-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Tp1a99mpNqdKBFMCln3MSJaD/LMH/x6PxxbgXAvSUKbIddowAct0InyYJJQ/y62p nPDD+kiVFIGj0Cra9nokrQ== 0000930661-99-002800.txt : 19991209 0000930661-99-002800.hdr.sgml : 19991209 ACCESSION NUMBER: 0000930661-99-002800 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19990930 FILED AS OF DATE: 19991208 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN REALTY TRUST INC CENTRAL INDEX KEY: 0000827165 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE OPERATORS (NO DEVELOPERS) & LESSORS [6510] IRS NUMBER: 540697989 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: SEC FILE NUMBER: 001-09948 FILM NUMBER: 99770674 BUSINESS ADDRESS: STREET 1: 10670 N CENTRAL EXPRESSWAY STREET 2: STE 300 CITY: DALLAS STATE: TX ZIP: 75231 BUSINESS PHONE: 2146924700 MAIL ADDRESS: STREET 1: 10670 N CENTRAL EXPRESSWAY STREET 2: SUITE 600 CITY: DALLAS STATE: TX ZIP: 75231 10-Q/A 1 FORM 10-Q/A - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM 10-Q/A [X]QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTER ENDED SEPTEMBER 30, 1999 ---------------- Commission File Number 1-9948 AMERICAN REALTY TRUST, INC. (Exact Name of Registrant as Specified in Its Charter) ---------------- Georgia 54-0697989 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 10670 North Central Expressway, Suite 300, 75231 Dallas, Texas (Address of Principal Executive Offices) (Zip Code) (214) 692-4700 (Registrant's Telephone Number, Including Area Code) Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section13 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 [_] APPLICABLE ONLY TO CORPORATE ISSUERS: Indicate the number of shares outstanding of each of the issuer's classes of Common Stock, as of the latest practicable date. Common Stock, $.01 par value 10,563,720 (Class) (Outstanding at October 29, 1999) - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- This Form 10-Q/A amends the Registrant's quarterly report on Form 10-Q for the quarter ended September 30, 1999 as follows: NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - Note 10. Operating Segments - page 20; and PART II - OTHER INFORMATION, Item 6. Exhibits and Reports on Form 8-K - page 34, to include Exhibit 2.0. PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS The accompanying Consolidated Financial Statements have not been examined by independent certified public accountants but in the opinion of the management of American Realty Trust, Inc. (the "Company"), all adjustments (consisting of normal recurring accruals) necessary for a fair presentation of consolidated results of operations, consolidated financial position and consolidated cash flows at the dates and for the periods indicated, have been included. AMERICAN REALTY TRUST, INC. CONSOLIDATED BALANCE SHEETS
September 30, December 31, 1999 1998 ------------- ------------ (dollars in thousands) Assets Notes and interest receivable Performing ($14,331 in 1999 and $594 in 1998 from affiliates)..................................... $ 52,171 $ 47,823 Nonperforming.................................... 14,925 6,807 -------- -------- 67,096 54,630 Less--allowance for estimated losses............... (2,577) (2,577) -------- -------- 64,519 52,053 Real estate held for sale.......................... 314,273 282,301 Real estate held for investment, net of accumulated depreciation ($183,757 in 1999 and $208,396 in 1998)............................................. 462,690 452,606 Pizza parlor equipment, net of accumulated depreci- ation ($2,294 in 1999 and $1,464 in 1998)......... 6,935 6,859 Marketable equity securities, at market value...... 740 2,899 Cash and cash equivalents.......................... 1,839 11,523 Investments in equity investees.................... 40,665 34,433 Intangibles, net of accumulated amortization ($1,652 in 1999 and $1,298 in 1998)............... 14,422 14,776 Other assets....................................... 33,249 61,155 -------- -------- $939,332 $918,605 ======== ======== Liabilities and Stockholders' Equity Liabilities........................................ Notes and interest payable ($13,477 in 1999 and $12,600 in 1998 to affiliates).................... $754,931 $768,272 Margin borrowings.................................. 36,507 35,773 Accounts payable and other liabilities (including $12,409 in 1999 and $8,900 in 1998 to affili- ates)............................................. 36,765 38,321 -------- -------- 828,203 842,366 Minority interest.................................. 72,723 37,967 Commitments and contingencies Stockholders' equity Preferred Stock, $2.00 par value, authorized 20,000,000 shares, issued and outstanding Series F, 3,400,000 shares in 1999 and 3,350,000 in 1998 (liquidation preference $34,000)........ 6,200 6,100 Series G, 1,000 shares in 1999 and 1998 (liquidation preference $100)................... 2 2 Common stock, $.01 par value; authorized 100,000,000 shares, issued 13,496,688 shares in 1999 and 13,479,348 in 1998....................... 135 133 Paid-in capital.................................... 84,348 83,945 Accumulated (deficit).............................. (52,251) (51,880) Treasury stock at cost, 2,737,216 shares in 1999 and 1998.......................................... (28) (28) -------- -------- 38,406 38,272 -------- -------- $939,332 $918,605 ======== ========
The accompanying notes are an integral part of these Consolidated Financial Statements. 2 AMERICAN REALTY TRUST, INC. CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three Months For the Nine Months Ended September 30, Ended September 30, ------------------------ ------------------------ 1999 1998 1999 1998 ----------- ----------- ----------- ----------- (dollars in thousands, except per share) Revenues Sales................... $ 7,800 $ 7,259 $ 22,753 $ 21,344 Rents................... 40,260 15,531 122,125 45,098 Interest................ 1,331 15 5,029 169 Other................... 300 486 (740) (454) ----------- ----------- ----------- ----------- 49,691 23,291 149,167 66,157 Expenses Cost of sales........... 6,711 6,324 19,509 18,329 Property operations..... 27,377 12,032 80,778 34,192 Interest................ 22,988 12,396 68,528 35,676 Advisory and servicing fees to affiliate...... 1,472 1,058 3,958 2,767 General and administrative......... 3,839 1,712 12,689 5,939 Depreciation and amortization........... 4,479 1,496 13,496 4,683 Provision for loss...... 45 3,000 2,072 3,000 Litigation settlement... -- -- 275 -- Minority interest....... 23,188 658 38,561 1,591 ----------- ----------- ----------- ----------- 90,099 38,676 239,866 106,177 ----------- ----------- ----------- ----------- (Loss) from operations.... (40,408) (15,385) (90,699) (40,020) Equity in income of investees................ 1,874 6,099 5,270 27,429 Gain on sale of real estate................... 48,590 5,718 87,307 14,692 ----------- ----------- ----------- ----------- Net income (loss)......... 10,056 (3,568) 1,878 2,101 Preferred dividend requirement.............. (570) (502) (1,704) (595) ----------- ----------- ----------- ----------- Net income (loss) applicable to Common shares................... $ 9,486 $ (4,070) $ 174 $ 1,506 =========== =========== =========== =========== Earnings per share Net income (loss) applicable to Common shares................. $ .88 $ (.38) $ .02 $ .14 =========== =========== =========== =========== Weighted average Common shares used in computing earnings per share....... 10,759,309 10,755,584 10,753,600 10,741,137 =========== =========== =========== ===========
The accompanying notes are an integral part of these Consolidated Financial Statements. 3 AMERICAN REALTY TRUST, INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY For the Nine Months Ended September 30, 1999
Series F Series G Preferred Preferred Common Treasury Paid-in Accumulated Stockholders' Stock Stock Stock Stock Capital (Deficit) Equity --------- --------- ------ -------- ------- ----------- ------------- (dollars in thousands, except per share) Balance, January 1, 1999................... $6,100 $ 2 $133 $(28) $83,945 $(51,880) $38,272 Dividends Common Stock ($.05 per share)............... -- -- -- -- -- (545) (545) Series F Preferred Stock ($.75 per share)............... -- -- -- -- -- (1,696) (1,696) Series G Preferred Stock ($7.50 per share)............... -- -- -- -- -- (8) (8) Sale of Common Stock under dividend reinvestment plan...... -- -- 2 -- 3 -- 5 Issuance of Series F Preferred Stock........ 100 -- -- -- 400 -- 500 Net income.............. -- -- -- -- -- 1,878 1,878 ------ --- ---- ---- ------- -------- ------- Balance, September 30, 1999................... $6,200 $ 2 $135 $(28) $84,348 $(52,251) $38,406 ====== === ==== ==== ======= ======== =======
The accompanying notes are an integral part of these Consolidated Financial Statements. 4 AMERICAN REALTY TRUST, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Nine Months Ended September 30, ------------------------ 1999 1998 ----------- ----------- (dollars in thousands) Cash Flows From Operating Activities Pizza parlor sales collected........................ $ 23,445 $ 21,252 Rents collected..................................... 120,986 44,350 Interest collected.................................. 3,716 381 Distributions from equity investees' operating cash flow............................................... 935 9,246 Payments for pizza parlor operations................ (20,092) (20,045) Payments for property operations.................... (93,939) (31,325) Interest paid....................................... (54,754) (23,928) Advisory and servicing fees paid to affiliate....... (3,958) (2,767) General and administrative expenses paid............ (12,738) (5,856) Other............................................... 5,500 (3,071) ----------- ---------- Net cash (used in) operating activities........... (30,899) (11,763) Cash Flows From Investing Activities Collections on notes receivable..................... 19,187 7,901 Funding of notes receivable......................... (40,942) (381) Pizza parlor equipment purchase..................... (740) (787) Proceeds from sale of real estate................... 166,907 44,140 Proceeds from sale of marketable equity securities.. 2,648 4,570 Purchases of marketable equity securities........... (2,180) (7,605) Investment in real estate entities.................. (366) (5,034) Distributions from equity investees' investing activities......................................... -- 16,427 Acquisition of real estate.......................... (48,094) (91,308) Deposits............................................ 18,944 565 Real estate improvements............................ (20,005) (7,267) ----------- ---------- Net cash provided by (used in) investing activities....................................... 95,359 (38,779) =========== ========== Cash Flows From Financing Activities Proceeds from notes payable......................... $ 112,730 $ 135,696 Payments on notes payable........................... (175,048) (77,077) Deferred borrowing costs............................ (5,947) (8,214) Net advances from affiliates........................ 3,489 15,330 Margin borrowings, net.............................. (3,814) (14,998) Common dividends paid............................... (545) (1,710) Preferred dividends paid............................ (1,704) (418) Sale of Preferred Stock............................. 500 -- Distributions to minority interest holders.......... (3,805) (1,590) Sale of Common Stock sold under dividend reinvestment plan.................................. -- 197 ----------- ---------- Net cash provided by (used in) financing activities....................................... (74,144) 47,216 Net (decrease) in cash and cash equivalents....... (9,684) (3,326) Cash and cash equivalents, beginning of period........ 11,523 5,347 ----------- ---------- Cash and cash equivalents, end of period.............. $ 1,839 $ 2,021 =========== ==========
The accompanying notes are an integral part of these Consolidated Financial Statements. 5 AMERICAN REALTY TRUST, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS - Continued
For the Nine Months Ended September 30, ------------------ 1999 1998 -------- -------- (dollars in thousands) Reconciliation of net income to net cash (used in) operating activities Net income............................................... $ 1,878 $ 2,101 Adjustments to reconcile net income to net cash (used in) operating activities Depreciation and amortization.......................... 13,496 4,683 Amortization of deferred borrowing cost................ 9,857 5,471 Provision for loss..................................... 2,072 3,000 Gain on sale of real estate............................ (87,307) (14,692) Distributions from equity investees' operating cash flow.................................................. 935 9,246 Equity in (income) of investees........................ (5,270) (27,430) (Increase) decrease in marketable equity securities.... 2,159 (1,529) (Increase) decrease in accrued interest receivable..... (1,605) 333 Decrease in other assets............................... 13,817 3,336 Increase (decrease) in accrued interest payable........ (6,640) 1,179 Increase in accounts payable and other liabilities..... 25,709 1,760 Other.................................................. -- 779 -------- -------- Net cash (used in) operating activities.............. $(30,899) $(11,763) ======== ======== Schedule of noncash investing and financing activities Notes payable from acquisition of real estate.............. $ 70,133 $ 17,119 Notes receivable canceled on reacquisition of property..... -- 1,300 Issuance of Series F Preferred Stock....................... -- 2,100 Dividend obligation on conversion of Series F Preferred Stock..................................................... -- 134 Issuance of Series G Preferred Stock....................... -- 100 Investment in properties reacquired........................ -- 5,270 Real estate obtained through foreclosure of mortgage note receivable................................................ -- 22,715 Provision for loss......................................... 2,072 3,000 Notes payable assumed by buyer upon sale of properties..... 6,776 -- Conversion of note receivable to partnership interest...... 22,678 -- Dividend obligation discharged on conversion of Series B Preferred Stock........................................... -- 44 Acquisition of IGI Properties Issuance of Class A partnership units.................... -- 6,568 Carrying value of mortgages assumed...................... -- 43,421 Carrying value of other assets........................... -- (441) Carrying value of accounts payable and other liabilities............................................. -- 292 Investment in partnerships............................... -- 1,980
The accompanying notes are an integral part of these Consolidated Financial Statements. 6 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 1. BASIS OF PRESENTATION The accompanying Consolidated Financial Statements of American Realty Trust, Inc. ("ART") and consolidated entities (the "Company") have been prepared in conformity with generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. Operating results for the nine month period ended September 30, 1999, are not necessarily indicative of the results that may be expected for the year ending December 31, 1999. For further information, refer to the Consolidated Financial Statements and Notes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 1998 (the "1998 Form 10-K"). Certain balances for 1998 have been reclassified to conform to the 1999 presentation. NOTE 2. SYNTEK ASSET MANAGEMENT, L.P. ART owns a 96% limited partner interest in Syntek Asset Management, L.P. ("SAMLP"). Until December 18, 1998, SAMLP was the general partner of National Realty, L.P. ("NRLP") and National Operating, L.P. ("NOLP"), the operating partnership of NRLP (collectively the "Partnership"). Gene E. Phillips, a Director and Chairman of the Board of the Company until November 16, 1992, is also a general partner of SAMLP. As of September 30, 1999, the Company owned approximately 56% of the outstanding limited partner units of the Partnership. The Partnership, SAMLP and Gene E. Phillips were among the defendants in a class action lawsuit arising from the formation of the Partnership (the "Moorman Litigation"). An agreement settling such lawsuit (the "Settlement Agreement") for the above named defendants became effective on July 5, 1990. The Settlement Agreement provided for, among other things, the appointment of the Partnership oversight committee for the Partnership and the establishment of specified annually increasing targets for five years relating to the price of the Partnership's units of limited partner interest. The Settlement Agreement provided for the resignation and replacement of SAMLP as general partner if the unit price targets were not met for two consecutive anniversary dates. The Partnership did not meet the unit price targets for the first and second anniversary dates. On July 15, 1998, the Partnership, SAMLP and the Partnership oversight committee executed an Agreement for Cash Distribution and Election of Successor General Partner (the "Cash Distribution Agreement") which provided for the nomination of an entity affiliated with SAMLP to be the successor general partner of the Partnership, for the distribution of $11.4 million to the plaintiff class members and for the resolution of all related matters under the Settlement Agreement. On October 23, 1998, the Court entered an order granting final approval of the Cash Distribution Agreement. The Court also entered orders requiring the Partnership to pay $404,000 in attorney's fees to Joseph B. Moorman's legal counsel, $30,000 to Joseph B. Moorman and $404,000 in attorney's fees to Robert A. McNeil's legal counsel. Pursuant to the order, $11.4 million was deposited by the Partnership into an escrow account and then transferred to the control of an independent administrator. The distribution of cash was placed under the control of the independent settlement administrator. On March 24, 1999, the initial distribution of cash was made to the plaintiff class members. The proposal to elect NRLP Management Corp. ("NMC"), a wholly-owned subsidiary of ART, as the successor general partner was submitted to the unitholders of the Partnership for a vote at a special meeting of unitholders held on December 18, 1998. NMC was elected by a majority of the Partnership unitholders. The 7 AMERICAN REALTY TRUST, INC. NOTES TO FINANCIAL STATEMENTS--(Continued) Settlement Agreement remained in effect until December 18, 1998, when SAMLP resigned as general partner and NMC was elected successor general partner and took office. Under the Cash Distribution Agreement, NMC assumed liability for SAMLP's note for its original capital contribution to the Partnership. In addition, NMC assumed liability for the note which requires the repayment of the $11.4 million paid by the Partnership under the Cash Distribution Agreement, plus the $808,000 in court ordered attorneys' fees and $30,000 paid to Joseph B. Moorman. This note requires repayment over a 10--year period, bears interest at a variable rate, currently 7.3% per annum, and is guaranteed by ART. The liability assumed under the Cash Distribution Agreement was expensed as a litigation settlement. An additional $184,000 was expensed as a litigation settlement in the first quarter of 1999. As of December 31, 1998, ART discontinued accounting for its investment in the Partnership under the equity method upon the election of NMC as general partner of the Partnership and the settlement of the Moorman Litigation. The Company began consolidation of the Partnership's accounts at that date and its operations subsequent to that date. NOTE 3. NOTES AND INTEREST RECEIVABLE In January 1999, the Partnership collected in full a mortgage note receivable with a principal balance of $350,000. In May 1999, the Partnership collected in full a mortgage note receivable with a principal balance of $1.5 million. In both cases, the monies received were applied to paydown a note payable partially secured by the mortgage notes receivable. In July 1999, the Partnership received $1.3 million in full payment of a mortgage note receivable, including a $400,000 participation fee. In June 1999, a mortgage note receivable from an affiliate of JNC Enterprises, Ltd. ("JNC") in the amount of $4.2 million matured. The note is secured by (1) a first lien on approximately 1,000 acres of land in Huerfano County, Colorado, known as Cuchara Valley Mountain Ski Resort; (2) an assignment of a $2.0 million promissory note which is secured by approximately 2,623 acres of land in Taos County, New Mexico, known as Ski Rio Resort; and (3) a pledge of all related partnership interests. In August 1999, the Partnership received a paydown of $2.3 million on the note receivable, a portion of the proceeds from the loan funding described in the following paragraph. In September 1999, the Partnership received a paydown of $1.0 million in exchange for extending the note's maturity to October 1999. In August 1999, the Partnership funded a $2.6 million loan to JNC. The loan is secured by second liens on a 3.55 acre parcel and a 1.2561 acre parcel of land in Dallas, Texas, and the personal guaranty of JNC's principal partner. The loan bears interest at 16.0% per annum and matures in February 2000. All principal and interest are due at maturity. Also in August 1999, a mortgage note receivable in the amount of $942,000 matured. The loan was secured by 4.5 acres of land in Abilene, Texas, collateral assignment of a $220,000 note receivable and the personal guarantees of the principal owners of the borrower. The loan bore interest at 14.0% per annum, and all principal and interest were due at maturity. The borrower did not make the required payments of principal and interest and the loan is classified as nonperforming in the September 30, 1999 Consolidated Balance Sheet. The Partnership is negotiating a modification/extension with the borrower. If such negotiation is not successful, and the Partnership forecloses, it expects to incur no loss as the fair value of the collateral property, less estimated costs of sale, exceeds the carrying value of the note. During 1998, the Partnership funded a $1.8 million loan to Warwick of Summit, Inc. The loan is secured by a second lien on a shopping center in Rhode Island, by 100% of the stock of the borrower and by the personal 8 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) guarantee of the principal shareholder of the borrower. The loan bears interest at 14.0% per annum and matures in December 1999. All principal and interest are due at maturity. During 1999, the Partnership funded an additional $314,000, increasing the loan balance to $2.1 million. During 1998 and through August 1999, the Partnership funded a total of $2.1 million of a $2.2 million loan commitment to Varner Road Partners, L.L.C. The loan is secured by 129.77 acres of land in Riverside County, California and a pledge of the stock of the borrower. The loan bears interest at 15.0% per annum and matures in November 1999. All principal and interest are due at maturity. During 1998 and 1999, the Partnership funded a total of $31.0 million of a $52.5 million loan commitment to Centura Tower, Ltd. ("Centura"). The loan was secured by 2.2 acres of land and an office building under construction in Farmers Branch, Texas. The loan bore interest at 12.0% per annum, required monthly payments based on net revenues after development of the land and building and matured in January 2003. In August 1999, the Partnership exercised a participation option included in the loan agreement. The Partnership obtained a combined 80% general and limited partnership interest in Centura in exchange for a $24.1 million capital contribution through conversion of a portion of the Partnership's note receivable. The $8.3 million balance of the note receivable continues as a loan to Centura from the Partnership, bears interest at a rate of 18.0% per annum and is payable from cash flows of the project. Centura's other partners will earn a 12% preferred return on their respective capital accounts. In conjunction with the exercise of the participation, Centura obtained a construction loan commitment in the total amount of $30.0 million, which was finalized in October 1999. The loan bears interest at a variable rate, currently 9.4725% per annum, and matures in June 2001. Interest is payable monthly, with the first $2.0 million of interest being drawn from the loan proceeds. The loan is guaranteed by NOLP, NRLP, Garden Capital, L.P. ("GCLP") and Basic Capital Management, Inc. ("BCM"), the Company's advisor. In October 1999, Centura received its first draw of $5.0 million under the loan agreements. GCLP is a partnership in which NOLP is the sole limited partner with a 99.3% limited partner interest and a wholly--owned subsidiary of ART is the general partner with .7% general partner interest. The Partnership consolidates Centura for financial statement purposes. In June 1998, the Partnership funded a $365,000 loan to RB Land & Cattle, L.L.C. The loan is secured by a pledge of a note secured by 7,200 acres of undeveloped land near Crowell, Texas, and the personal guarantee of the borrower. The loan bore interest at 10.0% per annum and matured in December 1998. All principal and interest were due at maturity. The borrower did not make the required payments and the loan was classified as nonperforming. The Partnership has begun foreclosure proceedings and expects to incur no loss on foreclosure as the fair value of the collateral property, less estimated costs of sale, exceeds the carrying value of the note. In August 1998, the Partnership funded a $6.0 million loan to Centura Holdings, L.L.C., a subsidiary of Centura Tower, Ltd. The loan is secured by 6.4 acres of land in Farmers Branch, Texas, bears interest at 15.0% per annum and matures in August 2000. All principal and interest are due at maturity. In February 1999, the Partnership funded an additional $37,500. Also in August 1998, the Partnership funded a $3.7 million loan to JNC. The loan was secured by a contract to purchase 387 acres of land in Collin County, Texas, and the personal guaranty of JNC's principal partner. The loan bore interest at 12.0% per annum and matured the earlier of termination of the purchase contract or February 1999. All principal and interest were due at maturity. This loan was cross--collateralized with other JNC loans. In January 1999, ART purchased the contract from JNC and acquired the land. In connection with the purchase, GCLP funded $6.0 million on a then $95.0 million loan commitment to ART. A portion of the funds were used to payoff the $3.7 million JNC note to the Partnership, including accrued but unpaid interest, paydown $1.3 million on the JNC line of credit and paydown $820,000 on the JNC Frisco Panther Partners, Ltd. loan, discussed below. See NOTE 7. "NOTES PAYABLE." 9 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Further in August 1998, the Partnership funded a $635,000 loan to La Quinta Partners, L.L.C. The loan is secured by interest bearing accounts prior to being used as escrow deposits toward the purchase of a total of 956 acres of land in La Quinta, California. The loan bore interest at 10.0% per annum and matured in November 1998. All principal and interest were due at maturity. In November and December 1998, the Partnership received a total of $250,000 in principal paydowns. In the first quarter of 1999, the Partnership received an additional $25,000 paydown. In the second quarter of 1999, the loan was modified, increasing the interest rate to 15.0% per annum and extending the maturity date to November 1999. Accrued but unpaid interest was added to the principal balances increasing it by $42,000 to $402,000. In 1997 and 1998, the Partnership funded a $3.8 million loan to Stratford & Graham Developers, L.L.C. The loan is secured by 1,485 acres of unimproved land in Riverside County, California. In the first nine months of 1999, the Partnership funded an additional $316,000, increasing the loan balance to $4.1 million. The loan bore interest at 15.0% per annum and matured in June 1999. All principal and interest were due at maturity. The borrower did not make the required payments of principal and interest at the loan's maturity and the loan was classified as nonperforming. The Partnership has begun foreclosure proceedings. No loss is expected on foreclosure as the fair value of the collateral property, less estimated costs of sale, exceeds the carrying value of the note. In October 1998, the Partnership funded three loans to JNC or affiliated entities. The first JNC loan of $1.0 million was secured by a second lien on 3.5 acres of land in Dallas, Texas, and the personal guaranty of JNC's principal partner. The loan bore interest at 14.0% per annum and matured in October 1999. All principal and interest were due at maturity. This loan was paid in full in July 1999. The second loan, also $1.0 million, was secured by a second lien on 2.9 acres of land in Dallas, Texas, and the personal guaranty of JNC's principal partner. The loan bore interest at 14.0% per annum and matured in October 1999. All principal and interest were due at maturity. This loan was paid in full in March 1999. The third loan, in the amount of $2.1 million was to Frisco Panther Partners, Ltd. The loan is secured by a second lien on 408.2 acres of land in Frisco, Texas, and the personal guaranty of JNC's principal partner. The loan bears interest at 14.0% per annum and matures in October 1999. All principal and interest are due at maturity. This loan is cross--collateralized with other JNC loans funded by the Partnership. In January 1999, the Partnership received a paydown of $820,000 on the Frisco Panther Partners, Ltd. loan. In March 1998, the Partnership ceased receiving the required payments on a $3.0 million note receivable secured by an office building in Dallas, Texas. In October 1998, the Partnership began foreclosure proceedings. In March 1999, the Partnership received payment in full, including accrued but unpaid interest. In December 1998, the Partnership funded $3.3 million of a $5.0 million loan commitment to JNC. The loan is secured by a second lien on 1,791 acres of land in Denton County, Texas, and a second lien on 220 acres of land in Tarrant County, Texas. The loan bears interest at 12.0% per annum and matures in December 1999. All principal and interest are due at maturity. The loan is cross--collateralized with other JNC loans funded by the Partnership. In January 1999, the Partnership received a $1.3 million paydown. In the first half of 1999, the Partnership funded an additional $3.0 million, increasing the loan balance to $5.0 million. At December 1998, the Partnership's one wraparound mortgage note receivable was in default. The Partnership has been vigorously pursuing its rights under the loan agreement. If the Partnership should be unsuccessful, and the underlying lien holder forecloses the collateral property, the Partnership will incur no loss in excess of previously established reserves. Related Party. In February 1999, GCLP funded a $5.0 million unsecured loan to Davister Corp., which at September 30, 1999, owned approximately 15.8% of the outstanding shares of the Company's Common Stock. 