,407

 

36,824,427

 

33,338,446

 

17,125,934

 

 

 

 

 

 

 

 

 

 

 

 

 

EXPENSES:

 

 

 

 

 

 

 

 

 

 

 

Operating expenses and operating expenses reimbursed to affiliate

 

15,572,095

 

13,778,917

 

12,230,857

 

11,384,726

 

6,655,651

 

Management fees

 

2,205,739

 

2,033,277

 

1,852,302

 

1,691,740

 

743,287

 

Property taxes and insurance

 

6,494,311

 

5,629,338

 

4,740,804

 

3,996,469

 

2,087,353

 

Professional and administrative expenses and professional and administrative expenses reimbursed to affiliate

 

2,707,216

 

2,878,772

 

3,143,436

 

3,499,623

 

4,077,411

 

Depreciation and amortization

 

17,304,344

 

14,696,081

 

13,214,123

 

12,712,163

 

4,899,451

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

44,283,705

 

39,016,385

 

35,181,522

 

33,284,721

 

18,463,153

 

 

 

 

 

 

 

 

 

 

 

 

 

OPERATING INCOME (LOSS)

 

234,201

 

1,900,022

 

1,642,905

 

53,725

 

(1,337,219

)

 

 

 

 

 

 

 

 

 

 

 

 

Interest and other income and interest and other income reimbursed to affiliate

 

293,462

 

405,673

 

60,826

 

97,402

 

367,384

 

Interest expense and interest expense reimbursed to affiliate

 

(16,191,885

)

(11,353,202

)

(11,223,533

)

(10,549,466

)

(4,754,615

)

Loss on disposal of assets

 

(207,482

)

(168,419

)

(66,052

)

(146,254

)

(222,832

)

Loss from investments in tenants in common

 

(2,137,128

)

(2,377,927

)

(1,608,295

)

 

 

Income from investment in joint venture

 

 

 

 

 

953,300

 

 

 

 

 

 

 

 

 

 

 

 

 

LOSS FROM CONTINUING OPERATIONS

 

(18,008,832

)

(11,593,853

)

(11,194,149

)

(10,544,593

)

(4,993,982

)

Discontinued operations, net

 

337,692

 

433,306

 

1,657,363

 

1,709,422

 

2,955,595

 

Gain on sale of discontinued operations

 

 

18,910,133

 

13,482,291

 

49,950,486

 

270,842

 

 

 

 

 

 

 

 

 

 

 

 

 

CONSOLIDATED NET (LOSS) INCOME

 

(17,671,140

)

7,749,586

 

3,945,505

 

41,115,315

 

(1,767,545

)

Net loss attributable to noncontrolling interest

 

(491,553

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NET (LOSS) INCOME

 

$

(17,179,587

)

$

7,749,586

 

$

3,945,505

 

$

41,115,315

 

$

(1,767,545

)

 

 

 

 

 

 

 

 

 

 

 

 

Distributions declared

 

$

2,276,152

 

$

3,528,036

 

$

4,552,304

 

$

5,690,804

 

$

5,690,804

 

 

 

 

 

 

 

 

 

 

 

 

 

Distributions declared per limited partnership unit

 

$

0.20

 

$

0.31

 

$

0.40

 

$

0.50

 

$

0.50

 

 

 

 

 

 

 

 

 

 

 

 

 

BALANCE SHEET DATA (end of year)

 

 

 

 

 

 

 

 

 

 

 

Land, buildings and amenities, net

 

$

296,699,646

 

$

278,847,073

 

$

280,045,077

 

$

300,325,681

 

$

171,129,869

 

Total assets

 

321,581,865

 

294,115,079

 

297,456,867

 

309,251,401

 

187,808,823

 

Mortgages and note payable

 

246,088,305

 

203,561,669

 

209,321,147

 

220,932,189

 

138,012,832

 

 

20



Table of Contents

 

ITEM 7 - MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This section provides our Management’s Discussion and Analysis of Financial Condition and Results of Operations (‘‘MD&A”).

 

The following discussion should be read in conjunction with the financial statements and supplementary data appearing in Part II, Item 8.

 

Critical Accounting Policies

 

General

 

A critical accounting policy is one that would materially affect our operations or financial condition, and requires management to make estimates or judgments in certain circumstances.  These judgments often result from the need to make estimates about the effect of matters that are inherently uncertain.  Critical accounting policies discussed in this section are not to be confused with accounting principles and methods disclosed in accordance with U.S. generally accepted accounting principles (‘‘GAAP’’).  GAAP requires information in financial statements about accounting principles, methods used and disclosures pertaining to significant estimates.  The following disclosures discuss judgments known to management pertaining to trends, events or uncertainties which were taken into consideration upon the application of those policies and the likelihood that materially different amounts would be reported upon taking into consideration different conditions and assumptions.

 

Impairment and Valuation

 

Financial Accounting Standards Board (‘‘FASB’’) Accounting Standards Codification (“ASC”) Topic 360 Property, Plant, and Equipment specifies circumstances in which certain long-lived assets must be reviewed for impairment.  If this review indicates that the carrying amount of an asset exceeds the sum of its expected future cash flows, the asset’s carrying value must be written down to fair value.  In determining the value of an investment property and whether the investment property is impaired, management considers several factors such as projected rental and vacancy rates, property operating expenses, capital expenditures, interest rates and recent appraisals when available.  The capitalization rate used to determine property valuation is based on among others, the market in which the investment property is located, length of leases, tenant financial strength, the economy in general, demographics, environment, property location, visibility, age and physical condition.  All of these factors are considered by management in determining the value of any particular investment property.  The value of any particular investment property is sensitive to the actual results of any of these factors, either individually or taken as a whole.  If the actual results differ from management’s judgment, the valuation could be negatively or positively affected.

 

Acquisitions

 

Upon acquisition of wholly-owned properties or joint venture investments that are less than wholly-owned, but which we control or for which we are the primary beneficiary, the assets and liabilities purchased are recorded at their fair market value at the date of the acquisition using the acquisition method in accordance with FASB ASC Topic 805 Business Combinations.  We recognize the net tangible and identified intangible assets based on fair values (including land, buildings, tenant improvements, acquired above and below market leases and the origination cost of acquired in-place leases) and acquired liabilities.  The intangible assets recorded are amortized over the weighted average lease lives.  We identify any above or below market leases or customer relationship intangibles that exist at the acquisition date.  We recognize mortgages and other liabilities at fair market value at the date of the acquisition.  We utilize an independent appraiser to assess fair value based on estimated cash flow projections for the tangible assets acquired that utilize discount and capitalization rates deemed appropriate and available market information.

 

We adopted FASB ASC Topic 805 Business Combinations on January 1, 2009, which requires us to expense acquisition costs as incurred.

 

Recognition of Rental Income

 

Under GAAP, we are required to recognize rental income based on the effective monthly rent for each lease.  The effective monthly rent is equal to the average monthly rent during the term of the lease, not the stated rent for any particular month.  The process, known as ‘‘straight-lining’’ or ‘‘stepping’’ rent, generally has the effect of increasing rental revenues during the early phases of a lease and decreasing rental revenues in the latter phases of

 

21



Table of Contents

 

a lease.  Due to the impact of “straight-lining” on a historical consolidating basis, rental income exceeded the cash collected for rent by approximately $0.3 million for each of the years ended December 31, 2009 and 2008.  Cash collected for rent exceeded rental income by approximately $0.3 million for the year ended December 31, 2007.  If rental income calculated on a straight-line basis exceeds the cash rent due under the lease, the difference is recorded as an increase in deferred rent receivable and included as a component of accounts receivable on the relevant balance sheet.  If the cash rent due under the lease exceeds rental income calculated on a straight-line basis, the difference is recorded as a decrease in deferred rent receivable and is recorded as a decrease of accounts receivable on the relevant balance sheet.  We defer recognition of contingent rental income, such as percentage or excess rent, until the specified target that triggers the contingent rental income is achieved.  We periodically review the collectability of outstanding receivables.  Allowances are generally taken for tenants with outstanding balances due for a period greater than sixty days and tenants with outstanding balances due for a period less than sixty days but that we believe are potentially uncollectible.

 

Recognition of Lease Termination Income

 

We recognize lease termination income upon receipt of the income.  We accrue lease termination income if there is a signed termination agreement, all of the conditions of the agreement have been met and the tenant is no longer occupying the property.

 

Cost Capitalization and Depreciation Policies

 

We review all expenditures and capitalize any item exceeding $2,500 deemed to be an upgrade or a tenant improvement with an expected useful life greater than one year.  Land, buildings and amenities are stated at cost.  Depreciation expense is computed using the straight-line method over the estimated useful life of the assets.  Buildings and improvements have estimated useful lives between 7-30 years, land improvements have estimated useful lives between 5-30 years and amenities have estimated useful lives between 5-30 years.  Acquired above and below market leases are amortized on a straight-line basis over the life of the related leases as an adjustment to rental income.  Acquired in-place lease origination cost is amortized over the life of the lease as a component of amortization expense.

 

Liquidity and Capital Resources

 

Our most liquid asset is our cash and equivalents, which consist of cash and short-term investments, but do not include any restricted cash.  Operating income generated by the properties is the primary source from which we generate cash.  Other sources of cash include the proceeds from mortgage loans and note payable.  Our main uses of cash relate to capital expenditures, required payments of mortgages and note payable, distributions and property taxes.

 

The components of the consolidated statements of cash flows for the years ended December 31, 2009, 2008 and 2007 are outlined below.

 

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

Operating activities

 

$

96,000

 

$

7,866,000

 

$

8,075,000

 

Investing activities

 

(32,681,000

)

1,414,000

 

10,227,000

 

Financing activities

 

43,819,000

 

(10,125,000

)

(17,485,000

)

 

 

 

 

 

 

 

 

Net increase (decrease) in cash and equivalents

 

$

11,234,000

 

$

(845,000

)

$

817,000

 

 

Cash Flow from Operating Activities

 

Net cash provided by operating activities decreased to approximately $0.1 million from $7.9 million for the years ended December 31, 2009 and 2008, respectively.  The decrease of approximately $7.8 million was primarily related to cash used for prepayment penalties of approximately $3.8 million, property taxes of approximately $1.5 million, lender held cash escrows of approximately $0.8 million, prepaid insurance of approximately $0.3 million and approximately $0.9 million of loan costs, all related to the December 17, 2009, debt refinancing.  We also used approximately $0.9 million to fund lender held cash escrows related to the acquisitions of Golf Brook Apartments and Sabal Park Apartments (June 2009), referred to as our “2009 acquisitions”.  These increased uses of cash were partially offset by decreased usages of cash totaling $0.4 million, which were individually immaterial.

 

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Table of Contents

 

Net cash provided by operating activities decreased to approximately $7.9 million from $8.1 million for the years ended December 31, 2008 and 2007, respectively.  This decrease of approximately $0.2 million was primarily due to an increase in cash used to satisfy accounts payable and accrued expenses primarily due to the sale of Atrium Center, Blankenbaker Business Center Phases I and II, Plainview Center, Plainview Point Office Center Phases I and II, Plainview Point Office Center Phase III and the ITT Parking Lot (the “Office Portfolio”), along with a decrease in other liabilities including a decrease in land deposits and in the valuation of our interest rate swap agreement.

 

Cash Flow from Investing Activities

 

Net cash used in investing activities was approximately $32.7 million for the year ended December 31, 2009, compared to cash provided by investing activities of approximately $1.4 million for the year ended December 31, 2008.  The change of approximately $34.1 million was primarily due to no sales of discontinued operations in 2009, while there were proceeds from the sales of discontinued operations of approximately $50.0 million in 2008, primarily from the sale of the Office Portfolio.  This change was primarily offset by less cash used in acquisitions (approximately $32.2 million was used in 2009 acquisitions, while approximately $41.0 million was used in the 2008 acquisition of Shelby Farms Apartments (June 2008), referred to as our “2008 acquisition”) and less cash used for additions to land, buildings and amenities of approximately $0.1 million.  In addition, in 2008, we loaned $3.5 million to the unaffiliated third party purchaser of the Office Portfolio, with $2.5 million of that balance being repaid in 2009.

 

Net cash provided by investing activities decreased to approximately $1.4 million from $10.2 million for the years ended December 31, 2008 and 2007, respectively.  The decrease of approximately $8.8 million was primarily the result of $23.8 million in additional proceeds related to property dispositions than in the comparable prior period, partially offset by issuing notes receivable to the unaffiliated third party purchaser of the Office Portfolio for $3.5 million, along with a $10.4 million decrease in cash used to invest in joint ventures as a tenant in common, a $1.7 million decrease in cash used for additions to land, buildings and amenities and a $0.3 million decrease in deposits on property acquisitions.

 

Cash Flow from Financing Activities

 

Net cash provided by financing activities was approximately $43.8 million for the year ended December 31, 2009, compared to cash used in financing activities of approximately $10.1 million for the year ended December 31, 2008.  Our 2009 activity included proceeds from mortgages payable for our 2009 acquisitions and our December 17, 2009 refinancing of approximately $180.5 million along with contributions from noncontrolling interest holders of approximately $5.6 million, which were partially offset by the payoff of mortgages by our December 17, 2009 refinancing totaling approximately $128.1 million, principal payments on mortgages of approximately $3.4 million, payments on our revolving note payable of approximately $6.5 million, additions to loan cost pertaining to refinancing of approximately $2.1 million and cash distributions of approximately $2.3 million.

 

Net cash used in financing activities decreased from approximately $17.5 million for the year ended December 31, 2007 to approximately $10.1 million for the year ended December 31, 2008.  Our 2008 activity included repayment of mortgages and our revolving note payable from proceeds of our sale of the Office Portfolio totaling approximately $36.3 million along with principal payments on mortgages of $3.0 million, an additional payment of our revolving note payable of $4.6 million and cash distributions of $4.1 million, which were partially offset by an increase in our revolving note payable of $5.0 million, a $6.2 million increase in mortgage payable and an increase in mortgages payable of $26.3 million issued for the permanent financing of Shelby Farms.

 

Future Liquidity

 

Our future liquidity depends significantly on our properties’ occupancy remaining at a level which allows us to make debt payments and have adequate working capital, currently and in the future.  If occupancy were to fall below that level and remain at or below that level for a significant period of time, our ability to make payments due under our debt agreements and to continue paying daily operational costs would be materially impaired.  In the next twelve months, we intend to operate the properties in a similar manner to their operation in recent years.  Cash reserves, which consist of unrestricted cash as shown on our balance sheet, were $11.2 million on December 31, 2009.

 

We made quarterly distributions of $0.05 per unit to our limited partners of record on April 17, 2009; July 16, 2009; October 16, 2009; and January 15, 2010, respectively.

 

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Table of Contents

 

Pursuant to lease agreements signed by December 31, 2009, we are obligated to incur expenditures of approximately $1.2 million funded by borrowings on our debt during the next twelve months primarily for renovations and tenant origination costs necessary to continue leasing our properties. This discussion of future liquidity details our material commitments. We anticipate repaying, seeking renewal or refinancing of our note and mortgage payable coming due in the next twelve months.

 

On February 1, 2010, we amended our $24.0 million mortgage payable to a bank.  The amendments converted $8.2 million of the balance to a revolving note payable due June 1, 2011.  The amendments also add a Debt Service Test, effective after June 30, 2010.  The revolver proceeds may be used to fund capital improvements, or to pay our mortgage payable to GE Commercial Finance Business Property due August 1, 2010.  Both the $15.3 million mortgage and the $8.2 million revolving note payable are secured by our Lakeshore Business Center properties.

 

On February 12, 2010, we made a principal payment of $8.2 million, from our proceeds from refinancing on December 17, 2009, on our new $8.2 million revolving mortgage payable to a bank.

 

We expect to receive $1.0 million on or before May 1, 2011, in satisfaction of our unaffiliated notes receivable.

 

On October 31, 2009, we amended our revolving note payable.  The amendment extended the maturity date to May 31, 2010, and included an Entity Level Debt Service Coverage Ratio.  Our availability on the revolving note payable was approximately $10.0 million at December 31, 2009.  We complied with all covenants and requirements at December 31, 2009.

 

Property Transactions

 

Acquisitions

 

During the years ended December 31, 2009, 2008 and 2007, we made the following property acquisitions either wholly or through investments in joint ventures:

 

Wholly-Owned Properties-Multifamily

 

Location

 

Units

 

Our Ownership

 

Date of Purchase

 

Purchase Price

 

Shelby Farms Apartments (1)

 

Memphis, TN

 

450

 

100

%

June, 2008

 

$

41,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Consolidated Joint Venture Properties-
Multifamily

 

Location

 

Units

 

Our Ownership

 

Date of Purchase

 

Purchase Price

 

Golf Brook Apartments (2)

 

Orlando, FL

 

195

 

51

%

June, 2009

 

$

19,500,000

 

Sabal Park Apartments (3)

 

Orlando, FL

 

162

 

51

%

June, 2009

 

$

13,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

Unconsolidated Joint Venture Properties-
Multifamily

 

Location

 

Units

 

Our Ownership

 

Date of Purchase

 

Purchase Price

 

The Overlook at St. Thomas Apartments (4)

 

Louisville, KY

 

484

 

60

%

March, 2007

 

$

46,000,000

 

Creek’s Edge at Stony Point Apartments (5)

 

Richmond, VA

 

202

 

51

%

August, 2007

 

$

32,300,000

 

 


(1)

Financed by a $26.3 million mortgage payable to a bank.

(2)

Financed by a $14.6 million mortgage payable to Federal Home Loan Mortgage Corporation. Our ownership percentage at December 31, 2009, was 51%.

(3)

Financed by a $9.6 million mortgage payable to Federal Home Loan Mortgage Corporation. Our ownership percentage at December 31, 2009, was 51%.

