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EX-31.2 - CERTIFICATION - PRINCIPAL FINANCIAL OFFICER - AMERICAN REALTY INVESTORS INCdex312.htm
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Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 10-K

 

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

For the fiscal year ended December 31, 2010

OR

 

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

Commission File Number 001-15663

 

 

American Realty Investors, Inc.

(Exact name of registrant as specified in its charter)

 

Nevada   75-2847135

(State or other jurisdiction of

Incorporation or organization)

 

(IRS Employer

Identification Number)

1800 Valley View Lane, Suite 300

Dallas, Texas

  75234
(Address of principal executive offices)   (Zip Code)

(469) 522-4200

Registrant’s Telephone Number, including area code

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

 

Title of Each Class   Name of each exchange on which registered
Common Stock, $0.01 par value   New York Stock Exchange

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

NONE

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  ¨    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  ¨    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  ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulations 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  ¨    No  ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

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 the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer  ¨    Accelerated filer  ¨
Non-accelerated filer  x (Do not check if smaller reporting company)    Smaller reporting company  ¨

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

The aggregate market value of the shares of voting and non-voting common equity held by non-affiliates of the Registrant, computed by reference to the closing price at which the common equity was last sold which was the sales price of the Common Stock on the New York Stock Exchange as of June 30, 2010 (the last business day of the Registrant’s most recently completed second fiscal quarter) was $12,418,134 based upon a total of 1,533,103 shares held as of June 30, 2010 by persons believed to be non-affiliates of the Registrant. The basis of the calculation does not constitute a determination by the Registrant as defined in Rule 405 of the Securities Act of 1933, as amended, such calculation, if made as of a date within sixty days of this filing, would yield a different value.

As of March 25, 2011, there were 11,874,138 shares of common stock outstanding.

Documents Incorporated By Reference:

Consolidated Financial Statements of Income Opportunity Realty Investors, Inc.; Commission File No. 001-14784

Consolidated Financial Statements of Transcontinental Realty Investors, Inc.; Commission File No. 1-9240

 

 

 


Table of Contents

INDEX TO

ANNUAL REPORT ON FORM 10-K

 

         Page  
PART I   

Item 1.

  Business      3   

Item 1A.

  Risk Factors      15   

Item 1B.

  Unresolved Staff Comments      21   

Item 2.

  Properties      21   

Item 3.

  Legal Proceedings      27   

Item 4.

  Submission of Matters to a Vote of Security Holders      27   
PART II   

Item 5.

  Market for Registrant’s Common Equity, Related Stockholder Matters, and Issuer Purchases of Equity Securities      28   

Item 6.

  Selected Financial Data      31   

Item 7.

  Management’s Discussion and Analysis of Financial Condition and Results of Operations      32   

Item 7A.

  Quantitative and Qualitative Disclosures About Market Risk      46   

Item 8.

  Financial Statements and Supplementary Data      48   

Item 9.

  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure      107   

Item 9A(T).

  Controls and Procedures      107   

Item 9B.

  Other Information      107   
PART III   

Item 10.

  Directors, Executive Officers and Corporate Governance      108   

Item 11.

  Executive Compensation      117   

Item 12.

  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters      118   

Item 13.

  Certain Relationships and Related Transactions, and Director Independence      120   

Item 14.

  Principal Accounting Fees and Services      125   
PART IV   

Item 15.

  Exhibits, Financial Statement Schedules      127   

Signature Page

     129   

 

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FORWARD-LOOKING STATEMENTS

Certain Statements in this Form 10-K are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934. The words “estimate,” “plan,” “intend,” “expect,” “anticipate,” “believe,” and similar expressions are intended to identify forward-looking statements. The forward-looking statements are found at various places throughout this Report and in the documents incorporated herein by reference. The Company disclaims any intention or obligations to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Although we believe that our expectations are based upon reasonable assumptions, we can give no assurance that our goals will be achieved. Important factors that could cause our actual results to differ from estimates or projections contained in any forward-looking statements are described in Part I, Item 1A. “Risk Factors”.

PART I

 

ITEM 1. BUSINESS

General

As used herein, the terms “ARL,” “the Company,” “We,” “Our,” or “Us” refer to American Realty Investors, Inc., a Nevada corporation, individually or together with its subsidiaries. ARL is a “C” corporation for U.S. federal income tax purposes. ARL was organized in 1999. In August 2000, the Company acquired American Realty Trust, Inc., a Georgia corporation (“ART”) and National Realty L.P.; a Delaware limited partnership (“NRLP”). ART was the successor to a District of Columbia business trust organized in 1961. The business trust was merged into ART in 1988. NRLP was organized in 1987 and subsequently acquired all of the assets and assumed all of the liabilities of several public and private limited partnerships. NRLP also owned a portfolio of real estate and mortgage loan investments.

The Company is headquartered in Dallas, Texas and its common stock trades on the New York Stock Exchange under the symbol “NYSE: ARL”. Approximately 86.6% of ARL’s stock is owned by affiliated entities. ARL subsidiaries own approximately 83.3% of the outstanding shares of common stock of Transcontinental Realty Investors, Inc., a Nevada corporation (“TCI”) whose common stock is traded on the New York Stock Exchange under the symbol (“NYSE:TCI”). ARL has consolidated TCI’s accounts and operations since March 2003.

On July 17, 2009, TCI, a subsidiary of ARL, acquired from Syntek West, Inc., (“SWI”), 2,518,934 shares of common stock, par value $0.01 per share of IOT at an aggregate price of $17,884,431 (approximately $7.10 per share), the full amount of which was paid by TCI through an assumption of an aggregate amount of indebtedness of $17,884,431 on the outstanding balance owed by SWI to IOT. The 2,518,934 shares of IOT common stock acquired by TCI constituted approximately 60.4% of the issued and outstanding common stock of IOT. TCI had owned for several years an aggregate of 1,037,184 shares of common stock of IOT (approximately 25% of the issued and outstanding stock). After giving effect to the transaction on July 17, 2009, TCI owned an aggregate of 3,556,118 shares of IOT common stock which constituted approximately 85.3% of the shares of common stock of IOT outstanding. In 2010, TCI sold 5,000 shares of IOT stock resulting in an ownership of 3,551,118 shares which constitutes approximately 85.2% of the shares of common stock of IOT outstanding (which is a total of 4,168,214 shares). Shares of IOT are traded on the American Stock Exchange under the symbol “IOT”.

With TCI’s acquisition of the additional shares on July 17, 2009, which increased the aggregate ownership to in excess of 80%, beginning in July 2009, IOT’s results of operations are now consolidated with those of TCI for tax and financial reporting purposes. At the time of the acquisition, the historical accounting value of IOT’s assets was $112 million and liabilities were $43 million. In that the shares of IOT acquired by TCI were from a related party, the values recorded by TCI are IOT’s historical accounting values at the date of transfer. The

 

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Company’s fair valuation of IOT’s assets and liabilities at the acquisition date approximated IOT’s book value. The net difference between the purchase price and historical accounting basis of the assets and liabilities acquired was $35 million and has been reflected by TCI as deferred income. The deferred income will be recognized upon the sale of the land that IOT held on its books as of the date of sale, to an independent third party.

ARL’s Board of Directors represents the Company’s shareholders and is responsible for directing the overall affairs of ARL and for setting the strategic policies that guide the Company. The Board of Directors has delegated the day-to-day management of the Company to Prime Income Asset Management, LLC, a Nevada limited liability company (“Prime”) under a written Advisory Agreement that is reviewed annually by ARL’s Board of Directors. The directors of ARL are also directors of TCI and IOT. The Chairman of the Board of Directors of ARL also serves as the Chairman of the Board of Directors of TCI and IOT. The officers of ARL also serve as officers of TCI, IOT and Prime.

ARL’s contractual advisor is Prime, the sole member of which is Prime Income Asset Management, Inc. a Nevada corporation (“PIAMI”) which is owned 100% by Realty Advisors, LLC, a Nevada limited liability company, the sole member of which is Realty Advisors, Inc., a Nevada corporation, which is owned 100% by a Trust known as the May Trust. Prime’s duties include but are not limited to locating, evaluating and recommending real estate and real estate-related investment opportunities. Prime also arranges, for ARL’s benefit, debt and equity financing with third party lenders and investors. Prime also serves as advisor to TCI and IOT. As the contractual advisor, Prime is compensated by ARL under an Advisory Agreement that is more fully described in Part III, Item 10. “Directors, Executive Officers and Corporate Governance—The Advisor”. ARL has no employees. Employees of Prime render services to ARL in accordance with the terms of the Advisory Agreement.

Triad Realty Services, L.P. (“Triad”), an affiliate of Prime, provides management services for our commercial properties. The general partner of Triad is PIAMI. The limited partner of Triad is HRS Holdings, LLC (“HRSHLLC”). Triad subcontracts the property-level management and leasing of our commercial properties (office buildings, shopping centers and industrial warehouses) to Regis Realty I, LLC (“Regis I”), which is owned by HRSHLLC. Regis Hotel I, LLC, another Prime affiliate, manages the Company’s hotel investments. ARL engages third party companies to lease and manage its apartment properties. Triad receives a fee for its property management services. Regis I receives property and construction management fees and leasing commissions in accordance with the terms of its property-level management agreement with Triad. Regis I is also entitled to receive real estate brokerage commissions in accordance with the terms of a non-exclusive brokerage agreement. See Part III, Item 10. “Directors, Executive Officers and Corporate Governance—Property Management”.

Our primary business is the acquisition, development and ownership of income-producing residential, hotel and commercial real estate properties. In addition, ARL opportunistically acquires land for future development in in-fill or high-growth suburban markets. From time to time and when we believe it appropriate to do so, we will also sell land and income-producing properties. We generate revenues by leasing apartment units to residents; leasing office, industrial and retail space to various for-profit businesses as well as certain local, state and federal agencies; leasing trade show and exhibit space to temporary as well as long-term tenants; and renting hotel rooms to guests. We also generate revenues from gains on sales of income-producing properties and land. At December 31, 2010, our income-producing properties consisted of:

 

   

30 commercial properties totaling 5.7 million rentable square feet, consisting of 19 office buildings, six commercial warehouses, four retail properties, and a 344,975 square foot trade show and exhibit hall;

 

   

Five hotels comprising 808 rooms;

 

   

47 apartment communities totaling 8,525 units, excluding apartments being developed.

 

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The following table sets forth the location of our real estate held for investment (income-producing properties only) by asset type as of December 31, 2010:

 

      Apartments      Commercial      Hotels  

Location

   No.      Units      No.      SF      No.      Rooms  

Greater Dallas-Ft Worth, TX

     19         3,876         16         2,865,716         

Greater Houston, TX

     3         656               

San Antonio, TX

     2         468               

Temple, TX

     2         452               

Other Texas

     5         1,053               

Mississippi

     6         328         1         26,000         

Arkansas

     4         580               

Tennessee

     2         312               

Baton Rouge, LA

     1         160               

Kansas

     1         320               

Ohio

     1         200               

New Orleans, LA

           5         1,357,475         

Alaska

           1         20,715         

Florida

     1         120         1         6,722         

Illinois

           1         306,609         

Indiana

           1         220,461         

Michigan

           1         179,741         

Oklahoma

           1         225,566         

Wisconsin

           1         122,205         

California

                 4         647   

Colorado

           1         344,975         1         161   
                                                     

Total

     47         8,525         30         5,676,185         5         808   
                                                     

We finance our acquisitions primarily through operating cash flow, proceeds from the sale of land and income-producing properties and debt financing primarily in the form of property-specific first-lien mortgage loans from commercial banks and institutional lenders. We finance our development projects principally with short-term, variable-rate construction loans that are refinanced with the proceeds of long-term, fixed-rate amortizing mortgages when the development has been completed and occupancy has been stabilized. When we sell properties, we may carry a portion of the sales price generally in the form of a short-term, interest bearing seller-financed note receivable, secured by the property being sold. We may also from time to time enter into partnerships or joint ventures with various investors to acquire land or income-producing properties or to sell interests in certain of our properties.

We partner with various third-party development companies to construct residential apartment communities. We are currently involved in the construction of five apartment complexes. The third-party developer typically holds a general partner as well as a limited partner interest in a limited partnership formed for the purpose of building a single property while we generally take a limited partner interest in the limited partnership. We may contribute land to the partnership as part of our equity contribution or we may contribute the necessary funds to the partnership to acquire the land. We are required to fund all required equity contributions while the third-party developer is responsible for obtaining construction financing, hiring a general contractor and for the overall management, successful completion and delivery of the project. We generally bear all the economic risks and rewards of ownership in these partnerships and therefore include these partnerships in our consolidated financial statements. The third-party developer is paid a developer fee typically equal to a percentage of the construction costs. When the project reaches stabilized occupancy, we acquire the third-party developer’s partnership interests in exchange for any remaining unpaid developer fees.

 

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At December 31, 2010, our apartment projects in development included (dollars in thousands):

 

Property

   Location      No. of
Units
     Costs to
Date(1)
     Total
Projected
Costs(1)
 

Blue Ridge

     Midland, TX         290       $ 18,454       $ 27,570   

Lodge at Pecan Creek

     Denton, TX         192         3,611         18,887   

Parc at Denham Springs

     Denham Springs, LA         224         17,034         22,142   

Sonoma Court

     Rockwall, TX         124         4,004         12,587   

Toulon

     Gautier, MS         240         7,015         27,488   
                             

Total

        1,070       $ 50,118       $ 108,674   
                             

 

(1) Costs include construction hard costs, construction soft costs and loan borrowing costs.

We are partnered in a joint venture with HarmInvest GmbH, Berlin, to develop an approximately 420 acre former naval base into a holiday resort located in the northeastern section of Schleswig-Holstein, Germany. It will be a multi-family resort area with vacation homes, hotels, a marina and yacht club, along with an 18-hole golf course.

We have made investments in a number of large tracts of undeveloped and partially developed land and intend to a) continue to improve these tracts of land for our own development purposes or b) make the improvements necessary to ready the land for sale to other developers.

At December 31, 2010, our investments in undeveloped and partially developed land consisted of the following (dollars in thousands):

 

Property

   Location      Date(s)
Acquired
     Acres      Cost      Primary
Intended Use
 

Capital City Center

     Jackson, MS         2007-2008         8       $ 13,455         Mixed use   

Kaufman County Multi-Tracts

     Kaufman County, TX         2000-2008         2,831         11,886         Single-family residential   

Las Colinas Multi-Tracts

     Irving, TX         1995-2006         221         13,714         Commercial   

US Virgin Islands Multi-Tracts

     St. Thomas, USVI         2005-2008         97         16,367         Single-family residential   

Meloy Portage

     Kent, OH         2004         53         5,119         Single-family residential   

McKinney Multi-Tracts

     McKinney, TX         1997-2008         224         28,543         Mixed use   

Mercer Crossing

     Dallas, TX         1996-2008         918         112,034         Mixed use   

Pioneer Crossing

     Austin, TX         1997-2005         887         29,297         Multi-family residential   

Port Olpenitz

     Kappeln, Germany         2008         420         31,526         Mixed use   

Travis Ranch

     Kaufman County, TX         2008         25         2,780         Multi-family residential   

Valley Ranch Multi-Tracts

     Irving, TX         2004         27         5,826         Commercial   

Waco Multi-Tracts

     Waco, TX         2005-2006         492         4,831         Single-family residential   

Windmill Farms

     Kaufman County, TX         2008         3,287         47,522         Single-family residential   

Woodmont Multi-Tracts

     Dallas, TX         2006-2008         76         53,747         Mixed use   

Subtotal

           9,566         376,647      

Other land holdings

     Various         1990-2008         825         53,747         Various   
                          

Total land holdings

           10,391       $ 430,394      
                          

Significant Real Estate Acquisitions/Dispositions and Financings

A summary of some of the significant transactions for the year ended December 31, 2010 are discussed below:

On February 18, 2010, we purchased 15.88 acres of Furniture Row land located in Midland, Texas, for $2.2 million. We financed the transaction with $0.3 million cash, a $0.8 million draw on a construction loan with a commercial lender, and a $1.0 million loan provided by the seller. The seller financing accrues interest, payable monthly, at 8.0% and matures on March 18, 2011. A construction loan in the amount of $24.5 million was taken out to fund the development of Blue Ridge Apartments, 290-unit complex. The note accrues interest at 5.37%,

 

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payable monthly at interest only, until November 1, 2011. Thereafter, payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on October 1, 2051.

On March 17, 2010, we sold our membership in IGCH Villager Associates, Ltd. to Liberty Bankers Life Insurance Company, a related party under common control, for a sales price of $1.5 million. This entity owns the Villager Apartments, a 33-unit complex located in Fort Walton Beach, Florida, We received $0.8 million in cash, and the buyer assumed the existing mortgage of $0.7 million secured by the property. The project was sold to a related party; therefore, the gain of $0.4 million was deferred and will be recorded upon sale to a third party.

On March 30, 2010, we refinanced the existing mortgage on Blue Lake Villas apartments, a 186-unit complex located in Waxahachie, Texas, for a new mortgage of $10.7 million. We paid off the existing mortgage of $10.3 million and $0.5 million in closing costs. The note accrues interest at 4.75% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on April 1, 2050.

On March 30, 2010, we refinanced the existing mortgage on Spyglass apartments, a 256-unit complex located in Mansfield, Texas, for a new mortgage of $15.8 million. We paid off the existing mortgage of $15.5 million and $0.4 million in closing costs. The note accrues interest at 4.75% and payments of interest and principal are due monthly based upon a 37-year amortization schedule, maturing on April 1, 2047.