10 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The loan bears interest at 12.0% per annum and matures in February 2000. All principal and interest are due at maturity. The loan is guaranteed by BCM, the Company's advisor. Beginning in 1997 and through January 1999, the Partnership funded a $1.6 million loan commitment to Bordeaux Investments Two, L.L.C. ("Bordeaux"). The loan is secured by (1) a 100% interest in Bordeaux, which owns a shopping center in Oklahoma City, Oklahoma; (2) 100% of the stock of Bordeaux Investments One, Inc., which owns 6.5 acres of undeveloped land in Oklahoma City, Oklahoma; and (3) the personal guarantees of the Bordeaux partners. The loan bears interest at 14.0% per annum. Until November 1998, the loan required monthly payments of interest only at the rate of 12.0% per annum, with the deferred interest payable at maturity in January 1999. In November 1998, the loan was modified to allow payments based on monthly cash flow of the collateral property and the maturity date was extended to December 1999. In the second quarter of 1999, the loan was again modified, increasing the loan commitment to $2.1 million and the Partnership funded an additional $33,000. In the third quarter of 1999, the Partnership funded an additional $213,000. The property has had no cash flow, therefore, the Partnership ceased accruing interest in the second quarter of 1999. In October 1999, the Partnership received a $724,000 paydown on the loan, which was applied first to accrued but unpaid interest of $261,000 then to principal, reducing the loan balance to $1.4 million. In October 1999, Richard D. Morgan, a Bordeaux shareholder, was elected a director of NMC, the General Partner of the Partnership. Beginning in April and through September 30, 1999, ART funded $1.7 million of a $2.0 million loan commitment to Lordstown, L.P. The loan is secured by a second lien on land in Ohio and Florida, by 100% of the general and limited partner interest in Partners Capital, Ltd. and a 50% profits interest in subsequent land sales. A corporation controlled by Richard D. Morgan, is the general partner of Lordstown, L.P. Also, beginning in April through September 30, 1999, ART funded $1.5 million of a $2.4 million loan commitment to 261, L.P. The loan is secured by 100% of the general and limited partner interest in Partners Capital, Ltd. and a profits interest in subsequent land sales. A corporation controlled by Richard D. Morgan, is the general partner of 261, L.P. NOTE 4. REAL ESTATE In January 1999, GCLP sold the 199 unit Olde Town Apartments in Middleton, Ohio, for $4.6 million, receiving net cash of $4.4 million after the payment of various closing costs, including a real estate brokerage commission of $136,000 to Carmel Realty, Inc. ("Carmel Realty"), an affiliate of BCM, the Company's advisor. A gain of $2.2 million was recognized on the sale. In February 1999, ART purchased Frisco Bridges land, a 336.8 acre parcel of unimproved land in Collin County, Texas, for $46.8 million, paying $7.8 million in cash and obtaining mortgage financing totaling $39.0 million. Seller financing in the amount of $22.0 million, secured by 191.5 acres of the parcel, bears interest at prime plus 2.0%, currently 10.25% per annum, requires monthly interest only payments and matures in January 2000. A mortgage in the amount of $15.0 million, secured by 125.0 acres of the parcel, bears interest at the prime rate plus 4.5%, currently 12.75% per annum, required principal reduction payments of $1.0 million on each of May 1, June 1, and July 1, in addition to monthly payments of interest and matures in February 2000. Another mortgage in the amount of $2.0 million, secured by 13.5 acres of the parcel, bore interest at 14% per annum, required monthly interest only payments and matured in January 2000. The loan was paid in full in June 1999. ART's Double O land in Las Colinas, Texas, and its Desert Wells land in Palm Desert, California, are pledged as additional collateral for these loans. ART drew down $6.0 million under its line of credit with the GCLP for a portion of the cash requirement. See NOTE 7. "NOTES PAYABLE." A real estate brokerage commission of $1.4 million was paid to Carmel Realty. 11 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Also in February 1999, ART sold a 4.6 acre tract of its Plano Parkway land parcel for $1.2 million. ART received net cash of $1.1 million after the payment of various closing costs, including a real estate brokerage commission of $36,000 to Carmel Realty. Simultaneously with the sale, the mortgage debt secured by such land parcel was refinanced in the amount of $7.1 million. The new mortgage bears interest at the prime rate plus 4.5%, currently 12.75% per annum, requires monthly interest only payments and matures in January 2000. The net cash from the sale and refinancing along with an additional $921,000 was used to payoff the $8.9 million seller financing secured by the land parcel. A mortgage brokerage and equity refinancing fee of $71,000 was paid to BCM. A gain of $473,000 was recognized on the sale. Further in February 1999, GCLP sold the 225 unit Santa Fe Apartments in Kansas City, Missouri, for $4.6 million, receiving net cash of $4.3 million after the payment of various closing costs, including a real estate brokerage commission of $137,000 to Carmel Realty. A gain of $706,000 was recognized on the sale. In February 1999, GCLP sold the 480 unit Mesa Ridge Apartments in Mesa, Arizona, for $19.5 million, receiving net cash of $793,000 after the payment of various closing costs, including a real estate brokerage commission of $585,000 to Carmel Realty and remitting $17.8 million to the lender to hold in escrow pending a substitution of collateral. In May 1999, the 259 unit Bavarian Woods Apartments and the 149,855 sq. ft. Westwood Shopping Center were approved as substitute collateral. GCLP received net cash of $7.8 million after paying off $7.2 million in mortgage debt secured by the Bavarian Woods Apartments and Westwood Shopping Center, funding required escrows and closing costs on the two properties and paying off $2.2 million on the Mesa Ridge debt, including a $133,000 prepayment penalty. A gain of $10.2 million was recognized on the sale. In March 1999, ART sold a 13.0 acre tract of its Rasor land parcel for $1.6 million, receiving no net cash after paying down by $1.5 million the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $48,000 to Carmel Realty. A gain of $979,000 was recognized on the sale. Also in March 1999, ART sold two tracts totaling 9.9 acres of its Mason/Goodrich land parcel for $956,000, receiving net cash of $33,000 after paying down by $860,000 the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $29,000 to Carmel Realty. A gain of $432,000 was recognized on the sale. Further in March 1999, ART sold, in a single transaction, a 13.7 acre tract of its McKinney II land parcel and a 20.0 acre tract of its McKinney IV land parcel for a total of $7.7 million, receiving no net cash after paying down by $5.5 million the mortgage debt secured by such land parcel, the funding of required escrows and the payment of various closing costs, including a real estate brokerage commission of $231,000 to Carmel Realty. A gain of $2.9 million was recognized on the sale. In April 1999, GCLP sold the 166 unit Horizon East Apartments in Dallas, Texas, for $4.0 million, receiving net cash of $1.2 million after paying off $2.6 million in mortgage debt and the payment of various closing costs, including a real estate brokerage commission of $79,000 to Carmel Realty. A gain of $1.8 million was recognized on the sale. Also in April 1999, GCLP sold the 120 unit Lantern Ridge Apartments in Richmond, Virginia, for $3.4 million, receiving net cash of $880,000 after the payment of various closing costs, including a real estate brokerage commission of $103,000 to Carmel Realty. The purchaser assumed the $2.4 million mortgage secured by the property. A gain of $2.3 million was recognized on the sale. In May 1999, ART sold a 15.0 acre tract of its Vista Ridge land parcel for $2.6 million, receiving net cash of $552,000 after paying down by $1.8 million the mortgage debt secured by such land parcel and the payment 12 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) of various closing costs, including a real estate brokerage commission of $79,000 to Carmel Realty. A gain of $913,000 was recognized on the sale. Also in May 1999, ART purchased Rowlett Creek land, a 80.4 acre parcel of unimproved land in Collin County, Texas, for $1.6 million. ART paid $400,000 in cash and obtained seller financing of the remaining $1.2 million of the purchase price. The seller financing bears interest at 8.75% per annum, requires quarterly interest only payments and matures in May 2004. A real estate brokerage commission of $94,000 was paid to Carmel Realty. Further in May 1999, ART purchased Leone land, a 8.2 acre parcel of unimproved land in Irving, Texas, for $1.5 million. ART paid $300,000 in cash and obtained seller financing of the remaining $1.2 million of the purchase price. The seller financing bears interest at 8.0% per annum, requires quarterly interest only payments and matures in May 2003. A real estate brokerage commission of $91,000 was paid to Carmel Realty. In May 1999, a newly-formed controlled partnership in which a wholly--owned subsidiary of ART is the 1.0% managing general partner and ART is the 99% Class B limited partner, purchased the 177,211 sq. ft. Encino Executive Plaza in Los Angeles, California, for $40.1 million. The partnership paid $2.8 million in cash, assumed $34.6 million in mortgage debt, obtained $1.1 million in seller financing and issued 1.6 million Class A limited partner units. The mortgage bears interest at 7.74% per annum, requires monthly payments of principal and interest of $247,500 and matures in May 2008. The seller financing bears interest at 7.0% per annum, requires interest only payments in July and January, requires semiannual principal payments of $369,000 in May 2000 and May 2001 and matures in May 2002. The Class A units accrue a preferred return of $.05 per Class A unit per annum for the first year, $.06 per annum per Class A unit for the second year, $.07 per Class A unit per annum for the third year and $.09 per Class A unit per annum thereafter, paid quarterly. Also in May 1999, ART sold two tracts of its Plano Parkway land parcel totaling 24.5 acres for $4.9 million. ART received no net cash after paying down by $4.7 million the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $147,000 to Carmel Realty. A gain of $1.1 million was recognized on the sale. Further in May 1999, ART acquired the remaining joint venture interest in its 3.6 acre Atlanta land parcel for $1.3 million in cash. Subsequently, ART exchanged the Atlanta land parcel for 147.4 acres of land in Nashville, Tennessee and $1.3 million in cash. No gain or loss was recognized on the exchange. In May 1999, the Partnership purchased the 27,000 sq. ft. Cooley Office Building in Farmers Branch, Texas, for $3.5 million, paying $1.5 million in cash and obtaining mortgage financing of $2.0 million. The mortgage bears interest at a variable rate, currently 9.0% per annum, requires monthly payments of principal and interest of $17,875 and matures in May 2019. A real estate brokerage commission of $35,000 was paid to Carmel Realty. In June 1999, ART sold two tracts of its Frisco Bridges land parcel totaling 77.6 acres for $16.9 million. ART received net cash of $2.7 million after paying off $2.0 million in mortgage debt secured by such land parcel, paying down by $11.0 million another mortgage secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $507,000 to Carmel Realty. A gain of $4.2 million was recognized on the sale. Also in June 1999, ART sold a 6.0 acre tract of its Plano Parkway land parcel for $1.6 million. ART received no net cash after paying down by $1.6 million the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $47,000 to Carmel Realty. A gain of $615,000 was recognized on the sale. 13 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Further in June 1999, ART sold its Continental Hotel for $25.0 million, receiving a nonrefundable deposit of $5.0 million and providing short term financing of $20.0 million, which matures in November 1999. A gain of $7.9 million was recognized on the sale. In the third quarter of 1999, ART received $1.5 million in principal payments. In June 1999, ART purchased Vineyards II land, a 18.6 acre parcel of unimproved land in Tarrant County, Texas, for $6.3 million. ART paid $2.3 million in cash and obtained seller financing of the remaining $4.0 million of the purchase price. The seller financing bears interest at 14.5% per annum, requires monthly interest only payments and matures in June 2002. A real estate brokerage commission of $190,000 was paid to Carmel Realty. Also in June 1999, the Partnership purchased the Lake Houston land, a 33.58 acre parcel of unimproved land in Harris County, Texas, for $2.5 million in cash. A real estate brokerage commission of $75,000 was paid to Carmel Realty. The Partnership obtained a $13.7 million construction loan and began development of a 312 unit apartment complex on the site in July 1999. Construction costs are expected to approximate $16.7 million and completion is anticipated in the third quarter of 2000. Through October 1999, the Partnership has invested $1.9 million on construction of the apartments and received $1.8 million in loan and escrow proceeds. Further in June 1999, GCLP sold the 368 unit Barcelona Apartments in Tampa, Florida, for $9.8 million, receiving net cash of $2.2 million after paying off $7.0 million in mortgage debt and the payment of various closing costs, including a real estate brokerage commission of $294,000 to Carmel Realty. A gain of $2.2 million was recognized on the sale. In July 1999, the Partnership purchased the Stone Meadows land, a 13.5 acre parcel of unimproved land in Harris County, Texas, from ART at the land's carrying value of $2.2 million, paying $1.3 million in cash and assuming $974,000 in mortgage debt. The mortgage bore interest at 10.0% per annum, required quarterly payments of principal and interest of $100,000 and matured in October 1999. The mortgage was paid in full at maturity. The land was acquired as a future apartment development site. Also in July 1999, ART sold a .13 acre tract of its JHL Connell land parcel for $53,000. ART received no net cash after paying down by $49,000 the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $2,000 to Carmel Realty. A gain of $23,000 was recognized on the sale. Further in July 1999, ART sold two tracts totaling 11.8 acres of its Plano Parkway land parcel for $3.8 million. ART received net cash of $1.7 million after paying down by $2.0 million the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $112,000 to Carmel Realty. A gain of $1.9 million was recognized on the sales. In July 1999, ART sold two tracts totaling 6.7 acres of its Vista Ridge land parcel for $1.4 million. ART received net cash of $329,000 after paying down by $975,000 the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $43,000 to Carmel Realty. A gain of $584,000 was recognized on the sale. Also in July 1999, ART purchased Monterey land, a 85.0 acre parcel of unimproved land in Riverside County, California, for $5.6 million. ART paid $1.1 million in cash and obtained seller financing of the remaining $4.5 million of the purchase price. The seller financing bears interest at 9.0% per annum, requires quarterly interest only payments and matures in June 2002. A real estate brokerage commission of $338,000 was paid to Carmel Realty. 14 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Further in July 1999, ART purchased Wakefield land, a 70.0 acre parcel of unimproved land in Allen, Texas, for $1.3 million. ART paid $688,000 in cash and obtained seller financing for the remaining $612,000 of the purchase price. The seller financing bears interest at 8.5% per annum, requires quarterly interest only payments and matures in July 2004. A real estate brokerage commission of $78,000 was paid to Carmel Realty. In July 1999, ART sold a 1.4 acre tract of its Valley Ranch land parcel for $163,000. ART received net cash of $159,000 after the payment of various closing costs, including a real estate brokerage commission of $5,000 to Carmel Realty. A gain of $128,000 was recognized on the sale. In August 1999, the Partnership sold the 152 unit Country Place Apartments in Round Rock, Texas, for $6.0 million, receiving net cash of $1.3 million after the payment of various closing costs, including a real estate brokerage commission of $179,000 paid to Carmel Realty. The purchaser assumed the $4.3 million mortgage secured by the property. A gain of $3.3 million was recognized on the sale. Also in August 1999, the Partnership sold the 588 unit Lake Nora Apartments and the 336 unit Fox Club Apartments in Indianapolis, Indiana, to a single buyer for a total of $29.1 million. The Partnership received net cash of $2.7 million, after paying off $24.5 million in mortgage debt, including an $889,000 prepayment penalty, and the payment of various closing costs, including a real estate brokerage commission of $873,000 to Carmel Realty. A gain totaling $12.7 million was recognized on the sale. Further in August 1999, ART sold a 2.1 acre tract of its Keller land parcel for $185,000, receiving net cash of $91,000 after paying down by $90,000 the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $6,000 to Carmel Realty. A gain of $158,000 was recognized on the sale. In August 1999, ART sold its Sun City lots for $260,000, receiving net cash of $240,000 after the payment of various closing costs, including a real estate brokerage commission of $8,000 to Carmel Realty. A gain of $180,000 was recognized on the sale. Also in August 1999, ART sold a 121.2 acre tract of its Katrina land parcel for $6.6 million, receiving net cash of $5.5 million after the payment of various closing costs, including a real estate brokerage commission of $198,000 to Carmel Realty. A gain of $186,000 was recognized on the sale. In September 1999, the Partnership sold the 409 unit Oakhollow Apartments and the 408 unit Windridge Apartments in Austin, Texas, to a single buyer for a total of $35.5 million. The Partnership received net cash of $7.8 million after paying off $22.2 million in mortgage debt, including a $912,000 prepayment penalty and the payment of various closing costs, including a real estate brokerage commission of $1.1 million paid to Carmel Realty. In conjunction with the sale, the partnership provided $2.1 million in purchase money financing secured by limited partnership units in two limited partnerships owned by the buyer. The financing bears interest at 16.0% per annum, requires monthly payments of interest only at 6.0%, beginning in February 2000 and a $200,000 principal paydown in December 1999, and matures in August 2000. The Partnership has an option to obtain the buyer's general and limited partnership interests in full satisfaction of the financing. A gain of $24.2 million was recognized on the sale. Further in September 1999, ART sold a 13.6 acre tract of its Frisco Bridges land parcel for $2.6 million, receiving no net cash after paying down by $2.1 million the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $61,000 to Carmel Realty. A gain of $403,000 was recognized on the sale. 15 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) In September 1999, ART sold a 6.2 acre tract of its Plano Parkway land parcel for $900,000 receiving net cash of $208,000 after paying down by $650,000 the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $27,000 to Carmel Realty. A loss of $40,000 was recognized on the sale. Also in September 1999, ART sold four tracts totaling 185.6 acres of its Keller, Scout and Scoggins land parcels for $3.5 million, receiving net cash of $758,000 after paying down by $2.5 million the mortgage debt secured by such land parcels and the payment of various closing costs, including a real estate brokerage commission of $105,000 to Carmel Realty. A gain of $1.8 million was recognized on the sale. Further in September 1999, ART sold a 1.3 acre tract of its Vista Ridge land parcel for $715,000, receiving net cash of $665,000 after the payment of various closing costs, including a real estate brokerage commission of $21,000 to Carmel Realty. A gain of $538,000 was recognized on the sale. In November 1998, a newly-formed controlled partnership with ART as the Class B limited partner and a wholly-owned subsidiary of ART as the 1% Managing General Partner, purchased two apartments with a total of 423 units in Indianapolis, Indiana, for $7.2 million, paying $14,000 in cash, assuming $5.9 million in mortgage debt and issuing $1.3 million in Class A limited partner units. In June 1999, ART relinquished it's general and Class B limited partner interests. A provision for loss of $2.0 million was recognized. NOTE 5. INVESTMENT IN EQUITY INVESTEES Real estate entities. The Company's investment in equity investees at September 30, 1999, included equity securities of three publicly traded Real Estate Investment Trusts (collectively the "REITs"), Continental Mortgage and Equity Trust ("CMET"), Income Opportunity Realty Investors, Inc. ("IORI") and Transcontinental Realty Investors, Inc. ("TCI"), and interests in real estate joint ventures and partnerships. BCM, the Company's advisor, also serves as advisor to the REITs. The Company accounts for its investment in the REITs and the joint venture partnerships using the equity method. Substantially all of the equity securities of the REITs are pledged as collateral for borrowings. See NOTE 8. "MARGIN BORROWINGS." The Company's investment in real estate entities, accounted for using the equity method, at September 30, 1999, was as follows:
Percentage Carrying Equivalent of Value of Investee Market Value Ownership Investment Book Value of Investment at at at at September 30, September 30, September 30, September 30, Investee 1999 1999 1999 1999 - -------- ------------- ------------- ------------- ------------- CMET.................... 41.3% $16,108 $36,074 $24,488 IORI.................... 30.4 3,269 7,203 2,439 TCI..................... 31.4 13,680 32,145 14,851 ------- ------- 33,057 $41,778 ======= Other................... 7,608 ------- $40,665 =======
The difference between the carrying value of the Company's investment and the equivalent investee book value is being amortized over the life of the properties held by each investee. 16 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Management continues to believe that the market value of each of the REITs undervalues their assets and the Company may, therefore, continue to increase its ownership in these entities in 1999. Set forth below is summarized results of operations of equity investees for the nine months ended September 30, 1999: Revenues........................................................... $120,044 Equity in income of partnerships................................... 3,454 Property operating expenses........................................ 74,412 Depreciation....................................................... 16,818 Interest expense................................................... 38,928 -------- (Loss) before gains on sale of real estate......................... (6,660) Gains on sale of real estate....................................... 22,601 -------- Net income......................................................... $ 15,941 ========