(4)

Property owned as a tenant in common with an unaffiliated third party. Financed by a $36.0 million mortgage payable to a bank. We are proportionately liable for this mortgage, limited to 60%, our interest as a tenant in common of this property.

(5)

Property owned as a tenant in common with an unaffiliated third party. Financed by a $22.8 million mortgage payable to an insurance company. We are jointly and severally liable for this mortgage. We own a 51% interest as a tenant in common of this property.

 

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Dispositions

 

During the years ended December 31, 2009, 2008 and 2007 we made the following property dispositions:

 

Wholly-Owned Properties-Commercial

 

Square Feet

 

Our Ownership

 

Date of Sale

 

Atrium Center (3)

 

104,286

 

100

%

May, 2008

 

Blankenbaker Business Center I (3)

 

160,689

 

100

%

May, 2008

 

Blankenbaker Business Center II (3)

 

77,408

 

100

%

May, 2008

 

Anthem Office Center (3)

 

85,305

 

100

%

May, 2008

 

Plainview Center (3)

 

98,000

 

100

%

May, 2008

 

Plainview Point Office Center Phase I and II (3)

 

57,301

 

100

%

May, 2008

 

Plainview Point Office Center Phase III (3)

 

61,680

 

100

%

May, 2008

 

ITT Parking Lot (3)

 

N/A

 

100

%

May, 2008

 

Springs Medical Office Center (1)

 

100,565

 

100

%

February, 2007

 

Springs Office Center (2)

 

125,964

 

100

%

February, 2007

 

 


(1)

Gain of approximately $8.9 million.

(2)

Gain of approximately $4.6 million.

(3)

Aggregate gain of approximately $18.9 million.

 

On June 23, 2009, we announced that we entered into an agreement to sell our Outlet Mall retail property to an unaffiliated third party.  The property was sold on March 12, 2010 for approximately $4.0 million in proceeds.  Pursuant to our management agreement, we paid a disposition fee of approximately $0.2 million, or 4%, of the gross sales price, to NTS Development Company.  We intend to use the proceeds from the sale to repay outstanding debt, for working capital requirements and/or to purchase properties in a manner that would qualify as a Section 1031 Exchange under the Internal Revenue Code.

 

On February 23, 2010, we entered into an agreement to sell our Sears Office Building to an unaffiliated third party for approximately $3.8 million.  The proposed purchaser is expected to close by April 30, 2010, with an option to extend to July 31, 2010.  We have offered seller financing to the purchaser, including additional proceeds to improve the building, totaling $4.7 million.

 

We may engage in transactions structured as “like-kind exchanges” of property to obtain favorable tax treatment under Section 1031 of the Internal Revenue Code.  If we are able to structure an exchange of properties as a “like-kind exchange,” then any gain we realize from the exchange would not be recognized for federal income tax purposes.  The test for determining whether exchanged properties are of “like-kind” is whether the properties are of the same nature or character.

 

We have presented separately as discontinued operations in all periods the results of operations for the following properties:

 

Property

 

Location

 

Status

 

Atrium Center

 

Louisville, KY

 

Sold 2008

 

Blankenbaker Business Center I

 

Louisville, KY

 

Sold 2008

 

Blankenbaker Business Center II

 

Louisville, KY

 

Sold 2008

 

Anthem Office Center

 

Louisville, KY

 

Sold 2008

 

Plainview Center

 

Louisville, KY

 

Sold 2008

 

Plainview Point Office Center Phase I and II

 

Louisville, KY

 

Sold 2008

 

Plainview Point Office Center Phase III

 

Louisville, KY

 

Sold 2008

 

ITT Parking Lot

 

Louisville, KY

 

Sold 2008

 

Springs Medical Office Center

 

Louisville, KY

 

Sold 2007

 

Springs Office Center

 

Louisville, KY

 

Sold 2007

 

Outlet Mall

 

Louisville, KY

 

Asset Held for Sale

 

Sears Office Building

 

Louisville, KY

 

Asset Held for Sale

 

 

These assets and liabilities held for sale have been separately identified on our balance sheets at December 31, 2009 and 2008.

 

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The components of discontinued operations are outlined below and include the results of operations for the respective periods in which we owned such assets during the years ended December 31, 2009, 2008 and 2007.

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

REVENUE:

 

 

 

 

 

 

 

Rental income

 

$

731,777

 

$

3,013,773

 

$

7,963,071

 

Tenant reimbursements

 

24,393

 

189,462

 

320,361

 

 

 

 

 

 

 

 

 

Total revenue

 

756,170

 

3,203,235

 

8,283,432

 

 

 

 

 

 

 

 

 

EXPENSES:

 

 

 

 

 

 

 

Operating expenses and operating expenses reimbursed to affiliate

 

156,668

 

951,621

 

2,561,800

 

Management fees

 

39,638

 

146,265

 

420,337

 

Property taxes and insurance

 

54,034

 

264,675

 

678,210

 

Depreciation and amortization

 

221,164

 

285,064

 

774,017

 

 

 

 

 

 

 

 

 

Total expenses

 

471,504

 

1,647,625

 

4,434,364

 

 

 

 

 

 

 

 

 

DISCONTINUED OPERATING INCOME

 

284,666

 

1,555,610

 

3,849,068

 

 

 

 

 

 

 

 

 

Interest and other income

 

134,877

 

8,806

 

50,255

 

Interest expense

 

(81,851

)

(1,131,110

)

(2,196,283

)

Loss on disposal of assets

 

 

 

(45,677

)

 

 

 

 

 

 

 

 

DISCONTINUED OPERATIONS, NET

 

$

337,692

 

$

433,306

 

$

1,657,363

 

 

The components of long-lived assets held for sale at December 31, 2009 consisted primarily of land, buildings and amenities and other assets for the properties being sold.  The components of long-lived liabilities held for sale at December 31, 2009, consisted primarily of accounts payable and accrued expenses, accounts payables and accrued expenses due to affiliate and other liabilities on the properties being sold.

 

The components of long-lived assets held for sale at December 31, 2008, consisted primarily of cash and equivalents-restricted, accounts receivable, land, buildings and amenities and other assets for the properties being sold.  The components of long-lived liabilities held for sale at December 31, 2008, consisted primarily of accounts payable and accrued expenses, accounts payable and accrued expenses due to affiliate and other liabilities on the properties being sold.

 

The components of long-lived assets held for sale at December 31, 2007, consisted primarily of cash and equivalents-restricted, accounts receivable, land, buildings and amenities, prepaid leasing commissions and other assets for the properties being sold.  The components of long-lived liabilities held for sale at December 31, 2007, consisted primarily of accounts payable and accrued expenses, accounts payable and accrued expenses due to affiliate, security deposit liabilities, other liabilities and any stand-alone mortgage on the properties being sold.

 

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RESULTS OF OPERATIONS

YEAR ENDED DECEMBER 31, 2009 AS COMPARED TO DECEMBER 31, 2008

AS COMPARED TO DECEMBER 31, 2007

 

This section includes our actual results of operations for the years ended December 31, 2009, 2008 and 2007.  As of December 31, 2009, we owned wholly or as a tenant in common with an unaffiliated third party or through joint venture investments, 7 office and business centers, 14 multifamily properties and 3 retail properties.  We generate substantially all of our operating income from property operations.

 

Net (loss) income for the three years ended December 31, 2009, 2008 and 2007 was approximately ($17.2) million, $7.7 million and $3.9 million, respectively.  Our decrease in net income for the year ended December 31, 2009, as compared to 2008 was driven by an $18.9 million decrease in our gain on sale of discontinued operations, an increase of $4.8 million in interest expense and a decrease in operating income of approximately $1.7 million primarily related to the 2009 acquisitions and the 2008 acquisition, partially offset by an increase of approximately $0.5 million in net loss attributable to noncontrolling interests as the result of the 2009 acquisitions.  Our increase in net income for the year ended December 31, 2008, as compared to 2007 was driven by a $5.4 million increase in our gain on sale of discontinued operations and an increase in operating income in our partnership segment of approximately $0.5 million primarily related to increased interest income and decreased professional and administrative expenses and professional and administrative expenses reimbursed to affiliate.  The increase is offset by a decrease in income from discontinued operations of approximately $1.2 million primarily related to the sale of the Office Portfolio in May 2008 and an increase in the loss from investments in tenants in common of approximately $0.8 million.

 

Rental Income and Tenant Reimbursements

 

Rental income and tenant reimbursements from continuing operations for the years ended December 31, 2009 and 2008 were approximately $44.5 million and $40.9 million, respectively.  The increase of $3.6 million, or 9%, was primarily the result of a $4.8 million increase in rental income from our 2009 and 2008 acquisitions, which was partially offset by a $0.5 million decrease in rental income primarily related to the increase in rental concessions at our multifamily properties located in Tennessee and a $0.6 million decrease in occupancy related to Kroger’s departure from NTS Center in October 2008.  There were no other material offsetting changes in rental income and tenant reimbursements for the years ended December 31, 2009 and 2008.

 

Rental income and tenant reimbursements from continuing operations for the years ended December 31, 2008 and 2007 were approximately $40.9 million and $36.8 million, respectively.  The increase of $4.1 million, or 11%, was primarily the result of a $2.3 million increase in rental income from our 2008 acquisition, a $1.0 million increase in rental income across all of our remaining multifamily properties and a $0.7 million increase in rental income across the commercial segment.  There were no other material offsetting changes in rental income and tenant reimbursements for the years ended December 31, 2008 and 2007.

 

Operating Expenses and Operating Expenses Reimbursed to Affiliate

 

Operating expenses from continuing operations for the years ended December 31, 2009 and 2008 were approximately $10.7 million and $9.4 million, respectively.  The increase of $1.3 million, or 14%, was primarily the result of a $1.6 million increase in operating expenses from our 2009 and 2008 acquisitions, $0.2 million increase in bad debt expense and repairs and maintenance across the commercial segment and $0.1 million increase in landscaping and utilities at Park Place Apartments.  The increase was partially offset by a $0.6 million decrease in repairs and maintenance at Willow Lake Apartments and The Willows of Plainview Apartments.  There were no other material offsetting changes in operating expenses for the years ended December 31, 2009 and 2008.

 

Operating expenses from continuing operations for the years ended December 31, 2008 and 2007 were approximately $9.4 million and $7.9 million, respectively.  The increase of $1.5 million, or 19%, was primarily the result of a $0.6 million increase in operating expenses from our 2008 acquisition along with a $0.4 million increase in repairs and maintenance across the remaining multifamily segment, a $0.4 million increase in operating expenses across the commercial segment primarily related to repairs and maintenance at the Lakeshore Business Centers and a $0.1 million increase in utilities across all of our remaining multifamily properties.  There were no other material offsetting changes in operating expenses for the years ended December 31, 2008 and 2007.

 

Operating expenses reimbursed to affiliate from continuing operations for the years ended December 31, 2009 and 2008 were approximately $4.9 million and $4.4 million, respectively.  The increase of $0.5 million, or

 

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11%, was primarily the result of our 2009 and 2008 acquisitions, which was partially offset by a $0.1 million decrease in operating expenses reimbursed to affiliate across the remaining multifamily segment.  There were no other material offsetting changes in operating expenses reimbursed to affiliate for the years ended December 31, 2009 and 2008.

 

Operating expenses reimbursed to affiliate from continuing operations for the years ended December 31, 2008 and 2007 were approximately $4.4 million and $4.3 million, respectively.  The increase of $0.1 million, or 2%, was primarily the result of our 2008 acquisition.  There were no other material offsetting changes in operating expenses reimbursed to affiliate for the years ended December 31, 2008 and 2007.

 

We do not have any employees.  Pursuant to our management agreement, NTS Development Company employs the individuals who provide services necessary to operate our properties and conduct our business.  NTS Development Company provides employees that may also perform services for other properties and business enterprises.  In the situation where a particular employee benefits multiple operations, the employee’s cost is proportionately charged out to the entity receiving the services.  We only reimburse charges from NTS Development Company for actual costs of employee services incurred for our benefit. The cost of services provided to us by NTS Development Company’s employees are classified in our consolidated statements of operations as “Operating expenses reimbursed to affiliate.”  The services provided by others are classified as “Operating expenses.”

 

Operating expenses reimbursed to affiliate are for the services performed by employees of NTS Development Company, an affiliate of our general partner.  These employee services include property management, leasing, maintenance, security and other services necessary to manage and operate our business.

 

Operating expenses reimbursed to affiliate consisted approximately of the following:

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

Property

 

$

3,370,000

 

$

2,875,000

 

$

2,831,000

 

Multifamily leasing

 

627,000

 

544,000

 

398,000

 

Administrative

 

824,000

 

907,000

 

1,043,000

 

Other

 

32,000

 

51,000

 

63,000

 

 

 

 

 

 

 

 

 

Total

 

$

4,853,000

 

$

4,377,000

 

$

4,335,000

 

 

Management Fees

 

Management fees from continuing operations for the years ended December 31, 2009 and 2008 were approximately $2.2 million and $2.0 million, respectively.  The increase of $0.2 million, or 10%, was primarily the result of our 2009 and 2008 acquisitions.  There were no other material offsetting changes in management fees for the years ended December 31, 2009 and 2008.

 

Management fees from continuing operations for the years ended December 31, 2008 and 2007 were approximately $2.0 million and $1.9 million, respectively.  The increase of $0.1 million, or 5%, was primarily the result of our 2008 acquisition.  There were no other material offsetting changes in management fees for the years ended December 31, 2008 and 2007.

 

Pursuant to our collective management agreements, NTS Development Company receives property management fees equal to 5% of the gross collected revenue from our wholly-owned properties, consolidated joint venture properties and properties owned by our eight newly formed wholly-owned subsidiaries financed through Federal Home Loan Mortgage Corporation.  NTS Development Company receives property management fees from our consolidated joint venture properties and unconsolidated joint venture properties owned as a tenant in common with an unaffiliated third party equal to 3.5% of their gross collected revenue under separate management agreements.  We were the beneficiary of a preferential ownership interest, disproportionately greater than our initial cash investment in each property owned as a tenant in common with an unaffiliated third party.  NTS Development Company has agreed to accept a lower management fee for the properties we own as a tenant in common with an unaffiliated third party in exchange for a larger potential disposition fee.  Disposition fees of up to 6% of the gross sales price may be paid to NTS Development Company for the sale of one of our properties owned as a tenant in common with an unaffiliated third party.  Management fees are calculated as a percentage of cash collections and are recorded on the accrual basis.  As a result, the fluctuations in revenue between years will differ from the fluctuations of management fee expense.

 

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Table of Contents

 

Property Taxes and Insurance

 

Property taxes and insurance from continuing operations for the years ended December 31, 2009 and 2008 were approximately $6.5 million and $5.6 million, respectively.  The increase of $0.9 million, or 16%, was primarily due to a $1.0 million increase in property taxes and insurance from our 2009 and 2008 acquisitions and a $0.4 million increase in property taxes at Willow Lake Apartments due to higher property tax assessments.  The increases were partially offset by a $0.5 million decrease in property taxes at The Lakes Apartments, Castle Creek Apartments and Lake Clearwater Apartments.  There were no other material offsetting changes in property taxes and insurance for the years ended December 31, 2009 and 2008.

 

Property taxes and insurance from continuing operations for the years ended December 31, 2008 and 2007 were approximately $5.6 million, and $4.7 million, respectively.  The increase of $0.9 million, or 19%, was primarily due to a $0.7 million increase in property taxes at Castle Creek Apartments, Lake Clearwater Apartments and The Lakes Apartments due to higher property tax assessments and a $0.5 million increase in property taxes and insurance from our 2008 acquisition.  The increases were partially offset by a $0.3 million decrease in property taxes at Willow Lake Apartments due to a successful property tax assessment appeal.  There were no other material offsetting changes in property taxes and insurance for the years ended December 31, 2008 and 2007.

 

Professional and Administrative Expenses and Professional and Administrative Expenses Reimbursed to Affiliate

 

Professional and administrative expenses from continuing operations for the years ended December 31, 2009 and 2008 were approximately $1.1 million and $1.3 million, respectively.  The decrease of $0.2 million, or 15%, was primarily the result of an overall decrease in legal and professional fees.  There were no other material offsetting changes in professional and administrative expenses for the years ended December 31, 2009 and 2008.

 

Professional and administrative expenses from continuing operations for the years ended December 31, 2008 and 2007 were approximately $1.3 million and $1.4 million, respectively.  The decrease of $0.1 million, or 7%, was primarily the result of an overall decrease in legal and professional fees.  There were no other material offsetting changes in professional and administrative expenses for the years ended December 31, 2008 and 2007.

 

Professional and administrative expenses reimbursed to affiliate from continuing operations for each of the years ended December 31, 2009 and 2008 were approximately $1.6 million.  There were no material offsetting changes in professional and administrative expenses reimbursed to affiliate for the years ended December 31, 2009 and 2008.

 

Professional and administrative expenses reimbursed to affiliate from continuing operations for the years ended December 31, 2008 and 2007 were approximately $1.6 million and $1.7 million, respectively.  The decrease of $0.1 million, or 6%, was primarily due to decreased personnel costs and compensation reimbursed to NTS Development Company as a result of the sale of the Office Portfolio.  There were no other material offsetting changes in professional and administrative expenses reimbursed to affiliate for the years ended December 31, 2008 and 2007.

 

We do not have any employees.  Pursuant to our collective management agreements, NTS Development Company employs the individuals who provide services necessary to operate our properties and conduct our business.  NTS Development Company provides employees that may also perform services for other properties and business enterprises.  In the situation where a particular employee benefits multiple operations, the employee’s cost is proportionately charged out to the entity receiving the services.  We only reimburse charges from NTS Development Company for actual costs of employee services incurred for our benefit. The cost of services provided to us by NTS Development Company’s employees are classified in our consolidated statements of operations as “Professional and administrative expenses reimbursed to affiliate.”  The services provided by others are classified as “Professional and administrative expenses.”