On March 30, 2010, we refinanced the existing mortgage on Falcon Lakes apartments, a 248-unit complex located in Arlington, Texas, for a new mortgage of $13.7 million. We paid off the existing mortgage of $13.1 million and $0.7 million in closing costs. The note accrues interest at 4.75% and payments of interest and principal are due monthly based upon a 36-year amortization schedule, maturing on April 1, 2046.

On April 15, 2010, we sold 6.77 acres of land known as McKinney Corners II land located in McKinney, Texas for a sales price of $1.6 million. We paid off the existing debt of $1.4 million and closing costs. We recorded a gain of $1.1 million on the sale of the land parcel.

On April 16, 2010, we sold the Foxwood apartments, a 220-unit complex located in Memphis, Tennessee, to One Realco Retail, Inc., a related party under common control, for a sales price of $5.1 million. The buyer assumed the existing mortgage of $5.1 million secured by the property. The property was sold to a related party; therefore, the gain of $5.8 million was deferred. The deferred gain was recognized in June 2010, upon sale of the property to a third party.

On April 23, 2010, we sold our membership interest in Longfellow Investors I, LLC, Longfellow Investors II, LLC, Longfellow Investors III, LLC, Longfellow Investors IV, LLC and Longfellow Investors V, LLC to Liberty Bankers Life Insurance Company, a related party under common control, for a sales price of $20.0 million. These entities had limited partner interests in Longfellow Arms Apartments, Ltd., an entity that owned a 216-unit complex located in Longview, Texas. We received $6.1 million in cash, and the buyer assumed the existing mortgage of $14.4 million secured by the property. The property was sold to a related party; therefore, the gain of $3.6 million was deferred and will be recorded upon sale to a third party.

On May 4, 2010, we sold our investment in T Autumn Chase, Inc. to Taaco Financial, Inc., a related party under common control, for a sales price of $16.0 million. This entity owns 16.79 acres of land known as Ewing 8 land located in Addison, Texas. The buyer assumed the existing mortgage of $10.7 million secured by the property. We recorded a loss of $5.3 million on the sale of the land parcel.

On May 11, 2010, we refinanced the existing mortgage on Whispering Pines apartments, a 320-unit complex located in Topeka, Kansas, for a new mortgage of $9.5 million. We paid off the existing mortgage of $8.3 million and $1.4 million in closing costs. The note accrues interest at 4.5% and payments of interest and principal are due monthly based upon a 33-year amortization schedule, maturing on June 1, 2043.

 

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On May 13, 2010, a construction loan with a commercial lender in the amount of $17.0 million was taken out to fund the development of the Toulon Apartments, a 240-unit complex located in Gautier, Mississippi. The loan accrues interest at 5.37% payable monthly as interest only, until December 1, 2011. Thereafter payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on December 1, 2051.

On May 18, 2010, we sold our investment in TCI Eton Square, L.P. to TX Highland RS Corp, a related party under common control, for a sales price of $13.7 million. This entity owns a 225,566 square foot office and retail center known as Eton Square located in Tulsa, Oklahoma. We provided $4.0 million in seller financing with a three-year note receivable. The note accrues interest at prime plus 2.0% and is payable at maturity on May 18, 2013. The buyer assumed the existing mortgage of $9.6 million, secured by the property, but did not assume the obligation of TCI’s guarantee on the loan. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On May 21, 2010, we refinanced the existing mortgage on Desoto Ranch apartments, a 248-unit complex located in Desoto, Texas, for a new mortgage of $16.3 million. We paid off the existing mortgage of $15.7 million and $0.8 million in closing costs. The note accrues interest at 4.79% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on June 1, 2050.

On May 27, 2010, we refinanced the existing mortgage on Vistas at Pinnacle Park apartments, a 332-unit complex located in Dallas, Texas, for a new mortgage of $19.1 million. We paid off the existing mortgage of $18.3 million and $1.0 million in closing costs. The note accrues interest at 4.86% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on June 1, 2050.

On May 28, 2010, a loan with a commercial lender in the amount of $3.7 million was taken out to fund real estate property taxes. The loan accrues at 12.5%, payable monthly as interest only, until July 1, 2012. Thereafter, payments of interest and principal are due monthly based upon an 8-year amortization schedule, maturing on June 1, 2020.

On June 16, 2010, we sold the Chateau apartments, a 115-unit complex located in Bellevue, Nebraska, to One Realco Retail, Inc. and TCI Woodsong, Inc., both related parties under common control, for a sales price of $2.9 million. The buyer assumed the existing mortgage of $2.9 million secured by the property. The property was sold to a related party; therefore, the gain of $2.4 million was deferred. The deferred gain was recognized in July 2010, upon sale of the property to a third party.

On July 12, 2010, we sold our investment in Pioneer Crossing Hotels, LLC to One Realco Corporation, a related party under common control, for a sales price of $17.2 million. This entity owns the Piccadilly Airport Hotel, a 185-room hotel, the Piccadilly Inn Express Hotel, a 78-room hotel, and the Piccadilly Shaw Hotel, a 194-room hotel, all located in Fresno, California. In addition, we sold a $10.1 million intercompany receivable. The buyer assumed the existing mortgage of $27.3 million, secured by the property, but did not assume the obligation of ARL’s guarantee on the loan. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement and questionable recovery of investment cost.

On July 29, 2010, we refinanced the existing mortgage on Heather Creek apartments, a 200-unit complex located in Mesquite, Texas, for a new mortgage of $12.0 million. We paid down the existing debt of $11.5 million and $0.7 million in closing costs. The note accrues interest at 4.33% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on August 1, 2050.

On July 30, 2010, we purchased 8.91 acres of Sonoma Court land located in Rockwall, Texas, for $0.9 million. This land was purchased for the development of Sonoma Court apartments, a 124-unit apartment complex. We financed the transaction with a $0.9 million draw on a construction loan with a commercial lender.

 

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On July 30, 2010, a construction loan with a commercial lender in the amount of $11.2 million was obtained to fund the development of the Sonoma Court apartments, a 124-unit complex located in Rockwall, Texas. The loan accrues interest at 5.35%, payable monthly as interest only, until November 1, 2011. Thereafter, payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on November 1, 2051

On July 30, 2010, we recognized the 2009 sale of 21.9 acres of land known as Pulaski land located in Pulaski County, Arkansas, to One Realco Land Holdings, Inc. and One Realco Corporation, both related parties under common control, for a sales price of $2.3 million. The buyer assumed the existing mortgage of $1.1 million secured by the property and we provided seller financing of $1.2 million. We had previously deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, the inadequate investment from the buyer and the questionable recovery of our investment. We recorded a loss on sale of $1.2 million when the buyer subsequently sold the land to a third party and the seller financing was not collected.

The Company had a 14.8% limited partner interest in a partnership that owned a 131-unit apartment complex known as Quail Oaks apartments, located in Balch Springs, Texas. The partnership was consolidated in accordance with ASC 810, whereby we determined that we were a primary beneficiary. On August 3, 2010 the partnership transferred ownership of the property to the existing lender and the result was a gain of $1.8 million.

On August 4, 2010, we sold 6.51 acres of land known as Hines Meridian land located in Irving, Texas for a sales price of $2.0 million. We received $0.4 million in cash, after paying in full the existing debt of $0.9 million and providing seller financing of $0.5 million. The note accrues interest at 8.0% and is payable at maturity on August 11, 2011. We recorded a gain of $0.6 million on the sale of the land parcel.

On August 20, 2010, we sold our investment in American Mart Hotel Corporation to ABC Land and Development, Inc., a related party under common control, for a sales price of $3.1 million. This entity owns the Comfort Inn Hotel, a 161-room hotel, located in Denver, Colorado. The buyer assumed the existing mortgage of $3.0 million, secured by the property, but did not assume the obligation of ARL’s guarantee on the loan. ARL has deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement and questionable recovery of investment cost.

On August 30, 2010, we sold the Mason Park apartments, a 312-unit complex located in Katy, Texas, for a sales price of $22.9 million. We recorded a gain of $0.3 million on the sale of the apartment.

On September 14, 2010, a construction loan with a commercial lender in the amount of $16.5 million was obtained to fund the development of the Lodge at Pecan Creek apartments, a 192-unit complex located in Denton, Texas. The loan accrues interest at 5.05%, payable monthly as interest only, until March 1, 2012. Thereafter, payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on March 1, 2052.

On September 15, 2010, we sold our investment in Pacific Center, LLC to ABC Land and Development, Inc., a related party under common control, for a sales price of $2.5 million. This entity owns the Piccadilly University Hotel, a 190-room hotel, located in Fresno, California. In addition we sold a $2.0 million intercompany receivable. The buyer assumed the existing mortgage of $4.5 million, secured by the property, but did not assume the obligation of ARL’s guarantee on the loan. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement and questionable recovery of investment cost.

On September 21, 2010, we sold our investment in EQK Bridgeview Plaza, Inc. to Warren Road Farm, Inc., a related party under common control, for a sales price of $8.3 million. This entity owns a 122,205 square foot retail center known as Bridgeview Plaza located in La Crosse, Wisconsin. We provided $2.1 million in seller financing with a five-year note receivable. The note accrues interest at 6.0% and is payable at maturity on September 21, 2015. The buyer assumed the existing mortgage of $6.2 million, secured by the property, but did

 

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not assume the obligation of our guarantee on the loan. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On September 21, 2010, we sold our investment in Transcontinental Brewery, Inc. to Warren Road Farm, Inc., a related party under common control, for a sales price of $3.8 million. This entity owns a 29,784 square foot office building and 13.0 acres of land known as Eagle Crest in Farmers Branch, Texas. The buyer assumed the existing mortgage of $2.4 million, secured by the property. A five-year note receivable for $1.4 million was given as consideration, with an interest rate of 6.0%, payable at maturity on September 21, 2015. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On September 21, 2010, we sold our investment in South Cochran Corporation to Warren Road Farm, Inc., a related party under common control, for a sales price of $2.2 million. This entity owns a 220,461 square foot retail center known as Dunes Plaza located in Michigan City, Indiana. In addition, we sold a $1.0 million intercompany receivable. The buyer assumed the existing mortgage of $3.2 million, secured by the property, but did not assume the obligation of TCI’s guarantee on the loan. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement and questionable recovery of investment cost.

On September 21, 2010, we sold our investment in Thornwood Apartments, LLC to Warren Road Farm, Inc., a related party under common control, for a sales price of $6.7 million. This entity owns 245.95 acres of land known as Windmill Farms-Harlan land located in Kaufman County, Texas. We provided $1.1 million in seller financing with a five-year note receivable. The note accrues interest at 6.0% and is payable at maturity on September 21, 2015. The buyer assumed the existing mortgage of $5.5 million, secured by the property. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On September 21, 2010, we sold our investment in EQK Windmill Farms, LLC to Warren Road Farm, Inc., a related party under common control, for a sales price of $64.5 million. This entity owns 2,957.95 acres of land known as Windmill Farms land located in Kaufman County, Texas. We provided $33.8 million in seller financing with a five-year note receivable. The note accrues interest at 6.0% and is payable at maturity on September 21, 2015. The buyer assumed the existing mortgage of $30.7 million, secured by the property. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On September 28, 2010, we sold the Baywalk apartments, a 192-unit complex located in Galveston, Texas for a sales price of $8.6 million. We recorded a gain of $1.8 million on the sale of the apartment.

On September 30, 2010, we recognized the 2003 sale of four properties to subsidiaries of United Housing Foundation, Inc., a Texas Non-Profit 501(c)3 Corporation. We sold the Limestone at Vista Ridge apartments for $19.0 million, the Limestone Canyon apartments for $18.0 million, the Sendero Ridge apartments for $29.4 million and the Tivoli apartments for $16.1 million. At the time of the sale, We remained as the guarantor on the existing mortgages and the sales were not recorded. Instead, these transactions were accounted for on the deposit method and the properties and corresponding debt continued to be consolidated. These mortgages have since been refinanced and such refinancing does not include any obligations by us as guarantor. We recorded the sale and recorded $25.2 million in deferred gain on the sale. Due to the related party nature of these sales, we will not record the gain on the sale until the properties are sold to a third party.

On October 4, 2010, we sold our investment in Marina Landing Corp. to ABC Land and Development, Inc., a related party under common control, for a sales price of $5.8 million. This entity owns a 256-unit apartment complex known as Marina Landing Apartments located in Galveston, Texas. The buyer assumed the existing mortgage of $10.4 million. We provided $5.8 million in seller financing with a five-year note receivable. The note accrues interest at 6.0% and is payable at maturity on October 4, 2015.

 

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On October 5, 2010, we sold the Island Bay apartments, a 458-unit complex located in Galveston, Texas, for a sales price of $15.0 million. The existing mortgage of $14.0 million is secured by the property. Ownership of the property transferred to the existing lender and the result was a gain of $4.1 million.

On October 6, 2010, we recognized the 2009 sale of 4.7 acres of land known as Cigna land located in Irving, Texas to One Realco Land Holdings, Inc., a related party under common control, for a sales price of $1.0 million. The buyer assumed the existing mortgage of $0.8 million secured by the property.

On October 22, 2010, we sold our investment in Continental Common, Inc., which owns a 512,593 square foot office building known as 1010 Commons, located in New Orleans, Louisiana, 17.2 acres of land known as Lacy Longhorn land, located in Farmers Branch, Texas, and 44.17 acres of land known as Marine Creek land, located in Fort Worth, Texas, to ABCLD, LLC, a related party under common control, for a sales price of $30.9 million. The buyer assumed the existing mortgage of $24.1 million secured by the properties and we provided $6.8 million in seller financing with a five-year note receivable. The note accrues interest at 6.0% and is payable at maturity on October 22, 2015. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On October 29, 2010, we recognized the 2009 sale of 100% of our membership interest in JMJ Circle C, LLC, 99% of our membership interest in JMJ Circle C East, LLC and 99% of our membership interest in JMJ Circle C West, LLC to Avana HRS Development, Inc., a related party under common control, for a sales price of $0.5 million. These entities owned 1,093.98 acres of land known as Avana land located in Austin, Texas. The buyer assumed the existing mortgage of $39.7 million secured by the property. Included in the debt assumed by the buyer, was approximately $8.6 million due to us. We had previously deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, the inadequate investment from the buyer and the questionable recovery of our investment. We recorded a loss on sale of $8.6 million when the buyer subsequently sold the land to a third party and the note was not collected.

On November 3, 2010, we sold 8.0 acres of land known as Alliance Hickman land located in Tarrant County, Texas, for a sales price of $1.3 million. The existing loan of $0.7 million, secured by the property, was paid off at close. We recorded a gain of $0.2 million on the land parcel.

On November 30, 2010, we sold the Kingsland Ranch apartments, a 398-unit complex located in Katy, Texas for a sales price of $29.3 million. We recorded a gain of $4.2 million on the apartment sale.

On November 30, 2010, we refinanced the existing mortgage on Dakota Arms apartments, a 208-unit complex located in Lubbock, Texas, for a new mortgage of $12.5 million. We paid down the existing debt of $12.0 million and $0.5 million in closing costs. The note accrues interest at 4.28% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on December 1, 2050.

On November 30, 2010, we refinanced the existing mortgage on River Oaks apartments, a 180-unit complex located in Wylie, Texas, for a new mortgage of $9.9 million. We paid down the existing debt of $9.4 million and $0.5 million in closing costs. The note accrues interest at 3.85% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on December 1, 2050.

On November 30, 2010, we refinanced the existing mortgage on Wildflower Villas apartments, a 220-unit complex located in Temple, Texas, for a new mortgage of $13.9 million. We paid down the existing debt of $13.4 million and $0.5 million in closing costs. The note accrues interest at 4.27% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on December 1, 2050.

On December 23, 2010, ARL sold 34 properties, which consisted of six commercial buildings comprising an aggregate of 1.4 million square feet, approximately 3,683 acres of undeveloped land, and one ground lease to FRE Real Estate, Inc. a related party under common control, for an aggregate sales price of $229.2 million. The

 

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buyer assumed the existing mortgages of $174.1 million secured by the properties and we provided $55.1 million in seller financing notes with a five-year note term. The notes accrue interest at 6.0% and are payable at maturity on December 23, 2015. We have deferred the recognition of the sales in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On December 23, 2010, we sold Cooley Building, a 27,041 office building located in Dallas, Texas, to ABCLD Properties, LLC and ABCLD Income, LLC, both related parties under common control, for a sales price of $2.8 million. We have deferred the recognition of the sale in accordance with ASC 360-20 due to our continuing involvement, inadequate initial investment and questionable recovery of investment cost.

On December 30, 2010, we sold 51.71 acres of land known as Alliance Centurion 52 land located in Tarrant County, Texas, for a sales price of $2.0 million. The existing loan of $2.0 million, secured by the property, was paid off at close. We recorded a loss of $0.7 million on the land parcel.

On December 30, 2010, we sold a parking garage known as 217 Rampart located in New Orleans, Louisiana, for a sales price of $0.5 million. The existing loan of $0.4 million, secured by the property, was paid off at close. We recorded a loss of $1.7 million on the sale of the parking garage.

On December 30, 2010, we refinanced the existing mortgage on Windsong apartments, a 188-unit complex located in Fort Worth, Texas, for a new mortgage of $10.7 million. We paid down the existing debt of $10.3 million and $0.4 million in closing costs. The note accrues interest at 4.25% and payments of interest and principal are due monthly based upon a 40-year amortization schedule, maturing on January 1, 2051.

On December 31, 2010, we sold 4.3 acres of land known as Grapevine Vineyards land located in Grapevine, Texas, to ART Westwood FL, Inc., a related party under common control, for a sales price of $0.9 million. We recorded a loss on sale of $263,000.