The Company's share of equity investees' loss before gains on the sale of real estate was $2.2 million for the nine months ended September 30, 1999, and its share of equity investees' gains on sale of real estate was $7.5 million for the nine months ended September 30, 1999. The Company's cash flow from the REITs is dependent on the ability of each of them to make distributions. In the first nine months of 1999, distributions totaling $935,000 were received from the REITs. In the first nine months of 1999, ART purchased a total of $366,000 of equity securities of the REITs. NOTE 6. MARKETABLE EQUITY SECURITIES--TRADING PORTFOLIO Since 1994, the Company has been purchasing equity securities of entities other than those of the REITs and NRLP to diversify and increase the liquidity of its margin accounts. In the first nine months of 1999, the Company purchased $2.2 million and sold $2.5 million of such securities. These equity securities are considered a trading portfolio and are carried at market value. At September 30, 1999, the Company recognized an unrealized decrease in the market value of its trading portfolio securities of $1.8 million. Also in the first nine months of 1999, the Company realized a net gain of $130,000 from the sale of trading portfolio securities and received $4,000 in dividends. Unrealized and realized gains and losses on trading portfolio securities are included in other income in the accompanying Consolidated Statements of Operations. NOTE 7. NOTES PAYABLE In February 1999, the Partnership obtained mortgage financing secured by the unencumbered 124,200 sq. ft. Melrose Business Park in Oklahoma City, Oklahoma, in the amount of $900,000, receiving net cash of $870,000 after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $9,000 to BCM. The mortgage bears interest at a variable rate, currently 8.75% per annum, requires monthly payments of principal and interest of $8,000 and matures in February 2019. Also in February 1999, the Partnership obtained mortgage financing secured by the unencumbered 54,649 sq. ft. 56 Expressway Office Building in Oklahoma City, Oklahoma, in the amount of $1.7 million, receiving net cash of $1.7 million after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $17,000 to BCM. The mortgage bears interest at a variable rate, currently 8.75% per annum, requires monthly payments of principal and interest of $15,000 and matures in February 2019. 17 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) In March 1999, ART obtained second mortgage financing on its Frisco Bridges land parcel in the amount of $2.0 million. The mortgage bears interest at 12.5% per annum with interest and principal due at maturity in November 1999. Also in March 1999, the Las Colinas I term loan lender provided additional financing on ART's Stagliano, Dalho, Bonneau and Valley Ranch III land parcels in the amount of $2.2 million. The proceeds from this financing along with an additional $1.4 million in cash were used to pay off the $3.1 million in mortgage debt secured by such land parcels. A mortgage brokerage and equity refinancing fee of $22,000 was paid to BCM. At March 31, 1999, the mortgage debt secured by ART's McKinney I, II, III, IV, V and Dowdy land parcels in the amount of $15.2 million matured. ART and the lender reached an agreement to extend the mortgage's maturity to September 1999 in exchange for, among other things, ART's payment of an extension fee. In October 1999, ART refinanced its McKinney Corners land for a total of $8.6 million. The Las Colinas I term loan lender provided $4.1 million of mortgage financing secured by 283.3 acres of McKinney Corners land and a second lender provided $4.5 million of mortgage financing secured by 82.0 acres of the McKinney Corners land. The net financing proceeds and $6.6 million in cash were used to payoff the $15.2 million mortgage debt secured by such land parcels and the payment of various closing costs. The new $4.5 million mortgage bears interest at 14.0% per annum, requires monthly payments of interest only and matures in October 2000. In April 1999, ART refinanced the matured mortgage debt secured by its Yorktown land in the amount of $4.8 million, receiving net cash of $580,000 after paying off $4.0 million in mortgage debt and the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $48,000 to BCM. The mortgage bears interest at prime plus 4.5%, currently 12.75% per annum, requires monthly interest only payments, a principal payment of $368,000 in July 1999 and matures in April 2000. In May 1999, the Partnership obtained mortgage financing secured by the unencumbered 257 unit Pines Apartments in Little Rock, Arkansas, and by a $5.0 million note receivable secured by second liens on two parcels of land in Denton County and Tarrant County, Texas, in the amount of $4.0 million. The Partnership received net cash of $3.9 million after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $40,000 to BCM. The mortgage bears interest at 14.0% per annum, requires monthly payments of interest only and matures in May 2000. In September 1999, the Partnership refinanced the mortgage debt in the amount of $3.1 million. The Partnership used the net refinancing proceeds and cash of $1.1 million to pay off the $4.0 million of mortgage debt and the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $31,000 paid to BCM. The new mortgage bears interest at a variable rate, currently 8.3% per annum, requires monthly payments of principal and interest of $24,552 and matures in April 2001. Also in May 1999, the Las Colinas I term loan lender provided additional financing secured by ART's Plano Parkway land parcel in the amount of $2.0 million. The proceeds from this financing along with an additional $831,000 in cash were used to payoff the remaining $2.7 million in mortgage debt secured by such land parcel and the payment of various closing costs. In June 1999, the Partnership obtained mortgage financing secured by the unencumbered 100 unit Stonebridge Apartments in Florissant, Missouri, in the amount of $3.0 million. The Partnership received net cash of $2.9 million after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $30,000 to BCM. The mortgage bears interest at 8.33% per annum, requires monthly payments of principal and interest of $23,814 and matures in July 2002. In July 1999, the Partnership obtained mortgage financing secured by the unencumbered 76 unit Bridgestone Apartments in Friendswood, Texas, in the amount of $2.1 million. The Partnership received net cash of $2.0 18 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) million after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $21,000 to BCM. The mortgage bears interest at 7.72% per annum, requires monthly payments of principal and interest of $15,144 and matures in August 2009. In August 1999, the Partnership refinanced the mortgage debt secured by the 102 unit Whispering Pines Apartments in Canoga Park, California, in the amount of $3.5 million, receiving net cash of $1.1 million after paying off $2.2 million in mortgage debt, the funding of required escrows and the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $35,000 to BCM. The new mortgage bears interest at 7.84% per annum, requires monthly payments of principal and interest of $24,931 and matures in September 2009. Also in August 1999, ART received an additional $2.7 million from its Las Colinas I lender on a 56.0 acre tract of its Katrina land parcel. ART received net cash of $2.6 million after the payment of various closing costs. Further in August 1999, ART refinanced the mortgage debt secured by its Mason/Goodrich land in the amount of $4.1 million. ART received net cash of $710,000 after paying off $1.8 million in mortgage debt secured by such land parcel, paying down by $1.0 million its mortgage debt secured by its Frisco Bridges land parcel and the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $41,000 to BCM. The new mortgage bears interest at prime plus 4.5%, currently 12.75% per annum, requires monthly interest only payments and matures in August 2000. In September 1999, the Partnership obtained mortgage financing secured by the unencumbered 209 unit Blackhawk Apartments in Indianapolis, Indiana, in the amount of $4.1 million. The Partnership received net cash of $4.0 million, after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $41,000 to BCM. The mortgage bears interest at a variable rate, currently 8.38% per annum, requires monthly payments of principal and interest of $32,923 and matures in April 2001. Related Party. In 1998 and the first nine months of 1999, GCLP funded $94.7 million of a then $95.0 million loan commitment to ART. The loan is secured by: (1) second liens on an office building in Minnesota, three apartments in Mississippi and 130.54 acres of land in Texas, (2) by the stock of ART Holdings, Inc., a wholly-owned subsidiary of ART that owns 3,268,535 units of NRLP as of October 29, 1999 and (3) the stock of NMC. The loan bears interest at 12.0% per annum, requires monthly payments of interest only and matures in November 2003. In September 1999, the board of GCLP approved an increase in the loan commitment to $125.0 million. In February 1999, ART made a $999,000 paydown on the loan. In October 1999, GCLP funded an additional $5.5 million and received a paydown of $150,000. The loan balance is eliminated in consolidation. In December 1998, as required by the Cash Distribution Agreement, NMC, the general partner of the Partnership, assumed responsibility for repayment to the Partnership of the $12.2 million paid by the Partnership to the Moorman Litigation plaintiff class members and legal counsel. The loan bears interest at the 90 day LIBOR (London InterBank Offered Rate) plus 2.0% per annum, currently 7.3% per annum, adjusted every 90 days and requires annual payments of accrued interest plus principal payments of $500,000 in each of the first three years, $750,000 in each of the next three years, $1.0 million in each of the next three years, with payment in full of the remaining balance in the tenth year. The note is guaranteed by ART. The note matures upon the earlier of the liquidation or dissolution of the Partnership, NMC ceasing to be general partner or ten years from March 24, 1999, the date of the first cash distribution to the Moorman Litigation plaintiff class members. The loan balance is eliminated in consolidation. NOTE 8. MARGIN BORROWINGS The Company has margin arrangements with various brokerage firms which provide for borrowing of up to 50% of the market value of the Company's marketable equity securities. The borrowings under such margin 19 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) arrangements are secured by equity securities of the REITs, NRLP and the Company's trading portfolio and bear interest rates ranging from 7.0% to 11.0%. Margin borrowing totaled $36.5 million at September 30, 1999. In August 1996, the Company consolidated its then existing NRLP margin debt held by various brokerage firms into a single loan. At December 1998, the loan had a principal balance of $5.0 million. In February 1999, the loan was paid off. NOTE 9. INCOME TAXES Financial statement income varies from taxable income principally due to the accounting for income and losses of investees, gains and losses from asset sales, depreciation on owned properties, amortization of discounts on notes receivable and payable and the difference in the allowance for estimated losses. The Company had no taxable income or provision for income taxes in the nine months ended September 30, 1999, due to operating loss carryforwards. NOTE 10. OPERATING SEGMENTS Significant differences among the accounting policies of the Company's operating segments as compared to the Company's consolidated financial statements principally involve the calculation and allocation of general and administrative expenses. Management evaluates the performance of the operating segments and allocates resources to each of them based on their operating income and cash flow. A reconciliation of expenses that are not reflected in the segments is $12.6 million and $5.9 million of general and administrative expenses for the nine months ended September 30, 1999 and 1998, respectively. There are no intersegment revenues and expenses and the Partnership conducts all of its business within the United States. Presented below is the operating income of the reportable operating segments for the nine months ended September 30, and segment assets at September 30.
Commercial Pizza 1999 Properties Apartments Hotels Land Parlors Receivables Total ---- ---------- ---------- ------- -------- ------- ----------- -------- Operating revenue.......... $ 22,136 $ 74,727 $24,965 $ 297 $22,753 $ -- $144,878 Operating expenses......... 11,887 44,711 17,716 6,464 19,509 -- 100,287 Interest income............ -- -- -- -- -- 5,029 5,029 Interest expense--notes receivable................ -- -- -- -- -- 784 784 -------- -------- ------- -------- ------- ------- -------- Operating income (loss).... $ 10,249 $ 30,016 $ 7,249 $ (6,167) $ 3,244 $ 4,245 $ 48,836 ======== ======== ======= ======== ======= ======= ======== Depreciation/amortization.. $ 3,086 $ 7,558 $ 1,884 $ -- $ 968 $ -- $ 13,496 Interest on debt........... 7,404 24,427 3,582 17,640 695 -- 53,748 Capital expenditures....... 6,726 408 1,279 1,149 740 -- 10,302 Assets..................... 176,388 214,310 71,939 314,210 21,357 64,519 862,723 Property Sales: Apartments Hotels Land Total ---------- ------- -------- -------- Sales price................ $116,350 $25,000 $66,998 $208,348 Cost of sales.............. 54,338 17,122 49,581 121,041 -------- ------- -------- -------- Gain on sales.............. $ 62,012 $ 7,878 $17,417 $ 87,307 ======== ======= ======== ========
20 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Commercial Pizza 1998 Properties Apartments Hotels Land Parlors Receivables Total ---- ---------- ---------- -------- -------- ------- ----------- -------- Operating revenue.......... $12,042 $ 7,930 $ 24,541 $ 585 $21,344 $ -- $ 66,442 Operating expenses......... 7,097 4,847 18,114 4,134 18,329 -- 52,521 Interest income............ -- -- -- -- -- 169 169 Interest expense--notes receivable................ -- -- -- -- -- -- -- ------- ------- -------- -------- ------- ----- -------- Operating income (loss).... $ 4,945 $ 3,083 $ 6,427 $ (3,549) $ 3,015 $ 169 $ 14,090 ======= ======= ======== ======== ======= ===== ======== Depreciation/amortization.. $ 1,148 $ 1,198 $ 1,597 $ -- $ 740 $ -- $ 4,683 Interest on debt........... 2,568 3,099 3,571 14,016 341 -- 23,595 Capital expenditures....... 5,985 -- 1,142 141 787 -- 8,055 Assets..................... 35,085 69,908 111,148 255,836 22,421 298 494,696 Land Total -------- -------- Sales price................ $ 47,343 $ 47,343 Cost of sales.............. 32,651 32,651 -------- -------- Gain on sale............... $ 14,692 $ 14,692 ======== ========
NOTE 11. COMMITMENTS AND CONTINGENCIES In 1996, ART was admitted to the Valley Ranch, L.P. partnership as general partner and Class B limited partner. The existing general and limited partners converted their general and limited partner interests into 8,000,000 Class A limited partner units. The units are exchangeable into shares of the Company's Series E Cumulative Convertible Preferred Stock at the rate of 100 Class A units for each share of Series E Preferred Stock. In February 1999, the Class A limited partner notified the Company that it intended to convert 100,000 Class A units into 1,000 shares of Series E Preferred Stock. In March 1999, ART purchased the 100,000 Class A units for $100,000. ART subsequently reached an agreement with the other Class A limited partners to acquire the remaining 7,900,000 Class A units for $1.00 per unit. In April 1999, 900,000 units were purchased and an additional 1.0 million units were purchased in July 1999, and 1.0 million units were purchased in October 1999, with 1.0 million units to be purchased in January 2000 and 2.0 million units in May 2001 and May 2002. Litigation. The Company is involved in various lawsuits arising in the ordinary course of business. In the opinion management, the outcome of these lawsuits will not have a material impact on the Company's financial condition, results of operations or liquidity. NOTE 12. SUBSEQUENT EVENTS In October 1999, the Partnership sold the 838 unit Tanglewood Apartments in Arlington Heights, Illinois, for $41.0 million. The Partnership received net cash of $8.4 million, after paying off $28.9 million in mortgage debt, including a $1.2 million prepayment penalty, and the payment of various closing costs, including a real estate brokerage commission of $1.1 million to Triad Realty, Inc. ("Triad"), an affiliate of BCM, the Company's advisor. A gain will be recognized on the sale. Also in October 1999, the Partnership collected in full a mortgage note receivable with a principal balance of $740,000. Further in October 1999, GCLP funded a $4.7 million loan to Realty Advisors, Inc., the corporate parent of BCM. The loan is secured by a pledge of 100% of Realty Advisors, Inc.'s interest in American Reserve Life 21 AMERICAN REALTY TRUST, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Insurance Company. The loan bears interest at a variable rate, currently 10.25% per annum and matures in November 2001. All principal and interest are due at maturity. In October 1999, ART sold the 140 unit Edgewater Gardens Apartments in Biloxi, Mississippi, for $5.7 million. ART received net cash of $2.7 million, after paying off $2.9 million in mortgage debt and the payment of various closing costs, including a real estate brokerage commission of $171,000 to Triad. A gain will be recognized on the sale. Also in October 1999, ART sold a 12.4 acre tract of its Frisco Bridges land parcel for $2.0 million. The proceeds from the sale of $1.1 million plus an additional $800,000 in cash were used to paydown by $1.9 million the mortgage debt secured by such land parcel and the payment of various closing costs, including a real estate brokerage commission of $61,000 to Triad. ART also provided purchase money financing of $813,000. The purchase money financing bears interest at 7.0% per annum, and matures in January 2000. All principal and interest are due at maturity. A gain will be recognized on the sale. Further in October 1999, ART obtained a construction loan of $7.2 million on Two Hickory Centre, a 96,126 sq. ft. office building under construction in Farmers Branch, Texas. ART received net cash of $1.9 million after the payment of various closing costs, including a mortgage brokerage and equity refinancing fee of $72,000 to BCM. In October 1999, ART received an additional funding of $2.0 million under the terms of the mortgage loan secured by the Williamsburg Hospitality House. 22 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Introduction ART was organized in 1961 to provide investors with a professionally managed, diversified portfolio of equity real estate and mortgage loan investments selected to provided opportunities for capital appreciation as well as current income. Liquidity and Capital Resources General. Cash and cash equivalents at September 30, 1999 totaled $1.8 million, compared with $11.5 million at December 31, 1998. Although ART anticipates that during the remainder of 1999 it will generate excess cash flow from property operations, as discussed below, such excess cash is not sufficient to discharge all of ART's debt obligations as they mature. ART will therefore continue to rely on externally generated funds, including borrowings against its investments in various real estate entities, the sale or refinancing of properties and, to the extent available or necessary, borrowings from its advisor and affiliates, which totaled $12.4 million at September 30, 1999, to meet its debt service obligations, pay taxes, interest and other non-property related expenses. At December 31, 1998, notes payable totaling $164.2 million had either scheduled maturities or required principal reduction payments during 1999. During the first nine months of 1999, ART either extended, refinanced, paid down, paid off or received commitments from lenders to extend or refinance $155.6 million of the debt scheduled to mature in 1999. Net cash used in operating activities increased to $30.9 million in the nine months ended September 30, 1999, from $11.8 million in the nine months ended September 30, 1998. Fluctuations in the components of cash flow used in operating activities are discussed in the following paragraphs. Net cash from pizza operations (sales less cost of sales) in the nine months ended September 30, 1999, increased to $3.4 million from $1.2 million in 1998. The increase was due to the benefits of a more aggressive marketing and advertising strategy. Net cash from property operations (rents collected less payments for expenses applicable to rental income) increased to $27.1 million in the nine months ended September 30, 1999, from $13.0 million in 1998. The increase was primarily attributable to the 36 apartments purchased by ART in 1998 and the consolidation of the Partnership effective January 1, 1999. See NOTE 2. "SYNTEK ASSET MANAGEMENT, L.P." The Company expects an increase in cash flow from property operations during the remainder of 1999. Such increase is expected to be derived from a full year of operations of the 36 apartments acquired by ART during 1998 and the consolidation of the Partnership effective January 1, 1999. ART is also expecting substantial land sales and selected property sales to generate additional cash. Interest collected increased to $3.7 million in the nine months ended September 30, 1999, from $381,000 in 1998. The increase was attributable to loans funded by the Partnership in 1998 and 1999. Interest paid increased to $54.8 million in the nine months ended September 30, 1999, from $23.9 million in 1998. The increase was primarily due to debt incurred or assumed relating to 16 land parcels and 36 apartments purchased by ART in 1998, six land parcels and an office building in 1999 and the consolidation of the Partnership's operations effective January 1, 1999. Advisory fee paid increased to $4.0 million in the nine months ended September 30, 1999, from $2.8 million in 1998. The increase was due to an increase in ART's gross assets, the basis for such fee. 23 General and administrative expenses paid increased to $12.7 million in the nine months ended September 30, 1999, from $5.9 million in 1998. The increase was primarily attributable to the consolidation of the Partnership's operations effective January 1, 1999. Distributions from equity investees decreased to $935,000 in the nine months ended September 30, 1999, from $9.2 million in 1998. Included in 1998 distributions were special distributions totaling $6.1 million from TCI and the Partnership that had been accrued at December 31, 1997. Other cash from operating activities increased to $5.5 million in the nine months ended September 30, 1999, from a use of $3.1 million in 1998. The increase was due to a decrease in property prepaids, other miscellaneous property receivables and property escrows. Real Estate. In January 1999, GCLP sold the 199 unit Olde Town Apartments in Middleton, Ohio, for $4.6 million, receiving net cash of $4.4 million after the payment of various closing costs. In February 1999, ART purchased Frisco Bridges land, a 336.8 acre parcel of unimproved land in Collin County, Texas, for $46.8 million, paying $7.8 million in cash and obtained mortgage and seller financing totaling $39.0 million. Also in February 1999, ART sold a 4.6 acre tract of its Plano Parkway land parcel for $1.2 million, receiving net cash of $1.1 million after the payment of various closing costs. Simultaneously with the sale, the mortgage debt secured by such land parcel was refinanced in the amount of $7.1 million. The net cash from the sale and refinancing along with an additional $921,000 in cash was used to payoff the $8.9 million seller financing secured by the land parcel. Further in February 1999, GCLP sold the 225 unit Santa Fe Apartments in Kansas City, Missouri, for $4.6 million, receiving net cash of $4.3 million after the payment of various closing costs. In February 1999, GCLP sold the 480 unit Mesa Ridge Apartments in Mesa, Arizona, for $19.5 million, receiving net cash of $793,000 after the payment of various closing costs and remitting $17.8 million to the lender to hold in escrow pending collateral substitution. In May 1999, the 259 unit Bavarian Woods Apartments and the 149,855 sq. ft. Westwood Shopping Center were approved as substitute collateral. GCLP received net cash of $7.8 million after paying off $7.2 million in mortgage debt secured by the Bavarian Woods Apartments and Westwood Shopping Center, funding required escrows and closing costs on the two properties, and paying off $2.2 million on the Mesa Ridge debt, including a $133,000 prepayment penalty. In March 1999, ART sold a 13.0 acre tract of its Rasor land parcel for $1.6 million, receiving no net cash after paying down by $1.5 million the mortgage debt secured by such land parcel and the payment of various closing costs. Also in March 1999, ART sold two tracts totaling 9.9 acres of its Mason/ Goodrich land parcel for $956,000, receiving net cash of $33,000 after paying down by $860,000 the mortgage debt secured by such land parcel and the payment of various closing costs. Further in March 1999, ART sold in a single transaction, a 13.7 acre tract of its McKinney II land parcel and a 20.0 acre tract of its McKinney IV land parcel for a total of $7.7 million, receiving no net cash after paying down by $5.5 million the mortgage debt secured by such land parcels, the funding of required escrows and the payment of various closing costs. In April 1999, GCLP sold the 166 unit Horizon East Apartments in Dallas, Texas, for $4.0 million, receiving net cash of $1.2 million after paying off $2.6 million in mortgage debt and the payment of various closing costs. Also in April 1999, GCLP sold the 120 unit Lantern Ridge Apartments in Richmond, Virginia, for $3.4 million, receiving net cash of $880,000 after the payment of various closing costs. 24 In May 1999, ART sold a 15.0 acre tract of its Vista Ridge land parcel for $2.6 million, receiving net cash of $552,000 after paying down by $1.8 million the mortgage debt secured by such land parcel and the payment of various closing costs. Also in May 1999, ART purchased Rowlett Creek land, a 80.4 acre parcel of unimproved land in Collin County, Texas, for $1.6 million. ART paid $400,000 in cash and obtained seller financing of the remaining $1.2 million of the purchase price. Further in May 1999, ART purchased Leone land, a 8.2 acre parcel of unimproved land in Irving, Texas, for $1.5 million. ART paid $300,000 in cash and obtained seller financing of the remaining $1.2 million of the purchase price. In May 1999, a newly-formed controlled partnership in which a wholly-owned subsidiary of ART is the 1.0% managing general partner and ART is the 99% Class B limited partner purchased the 177,211 sq. ft. Encino Executive Plaza in Los Angeles, California, for $40.1 million. The partnership paid $2.8 million in cash, assumed $34.6 million in mortgage debt, obtained $1.1 million in seller financing and issued 1.6 million Class A limited partner units. Also in May 1999, ART sold two tracts of its Plano Parkway land parcel totaling 24.5 acres for $4.9 million. ART received no net cash after paying down by $4.7 million the mortgage debt secured by such land parcel and the payment of various closing costs. Further in May 1999, ART acquired the remaining joint venture interest in its 3.6 acre Atlanta land parcel for $1.3 million in cash. Subsequently, ART exchanged the Atlanta land parcel for 147.4 acres of land in Nashville, Tennessee and $1.3 million in cash. In May 1999, the Partnership purchased the 27,000 sq. ft. Cooley Office Building in Farmers Branch, Texas, for $3.5 million, paying $1.5 million in cash and obtaining mortgage financing of $2.0 million. In June 1999, ART sold two tracts of its Frisco Bridges land parcel totaling 77.6 acres for $16.9 million. ART received net cash of $2.7 million after paying off $2.0 million in mortgage debt secured by such land parcel, paying down by $11.0 million another mortgage secured by such land parcel and the payment of various closing costs. Also in June 1999, ART sold a 6.0 acre tract of its Plano Parkway land parcel for $1.6 million. ART received no net cash after paying down by $1.6 million the mortgage debt secured by such land parcel and the payment of various closing costs. Further in June 1999, ART sold its Continental Hotel for $25.0 million, receiving a nonrefundable deposit of $5.0 million and providing short term financing of $20.0 million. In the third quarter of 1999, ART received $1.5 million in principal payments. In June 1999, ART purchased Vineyards II land, a 18.6 acre parcel of unimproved land in Tarrant County, Texas, for $6.3 million. ART paid $2.3 million in cash and obtained seller financing of the remaining $4.0 million of the purchase price. Also in June 1999, the Partnership purchased the Lake Houston land, a 33.58 acre parcel of unimproved land in Harris County, Texas, for $2.5 million in cash. A construction loan in the amount of $13.7 million was obtained enabling development of a 312 unit apartment complex on the site. Construction costs are expected to approximate $16.7 million. Construction was begun in July 1999 and completion is expected in the third quarter of 2000. Further in June 1999, GCLP sold the 368 unit Barcelona Apartments in Tampa, Florida, for $9.8 million, receiving net cash of $2.2 million after paying off $7.0 million in mortgage debt and the payment of various closing costs. 25 In July 1999, the Stone Meadows land, a 13.5 acre parcel of unimproved land in Harris County, Texas, was purchased by the Partnership from ART at the land's carrying value of $2.2 million. The Partnership paid $1.3 million in cash and assumed $974,000 in mortgage debt. The mortgage debt was paid in full at maturity in October 1999. Also in July 1999, ART sold a .13 acre tract of its JHL Connell land parcel for $53,000. ART received no net cash after paying down by $49,000 the mortgage debt secured by such land parcel and the payment of various closing costs. Further in July 1999, ART sold two tracts totaling 11.8 acres of its Plano Parkway land parcel for $3.8 million. ART received net cash of $1.7 million after paying down by $2.0 million the mortgage debt secured by such land parcel and the payment of various closing costs. In July 1999, ART sold two tracts totaling 6.7 acres of its Vista Ridge land parcel for $1.4 million. ART received net cash of $329,000 after paying down by $975,000 the mortgage debt secured by such land parcel and the payment of various closing costs. Also in July 1999, ART purchased Monterey land, a 85.0 acre parcel of unimproved land in Riverside County, California, for $5.6 million. ART paid $1.1 million in cash and obtained seller financing for the remaining $4.5 million of the purchase price. Further in July 1999, ART purchased Wakefield land, a 70.0 acre parcel of unimproved land in Allen, Texas, for $1.3 million. ART paid $688,000 in cash and obtained seller financing of the remaining $612,000 of the purchase price. In July 1999, ART sold a 1.4 acre tract of its Valley Ranch land parcel for $163,000. ART received net cash of $159,000 after the payment of various closing costs. In August 1999, the Partnership sold the 152 unit Country Place Apartments in Round Rock, Texas, for $6.0 million, receiving net cash of $1.3 million after the payment of various closing costs. The purchaser assumed the $4.3 million mortgage secured by the property. Also in August 1999, the Partnership sold the 588 unit Lake Nora Apartments and the 336 unit Fox Club Apartments in Indianapolis, Indiana, to a single buyer for $29.1 million. The Partnership received net cash of $2.7 million after paying off $24.5 million in mortgage debt, including an $889,000 prepayment penalty and the payment of various closing costs. Further in August 1999, ART sold a 2.1 acre tract of its Keller land parcel for $185,000, receiving net cash of $91,000 after paying down by $90,000 the mortgage debt secured by such land parcel and the payment of various closing costs. In August 1999, ART sold its Sun City lots for $260,000, receiving net cash of $240,000 after the payment of various closing costs. Also in August 1999, ART sold a 121.2 acre tract of its Katrina land parcel for $6.6 million, receiving net cash of $5.5 million after the payment of various closing costs. In September 1999, the Partnership sold the 409 unit Oakhollow Apartments and the 408 unit Windridge Apartments in Austin, Texas, to a single buyer for a total of $35.5 million. The Partnership received net cash of $7.8 million after paying off $22.2 million in mortgage debt, including a $912,000 prepayment penalty and the payment of various closing costs. In conjunction with the sale, the partnership provided $2.1 million in purchase money financing secured by limited partnership units in two limited partnerships owned by the buyer. Further in September 1999, ART sold a 13.6 acre tract of its Frisco Bridges land parcel for $2.6 million, receiving no net cash after paying down by $2.1 million the mortgage debt secured by such land parcel and the payment of various closing costs. 