 

Professional and administrative expenses reimbursed to affiliate are for the services performed by employees of NTS Development Company, an affiliate of our general partner.  These employee services include legal, financial and other services necessary to manage and operate our business.

 

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Professional and administrative expenses reimbursed to affiliate consisted approximately of the following:

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

Finance

 

$

364,000

 

$

388,000

 

$

423,000

 

Accounting

 

724,000

 

765,000

 

820,000

 

Investor relations

 

282,000

 

294,000

 

335,000

 

Human resources

 

13,000

 

20,000

 

18,000

 

Overhead

 

212,000

 

152,000

 

136,000

 

 

 

 

 

 

 

 

 

Total

 

$

1,595,000

 

$

1,619,000

 

$

1,732,000

 

 

Depreciation and Amortization

 

Depreciation and amortization from continuing operations for the years ended December 31, 2009 and 2008 was approximately $17.3 million and $14.7 million, respectively.  The increase of $2.6 million, or 18%, was primarily due to our 2009 and 2008 acquisitions.  There were no other material offsetting changes in depreciation and amortization for the years ended December 31, 2009 and 2008.

 

Depreciation and amortization from continuing operations for the years ended December 31, 2008 and 2007 was approximately $14.7 million and $13.2 million, respectively.  The increase of $1.5 million, or 11%, was primarily due to our 2008 acquisition.  There were no other material offsetting changes in depreciation and amortization for the years ended December 31, 2008 and 2007.

 

Interest and Other Income

 

Interest and other income from continuing operations for the years ended December 31, 2009 and 2008 was approximately $0.3 million and $0.4 million, respectively.  The decrease of $0.1 million, or 25%, was primarily the result of a decrease in miscellaneous income from a prior tenant at NTS Center and a decrease in interest income earned on our unaffiliated notes receivable offset by an increase in interest earned on property tax refunds and miscellaneous charges in our multifamily segment.  There were no other material offsetting changes in interest and other income for the years ended December 31, 2009 and 2008.

 

Interest and other income from continuing operations for the years ended December 31, 2008 and 2007 was approximately $0.4 million and $0.1 million, respectively.  The increase of $0.3 million was primarily due to interest earned on the proceeds from the sale of the Office Portfolio along with interest earned on our notes receivable from an unaffiliated third party as consideration from the sale of the Office Portfolio and miscellaneous income from a prior tenant at NTS Center.  There were no other material offsetting changes in interest and other income for the years ended December 31, 2008 and 2007.

 

Interest Expense

 

Interest expense from continuing operations for the years ended December 31, 2009 and 2008 was approximately $16.2 million and $11.4 million, respectively.  The increase of $4.8 million, or 42%, was primarily the result of $3.8 million in prepayment premiums and approximately $0.6 million of unamortized loan costs related to the debt refinancing on December 17, 2009.  The remaining increase of $0.4 million is the result of interest expense related to mortgages from our 2008 and 2009 acquisitions offset by decreased interest expense related to the interest rate swap and a decrease in the interest expense on our variable rate debt.  There were no other material offsetting changes in interest expense for the years ended December 31, 2009 and 2008.

 

Interest expense from continuing operations for the years ended December 31, 2008 and 2007 was approximately $11.4 million and $11.2 million, respectively.  The increase of $0.2 million, or 2%, was primarily the result of our 2008 acquisition and an increase in interest expense related to the interest rate swap offset by a decrease in interest expense on our variable rate debt.  There were no other material offsetting changes in interest expense for the years ended December 31, 2008 and 2007.

 

Loss on Disposal of Assets

 

Loss on disposal of assets from continuing operations for the years ended December 31, 2009, 2008 and 2007 can be attributed to assets that were not fully depreciated at the time of replacement, spread amongst the

 

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commercial and multifamily properties.  The 2009 replacements included heating and air conditioning units, tenant improvements, exterior lighting, fitness equipment, property handrails and a fire alarm system.  The 2008 replacements included roof replacements, heating and air conditioning units, tenant improvements and signage. The 2007 replacements included heating and air conditioning units, tenant improvements, signage, fitness equipment and a telephone system replacement, amongst others.

 

Loss From Investment in Tenants in Common

 

Loss from investment in tenants in common for the years ended December 31, 2009, 2008 and 2007 includes net operating losses attributable to our investments in tenants in common with an unaffiliated third party acquired in 2007.  The properties are The Overlook at St. Thomas Apartments and Creek’s Edge at Stony Point Apartments.

 

Discontinued Operations, Net

 

Net income from discontinued operations for the years ended December 31, 2009, 2008 and 2007 were approximately $0.3 million, $0.4 million and $1.7 million, respectively.  Discontinued operations, net, for the years ended December 31, 2009, 2008 and 2007 include the operating results for the properties previously sold and currently held for sale as listed below.

 

Property

 

Location

 

Status

Atrium Center

 

Louisville, KY

 

Sold 2008

Blankenbaker Business Center I

 

Louisville, KY

 

Sold 2008

Blankenbaker Business Center II

 

Louisville, KY

 

Sold 2008

Anthem Office Center

 

Louisville, KY

 

Sold 2008

Plainview Center

 

Louisville, KY

 

Sold 2008

Plainview Point Office Center Phase I and II

 

Louisville, KY

 

Sold 2008

Plainview Point Office Center Phase III

 

Louisville, KY

 

Sold 2008

ITT Parking Lot

 

Louisville, KY

 

Sold 2008

Springs Medical Office Center

 

Louisville, KY

 

Sold 2007

Springs Office Center

 

Louisville, KY

 

Sold 2007

Outlet Mall

 

Louisville, KY

 

Asset Held for Sale

Sears Office Building

 

Louisville, KY

 

Asset Held for Sale

 

Gain on Sale of Discontinued Operations

 

Gain on sale of discontinued operations for the year ended December 31, 2008 was approximately $18.9 million due to the sale of the Office Portfolio in May 2008.

 

Gain on sale of discontinued operations for the year ended December 31, 2007 was approximately $13.5 million due to the sale of the Springs Medical Office Center and the Springs Office Building in February 2007.

 

Contractual Obligations and Commercial Commitments

 

The following table represents our obligations and commitments to make future payments as of December 31, 2009, under contracts, such as debt and lease agreements including principal and interest, and under contingent commitments, such as debt guarantees.

 

 

 

Payment Due by Period

 

 

 

Total

 

Within
One Year

 

One-Three
Years

 

Three-Five
Years

 

After Five
Years

 

Contractual Obligations

 

 

 

 

 

 

 

 

 

 

 

Mortgages and note payable

 

$

349,077,657

 

$

17,026,391

 

$

53,366,246

 

$

40,547,234

 

$

238,137,786

 

Capital lease obligations

 

 

 

 

 

 

Operating leases (1)

 

 

 

 

 

 

Other long-term obligations (2)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total contractual cash obligations

 

$

349,077,657

 

$

17,026,391

 

$

53,366,246

 

$

40,547,234

 

$

238,137,786

 

 


(1)   We are party to numerous small operating leases for office equipment such as copiers, postage machines and fax machines, which represent an insignificant obligation.

(2)   We are party to several annual maintenance agreements with vendors for such items as outdoor maintenance, pool service and security systems, which represent an insignificant obligation.

 

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ITEM 7A - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Our primary market risk exposure with regard to financial instruments is expected to be our exposure to changes in interest rates.  We refinanced substantially all of our debt acquired at the time of our merger with instruments which bear interest at a fixed rate, with the exception of approximately $47.8 million bearing interest at variable rates.  We anticipate that a hypothetical 100 basis point increase in interest rates would increase interest expense on our variable rate debt by approximately $0.5 million annually.

 

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ITEM 8 — CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Board of Directors
NTS Realty Holdings Limited Partnership:

 

We have audited the accompanying consolidated balance sheet of NTS Realty Holdings Limited Partnership (the “Partnership”) as of December 31, 2009, and the related consolidated statements of operations, partners’ equity and cash flows for the year then ended.  The Partnership’s management is responsible for these financial statements.  Our responsibility is to express an opinion on these financial statements based on our audit.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States).  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.  The Partnership is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting.  Our audit included consideration of internal control over financial reporting as a basis for designing auditing procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Partnership’s internal control over financial reporting.  Accordingly, we express no such opinion.  Our audit also included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management and evaluating the overall financial statement presentation.  We believe that our audit provides a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of NTS Realty Holdings Limited Partnership as of December 31, 2009, and the results of its operations and its cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.

 

 

/s/ BKD, LLP

 

Louisville, Kentucky

 

March 29, 2010

 

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Board of Directors
NTS Realty Holdings Limited Partnership:

 

We have audited the accompanying consolidated balance sheet of NTS Realty Holdings Limited Partnership (the “Company”) as of December 31, 2008, and the related consolidated statements of operations, partners’ equity and cash flows for each of the two years in the period ended December 31, 2008.  Our audits also included the financial statement schedule III listed in the Index at Part IV, Item 15(2).  These financial statements and schedule III are the responsibility of the Company’s management.  Our responsibility is to express an opinion on these financial statements and schedule III based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States).  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.  We were not engaged to perform an audit of the Company’s internal control over financial reporting.  Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting.  Accordingly, we express no such opinion.  An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation.  We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of NTS Realty Holdings Limited Partnership at December 31, 2008 and the consolidated results of their operations and their cash flows for each of the two years in the period ended December 31, 2008, in conformity with U.S. generally accepted accounting principles.  Also, in our opinion, the related financial statement schedule III, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

 

 

/s/ Ernst & Young LLP

 

Louisville, Kentucky

 

March 30, 2009,

except for the items restated for the Company’s reclassification of the Outlet Mall and Sears Office Building from continuing operations to discontinued operations, as described in Note 2, as to which the date is March 29, 2010

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

Consolidated Balance Sheets as of December 31, 2009 and 2008

 

 

 

2009

 

2008

 

ASSETS:

 

 

 

 

 

Cash and equivalents

 

$

11,233,735

 

$

 

Cash and equivalents-restricted

 

2,227,744

 

460,571

 

Accounts receivable, net of allowance for doubtful accounts of $203,359 and $90,932 at December 31, 2009 and 2008, respectively

 

1,646,142

 

1,642,253

 

Notes receivable

 

1,000,000

 

3,500,000

 

Land, buildings and amenities, net

 

291,151,198

 

273,077,462

 

Long-lived assets held for sale

 

5,549,932

 

5,884,430

 

Investments in and advances to tenants in common

 

4,174,947

 

6,432,165

 

Other assets

 

4,598,167

 

3,118,198

 

 

 

 

 

 

 

Total assets

 

$

321,581,865

 

$

294,115,079

 

 

 

 

 

 

 

LIABILITIES:

 

 

 

 

 

Mortgages and note payable

 

$

246,088,305

 

$

203,561,669

 

Accounts payable and accrued expenses

 

2,875,643

 

2,612,525

 

Accounts payable and accrued expenses due to affiliate

 

634,930

 

263,658

 

Distributions payable

 

569,038

 

569,038

 

Security deposits

 

856,384

 

821,999

 

Long-lived liabilities held for sale

 

72,321

 

170,926

 

Other liabilities

 

3,754,653

 

5,025,807

 

 

 

 

 

 

 

Total liabilities

 

254,851,274

 

213,025,622

 

 

 

 

 

 

 

 

 

 

 

 

 

COMMITMENTS AND CONTINGENCIES (NOTE 9)

 

 

 

 

 

 

 

 

 

 

 

EQUITY:

 

 

 

 

 

Partners’ equity

 

61,633,718

 

81,089,457

 

Noncontrolling interest

 

5,096,873

 

 

 

 

 

 

 

 

Total equity

 

66,730,591

 

81,089,457

 

 

 

 

 

 

 

Total liabilities and equity

 

$

321,581,865

 

$

294,115,079

 

 

The accompanying notes to financial statements are an integral part of these statements.

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

Consolidated Statements of Operations for the Years Ended December 31, 2009, 2008 and 2007

 

 

 

2009

 

2008

 

2007

 

REVENUE:

 

 

 

 

 

 

 

Rental income

 

$

42,730,803

 

$

39,141,215

 

$

35,115,717

 

Tenant reimbursements

 

1,787,103

 

1,775,192

 

1,708,710

 

 

 

 

 

 

 

 

 

Total revenue

 

44,517,906

 

40,916,407

 

36,824,427

 

 

 

 

 

 

 

 

 

EXPENSES:

 

 

 

 

 

 

 

Operating expenses

 

10,719,216

 

9,402,046

 

7,895,930

 

Operating expenses reimbursed to affiliate

 

4,852,879

 

4,376,871

 

4,334,927

 

Management fees

 

2,205,739

 

2,033,277

 

1,852,302

 

Property taxes and insurance

 

6,494,311

 

5,629,338

 

4,740,804

 

Professional and administrative expenses

 

1,112,431

 

1,259,792

 

1,411,276

 

Professional and administrative expenses reimbursed to affiliate

 

1,594,785

 

1,618,980

 

1,732,160

 

Depreciation and amortization

 

17,304,344

 

14,696,081

 

13,214,123

 

 

 

 

 

 

 

 

 

Total operating expenses

 

44,283,705

 

39,016,385

 

35,181,522

 

 

 

 

 

 

 

 

 

OPERATING INCOME

 

234,201

 

1,900,022

 

1,642,905

 

 

 

 

 

 

 

 

 

Interest and other income

 

293,462

 

405,673

 

60,826

 

Interest expense

 

(16,191,885

)

(11,353,202

)

(11,223,533

)

Loss on disposal of assets

 

(207,482

)

(168,419

)

(66,052

)

Loss from investments in tenants in common

 

(2,137,128

)

(2,377,927

)

(1,608,295

)

 

 

 

 

 

 

 

 

LOSS FROM CONTINUING OPERATIONS

 

(18,008,832

)

(11,593,853

)

(11,194,149

)

Discontinued operations, net

 

337,692

 

433,306

 

1,657,363

 

Gain on sale of discontinued operations

 

 

18,910,133

 

13,482,291

 

 

 

 

 

 

 

 

 

CONSOLIDATED NET (LOSS) INCOME

 

(17,671,140

)

7,749,586

 

3,945,505

 

Net loss attributable to noncontrolling interests

 

(491,553

)

 

 

 

 

 

 

 

 

 

 

NET (LOSS) INCOME

 

$

(17,179,587

)

$

7,749,586

 

$

3,945,505

 

 

 

 

 

 

 

 

 

Loss from continuing operations allocated to limited partners

 

$

(16,878,227

)

$

(10,865,984

)

$

(10,491,377

)

Discontinued operations, net allocated to limited partners

 

316,492

 

406,102

 

1,553,313

 

Gain on sale of discontinued operations allocated to limited partners

 

 

17,722,944

 

12,635,869

 

Net loss attributable to noncontrolling interests allocated to limited partners

 

(460,693

)

 

 

 

 

 

 

 

 

 

 

NET (LOSS) INCOME ALLOCATED TO LIMITED PARTNERS

 

$

(16,101,042

)

$

7,263,062

 

$

3,697,805

 

 

 

 

 

 

 

 

 

Loss from continuing operations per limited partnership unit

 

$

(1.58

)

$

(1.02

)

$

(0.98

)

Discontinued operations, net per limited partnership unit

 

0.03

 

0.04

 

0.14

 

Gain on sale of discontinued operations per limited partnership unit

 

 

1.66

 

1.19

 

Net loss attributable to noncontrolling interests per limited partnership unit

 

(0.04

)

 

 

 

 

 

 

 

 

 

 

NET (LOSS) INCOME PER LIMITED PARTNERSHIP UNIT

 

$

(1.51

)

$

0.68

 

$

0.35

 

 

 

 

 

 

 

 

 

Weighted average number of limited partnership interests

 

10,666,269

 

10,666,269

 

10,666,322

 

 

The accompanying notes to financial statements are an integral part of these statements.