On December 31, 2010, we sold 2.6 acres of land known as Grapevine Vineyards II land located in Grapevine, Texas, to ART Westwood Fl, Inc., a related party under common control, for a sales price of $1.5 million. We recorded a loss on sale of $30,000.

On December 31, 2010, we sold 5.6 acres of land known as Nashville land located in Nashville, Tennessee and 0.7 acres of land known as Kelly Lots land located in Farmers Branch, Texas, to First Equity Properties, Inc., a related party under common control, for a sales price of $0.3 million. There was no gain or loss recorded on this sale.

On December 31, 2010, we sold 6.3 acres of land known as Nashville land located in Nashville, Tennessee, to ART Westwood FL, Inc., a related party under common control, for a sales price of $1.2 million. The property was sold to a related party; therefore, the gain of $3,000 was deferred and will be recorded upon sale to a third party.

We continue to invest in the development of apartments and various projects. During the twelve months ended December 31, 2010, we have expended $50.0 million on construction and development and capitalized $6.2 million of interest costs.

The properties that we have sold to a related party under common control and have deferred the recognition of the sale are treated as “subject to sales contract” on the Consolidated Balance Sheets and are listed in detail in Schedule III, “Real Estate and Accumulated Depreciation”. These properties were sold to a related party in order to help facilitate an appropriate debt or organizational restructure and may or may not be transferred back to the seller upon resolution. These properties have mortgages that are secured by the property and many have corporate guarantees. According to the loan documents, we are currently in default on these mortgages primarily

 

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due to lack of payment although we are actively involved in discussions with every lender in order to settle or cure the default situation. We have reviewed each asset and taken impairment to the extent we feel the value of the property was less than our current basis.

Business Plan and Investment Policy

Our business objective is to maximize long-term value for our stockholders by investing in commercial real estate through the acquisition, development and ownership of apartments, commercial properties, hotels, and land. We intend to achieve this objective through acquiring and developing properties in multiple markets and operating as an industry-leading landlord. We believe this objective will provide the benefits of enhanced investment opportunities, economies of scale and risk diversification, both in terms of geographic market and real estate product type. We believe our objective will also result in continuing access to favorably priced debt and equity capital. In pursuing our business objective, we seek to achieve a combination of internal and external growth while maintaining a strong balance sheet and employing a strategy of financial flexibility. We maximize the value of our apartments and commercial properties by maintaining high occupancy levels while charging competitive rental rates, controlling costs and focusing on tenant retention. We also pursue attractive development opportunities either directly or in partnership with other investors.

For our portfolio of commercial properties, we generate increased operating cash flow through annual contractual increases in rental rates under existing leases. We also seek to identify best practices within our industry and across our business units in order to enhance cost savings and gain operating efficiencies. We employ capital improvement and preventive maintenance programs specifically designed to reduce operating costs and increase the long-term value of our real estate investments.

We seek to acquire properties consistent with our business objectives and strategies. We execute our acquisition strategy by purchasing properties which management believes will create stockholder value over the long-term. We will also sell properties when management believes value has been maximized or when a property is no longer considered an investment to be held long-term.

We are continuously in various stages of discussions and negotiations with respect to development, acquisition, and disposition projects. The consummation of any current or future development, acquisition, or disposition, if any, and the pace at which any may be completed cannot be assured or predicted.

Substantially all of our properties are owned by subsidiary companies, many of which are single-asset entities. This ownership structure permits greater access to financing for individual properties and permits flexibility in negotiating a sale of either the asset or the equity interests in the entity owning the asset. From time-to-time, our subsidiaries have invested in joint ventures with other investors, creating the possibility of risks that do not exist with properties solely owned by an ARL subsidiary. In those instances where other investors are involved, those other investors may have business, economic, or other objectives that are inconsistent with our objectives, which may in turn require us to make investment decisions different from those if we were the sole owner.

Real estate generally cannot be sold quickly. We may not be able to promptly dispose of properties in response to economic or other conditions. To offset this challenge, selective dispositions have been a part of our strategy to maintain an efficient investment portfolio and to provide additional sources of capital. We finance acquisitions through mortgages, internally generated funds, and, to a lesser extent, property sales. Those sources provide the bulk of funds for future acquisitions. We may purchase properties by assuming existing loans secured by the acquired property. When properties are acquired in such a manner, we customarily seek to refinance the asset in order to properly leverage the asset in a manner consistent with our investment objectives.

Our businesses are not generally seasonal with regard to real estate investments. Our investment strategy seeks both current income and capital appreciation. Our plan of operation is to continue, to the extent our liquidity permits, to make equity investments in income-producing real estate such as hotels, apartments, and

 

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commercial properties. We may also invest in the debt or equity securities of real estate-related entities. We intend to pursue higher risk, higher reward investments, such as improved and unimproved land where we can obtain reasonably-priced financing for substantially all of a property’s purchase price. We intend to continue the development of apartment properties in selected markets in Texas and in other locations where we believe adequate levels of demand exist. We intend to pursue sales opportunities for properties in stabilized real estate markets where we believe our properties’ value has been maximized. We also intend to be an opportunistic seller of properties in markets where demand exceeds current supply. Although we no longer actively seek to fund or purchase mortgage loans, we may, in selected instances, originate mortgage loans or we may provide purchase money financing in conjunction with a property sale.

Our Board of Directors has broad authority under our governing documents to make all types of investments, and we may devote available resources to particular investments or types of investments without restriction on the amount or percentage of assets that may be allocated to a single investment or to any particular type of investment, and without limit on the percentage of securities of any one issuer that may be acquired. Investment objectives and policies may be changed at any time by the Board without stockholder approval.

The specific composition from time-to-time of our real estate portfolio owned by ARL directly and through our subsidiaries depends largely on the judgment of management to changing investment opportunities and the level of risk associated with specific investments or types of investments. We intend to maintain a real estate portfolio that is diversified by both location and type of property.

Competition

The real estate business is highly competitive and we compete with numerous companies engaged in real estate activities (including certain entities described in Part III, Item 13. “Certain Relationships and Related Transactions, and Director Independence”), some of which have greater financial resources than ARL. We believe that success against such competition is dependent upon the geographic location of a property, the performance of property-level managers in areas such as leasing and marketing, collection of rents and control of operating expenses, the amount of new construction in the area and the maintenance and appearance of the property. Additional competitive factors include ease of access to a property, the adequacy of related facilities such as parking and other amenities, and sensitivity to market conditions in determining rent levels. With respect to apartments, competition is also based upon the design and mix of the units and the ability to provide a community atmosphere for the residents. With respect to hotels, competition is also based upon the market served, i.e., transient, commercial, or group users. We believe that beyond general economic circumstances and trends, the degree to which properties are renovated or new properties are developed in the competing submarket are also competitive factors. See also Part I, Item 1A. “Risk Factors”.

To the extent that ARL seeks to sell any of its properties, the sales prices for the properties may be affected by competition from other real estate owners and financial institutions also attempting to sell properties in areas where ARL’s properties are located, as well as aggressive buyers attempting to dominate or penetrate a particular market.

As described above and in Part III, Item 13. “Certain Relationships and Related Transactions, and Director Independence”, the officers and directors of ARL serve as officers and directors of TCI and IOT. TCI and IOT have business objectives similar to those of ARL. ARL’s officers and directors owe fiduciary duties to both IOT and TCI as well as to ARL under applicable law. In determining whether a particular investment opportunity will be allocated to ARL, IOT, or TCI, management considers the respective investment objectives of each Company and the appropriateness of a particular investment in light of each Company’s existing real estate and mortgage notes receivable portfolio. To the extent that any particular investment opportunity is appropriate to more than one of the entities, the investment opportunity may be allocated to the entity which has had funds available for investment for the longest period of time, or, if appropriate, the investment may be shared among all three or two of the entities.

 

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In addition, as described in Part III, Item 13. “Certain Relationships and Related Transactions, and Director Independence”, ARL competes with affiliates of Prime having similar investment objectives related to the acquisition, development, disposition, leasing and financing of real estate and real estate-related investments. In resolving any potential conflicts of interest which may arise, Prime has informed ARL that it intends to exercise its best judgment as to what is fair and reasonable under the circumstances in accordance with applicable law.

We have historically engaged in and will continue to engage in certain business transactions with related parties, including but not limited to asset acquisitions and dispositions. Transactions involving related parties cannot be presumed to be carried out on an arm’s length basis due to the absence of free market forces that naturally exist in business dealings between two or more unrelated entities. Related party transactions may not always be favorable to our business and may include terms, conditions and agreements that are not necessarily beneficial to or in the best interests of our company.

Available Information

ARL maintains an Internet site at http://www.amrealtytrust.com. Available through the website, free of charge, are Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, reports filed pursuant to Section 16, and amendments to those reports, as soon as reasonably practicable after they are electronically filed or furnished to the Securities and Exchange Commission. In addition, we have posted the charters for the Audit Committee, Compensation Committee, and Governance and Nominating Committee, as well as the Code of Business Conduct and Ethics, Corporate Governance Guidelines on Director Independence, and other information on the website. These charters and principles are not incorporated in this report by reference. We will also provide a copy of these documents free of charge to stockholders upon written request. The Company issues Annual Reports containing audited financial statements to its common shareholders.

 

ITEM 1A. RISK FACTORS

An investment in our securities involves various risks. All investors should carefully consider the following risk factors in conjunction with the other information in this report before trading our securities.

Risk Factors Related to our Business

Adverse events concerning our existing tenants or negative market conditions affecting our existing tenants could have an adverse impact on our ability to attract new tenants, release space, collect rent or renew leases, and thus could adversely affect cash flow from operations and inhibit growth.

Cash flow from operations depends in part on the ability to lease space to tenants on economically favorable terms. We could be adversely affected by various facts and events over which the Company has limited or no control, such as:

 

   

lack of demand for space in areas where the properties are located;

 

   

inability to retain existing tenants and attract new tenants;

 

   

oversupply of or reduced demand for space and changes in market rental rates;

 

   

defaults by tenants or failure to pay rent on a timely basis;

 

   

the need to periodically renovate and repair marketable space;

 

   

physical damage to properties;

 

   

economic or physical decline of the areas where properties are located; and

 

   

potential risk of functional obsolescence of properties over time.

At any time, any tenant may experience a downturn in its business that may weaken its financial condition. As a result, a tenant may delay lease commencement, fail to make rental payments when due, decline to extend a

 

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lease upon its expiration, become insolvent or declare bankruptcy. Any tenant bankruptcy or insolvency, leasing delay or failure to make rental payments when due could result in the termination of the tenant’s lease and material losses to the Company.

If tenants do not renew their leases as they expire, we may not be able to rent the space. Furthermore, leases that are renewed, and some new leases for space that is re-let, may have terms that are less economically favorable than expiring lease terms, or may require us to incur significant costs, such as renovations, tenant improvements or lease transaction costs. Any of these events could adversely affect cash flow from operations and our ability to make distributions to shareholders and service indebtedness. A significant portion of the costs of owning property, such as real estate taxes, insurance, and debt service payments, are not necessarily reduced when circumstances cause a decrease in rental income from the properties.

We may not be able to compete successfully with other entities that operate in our industry.

We experience a great deal of competition in attracting tenants for the properties and in locating land to develop and properties to acquire.

In our effort to lease properties, we compete for tenants with a broad spectrum of other landlords in each of the markets. These competitors include, among others, publicly-held REITs, privately-held entities, individual property owners and tenants who wish to sublease their space. Some of these competitors may be able to offer prospective tenants more attractive financial terms than we are able to offer.

If the availability of land or high quality properties in our markets diminishes, operating results could be adversely affected.

We may experience increased operating costs which could adversely affect our financial results and the value of our properties.

Our properties are subject to increases in operating expenses such as insurance, cleaning, electricity, heating, ventilation and air conditioning, administrative costs and other costs associated with security, landscaping, repairs, and maintenance of the properties. While some current tenants are obligated by their leases to reimburse us for a portion of these costs, there is no assurance that these tenants will make such payments or agree to pay these costs upon renewal or new tenants will agree to pay these costs. If operating expenses increase in our markets, we may not be able to increase rents or reimbursements in all of these markets to offset the increased expenses, without at the same time decreasing occupancy rates. If this occurs, our ability to make distributions to shareholders and service indebtedness could be adversely affected.

Our ability to achieve growth in operating income depends in part on its ability to develop additional properties.

We intend to continue to develop properties where warranted by market conditions. We have a number of ongoing development and land projects being readied for commencement.

Additionally, general construction and development activities include the following risks:

 

   

construction and leasing of a property may not be completed on schedule, which could result in increased expenses and construction costs, and would result in reduced profitability for that property;

 

   

construction costs may exceed original estimates due to increases in interest rates and increased cost of materials, labor or other costs, possibly making the property less profitable because of inability to increase rents to compensate for the increase in construction costs;

 

   

some developments may fail to achieve expectations, possibly making them less profitable;

 

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we may be unable to obtain, or face delays in obtaining, required zoning, land-use, building, occupancy, and other governmental permits and authorizations, which could result in increased costs and could require us to abandon our activities entirely with respect to a project;

 

   

we may abandon development opportunities after the initial exploration, which may result in failure to recover costs already incurred. If we determine to alter or discontinue its development efforts, future costs of the investment may be expensed as incurred rather than capitalized and we may determine the investment is impaired resulting in a loss;

 

   

we may expend funds on and devote management’s time to projects which will not be completed; and

 

   

occupancy rates and rents at newly-completed properties may fluctuate depending on various factors including market and economic conditions, and may result in lower than projected rental rates and reduced income from operations.

We face risks associated with property acquisitions.

We acquire individual properties and various portfolios of properties and intend to continue to do so. Acquisition activities are subject to the following risks:

 

   

when we are able to locate a desired property, competition from other real estate investors may significantly increase the seller’s offering price;

 

   

acquired properties may fail to perform as expected;

 

   

the actual costs of repositioning or redeveloping acquired properties may be higher than original estimates;

 

   

acquired properties may be located in new markets where we face risks associated with an incomplete knowledge or understanding of the local market, a limited number of established business relationships in the area and a relative unfamiliarity with local governmental and permitting procedures; and

 

   

we may be unable to quickly and efficiently integrate new acquisitions, particularly acquisitions of portfolios of properties, into existing operations, and results of operations and financial condition could be adversely affected.

We may acquire properties subject to liabilities and without any recourse, or with limited recourse, with respect to unknown liabilities. However, if an unknown liability was later asserted against the acquired properties, we might be required to pay substantial sums to settle it, which could adversely affect cash flow.

Many of our properties are concentrated in our primary markets and the Company may suffer economic harm as a result of adverse conditions in those markets.

Our properties are located principally in specific geographic areas in the southwestern, southeastern, and mid-western United States. The Company’s overall performance is largely dependent on economic conditions in those regions.

We are leveraged and may not be able to meet our debt service obligations.

We had total indebtedness at December 31, 2010 of approximately $1.3 billion. Substantially all assets have been pledged to secure debt. These borrowings increase the risk of loss because they represent a prior claim on assets and most require fixed payments regardless of profitability. Our leveraged position makes us vulnerable to declines in the general economy and may limit the Company’s ability to pursue other business opportunities in the future.

We may not be able to access financial markets to obtain capital on a timely basis, or on acceptable terms.

We rely on proceeds from property dispositions and third party capital sources for a portion of our capital needs, including capital for acquisitions and development. The public debt and equity markets are among the

 

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sources upon which the Company relies. There is no guarantee that we will be able to access these markets or any other source of capital. The ability to access the public debt and equity markets depends on a variety of factors, including:

 

   

general economic conditions affecting these markets;

 

   

our own financial structure and performance;

 

   

the market’s opinion of real estate companies in general; and

 

   

the market’s opinion of real estate companies that own similar properties.

We may suffer adverse effects as a result of terms and covenants relating to the Company’s indebtedness.

Required payments on our indebtedness generally are not reduced if the economic performance of the portfolio declines. If the economic performance declines, net income, cash flow from operations and cash available for distribution to stockholders may be reduced. If payments on debt cannot be made, we could sustain a loss or suffer judgments, or in the case of mortgages, suffer foreclosures by mortgagees. Further, some obligations contain cross-default and/or cross-acceleration provisions, which means that a default on one obligation may constitute a default on other obligations.

We anticipate only a small portion of the principal of our debt will be repaid prior to maturity. Therefore, we are likely to refinance a portion of our outstanding debt as it matures. There is a risk that we may not be able to refinance existing debt or the terms of any refinancing will not be as favorable as the terms of the maturing debt. If principal balances due at maturity cannot be refinanced, extended, or repaid with proceeds from other sources, such as the proceeds of sales of assets or new equity capital, cash flow may not be sufficient to repay all maturing debt in years when significant “balloon” payments come due.

Our credit facilities and unsecured debt contain customary restrictions, requirements and other limitations on the ability to incur indebtedness, including total debt to asset ratios, secured debt to total asset ratios, debt service coverage ratios, and minimum ratios of unencumbered assets to unsecured debt. Our continued ability to borrow is subject to compliance with financial and other covenants. In addition, failure to comply with such covenants could cause a default under credit facilities, and we may then be required to repay such debt with capital from other sources. Under those circumstances, other sources of capital may not be available, or be available only on unattractive terms.

Our degree of leverage could limit our ability to obtain additional financing or affect the market price of our common stock.

The degree of leverage could affect our ability to obtain additional financing for working capital, capital expenditures, acquisitions, development or other general corporate purposes. The degree of leverage could also make us more vulnerable to a downturn in business or the general economy.

An increase in interest rates would increase interest costs on variable rate debt and could adversely impact the ability to refinance existing debt.