26 In September 1999, ART sold a 6.2 acre tract of its Plano Parkway land parcel for $900,000 receiving net cash of $208,000 after paying down by $650,000 the mortgage debt secured by such land parcel and the payment of various closing costs. Also in September 1999, ART sold four tracts totaling 185.6 acres of its Keller, Scout and Scoggins land parcels for $3.5 million, receiving net cash of $758,000 after paying down by $2.5 million the mortgage debt secured by such land parcels and the payment of various closing costs. Further in September 1999, ART sold a 1.3 acre tract of its Vista Ridge land parcel for $715,000, receiving net cash of $665,000 after the payment of various closing costs. In October 1999, the Partnership sold the 838 unit Tanglewood Apartments in Arlington Heights, Illinois, for $41.0 million. The Partnership received net cash of $8.4 million, after paying off $28.9 million in mortgage debt, including a $1.2 million prepayment penalty, and the payment of various closing costs. In October 1999, ART sold the 140 unit Edgewater Gardens Apartments in Biloxi, Mississippi, for $5.7 million. ART received net cash of $2.7 million, after paying off $2.9 million in mortgage debt and the payment of various closing costs. Also in October 1999, ART sold a 12.4 acre tract of its Frisco Bridges land parcel for $2.0 million. The proceeds from the sale of $1.1 million plus an additional $800,000 in cash were used to paydown by $1.9 million the mortgage debt secured by such land parcel and the payment of various closing costs. ART also provided purchase money financing of $813,000. Notes Receivable. Principal payments were received totaling $40.0 million in the nine months ended September 30, 1999. In February 1999, GCLP funded a $5.0 million unsecured loan to Davister Corp., which at September 30, 1999, owned approximately 15.8% of the outstanding shares of the Company's Common Stock. The loan is guaranteed by BCM, the Company's advisor. In August 1998, the Partnership funded a $6.0 million loan to Centura Holdings, L.L.C., a subsidiary of Centura Tower, Ltd. The loan is secured by 6.4 acres of land in Farmers Branch, Texas. In February 1999, the Partnership funded an additional $37,500. Also in August 1998, the Partnership funded a $3.7 million loan to JNC. The loan was secured by a contract to purchase 387 acres of land in Collin County, Texas, and the personal guaranty of JNC's principal partner. In January 1999, ART purchased the contract from JNC and acquired the land. In connection with purchase, GCLP funded $6.0 million on a then $95.0 million loan commitment to ART. A portion of the funds were used to payoff the $3.7 million JNC note to the Partnership, including accrued but unpaid interest, paydown $1.3 million on the JNC line of credit and paydown $820,000 on the JNC Frisco Panther Partners, Ltd. loan. In 1997 and 1998, the Partnership funded a $3.8 million loan to Stratford & Graham Developers, L.L.C. The loan is secured by 1,485 acres of unimproved land in Riverside County, California. In the first nine months of 1999, the Partnership funded an additional $316,000, increasing the loan balance to $4.1 million. Also in 1998 and 1999, the Partnership funded a $5.0 million loan commitment to JNC. The loan is secured by a second lien on 1,791 acres of land in Denton County, Texas, and a second lien on 220 acres of land in Tarrant County, Texas. In January 1999, the Partnership received a $1.3 million paydown on the loan. During 1998 and 1999, the Partnership funded a total of $31.0 million of a $52.5 million loan commitment to Centura. The loan was secured by 2.2 acres of land and an office building under construction in Farmers Branch, Texas. In August 1999, $24.1 million of the note and accrued but unpaid interest was converted to a partnership interest. 27 In 1999, ART funded $1.7 million of a $2.0 million loan commitment to Lordstown, L.P. The loan is secured by a second lien on land in Ohio and Florida, by 100% of the general and limited partner interest in Partners Capital, Ltd. and a profits interest in subsequent land sales. Also in 1999, ART funded $1.5 million of a $2.4 million loan commitment to 261, L.P. The loan is secured by 100% of the general and limited partner interest in Partners Capital, Ltd. and a profits interest in subsequent land sales. During 1998 and through August 1999, the Partnership funded a total of $2.1 million of a $2.2 million loan commitment to Varner Road Partners, L.L.C. The loan is secured by 129.77 acres of land in Riverside County, California, and a pledge of the stock of the borrower. In 1997, 1998 and 1999, the Partnership funded $1.8 million of a $2.1 million loan commitment to Bordeaux. The loan is secured by (1) a 100% interest in Bordeaux, which owns a shopping center in Oklahoma City, Oklahoma; (2) 100% of the stock of Bordeaux Investments One, Inc., which owns approximately 6.5 acres of undeveloped land in Oklahoma City, Oklahoma; and (3) the personal guarantees of the Bordeaux partners. In October 1999, the Partnership received a paydown of $724,000. In July 1999, the Partnership received a total of $2.5 million on the collection of two mortgage notes receivable, including accrued but unpaid interest. In August and September 1999, the Partnership received a total of $3.3 million in paydowns on a mortgage note receivable and funded a $2.6 million mortgage loan. Also in October 1999, the Partnership collected in full a mortgage note receivable with a principal balance of $740,000. Further in October 1999, GCLP funded a $4.7 million loan to Realty Advisors, Inc., the corporate parent of BCM. The loan is secured by a pledge of the stock of an insurance subsidiary. Notes Payable. In February 1999, the Partnership obtained mortgage financing secured by the unencumbered 54,649 sq. ft. 56 Expressway Office Building in Oklahoma City, Oklahoma, in the amount of $1.7 million. The Partnership received net cash of $1.7 million after the payment of various closing costs. Also in February 1999, the Partnership obtained mortgage financing secured by the unencumbered 124,200 sq. ft. Melrose Business Park in Oklahoma City, Oklahoma, in the amount of $900,000. The Partnership received net cash of $870,000 after the payment of various closing costs. In March 1999, ART obtained a second mortgage financing on its Frisco Bridges land in the amount of $2.0 million. Also in March 1999, the Las Colinas I term loan lender provided additional financing on ART's Stagliano, Dalho, Bonneau and Valley Ranch III land parcels in the amount of $2.2 million. The proceeds from this financing along with an additional $1.4 million in cash were used to pay off the $3.1 million in mortgage debt secured by such land parcels. In April 1999, ART refinanced the matured mortgage debt secured by its Yorktown land in the amount of $4.8 million, receiving net cash of $580,000 after paying off $4.0 million in mortgage debt and the payment of various closing costs. In May 1999, the Partnership obtained mortgage financing secured by the unencumbered 257 unit Pines Apartments in Little Rock, Arkansas, and by a $5.0 million note receivable secured by second liens on two parcels of land in Denton County and Tarrant County, Texas in the amount of $4.0 million. The Partnership received net cash of $3.9 million after the payment of various closing costs. In September 1999, the mortgage debt was refinanced in the amount of $3.1 million. The refinancing proceeds and cash of $1.1 million was used to payoff the $4.0 million of mortgage debt and the payment of various closing costs. 28 Also in May 1999, the Las Colinas I term loan lender provided additional financing secured by ART's Plano Parkway land parcel in the amount of $2.0 million. The proceeds from this financing along with an additional $831,000 in cash were used to payoff the remaining $2.7 million in mortgage debt secured by such land parcel and the payment of various closing costs. In June 1999, the Partnership obtained mortgage financing secured by the unencumbered 100 unit Stonebridge Apartments in Florissant, Missouri, in the amount of $3.0 million. The Partnership received net cash of $2.9 million after the payment of various closing costs. In July 1999, the Partnership obtained mortgage financing secured by the unencumbered 76 unit Bridgestone Apartments in Friendswood, Texas, in the amount of $2.1 million. The Partnership received net cash of $2.0 million after the payment of various closing costs. In August 1999, the Partnership refinanced the mortgage debt secured by the 102 unit Whispering Pines Apartments in Canoga Park, California, in the amount of $3.5 million. The Partnership received net cash of $1.1 million after paying off $2.2 million in mortgage debt, the funding of required escrows and the payments of various closing costs. Also in August 1999, ART received an additional $2.7 million from its Las Colinas I lender on a 56.0 acre tract of its Katrina land parcel. ART received net cash of $2.6 million after the payment of various closing costs. Further in August 1999, ART refinanced the mortgage debt secured by its Mason/Goodrich land in the amount of $4.1 million. ART received net cash of $710,000 after paying off $1.8 million in mortgage debt secured by such land parcel, paying down by $1.0 million its mortgage debt secured by its Frisco Bridges land parcel and the payment of various closing costs. In September 1999, the Partnership obtained mortgage financing secured by the unencumbered 209 unit Blackhawk Apartments in Indianapolis, Indiana, in the amount of $4.1 million. The Partnership received net cash of $4.0 million after the payment of various closing costs. In October 1999, ART obtained a construction loan of $7.2 million on Two Hickory Centre, a 96,126 sq. ft. office building under construction in Farmers Branch, Texas. ART received net cash of $1.9 million after the payment of various closing costs. At March 31, 1999, the mortgage debt secured by ART's McKinney I, II, III, IV, V and Dowdy land in the amount of $15.2 million matured. ART and the lender reached an agreement to extend the mortgage's maturity to September 1999, in exchange for, among other things, ART's payment of an extension fee. In October 1999, ART refinanced its McKinney Corners land for a total of $8.6 million. The Las Colinas I term loan lender provided $4.1 million and a second lender provided $4.5 million. The net financing proceeds and $6.6 million in cash were used to payoff the existing $15.2 million mortgage debt secured by such land parcels and the payment of various closing costs. Equity Investments. During the fourth quarter of 1988, ART began purchasing shares of REITs that have the same advisor as the Company. It is anticipated that additional equity securities of the REITs will be acquired in the future through open--market and negotiated transactions to the extent that ART's liquidity permits. Equity securities of the REITs and NRLP held by the Company may be deemed to be "restricted securities" under Rule 144 of the Securities Act of 1933 ("Securities Act"). Accordingly, the Company 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 the Company's ability to realize the full fair market value of such investments if it attempted to dispose of such securities in a short period of time. 29 The Company's cash flow from its REIT investments is dependent on the ability of each of the entities to make distributions. The Company received distributions totaling $935,000 in the nine months ended September 30, 1999, from the REITs. The Company has margin arrangements with various brokerage firms which provide for borrowing up to 50% of the market value of the Company's marketable equity securities. The borrowings under such margin arrangements are secured by equity securities of the REITs, NRLP and the Company's trading portfolio and bear interest rates ranging from 7.0% to 11.0%. Margin borrowing totaled $36.5 million at September 30, 1999. ART expects that it will be necessary for it to sell $50.1 million, $16.8 million of its land holdings during each of the next two years to satisfy the debt on such land as it matures. If ART is unable to sell at least the minimum amount of land to satisfy the debt obligations on such land as it matures, or, if it was not able to extend such debt, would either sell other of its assets to pay such debt or return the property to the lender. Management reviews the carrying values of the Company's properties and mortgage note receivables 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. In those instances where impairment is found to exist, a provision for loss is recorded by a charge against earnings. The Company's mortgage note receivable review includes an evaluation of the collateral property securing such note. The property review generally includes selective property inspections, a review of the property's current rents compared to market rents, a review of the property's expenses, a review of maintenance requirements, a review of the property's cash flow, discussions with the manager of the property and a review of properties in the surrounding area. Commitments and Contingencies In 1996, ART was admitted to the Valley Ranch, L.P. partnership as general partner and Class B Limited Partner. The existing general and limited partners converted their general and limited partner interest into 8,000,000 Class A units. In March 1999, ART purchased the 100,000 Class A units for $100,000. ART subsequently reached agreement with the Class A unitholders to acquire the remaining 7,900,000 Class A units for $1.00 per unit. In April 1999, 900,000 units were purchased and 1.0 million units were purchased in July 1999 and 1.0 million units were purchased in October 1999 , with 1.0 million units to be purchased in January 2000 and 2.0 million units in May 2001 and May 2002. Results of Operations For the three and nine months ended September 30, 1999, the Company reported net income of $10.1 million and $1.9 million, compared to net loss of $3.6 million and net income of $2.1 million for the three and nine months ended September 30, 1998. The primary factors contributing to the Company's results are discussed in the following paragraphs. Pizza parlor sales and cost of sales were $7.8 million and $6.7 million, respectively for the three months ended September 30, 1999, compared to $7.3 million and $6.3 million in 1998. Sales and cost of sales were $22.8 million and $19.5 million for the nine months ended September 30, 1999, compared to $21.3 million and $18.3 million in 1998. The increased sales were primarily attributable to the effects of a more aggressive marketing and advertising strategy, offset by an increase in cost of sales attributable to record high cheese prices in January 1999. Cheese prices returned to more historic levels in February 1999, but began escalating again late in the second quarter of 1999 and reached record highs again in September 1999. In October 1999, cheese prices began to decline and have continued to do so. 30 Rents increased to $40.2 million and $122.1 million in the three and nine months ended September 30, 1999, from $15.5 million and $45.1 million in 1998. Rents from commercial properties increased to $22.1 million for nine months ended September 30, 1999, from $12.0 million in 1998. Rents from hotels of $25.0 million in the nine months ended September 30, 1999, approximated the $24.5 million in 1998. Rents from apartments increased to $74.7 million in the nine months ended September 30, 1999, from $7.9 million in 1998. The increase in commercial property rents was primarily attributable to the consolidation of the Partnership's operations effective January 1, 1999, and the increase in apartment rent was due to the 36 apartments acquired by ART in 1998 and the consolidation of the Partnership's operations effective January 1, 1999. Rental income is expected to increase significantly in 1999 as a result of the consolidation of the Partnership's operations. See NOTE 2. "SYNTEK ASSET MANAGEMENT, L.P." Property operations expense increased to $27.4 million and $80.8 million in the three and nine months ended September 30, 1999, from $12.0 million and $34.2 million in 1998. Property operations expense for commercial properties increased to $11.9 million in the nine months ended September 30, 1999, from $7.1 million in 1998. Hotel property operations expense of $17.7 million in the nine months ended September 30, 1999 approximated the $18.1 million in 1998. Land property operations expense increased to $6.5 million in the nine months ended September 30, 1999 from $4.1 million in 1998. Apartments property operations expense increased to $44.7 million in the nine months ended September 30, 1999, from $4.8 million in 1998. The increase in commercial property operations expense was primarily due to the consolidation of the Partnerships operations effective January 1, 1999. The increase for land was primarily due to the 16 land parcels acquired by ART in 1998 and six land parcels in 1999. The increase for apartments property operations expense was due to the 36 apartments acquired by ART in 1998 and the consolidation of the Partnership's operations effective January 1, 1999. Property operations expense is expected to increase significantly in the remainder of 1999 as a result of the consolidation of the Partnership's operations. Interest income from mortgage notes receivable increased to $1.3 million and $5.0 million in the three and nine months ended September 30, 1999 from $15,000 and $169,000 in 1998. The increase is attributable to loans funded by the Partnership in 1998. Interest income is expected to increase significantly in the remainder of 1999 as a result of the consolidation of the Partnership's operations. Other income was income of $300,000 in the three months ended September 30, 1999 and a loss of $740,000 in the nine months ended September 30, 1999 compared to income of $486,000 and a loss of $454,000 in 1998. An unrealized increase in market value of trading portfolio securities of $33,000 and a decrease of $1.8 million was recognized in the three and nine months ended September 30, 1999, compared to income of $1.1 million and a loss of $2.6 million in 1998. See NOTE 6. "MARKETABLE EQUITY SECURITIES--TRADING PORTFOLIO." Interest expense increased to $23.0 million and $68.5 million in the three and nine months ended September 30, 1999, from $12.4 million and $35.7 million in 1998. Of the increases, $7.3 million and $21.4 million was attributable to the consolidation of the Partnership's operations effective January 1, 1999, $3.3 million and $4.8 million was due to 16 parcels of land acquired by ART in 1998 and, $3.4 million was due to the six land parcels acquired by ART in 1999, and for the nine months ended September 30, 1999, $3.9 million was due to the 36 apartments acquired by ART in 1998. In the remainder of 1999 interest expense is expected to continue to rise due to the 36 apartments acquired in 1998 and the consolidation of the Partnership's operations. Depreciation expense increased to $4.5 million and $13.5 million in the three and nine months ended September 30, 1999, from $1.5 million and $4.7 million in 1998. The increases were attributable to the consolidation of the Partnership's operations effective January 1, 1999, and the acquisition by ART of 36 apartments in 1998. See NOTE 2. "SYNTEK ASSET MANAGEMENT, L.P." Advisory fees increased to $1.5 million and $4.0 million in the three and nine months ended September 30, 1999, from $1.1 million and $2.8 million in 1998. The increases were attributable to an increase in ART's gross assets, the basis for such fee. Such fee is expected to increase as ART's gross assets increase. 31 General and administrative expenses increased to $3.8 million and $12.7 million in the three and nine months ended September 30, 1999, from $1.7 million and $5.9 million in 1998. The increases were primarily attributable to the consolidation of the Partnership's operations effective January 1, 1999. In the three and nine months ended September 30, 1999, a provision for loss of $2.1 million was recognized. Such loss relates to the June 1999 relinquishment by ART of its general and Class B limited partner interests in a controlled partnership that owned two apartments in Indianapolis, Indiana. There was no provision for loss in 1998. See NOTE 4. "REAL ESTATE." In the third quarter of 1998 a provision for loss of $3.0 million was recognized to writedown ART's Valley Ranch land to its estimated realizable value less estimated costs of sale. Such writedown was necessitated by an increase in the acreage designated as flood plain. Minority interest increased to $23.1 million and $38.6 million in the three and nine months ended September 30, 1999, from $658,000 and $1.6 million in 1998. The increase was attributable to the consolidation of the Partnership. See NOTE 2. "SYNTEK ASSET MANAGEMENT, L.P." Equity in income of investees decreased to $1.9 million and $5.3 million in the three and nine months ended September 30, 1999 from $6.1 million and $27.4 million in 1998. The decreases in equity income were attributable to the consolidation of the Partnership. See NOTE 2. "SYNTEK ASSET MANAGEMENT, L.P." In the nine months ended September 30, 1999, gains on sale of real estate of $86.1 million were recognized. In January 1999, a gain of $2.2 million was recognized on the sale of the Olde Towne Apartments. In February 1999, gains were recognized on the sales of: (1) a 4.6 acre tract of its Plano Parkway land; (2) the Santa Fe Apartments; and, (3) the Mesa Ridge Apartments, totaling $11.4 million. In March 1999, gains were recognized on the sales of: (1) a 9.9 acre tract of Mason/Goodrich land; (2) two tracts of McKinney II and McKinney IV land totaling 33.7 acres; and (3) a 13.0 acre tract of Rasor land, totaling $4.3 million. In April 1999, a gain was recognized of $1.8 million on the sale of the Horizon East Apartments and $2.3 million on the sale of the Lantern Ridge Apartments. In May 1999, gains were recognized of: (1) $913,000 on the sale of a 15.0 acre tract of Vista Ridge land and (2) $1.1 million on the sale of two tracts totaling 24.5 acres of Plano Parkway land. In June 1999, gains were recognized on the sale of: (1) two tracts totaling 77.6 acres of Frisco Bridges land; (2) 6.6 acres of Plano Parkway land; (3) the Continental Hotel; and, (4) the Barcelona Apartments, totaling $14.9 million. In July 1999, gains were recognized on the sale of: (1) .13 acres of JH Connell land; (2) two tracts totaling 11.8 acres of Plano Parkway land; (3) two tracts totaling 6.7 acres of Vista Ridge land; (4) 1.4 acres of Valley Ranch land, totaling $2.6 million. In August 1999, gains were recognized on the sale of: (1) Country Place Apartments; (2) Lake Nora Apartments; (3) Fox Club Apartments; (4) 2.1 acres of Keller land; (5) Sun City lots; and (6) 121.2 acres of Katrina land, totaling $16.5 million. In September 1999, gains were recognized on the sale of: (1) Oakhollow Apartments; (2) Windridge Apartments; (3) 13.6 acres of Frisco Bridges land; (4) four tracts totaling 185.6 acres of Keller, Scout and Scoggins land; and (5) 1.3 acres of Vista Ridge land, totaling $27.0 million and a loss of $40,000 on the sale of 6.2 acres of Plano Parkway land. For the three months ended September 30, 1998, the Company recognized gains from the sale of: (1) a 2.5 acre tract of the Las Colinas I land of $869,000; (2) 60.0 acres of Parkfield land; (3) 10.5 acres of BP Las Colinas land; (4) its Kamperman land; (5) 1.1 acres of Santa Clarita land totaling $5.7 million. In the first six months of 1998 gains on the sale of real estate, totaling $14.7 million were recognized from: (1) 81.3 acres of Parkfield land; (2) Lewisville land; (3) 21.2 acres of Chase Oaks land; (4) 150.0 acres of Rasor land; (5) Palm Desert land; (6) 39.4 acres of Valley Ranch land; (7) 2.5 acres of Las Colinas I land; (8) 10.5 acres of BP Las Colinas land; (9) 1.1 acres of Santa Clarita land; and (10) Kamperman land. Environmental Matters Under various federal, state and local environmental laws, ordinances and regulations, the Company 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, 32 certain environmental laws impose liability for release of asbestos-containing materials into the air and third parties may seek recovery from the Company 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 the Company's business, assets or results of operations. Inflation The effects of inflation on the Company's operations are not quantifiable. Revenues from property operations fluctuate proportionately with inflationary increases and decreases in housing costs. Fluctuations in the rate of inflation also affect the sales values of properties and, correspondingly, the ultimate gains to be realized by the Company from property sales. Year 2000 BCM has informed management that its computer hardware operating system and computer software have been certified as year 2000 compliant. Carmel Realty Services, Ltd. ("Carmel, Ltd."), an affiliate of BCM that performs property management services for the Company's properties, has informed management that effective January 1, 1999, it began using year 2000 compliant computer hardware and property management software for ART's commercial properties. With regard to the Company's apartments, Carmel, Ltd. has informed management that its subcontractors are also using year 2000 compliant computer hardware and property management software. The Company has not incurred nor does it expect to incur any costs related to its computer hardware and accounting and property management computer software being modified, upgraded or replaced to make it year 2000 compliant. Such costs have been or will be borne by either BCM, Carmel, Ltd. or the property management subcontractors of Carmel, Ltd. Management has completed its evaluation of the Company's computer controlled building systems, such as security, elevators, heating and cooling, etc. to determine what systems are not year 2000 compliant. Management believes that necessary modifications are insignificant and do not require significant expenditures to make the affected systems year 2000 compliant, as enhanced operating systems are readily available. The Company has or will have in place the year 2000 compliant systems that will allow it to operate. The risks the Company faces are that certain of its vendors will not be able to supply goods or services and that financial institutions and taxing authorities will not be able to accurately apply payments made to them. Management believes that other vendors are readily available and that financial institutions and taxing authorities will, if necessary, apply monies received manually. The likelihood of the above having a significant impact on the Company's operations is negligible. 33 PART II. OTHER INFORMATION ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS - ----------------------------------------------------------- The Company held its anual meeting of stockholders on September 13, 1999, at which meeting the Company's stockholders were asked to consider and vote upon (1) the election of Directors and (2) approval of Amendment to the Company's Articles of Incorporation to increase the number of authorized shares of special stock, from 2.0 million to 5.0 million shares. At such meeting the stockholders elected the following individuals as Directors:
Shares Voting ---------------------- Withheld Director For Authority ------------------------------------ ------- ---------- Karl L. Blaha....................... 7,926,050 28,419 Roy Bode............................ 7,926,170 28,299 Collene C. Currie................... 7,295,490 28,979 Al Gonzalez......................... 7,296,102 28,367 Cliff Harris........................ 7,926,170 28,299
Also at such meeting the stockholders approved the Amendment to the Articles of Incorporation to increase the number of authorized shares of Special Stock from 2.0 million to 5.0 million with 6,992,278 votes for the proposal and 217,357 votes against and 17,542 votes abstaining. ITEM 5. OTHER INFORMATION Proposed Transaction with American Realty Investors, Inc. On November 3, 1999, ART and the Partnership jointly announced the agreement of their respective Boards to combine, in a tax free exchange, the two entities into a new holding company to be named American Realty Investors, Inc. ("ARI"). Under the proposal, ARI will distribute shares of its common stock to ART stockholders and NRLP unitholders. NRLP unitholders, except for ART, would receive one share of ARI common stock for each unit of NRLP held. ART stockholders would receive .91 shares of ARI common stock for each share of ART held. ART preferred stock would convert into one share of preferred stock of ARI, having substantially the same rights as ART's preferred stock. The share exchange and merger are subject to a vote of stockholders/unitholders of both entities. Approval requires the vote of a majority of the unitholders holding a majority of the Partnership's outstanding units, and the vote of a majority of the stockholders holding a majority of ART's outstanding shares of common and preferred stock. As of November 3, 1999, ART owned approximately 56.2% of the outstanding units of the Partnership and BCM owned approximately 30.0% of the outstanding units of the Partnership and 56.9% of the outstanding shares of ART's common stock. A date for the special meeting of the stockholders/unitholders to vote on the merger proposal has not been set. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits: The following exhibits are filed herewith or incorporated by reference as indicated below.
