Attached files
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-Q/A
Amendment No. 1
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarter ended September 30, 2009 Commission file #0-16976
ALP LIQUIDATING TRUST
(Exact name of registrant as specified in its charter)
Delaware 36-6044597
(State of organization) (IRS Employer Identification No.)
900 N. Michigan Avenue., Chicago, IL 60611
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code 312/915-1987
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") during the preceding 12 months (or for such a
shorter period that registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes [ X ] No [ ]
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, or a non-accelerated filer. See definition of
"accelerated filer and large accelerated filer" in Rule 12b-2 of the
Exchange Act.
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [ X ]
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [ X ]
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EXPLANATORY NOTE
ALP Liquidating Trust ("ALP") filed a Form 10-Q for the quarter ended
September 30, 2009 (the "Original Filing") with the Securities and Exchange
Commission on November 9, 2009. This Amendment No. 1 is being filed as
required by Rule 12b-15 under the Securities and Exchange Act of 1934, as
amended, new certifications by ALP's principal executive officer and
principal financial officer are being filed as exhibits to this Amendment
No. 1.
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TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Financial Statements. . . . . . . . . . . . . . . . 3
Item 2. Management's Discussion and Analysis or
Plan of Operation . . . . . . . . . . . . . . . . . 13
Item 4. Controls and Procedures . . . . . . . . . . . . . . 14
PART II OTHER INFORMATION
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . 15
Item 6. Exhibits. . . . . . . . . . . . . . . . . . . . . . 15
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ALP LIQUIDATING TRUST
CONSOLIDATED BALANCE SHEETS
ASSETS
------
SEPTEMBER 30,
2009 DECEMBER 31,
(Unaudited) 2008
------------ ------------
Cash and cash equivalents . . . . . . . . . $ 5,199,456 23,927,508
Short-term investments. . . . . . . . . . . 17,648,766 --
Restricted cash . . . . . . . . . . . . . . 48,637 684,426
Prepaid expenses and other assets . . . . . 5,390 11,355
----------- -----------
Total assets. . . . . . . . . . . . $22,902,249 24,623,289
=========== ===========
LIABILITIES
-----------
Accounts payable and accrued expenses . . . $ 1,104,041 1,553,173
----------- -----------
Total liabilities . . . . . . . . . 1,104,041 1,553,173
----------- -----------
Commitments and Contingencies
Unit Holders' equity. . . . . . . . . . . . 21,798,208 23,070,116
----------- -----------
Total liabilities and
Unit Holders' equity. . . . . . . $22,902,249 24,623,289
=========== ===========
The accompanying notes are an integral part of
these consolidated financial statements.
ALP LIQUIDATING TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 2009 AND 2008
(UNAUDITED)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
----------------------- -----------------------
2009 2008 2009 2008
---------- ---------- ---------- ----------
Income:
Interest and
other income. . . $ 15,250 82,211 53,558 397,794
---------- ---------- ---------- ----------
Expenses:
Professional
services. . . . . (94,822) 187,323 853,815 1,335,783
General and
administra-
tive. . . . . . . 138,192 128,552 464,652 450,995
Other. . . . . . . 2,129 343 6,999 (523,794)
---------- ---------- ---------- ----------
45,499 316,218 1,325,466 1,262,984
---------- ---------- ---------- ----------
Net loss. . . . $ (30,249) (234,007) (1,271,908) (865,190)
========== ========== ========== ==========
Net loss per
beneficial
interest
unit. . . . . $ (.07) (0.53) (2.86) (1.94)
========== ========== ========== ==========
Cash distri-
butions per
beneficial
interest
unit. . . . . $ -- -- -- --
========== ========== ========== ==========
The accompanying notes are an integral part of
these consolidated financial statements.
ALP LIQUIDATING TRUST
CONSOLIDATED STATEMENT OF CHANGES IN UNITHOLDERS' EQUITY
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2009
(UNAUDITED)
Balance, January 1, 2009. . . . . . . . . . . . . . . . . $23,070,116
Net loss. . . . . . . . . . . . . . . . . . . . . . . . . (1,271,908)
-----------
Balance, September 30, 2009 . . . . . . . . . . . . . . . $21,798,208
===========
The accompanying notes are an integral part of
these consolidated financial statements.