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

Consolidated Statements of Cash Flows for the Years Ended December 31, 2009, 2008 and 2007

 

 

 

2009

 

2008

 

2007

 

OPERATING ACTIVITIES:

 

 

 

 

 

 

 

Consolidated net (loss) income

 

$

(17,671,140

)

$

7,749,586

 

$

3,945,505

 

Adjustments to reconcile consolidated net (loss) income to net cash provided by operating activities:

 

 

 

 

 

 

 

Gain on sale of discontinued operations

 

 

(18,910,133

)

(13,482,291

)

Loss on disposal of assets

 

207,482

 

168,419

 

111,729

 

Depreciation and amortization

 

18,212,329

 

15,662,011

 

14,709,779

 

Write-off of loan costs

 

600,138

 

 

36,868

 

Loss from investments in tenants in common

 

2,137,218

 

2,377,927

 

1,608,295

 

Changes in assets and liabilities:

 

 

 

 

 

 

 

Cash and equivalents — restricted

 

(1,673,629

)

156,167

 

(244,765

)

Accounts receivable

 

15,716

 

122,953

 

538,455

 

Other assets

 

(1,030,789

)

1,773,415

 

(710,423

)

Accounts payable and accrued expenses

 

243,115

 

(1,097,195

)

(130,019

)

Accounts payable and accrued expenses due to affiliate

 

374,119

 

(306,233

)

(182,465

)

Security deposits

 

34,385

 

(140,737

)

(98,064

)

Other liabilities

 

(1,352,602

)

309,343

 

1,972,101

 

 

 

 

 

 

 

 

 

Net cash provided by operating activities

 

96,342

 

7,865,523

 

8,074,705

 

 

 

 

 

 

 

 

 

INVESTING ACTIVITIES:

 

 

 

 

 

 

 

Additions to land, buildings and amenities

 

(3,005,695

)

(4,050,169

)

(5,759,609

)

Proceeds from sale of discontinued operations

 

 

49,963,973

 

26,104,758

 

Acquisitions

 

(32,175,459

)

(41,000,000

)

 

Deposits on property acquisitions

 

 

 

300,000

 

Notes receivable

 

2,500,000

 

(3,500,000

)

 

Investments in and advances to tenants in common

 

 

 

(10,418,387

)

 

 

 

 

 

 

 

 

Net cash (used in) provided by investing activities

 

(32,681,154

)

1,413,804

 

10,226,762

 

 

 

 

 

 

 

 

 

FINANCING ACTIVITIES:

 

 

 

 

 

 

 

Contributions from noncontrolling interest holders in properties

 

5,588,426

 

 

 

Distributions from tenants in common properties

 

120,000

 

 

 

Proceeds from mortgages payable

 

180,520,000

 

60,310,500

 

4,500,000

 

Revolving note payable, net

 

(6,482,149

)

(18,447,611

)

8,051,729

 

Principal payments on mortgages payable

 

(3,378,506

)

(2,971,554

)

(2,962,771

)

Additional payments on mortgages payable

 

(128,132,709

)

(44,650,813

)

(21,200,000

)

Additions to loan costs

 

(2,140,363

)

(268,112

)

(182,788

)

Cash distributions

 

(2,276,152

)

(4,097,074

)

(5,690,550

)

 

 

 

 

 

 

 

 

Net cash provided by (used in) financing activities

 

43,818,547

 

(10,124,664

)

(17,484,380

)

 

 

 

 

 

 

 

 

NET INCREASE (DECREASE) IN CASH AND EQUIVALENTS

 

11,233,735

 

(845,337

)

817,087

 

 

 

 

 

 

 

 

 

CASH AND EQUIVALENTS, beginning of year

 

 

845,337

 

28,250

 

 

 

 

 

 

 

 

 

CASH AND EQUIVALENTS, end of year

 

$

11,233,735

 

$

 

$

845,337

 

 

 

 

 

 

 

 

 

Interest paid

 

$

16,171,076

 

$

12,131,229

 

$

12,707,600

 

 

The accompanying notes to financial statements are an integral part of these statements.

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

Consolidated Statements of Partners’ Equity (1) for the Years Ended December 31, 2009, 2008 and 2007

 

 

 

General
Partner
Interests

 

Limited
Partners
Interests

 

General
Partner

 

Limited
Partners

 

Total

 

PARTNERS’ EQUITY:

 

 

 

 

 

 

 

 

 

 

 

Balances on January 1, 2007

 

714,491

 

10,667,117

 

$

4,863,549

 

$

72,611,157

 

$

77,474,706

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

 

 

247,700

 

3,697,805

 

3,945,505

 

 

 

 

 

 

 

 

 

 

 

 

 

Distributions declared

 

 

 

(285,795

)

(4,266,509

)

(4,552,304

)

 

 

 

 

 

 

 

 

 

 

 

 

Retirement of limited partnership interests

 

 

(848

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balances on December 31, 2007

 

714,491

 

10,666,269

 

$

4,825,454

 

$

72,042,453

 

$

76,867,907

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

 

 

486,524

 

7,263,062

 

7,749,586

 

 

 

 

 

 

 

 

 

 

 

 

 

Distributions declared

 

 

 

(221,492

)

(3,306,544

)

(3,528,036

)

 

 

 

 

 

 

 

 

 

 

 

 

Balances on December 31, 2008

 

714,491

 

10,666,269

 

$

5,090,486

 

$

75,998,971

 

$

81,089,457

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss

 

 

 

(1,078,545

)

(16,101,042

)

(17,179,587

)

 

 

 

 

 

 

 

 

 

 

 

 

Distributions declared

 

 

 

(142,898

)

(2,133,254

)

(2,276,152

)

 

 

 

 

 

 

 

 

 

 

 

 

Balances on December 31, 2009

 

714,491

 

10,666,269

 

$

3,869,043

 

$

57,764,675

 

$

61,633,718

 

 


(1)         For the periods presented, there are no elements of other comprehensive income as defined by the Financial Accounting Standards Board, Accounting Standards Codification Topic 220 Comprehensive Income.

 

The accompanying notes to financial statements are an integral part of these statements.

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

Notes to Consolidated Financial Statements

 

Note 1 - Organization

 

NTS Realty Holdings Limited Partnership (“NTS Realty”), is a limited partnership, organized in the state of Delaware in 2003 and was formed by the merger of NTS-Properties III; NTS-Properties IV; NTS-Properties V, a Maryland limited partnership; NTS-Properties VI, a Maryland limited partnership; and NTS-Properties VII, Ltd. (the “Partnerships”), along with other real estate entities affiliated with their general partners, specifically Blankenbaker Business Center 1A and the NTS Private Group’s assets and liabilities.  The merger was completed on December 28, 2004, after a majority of each Partnership’s limited partners voted for the merger.  The Partnerships and Blankenbaker Business Center 1A were terminated by the merger and ceased to exist.  Concurrent with the merger, ORIG, LLC (“ORIG”), a Kentucky limited liability company, affiliated with the Partnerships’ general partners, contributed substantially all of its assets and liabilities to NTS Realty, including the NTS Private Group properties.  The merger was part of a court approved settlement of class action litigation involving the Partnerships.

 

We are in the business of developing, constructing, owning and operating multifamily properties, commercial and retail real estate.  As of December 31, 2009, we owned wholly, as a tenant in common with an unaffiliated third party or through joint venture investments, 24 properties, comprised of 7 office and business centers, 14 multifamily properties and 3 retail properties.  The properties are located in and around Louisville (8) and Lexington (1), Kentucky; Fort Lauderdale (3) and Orlando (2), Florida; Indianapolis (4), Indiana; Memphis (1) and Nashville (2), Tennessee; Richmond (2), Virginia; and Atlanta (1), Georgia.  Our office and business centers aggregate approximately 671,000 square feet.  Our multifamily properties contain 4,029 units.  Our retail properties contain approximately 210,000 square feet.

 

The terms “we,” “us” or “our,” as the context requires, may refer to NTS Realty, its wholly-owned properties and its interests in consolidated and unconsolidated joint venture investments.

 

Note 2 - Significant Accounting Policies

 

A) Basis of Presentation

 

The consolidated financial statements include the accounts of all wholly-owned properties and properties that are less than wholly-owned, but which we control or for which we are the primary beneficiary.  We also consolidate a variable interest entity, or VIE, when we are determined to be the primary beneficiary.  Our determination of the primary beneficiary of a VIE considers all relationships between us and the VIE, including management agreements and other contractual arrangements, when determining the party obligated to absorb the majority of the expected losses, as defined, by accounting standards.  There have been no changes during 2009 in conclusions about whether an entity qualifies as a VIE or whether we are the primary beneficiary of any previously identified VIE.  During 2009, we did not provide financial or other support to a previously identified VIE that we were not previously contractually obligated to provide.  Our properties owned as a tenant in common with an unaffiliated third party are accounted for under the equity method.  Intercompany transactions and balances have been eliminated.

 

The book values of cash and equivalents, trade receivables and trade payables are considered to be representative of their respective fair values because of the immediate or short-term maturity of these financial instruments.

 

B) Fair Value of Financial Instruments

 

In September 2006, the Financial Accounting Standards Board (“FASB”) issued FASB Accounting Standards Codification (“ASC”) Topic 820 Fair Value Measurements and Disclosures (“FASB ASC Topic 820”).  FASB ASC Topic 820 requires companies to determine fair value based on the price that would be received to sell the asset or paid to transfer the liability to a market participant.  FASB ASC Topic 820 emphasizes that fair value is a market-based measurement, not an entity specific measurement.  The provisions of FASB ASC Topic 820 were effective as of January 1, 2008.  However, FASB ASC 820-10-65 deferred the effective date for certain non-financial assets and liabilities not re-measured at fair value on a recurring basis to fiscal years beginning after November 15, 2008, or our first quarter of 2009.  The adoption of FASB ASC 820-10-65 did not have any impact on our consolidated statements of operations.

 

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FASB ASC Topic 820 requires that assets and liabilities carried at fair value be classified and disclosed in one of the following categories:

 

·                  Level 1:  Quoted market prices in active markets for identical assets or liabilities.

 

·                  Level 2:  Observable market based inputs or unobservable inputs that are corroborated by market data.

 

·                  Level 3:  Unobservable inputs that are not corroborated by market data.

 

Our financial assets and liabilities that are measured at fair value on a recurring basis as of December 31, 2009 and 2008, are as follows:

 

 

 

Fair Value Measurements as of December 31, 2009

 

 

 

Carrying
Value

 

Level 1

 

Level 2

 

Level 3

 

Financial liabilities:

 

 

 

 

 

 

 

 

 

Interest rate swap (1)

 

$

 

$

 

$

 

$

 

 

 

 

Fair Value Measurements as of December 31, 2008

 

 

 

Carrying
Value

 

Level 1

 

Level 2

 

Level 3

 

Financial liabilities:

 

 

 

 

 

 

 

 

 

Interest rate swap (1)

 

$

475,336

 

$

 

$

475,336

 

$

 

 


(1)         Fair value for our interest rate swap was determined based on the valuation statements issued as of December 31, 2008 by the counter-party bank.  The fair value is based upon the estimated amounts we would receive to sell an asset or transfer a liability in an orderly transaction between market participants at the reporting dates and is determined using interest rate market pricing modelsThe interest rate swap expired September 1, 2009.

 

Financial Instruments

 

During the second quarter 2009, we adopted FASB ASC Topic 825 Financial Instruments which requires disclosures about fair value of financial instruments in both interim and annual financial statements.

 

Certain of our assets and liabilities are considered financial instruments.  Fair value estimates, methods and assumptions are set forth below.

 

Cash and equivalents and cash and equivalents — restricted — The carrying amount of these assets and liabilities approximates fair value as of December 31, 2009 and 2008, due to the short-term nature of such accounts.

 

Notes receivable — As of December 31, 2009 and 2008, we determined the estimated fair values of our notes receivable were approximately $0.9 million and $3.3 million, respectively, by discounting future cash receipts utilizing a discount rate equivalent to the rate at which similar notes receivable would be originated at the reporting date.

 

Mortgages and note payable — As of December 31, 2009 and 2008, we determined the estimated fair values of our mortgages and note payable, including those relating to discontinued operations, were approximately $246.0 million and $217.6 million, respectively, by discounting future cash payments utilizing a discount rate equivalent to the rate at which similar instruments would be originated at the reporting date.

 

C) Recent Accounting Pronouncements

 

In December 2007, the FASB clarified that a noncontrolling interest in a subsidiary is an ownership interest in a consolidated entity which should be reported as equity in the parent’s consolidated financial statements and also requires an acquirer to measure the identifiable assets acquired, the liabilities assumed and any noncontrolling interest in the acquiree at their fair values on the acquisition date, with goodwill being the excess value over the net identifiable assets acquired.  The guidance also requires acquisition related costs to be expensed as incurred.  The guidance is effective for financial statements issued for fiscal years beginning after December 15, 2008.  On January 1, 2009, we adopted the guidance which did not have a significant impact on our consolidated financial statements.

 

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In June 2009, the FASB also issued an amendment to the accounting and disclosure requirements for the consolidation of variable interest entities, or VIEs.  This amendment requires an enterprise to perform a qualitative analysis when determining whether or not it must consolidate a VIE.  The amendment also requires an enterprise to continuously reassess whether it must consolidate a VIE.  Additionally, the amendment requires enhanced disclosures about an enterprise’s involvement with VIEs and any significant change in risk exposure due to that involvement, as well as how its involvement with VIEs impacts the enterprise’s financial statements.  Finally, an enterprise will be required to disclose significant judgments and assumptions used to determine whether or not to consolidate a VIE.  This amendment is effective for financial statements issued for fiscal years beginning after November 15, 2009.  Management is in the process of determining the impact of adopting this amendment.

 

D) Tax Status

 

We are treated as a partnership or pass-through entity for federal income tax purposes.  As such, no provisions for income taxes were made.  The taxable income or loss was passed through to the holders of the partnership units for inclusion on their individual income tax returns.

 

A reconciliation of net income for financial statement purposes versus that for income tax reporting is as follows:

 

 

 

Year Ended
December 31,

 

 

 

2009

 

2008

 

Net (loss) income

 

$

(17,179,606

)

$

7,749,586

 

Items handled differently for tax purposes:

 

 

 

 

 

Depreciation and amortization

 

7,196,798

 

3,960,175

 

Prepaid rent and other capitalized costs

 

(193,002

)

395,404

 

Gain on sale of discontinued operations

 

 

(7,849,306

)

Loss on disposal of assets

 

(143,646

)

(333,483

)

Acquisition costs

 

(158,025

)

(158,025

)

Joint venture (loss) income

 

(192,725

)

 

Change in accounting method

 

(2,441,048

)

 

Other

 

(328,137

)

493,127

 

 

 

 

 

 

 

Taxable income (loss)

 

$

(13,439,391

)

$

4,257,478

 

 

E) Use of Estimates in the Preparation of Financial Statements

 

The preparation of financial statements in accordance with U.S. generally accepted accounting principles requires us 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.

 

F) Reclassifications of 2008 and 2007 Financial Statements

 

Certain reclassifications have been made to the December 31, 2008 and 2007, financial statements to conform with December 31, 2009, classifications.  Our Outlet Mall retail property and our Sears Office Building were reclassified during 2009 from continuing operations to discontinued operations and are classified as held for sale on our balance sheets.  These reclassifications have not had a material impact on the related financial statement line items on our consolidated balance sheets or statement of operations and no effect on previously reported operating results or partners’ equity.

 

G) Cash and Equivalents

 

Cash and equivalents include cash on hand and short-term, highly liquid investments with initial maturities of three months or less.  We have a cash management program, which provides for the overnight investment of excess cash balances.  Under an agreement with a bank, excess cash is invested in a mutual fund for U.S. government and agency securities each night.

 

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H) Cash and Equivalents - Restricted

 

Cash and equivalents-restricted represents cash on hand and short-term, highly liquid investments with initial maturities of three months or less which have been escrowed with certain mortgage companies and banks for property taxes, insurance and tenant improvements in accordance with certain loan and lease agreements and certain security deposits.

 

I) Basis of Property and Depreciation

 

Land, buildings and amenities are stated at cost.  Costs directly associated with the acquisition, development and construction of a project are capitalized.  Depreciation is computed using the straight-line method over the estimated useful lives of the assets, which are 5-30 years for land improvements, 7-30 years for buildings and improvements and 5-30 years for amenities.  Tenant improvements are generally depreciated over the life of the initial or renewal term of the respective tenant lease.  The aggregate cost of our properties for federal tax purposes is approximately $252.8 million at December 31, 2009.

 

Depreciation expense from continuing operations for the years ended December 31, 2009, 2008 and 2007 was approximately as follows:

 

 

 

Year Ended December 31,

 

 

 

2009

 

2008

 

2007

 

NTS Realty

 

$

16,900,000

 

$

14,366,000

 

$

13,021,000

 

 

Depreciation expense included in discontinued operations was approximately $0.2 million, $0.3 million and $0.7 million for the years ended December 31, 2009, 2008 and 2007, respectively.

 

J) Business Combinations and Acquisitions

 

In December 2007, the FASB issued FASB ASC Topic 805 Business Combinations. FASB ASC Topic 805 requires the acquiring entity in a business combination to measure the assets acquired, liabilities assumed (including contingencies) and any noncontrolling interests at their fair values on the acquisition date.  The statement also requires that acquisition-related transaction costs be expensed as incurred and acquired research and development value be capitalized.  In addition, acquisition-related restructuring costs are to be capitalized.  The provisions of FASB ASC Topic 805 were effective for acquisitions starting January 1, 2009.

 

Upon acquisition of wholly-owned properties or joint venture investments that are less than wholly-owned, but which we control or for which we are the primary beneficiary, the assets and liabilities purchased are recorded at their fair market value at the date of the acquisition using the acquisition method in accordance with FASB ASC Topic 805 Business Combinations.  We recognized the net tangible and identified intangible assets for each of the properties acquired based on fair values (including land, buildings, tenant improvements, acquired above and below market leases and the origination cost of acquired in-place leases) and acquired liabilities.  The intangible assets recorded in relation to our multifamily properties will be amortized over a period of one year, which approximates the weighted average lease lives.  No above or below market leases or customer relationship intangibles existed at the acquisition date.  At the date of the acquisition, the carrying value of mortgages and other liabilities approximated fair market value.  We utilized an independent appraiser to assess fair value based on estimated cash flow projections for the tangible assets acquired that utilize discount and capitalization rates deemed appropriate and available market information.

 

FASB ASC Topic 360 Property, Plant, and Equipment specifies circumstances in which certain long-lived assets must be reviewed for impairment.  If the carrying amount of an asset exceeds the sum of its expected future cash flows, the asset’s carrying value must be written down to fair value.  In determining the value of an investment property and whether the investment property is impaired, management considers several factors such as projected rental and vacancy rates, property operating expenses, capital expenditures and interest rates.  The capitalization rate used to determine property valuation is based on the market in which the investment property is located, length of leases, tenant financial strength, the economy in general, demographics, environment, property location, visibility, age and physical condition among others.  All of these factors are considered by management in determining the value of any particular investment property.  The value of any particular investment property is sensitive to the actual results of any of these factors, either individually or taken as a whole.  If the actual results differ from

 

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management’s judgment, the valuation could be negatively or positively affected.  Application of this standard for the years ended December 31, 2009, 2008 and 2007, did not result in an impairment loss.

 

K) Accounts Payable Due to Affiliate

 

Accounts payable due to affiliate includes amounts owed to NTS Development Company for reimbursement of salary and overhead expenses and fees for services rendered as provided for in our management agreement.