Exhibit Number Description ------- ---------------------------------------- 2.0 Agreement and Plan of Reorganization, dated as of November 3, 1999 by and among American Realty Investors, Inc., National Realty, L.P. and American Realty Trust, Inc. 27.0 Financial Data Schedule, filed herewith.
(b) Reports on Form 8-K as follows: None. 34 SIGNATURE PAGE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. American Realty Trust, Inc. /s/ Karl L. Blaha By: _________________________________ Date: December 8, 1999 Karl L. Blaha President /s/ Thomas A. Holland By: _________________________________ Date: December 8, 1999 Thomas A. Holland Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) 35 AMERICAN REALTY TRUST, INC. EXHIBITS TO QUARTERLY REPORT ON FORM 10-Q For the Nine Months Ended September 30, 1999
Exhibit Page Number Description Number ------- ----------- ------ 2.0 Agreement and Plan of Reorganization, dated as of November 3, 1999 by and among American Realty Investors, Inc, National Realty, L.P. and American Realty Trust, Inc 27.0 Financial Data Schedule........................................
36 EX-2.0 2 AGREEMENT AND PLAN OF REORGANIZATION EXHIBIT 2.0 AGREEMENT AND PLAN OF REORGANIZATION DATED AS OF NOVEMBER 3, 1999 BY AND AMONG AMERICAN REALTY INVESTORS, INC., NATIONAL REALTY, L.P. AND AMERICAN REALTY TRUST, INC. AGREEMENT AND PLAN OF REORGANIZATION AGREEMENT AND PLAN OF REORGANIZATION, dated as of November 3, 1999 (the "Agreement"), by and among AMERICAN REALTY INVESTORS, INC., a newly-formed Nevada corporation ("Newco"), NATIONAL REALTY, L.P., a Delaware limited partnership ("NRLP"), and AMERICAN REALTY TRUST, INC., a Georgia corporation ("ART"). WHEREAS, (i) Newco is a newly formed corporation organized and existing under the laws of the State of Nevada, (ii) NRLP is a limited partnership organized and existing under the laws of the State of Delaware and (iii) ART is a corporation organized and existing under the laws of the State of Georgia; WHEREAS, Newco has formed a wholly owned subsidiary called ART Acquisition Corp., a corporation organized under the laws of the State of Georgia ("Sub I"), and a wholly owned subsidiary called NRLP Acquisition Corp., a corporation organized under the laws of the State of Delaware ("Sub II"), and all the outstanding capital stock of each of Sub I and Sub II is owned by Newco; WHEREAS, the Board of Directors of each of Newco and ART and the general partner of NRLP deem it advisable and in the best interests of their stockholders and unitholders, as applicable, that each of NRLP and ART become subsidiaries of Newco pursuant to the Mergers (as hereinafter defined) hereinafter provided for, and desire to make certain representations, warranties and agreements in connection with such Mergers; and WHEREAS, as part of a single plan to be effectuated pursuant to this Agreement, the ART Merger Agreement and the NRLP Merger Agreement, it is intended that the transactions described in such agreements be treated for federal income tax purposes as an integrated transaction described in Section 351 of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder (and any similar provision of state law). NOW, THEREFORE, in consideration of the foregoing, the representations, warranties, covenants and agreements set forth herein and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I CERTAIN DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings: Section 1.1 "Acquisition Proposal" shall have the meaning set forth in Section 7.1. Section 1.2 "Affiliate" shall mean, as to any person, any other person that directly or indirectly controls, or is under common control with or is controlled by such person. Section 1.3 "ART Balance Sheet" shall have the meaning set forth in Section 5.5. Section 1.4 "ART Common Stock" shall have the meaning set forth in Section 2.1. Section 1.5 "ART Designees" shall have the meaning set forth in Section 2.5. Section 1.6 "ART Merger" shall have the meaning set forth in Section 2.1. Section 1.7 "ART Merger Agreement" shall have the meaning set forth in Section 2.1. Section 1.8 "ART Plans" shall have the meaning set forth in Section 5.10. Section 1.9 "ART Preferred Stock" shall have the meaning set forth in Section 5.2. Section 1.10 "ART SEC Reports" shall have the meaning set forth in Section 5.5. Section 1.11 "ART Special Stock" shall have the meaning set forth in Section 2.1. Section 1.12 "ART Stock" shall have the meaning set forth in Section 2.1. Section 1.13 "ART Stock Option" shall have the meaning set forth in Section 7.7. Section 1.14 "Certificate of Merger" shall have the meaning set forth in Section 2.3. Section 1.15 "Code" shall have the meaning set forth in the introductory clauses hereto. Section 1.16 "DGCL" shall have the meaning set forth in Section 2.3. Section 1.17 "DRLPA" shall have the meaning set forth in Section 2.2. Section 1.18 "Effective Time" shall have the meaning set forth in Section 2.3. Section 1.19 "ERISA " shall mean the Employee Retirement Income Security Act of 1974, as amended. Section 1.20 "ERISA Affiliate" with respect to any party, shall mean any trade or business, whether or not incorporated, that together with such party would be deemed a "single employer" within the meaning of section 4001(a)(15) of ERISA. Section 1.21 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Section 1.22 "Form S-4" shall mean the Registration Statement on Form S-4 to be filed with the SEC under the Securities Act in connection with the Mergers for the purpose of registering the shares of Newco Common Stock to be issued in the Mergers. Section 1.23 "GBCA" shall have the meaning set forth in Section 2.1. Section 1.24 "Governmental Entity" shall mean any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign. Section 1.25 "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Section 1.26 "Material Adverse Effect" with respect to any party, shall mean a material adverse effect (or any development which, insofar as reasonably can be foreseen, in the future is reasonably likely to have a material adverse effect) on the business, assets, financial or other condition, results of operations or prospects of such party and its Subsidiaries taken as a whole. Section 1.27 "Mergers" shall mean the ART Merger and the NRLP Merger. Section 1.28 "Merger Agreements" shall mean the ART Merger Agreement and the NRLP Merger Agreement. Section 1.29 "Newco Board" shall have the meaning set forth in Section 2.5. Section 1.30 "Newco Bylaws" shall have the meaning set forth in Section 2.5. Section 1.31 "Newco Common Stock" shall have the meaning set forth in Section 2.1. Section 1.32 "NRLP Balance Sheet" shall have the meaning set forth in Section 4.5. Section 1.33 "NRLP Designees" shall have the meaning set forth in Section 2.2. Section 1.34 "NRLP Merger" shall have the meaning set forth in Section 2.5. Section 1.35 "NRLP Merger Agreement" shall have the meaning set forth in Section 2.2. Section 1.36 "NRLP Partnership Agreement" shall have the meaning set forth in Section 2.2. Section 1.37 "NRLP Plan" shall have the meaning set forth in Section 2.2. Section 1.38 "NRLP SEC Reports" shall have the meaning set forth in Section 4.10. Section 1.39 "NRLP Units" shall have the meaning set forth in Section 2.2. Section 1.40 "Proxy Statement" shall mean the joint proxy statement/ prospectus to be distributed to holders of shares of ART Common Stock and holders of NRLP Units in connection with the meetings of such holders to be held in connection with the transactions contemplated by this Agreement and the Merger Agreements. Section 1.41 "SEC" shall mean the Securities and Exchange Commission. Section 1.42 "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Section 1.43 "Significant Subsidiary" shall have the meaning set forth in Rule 1-02 of Regulation S-X of the SEC. Section 1.44 "Sub I" shall have the meaning set forth in the introductory clauses hereto. Section 1.45 "Sub II" shall have the meaning set forth in the introductory clauses hereto. Section 1.46 "Subsidiary" shall have the meaning set forth in Rule 1-02 of Regulation S-X of the SEC. Section 1.47 "Termination Date" shall have the meaning set forth in Section 9.1. Section 1.48 "Third Party" shall mean any person or group that is deemed to be a "person" within the meaning of Section 13(d) of the Exchange Act. ARTICLE II THE MERGERS Section 2.1 ART Merger. ---------- (a) Newco and Sub I have executed and delivered, and ART has executed and delivered, and agrees, subject to the terms and conditions of this Agreement and the ART Merger Agreement, to submit to its shareholders for adoption and approval as required under the Georgia Business Corporation Code (the "GBCA"), together with this Agreement, in accordance with Article II hereof, the Agreement of Merger, a form of which is set forth as Exhibit A --------- hereto, with such further changes as may be mutually agreed upon by the parties hereto (the "ART Merger Agreement"), providing for the merger of Sub I with and into ART (the "ART Merger") and the conversion of each outstanding share of ART common stock, par value $0.01 per share (the "ART Common Stock"), into shares of Newco common stock, par value $0.01 per share (the "Newco Common Stock") and the conversion of each outstanding share of ART special stock, $2.00 par value per share (the "ART Special Stock" and, together with the ART Common Stock, the "ART Stock") into one share of Newco preferred stock, $2.00 par value per share. As provided in the ART Merger Agreement, ART shall be the surviving corporation in the ART Merger and shall become a wholly owned subsidiary of Newco. From and after the Effective Time, the identity and separate existence of Sub I shall cease, and ART shall succeed, without other transfer, to all the rights, properties, debts and liabilities of Sub I. (b) In connection with the ART Merger, Newco shall take such action as may be necessary to reserve sufficient shares of Newco Common Stock, prior to the ART Merger, to permit the issuance of shares of Newco Common Stock (i) to the holders of ART Common Stock as of the Effective Time in accordance with the terms of the ART Merger Agreement and (ii) upon the exercise of ART Stock Options to be assumed by Newco in accordance with Section 7.7 hereof. Each of Newco and ART shall use its reasonable efforts to cause the ART Merger to be consummated in accordance with the terms of this Agreement and the ART Merger Agreement. Section 2.2 NRLP Merger. ----------- (a) Newco and Sub II have executed and delivered, and NRLP has executed and delivered, and agrees, subject to the terms and conditions of this Agreement and the NRLP Merger Agreement, to submit to its holders of units of partnership interest (the "NRLP Units") for adoption and approval, as required under the terms of the First Amended and Restated Agreement of Limited Partnership of NRLP, as amended (the "NRLP Partnership Agreement"), and the Delaware Revised Limited Partnership Act (the "DRLPA"), together with this Agreement, in accordance with Article II hereof, the Agreement of Merger, a form of which is set forth as Exhibit B hereto, with such further changes as may be --------- mutually agreed upon by the parties hereto (the "NRLP Merger Agreement"), providing for the merger of Sub II with and into NRLP (the "NRLP Merger") and the conversion of the outstanding NRLP Units held by all limited partners, other than ART and its wholly-owned subsidiaries, into shares of Newco Common Stock. As set forth in the NRLP Merger Agreement, (i) all NRLP Units held by ART and its wholly-owned subsidiaries will remain issued and outstanding and (ii) NRLP shall be the surviving entity in the NRLP Merger and shall become a subsidiary of Newco. From and after the Effective Time, the identity and separate existence of Sub II shall cease, and NRLP shall succeed, without other transfer, to all the rights, properties, debts and liabilities of Sub II. (b) In connection with the NRLP Merger, Newco shall take such action as may be necessary to reserve sufficient shares of Newco Common Stock prior to the Merger to permit the issuance of shares of Newco Common Stock to the holders of NRLP Units as of the Effective Time in accordance with the terms of the NRLP Merger Agreement. Each of Newco and NRLP shall use its reasonable efforts to cause the NRLP Merger to be consummated in accordance with the terms of this Agreement and the NRLP Merger Agreement. Section 2.3 Filing of Merger Agreements and Related Certificates. ---------------------------------------------------- Immediately after all conditions to this Agreement have been satisfied or waived, the certificates of merger pertaining to the ART Merger and the NRLP Merger, respectively (together the "Certificates of Merger"), or such other documents necessary to effect the Mergers, shall be executed and filed in accordance with the GBCA or the DRLPA and the Delaware General Corporation Law (the "DGCL"), as the case may be, and the Mergers shall become effective substantially simultaneously (and shall be treated as occurring simultaneously for tax purposes) in accordance with the terms of the Merger Agreements (such time and date are referred to herein as the "Effective Time"). Section 2.4 Effect of Mergers. The parties agree to the following ----------------- provisions with respect to the Mergers: (a) Names of Surviving Entities. The names of ART and NRLP, as the --------------------------- surviving entities in the Mergers, from and after the Effective Time shall be "American Realty Trust, Inc." and "National Realty, L.P.," respectively, until changed or amended in accordance with applicable law. (b) Charter Documents. At the Effective Time (i) the articles of ----------------- incorporation and bylaws of ART, as in effect immediately prior to the Effective Time, shall be amended so that the operative provisions read in their entirety exactly as the articles of incorporation and bylaws, respectively, of Sub I, except that the name of the corporation specified therein shall be "American Realty Trust, Inc." and (ii) the agreement of limited partnership of NRLP, as in effect immediately prior to the Effective Time, shall be the partnership agreement of NRLP and NRLP shall be the surviving entity in the NRLP Merger. (c) Other Effects. The ART Merger shall have such other effects as ------------- are set forth in the ART Merger Agreement and the GBCA and the NRLP Merger shall have such other effects as are set forth in the NRLP Merger Agreement and the DRLPA and the DGCL. (d) Tax Effects. The parties intend that the transactions described ----------- in this Agreement, the ART Merger Agreement and the NRLP Merger Agreement constitute a single plan that is treated for federal income tax purposes as an integrated transaction described in and satisfying each of the requirements of Section 351 of the Code and the regulations thereunder (and any similar provisions of state laws) pursuant to which (i) each shareholder of ART is treated as transferring all of its ART stock to Newco in exchange for Newco stock, (ii) each limited partner of NRLP, other than ART (and its wholly owned subsidiaries), is treated as transferring all of its NRLP Units to Newco in exchange for Newco stock and (iii) immediately after the transactions described in (i) and (ii), the former shareholders of ART and the former limited partners of NRLP, other than ART (and its wholly owned subsidiaries), as a group, are in "control" of Newco (as such term is defined in Section 368(c) of the Code). The parties intend that no transactions other than the transactions described in this Agreement, the ART Merger Agreement and the NRLP Merger Agreement be considered part of the integrated transaction for purposes of determining the group in "control" of Newco immediately after these transactions. Section 2.5 Name of Newco, Directors and Officers of Newco. ---------------------------------------------- (a) Name. The name of Newco, as the parent of ART and NRLP following the consummation of the Mergers, from and after the Effective Time, shall be "American Realty, Inc." until changed or amended in accordance with applicable law. (b) Newco Governance. ---------------- (i) The directors comprising the full board of directors of Newco (the "Newco Board") at the Effective Time to be comprised of six directors. Initially, four of such directors shall be designated by ART and two of such directors shall be designated by NRLP. ART hereby designates the persons listed as such on Exhibit C hereto as its initial designees to the Newco Board --------- (the "ART Designees"). NRLP hereby designates the persons listed as such on Exhibit C hereto as its initial designees to the Newco Board (the "NRLP - --------- Designees"). If, prior to the Effective Time, any of the ART Designees or the NRLP Designees shall decline or be unable to serve as a Newco director, ART (if such person was so designated by ART) or NRLP (if such person was so designated by NRLP) shall designate another person to serve in such person's stead, which person shall be reasonably acceptable to the other parties or party as the case may be. (ii) At or prior to the Effective Time, Karl L. Blaha shall be designated as President and Chief Executive Officer of Newco, provided, that if he is unwilling or unable to serve in such capacity, his replacement shall be selected by the Newco Board as constituted at the Effective Time. Newco shall also have such other officers as may be elected by the Newco Board. (c) Tenure. The foregoing officers and directors of Newco, shall hold ------ their positions until their resignation or removal or the election or appointment of their successors in the manner provided by Newco's charter documents and applicable law. Section 2.6 Approval of Mergers by Newco. Newco, as the sole shareholder ---------------------------- of each of Sub I and Sub II, has heretofore executed a formal written consent under Section 14-2-704 of the GBCA and Section 228 of the DGCL, approving, authorizing and adopting the ART Merger Agreement and the NRLP Merger Agreement. Section 2.7 Newco Certificate of Incorporation and Bylaws. Prior to the --------------------------------------------- Effective Time, the shareholder of Newco shall cause Newco to amend its articles of incorporation to read in its entirety as set forth in Exhibit D hereto and to --------- amend its Bylaws to read in their entirety as set forth in Exhibit E hereto. --------- Section 2.8 Sub I Articles of Incorporation and Bylaws. Prior to the ------------------------------------------ Effective Time the articles of incorporation and bylaws of Sub I shall be amended in a manner reasonably acceptable to ART. ARTICLE III REPRESENTATIONS AND WARRANTIES OF NEWCO Newco represents and warrants to ART and NRLP as follows: Section 3.1 Organization and Qualification. Newco is a corporation duly ------------------------------ organized, validly existing and in good standing under the laws of the State of Nevada and has the requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and is duly qualified to do business and in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect on Newco. True, accurate and complete copies of the articles of incorporation and bylaws of Newco as in effect on the date hereof, including all amendments thereto, have heretofore been delivered to ART and NRLP. Section 3.2 Capitalization. -------------- (a) The authorized capital stock of Newco consists of 1,000 shares of Newco Common Stock. As of the date hereof, there were 1,000 shares of Newco Common Stock issued and outstanding, all which are owned by Robert A. Waldman, as the sole incorporator of Newco, and all of which are validly issued, fully paid and nonassessable and are not subject to and were not issued in violation of any preemptive rights. (b) Except for this Agreement and the Merger Agreements, there are not now, and at the Effective Time there will not be, any options, warrants, calls, rights, subscriptions, convertible securities or other rights or agreements, arrangements or commitments of any kind obligating Newco to issue, transfer or sell any securities of Newco. There are no outstanding contractual or other obligations of Newco to purchase, redeem or otherwise acquire any shares of Newco Common Stock. There is not now, and at the Effective Time there will not be, any stockholder agreement, voting trust or other agreement or understanding to which Newco is a party or bound relating to the voting of any shares of the capital stock of Newco. Section 3.3 Authority. Newco has all requisite corporate power and --------- authority to execute and deliver this Agreement and the Merger Agreements and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Merger Agreements, and the consummation by Newco of the transactions contemplated hereby and thereby, have been duly authorized by Newco's board of directors and no other corporate proceedings on the part of Newco are necessary to authorize the execution and delivery of this Agreement and the Merger Agreements and the consummation by Newco of the transactions contemplated hereby and thereby, except for the approval thereof by the stockholders of Newco. This Agreement has been and, as of the Effective Time, the Merger Agreements will have been, duly and validly executed and delivered by Newco and, assuming the due authorization, execution and delivery hereof and thereof by ART and NRLP, constitute or will constitute, as the case may be, valid and binding agreements of Newco, enforceable against Newco in accordance with their terms, except that such enforceability may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (b) by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Section 3.4 Consents and Approvals; No Violation. None of the execution ------------------------------------ and delivery of this Agreement or the Merger Agreements, the consummation by Newco of the transactions contemplated hereby and thereby or compliance by Newco with any of the provisions hereof will (a) conflict with or result in a breach of any provision of the articles of incorporation or bylaws of Newco, (b) require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority, except (i) pursuant to the Exchange Act, the Securities Act and the HSR Act and (ii) for filing the Certificate of Merger with respect to the Mergers pursuant to the GBCA or the DRLPA and the DGCL, as applicable, (c) result in a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a lien or encumbrance on any of the assets of Newco pursuant to any note, license, agreement or other instrument or obligation to which Newco is a party or by which Newco or any of its assets may be bound or affected, or (d) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to Newco or any of its properties or assets, other than (i) such defaults, rights of termination, cancellation, amendment or acceleration, liens and encumbrances, violations and conflicts and (ii) such consents, approvals, authorizations, permits or filings that are not obtained, as set forth pursuant to (b) above, which, in the aggregate, would not have a Material Adverse Effect on Newco. Section 3.5 No Prior Activities. Except for obligations or liabilities ------------------- incurred in connection with their respective incorporation or organization or the negotiation and consummation of this Agreement and the Merger Agreements and the transactions contemplated hereby and thereby, none of Newco, Sub I or Sub II has incurred any obligations or liabilities nor engaged in any business or activities of any type or kind whatsoever or entered into any agreements or arrangements with any person or entity. Newco, Sub I and Sub II are newly created corporations. Sub I and Sub II were established, as wholly owned subsidiaries of Newco, solely to effectuate the transactions described in this Agreement. Section 3.6 Information Supplied. The information supplied or to be -------------------- supplied by Newco for inclusion in (a) the Form S-4 will not, either at the time the Form S-4 is filed with the SEC or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (b) the Proxy Statement, including any amendments and supplements thereto, will not, either at the date mailed to shareholders of ART and unitholders of NRLP or at the times of the meetings of ART and NRLP to be held in connection with the transactions contemplated by this Agreement and the Merger Agreements contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Proxy Statement and the Form S-4 will each comply as to form in all material respects with all applicable laws, including the provisions of the Securities Act and the Exchange Act, except that no representation is made by Newco with respect to information supplied by ART or NRLP for inclusion therein. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF NRLP NRLP represents and warrants to ART and Newco as follows: Except as otherwise disclosed to ART and Newco in a letter delivered to them prior to the execution hereof (which letter shall contain appropriate references to identify the representations and warranties herein to which the information in such letter relates) (the "NRLP Disclosure Letter"), NRLP represents and warrants to ART and Newco as follows: Section 4.1 Organization and Qualification. Each of NRLP and its ------------------------------ Significant Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and is duly qualified to do business and in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect on NRLP. True and complete copies of the NRLP Partnership Agreement and the articles of incorporation of NRLP Management Corp., NRLP's general partner, each as in effect on the date hereof, including all amendments thereto, have heretofore been made available or delivered to ART and Newco. Section 4.2 Capitalization. -------------- (a) As of the date hereof, there were 6,321,577 NRLP Units issued and outstanding, all of which are validly issued, fully paid and nonassessable and are not subject to and were not issued in violation of any preemptive rights. Except as disclosed in Section 4.2 of the NRLP Disclosure Letter, no Subsidiary of NRLP holds any NRLP Units. (b) Except for this Agreement and the NRLP Merger Agreement there are not now, and at the Effective Time there will not be, any options, warrants, calls, rights, subscriptions, convertible securities or other rights or agreements, arrangements or commitments of any kind obligating NRLP or any of its Subsidiaries to issue, transfer or sell any securities of NRLP. All NRLP securities subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual or other obligations of NRLP or any of its Subsidiaries to purchase, redeem or otherwise acquire any NRLP Units. There is not now, and at the Effective Time there will not be, any agreement, voting trust or other agreement or understanding to which NRLP or any of its Subsidiaries is a party or bound relating to the voting of any securities of NRLP. Section 4.3 Authority. NRLP has all requisite power and authority to --------- execute and deliver this Agreement and the NRLP Merger Agreement and, subject to approval of this Agreement and the NRLP Merger Agreement by the unitholders of NLRP, to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the NRLP Merger Agreement and the consummation by NRLP of the transactions contemplated hereby and thereby have been duly authorized by NRLP's general partner and no other partnership proceedings on the part of NRLP are necessary to authorize the execution and delivery of this Agreement, the NRLP Merger Agreement and the consummation by NRLP of the transactions contemplated hereby and thereby, except for the approval thereof by the unitholders of NRLP. This Agreement has been, and as of the Effective Time, the NRLP Merger Agreement will be, duly and validly executed and delivered by NRLP and, assuming the due authorization, execution and delivery hereof and thereof by Newco, Sub I, Sub II and ART, constitute or will constitute, as the case may be, valid and binding agreements of NRLP, enforceable against NRLP in accordance with their terms, except that such enforceability may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (b) by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Section 4.4 Consents and Approvals; No Violation. Except as disclosed in ------------------------------------ Section 4.4 of the NRLP Disclosure letter, none of the execution and delivery by NRLP of this Agreement, the NRLP Merger Agreement, the consummation by NRLP of the transactions contemplated hereby and thereby or compliance by NRLP with any of the provisions hereof will (a) conflict with or result in a breach of any provision of the respective partnership agreements, charters or bylaws (or similar governing documents) of NRLP or any of its Subsidiaries, (b) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) pursuant to the Exchange Act, the Securities Act and the HSR Act and (ii) for filing the Certificate of Merger with respect to the NRLP Merger pursuant to the DRLPA and the DGCL, (c) result in a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a lien or encumbrance on any of the assets of NRLP or any of its Subsidiaries pursuant to, any note, license, agreement or other instrument or obligation to which NRLP or any of its Subsidiaries is a