ALP LIQUIDATING TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2009 AND 2008
(UNAUDITED)
2009 2008
----------- ----------
Operating activities:
Net loss. . . . . . . . . . . . . . . . . $(1,271,908) (865,190)
Items not providing cash:
Amortization of discount. . . . . . . . (26,535) --
Changes in:
Restricted cash . . . . . . . . . . . . 635,789 (6,224)
Prepaid expenses and other assets . . . 5,965 125,989
Accounts payable and accrued
expenses. . . . . . . . . . . . . . . (449,132) (469,276)
Unfunded development costs. . . . . . . -- (931,680)
----------- ----------
Net cash used in
operating activities. . . . . . . (1,105,821) (2,146,381)
----------- ----------
Investing activities:
Purchase of short-term investments. . . . (17,622,231) --
----------- ----------
Net cash used in
investing activities. . . . . . . (17,622,231) --
----------- ----------
Decrease in cash and
cash equivalents. . . . . . . . . (18,728,052) (2,146,381)
Cash and cash equivalents,
beginning of period . . . . . . . 23,927,508 26,075,864
----------- ----------
Cash and cash equivalents,
end of period . . . . . . . . . . $ 5,199,456 23,929,483
=========== ==========
The accompanying notes are an integral part of
these consolidated financial statements.
ALP LIQUIDATING TRUST
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 30, 2009
(UNAUDITED)
OPERATIONS
Effective September 30, 2005, Arvida/JMB Partners, L.P. (the
"Partnership") completed its liquidation by contributing all of its
remaining assets to ALP Liquidating Trust ("ALP"), subject to all of the
Partnership's obligations and liabilities. Arvida Company, an affiliate of
the general partner of the Partnership, acts as Administrator (the
"Administrator") of ALP.
In connection with its formation, ALP issued a total of 448,794
beneficial interest units to the partners of the Partnership ("Unit
Holders"). In the liquidation, each partner in the Partnership received a
beneficial interest in ALP for each interest the partner held in the
Partnership. As a result, a partner's percentage interest in ALP remained
the same as that person's percentage interest was in the Partnership
immediately prior to its liquidation.
Upon completion of the liquidation of the Partnership, pursuant to
Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), ALP elected to become the successor issuer to the
Partnership for reporting purposes under the Exchange Act and elect to
report under the Exchange Act effective September 30, 2005. ALP has
assumed all reports filed by the Partnership prior to liquidation of the
Partnership under the Exchange Act. Throughout this quarterly report,
references to ALP shall be deemed to include activities of the Partnership
prior to September 30, 2005.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Readers of this quarterly report should refer to the audited
financial statements for the fiscal year ended December 31, 2008, which are
included in the Liquidating Trust's 2008 Annual Report on Form 10-K (File
No. 0-16976) filed on March 31, 2009, as certain footnote disclosures which
would substantially duplicate those contained in such audited financial
statements, and which are required by U.S. generally accepted accounting
principles for complete financial statements, have been omitted from this
report. Capitalized terms used but not defined in this quarterly report
have the same meanings as in the 2008 Annual Report.
Basis of Presentation
Until the ultimate completion of the liquidation, winding up and
termination of ALP, it is currently anticipated that ALP will retain all or
substantially all of its funds in reserve to provide for the payment of,
the defense against, or other satisfaction or resolution of obligations,
liabilities (including contingent liabilities) and current and possible
future claims, and pending and possible future litigation. It is not
possible at this time to estimate the amount of time or money that it will
take to effect ALP's liquidation, winding up and termination. That
portion, if any, of the funds held in reserve that are not ultimately used
to pay, defend or otherwise resolve or satisfy obligations, liabilities or
claims are currently anticipated to be distributed to the Unit Holders in
ALP at a later date and may not be distributed until the completion of the
liquidation. At such time that ALP considers its liquidation, winding up
and termination to be imminent and its net realizable assets to be
reasonably determinable, it expects to adopt the liquidation basis of
accounting.