 

L) Revenue Recognition

 

Our commercial and retail properties’ revenues are accounted for as operating leases.  We accrue minimum rents on a straight-line basis over the initial or renewal terms of their respective leases.  Certain of our retail tenants are also required to pay overage rents based on sales over a stated base amount during the lease year.  We recognize overage rents only when each tenant’s sales exceeds a specified sales threshold.  We structure our leases to allow us to recover a significant portion of our real estate taxes, property operating and repairs and maintenance expenses from our commercial tenants.  Property operating expenses typically include utility, insurance, security, janitorial, landscaping and other administrative expenses.  We accrue reimbursements from tenants for recoverable portions of all these expenses as revenue in the applicable period.  We also receive estimated payments for these reimbursements from substantially all our tenants throughout the year.  We do this to reduce the risk of loss on uncollectible accounts once we perform the final year-end billings for recoverable expenditures.  We recognize the difference between estimated recoveries and the final billed amounts in the subsequent year, and we believe these differences are not material in any period presented.

 

Our multifamily communities have resident leases with terms generally of twelve months or less.  We recognize rental revenue on an accrual basis when due from residents.  Rental concessions and other inducements to the leases are recognized to revenue on a straight-line basis over the life of the respective leases.  In accordance with our standard lease terms, rental payments are generally due on a monthly basis.

 

We recognize revenue in accordance with each tenant’s lease agreement.  Certain of our lease agreements are structured to include scheduled and specified rent increases over the lease term.  For financial reporting purposes, the income from these leases are recognized on a straight-line basis over the initial lease term.  Accrued income from these leases in accounts receivable was approximately $1.3 million, $1.0 million and $0.7 million at December 31, 2009, 2008 and 2007, respectively.  All commissions paid to commercial leasing agents and incentives paid to tenants are deferred and amortized on a straight-line basis over the applicable initial or renewal lease term.

 

We recognize lease termination income upon receipt of the income.  We accrue lease termination income if there is a signed termination agreement, all of the conditions of the agreement have been met and the tenant is no longer occupying the property.

 

M) Advertising

 

We expense advertising costs as incurred.  Advertising expense was immaterial to us during 2009, 2008, and 2007.

 

N) Distribution Policy

 

We pay distributions if and when authorized by our managing general partner.  We are required to pay distributions on a quarterly basis, commencing in the first quarter of 2005, no less than sixty-five percent (65%) of our “net cash flow from operations” as this term is defined in regulations promulgated by the Treasury Department under the Internal Revenue Code of 1986, as amended; provided that if a law is enacted or existing law is modified or interpreted in a manner that subjects us to taxation as a corporation or otherwise subjects us to entity level taxation for federal, state or local income tax purposes, we will adjust the amount distributed to reflect our obligation to pay tax.  Any distribution other than a distribution with respect to the final quarter of a calendar year shall be made no later than forty-five (45) days after the last day of such quarter based on our estimate of “net cash flow from operations” for the year.  Any distribution with respect to the final quarter of a calendar year shall be made no later than ninety (90) days after the last day of such quarter based on actual “net cash flow from operations” for the year, adjusted for any excess or insufficient distributions made with respect to the first three quarters of the calendar year.

 

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“Net cash flow from operations” may be reduced by the amount of reserves as determined by us each quarter.  We will establish these reserves for, among other things, working capital or capital improvement needs.  Therefore, there is no assurance that we will have “net cash flow from operations” from which to pay distributions in the future.  For example, our partnership agreement permits our managing general partner to reinvest sales or refinancing proceeds in new and existing properties or to create reserves to fund future capital expenditures.  Because “net cash flow from operations” is calculated after reinvesting sales or refinancing proceeds or establishing reserves, we may not have any “net cash flow from operations” from which to pay distributions.

 

Note 3 - Concentration of Credit Risk

 

We own and operate wholly, as a tenant in common with an affiliated third party or through joint venture investments with an unaffiliated third party, commercial, multifamily and retail properties in Louisville and Lexington, Kentucky; Fort Lauderdale and Orlando, Florida; Indianapolis, Indiana; Memphis and Nashville, Tennessee; Richmond, Virginia; and Atlanta, Georgia.

 

Our financial instruments that are exposed to concentrations of credit risk consist of cash and equivalents and cash and equivalents-restricted.  We maintain our cash accounts primarily with banks located in Kentucky.  The total cash balances are insured by the FDIC up to $250,000 per bank account.  We may at times, in certain accounts, have deposits in excess of $250,000 per bank account.

 

Note 4 - Land, Buildings and Amenities

 

The following schedule provides an analysis of our investment in land, buildings and amenities as of December 31:

 

 

 

2009

 

2008

 

Land and improvements

 

$

76,026,648

 

$

66,725,244

 

Buildings and improvements

 

258,309,097

 

236,240,662

 

Amenities

 

22,442,177

 

19,183,827

 

 

 

 

 

 

 

Total land, buildings and amenities

 

356,777,922

 

322,149,733

 

 

 

 

 

 

 

Less accumulated depreciation

 

(60,078,276

)

(43,302,660

)

 

 

 

 

 

 

Total land, buildings and amenities, net

 

$

296,699,646

 

$

278,847,073

 

 

Note 5 - Mortgages and Note Payable

 

Mortgages and note payable as of December 31 consist of the following:

 

 

 

2009

 

2008

 

Mortgage payable to an insurance company in monthly installments of principal and interest, bearing fixed interest at 5.07%, maturing on March 15, 2015, secured by certain land, buildings and amenities

 

$

 

$

27,534,884

 

 

 

 

 

 

 

Mortgage payable to a bank in monthly installments of principal and interest, bearing interest at a variable rate based on LIBOR one-month rate plus 3.50%, currently 3.74%, due June 1, 2011, secured by certain land, buildings and amenities, with a carrying value of $17,174,710 and a $640,000 letter of credit. The mortgage is guaranteed by Mr. Nichols and Mr. Lavin. The mortgage was amended February 1, 2010

 

23,566,000

 

23,907,000

 

 

 

 

 

 

 

Mortgage payable to an insurance company in monthly installments of principal and interest, bearing fixed interest at 5.98%, maturing January 15, 2015, secured by certain land, buildings and amenities

 

 

71,041,740

 

 

 

 

 

 

 

Mortgage payable to an insurance company in monthly installments of principal and interest, bearing fixed interest at 5.35%, maturing January 15, 2015, secured by certain land, buildings and amenities

 

 

32,001,720

 

 

 

 

 

 

 

Revolving note payable to a bank for $10.0 million, with interest payable in monthly installments, unsecured, at a variable rate based on LIBOR plus 2.50%, currently 2.74%, due May 31, 2010

 

 

6,482,149

 

 

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2009

 

2008

 

Mortgage payable to GE Commercial Finance Business Property in monthly installments of principal and interest, bearing fixed interest at 9.00%, maturing August 1, 2010, secured by certain land, buildings and amenities, with a carrying value of $2,548,356

 

2,289,831

 

2,412,387

 

 

 

 

 

 

 

Mortgage payable to an insurance company in monthly installments of principal and interest, bearing fixed interest at 8.45%, maturing November 1, 2015, secured by certain land, buildings and amenities, with a carrying value of $1,898,520

 

2,002,165

 

2,277,378

 

 

 

 

 

 

 

Mortgage payable to a bank in monthly installments of principal and interest, bearing fixed interest at 5.11%, maturing December 1, 2014, secured by certain land, buildings and amenities, with a carrying value of $11,861,014

 

11,381,809

 

11,575,911

 

 

 

 

 

 

 

Mortgage payable to a bank, with interest payable in monthly installments until October 1, 2011, bearing fixed interest at 6.03%, maturing September 1, 2018, secured by certain land, buildings and amenities, with a carrying value of $36,951,710

 

26,328,500

 

26,328,500

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, with interest payable in monthly installments until July 1, 2011, bearing interest at a variable rate based on LIBOR one-month rate plus 3.33%, currently 3.57%, maturing July 1, 2016, secured by certain land, buildings and amenities, with a carrying value of $19,428,798

 

14,625,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, with interest payable in monthly installments until July 1, 2011, bearing interest at a variable rate based on LIBOR one-month rate plus 3.50%, currently 3.74%, maturing July 1, 2016, secured by certain land, buildings and amenities, with a carrying value of $12,481,903

 

9,600,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $21,369,546

 

13,895,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $37,278,639

 

27,000,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $20,948,767

 

16,845,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $36,189,912

 

27,675,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $18,266,703

 

11,390,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $22,308,573

 

30,625,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $9,541,644

 

10,945,000

 

 

 

 

 

 

 

 

Mortgage payable to Federal Home Loan Mortgage Corporation, in monthly installments of principal and interest, bearing fixed interest at 5.40%, maturing January 1, 2020, secured by certain land, buildings and amenities, with a carrying value of $12,706,413

 

17,920,000

 

 

 

 

 

 

 

 

Total mortgages and note payable

 

$

246,088,305

 

$

203,561,669

 

 

Based on the borrowing rates currently available to us for loans with similar terms and average maturities, the fair value of long-term debt on December 31, 2009, was approximately $246.0 million.

 

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As of October 31, 2009, we amended our revolving note payable.  The amendment extended the maturity date to May 31, 2010, and included an Entity Level Debt Service Coverage Ratio, referred to as our “debt ratio.”  The debt ratio requires that we maintain as of the end of each fiscal quarter, on a trailing four quarter basis derived from our publicly filed Form 10-K and Form 10-Q filings, as may be periodically restated, a debt ratio of at least 1.10 to 1.0.  The debt ratio is defined as adjusted income divided by our principal and interest payments.  Adjusted income is defined as the sum of operating income (loss) plus depreciation and amortization plus interest and other income, each as defined in the above-mentioned filings and reports plus our percentage ownership of net operating income (loss).  Principal and interest payments are defined as interest expense (as defined in the most recent consolidated statement of operations) plus principal payments on mortgages payable (as defined in the most recent consolidated statement of cash flows) plus our percentage ownership of scheduled interest and principal payments (as determined by the lender) not otherwise reflected in interest expense or principal payments on mortgages payable.

 

On December 17, 2009, we completed eight mortgage loans from Federal Home Loan Mortgage Corporation, through eight newly formed wholly-owned subsidiaries. The new loans from the Federal Home Loan Mortgage Corporation aggregate approximately $156.3 million; carry a 5.4% fixed rate of annual interest and a 10-year term.  Approximately $128.1 million of the proceeds were used to refinance our mortgage loans payable to an insurance company.  Of the remaining proceeds, approximately $3.8 million was used for prepayment premiums, an amount equal to 3% of the aggregate outstanding principal balance of our mortgage loans payable to an insurance company, loan cost additions of approximately $1.5 million, property tax payments of approximately $1.5 million, approximately $0.8 million to fund lender held cash escrows required by the new loans and $0.3 million for insurance premiums.  Of the remaining approximately $20.3 million of proceeds, $13.6 million was used to paydown our revolving note payable and the remainder will be used for working capital and to fund capital improvements, including tenant improvements among the commercial and multifamily segments.

 

In accordance with FASB ASC 470-50-40, we expensed our $3.8 million of prepayment premiums discussed above, which were included in interest expense.  We also expensed $0.6 million of unamortized loan cost related to mortgage loans payable to an insurance company, which were included in depreciation and amortization expense.

 

On February 1, 2010, we amended our $24.0 million mortgage payable to a bank.  The amendments converted $8.2 million of the balance to a revolving note payable due June 1, 2011.  The amendments also add a Debt Service Test, effective after June 30, 2010.  The revolver proceeds may be used to fund capital improvements, or to pay our mortgage payable to GE Commercial Finance Business Property due August 1, 2010.  Both the $15.3 million mortgage and the $8.2 million revolving note payable are secured by our Lakeshore Business Center properties.

 

On February 12, 2010, we made a principal payment of $8.2 million, from our proceeds from refinancing on December 17, 2009, on our new $8.2 million revolving mortgage payable to a bank.

 

At December 31, 2009, our total availability to draw on our revolving note payable was $10.0 million.

 

Interest paid for the twelve months ended December 31, 2009 and 2008, was approximately $16.2 million and $12.1 million, respectively.

 

Our mortgages may be prepaid but are generally subject to a yield-maintenance premium.  Certain mortgages and note payable contain covenants and requirements that we maintain specified debt limits and ratios related to our debt balances and property values.  We complied with all covenants and requirements at December 31, 2009.  We anticipate renewing or refinancing our mortgages and note payable coming due within the next twelve months.

 

We entered into an interest rate swap agreement beginning in September 2007 that effectively converted $18.0 million of our variable-rate debt bearing interest at the LIBOR one month rate to a fixed rate basis through September 2009, when the contract expired.

 

The interest rate swap expired on September 1, 2009.  The fair value of the interest rate swap agreement at December 31, 2008, was approximately $0.5 million and is included in Other Liabilities on our Consolidated Balance Sheet.  During the years ended December 31, 2009, 2008 and 2007, we recognized a net loss of approximately $0.1 million, $0.5 million and $0.4 million, respectively, on the interest rate swap agreement after any net payments were received or made.

 

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Scheduled maturities of debt are as follows:

 

For the Years Ended December 31,

 

Amount

 

2010

 

$

4,986,177

 

2011

 

26,191,092

 

2012

 

3,697,690

 

2013

 

3,940,246

 

2014

 

14,411,886

 

Thereafter

 

192,861,214

 

 

 

 

 

 

 

$

246,088,305

 

 

Mortgages payable for our unconsolidated joint venture properties as of December 31 consist of the following:

 

 

 

2009

 

2008

 

 

 

 

 

 

 

Mortgage payable to a bank in monthly installments of principal and interest bearing fixed interest at 5.72%, maturing April 11, 2017, secured by certain land, buildings and amenities, with a carrying value of $38,394,093 (1)

 

$

34,787,919

 

$

35,268,090

 

 

 

 

 

 

 

Mortgage payable to an insurance company in monthly installments of principal and interest bearing fixed interest at 5.99%, maturing November 15, 2017, secured by certain land buildings and amenities, with a carrying value of $27,792,073 (2)

 

$

22,727,309

 

$

22,750,000

 

 


(1)         We are proportionately liable for this mortgage, limited to 60%, our interest as a tenant in common.

(2)         We are jointly and severally liable under this mortgage.

 

Note 6 — Investments in and Advances to Tenants in Common

 

We own a tenant in common interest in and operate the following properties:

 

·                  The Overlook at St. Thomas Apartments: 484-unit luxury apartment complex in Louisville, Kentucky.  We own a 60% interest as a tenant in common with an unaffiliated third party.

·                  Creek’s Edge at Stony Point Apartments: 202-unit luxury apartment complex in Richmond, Virginia.  We own a 51% interest as a tenant in common with an unaffiliated third party.

 

Presented below are the summarized balance sheets and statements of operations for the years ended December 31, 2009 and 2008, for these properties:

 

 

 

2009

 

2008

 

Summarized Balance Sheets

 

 

 

 

 

Land, buildings and amenities

 

$

66,186,166

 

$

70,726,877

 

Other, net

 

1,497,712

 

1,525,783

 

Total assets

 

$

67,683,878

 

$

72,252,660

 

 

 

 

 

 

 

Mortgages payable and other liabilities

 

$

58,170,033

 

$

58,697,143

 

Equity

 

9,513,845

 

13,555,517

 

Total liabilities and equity

 

$

67,683,878

 

$

72,252,660

 

 

 

 

2009

 

2008

 

Summarized Statements of Operations

 

 

 

 

 

Revenue

 

$

8,266,576

 

$

8,030,366

 

Operating loss

 

(395,575

)

(801,670

)

Net loss

 

(3,841,583

)

(4,543,764

)

 

 

 

 

 

 

Distributions

 

 

 

 

 

The Overlook at St. Thomas

 

$

200,000

 

$

 

Creek’s Edge at Stony Point

 

 

 

 

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Note 7 - Rental Income

 

NTS Realty

 

The following is a schedule of minimum future rental income on noncancellable operating leases for continuing operations as of December 31, 2009:

 

For the Years Ended December 31,

 

Amount

 

2010

 

$

6,117,831

 

2011

 

5,710,793

 

2012

 

4,998,553

 

2013

 

3,674,931

 

2014

 

2,397,367

 

Thereafter

 

4,475,454

 

 

 

 

 

 

 

$

27,374,929

 

 

Note 8 - Related Party Transactions

 

Pursuant to our collective management agreements, NTS Development Company receives fees for a variety of services performed for our benefit.  NTS Development Company also receives fees under separate management agreements for each of our unconsolidated joint venture properties owned as a tenant in common with an unaffiliated third party and our eight newly formed wholly-owned subsidiaries financed through Federal Home Loan Mortgage Corporation.  Property management fees are paid in an amount equal to 5% of the gross collected revenue from our wholly-owned properties, consolidated joint venture properties and our eight newly formed wholly-owned subsidiaries financed through Federal Home Loan Mortgage Corporation.  Fees are paid in an amount equal to 3.5% of the gross collected revenue from our unconsolidated joint venture properties owned as a tenant in common with an unaffiliated third party.  We were the beneficiary of a preferential ownership interest, disproportionately greater than our initial cash investment in each property owned as a tenant in common with an unaffiliated third party.  Construction supervision fees are paid in an amount equal to 5% of the costs incurred which relate to capital improvements.  Also pursuant to the agreements, NTS Development Company receives commercial leasing fees equal to 4% of the gross rental amount for new leases and 2% of the gross rental amount for new leases in which a broker is used and for renewals or extensions.  Disposition fees are paid to NTS Development Company in an amount of 1% to 4% of the aggregate sales price of a property pursuant to our management agreement and up to a 6% fee upon disposition on our properties owned as a tenant in common with an unaffiliated third party under separate management agreements.  NTS Development Company is reimbursed its actual costs for services rendered to NTS Realty.  NTS Development Company has agreed to accept a lower management fee for the properties we own as a tenant in common with an unaffiliated third party in exchange for a larger potential disposition fee.