party or by which NRLP or any of its Subsidiaries or any of their respective assets may be bound or affected, or (d) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to NRLP or any of its Subsidiaries or any of their respective properties or assets, other than (i) such defaults, rights of termination, cancellation, amendment or acceleration, liens and encumbrances, violations and conflicts and (ii) such consents, approvals, authorizations, permits or filings, as set forth pursuant to (b) above, that are not obtained, which, in the aggregate, would not have a Material Adverse Effect on NRLP and would not materially impair NRLP's ability to consummate the transactions contemplated by this Agreement and the NRLP Merger Agreement. Section 4.5 SEC Reports and Financial Statements. Each form, report, ------------------------------------ schedule, registration statement and definitive proxy statement filed by NRLP with the SEC since January 1, 1993 as such documents have since the time of their filing been amended, the "NRLP SEC Reports"), which include all the documents (other than preliminary material) that NRLP was required to file with the SEC since such date, as of their respective dates, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, applicable to such NRLP SEC Reports. None of the NRLP SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except for such statements, if any, as have been modified by subsequent filings prior to the date hereof. The financial statements of NRLP included in such reports comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q of the SEC) and fairly present (subject in the case of the unaudited statements, to normal, recurring audit adjustments) the consolidated financial position of NRLP and its Subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows (or changes in financial position prior to the approval of FASB 95) for the periods then ended. Except as set forth in Section 4.5 of the NRLP Disclosure Letter, since December 31, 1998, neither NRLP nor any of its Subsidiaries has incurred any liabilities or obligations, whether absolute, accrued, fixed, contingent, liquidated, unliquidated or otherwise and whether due or to become due, except (a) as and to the extent set forth on the audited balance sheet of NRLP and its Subsidiaries as at December 31, 1998 (including the notes thereto) (the "NRLP Balance Sheet"), (b) as incurred in connection with the transactions contemplated, or as provided, by this Agreement, (c) as incurred after December 31, 1998 in the ordinary course of business and consistent with past practices, (d) as described in the NRLP SEC Reports or (e) as would not, individually or in the aggregate, have a Material Adverse Effect on NRLP. Section 4.6 Absence of Certain Changes or Events. Except as disclosed in ------------------------------------ the NRLP SEC Reports filed prior to the date hereof or otherwise disclosed pursuant to this Agreement, since December 31, 1998, NRLP and its Subsidiaries have conducted their respective businesses only in the ordinary course, consistent with past practice, and there has not occurred or arisen any event, individually or in the aggregate, having or which, insofar as reasonably can be foreseen, in the future is likely to have, a Material Adverse Effect on NRLP. Section 4.7 Litigation. As of the date of this Agreement, except as ---------- disclosed in the NRLP SEC Reports filed prior to the date of this Agreement or otherwise disclosed to Newco and ART prior to the date hereof, there is no claim, suit, action or proceeding pending or, to the best knowledge of NRLP, threatened against or affecting NRLP or any of its Subsidiaries, which is reasonably likely to have a Material Adverse Effect on NRLP, nor is there any judgment, decree, order, injunction, writ or rule of any court, governmental department, commission, agency, instrumentality or authority or any arbitrator outstanding against NRLP or any of its Subsidiaries having, or which, insofar as reasonably can be foreseen, in the future is likely to have, any such effect. Section 4.8 Disclosure. No representation or warranty of NRLP contained in ---------- this Agreement or the NRLP Merger Agreement, and no statement contained in any certificate or schedule furnished or to be furnished by or on behalf of NRLP to Newco and ART or any of its representatives pursuant thereto, contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading or necessary in order to fully and fairly provide the information required to be provided in any such document, certificate or schedule. Section 4.9 Information Supplied. The information supplied or to be -------------------- supplied by NRLP or its Subsidiaries for inclusion in (a) the Form S-4 will not, either at the time the Form S-4 is filed with the SEC or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (b) the Proxy Statement, including any amendments and supplements thereto, will not, either at the date mailed to unitholders or at the time of the meeting of unitholders of NRLP to be held in connection with the transactions contemplated by this Agreement and the Merger Agreements, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Proxy Statement and the Form S-4 will each comply as to form in all material respects with all applicable laws, including the provisions of the Securities Act and the Exchange Act, except that no representation is made by NRLP with respect to information supplied by Newco and ART for inclusion therein. Section 4.10 Affiliate Agreements. Except as disclosed in the NRLP SEC -------------------- Reports filed prior to the date of this Agreement, except for this Agreement and except as disclosed in Section 4.10 of the NRLP Disclosure Letter, as of the date of this Agreement neither NRLP nor any of its Subsidiaries is a party to any oral or written agreement with any of its Affiliates, other than with any of its Subsidiaries. Section 4.11 Compliance with Law. NRLP is not in violation of any ------------------- Federal, state, local or foreign law, ordinance or regulation or judgment, order or decree (including, but not limited to, those relating to the environment), the violation of which, individually or in the aggregate, would have a Material Adverse Effect on NRLP. Section 4.12 Taxes. Except as disclosed in Section 4.12 of the NRLP ----- Disclosure Letter, NRLP and each of its Subsidiaries have duly filed all material tax returns required to be filed (or such tax returns have been properly extended) other than those tax returns the failure to file would not have a Material Adverse Effect on NRLP, and have paid all taxes and other charges shown to be due on such returns, and there are no tax liens upon any property or assets of NRLP or any of its Subsidiaries. There are no outstanding agreements or waivers extending the statutory period of limitations applicable to any Federal income tax return for any period. There does not exist any issue that, if raised by any taxing authority with respect to any fiscal period, would, singly or in the aggregate, be expected to result in an assessment against NRLP that would have, or is reasonably likely to have, a Material Adverse Effect on NRLP. Section 4.13 Opinion of Financial Advisors. NRLP has received the opinion ----------------------------- of Houlihan Lokey Howard & Zukin ("Houlihan") to the effect that, as of November 3, 1999, the consideration to be received in the NRLP Merger by the holders of NRLP Units is fair to such holders from a financial point of view. Section 4.14 Brokers and Finders. Other than Houlihan, none of NRLP or any ------------------- of its Subsidiaries nor any of their respective partners, directors, officers or employees has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or similar payments in connection with the transactions contemplated by this Agreement, or the NRLP Merger Agreement. ARTICLE V REPRESENTATIONS AND WARRANTIES OF ART ART represents and warrants to NRLP and Newco as follows: Except as otherwise disclosed to NRLP and Newco in a letter delivered to them prior to the execution hereof (which letter shall contain appropriate references to identify the representations and warranties herein to which the information in such letter relates) (the "ART Disclosure Letter"), ART represents and warrants to NRLP and Newco as follows: Section 5.1 Organization and Qualification. Each of ART and its ------------------------------ Significant Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and is duly qualified to do business and in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect on ART. True and complete copies of the articles of incorporation and bylaws of ART as in effect on the date hereof, including all amendments thereto, have heretofore been delivered to NRLP and Newco. Section 5.2 Capitalization. -------------- (a) The authorized capital stock of ART consists of 100,000,000 shares of ART Common Stock and 20,000,000 shares of ART Special Stock. As of August 31, 1999, (i) 10,563,434 shares of ART Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable and are not subject to and were not issued in violation of any preemptive rights, (ii) 340,000 shares of ART Common Stock were reserved for issuance upon the exercise of Options granted pursuant to the ART Stock Option Plan and (iii) 3,401,000 shares of ART Special Stock were issued and outstanding, all of which are validly issued, fully paid and non-assessable and were not issued in violation of any preemptive rights. Except as disclosed in Section 5.2(a) of the ART Disclosure Letter, no Subsidiary of ART holds any shares of ART Stock. There has been no material change in the information set forth in the second sentence of this Section 5.2 between the close of business on August 31, 1999 and the date hereof. (b) Except for this Agreement, the ART Merger Agreement and the ART Stock Options specified in Section 5.2(a) hereof and except as otherwise disclosed in Section 5.2(b) of the ART Disclosure Letter, there are not now, and at the Effective Time there will not be, any options, warrants, calls, rights, subscriptions, convertible securities or other rights or agreements, arrangements or commitments of any kind obligating ART or any of its Subsidiaries to issue, transfer or sell any securities of ART. All shares of ART Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual or other obligations of ART or any of its Subsidiaries to purchase, redeem or otherwise acquire any shares of ART Stock. There is not now, and at the Effective Time there will not be, except as disclosed in Section 5.2(b) of the ART Disclosure Letter, any stockholder agreement, voting trust or other agreement or understanding to which ART or any of its Subsidiaries is a party or bound relating to the voting of any shares of the capital stock of ART or any of its Subsidiaries. Section 5.3 Authority. ART has all requisite corporate power and authority --------- to execute and deliver this Agreement and the ART Merger Agreement and, subject to approval of this Agreement and the ART Merger Agreement by the stockholders of ART, to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the ART Merger Agreement and the consummation by ART of the transactions contemplated hereby and thereby have been duly authorized by ART's board of directors and no other corporate proceedings on the part of ART are necessary to authorize the execution and delivery of this Agreement, the ART Merger Agreement and the consummation by ART of the transactions contemplated hereby and thereby, except for the approval thereof by the stockholders of ART. This Agreement has been, and as of the Effective Time, the ART Merger Agreement will be, duly and validly executed and delivered by ART and, assuming the due authorization, execution and delivery hereof and thereof by Newco, Sub I, Sub II and NRLP, constitute or will constitute, as the case may be, valid and binding agreements enforceable against ART in accordance with their terms, except that such enforceability may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (b) by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Section 5.4 Consents and Approvals; No Violation. Except as disclosed in ------------------------------------ Section 5.4 of the ART Disclosure Letter, none of the execution and delivery by ART of this Agreement, the ART Merger Agreement, the consummation by ART of the transactions contemplated hereby and thereby or compliance by ART with any of the provisions hereof will (a) conflict with or result in a breach of any provision of the respective charters, bylaws or partnership agreements (or similar governing documents) of ART or any of its Subsidiaries, (b) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) pursuant to the Exchange Act, the Securities Act and the HSR Act and (ii) for filing the Certificate of Merger with respect to the ART Merger pursuant to the GBCA, (c) result in a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a lien or encumbrance on any of the assets of ART or any of its Subsidiaries pursuant to, any note, license, agreement or other instrument or obligation to which ART or any of its Subsidiaries is a party or by which ART or any of its Subsidiaries or any of their respective assets may be bound or affected, or (d) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to ART or any of its Subsidiaries or any of their respective properties or assets, other than (i) such defaults, rights of termination, cancellation, amendment or acceleration, liens and encumbrances, violations and conflicts and (ii) such consents, approvals, authorizations, permits or filings, as set forth pursuant to (b) above, that are not obtained, which, in the aggregate, would not have a Material Adverse Effect on ART and would not materially impair ART's ability to consummate the transactions contemplated by this Agreement and the ART Merger Agreement. Section 5.5 SEC Reports and Financial Statements. Each form, report, ------------------------------------ schedule, registration statement and definitive proxy statement filed by ART with the SEC since January 1, 1993, (as such documents have since the time of their filing been amended, the "ART SEC Reports"), which include all the documents (other than preliminary material) that ART was required to file with the SEC since such date, as of their respective dates, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, applicable to such ART SEC Reports. None of the ART SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except for such statements, if any, as have been modified by subsequent filings prior to the date hereof. The financial statements of ART included in such reports comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q of the SEC) and fairly present (subject in the case of the unaudited statements, to normal, recurring audit adjustments) the consolidated financial position of ART and its Subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows (or changes in financial position prior to the approval of FASB 95) for the periods then ended. Except as set forth in Section 5.5 of the ART Disclosure Letter, since December 31, 1998, neither ART nor any of its Subsidiaries has incurred any liabilities or obligations, whether absolute, accrued, fixed, contingent, liquidated, unliquidated or otherwise and whether due or to become due, except (a) as and to the extent set forth on the audited balance sheet of ART and its Subsidiaries as at December 31, 1998 (including the notes thereto) (the "ART Balance Sheet"), (b) as incurred in connection with the transactions contemplated, or as provided, by this Agreement, (c) as incurred after December 31, 1998 in the ordinary course of business and consistent with past practices, (d) as described in the ART SEC Reports or (e) as would not, individually or in the aggregate, have a Material Adverse Effect on ART. Section 5.6 Absence of Certain Changes or Events. Except as disclosed in ------------------------------------ the ART SEC Reports filed prior to the date hereof or otherwise disclosed pursuant to this Agreement, since December 31, 1998, ART and its Subsidiaries have conducted their respective businesses only in the ordinary course, consistent with past practice, and there has not occurred or arisen any event, individually or in the aggregate, having or which, insofar as reasonably can be foreseen, in the future is likely to have, a Material Adverse Effect on ART. Section 5.7 Litigation. As of the date of this Agreement, except as ---------- disclosed in the ART SEC Reports filed prior to the date of this Agreement or otherwise disclosed to Newco and NRLP prior to the date hereof, there is no claim, suit, action or proceeding pending or, to the best knowledge of ART, threatened against or affecting ART or any of its Subsidiaries, which is reasonably likely to have a Material Adverse Effect on ART, nor is there any judgment, decree, order, injunction, writ or rule of any court, governmental department, commission, agency, instrumentality or authority or any arbitrator outstanding against ART or any of its Subsidiaries having, or which, insofar as reasonably can be foreseen, in the future is likely to have, any such effect. Section 5.8 Disclosure. No representation or warranty of ART contained in ---------- this Agreement or the ART Merger Agreement and no statement contained in any certificate or schedule furnished or to be furnished by or on behalf of ART to Newco and NRLP or any of its representatives pursuant thereto contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading or necessary in order to fully and fairly provide the information required to be provided in any such document, certificate or schedule. Section 5.9 Information Supplied. The information supplied or to be -------------------- supplied by ART or its Subsidiaries for inclusion in (a) the Form S-4 will not, either at the time the Form S-4 is filed with the SEC or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (b) the Proxy Statement, including any amendments and supplements thereto, will not, either at the date mailed to shareholders or at the time of the meeting of shareholders of ART to be held in connection with the transactions contemplated by this Agreement and the Merger Agreements, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Proxy Statement and the Form S-4 will each comply as to form in all material respects with all applicable laws, including the provisions of the Securities Act and the Exchange Act, except that no representation is made by ART with respect to information supplied by Newco or NRLP for inclusion therein. Section 5.10 Stock Option Plans. ART has delivered or made available to ------------------ Newco and NRLP full and complete copies or descriptions of each, stock option, stock appreciation right, restricted stock, phantom stock and performance stock plans of ART (such plans being referred to herein as the "ART Plans"). Each of the ART Plans is in material compliance with all applicable laws. Section 5.11 Affiliate Agreements. Except as disclosed in the ART SEC -------------------- Reports filed prior to the date of this Agreement and except for this Agreement and except as otherwise disclosed in Section 5.11 of the ART Disclosure Letter, as of the date of this Agreement neither ART nor any of its Subsidiaries is a party to any oral or written agreement with any of its Affiliates, other than with any of its Subsidiaries. Section 5.12 Compliance with Law. ART is not in violation of any Federal, ------------------- state, local or foreign law, ordinance or regulation or judgment, order or decree (including, but not limited to, those relating to the environment), the violation of which, individually or in the aggregate, would have a Material Adverse Effect on ART. Section 5.13 Taxes. Except as disclosed in Section 5.13 of the ART ----- Disclosure Letter, ART and each of its Subsidiaries have duly filed all material tax returns required to be filed (or such returns have been properly extended) other than those tax returns the failure to file would not have a Material Adverse Effect on ART, and have paid all taxes and other charges shown to be due on such returns, and there are no tax liens upon any property or assets of ART or any of its Subsidiaries. There are no outstanding agreements or waivers extending the statutory period of limitations applicable to any Federal income tax return for any period. There does not exist any issue that, if raised by any taxing authority with respect to any fiscal period, would, singly or in the aggregate, be expected to result in an assessment against ART that would have, or is reasonably likely to have, a Material Adverse Effect on ART. Section 5.14 Opinion of Financial Advisors. ART has received the opinion ----------------------------- of Fieldstone, Inc. ("Fieldstone") to the effect that, as of November 3, 1999, the consideration to be received in the ART Merger by the holders of shares of ART Common Stock is fair to such holders from a financial point of view. Section 5.15 Brokers and Finders. Other than Fieldstone, none of ART or ------------------- any of its Subsidiaries nor any of their respective partners, directors, officers or employees has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or similar payments in connection with the transactions contemplated by this Agreement or the ART Merger Agreement. ARTICLE VI COVENANTS RELATING TO CONDUCT OF BUSINESS Section 6.1 Conduct of Business of NRLP Pending the Effective Time. Except ------------------------------------------------------ as expressly permitted or contemplated by this Agreement or the Merger Agreements, until the Effective Time, NRLP shall, and shall cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and use its commercially reasonable efforts to preserve intact their respective business organizations' goodwill, keep available the services of their respective present officers and key employees, and preserve the goodwill and business relationships with suppliers, distributors, customers and others having business relationships with them. Without limiting the generality of the foregoing, and except as otherwise permitted by this Agreement, prior to the Effective Time, without the consent of ART, which consent shall not be unreasonably withheld, NRLP will not, and will cause each of its Subsidiaries not to: (a) amend or propose to amend their respective, partnership agreements, charters or bylaws (other than as contemplated by this Agreement); or split, combine or reclassify their outstanding securities or declare, set aside or pay any dividend or distribution in respect of any securities (other than the payment to NRLP or any of its Subsidiaries of any such dividend or distribution) or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for the NRLP Units; (b) (i) issue or authorize or propose the issuance of, sell, pledge or dispose of, or agree to issue or authorize or propose the issuance of, any additional NRLP Units, or any options, warrants or rights of any kind to acquire any NRLP Units, or any debt or equity securities convertible into or exchangeable for such NRLP Units, other than any such issuance pursuant to options, warrants, rights or convertible securities outstanding as of the date hereof in accordance with their terms; (ii) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets in each case which are material, individually or in the aggregate, to NRLP and its Subsidiaries taken as a whole; (iii) sell (including by sale-leaseback), lease, pledge, dispose of or encumber any assets or interests therein, which are material, individually or in the aggregate, to NRLP and its Subsidiaries taken as a whole, other than in the ordinary course of business and consistent with past practice; (iv) incur or become contingently liable with respect to any material indebtedness for borrowed money or guarantee any such indebtedness or issue any debt securities or otherwise incur any material obligation or liability (absolute or contingent) other than short-term indebtedness in the ordinary course of business and consistent with past practice; (v) redeem, purchase, acquire or offer to purchase or acquire any (x) NRLP Units (or other outstanding securities) or (y) long-term debt, other than as required by the governing instruments relating thereto; or (vi) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) enter into or amend any employment, severance, special pay arrangement with respect to termination of employment or other arrangements or agreements with any partners, directors, officers or key employees; (d) adopt, enter into or amend any, or become obligated under any new, bonus, profit sharing, compensation, unit option, pension, retirement, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee or retiree, except as required to comply with changes in applicable law occurring after the date hereof and except, with respect to all plans other than bonus plans, in the ordinary course of business and consistent with past practice; or (e) take any action that would, or is reasonably likely to, result in any of its representations and warranties set forth in this Agreement becoming untrue, or in any of the conditions to the Mergers set forth in Article VIII not being satisfied. Section 6.2 Conduct of Business of ART Pending the Effective Time. Except ----------------------------------------------------- as expressly permitted or contemplated by this Agreement or the Merger Agreements until the Effective Time, ART shall, and shall cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and use their commercially reasonable efforts to preserve intact their respective business organizations' goodwill, keep available the services of their respective present officers and key employees and preserve the goodwill and business relationships with suppliers, distributors, customers and others having business relationships with them. Without limiting the generality of the foregoing, and except as otherwise permitted by this Agreement, prior to the Effective Time, without the consent of NRLP, which consent shall not be unreasonably withheld, ART will not, and will cause each of its Subsidiaries not to: (a) amend or propose to amend their respective charters, bylaws or partnership agreements (other than as contemplated by this Agreement); or split, combine or reclassify their outstanding capital stock or partnership interests or declare, set aside or pay any dividend or distribution in respect of any capital stock (other than the payment to ART or any of its Subsidiaries of any such dividend or distribution) or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or partnership interests; (b) (i) issue or authorize or propose the issuance of, sell, pledge or dispose of, or agree to issue or authorize or propose the issuance of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, other than any such issuance pursuant to options, warrants, rights or convertible securities outstanding as of the date hereof in accordance with their terms; (ii) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets in each case which are material, individually or in the aggregate, to ART and its Subsidiaries taken as a whole; (iii) sell (including by sale-leaseback), lease, pledge, dispose of or encumber any assets or interests therein, which are material, individually or in the aggregate, to ART and its Subsidiaries taken as a whole, other than in the ordinary course of business and consistent with past practice; (iv) incur or become contingently liable with respect to any material indebtedness for borrowed money or guarantee any such indebtedness or issue any debt securities or otherwise incur any material obligation or liability (absolute or contingent) other than short-term indebtedness in the ordinary course of business and consistent with past practice; (v) redeem, purchase, acquire or offer to purchase or acquire any (x) shares of its capital stock or (y) long-term debt, other than as required by the governing instruments relating thereto; or (vi) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) enter into or amend any employment, severance, special pay arrangement with respect to termination of employment or other arrangements or agreements with any directors, officers or key employees; (d) adopt, enter into or amend any, or become obligated under any new, bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee or retiree, except as required to comply with changes in applicable law occurring after the date hereof and except, with respect to all plans other than bonus plans, in the ordinary course of business and consistent with past practice; or (e) take any action that would, or is reasonably likely to, result in any of its representations and warranties set forth in this Agreement becoming untrue or in any of the conditions to the Mergers set forth in Article VIII not being satisfied. Section 6.3 Cooperation. Subject to compliance with applicable law, from ----------- the date hereof until the Effective Time, each of NRLP and ART shall confer on a regular and frequent basis with one or more representatives of the other party to report operational matters of materiality and the general status of ongoing operations and shall promptly provide the other party or its counsel with copies