We currently have, and may incur more, indebtedness that bears interest at variable rates. Accordingly, if interest rates increase, so will the interest costs, which could adversely affect cash flow and the ability to pay principal and interest on our debt and the ability to make distributions to shareholders. Further, rising interest rates could limit our ability to refinance existing debt when it matures.

Unbudgeted capital expenditures or cost overruns could adversely affect business operations and cash flow.

If capital expenditures for ongoing or planned development projects or renovations exceed expectations, the additional cost of these expenditures could have an adverse effect on business operations and cash flow. In addition, we might not have access to funds on a timely basis to pay the unexpected expenditures.

 

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Construction costs are funded in large part through construction financing, which the Company may guarantee. The Company’s obligation to pay interest on this financing continues until the rental project is completed, leased-up and permanent financing is obtained, or the for sale project is sold, or the construction loan is otherwise paid. Unexpected delays in completion of one or more ongoing projects could also have a significant adverse impact on business operations and cash flow.

We may need to sell properties from time to time for cash flow purposes.

Because of the lack of liquidity of real estate investments generally, our ability to respond to changing circumstances may be limited. Real estate investments generally cannot be sold quickly. In the event that we must sell assets to generate cash flow, we cannot predict whether there will be a market for those assets in the time period desired, or whether we will be able to sell the assets at a price that will allow the Company to fully recoup its investment. We may not be able to realize the full potential value of the assets and may incur costs related to the early pay-off of the debt secured by such assets.

We intend to devote resources to the development of new projects.

We plan to continue developing new projects as opportunities arise in the future. Development and construction activities entail a number of risks, including but not limited to the following:

 

   

we may abandon a project after spending time and money determining its feasibility;

 

   

construction costs may materially exceed original estimates;

 

   

the revenue from a new project may not be enough to make it profitable or generate a positive cash flow;

 

   

we may not be able to obtain financing on favorable terms for development of a property, if at all;

 

   

we may not complete construction and lease-ups on schedule, resulting in increased development or carrying costs; and

 

   

we may not be able to obtain, or may be delayed in obtaining, necessary governmental permits.

The overall business is subject to all of the risks associated with the real estate industry.

We are subject to all risks incident to investment in real estate, many of which relate to the general lack of liquidity of real estate investments, including, but not limited to:

 

   

our real estate assets are concentrated primarily in the southwest and any deterioration in the general economic conditions of this region could have an adverse effect;

 

   

changes in interest rates may make the ability to satisfy debt service requirements more burdensome;

 

   

lack of availability of financing may render the purchase, sale or refinancing of a property more difficult or unattractive;

 

   

changes in real estate and zoning laws;

 

   

increases in real estate taxes and insurance costs;

 

   

federal or local economic or rent control;

 

   

acts of terrorism, and

 

   

hurricanes, tornadoes, floods, earthquakes and other similar natural disasters.

Our performance and value are subject to risks associated with our real estate assets and with the real estate industry.

Our economic performance and the value of our real estate assets, and consequently the value of our securities, are subject to the risk that if our properties do not generate revenues sufficient to meet our operating

 

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expenses, including debt service and capital expenditures, our cash flow will be adversely affected. The following factors, among others, may adversely affect the income generated by our properties:

 

   

downturns in the national, regional and local economic conditions (particularly increases in unemployment);

 

   

competition from other office, hotel and commercial buildings;

 

   

local real estate market conditions, such as oversupply or reduction in demand for office, hotel or other commercial space;

 

   

changes in interest rates and availability of financing;

 

   

vacancies, changes in market rental rates and the need to periodically repair, renovate and re-let space;

 

   

increased operating costs, including insurance expense, utilities, real estate taxes, state and local taxes and heightened security costs;

 

   

civil disturbances, earthquakes and other natural disasters, or terrorist acts or acts of war which may result in uninsured or underinsured losses;

 

   

significant expenditures associated with each investment, such as debt service payments, real estate taxes, insurance and maintenance costs which are generally not reduced when circumstances cause a reduction in revenues from a property;

 

   

declines in the financial condition of our tenants and our ability to collect rents from our tenants; and

 

   

decreases in the underlying value of our real estate.

Adverse economic and geopolitical conditions and dislocations in the credit markets could have a material adverse effect on our results of operations, and financial condition.

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 adversely affect our results of operations, and financial condition as a result of the following, among other potential consequences:

 

   

the financial condition of our tenants may be adversely affected which may result in tenant defaults under leases due to bankruptcy, lack of liquidity, operational failures or for other reasons;

 

   

significant job losses within our tenants may occur, which may decrease demand for our office space, 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 and development opportunities and refinance existing debt, reduce our returns from our acquisition and development activities 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

 

   

one or more lenders could refuse to fund their financing commitment to us or could fail and we may not be able to replace the financing commitment of any such lenders on favorable terms, or at all.

Real estate investments are illiquid, and the Company may not be able to sell properties if and when it is appropriate to do so.

Real estate generally cannot be sold quickly. We may not be able to dispose of properties promptly in response to economic or other conditions. In addition, provisions of the Internal Revenue Code may limit our

 

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ability to sell properties (without incurring significant tax costs) in some situations when it may be otherwise economically advantageous to do so, thereby adversely affecting returns to stockholders and adversely impacting our ability to meet our obligations.

 

ITEM 1B. UNRESOLVED STAFF COMMENTS

None.

 

ITEM 2. PROPERTIES

On December 31, 2010, our portfolio consisted of 82 income producing properties consisting of 47 apartments, 30 commercial properties, and five hotels. The apartments have a total of 8,525 units. The commercial properties consist of 19 office buildings, six industrial warehouses, four shopping centers, and one merchandise mart which is 344,975 square feet. The five hotels have a total of 808 rooms. The average dollar per square foot for the Company’s apartment/residential portfolio is $8.93 and $11.96 for the commercial portfolio. In addition, we own or control 10,391 acres of improved and unimproved land held for future development or sale. The table below shows information relating to those properties.

 

Apartments

   Location      Units      Occupancy  

Anderson Estates

     Oxford, MS         48         95.80

Blue Lake Villas I

     Waxahachie, TX         186         94.10

Blue Lake Villas II

     Waxahachie, TX         70         98.60

Breakwater Bay

     Beaumont, TX         176         90.30

Bridgewood Ranch

     Kaufman, TX         106         97.20

Capitol Hill

     Little Rock, AR         156         92.30

Curtis Moore Estates

     Greenwood, MS         104         91.30

Dakota Arms

     Lubbock, TX         208         94.70

David Jordan Phase II

     Greenwood, MS         32         96.90

David Jordan Phase III

     Greenwood, MS         40         95.00

Desoto Ranch

     DeSoto, TX         248         91.10

Dorado Ranch

     Odessa, TX         224         99.10

Falcon Lakes

     Arlington, TX         248         94.40

Heather Creek

     Mesquite, TX         200         95.50

Huntington Ridge

     DeSoto, TX         198         94.40

Laguna Vista

     Dallas, TX         206         91.70

Lake Forest

     Houston, TX         240         94.20

Legends of El Paso

     El Paso, TX         240         99.20

Mansions of Mansfield

     Mansfield, TX         208         95.70

Mariposa Villas

     Dallas, TX         216         98.60

Mission Oaks

     San Antonio, TX         228         93.90

Monticello Estate

     Monticello, AR         32         90.60

Northside on Travis

     Sherman, TX         200         96.50

Paramount Terrace

     Amarillo. TX         181         90.10

Parc at Clarksville

     Clarksville, TN         168         83.90

Parc at Maumelle

     Little Rock, AR         240         94.60

Parc at Metro Center

     Nashville, TN         144         93.80

Parc at Rogers

     Rogers, AR         152         94.40

Pecan Pointe

     Temple, TX         232         93.50

Portofino

     Farmers Branch, TX         224         93.80

Preserve at Pecan Creek

     Denton, TX         192         96.90

Quail Hollow

     Holland, OH         200         99.50

River Oaks

     Wylie, TX         180         94.40

Riverwalk Phase I

     Greenville, MS         32         93.80

Riverwalk Phase II

     Greenville, MS         72         93.10

Savoy of Garland

     Garland, TX         144         96.50

Spyglass

     Mansfield, TX         256         94.90

Stonebridge at City Park

     Houston, TX         240         94.60

Sugar Mill

     Baton Rouge, LA        160         97.50

Treehouse

     Irving, TX         160         95.00

Verandas at City View

     Fort Worth, TX         314         94.90

Vistas of Pinnacle Park

     Dallas, TX         332         89.20

Vistas of Vance Jackson

     San Antonio, TX         240         97.50

Westwood

     Mary Esther, FL         120         91.70

Whispering Pines

     Topeka, KS         320         91.60

Wildflower Villas

     Temple, TX         220         90.00

Windsong

     Fort Worth, TX         188         93.60
              
     Total Apartment Units         8,525      
              

 

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PROPERTIES (cont’d)

 

Office Buildings

   Location      SqFt      Occupancy  

225 Baronne

     New Orleans, LA         422,037         0.00

305 Baronne

     New Orleans, LA         37,081         35.18

600 Las Colinas

     Las Colinas, TX         510,841         67.60

Browning Place (Park West I)

     Farmers Branch, TX         627,312         62.49

Ergon Office Building

     Jackson, MS         26,000         0.00

Fruitland Plaza

     Fruitland Park, FL         6,722         100.00

One Hickory Center

     Farmers Branch, TX         97,361         95.95

Sesame Square

     Anchorage, AK         20,715         81.02

Stanford Center

     Dallas, TX         336,910         100.00

Two Hickory Center

     Farmers Branch, TX         97,117         75.40
              
     Total Office Buildings         2,182,096      
              

Industrial Warehouses

   Location      SqFt      Occupancy  

Addison Hanger I

     Addison, TX         25,102         100.00

Addison Hanger II

     Addison, TX         24,000         30.00

Alpenloan

     Dallas, TX         28,594         22.54

Clark Garage

     New Orleans, LA         6,869         34.44

Senlac (VHP)

     Farmers Branch, TX         2,812         0.00
              
     Total Industrial Warehouses         87,377      
              

Shopping Centers

   Location      SqFt      Occupancy  

Cross County Mall

     Matoon, IL         306,609         79.31
              
     Total Shopping Centers         306,609      
              

Merchandise Mart

   Location      SqFt      Occupancy  

Denver Merchandise Mart

     Denver, CO         344,975         73.82
              
        344,975      
              

 

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Table of Contents

PROPERTIES (cont’d)

 

Hotels Subject to Sales
Contract

   Location      Rooms      Average
Occupancy Rate
    Average
Room Rate
     Total Revenues/
Total Available
Rooms
 

Inn at the Mart (Comfort Inn)

     Denver, CO         161         48.08   $ 71.46       $ 34.90   

Piccadilly—Airport

     Fresno, CA         185         34.62     82.41         48.12   

Piccadilly—Chateau

     Fresno, CA         78         36.30     73.77         26.91   

Piccadilly—Shaw

     Fresno, CA         194         37.90     86.29         42.31   

Piccadilly—University

     Fresno, CA         190         31.66     75.40         34.81   
                                     
     Total Hotels Subject to Sales Contract         808         37.71   $ 78.36       $ 48.02   

Office Buildings Subject to
Sales Contract

   Location      SqFt      Occupancy               

1010 Common

     New Orleans, LA         512,593         73.89     

Amoco Building

     New Orleans, LA         378,895         72.38     

Cooley Building

     Farmers Branch, TX         27,000         69.44     

Eton Square

     Tulsa, OK         225,566         70.35     

Fenton Center (Park West II)

     Farmers Branch, TX         696,458         58.46     

Parkway North

     Dallas, TX         69,009         70.93     

Signature Building

     Dallas, TX         58,910         0.00     

Teleport

     Irving, TX         6,833         0.00     

Westgrove Air Plaza

     Addison, TX         79,652         70.32     
                   

Total Office Buildings Subject to Sales Contract

  

     2,054,916           
                

Industrial Warehouses
Subject to Sales Contract

   Location      SqFt      Occupancy               

Thermalloy

     Farmers Branch, TX         177,805         0.00     
                   

Total Industrial Warehouses Subject to Sales Contract

  

     177,805           
                

Shopping Centers Subject to
Sales Contract

   Location      SqFt      Occupancy               

Bridgeview Plaza

     LaCrosse, WI         122,205         89.28     

Dunes Plaza

     Michigan City, IN         220,461         26.62     

Willowbrook Village

     Coldwater, MI         179,741         81.25     
                   

Total Shopping Centers Subject to Sales Contract

  

     522,407           
                

 

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Table of Contents

Lease Expiration by Year

The table below shows the lease expirations of the commercial properties over a ten-year period (dollars in thousands):

 

Year of Lease Expiration

   Rentable
Square Feet
Subject to
Expiring
Leases
     Current
Annualized(1)
Contractual
Rent Under
Expiring
Leases
     Current
Annualized(1)
Contractual
Rent Under
Expiring
Leases
(P.S.F.)
     Percentage
of Total
Square Feet
    Percentage
of Gross
Rentals
 

2011

     614,517       $ 10,199,994       $ 16.60         10.8     19.6

2012

     634,715         11,047,492         17.41         11.2     21.2

2013

     730,092         9,280,010         12.71         12.9     17.8

2014

     383,171         4,861,940         12.69         6.8     9.3

2015

     340,088         4,265,600         12.54         6.0     8.2

2016

     128,521         2,314,366         18.01         2.3     4.4

2017

     349,278         6,332,813         18.13         6.2     12.2

2018

     42,042         841,566         20.02         0.7     1.6

2019

     109,507         2,326,247         21.24         1.9     4.5

2020

     —           —           —           0.0     0.0

Thereafter

     44,167         574,106         13.00         0.8     1.2
                                           

Total

     3,376,098       $ 52,044,134            59.6     100
                                           

 

(1) Represents the monthly contractual base rent and recoveries from tenants under existing leases as of December 31, 2010 multiplied by twelve. This amount reflects total rent before any rent abatements and includes expense reimbursements which may be estimates as of such date.

 

Land

  

Location

   Acres  

1013 Common St

   New Orleans, LA      0.41   

Alliance Airport

   Tarrant County, TX      12.70   

Audubon

   Adams County, MS      48.20   

Backlick Land

   Springfield, VA      4.00   

Cooks Lane Land

   Fort Worth, TX      23.24   

Copperridge

   Dallas, TX      3.90   

Dedeaux

   Gulfport, MS      10.00   

Denham Springs

   Denham Springs, LA      4.38   

Denton (Andrew B)

   Denton, TX      22.90   

Denton (Andrew C)

   Denton, TX      5.20   

Denton Coonrod

   Denton, TX      82.80   

Desoto Ranch

   Desoto, TX      8.02   

Dunes Plaza Vacant Land

   Michigan City, IN      14.62   

Elm Fork Land

   Denton County, TX      35.84   

Folsom Land

   Dallas, TX      36.38   

Galleria East Center Retail

   Dallas, TX      15.00   

Galleria West Hotel

   Dallas, TX      1.97   

Galleria West Lofts

   Dallas, TX      7.19   

Gautier Land

   Gautier, MS      40.06   

GNB Land

   Farmers Branch, TX      45.00   

Hollywood Casino Land Tract II

   Farmers Branch, TX      13.85   

Hunter Equities Land

   Dallas, TX      2.56   

Jackson Capital City Center

   Jackson, MS      7.95   

Keller Springs Lofts

   Addison, TX      7.40   

 

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Table of Contents
LAND (cont’d)      

Land

  

Location

   Acres  

Kinwest Manor

   Irving, TX      7.98   

LaDue Land

   Farmers Branch, TX      8.01   

Lake Shore Villas

   Humble, TX      19.51   

Lamar/Palmer Land

   Austin, TX      17.07   

Las Colinas Station

   Las Colinas, TX      10.08   

Las Colinas Village

   Las Colinas, TX      16.81   

Lubbock Land

   Lubbock, TX      2.86   

Luna (Carr)

   Farmers Branch, TX      2.60   

Luna Ventures

   Farmers Branch, TX      26.74   

Manhattan Land

   Farmers Branch, TX      108.90   

Mansfield Land

   Mansfield, TX      21.89   

McKinney 36

   Collin County, TX      34.05   

McKinney Ranch Land

   McKinney,TX      169.74   

Meloy/Portage Land

   Kent, OH      52.95   

Nicholson Croslin

   Dallas, TX      0.80   

Nicholson Mendoza

   Dallas, TX      0.35   

Ocean Estates

   Gulfport, MS      12.00   

Palmer Lane (Las Praderas)

   Austin, TX      367.43   

Pioneer Crossing Tract I

   Austin, TX      303.32   

Pioneer Crossing Tract II

   Austin, TX      38.54   

Polo Estates At Bent Tree

   Dallas, TX      5.87   

Port Olpenitz GmbH

   Kappelin, Germany      420.00   

Seminary West Land

   Fort Worth, TX      3.03   

Senlac Land Tract II

   Farmers Branch, TX      11.94   

Sheffield Village

   Grand Prairie, TX      13.90   

Sisikiyou County Land

   Siskiyou County, CA      20.70   

Southwood Plantation 1394

   Tallahassee, FL      14.52   

Texas Plaza Land

   Irving, TX      10.33   

Travelers Land

   Farmers Branch, TX      193.17   

Travis Ranch Land

   Kaufman County, TX      10.00   

Travis Ranch Retail

   Kaufman County, TX      14.93   

Union Pacific Railroad Land

   Dallas, TX      0.04   

US Virgin Islands Land

   US Virgin Islands      96.60   

Valley View 34 (Mercer Crossing)

   Farmers Branch, TX      2.19   

Valley View/Senlac

   Farmers Branch, TX      3.45   

Waco 151 Land

   Waco,TX      151.40   

Waco Swanson

   Waco, TX      340.65   

Walker Land

   Dallas County, TX      82.59   

Walker Land (Flood Plain)