 

Employee costs are allocated among NTS Realty, other affiliates of our managing general partner and for the benefit of third parties, so that a full time employee can be shared by multiple entities.  Each employee’s services, which are dedicated to a particular entity’s operations, are allocated as a percentage of each employee’s costs to that entity.  We only reimburse charges from NTS Development Company for actual costs of employee services incurred for our benefit.

 

We were charged the following amounts pursuant to an agreement with NTS Development Company for the years ended December 31, 2009, 2008 and 2007.  These charges include items which have been expensed as operating expenses reimbursed to affiliate or professional and administrative expenses reimbursed to affiliate and items that have been capitalized as other assets or as land, buildings and amenities.  Certain of these items are included in our results of discontinued operations.

 

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Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

 

 

 

 

 

 

 

 

Property management fees

 

$

2,245,000

 

$

2,180,000

 

$

2,273,000

 

 

 

 

 

 

 

 

 

Operating expenses reimbursement — property

 

3,402,000

 

3,065,000

 

3,373,000

 

Operating expenses reimbursement — multifamily leasing

 

627,000

 

544,000

 

398,000

 

Operating expenses reimbursement — administrative

 

877,000

 

1,065,000

 

1,362,000

 

Operating expenses reimbursement — other

 

37,000

 

72,000

 

101,000

 

 

 

 

 

 

 

 

 

Total operating expenses reimbursed to affiliate

 

4,943,000

 

4,746,000

 

5,234,000

 

 

 

 

 

 

 

 

 

Professional and administrative expenses reimbursed to affiliate

 

1,595,000

 

1,619,000

 

1,732,000

 

 

 

 

 

 

 

 

 

Construction supervision and leasing fees

 

300,000

 

231,000

 

638,000

 

 

 

 

 

 

 

 

 

Disposition fees included in gain on sale of discontinued operations

 

 

1,558,000

 

578,000

 

 

 

 

 

 

 

 

 

Total related party transactions

 

$

9,083,000

 

$

10,334,000

 

$

10,455,000

 

 

Property, multifamily leasing, administrative and other operating expenses reimbursed include employee costs charged to us by NTS Development Company and other actual costs incurred by NTS Development Company on our behalf, which were reimbursed by us.

 

During the years ended December 31, 2009, 2008 and 2007, we were charged approximately $69,000, $55,000 and $79,000, respectively for property maintenance fees from affiliates of NTS Development Company.

 

NTS Development Company leased 20,368 square feet in NTS Center, at a rental rate of $14.50 per square foot and 2,220 square feet of storage space at a rental rate of $5.50 per square foot.  We received rental payments of approximately $306,000 from NTS Development Company during the year ended December 31, 2009, and $295,000 for each of the years ended December 31, 2008 and 2007.  The average per square foot rental rate for similar space in NTS Center as of December 31, 2009, 2008 and 2007 was $14.26, $14.88 and $13.80 per square foot, respectively.

 

Note 9 - Commitments and Contingencies

 

We, as an owner of real estate, are subject to various environmental laws of federal, state and local governments.  Our compliance with existing laws has not had a material adverse effect on our financial condition and results of operations.  However, we cannot predict the impact of new or changed laws or regulations on our current properties or on properties that we may acquire in the future.

 

Litigation

 

We do not believe there is any litigation threatened against us other than routine litigation arising out of the ordinary course of business, some of which is expected to be covered by insurance, none of which is expected to have a material effect on our financial position or results of operations.

 

Note 10 - Segment Reporting

 

Our reportable operating segments include - multifamily, commercial, retail and land real estate operations.  The following financial information of the operating segments has been prepared using a management approach, which is consistent with the basis and manner in which our management internally disaggregates financial information for the purpose of assisting in making internal operating decisions.  We evaluate performance based on stand-alone operating segment net income (loss).

 

49



Table of Contents

 

 

 

Year Ended December 31, 2009

 

 

 

Multifamily

 

Commercial

 

Retail

 

Partnership

 

Total

 

Rental income

 

$

36,942,587

 

$

5,203,489

 

$

615,783

 

$

(31,056

)

$

42,730,803

 

Tenant reimbursements

 

 

1,680,101

 

107,002

 

 

1,787,103

 

 

 

 

 

 

 

 

 

 

 

 

 

Total revenue

 

36,942,587

 

6,883,590

 

722,785

 

(31,056

)

44,517,906

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses and operating expenses reimbursed to affiliate

 

12,726,468

 

2,706,067

 

139,560

 

 

15,572,095

 

Management fees

 

1,831,996

 

338,291

 

35,452

 

 

2,205,739

 

Property taxes and insurance

 

5,410,467

 

901,085

 

55,300

 

127,459

 

6,494,311

 

Professional and administrative expenses and professional and administrative expenses reimbursed to affiliate

 

 

 

 

2,707,216

 

2,707,216

 

Depreciation and amortization

 

15,369,568

 

1,769,209

 

165,567

 

 

17,304,344

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

35,338,499

 

5,714,652

 

395,879

 

2,834,675

 

44,283,705

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating income (loss)

 

1,604,088

 

1,168,938

 

326,906

 

(2,865,731

)

234,201

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest and other income

 

56,646

 

2,685

 

155

 

233,976

 

293,462

 

Interest expense

 

(9,550,430

)

(1,811,342

)

(350,321

)

(4,479,792

)

(16,191,885

)

Loss on disposal of assets

 

(26,920

)

(180,562

)

 

 

(207,482

)

Loss from investments in tenants in common

 

(2,137,128

)

 

 

 

(2,137,128

)

 

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

(10,053,744

)

(820,281

)

(23,260

)

(7,111,547

)

(18,008,832

)

Discontinued operations, net

 

 

(194,215

)

531,907

 

 

337,692

 

 

 

 

 

 

 

 

 

 

 

 

 

Consolidated net (loss) income

 

(10,053,744

)

(1,014,496

)

508,647

 

(7,111,547

)

(17,671,140

)

Net loss attributable to noncontrolling interests

 

(491,553

)

 

 

 

(491,553

)

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income

 

$

(9,562,191

)

$

(1,014,496

)

$

508,647

 

$

(7,111,547

)

$

(17,179,587

)

 

 

 

 

 

 

 

 

 

 

 

 

Land, buildings and amenities, net

 

$

259,333,621

 

$

27,964,381

 

$

3,853,196

 

$

 

$

291,151,198

 

 

 

 

 

 

 

 

 

 

 

 

 

Expenditures for land, buildings and amenities

 

$

33,267,126

 

$

1,898,467

 

$

28,293

 

$

 

$

35,193,886

 

 

 

 

 

 

 

 

 

 

 

 

 

Segment liabilities from continuing operations, net

 

$

223,993,261

 

$

3,205,572

 

$

2,344,084

 

$

25,236,036

 

$

254,778,953

 

Segment liabilities from discontinued operations, net

 

 

7,028

 

65,293

 

 

72,321

 

 

 

 

 

 

 

 

 

 

 

 

 

Segment liabilities

 

$

223,993,261

 

$

3,212,600

 

$

2,409,377

 

$

25,236,036

 

$

254,851,274

 

 

50



Table of Contents

 

 

 

Year Ended December 31, 2008

 

 

 

Multifamily

 

Commercial

 

Retail

 

Land

 

Partnership

 

Total

 

Rental income

 

$

32,593,672

 

$

6,129,240

 

$

534,993

 

$

 

$

(116,690

)

$

39,141,215

 

Tenant reimbursements

 

 

1,680,796

 

94,396

 

 

 

1,775,192

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total revenue

 

32,593,672

 

7,810,036

 

629,389

 

 

(116,690

)

40,916,407

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses and operating expenses reimbursed to affiliate

 

11,156,015

 

2,498,861

 

124,041

 

 

 

13,778,917

 

Management fees

 

1,632,708

 

368,665

 

31,904

 

 

 

2,033,277

 

Property taxes and insurance

 

4,598,307

 

851,370

 

54,721

 

 

124,940

 

5,629,338

 

Professional and administrative expenses and professional and administrative expenses reimbursed to affiliate

 

 

 

 

 

2,878,772

 

2,878,772

 

Depreciation and amortization

 

12,808,225

 

1,712,083

 

175,773

 

 

 

14,696,081

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

30,195,255

 

5,430,979

 

386,439

 

 

3,003,712

 

39,016,385

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating income (loss)

 

2,398,417

 

2,379,057

 

242,950

 

 

(3,120,402

)

1,900,022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest and other income

 

32,329

 

74,497

 

 

 

298,847

 

405,673

 

Interest expense

 

(8,413,788

)

(1,963,774

)

(368,524

)

 

(607,116

)

(11,353,202

)

Loss on disposal of assets

 

(28,008

)

(140,411

)

 

 

 

(168,419

)

Loss from investments in tenants in common

 

(2,377,927

)

 

 

 

 

(2,377,927

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Loss) income from continuing operations

 

(8,388,977

)

349,369

 

(125,574

)

 

(3,428,671

)

(11,593,853

)

Discontinued operations, net

 

 

(73,416

)

495,962

 

10,760

 

 

433,306

 

Gain on sale of discontinued operations

 

 

18,789,535

 

 

120,598

 

 

18,910,133

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income

 

$

(8,388,977

)

$

19,065,488

 

$

370,388

 

$

131,358

 

$

(3,428,671

)

$

7,749,586

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Land, buildings and amenities, net

 

$

241,102,933

 

$

27,991,478

 

$

3,983,051

 

$

 

$

 

$

273,077,462

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Expenditures for land, buildings and amenities

 

$

41,419,222

 

$

2,883,206

 

$

162,867

 

$

 

$

 

$

44,465,295

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Segment liabilities from continuing operations, net

 

$

43,285,964

 

$

3,548,145

 

$

2,556,464

 

$

 

$

163,464,323

 

$

212,854,896

 

Segment liabilities from discontinued operations, net

 

 

167,777

 

2,949

 

 

 

170,726

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Segment liabilities

 

$

43,285,964

 

$

3,715,922

 

$

2,559,413

 

$

 

$

163,464,323

 

$

213,025,622

 

 

51



Table of Contents

 

 

 

Year Ended December 31, 2007

 

 

 

Multifamily

 

Commercial

 

Retail

 

Land

 

Partnership

 

Total

 

Rental income

 

$

29,370,439

 

$

5,456,552

 

$

632,110

 

$

 

$

(343,384

)

$

35,115,717

 

Tenant reimbursements

 

 

1,630,697

 

78,013

 

 

 

1,708,710

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total revenue

 

29,370,439

 

7,087,249

 

710,123

 

 

(343,384

)

36,824,427

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses and operating expenses reimbursed to affiliate

 

9,987,130

 

2,126,632

 

117,095

 

 

 

12,230,857

 

Management fees

 

1,462,841

 

355,285

 

34,176

 

 

 

1,852,302

 

Property taxes and insurance

 

3,748,883

 

801,657

 

55,255

 

 

135,009

 

4,740,804

 

Professional and administrative expenses and professional and administrative expenses reimbursed to affiliate

 

 

 

 

 

3,143,436

 

3,143,436

 

Depreciation and amortization

 

11,437,573

 

1,612,420

 

164,130

 

 

 

13,214,123

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

26,636,427

 

4,895,994

 

370,656

 

 

3,278,445

 

35,181,522

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating income (loss)

 

2,734,012

 

2,191,255

 

339,467

 

 

(3,621,829

)

1,642,905

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest and other income

 

39,681

 

4,261

 

7

 

 

16,877

 

60,826

 

Interest expense

 

(8,252,490

)

(1,698,883

)

(368,670

)

 

(903,490

)

(11,223,533

)

Loss on disposal of assets

 

(9,959

)

(56,093

)

 

 

 

(66,052

)

Loss from investments in tenants in common

 

(1,608,295

)

 

 

 

 

(1,608,295

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Loss) income from continuing operations

 

(7,097,051

)

440,540

 

(29,196

)

 

(4,508,442

)

(11,194,149

)

Discontinued operations, net

 

 

1,142,958

 

483,905

 

30,500

 

 

1,657,363

 

Gain on sale of discontinued operations

 

 

13,482,291

 

 

 

 

13,482,291

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income

 

$

(7,097,051

)

$

15,065,789

 

$

454,709

 

$

30,500

 

$

(4,508,442

)

$

3,945,505

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Land, buildings and amenities, net

 

$

212,331,909

 

$

26,850,530

 

$

3,968,840

 

$

 

$

 

$

243,151,279

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Expenditures for land, buildings and amenities

 

$

557,936

 

$

1,048,788

 

$

 

$

 

$

 

$

1,606,724

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Segment liabilities from continuing operations, net

 

$

16,137,350

 

$

4,168,412

 

$

2,568,892

 

$

 

$

193,734,977

 

$

216,609,631

 

Segment liabilities from discontinued operations, net

 

 

3,914,583

 

64,595

 

151

 

 

3,979,329

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Segment liabilities

 

$

16,137,350

 

$

8,082,995

 

$

2,633,487

 

$

151

 

$

193,734,977

 

$

220,588,960

 

 

52



Table of Contents

 

Note 11 - Selected Quarterly Financial Data (Unaudited)

 

 

 

For the Quarters Ended

 

2009

 

March 31

 

June 30

 

September 30

 

December 31

 

 

 

 

 

 

 

 

 

 

 

Total revenues

 

$

10,505,512

 

$

10,739,361

 

$

11,707,236

 

$

11,565,797

 

Operating income (loss)

 

541,119

 

(431,298

)

50,633

 

73,747

 

Discontinued operations, net

 

15,022

 

25,311

 

225,566

 

71,793

 

Loss from continuing operations allocated to limited partners

 

(2,491,857

)

(3,549,252

)

(3,368,673

)

(7,468,445

)

Discontinued operations, net allocated to limited partners

 

14,079

 

23,723

 

211,406

 

67,284

 

Loss from continuing operations per limited partnership unit

 

(0.23

)

(0.33

)

(0.32

)

(0.70

)

Discontinued operations, net per limited partnership unit

 

 

 

0.02

 

0.01

 

 

 

 

For the Quarters Ended

 

2008

 

March 31

 

June 30

 

September 30

 

December 31

 

 

 

 

 

 

 

 

 

 

 

Total revenues

 

$

9,704,630

 

$

9,572,652

 

$

10,947,520

 

$

10,691,605

 

Operating income (loss)

 

1,383,232

 

(349,123

)

203,612

 

662,301

 

Discontinued operations, net

 

603,899

 

(213,851

)

21,081

 

22,177

 

Loss from continuing operations allocated to limited partners

 

(2,033,258

)

(2,932,502

)

(3,142,842

)

(2,757,382

)

Discontinued operations, net allocated to limited partners

 

565,986

 

(200,427

)

19,757

 

20,786

 

Gain on sale of discontinued operations allocated to limited partners

 

 

17,722,944

 

 

 

Loss from continuing operations per limited partnership unit

 

(0.19

)

(0.28

)

(0.29

)

(0.26

)

Discontinued operations, net per limited partnership unit

 

0.05

 

(0.01

)

 

 

Gain on sale of discontinued operations per limited partnership unit

 

 

1.66

 

 

 

 

Note 12 - Real Estate Transactions

 

Acquisitions

 

During the years ended December 31, 2009, 2008 and 2007, we made the following property acquisitions either wholly or through investments in joint ventures primarily to invest in additional multifamily properties:

 

Wholly-Owned Properties-Multifamily

 

Location

 

Units

 

Our Ownership

 

Date of Purchase

 

Purchase Price

 

Shelby Farms Apartments (1)

 

Memphis, TN

 

450

 

100

%

June, 2008

 

$

41,000,000

 

 

Consolidated Joint Venture Properties-
Multifamily

 

Location

 

Units

 

Our Ownership

 

Date of Purchase

 

Purchase Price

 

Golf Brook Apartments (2)

 

Orlando, FL

 

195

 

51

%

June, 2009

 

$

19,500,000

 

Sabal Park Apartments (3)

 

Orlando, FL

 

162

 

51

%

June, 2009

 

$

13,000,000

 

 

Unconsolidated Joint Venture Properties-
Multifamily

 

Location

 

Units

 

Our Ownership

 

Date of Purchase

 

Purchase Price

 

The Overlook at St. Thomas Apartments (4)

 

Louisville, KY

 

484

 

60

%

March, 2007

 

$

46,000,000

 

Creek’s Edge at Stony Point Apartments (5)

 

Richmond, VA

 

202

 

51

%

August, 2007

 

$

32,300,000

 

 


(1)          Financed by a $26.3 million mortgage payable to a bank.

(2)          Financed by a $14.6 million mortgage payable to Federal Home Loan Mortgage Corporation.  Our ownership percentage at December 31, 2009, was 51%.

(3)          Financed by a $9.6 million mortgage payable to Federal Home Loan Mortgage Corporation.  Our ownership percentage at December 31, 2009, was 51%.

(4)          Property owned as a tenant in common with an unaffiliated third party.  Financed by a $36.0 million mortgage payable to a bank.  We are proportionately liable for this mortgage, limited to 60%, our interest as a tenant in common of this property.

(5)          Property owned as a tenant in common with an unaffiliated third party.  Financed by a $22.8 million mortgage payable to an insurance company.  We are jointly and severally liable for this mortgage.  We own a 51% interest as a tenant in common of this property.

 

53



Table of Contents

 

The following table summarizes the consideration paid for Sabal Park Apartments and Golf Brook Apartments, and the fair value of the assets acquired and liabilities assumed at the acquisition date.