of all filings made by such party with any Governmental Entity in connection with this Agreement, the Merger Agreements and the transactions contemplated hereby and thereby. ARTICLE VII ADDITIONAL COVENANTS AND AGREEMENTS Section 7.1 No Solicitation. --------------- (a) Without the prior written consent of ART, NRLP and its Subsidiaries will not, and will use their best efforts to cause their respective partners, officers, directors, employees and agents not to, initiate or solicit, directly or indirectly, any inquiries or the making of any proposal with respect to or, except to the extent required by their fiduciary duties, engage in negotiations concerning, provide any confidential information or data to or have any discussions with, any Third Party, other than ART or any Affiliate of ART, relating to any Acquisition Proposal (as hereinafter defined) with respect to NRLP or any of its Subsidiaries. NRLP will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. NRLP shall immediately notify ART if any such negotiations, or providing of confidential information or data or discussions, are entered into or made or any such inquiries are received in respect thereof, and shall provide details with respect thereto. (b) Without the prior written consent of NRLP, ART and its Subsidiaries will not, and will use their best efforts to cause their respective partners, officers, directors, employees and agents not to, initiate or solicit, directly or indirectly, any inquiries or the making of any proposal with respect to or, except to the extent required by their fiduciary duties, engage in negotiations concerning, provide any confidential information or data to or have any discussions with, any Third Party, other than NRLP or any Affiliate of NRLP, relating to any Acquisition Proposal with respect to ART or any of its Subsidiaries. ART will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. ART shall immediately notify NRLP if any such negotiations, or providing of confidential information or data or discussions, are entered into or made or any such inquiries are received in respect thereof, and shall provide details with respect thereto. (c) The term "Acquisition Proposal" as used herein means any offer or proposal for, or any indication of interest in, a merger or other business combination involving ART or NRLP, or any of their respective Subsidiaries, or the acquisition of any equity interest in, or a substantial portion of the assets of, any such party, other than the transactions contemplated by this Agreement. Section 7.2 Access to Information. Subject to compliance with applicable --------------------- law, upon reasonable notice ART and NRLP shall each (and shall cause each of their respective Subsidiaries to) afford to the other and the officers, employees, accountants, counsel, financial advisors and other representatives of the other access during normal business hours throughout the period prior to the Effective Time to all of its properties, books, contracts, commitments and records and, during such period, each of ART and NRLP shall (and shall cause each of their respective Subsidiaries to) furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of Federal securities laws, and (b) all other information concerning its businesses, properties and personnel as such other party may reasonably request. Unless otherwise required by law, the parties will hold any such information which is nonpublic in confidence until such time as such information otherwise becomes publicly available through no wrongful act of either party and, in the event of termination of this Agreement for any reason, each party shall promptly return all nonpublic documents obtained from any other party, and any copies made of such documents, to such other party. In addition, in the event of such termination, all documents, memoranda, notes and other writings whatsoever prepared by each party based on the information in such material shall be destroyed (and each party shall use its commercially reasonable efforts to cause its advisors and their representatives to similarly destroy their respective documents, memoranda and notes), and such destruction (and commercially reasonable efforts) shall be certified in writing to the other party by an authorized officer supervising such destruction. Section 7.3 Registration Statement and Proxy Statement. As soon as is ------------------------------------------ reasonably practicable after the date hereof, ART and NRLP shall prepare and file the Proxy Statement with the SEC, and Newco shall promptly prepare and file the Form S-4 with the SEC in which the Proxy Statement will be included. Newco shall use its best efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing. Newco shall take any action required to be taken under applicable state securities and blue sky laws in connection with the issuance of shares of Newco Common Stock in the Mergers and as contemplated by this Agreement. ART and NRLP shall promptly furnish to each other all information, and take such other actions, as may reasonably be requested in connection with any action by any of them in connection with this Section 7.3. Section 7.4 Approval of Agreements. Each of ART and NRLP shall call a ---------------------- meeting of its stockholders and unitholders, respectively, to be held as promptly as practicable for the purpose of voting upon this Agreement and the NRLP Merger Agreement in the case of NRLP and the ART Merger Agreement in the case of ART. Subject to the exercise of their respective fiduciary obligations, the board of directors of ART and the general partner of NRLP shall recommend to their respective stockholders and unitholders approval of such matters. NRLP and ART shall coordinate and cooperate with respect to the timing of such meetings and shall use their best efforts to hold such meetings on the same day and as soon as practicable after the date hereof. Waldman agrees to vote its shares of Newco Common Stock for adoption and approval of this Agreement, the Merger Agreements and the transactions contemplated hereby and to take all additional actions necessary to adopt and approve this Agreement, the Merger Agreements and the transactions contemplated hereby and thereby. Section 7.5 Agreement to Cooperate; Further Assurances. Subject to the ------------------------------------------ terms and conditions of this Agreement, each of the parties hereto shall use all reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement and the Merger Agreements, subject to the appropriate vote of unitholders of NRLP and stockholders of ART described in Section 8.1 (a) hereof, including providing information and using reasonable efforts to obtain all necessary or appropriate waivers, consents and approvals, and effecting all necessary registrations and filings (including filings under the HSR Act); provided that nothing herein shall require Newco, ART or NRLP to hold, manage or operate any assets separately in order to obtain any such consent or approval or to enter into any sale or divestiture of assets. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement or the Merger Agreements, the proper partners, officers and directors of each party to this Agreement shall take all necessary actions to the extent not inconsistent with their other duties and obligations or applicable law. Section 7.6 Stock Options. ------------- (a) To the extent that acceleration of the exercisability of any outstanding option to purchase shares of ART Common Stock (an "ART Stock Option"), any outstanding unit based on the value of ART Common Stock or the stock of an ART Subsidiary is permitted but not required by the applicable governing instrument, then ART shall take all necessary action to cause such acceleration not to occur. In connection therewith, at the Effective Time, to the extent permitted by the terms of the relevant governing instruments, each ART Stock Option, whether vested or unvested, shall be assumed by Newco. Unless ART and NRLP shall otherwise agree, each such ART Stock Option shall be deemed to constitute an option to acquire, on the same terms and conditions as were applicable under such ART Stock Option, the same number of shares of Newco Common Stock as the holder of such ART Stock Option would have been entitled to receive pursuant to the ART Merger had such holder exercised such option in full immediately prior to the Effective Time. (b) As soon as practicable after the Effective Time, Newco shall file a registration statement on the appropriate form with respect to the shares of Newco Common Stock subject to such options and shall use its best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options remain outstanding. Newco shall administer the ART Plans assumed pursuant to this Section 7.6 in a manner that complies with Rule 16b-3 promulgated under the Exchange Act to the extent the ART Plans complied with such rule prior to the ART Merger. Section 7.7 Public Statements. The parties shall consult with each other ----------------- prior to issuing any public announcement or statement with respect to this Agreement, the Merger Agreements or the transactions contemplated hereby or thereby and shall not issue any such public announcement or statement prior to such consultation, except as may be required by law or by the rules of the exchange on which the ART Common Stock or NRLP Units are currently listed for trading. Section 7.8 Letter of NRLP's Accountants. NRLP shall use its best efforts ---------------------------- to cause to be delivered to ART a letter of BDO Seidman, LLP, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to ART, in form and substance reasonably satisfactory to ART and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. Section 7.9 Letter of ART's Accountants. ART shall use its best efforts to --------------------------- cause to be delivered to NRLP a letter of BDO Seidman, LLP, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to NRLP, in form and substance reasonably satisfactory to NRLP and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. Section 7.10 Expenses. All costs and expenses incurred in connection with -------- this Agreement and the Merger Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such expenses, except that those expenses incurred in connection with printing and mailing the Proxy Statement and the Form S-4, as well as the filing fee relating thereto, shall be shared equally by ART, on the one hand, and NRLP, on the other hand. Section 7.11 Newco Activities. Until the Effective Time, except in ---------------- connection with or furtherance of the transactions contemplated by this Agreement and the Merger Agreements, Newco will incur no obligations or liabilities nor engage in any business or activities of any type or kind whatsoever or enter into any agreements or arrangements with any person or entity. 7.12 Reporting. Newco, ART and NRLP shall for federal income tax purposes --------- report the transactions contemplated by this Agreement, the ART Merger Agreement and the NRLP Merger Agreement pursuant to which Newco stock is issued to ART shareholders and limited partners of NRLP (other than ART and its wholly owned subsidiaries) as a transaction governed by Section 351 of the Code. Newco shall comply with the reporting and record keeping requirements of Treasury Regulation Section 1.351-3 with respect to such transactions. Newco shall inform each recipient of Newco stock pursuant to such transactions of such recipient's reporting and record keeping requirements as specified in Treasury Regulation Section 1.351-3 with respect to such transactions. ARTICLE VIII CONDITIONS Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditions: (a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote; (b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated; (c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby; (d) The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect; (e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted); (f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and (g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance. Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect; (b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby; (c) NRLP shall have received the letter of BDO Seidman, LLP referred to in Section 7.8 hereof; and (d) NRLP and Newco shall have received an opinion from Locke Liddell & Sapp LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code. Section 8.3 Conditions to Obligation of ART to Effect the ART Merger. The -------------------------------------------------------- obligation of ART to effect the ART Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) NRLP shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of NRLP contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated by this Agreement and the Merger Agreements, and ART shall have received a certificate of the general partner of NRLP to that effect; (b) NRLP shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on NRLP or upon the consummation of the transactions contemplated hereby; (c) ART shall have received the letter of BDO Seidman, LLP referred to in Section 7.9 hereof; and (d) ART and Newco shall have received an opinion from Locke Liddell & Sapp LLP substantially to the effect that the ART Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code. ARTICLE IX TERMINATION, AMENDMENT AND WAIVER Section 9.1 Termination. This Agreement may be terminated at any time prior ----------- to the Effective Time, whether before or after approval by the shareholders of ART or the unitholders of NRLP: (a) by the mutual written consent of ART and NRLP; (b) by either ART or NRLP if (i) the Mergers shall not have been consummated on or before March 31, 2000 (the "Termination Date"); (ii) any Governmental Entity, the consent of which is a condition to the obligations of ART and NRLP to consummate the transactions contemplated hereby or by the Merger Agreements, shall have determined not to grant its consent and all appeals of such determination shall have been taken and have been unsuccessful; or (iii) any court of competent jurisdiction in the United States or any State shall have issued an order, judgment or decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting either of the Mergers and such order, judgment or decree shall have become final and non-appealable; (c) by NRLP if (i) in the exercise of its good faith judgment as to its fiduciary duties to its unitholders imposed by law, the general partner of NRLP determines that such termination is required by reason of an Acquisition Proposal having been made to it on terms more favorable to NRLP's unitholders than the transactions contemplated hereby, (ii) the ART Merger shall have been voted on by holders of ART Common Stock at a meeting duly convened therefor, and the votes shall not have been sufficient to satisfy the condition set forth in Section 8.1(a) hereof, (iii) there has been a material breach by ART of any representation, warranty, covenant or agreement set forth in this Agreement or the ART Merger Agreement, which breach has not been cured within ten business days following receipt by the breaching party of notice of such breach; or (iv) the Board of Directors of ART should fail to recommend to its stockholders approval of the transactions contemplated by this Agreement and the ART Merger Agreement or such recommendation shall have been made and subsequently withdrawn; (d) by ART if (i) in its exercise of its good faith judgment as to its fiduciary duties to its stockholders imposed by law, the Board of Directors of ART determines that such termination is required by reason of an Acquisition Proposal having been made to it on terms more favorable to ART's shareholders than the transactions contemplated hereby, (ii) the NRLP Merger shall have been voted on by holders of NRLP Units at a meeting duly convened therefor and the votes shall not have been sufficient to satisfy the condition set forth in Section 8.1(a), (iii) there has been a material breach by NRLP of any representation, warranty, covenant or agreement set forth in this Agreement or the NRLP Merger Agreement, which breach has not been cured within ten business days following receipt by the breaching party of notice of such breach; or (iv) the general partner of NRLP should fail to recommend to its unitholders approval of the transactions contemplated by this Agreement and the NRLP Merger Agreement or such recommendation shall have been made and subsequently withdrawn; provided that the right to terminate this Agreement (x) under Section 9.1(b)(i) hereof shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date and (y) under Section 9.1(c) and (d) hereof shall not be available to any party who at such time is in material breach of any representation, warranty, covenant or agreement set forth in this Agreement or the Merger Agreements. Section 9.2 Effect of Termination. In the event of termination of this --------------------- Agreement by either ART or NRLP as provided in Section 9.1 hereof, this Agreement shall forthwith become void (except as set forth in this Section 9.2 and in Sections 7.2 and 7.10 hereof which shall survive the termination) and there shall be no liability on the part of Newco, ART or NRLP or their respective officers, directors or partners except for any breach of any of its obligations under this Section 9.2 and Sections 7.2 and 7.10. Notwithstanding the foregoing, no party hereto shall be relieved from liability for any willful, material breach of this Agreement. Section 9.3 Amendment. This Agreement and the Merger Agreements may be --------- amended by the parties hereto at any time before or after approval hereof by the shareholders of ART or unitholders of NRLP, respectively, provided that after any such approval, no amendment shall be made which (a) changes the ratios at which shares of ART Stock or NRLP Units are to be converted into shares of Newco Common Stock pursuant to the Merger Agreements hereof, (b) in any way materially adversely affects the rights of holders of shares of ART Stock or holders of NRLP Units or (c) changes any of the principal terms of this Agreement or the Merger Agreements, in each case without the further approval of such shareholders or unitholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Section 9.4 Waiver. At any time prior to the Effective Time, the parties ------ hereto may (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid if set forth in an instrument in writing signed on behalf of such party. ARTICLE X GENERAL PROVISIONS Section 10.1 Non-Survival of Representations, Warranties and Agreements. ---------------------------------------------------------- None of the representations, warranties and agreements in this Agreement shall survive the Effective Time. Section 10.2 Notices. Any notices or other communications required or ------- permitted hereunder shall be in writing and shall be deemed duly given upon (a) transmitter's confirmation of a receipt of a facsimile transmission, (b) confirmed delivery by a standard overnight carrier or when delivered by hand or (c) the expiration of five business days after the day when mailed by certified or registered mail, postage prepaid, addressed at the following addresses (or at such other address as the parties hereto shall specify by like notice): If to ART, to: American Realty Trust, Inc. 10670 North Central Expressway Suite 600 Dallas, Texas 75231 Attention: Karl L. Blaha, President If to NRLP, to: National Realty, L.P. c/o NRLP Management Corp. 10670 North Central Expressway Suite 600 Dallas, Texas 75231 Attention: Thomas A. Holland, Executive Vice President In either case, with a copy (which shall not constitute notice) to: Locke Liddell & Sapp LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Attention: C. Ronald Kalteyer, Esq. Section 10.3 Interpretation. The headings contained in this Agreement are -------------- for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." Section 10.4 Miscellaneous. This Agreement (including the documents and ------------- instruments referred to herein) (a) together with the Merger Agreements, constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof; (b) is not intended to confer upon any other person any rights or remedies hereunder; and (c) shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Texas (without giving effect to the provisions thereof relating to conflicts of law). The parties hereby acknowledge that, except as otherwise specifically agreed to in writing, no party shall have the right to acquire or shall be deemed to have acquired shares of common stock or units of partnership interest of the other party pursuant to the Mergers until consummation thereof. Section 10.5 Counterparts. This Agreement may be executed in two or more ------------ counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Section 10.6 Parties in Interest. Subject to the provisions of Section ------------------- 10.4(c) hereof, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns and, except as set forth in Section 10.4 hereof, nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Section 10.7 Successors and Assigns; Assignment. This Agreement and all of ---------------------------------- the provisions hereof shall be binding upon, and inure to the benefit of, each of the parties hereto and each of their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by the parties hereto without the prior written consent of the others, nor is this Agreement intended to confer upon any other persons except the parties hereto any rights or remedies hereunder. Section 10.8 Waiver of Compliance; Consents. Except as otherwise provided ------------------------------ in this Agreement, any failure of any party hereto comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Section 10.9 Severability. Any term or provision of this Agreement which ------------ is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. Section 10.10 Attorneys' Fees. If any action at law or equity, including an --------------- action for declaratory relief, is brought to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and expenses from the other party, which fees and expenses shall be in addition to any other relief which may be awarded. IN WITNESS WHEREOF, Newco, ART and NRLP have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. AMERICAN REALTY INVESTORS, INC. By: /s/ Bruce A. Endendyk -------------------------------- Name: Bruce A. Endendyk --------------------------- Title: Executive Vice President -------------------------- AMERICAN REALTY TRUST, INC. By: /s/ Thomas A. Holland -------------------------------- Name: Thomas A. Holland --------------------------- Title: Executive Vice President --------------------------- NATIONAL REALTY, L.P. By: NRLP Management Corp., its general partner By: /s/ Robert A. Waldman ------------------------------- Name: Robert A. Waldman -------------------------- Title: Senior Vice President ------------------------- EXHIBIT A --------- FORM OF AGREEMENT OF MERGER AGREEMENT OF MERGER, dated November ___, 1999 (the "Agreement"), by and among American Realty Investors, Inc., a newly formed Nevada corporation ("Newco"), American Realty Trust, Inc., a Georgia corporation ("ART"), and ART Acquisition Corp., a newly formed Georgia corporation and a wholly owned subsidiary of Newco ("Sub I"). WHEREAS, Newco, ART and National Realty, L.P., a Delaware limited partnership ("NRLP"), have entered into an Agreement and Plan of Reorganization (the "Plan of Reorganization"), which provides for this Agreement of Merger; WHEREAS, the Boards of Directors of Newco, ART and Sub I have approved the merger of Sub I with and into ART and the consummation of the transactions contemplated hereby and by the Plan of Reorganization, upon the terms and subject to the conditions set forth herein and in the Plan of Reorganization; WHEREAS, the Boards of Directors of Newco and NRLP Acquisition Corp., a newly formed Delaware corporation ("Sub II"), and the general partner of National Realty, L.P. ("NRLP") have approved the merger of Sub II with and into NRLP pursuant to an Agreement of Merger (the "NRLP Merger Agreement"); and WHEREAS, as part of a single plan to be effectuated pursuant to this Agreement, the Plan of Reorganization and the NRLP Merger Agreement, it is intended that the transactions described in such agreements be treated for federal income tax purposes as an integrated transaction described in Section 351 of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder (and any similar provision of state law). NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and in the Plan of Reorganization, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I THE MERGER Section 1.1 The Merger. Upon the terms and subject to the conditions of this ---------- Agreement and the Plan of Reorganization, at the Effective Time (as hereinafter defined) in accordance with the Georgia Business Corporation Act (the "GBCA"), Sub I shall be merged with and into ART and the separate existence of Sub I shall thereupon cease (the "ART Merger"). ART shall be the surviving corporation in the ART Merger (hereinafter sometimes referred to as the "Surviving Corporation"). Section 1.2 Effective Time of the ART Merger. The ART Merger shall become -------------------------------- effective as of the date and at such time (the "Effective Time") as a certificate of merger pursuant to Section 14-2-1105 of the GBCA and any other documents necessary to effect the ART Merger in accordance with the GBCA shall be filed with the Secretary of State of the State of Georgia and become effective. Such filings shall be made, and shall provide that the instruments filed therewith shall become effective, in accordance with the Plan of Reorganization. Section 1.3 Effects of Merger. The Merger shall have the effects set forth ----------------- in Section 14-2-1106 of the GBCA. ARTICLE II THE SURVIVING CORPORATION Section 2.1 Articles of Incorporation. At the Effective Time, the articles ------------------------- of incorporation of ART, as in effect immediately prior to the Effective Time, shall be amended so that the operative provisions read in their entirety exactly as the articles of incorporation of Sub I as in effect immediately prior to the Effective Time, except that the name of the corporation specified therein shall be "American Realty Trust, Inc." Section 2.2 Bylaws. At the Effective Time, the bylaws of ART, as in effect ------ immediately prior to the Effective Time, shall be amended so that they read in their entirety exactly as the bylaws of Sub I, as in effect immediately prior to the Effective Time, except that the name of the corporation specified therein shall be "American Realty Trust, Inc." Section 2.3 Directors and Officers. At and after the Effective Time, the ---------------------- board of directors of the Surviving Corporation shall be comprised of the persons so designated in Exhibit A hereto and the officers of the Surviving --------- Corporation shall be the persons so designated in Exhibit A hereto, in each case --------- until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation's articles of incorporation and bylaws. ARTICLE III CONVERSION OF SHARES Section 3.1 Conversion of Shares. At the Effective Time, by virtue of the -------------------- ART Merger and without any action on the part of any holder of any capital stock of ART or Sub I: (a) each share of common stock, par value $.01 per share (the "ART Common Stock"), of ART (other than any shares of ART Common Stock that are held in the treasury of ART) issued and outstanding immediately prior to the Effective Time shall, subject to Section 3.3 hereof, be converted into, and become exchangeable for, .91 shares of common stock, par value $.01 per share, of Newco (the "Newco Common Stock"); (b) each share of special stock, par value $2.00 per share (the "ART Special Stock" and, together with the ART Common Stock, the "ART Stock") of ART (other than any shares of ART Special Stock that are held in the treasury of ART and any shares of ART Special Stock that are owned by any of ART's direct or indirect wholly owned Subsidiaries), issued and outstanding immediately prior to the Effective Time, shall be converted into, and become exchangeable for, one (1) share of preferred stock, par value $2.00 per share of Newco (the "Newco Preferred Stock"); (c) each share of ART Stock that is held in the treasury of ART shall be cancelled and cease to exist at and after the Effective Time and no consideration shall be delivered with respect thereto; (d) each share of common stock, par value $.01 per share, of Sub I, shall be converted into and become one share of common stock, par value $.01 per share, of the Surviving Corporation; and (e) each share of Newco Common Stock issued and outstanding immediately prior to the Effective Time and owned by Robert A. Waldman shall be cancelled and cease to exist at and after the Effective Time and no consideration shall be delivered with respect thereto. Section 3.2 Exchange of ART Certificates. ---------------------------- (f) From and after the Effective Time, (i) each holder of a certificate that immediately prior to the Effective Time represented