   Dallas County, TX      48.62   

Willowick Land

   Pensacola, TX      39.78   
           
   Total Land/Development      3,158.91   
           

 

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Table of Contents

Land Subject to Sales Contract

  

Location

   Acres  

Ackerley Land

   Dallas, TX      1.31   

Archon Land

   Irving, TX      29.07   

Bonneau Land

   Dallas County, TX      8.39   

Centura Land

   Dallas, TX      10.08   

Chase Oaks Land

   Plano, TX      6.54   

Creekside

   Fort Worth, TX      30.07   

Crowley

   Fort Worth, TX      24.90   

Dalho

   Farmers Branch, TX      2.89   

Diplomat Drive

   Farmers Branch, TX      11.65   

Dominion Tract

   Dallas, TX      10.59   

Eagle Crest

   Dallas, TX      18.60   

Fortune Drive

   Irving, TX      14.44   

Hollywood Casino Land Tract I

   Farmers Branch, TX      18.56   

HSM Cummings

   Farmers Branch, TX      6.11   

JHL Connell

   Carrollton, TX      2.11   

Kaufman—Adams

   Kaufman County, TX      193.73   

Kaufman—Bridgewood

   Kaufman County, TX      5.04   

Kaufman—Cogen Land

   Forney, TX      2,567.00   

Kaufman—Stagliano

   Forney, TX      34.80   

Kaufman—Taylor

   Forney, TX      31.00   

Keenan Bridge Land

   Farmers Branch, TX      7.36   

Lacy Longhorn Land

   Farmers Branch, TX      17.12   

Las Colinas—Walnut Hill

   Las Colinas, TX      1.58   

LCLLP (Kinwest/Hackberry)

   Las Colinas, TX      41.19   

Limestone Canyon II

   Austin, TX      9.96   

Marine Creek

   Fort Worth, TX      44.17   

McKinney Ranch Land

   McKinney,TX      20.85   

Pac Trust Land

   Farmers Branch, TX      7.07   

Pantaze Land

   Dallas, TX      6.00   

Payne Land

   Las Colinas, TX      149.70   

Pioneer Crossing Tract I

   Austin, TX      97.28   

Ridgepoint Drive

   Irving, TX      0.60   

Senlac Land Tract I

   Farmers Branch, TX      3.98   

Stanley Tools

   Farmers Branch, TX      23.76   

Temple Land

   Temple, TX      10.69   

Thompson Land I

   Farmers Branch, TX      3.99   

Thompson Land II

   Farmers Branch, TX      3.32   

Three Hickory

   Dallas, TX      6.64   

Tomlin Land

   Farmers Branch, TX      9.20   

Valley Ranch Land

   Irving, TX      26.91   

Valley View (Hutton/Senlac)

   Farmers Branch, TX      2.42   

Valwood

   Dallas, TX      257.05   

Whorton Land

   Bentonville, AR      79.70   

Wilmer 88

   Dallas, TX      87.60   

Windmill Farms—Harlan Land

   Kaufman County, TX      245.95   

Windmill Farms I

   Kaufman County, TX      3,041.05   
           
   Total Land Subject to Sales Contract      7,232.01   
           

 

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Table of Contents
ITEM 3. LEGAL PROCEEDINGS

The ownership of property and provision of services to the public as tenants entails an inherent risk of liability. Although the Company and its subsidiaries are involved in various items of litigation incidental to and in the ordinary course of its business, in the opinion of Management, the outcome of such litigation will not have a material adverse impact upon the Company’s financial condition, results of operations or liquidity.

During the fourth quarter of the fiscal year covered by this Report, no proceeding previously reported was terminated.

 

ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

The Annual Meeting of Stockholders was held on September 16, 2010, at which proxies were solicited pursuant to Regulation 14 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). There was no solicitation in opposition to management’s nominees listed in the Proxy Statement, all of which were elected. At the annual meeting, stockholders were asked to consider and vote upon the election of Directors and the ratification of the selection of the independent public accountants for ARL for the fiscal year ending December 31, 2010. With respect to each nominee for election as a director, the following table sets forth the number of votes cast for or withheld:

 

     Shares Voting  

Director

   For      Withheld
Authority
 

Henry A. Butler

     9,886,192         24,833   

Sharon Hunt

     9,887,143         23,882   

Robert A. Jakuszewski

     9,880,304         30,721   

Ted R. Munselle

     9,887,123         23,902   

There were no abstentions or broker non-votes on the election of Directors. With respect to the ratification of the appointment of Farmer, Fuqua & Huff, P.C. as independent auditors of the Company for the fiscal year ending December 31, 2010, and any interim period, at least 9,897,747 votes were received in favor of such proposal, 4,590 votes were received against such proposal, and 8,688 votes abstained.

 

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PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

ARL’s common stock is listed and traded on the New York Stock Exchange under the symbol “ARL”. The following table sets forth the high and low sales prices as reported in the consolidated reporting system of the New York Stock Exchange:

 

     2010      2009  
     High      Low      High      Low  

First Quarter

   $ 11.64       $ 8.50       $ 11.25       $ 8.46   

Second Quarter

   $ 8.95       $ 7.59       $ 12.00       $ 9.62   

Third Quarter

   $ 9.33       $ 7.71       $ 14.06       $ 10.12   

Fourth Quarter

   $ 8.99       $ 6.81       $ 13.02       $ 8.27   

On March 25, 2011, the closing market price of ARL’s common stock on the New York Stock Exchange was $3.04 per share, and was held by approximately 3,000 stockholders of record.

 

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Performance Graph

The following graph compares the cumulative total stockholder return on ARL’s shares of common stock with the Dow Jones Industrial Average (“Dow Jones Industrial”) and the Dow Jones Real Estate Investment Index (“Dow Jones Real Estate”). The comparison assumes that $100 was invested on December 31, 2005 in shares of common stock and in each of the indices and further assumes the reinvestment of all dividends. Past performance is not necessarily an indicator of future performance.

LOGO

$100 invested on 12/31/05 in stock or index-including reinvestment of dividends.

Fiscal year ending December 31.

 

     12/05      12/06      12/07      12/08      12/09      12/10  

American Realty Investors Inc.

   $ 100.00       $ 98.13       $ 122.19       $ 111.60       $ 152.74       $ 99.13   

Dow Jones Industrial

   $ 100.00       $ 116.29       $ 123.77       $ 81.89       $ 97.30       $ 108.02   

Dow Jones Real Estate

   $ 100.00       $ 133.15       $ 106.72       $ 63.46       $ 78.27       $ 95.38   

ARL’s Board of Directors has established a policy that dividend declarations on common stock would be determined on an annual basis following the end of each year. In accordance with that policy, the Board determined not to pay any dividends on common stock in 2010, 2009 or 2008. Future distributions to common stockholders will be determined by the Board of Directors in light of conditions then existing, including the Company’s financial condition and requirements, future prospects, restrictions in financing agreements, business conditions and other factors deemed relevant by the Board.

Under ARL’s Amended Articles of Incorporation, 15,000,000 shares of Series A 10.0% Cumulative Convertible Preferred Stock are authorized with a par value of $2.00 per share and a liquidation preference of $10.00 per share plus accrued and unpaid dividends. Dividends are payable at the annual rate of $1.00 per share, or $.25 per share quarterly, to stockholders of record on the last day of each March, June, September, and December, when and as declared by the Board of Directors. The Series A Preferred Stock may be converted into common stock at 90.0% of the average daily closing price of ARL’s common stock for the prior 20 trading days. At December 31, 2010, 3,389,546 shares of Series A Preferred Stock were outstanding and 869,808 shares were

 

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reserved for issuance as future consideration in various business transactions. Of the outstanding shares, 300,000 shares are owned by ART Edina, Inc., and 600,000 shares are owned by ART Hotel Equities, Inc., a wholly-owned subsidiary of ARL. Dividends are not paid on the shares owned by ARL subsidiaries.

Under ARL’s Amended Articles of Incorporation, 231,750 shares of Series C Cumulative Convertible Preferred Stock are authorized with a par value of $2.00 per share and liquidation preference of $100.00 per share plus accrued and unpaid dividends. The Series C Preferred Stock bears a quarterly dividend of $2.50 per share to stockholders of record on the last day of March, June, September and December when and as declared by the Board of Directors. The Series C Preferred Stock is reserved for conversion of the Class A limited partner units of ART Palm, L.P. (“Art Palm”). At December 31, 2010, 1,505,731 Class A units were outstanding. The Class A units may be exchanged for Series C Preferred Stock at the rate of 100 Class A units for each share of Series C Preferred Stock. After December 31, 2006, all outstanding shares of Series C Preferred Stock may be converted into ARL common stock. All conversions of Series C Preferred Stock into ARL common stock will be at 90.0% of the average daily closing price of ARL’s common stock for the prior 20 trading days. At March 5, 2011, no shares of Series C Preferred Stock were outstanding.

Under ARL’s Amended Articles of Incorporation, 91,000 shares of Series D 9.50% Cumulative Preferred Stock are authorized with a par value of $2.00 per share, and a liquidation preference of $20.00 per share. Dividends are payable at the annual rate of $1.90 per year or $0.475 per quarter to stockholders of record on the last day of each March, June, September and December when and as declared by the Board of Directors. The Series D Preferred Stock is reserved for the conversion of the Class A limited partner units of Ocean Beach Partners, L.P. The Class A units may be exchanged for Series D Preferred Stock at the rate of 20 Class A units for each share of Series D Preferred Stock. At March 5, 2011, no shares of Series D Preferred Stock were outstanding.

Under ARL’s Amended Articles of Incorporation, 500,000 shares of Series E 6.0% Cumulative Preferred Stock are authorized with a par value $2.00 per share and a liquidation preference of $10.00 per share. Dividends are payable at the annual rate of $.60 per share or $.15 per quarter to stockholders of record on the last day of each March, June, September and December when and as declared by the Board of Directors. At March 5, 2011, no Series E Preferred Stock was outstanding.

As an instrument amendatory to ARL’s Amended Articles of Incorporation, 100,000 shares of Series J 8% Cumulative Convertible Preferred Stock have been designated pursuant to a Certificate of Designation filed March 16, 2006, with a par value of $2.00 per share, and a liquidation preference of $1,000 per share. Dividends are payable at the annual rate of $80 per share, or $20 per quarter, to stockholders of record on the last day of each of March, June, September and December, when and as declared by the Board of Directors. Although the Series J 8% Cumulative Convertible Preferred Stock has been designated, no shares have been issued as of March 5, 2011.

On September 1, 2000, the Board of Directors approved a share repurchase program authorizing the repurchase of up to a total of 1,000,000 shares of ARL Common Stock. This repurchase program has no termination date. In August 2010, the Board of Directors approved an increase in the share repurchase program for up to an additional 250,000 shares of Common Stock which results in a total authorization under the repurchase program for up to 1,250,000 shares. The following table sets forth information regarding purchases made by ARL of shares of ARL common stock on a monthly basis during the fourth quarter of 2010:

 

Period

   Total Number of
Shares Purchased
     Average Price
Paid per  share
     Total Number of
Shares Purchased
as Part of Publicly
Announced Program
     Maximum Number of
Shares that May

Yet be Purchased
Under the Program
 

Balance at September 30, 2010

           968,026         281,974   

October 31, 2010

     8,392       $ 8.02         976,418         273,582   

November 30, 2010

     307       $ 7.60         976,725         273,275   

December 31, 2010

     1,525       $ 8.17         978,250         271,750   
                 

Total

     10,224            
                 

 

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ITEM 6. SELECTED FINANCIAL DATA

AMERICAN REALTY INVESTORS, INC.

 

     For the Years Ended December 31,  
     2010     2009     2008     2007     2006  
     (dollars in thousands, except share and per share amounts)  

EARNINGS DATA

          

Total operating revenues

   $ 157,030      $ 161,863      $ 150,645      $ 144,378      $ 137,418   

Total operating expenses

     214,945        196,426        163,816        146,546        134,906   
                                        

Operating income (loss)

     (57,915     (34,563     (13,171     (2,168     2,512   

Other expenses

     (61,159     (65,793     (67,280     (33,404     (34,419
                                        

Loss before gain on land sales, non-controlling interest, and income taxes

     (119,074     (100,356     (80,451     (35,572     (31,907

Gain (loss) on land sales

     (10,103     11,605        5,584        20,468        23,973   

Income tax benefit

     8,456        2,132        35,575        15,511        6,972   
                                        

Net income (loss) from continuing operations

     (120,721     (86,619     (39,292     407        (962
                                        

Net income from discontinuing operations, net of non-controlling interest

     14,526        3,960        66,261        28,807        13,356   
                                        

Net income (loss)

     (106,195     (82,659     26,969        29,214        12,394   

Net (income) loss attributable to non-controlling interest

     11,448        12,518        (4,335     (2,652     672   
                                        

Net income (loss) attributable to American Realty Investors, Inc.

     (94,747     (70,141     22,634        26,562        13,066   

Preferred dividend requirement

     (2,488     (2,488     (2,487     (2,490     (2,491
                                        

Net income (loss) applicable to common shares

   $ (97,235   $ (72,629   $ 20,147      $ 24,072      $ 10,575   
                                        

PER SHARE DATA

          

Earnings per share—basic

          

Loss from continuing operations

   $ (9.75   $ (6.65   $ (4.13   $ (0.43   $ (0.26

Income from discontinued operations

     1.27        0.34        5.93        2.62        1.23   
                                        

Net income (loss) applicable to common shares

   $ (8.48   $ (6.31   $ 1.80      $ 2.19      $ 0.97   
                                        

Weighted average common share used in computing earnings per share

     11,463,084        11,514,038        11,165,805        10,974,565        10,895,972   

Earnings per share—diluted

          

Loss from continuing operations

   $ (9.75   $ (6.65   $ (4.13   $ (0.43   $ (0.26

Income from discontinued operations

     1.27        0.34        5.93        2.62        1.23   
                                        

Net income (loss) applicable to common shares

   $ (8.48   $ (6.31   $ 1.80      $ 2.19      $ 0.97   
                                        

Weighted average common share used in computing diluted earnings per share

     11,463,084        11,514,038        11,165,805        10,974,565        10,895,972   

BALANCE SHEET DATA

          

Real estate, net

   $ 1,332,585      $ 1,581,521      $ 1,613,402      $ 1,485,859      $ 1,272,424   

Notes and interest receivable, net

     88,614        83,144        77,003        83,467        52,631   

Total assets

     1,557,275        1,806,054        1,842,153        1,777,854        1,493,671   

Notes and interest payables

     1,228,681        1,394,076        1,382,629        1,400,877        1,124,765   

Stock-secured notes payable

     23,100        24,853        14,026        17,546        22,452   

Shareholders’ equity

     100,235        211,349        297,578        254,547        238,683   

Book value per share

   $ 8.74      $ 18.36      $ 26.65      $ 23.19      $ 21.91   

 

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

The following discussion should be read in conjunction with the financial statements and notes thereto appearing elsewhere in this report.

This Annual Report on Form 10-K contains forward-looking statements within the meaning of the federal securities laws, principally, but not only, under the captions “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” We caution investors that any forward-looking statements in this report, or which management may make orally or in writing from time to time, are based on management’s beliefs and on assumptions made by, and information currently available to, management. When used, the words “anticipate”, “believe”, “expect”, “intend”, “may”, “might”, “plan”, “estimate”, “project”, “should”, “will”, “result” and similar expressions which do not relate solely to historical matters are intended to identify forward-looking statements. These statements are subject to risks, uncertainties, and assumptions and are not guarantees of future performance, which may be affected by known and unknown risks, trends, uncertainties, and factors, that are beyond our control. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those anticipated, estimated, or projected. We caution you that, while forward-looking statements reflect our good faith beliefs when we make them, they are not guarantees of future performance and are impacted by actual events when they occur after we make such statements. We expressly disclaim any responsibility to update our forward-looking statements, whether as a result of new information, future events or otherwise. Accordingly, investors should use caution in relying on past forward-looking statements, which are based on results and trends at the time they are made, to anticipate future results or trends.

Some of the risks and uncertainties that may cause our actual results, performance or achievements to differ materially from those expressed or implied by forward-looking statements include, among others, the following:

 

   

general risks affecting the real estate industry (including, without limitation, the inability to enter into or renew leases, dependence on tenants’ financial condition, and competition from other developers, owners and operators of real estate);

 

   

risks associated with the availability and terms of financing and the use of debt to fund acquisitions and developments;

 

   

failure to manage effectively our growth and expansion into new markets or to integrate acquisitions successfully;

 

   

risks and uncertainties affecting property development and construction (including, without limitation, construction delays, cost overruns, inability to obtain necessary permits and public opposition to such activities);

 

   

risks associated with downturns in the national and local economies, increases in interest rates, and volatility in the securities markets;

 

   

costs of compliance with the Americans with Disabilities Act and other similar laws and regulations;

 

   

potential liability for uninsured losses and environmental contamination;

 

   

risks associated with our dependence on key personnel whose continued service is not guaranteed; and

 

   

the other risk factors identified in this Form 10-K, including those described under the caption “Risk Factors.”

The risks included here are not exhaustive. Other sections of this report, including Part I, Item 1A. “Risk Factors,” include additional factors that could adversely affect our business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment. New risk factors emerge from time to time and it is not possible for management to predict all such risk factors, nor can we assess the impact of

 

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all such risk factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements as a prediction of actual results. Investors should also refer to our quarterly reports on Form 10-Q for future periods and current reports on Form 8-K as we file them with the SEC, and to other materials we may furnish to the public from time to time through Forms 8-K or otherwise.