 

 

 

Golf Brook

 

Sabal Park

 

Consideration

 

 

 

 

 

Cash

 

$

19,330,517

 

$

12,873,833

 

Assets acquired

 

 

 

 

 

Land, buildings and amenities

 

$

19,315,565

 

$

12,859,894

 

Identified intangible asset

 

184,435

 

140,106

 

Liabilities assumed

 

 

 

 

 

Accounts payable and accrued expenses; Other liabilities

 

(169,483

)

(126,167

)

Total identifiable net assets

 

$

19,330,517

 

$

12,873,833

 

 

Our properties owned through joint venture investments that are less than wholly-owned, but which we control or for which we are the primary beneficiary, are Golf Brook Apartments and Sabal Park Apartments in Orlando, Florida.  At December 31, 2009, we owned 51% of each joint venture.  During 2009, revenues for Golf Brook Apartments and Sabal Park Apartments were approximately $2.7 million and net losses were approximately $0.7 million since our acquisition.  These amounts, since our acquisition, were included in our consolidated revenues and net loss for the year ended December 31, 2009.  An executive officer of NTS Realty’s managing general partner has a familial relationship with a member of the joint venture partner.

 

The following table presents our unaudited pro forma results of operations and per unit amounts as if we had consummated our 2009 acquisitions at the beginning of each period presented.

 

 

 

(Unaudited)

 

 

 

Years Ended
December 31,

 

 

 

2009

 

2008

 

Total revenues

 

$

46,089,140

 

$

45,201,051

 

Total operating expenses

 

46,090,015

 

43,591,368

 

Operating (loss) income

 

(875

)

1,609,683

 

 

 

 

 

 

 

Interest and other income

 

293,462

 

405,673

 

Interest expense

 

(16,594,217

)

(12,252,826

)

Loss of disposal of assets

 

(207,482

)

(168,419

)

Loss from investment in tenants in common

 

(2,137,128

)

(2,377,927

)

 

 

 

 

 

 

Loss from continuing operations

 

(18,646,240

)

(12,783,816

)

Discontinued operations, net

 

337,692

 

433,306

 

Gain on sale of discontinued operations

 

 

18,910,133

 

 

 

 

 

 

 

Consolidated net (loss) income

 

(18,308,548

)

6,559,623

 

Net loss attributable to noncontrolling interests

 

(803,883

)

(583,082

)

 

 

 

 

 

 

Net (loss) income

 

$

(17,504,665

)

$

7,142,705

 

 

 

 

 

 

 

Net (loss) income allocated to limited partners

 

$

(16,405,712

)

$

6,694,281

 

 

 

 

 

 

 

Loss from continuing operations per limited partnership unit

 

$

(1.64

)

$

(1.12

)

Discontinued operations, net per limited partnership unit

 

0.03

 

0.04

 

Gain on sale of discontinued operations per limited partnership unit

 

 

1.66

 

Net loss attributable to noncontrolling interest per limited partnership unit

 

(0.07

)

(0.05

)

 

 

 

 

 

 

Net (loss) income per limited partnership unit

 

$

(1.54

)

$

0.63

 

 

 

 

 

 

 

Weighted average number of limited partnership interests

 

10,666,269

 

10,666,269

 

 

54



Table of Contents

 

Dispositions

 

During the years ended December 31, 2009, 2008 and 2007 we made the following property dispositions:

 

Wholly-Owned Properties-Commercial

 

Square Feet

 

Our Ownership

 

Date of Sale

 

Atrium Center (3)

 

104,286

 

100

%

May, 2008

 

Blankenbaker Business Center I (3)

 

160,689

 

100

%

May, 2008

 

Blankenbaker Business Center II (3)

 

77,408

 

100

%

May, 2008

 

Anthem Office Center (3)

 

85,305

 

100

%

May, 2008

 

Plainview Center (3)

 

98,000

 

100

%

May, 2008

 

Plainview Point Office Center Phase I and II (3)

 

57,301

 

100

%

May, 2008

 

Plainview Point Office Center Phase III (3)

 

61,680

 

100

%

May, 2008

 

ITT Parking Lot (3)

 

NA

 

100

%

May, 2008

 

Springs Medical Office Center (1)

 

100,565

 

100

%

February, 2007

 

Springs Office Center (2)

 

125,964

 

100

%

February, 2007

 

 


(1)          Gain of approximately $8.9 million.

(2)          Gain of approximately $4.6 million.

(3)          Gain of approximately $18.9 million.

 

On June 23, 2009, we announced that we entered into an agreement to sell our Outlet Mall retail property to an unaffiliated third party.  The property was sold on March 12, 2010 for approximately $4.0 million in proceeds.  Pursuant to our management agreement, we paid a disposition fee of approximately $0.2 million, or 4% of the gross sales price, to NTS Development Company.  We intend to use the proceeds from the sale to repay outstanding debt, for working capital requirements and/or to purchase properties in a manner that would qualify as a Section 1031 Exchange under the Internal Revenue Code.

 

On February 23, 2010, we entered into an agreement to sell our Sears Office Building to an unaffiliated third party for approximately $3.8 million.  The proposed purchaser is expected to close by April 30, 2010, with an option to extend to July 31, 2010.  We have offered seller financing to the purchaser, including additional proceeds to improve the building, totaling $4.7 million.

 

We may engage in transactions structured as “like-kind exchanges” of property to obtain favorable tax treatment under Section 1031 of the Internal Revenue Code.  If we are able to structure an exchange of properties as a “like-kind exchange,” then any gain we realize from the exchange would not be recognized for federal income tax purposes.  The test for determining whether exchanged properties are of “like-kind” is whether the properties are of the same nature or character.

 

We have presented separately as discontinued operations in all periods the results of operations for the following properties:

 

Property

 

Location

 

Status

 

Atrium Center

 

Louisville, KY

 

Sold 2008

 

Blankenbaker Business Center I

 

Louisville, KY

 

Sold 2008

 

Blankenbaker Business Center II

 

Louisville, KY

 

Sold 2008

 

Anthem Office Center

 

Louisville, KY

 

Sold 2008

 

Plainview Center

 

Louisville, KY

 

Sold 2008

 

Plainview Point Office Center Phase I and II

 

Louisville, KY

 

Sold 2008

 

Plainview Point Office Center Phase III

 

Louisville, KY

 

Sold 2008

 

ITT Parking Lot

 

Louisville, KY

 

Sold 2008

 

Springs Medical Office Center

 

Louisville, KY

 

Sold 2007

 

Springs Office Center

 

Louisville, KY

 

Sold 2007

 

Outlet Mall

 

Louisville, KY

 

Held for Sale

 

Sears Office Building

 

Louisville, KY

 

Held for Sale

 

 

These assets and liabilities held for sale have been separately identified on our balance sheets at December 31, 2009 and 2008.

 

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The components of discontinued operations are outlined below and include the results of operations for the respective periods in which we owned such assets during the years ended December 31, 2009, 2008 and 2007.

 

 

 

Years Ended December 31,

 

 

 

2009

 

2008

 

2007

 

REVENUE:

 

 

 

 

 

 

 

Rental income

 

$

731,777

 

$

3,013,773

 

$

7,963,071

 

Tenant reimbursements

 

24,393

 

189,462

 

320,361

 

 

 

 

 

 

 

 

 

Total revenue

 

756,170

 

3,203,235

 

8,283,432

 

 

 

 

 

 

 

 

 

EXPENSES:

 

 

 

 

 

 

 

Operating expenses and operating expenses reimbursed to affiliate

 

156,668

 

951,621

 

2,561,800

 

Management fees

 

39,638

 

146,265

 

420,337

 

Property taxes and insurance

 

54,034

 

264,675

 

678,210

 

Depreciation and amortization

 

221,164

 

285,064

 

774,017

 

 

 

 

 

 

 

 

 

Total operating expenses

 

471,504

 

1,647,625

 

4,434,364

 

 

 

 

 

 

 

 

 

DISCONTINUED OPERATING INCOME

 

284,666

 

1,555,610

 

3,849,068

 

 

 

 

 

 

 

 

 

Interest and other income

 

134,877

 

8,806

 

50,255

 

Interest expense

 

(81,851

)

(1,131,110

)

(2,196,283

)

Loss on disposal of assets

 

 

 

(45,677

)

 

 

 

 

 

 

 

 

DISCONTINUED OPERATIONS, NET

 

$

337,692

 

$

433,306

 

$

1,657,363

 

 

The components of long-lived assets held for sale at December 31, 2009, consisted primarily of land, buildings and amenities and other assets for the properties being sold.  The components of long-lived liabilities held for sale at December 31, 2009, consisted primarily of accounts payable and accrued expenses, accounts payable and accrued expenses due to affiliate and other liabilities on the properties being sold.

 

The components of long-lived assets held for sale at December 31, 2008, consisted primarily of cash and equivalents-restricted, accounts receivable, land, buildings and amenities and other assets for the properties being sold.  The components of long-lived liabilities held for sale at December 31, 2008, consisted primarily of accounts payable and accrued expenses, accounts payable and accrued expenses due to affiliate and other liabilities on the properties being sold.

 

The components of long-lived assets held for sale at December 31, 2007, consisted primarily of cash and equivalents-restricted, accounts receivable, land, buildings and amenities, prepaid leasing commissions and other assets for the properties being sold.  The components of long-lived liabilities held for sale at December 31, 2007, consisted primarily of accounts payable and accrued expenses, accounts payables and accrued expenses due to affiliate, security deposit liabilities, other liabilities and any stand-alone mortgage on the properties being sold.

 

Note 13 — Deferred Compensation Plans

 

Officer Plan

 

On December 6, 2006, our managing general partner, NTS Realty Capital, established the NTS Realty Capital Officer Deferred Compensation Plan (the “Officer Plan”).  The Officer Plan permits each eligible officer (the “Participant”) to receive an annual equity bonus of our phantom units, as approved by the Board of Directors, on a deferred basis.  To be eligible, each Participant must be a designated officer on January 1 and December 1 of any year in which the Officer Plan is in effect.   The Officer Plan is unfunded and unsecured.  Amounts deferred by individual officers are an obligation of NTS Realty.

 

Participants may elect to defer the receipt of the annual equity bonus under this plan or receive the bonus in the year that it is earned.  Participants may elect to defer receipt until their death, disability, separation of service, or a date specified by the Participant.

 

An account is maintained for each Participant in the Officer Plan, with a balance equivalent to a phantom investment in NTS Realty units.  A Participant’s interest in an account is valued by multiplying the number of

 

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phantom units credited by the fair market value of NTS Realty units at the respective date.  Participants are 100% vested at all times in the value of the account.  All Participants will be paid based on the value of their account.

 

During the years ended December 31, 2009, 2008 and 2007, each Participant elected to defer receipt of the annual equity bonus.  Therefore, each Participant’s account was credited with 1,004; 841 and 350 phantom units, respectively, as approved by the Board of Directors.  As of December 31, 2009 and 2008, liabilities of approximately $100,000 and $53,800, the fair market value of 22,365 and 15,337 of our units, respectively, was included in our “Other Liabilities”.  The obligation is recorded as a liability because no units will be issued in connection with this plan.  The obligation amount may vary according to the market value of our units.

 

Director Plan

 

On November 7, 2006, NTS Realty Capital, established the NTS Realty Capital Directors Deferred Compensation Plan (the “Director Plan”).  The Director Plan permits each eligible member of NTS Realty’s Board of Directors (the “Participant”) to receive an annual equity bonus of our phantom units, as approved by the Board of Directors, on a deferred basis.  To be eligible, each Participant must be considered to be “independent” under the standards promulgated from time to time by the New York Stock Exchange.  The Director Plan is unfunded and unsecured.  Amounts deferred by individual directors are an obligation of NTS Realty.

 

Participants may elect to defer under the Director Plan some or all of their annual retainer.  Participants may elect to defer receipt until their death, disability, separation of service, or a date specified by the Participant.

 

An account is maintained for each Participant in the Director Plan, with a balance equivalent to a phantom investment in NTS Realty units.  A Participant’s interest in an account is valued by multiplying the number of phantom units credited by the fair market value of NTS Realty units at the respective date.  Participants are 100% vested at all times in the value of the account.  All Participants will be paid based on the value of their account.

 

During the year ended December 31, 2009, 2008 and 2007, each Participant elected to defer receipt of some or all, of his annual retainer.  Therefore, each Participant’s account was credited with 4,344; 3,528 and 2,390 phantom units, respectively.  As of December 31, 2009 and 2008, liabilities of approximately $137,600 and $62,300, the fair market value of 30,786 and 17,754 of our units, respectively, were included in our “Other Liabilities”.  The obligation is recorded as a liability because no units will be issued in connection with this plan.  The obligation amount may vary according to the market value of our units.

 

Compensation expense for 2009, 2008 and 2007 under the Officer and Director Plans totaled approximately $121,500, $32,600 and $31,400, respectively.

 

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Table of Contents

 

ITEM 9 - CHANGE IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

 

On July 24, 2009, the Audit Committee of the Board of Directors of NTS Realty Capital terminated the engagement of Ernst & Young LLP (“E&Y”) as NTS Realty’s independent certifying accountant. E&Y’s report on NTS Realty’s consolidated financial statements for the two years ended December 31, 2008 and 2007, did not contain an adverse opinion or disclaimer of opinion, and was not qualified or modified as to uncertainty, audit scope or accounting principles.

 

During the years ended December 31, 2008 and 2007, as well as the interim period preceding the dismissal, there were no disagreements or “reportable events” of the kind described in Item 304(a)(1)(v) of Regulation S-K between NTS Realty and E&Y on any matters of accounting principles of practices, financial statement disclosure or auditing scope or procedure, which, if not resolved to the satisfaction of E&Y, would have caused them to make a reference to the subject matter of the disagreements or reportable events in connection with their reports. However, NTS Realty did have a material weakness in internal accounting controls as disclosed in its 2008 Form 10-K.

 

NTS Realty provided E&Y with a copy of the foregoing disclosures prior to July 24, 2009, the date of the 8-K filing of this matter and requested that E&Y furnish NTS Realty with a letter addressed to the Securities and Exchange Commission (“SEC”) stating whether it agrees with the above statements. A copy of E&Y’s letter to the SEC, dated July 29, 2009, was filed as Exhibit 16 to the 8-K filing dated July 24, 2009.

 

On July 24, 2009, the Audit Committee also approved the engagement of BKD, LLP as NTS Realty’s new independent certifying accountant. During the two most recent years and the subsequent interim period to the date of engagement, NTS Realty did not consult with BKD, LLP regarding any of the matters or events set forth in Item 304(a)(2)(i) or (ii) of Regulation S-K.

 

ITEM 9A - CONTROLS AND PROCEDURES

 

Disclosure Controls and Procedures-As of December 31, 2009, we, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as defined in Exchange Act Rules 13a-15(e) and 15(d)-15(e).  Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the disclosure controls and procedures were effective as of December 31, 2009.

 

Management’s Report on Internal Control Over Financial Reporting-Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Exchange Act.  Our internal control system is designed to provide reasonable assurance regarding the preparation and fair presentation of published financial statements.  Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.  Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.  Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that compliance with the policies or procedures may deteriorate or be circumvented.

 

Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2009.  In making this assessment, management used the criteria established in Internal Controls-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO.  Based on management’s assessment and the criteria established by COSO, management believes that we maintained effective internal control over financial reporting as of December 31, 2009.

 

Changes in Internal Control Over Financial Reporting-There has been no change in our internal control over financial reporting during the year ended December 31, 2009, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

ITEM 9A (T) - CONTROLS AND PROCEDURES

 

This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting.  Management’s report was not subject to attestation by our registered public accounting firm pursuant to temporary rules of the SEC that permit us to provide only management’s report in this annual report.

 

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Table of Contents

 

ITEM 9B - OTHER INFORMATION

 

No matters were submitted to a vote of security holders, through the solicitation of proxies or otherwise, during the fourth quarter of the year ended December 31, 2009.

 

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Table of Contents

 

PART III

 

ITEM 10 - DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT

 

The information required by this Item 10 is incorporated by reference to, and will be contained in, our definitive proxy statement, which we anticipate filing no later than April 30, 2010.

 

ITEM 11 - EXECUTIVE COMPENSATION

 

The information required by this Item 11 is incorporated by reference to, and will be contained in, our definitive proxy statement, which we anticipate filing no later than April 30, 2010.

 

ITEM 12 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

The information required by this Item 12 is incorporated by reference to, and will be contained in, our definitive proxy statement, which we anticipate filing no later than April 30, 2010.

 

ITEM 13 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

 

The information required by this Item 13 is incorporated by reference to, and will be contained in, our definitive proxy statement, which we anticipate filing no later than April 30, 2010.

 

ITEM 14 - PRINCIPAL ACCOUNTANT FEES AND SERVICES

 

The information required by this Item 14 is incorporated by reference to, and will be contained in, our definitive proxy statement, which we anticipate filing no later than April 30, 2010.

 

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PART IV

 

ITEM 15 - EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

1 - Financial Statements

 

The financial statements along with the report from BKD, LLP dated March 19, 2010, appear in Part II, Item 8.  The following schedules should be read in conjunction with those financial statements.

 

2 - Financial Statement Schedules

 

Schedules

 

Page No.

Report of Independent Registered Public Accounting Firm on Financial Statement Schedules

 

63

Schedule II - Valuation and Qualifying Accounts

 

64

Schedule III - Real Estate and Accumulated Depreciation

 

65 - 66

 

All other schedules have been omitted because they are not applicable, are not required or because the required information is included in the financial statements or notes thereto.

 

3 — Exhibits

 

Exhibit No.