a share of ART Common Stock (other than those shares of ART Common Stock held in the treasury of ART) shall be entitled to receive in exchange therefor (or upon the provision of an appropriate affidavit of lost certificate and an indemnity bond), upon surrender thereof to an exchange agent selected by ART and NRLP (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Newco Common Stock into which such holder's shares of ART Common Stock were converted pursuant to Section 3.1 hereof and (ii) each holder of a certificate that immediately prior to the Effective Time represented a share of ART Special Stock (other than those shares of ART Special Stock held in the treasury of ART) shall be entitled to receive in exchange therefor (or upon the provision of an appropriate affidavit of lost certificate and an indemnity bond), upon surrender to the Exchange Agent, a certificate or certificates representing the number of shares of Newco Preferred Stock into which such holder's shares of ART Special Stock were converted pursuant to Section 3.1 hereof. From and after the Effective Time, Newco shall be entitled to treat each certificate formerly representing ART Stock (each an "ART Certificate"), which has not yet been surrendered for exchange, as evidencing the ownership of the number of full shares of Newco Common Stock into which the ART Stock represented by such ART Certificate shall have been converted pursuant to Section 3.1 hereof, notwithstanding the failure to surrender such ART Certificate. However, notwithstanding any other provision of this Agreement, until holders or transferees of ART Certificates formerly representing ART Stock have surrendered them for exchange as provided herein (i) no dividends or other distributions, if any, without interest, shall be paid with respect to any shares of Newco Common Stock represented by such ART Certificates and no payment for fractional shares shall be made, and (ii) without regard to when such ART Certificates are surrendered for exchange as provided herein, no interest shall be paid or payable on any dividends, if any, or any amount payable in respect of fractional shares of Newco Common Stock. Upon surrender of an ART Certificate, which immediately prior to the Effective Time represented ART Stock, there shall be paid to the holder of such ART Certificate the amount of any dividends, if any, which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Newco Common Stock represented by such ART Certificate (or certificates) issued upon such surrender. If any certificate for shares of Newco Common Stock is to be issued in a name other than that in which the ART Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of certificates for such shares of Newco Common Stock in a name other than that of the registered holder of the ART Certificate surrendered, or shall establish to the satisfaction of Newco that such tax has been paid or is not applicable. (g) As soon as practicable after the Effective Time, Newco shall make available to the Exchange Agent the certificates representing shares of Newco Common Stock required to effect the exchange referred to in Section 3.2(a) hereof. The shares of Newco Common Stock into which ART Stock shall be converted in the ART Merger shall be deemed to have been issued at the Effective Time. (h) As soon as practicable after the Effective Time, the Exchange Agent shall mail to each person who was a holder of record of ART Stock immediately prior to the Effective Time whose shares were converted into the right to receive shares of Newco Common Stock pursuant to Section 3.1 hereof (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to any ART Certificate shall pass, only upon actual delivery of the ART Certificates to the Exchange Agent and shall be in such form and have such other provisions as ART and NRLP may reasonably specify) and (ii) instructions for use in effecting the surrender of ART Certificates in exchange for certificates representing shares of Newco Common Stock. Upon surrender of an ART Certificate for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall require, the holder of such ART Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Newco Common Stock into which the ART Stock theretofore represented by the ART Certificates so surrendered shall have been converted pursuant to the provisions of Section 3.1 hereof, and the ART Certificates so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of ART Stock for any shares of Newco Common Stock or dividends or distributions thereon, if any, delivered to a public official pursuant to applicable abandoned property, escheat or similar law. Section 3.3 No Fractional Shares. Notwithstanding any other provision of -------------------- this Agreement or the Plan of Reorganization, no certificates or scrip for fractional shares of Newco Common Stock shall be issued upon the surrender for exchange of an ART Certificate pursuant to this Article III and no dividend or other distribution, stock split or interest with respect to shares of Newco Common Stock, if any, shall relate to any fractional share, and such fractional interests shall not entitle the owner thereof to vote or to any other rights of a stockholder. In lieu of any such fractional shares, each holder of ART Stock who would otherwise have been entitled to a fraction of a share of Newco Common Stock upon surrender of an ART Certificate for exchange pursuant to this Article III shall be entitled to receive from the Exchange Agent a cash payment (without interest) in lieu of such fractional share equal to such fraction multiplied by the average closing price per share of Newco Common Stock on the New York Stock Exchange, Inc. or on such exchange as the Newco Common Stock shall be listed, during the five trading days immediately following the Effective Time. Section 3.4 Closing of Transfer Books. From and after the Effective Time, ------------------------- the stock transfer books of ART (but not of the Surviving Corporation) shall be closed and no transfer of ART Stock shall thereafter be made. If, after the Effective Time, ART Certificates are presented to Newco, they shall be cancelled and exchanged for certificates representing shares of Newco Common Stock as set forth in Section 3.1 hereof. Section 3.5 Tax Effects. The parties intend that the transactions ----------- described in this Agreement, the NRLP Merger Agreement and the Plan of Reorganization constitute a single plan that is treated for federal income tax purposes as an integrated transaction described in and satisfying each of the requirements of Section 351 of the Code and the regulations thereunder (and any similar provisions of state laws) pursuant to which (i) each shareholder of ART is treated as transferring all of its ART stock to Newco in exchange for Newco stock, (ii) each limited partner of NRLP, other than ART (and its wholly owned subsidiaries), is treated as transferring all of its NRLP Units to Newco in exchange for Newco stock and (iii) immediately after the transactions described in (i) and (ii), the former shareholders of ART and the former limited partners of NRLP, other than ART (and its wholly owned subsidiaries), as a group, are in "control" of Newco (as such term is defined in Section 368(c) of the Code). The parties intend that no transactions other than the transactions described in this Agreement, the NRLP Merger Agreement and the Plan of Reorganization be considered part of the integrated transaction for purposes of determining the group in "control" of Newco immediately after these transactions. ARTICLE IV MISCELLANEOUS Section 4.1 Termination. Prior to the Effective Time, this Agreement ----------- shall terminate in the event of and upon the termination of the Plan of Reorganization. Section 4.2 Amendment. This Agreement may be amended by the parties --------- hereto, at any time before or after approval hereof by the stockholders of Newco or ART, provided that after any such approval, no amendment shall be made which (a) changes the ratio at which shares of ART Stock are to be converted into shares of Newco Common Stock pursuant to Section 3.1 hereof, (b) in any way materially adversely affects the rights of holders of ART Stock or (c) changes any of the principal terms of this Agreement or the Plan of Reorganization, in each case, without the further approval of such stockholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Section 4.3 Notices. Any notices or other communications required or ------- permitted hereunder shall be in writing and shall be deemed duly given upon (a) transmitter's confirmation of a receipt of a facsimile transmission, (b) confirmed delivery by a standard overnight carrier or by hand delivery or (c) the expiration of five business days after the day when mailed by certified or registered mail, postage prepaid, addressed at the following addresses (or at such other address as the parties hereto shall specify by like notice): (a) If to Newco or Sub I to: American Realty Investors, Inc. c/o Basic Capital Management, Inc. 10670 North Central Expressway, Suite 600 Dallas, Texas 75231 Attention: Thomas A. Holland Executive Vice President (b) If to ART, to: American Realty Trust, Inc. 10670 North Central Expressway, Suite 600 Dallas, Texas 75231 Attention: Karl L. Blaha President with a copy (which shall not constitute notice) to: Locke Liddell & Sapp LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Telecopy No. (214) 740-8800 Attention: C. Ronald Kalteyer, Esq. Section 4.4 Interpretation. As used in this Agreement, the word -------------- "Subsidiary" means, with respect to any party, any corporation or other entity of which outstanding securities having ordinary voting power to elect a majority of the board of directors of such corporation or a majority of the voting power of the voting equity interest of such other entity is owned, directly or indirectly, by such party. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." Section 4.5 Miscellaneous. This Agreement (including the documents and ------------- instruments referred to herein) (a) together with the Plan of Reorganization, constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof; (b) is not intended to confer upon any other person any rights or remedies hereunder; (c) shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto, except that Sub I may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any direct or indirect wholly owned Subsidiary of Newco; and (d) shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Georgia (without giving effect to the provisions thereof relating to conflicts of law). Section 4.6 Counterparts. This Agreement may be executed in two or more ------------ counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Section 4.7 Parties in Interest. Subject to the provisions of Section ------------------- 4.5(c) hereof, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Section 4.8 Severability. Any term or provision of this Agreement which ------------ is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. Section 4.9 Reporting. Newco, ART and Sub I shall for federal income tax --------- purposes report the transactions contemplated by this Agreement, the NRLP Merger Agreement and the Plan of Reorganization pursuant to which Newco stock is issued to ART shareholders and limited partners of NRLP (other than ART and its wholly owned subsidiaries) as a transaction governed by Section 351 of the Code. Newco shall comply with the reporting and record keeping requirements of Treasury Regulation Section 1.351-3 with respect to such transactions. Newco shall inform each recipient of Newco stock pursuant to such transactions of such recipient's reporting and record keeping requirements as specified in Treasury Regulation Section 1.351-3 with respect to such transactions. IN WITNESS WHEREOF, Newco, ART and Sub I have caused this Agreement of Merger to be signed by their respective officers thereunto duly authorized as of the date first written above. AMERICAN REALTY INVESTORS, INC. By:_____________________________________ Name:________________________________ Title:_______________________________ AMERICAN REALTY TRUST, INC. By:_____________________________________ Name:________________________________ Title:_______________________________ ART ACQUISITION CORP. By:_____________________________________ Name:________________________________ Title:_______________________________ EXHIBIT B --------- FORM OF AGREEMENT OF MERGER AGREEMENT OF MERGER, dated November ___, 1999 (the "Agreement"), by and among American Realty Investors, Inc., a newly formed Nevada corporation ("Newco"), National Realty, L.P., a Delaware limited partnership ("NRLP"), and NRLP Acquisition Corp., a newly-formed Delaware corporation and a wholly owned subsidiary of Newco ("Sub II"). WHEREAS, Newco, NLRP and American Realty Trust, Inc., a Georgia corporation ("ART") have entered into an Agreement and Plan of Reorganization (the "Plan of Reorganization"), which provides for this Agreement of Merger; WHEREAS, the Boards of Directors of Newco and Sub II and the general partner of NRLP have approved the merger of Sub II with and into NRLP and the consummation of the transactions contemplated hereby and by the Plan of Reorganization, upon the terms and subject to the conditions set forth herein and in the Plan of Reorganization; WHEREAS, the Boards of Directors of Newco, American Realty Trust, Inc., a Georgia corporation ("ART") and ART Acquisition Corp., a Georgia corporation ("Sub I") have approved the merger of Sub I with and into ART pursuant to an Agreement of Merger (the "ART Merger Agreement"); and WHEREAS, as part of a single plan to be effectuated pursuant to this Agreement, the ART Merger Agreement and the Plan of Reorganization, it is intended that the transactions described in such agreements be treated for federal income tax purposes as an integrated transaction described in Section 351 of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder (and any similar provision of state law). NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and in the Plan of Reorganization, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I THE MERGER Section 1.1 The Merger. Upon the terms and subject to the conditions of ---------- this Agreement and the Plan of Reorganization, at the Effective Time (as hereinafter defined) in accordance with the Delaware Revised Limited Partnership Act ("DRLPA") and the Delaware General Corporation Law (the "DGCL") Sub II shall be merged with and into NRLP and the separate existence of Sub II shall thereupon cease (the "NRLP Merger"). NRLP shall be the surviving entity in the NRLP Merger (hereinafter sometimes referred to as the "Surviving Entity"). Section 1.2 Effective Time of the NRLP Merger. The NRLP Merger shall --------------------------------- become effective as of the date and at such time (the "Effective Time") as a certificate of merger pursuant to Section 263 of the DGCL and any other documents necessary to effect the NRLP Merger in accordance with the DRLPA and the DGCL shall be filed with the Secretary of State of the State of Delaware and become effective. Such filings shall be made, and shall provide that the instruments filed therewith shall become effective, in accordance with the Plan of Reorganization. Section 1.3 Effects of Merger. The Merger shall have the effects set forth ----------------- in Section 251 of the DGCL. ARTICLE II THE SURVIVING ENTITY Section 2.1 Governing Documents. At the Effective Time, the agreement of ------------------- limited partnership of NRLP, as in effect immediately prior to the Effective Time, shall be the agreement of limited partnership of the Surviving Entity. ARTICLE III CONVERSION OF UNITS Section 3.1 Conversion of Units. At the Effective Time, by virtue of the ------------------- NRLP Merger and without any action on the part of any holder of units of partnership interest of NRLP (the "NRLP Units") or the holder of any capital stock of Sub II: (a) each Unit (other than units that are owned by ART or any of ART's direct or indirect wholly owned Subsidiaries (as hereinafter defined)) issued and outstanding immediately prior to the Effective Time shall, subject to Section 3.3 hereof, be converted into, and become exchangeable for, one (1) share of common stock, par value $.01 per share, of Newco (the "Newco Common Stock"); (b) each share of common stock, par value $.01 per share, of Sub II shall be cancelled and cease to exist at and after the Effective Time and no consideration shall be delivered with respect thereto; and (c) each share of Newco Common Stock issued and outstanding immediately prior to the Effective Time and owned by Robert A. Waldman shall be cancelled and cease to exist at and after the Effective Time and no consideration shall be delivered with respect thereto. Section 3.2 Exchange of NRLP Certificates. ----------------------------- (d) From and after the Effective Time, each holder of a certificate that immediately prior to the Effective Time represented an NRLP Unit (other than those NRLP Units owned by ART or any direct or indirect wholly owned Subsidiary of ART) shall be entitled to receive in exchange therefor (or upon the provision of an appropriate affidavit of lost certificate and an indemnity bond), upon surrender thereof to an exchange agent selected by NRLP and ART (the "Exchange Agent"), a certificate or certificates representing the number of whole shares of Newco Common Stock into which such holder's NRLP Units were converted pursuant to Section 3.1 hereof. From and after the Effective Time, Newco shall be entitled to treat each certificate formerly representing NRLP Units (each an "NRLP Certificate"), which has not yet been surrendered for exchange, as evidencing the ownership of the number of full shares of Newco Common Stock into which the NRLP Units represented by such NRLP Certificate shall have been converted pursuant to Section 3.1 hereof, notwithstanding the failure to surrender such NRLP Certificate. However, notwithstanding any other provision of this Agreement, until holders or transferees of NRLP Certificates formerly representing NRLP Units have surrendered them for exchange as provided herein (i) no dividends or other distributions, if any, without interest, shall be paid with respect to any shares of Newco Common Stock represented by such NRLP Certificates and no payment for fractional shares shall be made, and (ii) without regard to when such NRLP Certificates are surrendered for exchange as provided herein, no interest shall be paid or payable on any dividends, if any, or any amount payable in respect of fractional shares of Newco Common Stock. Upon surrender of an NRLP Certificate, which immediately prior to the Effective Time represented NRLP Units, there shall be paid to the holder of such NRLP Certificate the amount of any dividends, if any, which theretofore became payable, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Newco Common Stock represented by such NRLP Certificate (or certificates) issued upon such surrender. If any certificate for shares of Newco Common Stock is to be issued in a name other than that in which the NRLP Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of certificates for such shares of Newco Common Stock in a name other than that of the registered holder of the NRLP Certificate surrendered, or shall establish to the satisfaction of Newco that such tax has been paid or is not applicable. (e) As soon as practicable after the Effective Time, Newco shall make available to the Exchange Agent the certificates representing shares of Newco Common Stock required to effect the exchange referred to in Section 3.2(a) hereof. The shares of Newco Common Stock into which NRLP Units shall be converted in the NRLP Merger shall be deemed to have been issued at the Effective Time. (f) As soon as practicable after the Effective Time, the Exchange Agent shall mail to each person who was a holder of record of NRLP Units immediately prior to the Effective Time whose shares were converted into the right to receive shares of Newco Common Stock pursuant to Section 3.1 hereof (i) a form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to any NRLP Certificate shall pass, only upon actual delivery of the NRLP Certificates to the Exchange Agent and shall be in such form and have such other provisions as NRLP and ART may reasonably specify) and (ii) instructions for use in effecting the surrender of NRLP Certificates in exchange for certificates representing shares of Newco Common Stock. Upon surrender of an NRLP Certificate for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall require, the holder of such NRLP Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Newco Common Stock into which the NRLP Units theretofore represented by the NRLP Certificates so surrendered shall have been converted pursuant to the provisions of Section 3.1 hereof, and the NRLP Certificates so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of NRLP Units for any shares of Newco Common Stock or dividends or distributions thereon, if any, delivered to a public official pursuant to applicable abandoned property, escheat or similar law. Section 3.3 No Fractional Shares. Notwithstanding any other provision of -------------------- this Agreement or the Plan of Reorganization, no certificates or scrip for fractional shares of Newco Common Stock shall be issued upon the surrender for exchange of an NRLP Certificate pursuant to this Article III and no dividend or other distribution, stock split or interest with respect to shares of Newco Common Stock, if any, shall relate to any fractional share, and such fractional interests shall not entitle the owner thereof to vote or to any other rights of a stockholder. In lieu of any such fractional shares, each holder of NRLP Units who would otherwise have been entitled to a fraction of a share of Newco Common Stock upon surrender of an NRLP Certificate for exchange pursuant to this Article III shall be entitled to receive from the Exchange Agent a cash payment (without interest) in lieu of such fractional share equal to such fraction multiplied by the average closing price per share of Newco Common Stock on the New York Stock Exchange, Inc. or on such exchange as the Newco Common Stock shall be listed, during the five trading days immediately following the Effective Time. Section 3.4 Closing of Transfer Books. From and after the Effective Time, ------------------------- the unit transfer books of NRLP (but not of the Surviving Entity) shall be closed and no transfer of NRLP Units shall thereafter be made. If, after the Effective Time, NRLP Certificates are presented to Newco, they shall be cancelled and exchanged for certificates representing shares of Newco Common Stock as set forth in Section 3.1 hereof. Section 3.5 Tax Effects. The parties intend that the transactions ----------- described in this Agreement, the ART Merger Agreement and the Plan of Reorganization constitute a single plan that is treated for federal income tax purposes as an integrated transaction described in and satisfying each of the requirements of Section 351 of the Code and the regulations thereunder (and any similar provisions of state laws) pursuant to which (i) each shareholder of ART is treated as transferring all of its ART stock to Newco in exchange for Newco stock, (ii) each limited partner of NRLP, other than ART (and its wholly owned subsidiaries), is treated as transferring all of its NRLP Units to Newco in exchange for Newco stock and (iii) immediately after the transactions described in (i) and (ii), the former shareholders of ART and the former limited partners of NRLP, other than ART (and its wholly owned subsidiaries), as a group, are in "control" of Newco (as such term is defined in Section 368(c) of the Code). The parties intend that no transactions other than the transactions described in this Agreement, the ART Merger Agreement and the Plan of Reorganization be considered part of the integrated transaction for purposes of determining the group in "control" of Newco immediately after these transactions. ARTICLE IV MISCELLANEOUS Section 4.1 Termination. Prior to the Effective Time, this Agreement ----------- shall terminate in the event of and upon the termination of the Plan of Reorganization. Section 4.2 Amendment. This Agreement may be amended by the parties --------- hereto, at any time before or after approval hereof by the stockholders of Newco or the unitholders of NRLP, provided that after any such approval, no amendment shall be made which (a) changes the ratio at which NRLP Units are to be converted into shares of Newco Common Stock pursuant to Section 3.1 hereof, (b) in any way materially adversely affects the rights of holders of NRLP Units or (c) changes any of the principal terms of this Agreement or the Plan of Reorganization, in each case, without the further approval of such unitholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Section 4.3 Notices. Any notices or other communications required or ------- permitted hereunder shall be in writing and shall be deemed duly given upon (a) transmitter's confirmation of a receipt of a facsimile transmission, (b) confirmed delivery by a standard overnight carrier or by hand delivery or (c) the expiration of five business days after the day when mailed by certified or registered mail, postage prepaid, addressed at the following addresses (or at such other address as the parties hereto shall specify by like notice): (a) If to Newco or Sub II to: American Realty Investors, Inc. c/o Basic Capital Management, Inc. 10670 North Central Expressway, Suite 600 Dallas, Texas 75231 Attention: Thomas A. Holland Executive Vice President (b) If to NRLP, to: National Realty, L.P. c/o NRLP Management Corp. 10670 North Central Expressway, Suite 600 Dallas, Texas 75231 Attention: Karl L. Blaha President with a copy (which shall not constitute notice) to: Locke Liddell & Sapp LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Telecopy No. (214) 740-8800 Attention: C. Ronald Kalteyer, Esq. Section 4.4 Interpretation. As used in this Agreement, the word -------------- "Subsidiary" means, with respect to any party, any corporation or other entity of which outstanding securities having ordinary voting power to elect a majority of the board of directors of such corporation or a majority of the voting power of the voting equity interest of such other entity is owned, directly or indirectly, by such party. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." Section 4.5 Miscellaneous. This Agreement (including the documents and ------------- instruments referred to herein) (a) together with the Plan of Reorganization, constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof; (b) is not intended to confer upon any other person any rights or remedies hereunder; (c) shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto, except that Sub II may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any direct or indirect wholly owned Subsidiary of Newco; and (d) shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Delaware (without giving effect to the provisions thereof relating to conflicts of law). Section 4.6 Counterparts. This Agreement may be executed in two or more ------------ counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Section 4.7 Parties in Interest. Subject to the provisions of Section ------------------- 4.5(c) hereof, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Section 4.8 Severability. Any term or provision of this Agreement which ------------ is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. Section 4.9 Reporting. Newco, NRLP and Sub II shall for federal income --------- tax purposes report the transactions contemplated by this Agreement, the ART Merger Agreement and the Plan of Reorganization pursuant to which Newco stock is issued to ART shareholders and limited partners of NRLP (other than ART and its wholly owned subsidiaries) as a transaction governed by Section 351 of the Code. Newco shall comply with the reporting and record keeping requirements of Treasury Regulation Section 1.351-3 with respect to such transactions. Newco shall inform each recipient of Newco stock pursuant to such transactions of such recipient's reporting and record keeping requirements as specified in Treasury Regulation Section 1.351-3 with respect to such transactions. IN WITNESS WHEREOF, Newco, NRLP and Sub II have caused this Agreement of Merger to be signed by their respective officers thereunto duly authorized as of the date first written above. AMERICAN REALTY INVESTORS, INC. By:_______________________________________ Name:________________________________ Title:_______________________________ NATIONAL REALTY, L.P. By: NRLP Management Corp., its general partner By:__________________________________ Name:__________________________ Title:_________________________ NRLP ACQUISITION CORP. By:_______________________________________ Name:________________________________ Title:_______________________________ EXHIBIT C --------- NEWCO BOARD OF DIRECTORS ------------------------ ART Designees - ------------- Roy E. Bode Collene C. Currie Al Gonzalez Cliff Harris NRLP Designees - -------------- Karl L. Blaha Richard D. Morgan -----END PRIVACY-ENHANCED MESSAGE-----