Overview

We are an externally advised and managed real estate investment company that owns a diverse portfolio of income-producing properties and land held for development. Our portfolio of income-producing properties includes residential apartment communities, office buildings, hotels, a trade mart located in Denver, Colorado, and other commercial properties. Our investment strategy includes acquiring existing income-producing properties as well as developing new properties on land already owned or acquired for a specific development project. We acquire land primarily in urban in-fill locations or high-growth suburban markets. We are an active buyer and seller of real estate and during 2010 we acquired $3.1 million and sold $176.9 million of land and income-producing properties. As of December 31, 2010, we owned 8,525 units in 47 residential apartment communities, 30 commercial properties comprising almost 5.7 million rentable square feet and five hotels containing a total of 808 rooms. In addition, we own 10,391 acres of land held for development with five apartment complexes and a 420-acre holiday resort project in Germany currently in development.

We finance our acquisitions primarily through operating cash flow, proceeds from the sale of land and income-producing properties and debt financing primarily in the form of property-specific first-lien mortgage loans from commercial banks and institutional lenders. We finance our development projects principally with short-term, variable interest rate construction loans that are converted to long-term, fixed rate amortizing mortgages when the development project is completed and occupancy has been stabilized. We will, from time to time, also enter into partnerships with various investors to acquire income-producing properties or land and to sell interests in certain of our wholly owned properties. When we sell assets, we may carry a portion of the sales price generally in the form of a short-term, interest bearing seller-financed note receivable. We generate operating revenues primarily by leasing apartment units to residents; leasing office, retail and industrial space to commercial tenants; and renting hotel rooms to guests.

We have historically engaged in and may continue to engage in certain business transactions with related parties, including but not limited to asset acquisition and dispositions. Transactions involving related parties cannot be presumed to be carried out on an arm’s length basis due to the absence of free market forces that naturally exist in business dealings between two or more unrelated entities. Related party transactions may not always be favorable to our business and may include terms, conditions and agreements that are not necessarily beneficial to or in our best interest.

We are advised by Prime under a contractual arrangement that is reviewed annually by our Board of Directors. Our commercial properties are managed by Triad Realty Services, L.P. (“Triad”), an affiliate of Prime. Triad subcontracts the property-level management and leasing of our commercial properties to Regis Realty I, LLC (“Regis I”), while our hotels are managed by Regis Hotel I, LLC. We currently contract with third-party companies to manage our apartment communities.

Critical Accounting Policies

We present our financial statements in accordance with generally accepted accounting principles in the United States (“GAAP”). In June 2009, the Financial Accounting Standards Board (“FASB”) completed its accounting guidance codification project. The FASB Accounting Standards Codification (“ASC”) became effective for our financial statements issued subsequent to September 30, 2009 and is the single source of

 

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authoritative accounting principles recognized by the FASB to be applied by nongovernmental entities in the preparation of financial statements in conformity with GAAP. As of the effective date, we no longer refer to the authoritative guidance dictating our accounting methodologies under the previous accounting standards hierarchy. Instead, we refer to the ASC guidance as the sole source of authoritative literature.

The accompanying Consolidated Financial Statements include our accounts, our subsidiaries, generally all of which are wholly-owned, and all entities in which we have a controlling interest. Arrangements that are not controlled through voting or similar rights are accounted for as a Variable Interest Entity (VIE), in accordance with the provisions and guidance of ASC Topic 810 “Consolidation”, whereby we have determined that we are a primary beneficiary of the VIE and meet certain criteria of a sole general partner or managing member as identified in accordance with Emerging Issues Task Force (“EITF”) Issue 04-5, Investor’s Accounting for an Investment in a Limited Partnership when the Investor is the Sole General Partner and the Limited Partners have Certain Rights (“EITF 04-5”). VIEs are generally entities that lack sufficient equity to finance their activities without additional financial support from other parties or whose equity holders as a group lack adequate decision making ability, the obligation to absorb expected losses or residual returns of the entity, or have voting rights that are not proportional to their economic interests. The primary beneficiary generally is the entity that provides financial support and bears a majority of the financial risks, authorizes certain capital transactions, or makes operating decisions that materially affect the entity’s financial results. All significant intercompany balances and transactions have been eliminated in consolidation.

In determining whether we are the primary beneficiary of a VIE, we consider qualitative and quantitative factors, including, but not limited to: the amount and characteristics of our investment; the obligation or likelihood for us or other investors to provide financial support; our and the other investors’ ability to control or significantly influence key decisions for the VIE; and the similarity with and significance to the business activities of us and the other investors. Significant judgments related to these determinations include estimates about the current future fair values and performance of real estate held by these VIEs and general market conditions.

For entities in which we have less than a controlling financial interest or entities where we are not deemed to be the primary beneficiary, the entities are accounted for using the equity method of accounting. Accordingly, our share of the net earnings or losses of these entities are included in consolidated net income. Our investments in Gruppa Florentina, LLC, LK-Four Hickory, LLC, and Garden Centura, L.P. are accounted for under the equity method.

Real Estate

Upon acquisitions of real estate, we assess the fair value of acquired tangible and intangible assets, including land, buildings, tenant improvements, “above-market” and “below-market” leases, origination costs, acquired in-place leases, other identified intangible assets and assumed liabilities in accordance with ASC Topic 805 “Business Combinations”, and allocate the purchase price to the acquired assets and assumed liabilities, including land at appraised value and buildings at replacement cost.

We assess and consider fair value based on estimated cash flow projections that utilize appropriate discount and/or capitalization rates, as well as available market information. Estimates of future cash flows are based on a number of factors including the historical operating results, known and anticipated trends, and market and economic conditions. The fair value of the tangible assets of an acquired property considers the value of the property as if it were vacant. We also consider an allocation of purchase price of other acquired intangibles, including acquired in-place leases that may have a customer relationship intangible value, including (but not limited to) the nature and extent of the existing relationship with the tenants, the tenants’ credit quality and expectations of lease renewals. Based on our acquisitions to date, our allocation to customer relationship intangible assets has been immaterial.

 

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We record acquired “above-market” and “below-market” leases at their fair values (using a discount rate which reflects the risks associated with the leases acquired) equal to the difference between (1) the contractual amounts to be paid pursuant to each in-place lease and (2) management’s estimate of fair market lease rates for each corresponding in-place lease, measured over a period equal to the remaining term of the lease for above-market leases and the initial term plus the term of any below-market fixed rate renewal options for below-market leases.

Other intangible assets acquired include amounts for in-place lease values that are based on our evaluation of the specific characteristics of each tenant’s lease. Factors to be considered include estimates of carrying costs during hypothetical expected lease-up periods considering current market conditions, and costs to execute similar leases. In estimating carrying costs, we include real estate taxes, insurance and other operating expenses and estimates of lost rentals at market rates during the expected lease-up periods, depending on local market conditions. In estimating costs to execute similar leases, we consider leasing commissions, legal and other related expenses.

Depreciation and Impairment

Real estate is stated at depreciated cost. The cost of buildings and improvements includes the purchase price of property, legal fees and other acquisition costs. Costs directly related to the development of properties are capitalized. Capitalized development costs include interest, property taxes, insurance, and other project costs incurred during the period of development.

Management reviews its long-lived assets used in operations for impairment when there is an event or change in circumstances that indicates impairment in value. An impairment loss is recognized if the carrying amount of its assets is not recoverable and exceeds its fair value. If such impairment is present, an impairment loss is recognized based on the excess of the carrying amount of the asset over its fair value. The evaluation of anticipated cash flows is highly subjective and is based in part on assumptions regarding future occupancy, rental rates and capital requirements that could differ materially from actual results in future periods. If we determine that impairment has occurred, the affected assets must be reduced to their face value.

ASC Topic 360 “Property, Plant and Equipment” requires that qualifying assets and liabilities and the results of operations that have been sold, or otherwise qualify as “held for sale”, be presented as discontinued operations in all periods presented if the property operations are expected to be eliminated and we will not have significant continuing involvement following the sale. The components of the property’s net income that is reflected as discontinued operations include the net gain (or loss) upon the disposition of the property held for sale, operating results, depreciation and interest expense (if the property is subject to a secured loan). We generally consider assets to be “held for sale” when the transaction has been approved by our Board of Directors, or a committee thereof, and there are no known significant contingencies relating to the sale, such that the property sale within one year is considered probable. Following the classification of a property as “held for sale”, no further depreciation is recorded on the assets.

A variety of costs are incurred in the acquisition, development and leasing of properties. After determination is made to capitalize a cost, it is allocated to the specific component of a project that is benefited. Determination of when a development project is substantially complete and capitalization must cease involves a degree of judgment. Our capitalization policy on development properties is guided by ASC Topic 835-20 “Interest—Capitalization of Interest” and ASC Topic 970 “Real Estate—General”. The costs of land and buildings under development include specifically identifiable costs. The capitalized costs include pre-construction costs essential to the development of the property, development costs, construction costs, interest costs, real estate taxes, salaries and related costs and other costs incurred during the period of development. We consider a construction project as substantially completed and held available for occupancy upon the receipt of certificates of occupancy, but no later than one year from cessation of major construction activity. We cease capitalization on the portion (1) substantially completed and (2) occupied or held available for occupancy, and we capitalize only those costs associated with the portion under construction.

 

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Investment in Unconsolidated Real Estate Ventures

Except for ownership interests in variable interest entities, we account for our investments in unconsolidated real estate ventures under the equity method of accounting because we exercise significant influence over, but do not control, these entities. These investments are recorded initially at cost, as investments in unconsolidated real estate ventures, and subsequently adjusted for equity in earnings and cash contributions and distributions. Any difference between the carrying amount of these investments on our balance sheet and the underlying equity in net assets is amortized as an adjustment to equity in earnings of unconsolidated real estate ventures over the life of the related asset. Under the equity method of accounting, our net equity is reflected within the Consolidated Balance Sheets, and our share of net income or loss from the joint ventures is included within the Consolidated Statements of Operations. The joint venture agreements may designate different percentage allocations among investors for profits and losses; however, our recognition of joint venture income or loss generally follows the joint venture’s distribution priorities, which may change upon the achievement of certain investment return thresholds. For ownership interests in variable interest entities, we consolidate those in which we are the primary beneficiary.

Recognition of Rental Income

Rental income for commercial property leases is recognized on a straight-line basis over the respective lease terms. In accordance with ASC Topic 805 “Business Combinations”, we recognize rental revenue of acquired in-place “above-market” and “below-market” leases at their fair values over the terms of the respective leases. On our Consolidated Balance Sheets, we include as a receivable the excess of rental income recognized over rental payments actually received pursuant to the terms of the individual commercial lease agreements.

Reimbursements of operating costs, as allowed under most of our commercial tenant leases, consist of amounts due from tenants for common area maintenance, real estate taxes and other recoverable costs, and are recognized as revenue in the period in which the recoverable expenses are incurred. We record these reimbursements on a “gross” basis, since we generally are the primary obligor with respect to purchasing goods and services from third-party suppliers, have discretion in selecting the supplier and have the credit risk with respect to paying the supplier.

Rental income for residential property leases is recorded when due from residents and is recognized monthly as earned, which is not materially different than on a straight-line basis as lease terms are generally for periods of one year or less. For hotel properties, revenues for room sales and guest services are recognized as rooms are occupied and services are rendered. An allowance for doubtful accounts is recorded for all past due rents and operating expense reimbursements considered to be uncollectible.

Revenue Recognition on the Sale of Real Estate

Sales and the associated gains or losses of real estate are recognized in accordance with the provisions of ASC Topic 360-20, “Property, Plant and Equipment—Real Estate Sale”. The specific timing of a sale is measured against various criteria in ASC 360-20 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the properties. If the sales criteria for the full accrual method are not met, we defer some or all of the gain recognition and account for the continued operations of the property by applying the finance, leasing, deposit, installment or cost recovery methods, as appropriate, until the sales criteria are met.

Non-performing Notes Receivable

We consider a note receivable to be non-performing when the maturity date has passed without principal repayment and the borrower is not making interest payments in accordance with the terms of the agreement.

 

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Interest Recognition on Notes Receivable

For notes other than surplus cash notes, we record interest income as earned in accordance with the terms of the related loan agreements. On cash flow notes where payments are based upon surplus cash from operations, accrued but unpaid interest income is only recognized to the extent cash is received.

Allowance for Estimated Losses

We assess the collectability of notes receivable on a periodic basis, of which the assessment consists primarily of an evaluation of cash flow projections of the borrower to determine whether estimated cash flows are sufficient to repay principal and interest in accordance with the contractual terms of the note. We recognize impairments on notes receivable when it is probable that principal and interest will not be received in accordance with the contractual terms of the loan. The amount of the impairment to be recognized generally is based on the fair value of the partnership’s real estate that represents the primary source of loan repayment. See Note 3 “Notes and Interest Receivable” for details on our notes receivable.

Fair Value of Financial Instruments

We apply the guidance in ASC Topic 820, “Fair Value Measurements and Disclosures,” to the valuation of real estate assets. These provisions define fair value as the price that would be received to sell an asset or paid to transfer a liability in a transaction between market participants at the measurement date, establish a hierarchy that prioritizes the information used in developing fair value estimates and require disclosure of fair value measurements by level within the fair value hierarchy. The hierarchy gives the highest priority to quoted prices in active markets (Level 1 measurements) and the lowest priority to unobservable data (Level 3 measurements), such as the reporting entity’s own data.

The valuation hierarchy is based upon the transparency of inputs to the valuation of an asset or liability as of the measurement date and includes three levels defined as follows:

 

Level 1       Unadjusted quoted prices for identical and unrestricted assets or liabilities in active markets.
Level 2       Quoted prices for similar assets and liabilities in active markets, and inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the financial instrument.
Level 3       Unobservable inputs that are significant to the fair value measurement.

A financial instrument’s categorization within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value measurement.

Results of Operations

The discussion of our results of operations is based on management’s review of operations, which is based on our segments. Our segments consist of apartments, commercial buildings, hotels, land and other. For discussion purposes, we break these segments down into the following sub-categories; same property portfolio, acquired properties, and developed properties in the lease-up phase. The same property portfolio consists of properties that were held by us for the entire period for both years being compared. The acquired property portfolio consists of properties that we acquired but have not held for the entire period for both periods being compared. Developed properties in the lease-up phase consist of completed projects that are being leased-up. As we complete each phase of the project, we lease-up that phase and include those revenues in our continued

 

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operations. Once a developed property becomes leased-up (80% or more) and is held the entire period for both years under comparison, it is considered to be included in the same property portfolio. Income producing properties that we have sold during the year are reclassified to discontinuing operations for all periods presented.

The following discussion is based on our Consolidated Statements of Operations for the twelve months ended December 31, 2010, 2009, and 2008 as included in Part II, Item 8. “Financial Statements and Supplementary Data” of this report. The prior year’s property portfolios have been adjusted for subsequent sales. Continued operations relates to income producing properties that were held during those years as adjusted for sales in the subsequent years.

At December 31, 2010, 2009, and 2008, we owned or had interests in a portfolio of 82, 98, and 99 income producing properties, respectively. For discussion purposes, we broke this out between continued operations and discontinued operations. The total property portfolio represents all income producing properties held as of December 31 for the year end presented. Sales subsequent to year end represent properties that were held as of year-end for the years presented, but sold in the next year. Continuing operations represents all properties that have not been reclassed to discontinued operations as of December 31, 2010 for the year presented. The table below shows the number of income producing properties held by year.

 

     2010      2009      2008  

Continued operations

     82         83         77   

Sales subsequent to year end

             15         22   
                          

Total property portfolio

     82         98         99   
                          

Comparison of the year ended December 31, 2010 to the same period ended December 31, 2009:

Our net loss applicable to common shares increased $24.6 million as compared to the prior year. The current year net loss applicable to common shares was $97.2 million, which includes loss on land sales of $10.1 million and net income from discontinued operations, net of non-controlling interest of $14.5 million, as compared to prior year net loss applicable to common shares of $72.6 million, which includes gain on land sales of $11.6 million and net income from discontinued operations, net of non-controlling interest of $4.0 million.

The majority of the $12.4 million decrease in our net loss applicable to common shares is primarily due to our impairment on notes receivable and real estate assets of $24.5 million in the current period, as compared to $42.5 million in the prior period. This was offset by other income received from a consulting agreement with EurEnergy Resources Poland Sp.zo.o. and an incentive fee from Regis I.

Revenues

Rental and other property revenues were $157.0 million for the twelve months ended December 31, 2010. This represents a decrease of $4.8 million, as compared to the prior period revenues of $161.9 million. This change, by segment, is a decrease in the commercial portfolio of $7.2 million, a decrease in the hotel portfolio of $2.6 million and a decrease in the land portfolio of $1.0 million, offset by an increase in the apartment portfolio of $3.3 million and an increase in the other portfolio of $2.7 million. Within the commercial portfolio, the $4.8 million decrease from the same properties was due to an increase in vacancy, which we attribute to the current state of the economy. Revenues from our same hotel portfolio are also suffering due to the economy with decreased stays from travelers. Within the apartment portfolio, there was an increase of $3.2 million due to the developed properties in the lease-up phase and an increase of $0.1 million in the same property portfolio. We have directed our efforts to apartment development and put some additional land projects on hold until the economic conditions turn around. We are continuing to market our properties aggressively to attract new tenants and strive for continuous improvement of our properties in order to maintain our existing tenants.