 

 

 

 

2.01

 

Agreement and Plan of Merger by and among NTS Realty Holdings Limited Partnership, NTS-Properties III, NTS-Properties IV, NTS-Properties V, a Maryland limited partnership, NTS-Properties VI, a Maryland limited partnership and NTS-Properties VII, Ltd., dated February 3, 2004

 

(3)

 

 

 

 

 

2.02

 

Contribution Agreement by and between NTS Realty Holdings Limited Partnership and ORIG, LLC, dated February 3, 2004

 

(3)

 

 

 

 

 

3.01

 

Certificate of Limited Partnership of NTS Realty Holdings Limited Partnership

 

(1)

 

 

 

 

 

3.02

 

Amended and Restated Agreement of Limited Partnership of NTS Realty Holdings Limited Partnership, dated as of December 29, 2005

 

(7)

 

 

 

 

 

3.03

 

Certificate of Incorporation of NTS Realty Capital, Inc.

 

(8)

 

 

 

 

 

3.04

 

By-Laws of NTS Realty Capital, Inc.

 

(2)

 

 

 

 

 

10.01

 

Amended and Restated Management Agreement between NTS Realty Holdings Limited Partnership and NTS Development Company, dated as of December 29, 2005

 

(6)

 

 

 

 

 

10.02

 

Form of Lease Agreement between NTS Realty Holdings Limited Partnership and SHPS, Inc.

 

(4)

 

 

 

 

 

10.03

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and Investors Capital Mortgage Group, Inc., dated September 30, 2005 (Golf Brook Apartments)

 

(5)

 

 

 

 

 

10.04

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and Investors Capital Mortgage Group, Inc., dated September 30, 2005 (Sabal Park Apartments)

 

(5)

 

 

 

 

 

10.05

 

Agreement for Purchase and Sale between Schaedle Worthington Hyde Properties, L.P. and NTS Realty Holdings Limited Partnership, dated November 1, 2005 (The Grove at Richland Apartments and The Grove at Whitworth Apartments)

 

(5)

 

 

 

 

 

10.06

 

Agreement for Purchase and Sale between Schaedle Worthington Hyde Properties, L.P. and NTS Realty Holdings Limited Partnership, dated November 1, 2005 (The Grove at Swift Creek Apartments)

 

(5)

 

 

 

 

 

10.07

 

Purchase and Sale Agreement between AMLI at Castle Creek, L.P. and AMLI Residential Properties, L.P. and NTS Realty Holdings Limited Partnership, dated February 7, 2006 (Castle Creek Apartments and Lake Clearwater Apartments)

 

(5)

 

 

 

 

 

10.08

 

Unconditional and Continuing Guaranty by NTS Realty Holdings Limited Partnership in favor of National City Bank, dated March 23, 2006

 

(5)

 

 

 

 

 

10.09

 

Amended and Restated Master Loan Agreements between NTS Realty Holding Limited Partnership and The Northwestern Mutual Life Insurance Company and between NTS Realty Holdings Limited Partnership and National City Bank, dated October 4, 2006

 

(9)

 

 

 

 

 

10.10

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and Meridian Realty Investments, LLC, dated November 10, 2006 (Springs Medical Office Center)

 

(10)

 

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Table of Contents

 

Exhibit No.

 

 

 

 

10.11

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and Meridian Realty Investments, LLC, dated November 10, 2006 (Springs Office Center)

 

(10)

 

 

 

 

 

10.12

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership together with Overlook Associates, LLC and The Northwestern Mutual Life Insurance Company, dated December 8, 2006 (The Overlook at St. Thomas Apartments)

 

(11)

 

 

 

 

 

10.13

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership together with Creek’s Edge Investors, LLC and CG Stony Point, LLC, dated June 20, 2007 (Creek’s Edge at Stony Point Apartments)

 

(12)

 

 

 

 

 

10.14

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and Ascent Properties, LLC, dated August 1, 2007 (The Office Portfolio)

 

(13)

 

 

 

 

 

10.15

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and Colonial Realty Limited Partnership and Colonial Properties Services, Inc., dated June 11, 2008 (Shelby Farms Apartments)

 

(14)

 

 

 

 

 

10.16

 

Purchase and Sale Agreement between NTS Realty Holdings Limited Partnership and 302 Sabal Park Place Longwood, LLC and 385 Golf Brook Circle Longwood, LLC dated April 10, 2009 (Sabal Park Apartments and Golf Brook Apartments)

 

(15)

 

 

 

 

 

14.01

 

Code of Conduct and Ethics of NTS Realty Holdings Limited Partnership, adopted as of December 28, 2004

 

(4)

 

 

 

 

 

21.01

 

Subsidiaries of NTS Realty Holdings Limited Partnership

 

(16)

 

 

 

 

 

31.1

 

Certification of Chief Executive Officer Pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended

 

(16)

 

 

 

 

 

31.2

 

Certification of Chief Financial Officer Pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended

 

(16)

 

 

 

 

 

32.1

 

Certification of Chief Executive Officer Pursuant to U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

(16)

 

 

 

 

 

32.2

 

Certification of Chief Financial Officer Pursuant to U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

(16)

 

 

 

 

 

99.01

 

Form of Lock-Up Agreement by and between NTS Realty Holdings Limited Partnership and each of the executive officers of NTS Realty Capital, Inc.

 

(1)

 

 

 

 

 

99.02

 

Registration Statement on Form S-4/A (Amendment No. 5), as filed by the Registrant with the Securities and Exchange Commission on October 27, 2004

 

(3)

 


(1)

 

Incorporated by reference to the Registrant’s Registration Statement on Form S-4, as filed with the Securities and Exchange Commission on February 4, 2004

(2)

 

Incorporated by reference to the Registrant’s Registration Statement on Form S-4/A (Amendment No. 1), as filed with the Securities and Exchange Commission on June 18, 2004

(3)

 

Incorporated by reference to the Registrant’s Registration Statement on Form S-4/A (Amendment No. 5), as filed with the Securities and Exchange Commission on October 27, 2004

(4)

 

Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2004, as filed with the Securities and Exchange Commission on March 31, 2005

(5)

 

Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005, as filed with the Securities and Exchange Commission on April 3, 2006

(6)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on April 17, 2006

(7)

 

Incorporated by reference to the Registrant’s Information Statement on Form DEF 14C, as filed with the Securities and Exchange Commission on May 9, 2006

(8)

 

Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006, as filed with the Securities and Exchange Commission on May 15, 2006

(9)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K/A, as filed with the Securities and Exchange Commission on October 23, 2006

(10)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on February 14, 2007

(11)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on March 16, 2007

(12)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on August 17, 2007

(13)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on May 1, 2008

(14)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on June 27, 2008

(15)

 

Incorporated by reference to the Registrant’s Current Report on Form 8-K, as filed with the Securities and Exchange Commission on June 16, 2009

(16)

 

Filed herewith

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM ON

FINANCIAL STATEMENT SCHEDULES

 

Board of Directors

NTS Realty Holdings Limited Partnership:

 

In connection with our audit of the consolidated financial statements of NTS Realty Holdings Limited Partnership (the “Partnership”) for the year ended December 31, 2009, we have also audited the following financial statement schedules.  These financial statement schedules are the responsibility of the Partnership’s management.  Our responsibility is to express an opinion on these financial statement schedules based on our audit of the basic financial statements.  The schedules are presented for purposes of complying with the Securities and Exchange Commission’s rules and regulations and are not a required part of the consolidated financial statements.

 

In our opinion, the financial statement schedules referred to above, when considered in relation to the basic consolidated financial statements taken as a whole, present fairly, in all material respects, the information required to be included therein.

 

 

/s/ BKD, LLP

 

Louisville, Kentucky

 

March 29, 2010

 

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS

FOR THE YEARS ENDED DECEMBER 31, 2009, 2008 AND 2007

 

 

 

 

 

Additions

 

 

 

 

 

Description

 

Balance at
Beginning of
Period

 

Charges to
Costs and
Expenses

 

Charges to
Other
Accounts

 

Deductions
(1)

 

Balance at
End of
Period

 

 

 

 

 

 

 

 

 

 

 

 

 

Allowance for doubtful accounts, deducted from accounts receivable in the balance sheet:

 

 

 

 

 

 

 

 

 

 

 

2009

 

$

90,932

 

$

554,219

 

$

 

$

441,792

 

$

203,359

 

2008

 

133,563

 

335,892

 

 

378,523

 

90,932

 

2007

 

346,525

 

234,553

 

 

447,515

 

133,563

 

 


(1)          Deductions, representing uncollectible accounts written off, less recoveries of accounts written off in prior years.

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION

AS OF DECEMBER 31, 2009

 

 

 

 

 

Initial Cost

 

Cost Capitalized
Subsequent to Acquisition

 

Total Amounts at End of Period

 

Accumulated

 

 

 

Property Description

 

Encumbrances

 

Land

 

Buildings and
Improvements

 

Land

 

Buildings and
Improvements

 

Land

 

Buildings and
Improvements

 

Total (1)

 

Depreciation
(2)

 

Year
Constructed

 

Commercial

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Clarke American Checks (4)

 

$

2,002,165

 

$

521,736

 

$

2,165,877

 

$

 

$

 

$

521,736

 

$

2,165,877

 

$

2,687,613

 

$

789,093

 

2000

 

Lakeshore Business Center Phase I (5)

 

 

2,128,882

 

3,661,323

 

 

2,398,950

 

2,128,882

 

6,060,273

 

8,189,155

 

1,562,844

 

1986

 

Lakeshore Business Center Phase II (5)

 

 

3,171,812

 

3,772,955

 

6,822

 

1,138,209

 

3,178,634

 

4,911,164

 

8,089,798

 

1,286,650

 

1989

 

Lakeshore Business Center Phase III (5)

 

 

1,264,136

 

3,252,297

 

10,145

 

168,589

 

1,274,281

 

3,420,886

 

4,695,167

 

949,916

 

2000

 

NTS Center

 

 

1,074,010

 

2,977,364

 

11,743

 

1,565,781

 

1,085,753

 

4,543,145

 

5,628,898

 

1,057,751

 

1977

 

Peachtree Corporate Center

 

 

1,417,444

 

3,459,185

 

 

1,066,549

 

1,417,444

 

4,525,734

 

5,943,178

 

1,623,174

 

1979

 

Sears Office Building (3)

 

 

925,539

 

1,390,215

 

 

501,055

 

925,539

 

1,891,270

 

2,816,809

 

569,228

 

1987

 

Multifamily

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Castle Creek Apartments (6)

 

13,895,000

 

3,262,814

 

23,538,500

 

34,361

 

62,533

 

3,297,175

 

23,601,033

 

26,898,208

 

5,528,662

 

1999

 

Golf Brook Apartments (6)

 

14,625,000

 

5,256,894

 

14,058,671

 

 

774,805

 

5,256,894

 

14,833,476

 

20,090,370

 

661,571

 

1987

 

Lake Clearwater Apartments (6)

 

11,390,000

 

2,778,541

 

20,064,789

 

4,343

 

50,470

 

2,782,884

 

20,115,259

 

22,898,143

 

4,631,440

 

1999

 

Park Place Apartments (6)

 

30,625,000

 

5,181,523

 

21,082,463

 

90,012

 

534,500

 

5,271,535

 

21,616,963

 

26,888,498

 

4,579,925

 

1987

 

Sabal Park Apartments (6)

 

9,600,000

 

3,974,383

 

8,885,511

 

 

57,670

 

3,974,383

 

8,943,181

 

12,917,564

 

435,661

 

1986

 

Shelby Farms Apartments (7)

 

26,328,500

 

5,625,335

 

34,989,698

 

 

28,329

 

5,625,335

 

35,018,027

 

40,643,362

 

3,691,651

 

1997

 

The Grove at Richland Apartments (6)

 

27,000,000

 

11,372,241

 

34,321,460

 

5,858

 

126,579

 

11,378,099

 

34,448,039

 

45,826,138

 

8,547,499

 

1998

 

The Grove at Swift Creek Apartments (6)

 

16,845,000

 

5,524,124

 

21,626,475

 

 

102,193

 

5,524,124

 

21,728,668

 

27,252,792

 

6,304,025

 

2000

 

The Grove at Whitworth Apartments (6)

 

27,675,000

 

11,973,900

 

32,220,180

 

 

358,122

 

11,973,900

 

32,578,302

 

44,552,202

 

8,362,290

 

1994

 

The Lakes Apartments (6)

 

11,381,809

 

2,636,790

 

13,187,093

 

51,948

 

175,266

 

2,688,738

 

13,362,359

 

16,051,097

 

4,190,082

 

1992

 

The Willows of Plainview Apartments (6)

 

17,920,000

 

3,015,448

 

10,947,277

 

49,640

 

878,690

 

3,065,088

 

11,825,967

 

14,891,055

 

2,184,647

 

1985

 

Willow Lake Apartments (6)

 

10,945,000

 

2,555,062

 

8,368,028

 

45,283

 

458,130

 

2,600,345

 

8,826,158

 

11,426,503

 

1,884,859

 

1985

 

Retail

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bed, Bath & Beyond (8)

 

2,289,831

 

734,860

 

2,290,252

 

 

 

734,860

 

2,290,252

 

3,025,112

 

476,755

 

1999

 

Outlet Mall (3)

 

 

1,008,618

 

2,763,070

 

(115,064

)

110,823

 

893,554

 

2,873,893

 

3,767,447

 

466,580

 

1983

 

Springs Station

 

 

427,465

 

978,891

 

 

192,457

 

427,465

 

1,171,348

 

1,598,813

 

293,973

 

2001

 

Non-Segment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NTS Realty Holdings Limited Partnership (5)

 

23,566,000

 

 

 

 

 

 

 

 

 

N/A

 

 

 

$

246,088,305

 

$

75,831,557

 

$

270,001,574

 

$

195,091

 

$

10,749,700

 

$

76,026,648

 

$

280,751,274

 

$

356,777,922

 

$

60,078,276

 

 

 

 


(1)          Aggregate cost of real estate for tax purposes is approximately $252.8 million.

(2)          Depreciation is computed using the straight-line method over the estimated useful lives of the assets, which are 5-30 years for land improvements, 7-30 years for buildings and improvements and 5-30 years for amenities.  Tenant improvements are generally depreciated over the life of the respective tenant lease.

(3)          These properties are included in assets held for sale of the consolidated balance sheets and discontinued operations on the consolidated statements of operations.

(4)          Mortgage held by an insurance company secured by certain land and a building.

(5)          Mortgage held by a bank secured by Lakeshore Business Center Phases I, II and III.

(6)          Mortgage held by Federal Home Loan Mortgage Corporation secured by certain land, buildings and amenities.

(7)          Mortgage held by a bank secured by certain land, buildings and amenities.

(8)          Mortgage held by GE Commercial Finance Business Property secured by certain land, buildings and amenities.

 

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NTS REALTY HOLDINGS LIMITED PARTNERSHIP

SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION

FOR THE YEARS ENDED DECEMBER 31, 2009, 2008 AND 2007

 

 

 

Real
Estate

 

Accumulated
Depreciation

 

 

 

 

 

 

 

Balances on January 1, 2007

 

$

320,652,311

 

$

19,961,131

 

 

 

 

 

 

 

Additions during period:

 

 

 

 

 

Acquisitions

 

 

 

Improvements

 

5,815,103

 

 

Depreciation (1)

 

 

13,727,008

 

 

 

 

 

 

 

Deductions during period:

 

 

 

 

 

Retirements

 

(13,988,461

)

(1,254,263

)

 

 

 

 

 

 

Balances on December 31, 2007

 

312,478,953

 

32,433,876

 

 

 

 

 

 

 

Additions during period:

 

 

 

 

 

Acquisitions

 

40,615,032

 

 

Improvements

 

4,055,553

 

 

Depreciation (1)

 

 

14,641,880

 

 

 

 

 

 

 

Deductions during period:

 

 

 

 

 

Retirements

 

(34,999,805

)

(3,773,096

)

 

 

 

 

 

 

Balances on December 31, 2008

 

322,149,733

 

43,302,660

 

 

 

 

 

 

 

Additions during period:

 

 

 

 

 

Acquisitions

 

32,175,459

 

 

Improvements

 

3,018,427

 

 

Depreciation (1)

 

 

17,121,099

 

 

 

 

 

 

 

Deductions during period:

 

 

 

 

 

Retirements

 

(565,697

)

(345,483

)

 

 

 

 

 

 

Balances on December 31, 2009

 

$

356,777,922

 

$

60,078,276

 

 


(1)          The additions charged to accumulated depreciation on this schedule will differ from the depreciation and amortization on the consolidated statements of cash flows due to the amortization of loan costs and capitalized leasing costs.

 

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Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

NTS REALTY HOLDINGS LIMITED PARTNERSHIP

 

 

 

By:

NTS REALTY CAPITAL, INC.

 

 

Its:

Managing General Partner

 

 

 

 

 

 

By:

/s/ Brian F. Lavin

 

 

 

Brian F. Lavin

 

 

 

Its:

President and Chief Executive Officer

 

 

 

Date:

March 29, 2010

 

 

 

 

 

 

By:

/s/ Gregory A. Wells

 

 

 

Gregory A. Wells

 

 

 

Its:

Chief Financial Officer

 

 

 

Date:

March 29, 2010

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

 

By:

/s/ J.D. Nichols

 

 

J.D. Nichols

 

 

Its:

Chairman of the Board

 

 

Date:

March 29, 2010

 

 

 

 

 

By:

/s/ Brian F. Lavin

 

 

Brian F. Lavin

 

 

Its:

President, Chief Executive Officer and Director

 

 

Date:

March 29, 2010

 

 

 

 

 

By:

/s/ Mark D. Anderson

 

 

Mark D. Anderson

 

 

Its:

Director

 

 

Date:

March 29, 2010

 

 

 

 

 

By:

/s/ John Daly

 

 

John Daly

 

 

Its:

Director

 

 

Date:

March 29, 2010

 

 

 

 

 

By:

/s/ John S. Lenihan

 

 

John S. Lenihan

 

 

Its:

Director

 

 

Date:

March 29, 2010

 

67