 

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Expenses

Property operating expenses were $96.3 million for the twelve months ended December 31, 2010. This represents an increase of $1.3 million, as compared to the prior period operating expenses of $95.0 million. This change, by segment, is an increase in our land portfolio of $3.6 million, offset by a decrease in our apartment portfolio of $0.8 million, a decrease in our commercial properties of $0.1 million and a decrease in our hotels of $1.4 million. Within the apartment portfolio, the same apartment properties decreased $1.3 million due to a decrease in overall costs and additional repairs and maintenance. The developed apartments increased expenses by $0.5 million. We have directed our efforts to apartment development and put some additional land projects on hold until the economic conditions turn around. The decrease in our hotel portfolio is due to the decrease in variable costs that are directly associated with stays within the hotel. The increase within the land portfolio was primarily due to an adjustment in 2009 to correct over accrual of 2008 real estate property taxes, resulting in recording lower operating expenses in 2009. In the current period, we incurred additional real estate tax penalties and interest that we did not incur in the prior period.

Depreciation expense was $28.9 million for the twelve months ended December 31, 2010. This represents an increase of $2.4 million, as compared to the prior period depreciation expense of $26.5 million. This change, by segment, is an increase in our apartment portfolio of $1.7 million and an increase in our land and other segments of $1.0 million, offset by a decrease in the commercial portfolio of $0.3 million. Within the apartment portfolio, $1.5 million was attributable to the developed properties and $0.2 million from the same properties. The increase within the land and other portfolios was due to a prior year adjustment recorded in 2009.

Provision for allowance on notes receivable and impairment was $61.3 million for the twelve months ended December 31, 2010. The provision on impairment of notes receivable, investment in real estate partnerships, and real estate assets increased by $16.7 million as compared to the prior year period. Impairment was recorded as an additional loss in the investment portfolio of $1.9 million in commercial properties we currently hold, $7.8 million for hotels that we currently hold, $47.6 million in land we currently hold and $4.0 million allowance for doubtful receivables. The properties that were considered “subject to sales contract” were reviewed by management at the time of the sale or during the reorganization process in the fourth quarter. Impairment was taken to the extent the basis of the property exceeded the current value. In 2009, we recorded a $44.6 million allowance in the investment portfolio of $1.9 million in commercial properties we currently hold, $35.6 million in land we currently hold and $7.1 million in land that was sold for a loss.

Other income (expense)

Other income was $9.5 million for the twelve months ended December 31, 2010. This represents an increase of $5.3 million, as compared to the prior period other income of $4.2 million. The increase was due to revenue received from a consulting agreement with EurEnergy Resources Poland Sp.zoo.o. and an incentive fee from Regis I.

Interest income was $8.4 million for the twelve months ended December 31, 2010. This represents a decrease of $1.3 million as compared to the prior period interest income of $9.7 million. This change was due to the receipt of interest payments due on our Unified Housing surplus cash flow notes. Interest is recognized when interest payments are received.

Interest expense was $79.1 million for the twelve months ended December 31, 2010. This represents an increase of $0.6 million as compared to the prior period interest expense of $78.5 million. This change, by segment, is an increase in the apartment portfolio of $3.5 million, an increase in the commercial portfolio of $0.3 million, an increase in the other portfolio of $1.4 million, offset by a decrease in the land portfolio of $4.6 million. Within the apartment portfolio, the same apartment portfolio increased $1.7 million and the developed properties increased $1.8 million due to properties in the lease-up phase. Once an apartment is completed, the interest expense is no longer capitalized. The land portfolio decrease was due to land sales.

 

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Earnings from unconsolidated subsidiaries and investees were a loss of $0.2 million. This represents our portion of income (equity pickup) for unconsolidated subsidiaries and joint ventures.

Litigation settlement expense decreased by $1.4 million as compared to the prior year. There were no litigation settlement expenses in the current period. Expenses were incurred in 2009 resolving the Caruth-Preston litigation, Denver Merchandise Mart’s Darrell Hare litigation and the Sunset litigation.

Gain on land sales decreased in the current year. This decrease is in part due to the overall economic environment which, among other issues, has resulted in the tightening of the credit markets, causing an inability of potential buyers to obtain financing. Thus, we have found it difficult to complete land transactions. In the current year, we sold 1,243.88 acres of land in 17 separate transactions for an aggregate sales price of $31.0 million, receiving $8,984 in cash and recorded a loss of $10.1 million. The average sales price was $20,701 per acre. In the prior year, we sold 1,244.93 acres of land in 11 separate transactions for an aggregate sales price of $40.9 million, receiving $9.1 million in cash, recorded a gain on sale of $8.2 million and recognized $3.4 million in prior year deferred gain due to the payoff of seller financing. The average sales price was $32,833 per acre.

Discontinued Operations

Discontinued operations relates to properties that were either sold or held for sale as of the year ended December 31, 2010. Included in discontinued operations are a total of 15 and 10 properties as of 2010 and 2009, respectively. Properties sold in 2010 that were held in 2009 have been reclassified to discontinued operations for 2009. In 2010, we sold 13 apartment complexes (Baywalk, Chateau, Foxwood, Island Bay, Kingsland Ranch, Limestone Canyon, Limestone Ranch, Longfellow Arms, Marina Landing, Mason Park, Sendero Ridge, Tivoli and Villager), one commercial building (217 Rampart) and transferred our limited partnership interest in a consolidated entity that owned an apartment complex (Quail Oaks). In 2009, we had one property (Baywalk Apartments) pending sale, and sold nine properties which consisted of three apartment complexes (Bridges on Kinsey, Bridgestone, and Chateau Bayou), five commercial buildings (2010 Valley View, 5000 Space Center, 5360 Tulane, Cullman Shopping Center and Parkway Centre) and one townhouse. The gain on sale of the properties is also included in discontinued operations for those years as shown in the table below (dollars in thousands):

 

     For the Year Ended December 31,  
             2010                     2009          

Revenue

    

Rental

   $ 11,714      $ 26,625   

Property operations

     5,926        14,728   
     5,788        11,897   

Expenses

    

Other income

     3,697        87   

Interest

     (4,820     (11,196

General and administrative

     (52     6   

Litigation settlement

     (5     (5

Depreciation

     (1,566)        (4,803)   
                
     (2,746     (15,911
                

Net income (loss) from discontinued operations before gains on sale of real estate, taxes, and fees

     3,042        (4,014)   

Gain on sale of discontinued operations

     19,306        10,106   
                

Income from discontinued operations before tax

     22,348        6,092   

Tax expense

     (7,822     (2,132
                

Income from discontinued operations

   $ 14,526      $ 3,960   
                

 

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Comparison of the year ended December 31, 2009 to the same period ended December 31, 2008:

Revenues

Rental and other property revenues were $161.9 million for the twelve months ended December 31, 2009. This represents an increase of $11.3 million, as compared to the prior period revenues of $150.6 million. This change, by segment, is an increase in the apartment portfolio of $11.3 million, an increase in the commercial portfolio of $2.2 million and an increase in the other portfolio of $3.8 million, offset by a decrease in the hotel portfolio of $4.5 million and a decrease in the land portfolio of $1.6 million. The increase in the commercial portfolio was due to $2.9 million of lease term buyouts received offset by a $0.7 million decrease due to an increase in vacancy, which we attribute to the current state of the economy. Revenues from our same hotel portfolio are also suffering due to the economy with decreased stays from travelers. Within the apartment portfolio, there was an increase of $5.3 million due to the developed properties in the lease-up phase and an increase of $6.0 million in the same property portfolio. We have directed our efforts to apartment development and put some additional land projects on hold until the economic conditions turn around. We are continuing to market our properties aggressively to attract new tenants and strive for continuous improvement of our properties in order to maintain our existing tenants.

Expenses

Property operating expenses were $95.0 million for the twelve months ended December 31, 2009. This represents a decrease of $7.1 million, as compared to the prior period operating expenses of $102.1 million. This change, by segment, is a decrease in our commercial properties of $3.5 million, a decrease in our land and other segments of $7.9 million, and a decrease in our hotels of $2.2 million, offset by is an increase in our apartments of $6.5 million. Within the apartment portfolio, the same apartment properties increased $3.5 million due to an increase in overall costs and additional repairs and maintenance. The developed apartments increased expenses by $2.8 million, and the prior year acquisition increased expenses by $0.2 million. The decrease within the commercial portfolio was due to a decrease in our same property portfolio of $5.1 million, offset by an increase from acquired properties of $1.6 million. The decrease within our land and other portfolios is due to less spending on development within the current period on our land held for development. We have directed our efforts to apartment development and put some additional land projects on hold until the economic conditions turn around. The decrease in our hotel portfolio is due to the decrease in variable costs that are directly associated with stays within the hotel.

Depreciation expense was $26.5 million for the twelve months ended December 31, 2009. This represents an increase of $5.0 million, as compared to the prior period depreciation expense of $21.5 million. This change, by segment, is an increase of $4.8 million due to our apartments, and a decrease of $1.5 million due to our commercial buildings, offset by decrease of $1.4 million due to our land and other holdings. The increase within our apartment portfolio was due to a decrease of $0.1 million in the same properties, an increase of $2.9 million in the newly acquired properties and an increase of $1.5 million in the developed properties. Developed apartment properties are depreciated as we complete each phase and lease-up the properties.

Provision for allowance on notes receivable and impairment was $44.6 million for the twelve months ended December 31, 2009. The provision on impairment of notes receivable, investment in real estate partnerships, and real estate assets increased by $32.2 million as compared to the prior year period. Impairment was recorded as an additional loss in the investment portfolio of $1.9 million in commercial properties we currently hold, $35.6 million in land we currently hold and $7.1 million in land that was sold in the third quarter for a loss. In 2008, we recorded a $5.0 million allowance for doubtful receivables and a $7.4 million allowance for doubtful collectability of certain investments within our portfolio.

 

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Other income (expense)

Interest income was $9.7 million for the twelve months ended December 31, 2009. This represents an decrease of $1.2 million as compared to the prior period interest income of $10.9 million. This decrease was due to the notes receivable paid off in 2009 and the reclassification on the Port Olpentiz construction note receivable from interest income to work in progress.

Interest expense was $78.5 million for the twelve months ended December 31, 2009. This represents a decrease of $2.5 million, as compared to the prior period depreciation expense of $81.0 million. This change, by segment, is a decrease of $2.9 million due to our land and other holdings, a decrease of $1.8 million due to our commercial buildings a decrease in hotels of $0.2 million, offset by an increase of $2.4 million due to our apartments. The increase in the apartment portfolio is due to interest expense on the developed properties in the lease up phase. During the construction phase, the interest expense is capitalized. When the properties are completed and begin lease up, the interest is expensed. The decrease of $1.8 million in the commercial portfolio is primarily due to the refinance of the loan on Park West II. The decrease in the hotel portfolio is due to the rates being tied to prime, and the decreased prime rate. The decrease within the land portfolio is primarily due to the sale of properties and the disposition of the debt upon sale.

Litigation settlement expense increased as compared to the prior year. The majority of the increase was due to resolving the Caruth-Preston litigation, Denver Merchandise Mart’s Darrell Hare litigation and expenses related to the Sunset litigation in the prior period.

Gain on land sales increased by $6.0 million. The majority of the increase in 2009 is due to the recognition of $3.4 million in prior year deferred gain due to the payoff of seller financing. In 2009, we sold 1,244.93 acres of land in 11 separate transactions for an aggregate sales price of $40.9 million, receiving $9.1 million in cash, recorded a gain on sale of $8.2 million. The average sales price was $32,833 per acre. In 2008, we sold 136.82 acres of land in 10 separate transactions for an aggregate sales price of $14.9 million, receiving $4.3 million in cash, recorded a gain on sale of $5.5 million. The average sales price was $104,517 per acre.

Discontinued Operations

Discontinued operations relates to properties that were either sold or held for sale as of the year ended December 31, 2010. Included in discontinued operations are a total of 24 and 51 properties as of 2009 and 2008, respectively. Properties sold or held for sale in 2010, were reclassed to prior year discontinued operations. In 2009, we had one property (Baywalk Apartments) pending sale and sold nine properties, which consisted of three apartment complexes (Bridges on Kinsey, Bridgestone, and Chateau Bayou), five commercial properties (2010 Valley View, 5000 Space Center, 5360 Tulane, Cullman Shopping Center and Parkway Centre) and one townhouse. In addition, we recognized the deferred gain on the sale of the Hartford building sold in 2002 in accordance with the requirements per ASC Topic 360-20 “Property, Plant, and Equipment—Real Estate Sales”. In 2008, we sold 27 properties which consisted of 20 apartment complexes (Arbor Pointe, Ashton Way, Autumn Chase, Courtyard, Coventry Pointe, Fairways, Fairway View Estate, Forty-Four Hundred, Fountain Lake, Fountains at Waterford, Governors Square, Hunters Glen, Mountain Plaza, Southgate, Sunchase, Sunset, Thornwood, Westwood Square, Willow Creek, and Woodview), three commercial buildings (Encon Warehouse, Executive Court, and Lexington Center), and four hotels (City Suites, Hotel Akademia, Majestic Inn, and Willow).

 

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     For the Year Ended December 31,  
             2009                     2008          

Revenue

    

Rental

   $ 26,625      $ 31,702   

Property operations

     14,728        18,874   
                
     11,897        12,828   

Expenses

    

Other income

     87        1,018   

Interest

     (11,196     (18,154

General and administrative

     6        (1,292

Litigation settlement

     (5     (261

Depreciation

     (4,803     (6,458
                
     (15,911     (25,147
                

Net income (loss) from discontinued operations before gains on sale of real estate, taxes, and fees

     (4,014     (12,319

Gain on sale of discontinued operations

     10,106        119,572   

Net income and sales fee to affiliate

     —          (10,994

Equity of investees gain on sale

     —          5,681   
                

Income from discontinued operations before tax

     6,092        101,940   

Tax expense

     (2,132     (35,679
                

Income from discontinued operations

   $ 3,960      $ 66,261   
                

Liquidity and Capital Resources

General

Our principal liquidity needs are:

 

   

fund normal recurring expenses;

 

   

meet debt service and principal repayment obligations including balloon payments on maturing debt;

 

   

fund capital expenditures, including tenant improvements and leasing costs;

 

   

fund development costs not covered under construction loans; and

 

   

fund possible property acquisitions.

Our principal sources of cash have been and will continue to be:

 

   

property operations;

 

   

proceeds from land and income-producing property sales;

 

   

collection of mortgage notes receivable;

 

   

collections of receivables from affiliated companies;

 

   

refinancing of existing debt and additional borrowings; and

 

   

additional borrowings, including mortgage notes payable, and lines of credit.

It is important to realize that the current status of the banking industry has had a significant effect on our industry. The banks’ willingness and/or ability to originate loans affects our ability to buy and sell property, and refinance existing debt. We are unable to foresee the extent and length of this down-turn. A continued and

 

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extended decline could materially impact our cash flows. We draw on multiple financing sources to fund our long-term capital needs. We generally fund our development projects with construction loans, which are converted to traditional mortgages upon completion of the project.

We may also issue additional equity securities, including common stock and preferred stock. Management anticipates that our cash at December 31, 2010, along with cash that will be generated in 2011 from property operations, may not be sufficient to meet all of our cash requirements. Management intends to selectively sell land and income producing assets, refinance or extend real estate debt and seek additional borrowings secured by real estate to meet its liquidity requirements. Although the past cannot predict the future, historically, management has been successful at refinancing and extending a portion of the Company’s current maturity obligations and selling assets as necessary to meet current obligations.

Management reviews the carrying values of ARL’s properties and mortgage notes receivable at least annually and whenever events or a change in circumstances indicate that impairment may exist. Impairment is considered to exist if, in the case of a property, the future cash flow from the property (undiscounted and without interest) is less than the carrying amount of the property. For notes receivable, impairment is considered to exist if it is probable that all amounts due under the terms of the note will not be collected. If impairment is found to exist, a provision for loss is recorded by a charge against earnings to the extent that the investment in the note exceeds management’s estimate of the fair value of the collateral securing such note. The mortgage note receivable review includes an evaluation of the collateral property securing each note. The property review generally includes: (1) selective property inspections, (2) a review of the property’s current rents compared to market rents, (3) a review of the property’s expenses, (4) a review of maintenance requirements, (5) a review of the property’s cash flow, (6) discussions with the manager of the property, and (7) a review of properties in the surrounding area.

Cash flow summary

The following summary discussion of our cash flows is based on the Consolidated Statements of Cash Flows in Part II, Item 8. “Consolidated Financial Statements and Supplementary Data” and is not meant to be an all-inclusive discussion of the changes in our cash flows for the periods presented below (dollars in thousands).

 

     2010     2009     Variance  

Net cash used in operating activities

   $ (9,627   $ (25,849   $ 16,222   

Net cash provided by investing activities

   $ 198,074      $ 46,853      $ 151,221   

Net cash used in financing activities

   $ (180,685   $ (22,159   $ (158,526

The primary use of cash for operations is daily operating costs, general and administrative expenses, advisory fees, and land holding costs. Our primary source of cash from operating activities is from rental income on properties. In addition, we had a significant receivable due from affiliated entities that we receive interest income from.

Our major investing cash outlays are from construction and development of new properties. We currently have five apartment projects under construction and one mixed-used development project under construction. In the current year, we have used $50.0 million on the construction and development of these new properties and $5.0 million to acquire land for two of the apartment projects currently in development. Our sources of cash from investing activities are the sales of land and income producing properties. We receive sales proceeds from the sale of income-producing properties and land.

Our major use of cash from financing activities is to satisfy the pay off obligations for properties that we have sold or refinanced, of which the proceeds to repay are from sales or new loans. We also receive draws on our construction loans in order to cover the costs associated with the development of our apartment projects and mixed use project.

 

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We anticipate that funds from existing cash resources, aggressive sales of land and selected income producing property sales, refinancing of real estate, and borrowings against our real estate will be sufficient to meet the cash requirements associated with our current and anticipated level of operations, maturing debt obligations and existing commitments. To the extent that our liquidity permits or financing sources are available, we will continue to make investments in real estate, primarily in improved and unimproved land, real estate entities and marketable equity securities, and will develop and construct income-producing properties.

Equity Investments.

ARL has from time to time purchased shares of IOT and TCI. The Company may purchase additional equity securities of IOT and TCI through open market and negotiated transactions to the extent ARL’s liquidity permits.

Equity securities of TCI held by ARL (and of IOT held by TCI) may be deemed “restricted securities” under Rule 144 of the Securities Act of 1933 (“Securities Act”). Accordingly, ARL may be unable to sell such equity securities other than in a registered public offering or pursuant to an exemption under the Securities Act for a one-year period after they are acquired. Such restrictions may reduce ARL’s ability to realize the full fair value of such investments if ARL attempted to dispose of such securities in a short period of time.

Contractual Obligations

We have contractual obligations and commitments primarily with regards to the payment of mortgages. The following table aggregates our expected contractual obligations and commitments and includes items not accrued, per Generally Accepted Accounting Principles, through the term of the obligation such as interest expense and operating leases. Our aggregate obligations subsequent to December 31, 2010 are shown in the table below (dollars in thousands):

 

     Total      2011      2012      2013-2015      Thereafter  

Long-term debt obligation(1)

   $ 1,896,985       $ 473,165       $ 223,911       $ 230,468       $ 969,441   

Capital lease obligation

     —           —           —           —           —     

Operating lease obligation

     55,119         1,030         1,039         3,170         49,880   

Purchase obligation

     —           —           —           —           —     

Other long-term debt liabilities reflected on the Registrant’s

     —           —           —           —           —     

Balance sheet under GAAP

              
                                            

Total

   $ 1,952,104       $ 474,195       $ 224,950       $ 233,638       $ 1,019,321   
                                            

 

(1) ARL’s long-term debt may contain financial covenants that, if certain thresholds are not met, could allow the lender to accelerate principal payments or cause the note to become due immediately.

Environmental Matters

Under various federal, state and local environmental laws, ordinances and regulations, ARL may be potentially liable for removal or remediation costs, as well as certain other potential costs relating to hazardous or toxic substances (including governmental fines and injuries to persons and property) where property-level managers have arranged for the removal, disposal or treatment of hazardous or toxic substances. In addition, certain environmental laws impose liability for release of asbestos-containing materials into the air, and third parties may seek recovery for personal injury associated with such materials.

Management is not aware of any environmental liability relating to the above matters that would have a material adverse effect on ARL’s business, assets or results of operations.

 

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Inflation

The effects of inflation on ARL’s operations are not quantifiable. Revenues from property operations tend to fluctuate proportionately with inflationary increases and decreases in housing costs. Fluctuations in the rate of inflation also affect the sales values of properties and the ultimate gains to be realized from property sales. To the extent that inflation affects interest rates, earnings from short-term investments and the cost of new financings as well as the cost of variable interest rate debt will be affected.

 

ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.

ARL’s primary market risk exposure consists of changes in interest rates on borrowings under our debt instruments that bear interest at variable rates that fluctuate with market interest rates and maturing debt that has to be refinanced. ARL’s future operations, cash flow and fair values of financial instruments are also partially dependent on the then existing market interest rates and market equity prices.

As of December 31, 2010, our $1.2 billion debt portfolio consisted of approximately $838.4 million of fixed-rate debt and approximately $398.5 million of variable-rate debt with interest rates ranging from 2.0% to 13.0%. Our overall weighted average interest rate at December 31, 2010 and 2009 was 6.78% and 6.36%, respectively.

ARL’s interest rate sensitivity position is managed by the capital markets department. Interest rate sensitivity is the relationship between changes in market interest rates and the fair value of market rate sensitive assets and liabilities. ARL’s earnings are affected as changes in short-term interest rates affect its cost of variable-rate debt and maturing fixed-rate debt.

If market interest rates for variable-rate debt average 100 basis points more in 2011 than they did during 2010, ARL’s interest expense would increase and net income would decrease by $4.0 million. This amount is determined by considering the impact of hypothetical interest rates on ARL’s borrowing cost. The analysis does not consider the effects of the reduced level of overall economic activity that could exist in such an environment. Further, in the event of a change of such magnitude, management would likely take actions to further mitigate its exposure to the change. However, due to the uncertainty of the specific actions that would be taken and their possible effects, the sensitivity analysis assumes no change in ARL’s financial structure.

 

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The following table contains only those exposures that existed at December 31, 2010. Anticipation of exposures of risk on positions that could possibly arise was not considered. ARL’s ultimate interest rate risk and its effect on operations will depend on future capital market exposures, which cannot be anticipated with a probable assurance level (dollars are in thousands):

 

     2011     2012     2013     2014     2015     Thereafter     Total  

Assets

              

Market securities at fair value

               $ —     

Note Receivable

              

Variable interest rate—fair value

               $ —     

Instrument’s maturities

   $ —        $ —        $ —        $ —        $ —        $ —        $ —     

Instrument’s amortization

     —          —          —          —          —          —          —     

Interest

     —          —          —          —          —          —          —     

Average Rate

     0.00     0.00     0.00     0.00     0.00     0.00  

Fixed interest rate—fair value

               $ 98,156   

Instrument’s maturities

   $ 9,665      $ 1,875      $ 1,076      $ —        $ —        $ 85,540      $ 98,156   

Instrument’s amortization

     —          —          —          —          —          —          —     

Interest

     7,813        9,734        7,885        6,621        6,621        126,918      $ 165,592   

Average Rate

     7.96     7.93     7.96     7.74     7.74     10.96  
     2011     2012     2013     2014     2015     Thereafter     Total  

Notes Payable

              

Variable interest rate—fair value

               $ 398,524   

Instrument’s maturities

   $ 249,462      $ 88,498      $ 25,785      $ 5,796      $ —        $ 20,968      $ 390,509   

Instrument’s amortization

     4,726        1,557        740        226        239        527        8,015   

Interest

     11,046        5,173        2,524        1,917        1,621        3,221        25,502   

Average Rate

     6.24     5.56     8.99     6.24     8.82     8.11  

Fixed interest rate—fair value

               $ 838,459   

Instrument’s maturities

   $ 155,756      $ 80,918      $ 86,074      $ 334      $ 256      $ 10,954      $ 334,292   

Instrument’s amortization

     9,835        11,379        8,554        8,684        9,180        456,535        504,167   

Interest

     42,340        36,386        27,235        25,905        25,398        477,236        634,500   

Average Rate

     6.73     7.46     5.71     5.60     5.59     5.23  

 

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ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

     Page  

Financial Statements

  

Report of Independent Registered Public Accounting Firm

     49   

Consolidated Balance Sheets—December 31, 2010 and 2009

     50   

Consolidated Statements of Operations—Years Ended December 31, 2010, 2009 and 2008

     51   

Consolidated Statements of Shareholders’ Equity—Years Ended December  31, 2010, 2009 and 2008

     52   

Consolidated Statements of Cash Flows—Years Ended December 31, 2010, 2009 and 2008

     53   

Statements of Consolidated Comprehensive Income (Loss)

     54   

Notes to Consolidated Financial Statements

     55   

Financial Statement Schedules

  

Schedule III—Real Estate and Accumulated Depreciation

     87   

Schedule IV—Mortgage Loan Receivables on Real Estate

     100   

All other schedules are omitted because they are not required, are not applicable, or the information required is included in the Consolidated Financial Statements or the notes thereto.

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors of and

Stockholders of American Realty Investors, Inc.

Dallas, Texas

We have audited the accompanying consolidated balance sheets of American Realty Investors, Inc. and Subsidiaries as of December 31, 2010 and 2009, and the related consolidated statements of operations, stockholders’ equity, and cash flows each for each of the years in the three-year period ended December 31, 2010. American Realty Investors, Inc.’s management is responsible for these consolidated financial statements. Our responsibility is to express an opinion on these consolidated financial statements 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 consolidated financial statements are free of material misstatement. The Company 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 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 consolidated financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall consolidated financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

As described in Note 17, American Realty Investors, Inc.’s management intends to sell land and income producing properties and refinance or extend debt secured by real estate to meet the Company’s liquidity needs.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of American Realty Investors, Inc. as of December 31, 2010 and 2009, and the results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2010, in conformity with accounting principles generally accepted in the United States of America.

Our audits were made for the purpose of forming an opinion on the consolidated financial statements taken as a whole. Schedules III and IV are presented for the purpose of complying with the Securities and Exchange Commission’s rules and are not a required part of the basic consolidated financial statements. These schedules have been subjected to the auditing procedures applied in the audits of the consolidated financial statements and, in our opinion, fairly state, in all material respects, the financial data required to be set forth therein in relation to the basic consolidated financial statements taken as a whole.

Farmer, Fuqua & Huff, PC

Plano, Texas

March 31, 2011

 

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AMERICAN REALTY INVESTORS, INC.

CONSOLIDATED BALANCE SHEETS

 

      December 31,
2010
    December 31,
2009
 
     (dollars in thousands, except
share and par value amounts)
 
Assets     

Real estate, at cost

   $ 1,170,214      $ 1,718,837   

Real estate held for sale at cost, net of depreciation ($ 0 for 2010 and $1,252 for 2009)

     —          5,147   

Real estate subject to sales contracts at cost, net of depreciation ($75,639 for 2010 and $13,985 for 2009)

     295,921        53,341   

Less accumulated depreciation

     (133,550     (195,804
                

Total real estate

     1,332,585        1,581,521   

Notes and interest receivable

    

Performing (including $89,982 in 2010 and $80,870 in 2009 from affiliates and related parties)

     99,839        91,872   

Non-performing

     3,123        3,108   

Less allowance for estimated losses

     (14,348     (11,836
                

Total notes and interest receivable

     88,614        83,144   

Cash and cash equivalents

     12,649        4,887   

Investments in unconsolidated subsidiaries and investees

     12,491        13,149   

Other assets (including $164 in 2010 and $175 in 2009 from affiliates and related parties)

     110,936        123,353   
                

Total assets

   $ 1,557,275      $ 1,806,054   
                
Liabilities and Shareholders’ Equity     

Liabilities:

    

Notes and interest payable

   $ 913,134      $ 1,327,188   

Notes related to assets held-for-sale

     —          5,002   

Notes related to assets subject to sales contracts

     315,547        61,886   

Stock-secured notes payable

     23,100        24,853   

Affiliate payables

     12,219        20,574   

Deferred revenue (including $100,212 in 2010 and $62,337 in 2009 from sales to related parties)

     104,534        70,083   

Accounts payable and other liabilities (including $1,558 in 2010 and $199 in 2009 to affiliates and related parties)

     88,506        85,119   
                
     1,457,040        1,594,705   

Shareholders’ equity:

    

Preferred stock, $2.00 par value, authorized 15,000,000 shares, issued and outstanding Series A, 3,389,546 shares in 2010 and 3,390,913 in 2009 (liquidation preference $33,895), including 900,000 shares in 2010 and 2009 held by subsidiaries

     4,979        4,979   

Common stock, $.01 par value, authorized 100,000,000 shares; issued 11,874,138, and outstanding 11,466,853 and 11,514,038 shares in 2010 and in 2009

     114        114   

Treasury stock at cost, 407,285 and 360,100 shares in 2010 and 2009 and 276,972 shares held by TCI (consolidated) as of 2010 and 2009

     (6,333     (5,954

Paid-in capital

     88,620        91,081   

Retained earnings

     (47,776     46,971   

Accumulated other comprehensive income (loss)

     (786     2,186   
                

Total American Realty Investors, Inc. shareholders’ equity

     38,818        139,377   
                

Non- controlling interest

     61,417        71,972   
                

Total equity

     100,235        211,349   
                

Total liabilities and equity

   $ 1,557,275      $ 1,806,054   
                

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

 

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AMERICAN REALTY INVESTORS, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS

 

     For the Years Ended December 31,  
     2010     2009     2008  
     (dollars in thousands, except share and
par value amounts)
 

Revenues:

      

Rental and other property revenues (including $2,595 and $2,582 and $3,691 for 2010 and 2009 and 2008 respectively from affiliates and related parties)

   $ 157,030      $ 161,863      $ 150,645   

Expenses:

      

Property operating expenses (including $2,480 and $2,942 and $3,101 for 2010 and 2009 and 2008 respectively from affiliates and related parties)

     96,317        95,002        102,068   

Depreciation and amortization

     28,907        26,473        21,537   

General and administrative (including $ 4,517 and $5,867 and $8,344 for 2010 and 2009 and 2008 respectively from affiliates and related parties)

     12,640        14,690        16,854   

Provision on impairment of notes receivable and real estate assets

     61,311        44,578        7,417   

Advisory fee to affiliate

     15,770        15,683        15,940   
                        

Total operating expenses

     214,945        196,426        163,816   
                        

Operating loss

     (57,915     (34,563     (13,171

Other income (expense):

      

Interest income (including $4,664 and $ 5,648 and $8,061 for 2010 and 2009 and 2008 respectively from affiliates and related parties)

     8,425        9,701        10,876   

Other income

     9,460        4,169        5,200   

Mortgage and loan interest (including $ 3,374 and $2,595 and $2,729 for 2010 and 2009 and 2008 respectively from affiliates and related parties)

     (79,066     (78,532     (81,001

Earnings from unconsolidated subsidiaries and investees

     (200     35        (968

Gain (loss) on foreign currency translation

     222        292        (517

Involuntary conversion

     —          —          —     

Litigation settlement

     —          (1,458     (870
                        

Total other expenses

     (61,159     (65,793     (67,280
                        

Loss before gain on land sales, non-controlling interest, and taxes

     (119,074     (100,356     (80,451

Gain (loss) on land sales

     (10,103     11,605        5,584   
                        

Loss from continuing operations before tax

     (129,177     (88,751     (74,867

Income tax benefit

     8,456        2,132        35,575   
                        

Net loss from continuing operations

     (120,721     (86,619     (39,292
                        

Discontinued operations:

      

Income (loss) from discontinued operations

     3,042        (4,014     (17,632

Gain on sale of real estate from discontinued operations

     19,306        10,106        119,572   

Income tax expense from discontinued operations

     (7,822     (2,132     (35,679
                        

Net income from discontinued operations

     14,526        3,960        66,261   

Net income (loss)

     (106,195     (82,659     26,969   

Net income (loss) attributable to non-controlling interests

     11,448        12,518        (4,335
                        

Net income (loss) attributable to American Realty Investors, Inc.

     (94,747     (70,141     22,634   

Preferred dividend requirement

     (2,488     (2,488     (2,487
                        

Net income (loss) applicable to common shares

   $ (97,235   $ (72,629   $ 20,147   
                        

Earnings per share—basic

      

Loss from continuing operations

   $ (9.75   $ (6.65   $ (4.13

Discontinued operations

     1.27        0.34        5.93   
                        

Net income (loss) applicable to common shares

   $ (8.48   $ (6.31   $ 1.80   
                        

Earnings per share—diluted

      

Loss from continuing operations

   $ (9.75   $ (6.65   $ (4.13

Discontinued operations

     1.27        0.34        5.93   
                        

Net income (loss) applicable to common shares

   $ (8.48   $ (6.31   $ 1.80   
                        

Weighted average common share used in computing earnings per share

     11,463,084        11,514,038        11,165,805   

Weighted average common share used in computing diluted earnings per share

     11,463,084        11,514,038        11,165,805   

Amounts attributable to American Realty Investors, Inc.

      

Loss from continuing operations

   $ (120,721   $ (86,619   $ (39,292

Income from discontinued operations

     14,526        3,960        66,261   
                        

Net income (loss)

   $ (106,195   $ (82,659   $ 26,969   
                        

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

 

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AMERICAN REALTY INVESTORS, INC.

CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY

For the Three Years Ended December 31, 2010

(dollars in thousands)

 

     Total
Capital
    Comprehensive
Loss
    Series A
Preferred
Stock
    Common Stock     Treasury
Stock
    Paid-in
Capital
    Retained
Earnings
    Accumulated
Other

Comprehensive
Income (Loss)
    Non-controlling
Interest
 
           Shares     Amount            

Balance, December 31, 2007

  $ 254,547      $ 27,658      $ 4,979        11,592,272      $ 114      $ (12,664   $ 100,277      $ 99,452      $ 228      $ 62,161   

Unrealized gain on foreign investments

    9,685        9,685        —          —          —          —          —          —          9,685        —     

Unrealized loss on investment securities

    (5,582     (5,582     —          —          —          —          —          —          (5,582     —     

Net income

    26,969        26,969        —          —          —          —          —          22,634        —          4,335   

Acquisition of non-controlling interest

    7,736        —          —          —          —          —          (7,668     —          —          15,404   

Stock reconciliation

    —          —          —          281,866        —            —          —          —          —     

Repurchase/sale of treasury stock

    6,710        —          —          —          —          6,710        —          —          —          —     

Series A preferred stock cash dividend ($1.00 per share)

    (2,487     —          —          —          —          —          —          (2,487     —          —     
                                                                               

Balance, December 31, 2008

  $ 297,578      $ 58,730      $ 4,979        11,874,138      $ 114      $ (5,954   $ 92,609      $ 119,599      $ 4,331      $ 81,900   
                                                                               

Unrealized loss on investment securities

    (2,775     (2,775     —          —          —          —          —          —          (2,145     (630

Net loss

    (82,659     (82,659     —          —          —          —          —          (70,141     —          (12,518

Acquisition of non-controlling interest

    1,692        —          —          —          —          —          (1,528     —          —          3,220   

Series A preferred stock cash dividend ($1.00 per share)

    (2,487     —          —          —          —          —          —          (2,487     —          —