Various factors may affect the timing of completing the liquidation,
winding up and termination of ALP and the amount of liquidating
distributions of funds, if any, out of those retained in reserve. These
factors include the time and expense to resolve all obligations,
liabilities and claims, including contingent liabilities and claims that
are not yet asserted but may be made in the future. Among other things,
delays in resolving pending or threatened litigation or other asserted
claims, currently unasserted claims that arise in the future and other
factors could result in a reduction in future distributions to Unit Holders
in ALP and could extend the time, and significantly increase the cost, to
complete the liquidation, winding up and termination of ALP. While ALP
intends to defend against asserted claims where appropriate, it is
currently not possible to identify or assess any defenses or counterclaims
that may be available to ALP, or the magnitude of any claims that may be
asserted.
Use of Estimates
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States requires management to
make estimates and assumptions that affect the amounts reported or
disclosed in the financial statements and accompanying notes. Significant
estimates include reserves and the ultimate outcome of contingencies.
Actual results could differ from those estimates.
Cash, Cash Equivalents and Restricted Cash
Cash and cash equivalents may consist of U.S. Government obligations
with original maturities of three months or less, money market demand
accounts and repurchase agreements, the cost of which approximates market
value. Cash invested in U.S. Government obligations with maturities
greater than three months is classified as short-term investments. At
September 30, 2009 the amounts included in restricted cash consists of cash
which collateralizes certain performance bonds. In the third quarter of
2009 approximately $639,000, previously held as collateral for certain
escrow accounts was released. ALP maintains funds in financial
institutions that exceed the FDIC insured limit. ALP does not believe it
is exposed to any significant credit risk.
Short-Term Investments
It is ALP's policy to classify all of its investments in U.S.
Government obligations with original maturities greater than three months
as held-to maturity, as ALP has the ability and intent to hold these
investments until their maturity, and are recorded at amortized cost, which
approximates fair value. At September 30, 2009, short-term investments
consist of $17,648,766 of such securities purchased in April 2009 and
maturing in October 2009. Additionally, the amortized discount of $26,535
at September 30, 2009 is reflected in interest and other income.
Liabilities
Accounts payable and accrued expenses include legal fees, real estate
taxes, reserves, and other miscellaneous accruals.
Indemnification of Certain Persons
Under certain circumstances, ALP indemnifies the Administrator and
certain other persons performing services on behalf of ALP for liability
they may incur arising out of the indemnified persons' activities conducted
on behalf of ALP. There is no limitation on the maximum potential payments
under these indemnification obligations, and, due to the number and variety
of events and circumstances under which these indemnification obligations
could arise, ALP is not able to estimate such maximum potential payments.
However, historically ALP has not made payments in material amounts under
such indemnification obligations, and no amount has been accrued in the
accompanying financial statements for these indemnification obligations of
ALP.
TRANSACTIONS WITH AFFILIATES
ALP, subject to certain limitations, may engage affiliates of the
Administrator for insurance brokerage and certain other administrative
services to be performed in connection with the administration of ALP and
its assets. There were no costs for the nine months ended September 30,
2009 and 2008. In addition, the Administrator and its affiliates are
entitled to reimbursements for salaries and salary-related costs relating
to the administration of the ALP. ALP incurred such costs totalling
approximately $342,000 and $304,000 for the nine months ended September 30,
2009 and 2008, respectively.
Amounts payable to the Administrator or its respective affiliates do
not bear interest and are expected to be paid in future periods. At
September 30, 2009 and December 31, 2008, approximately $170,000 and
$35,000 was payable to the Administrator or its affiliates and is included
in accounts payable and accrued expenses.
COMMITMENTS AND CONTINGENCIES
In 2008, ALP was released from its obligations of approximately
$2,239,000 under certain performance bonds. The remaining performance
bonds for which ALP is liable of approximately $48,000 are fully
collateralized.
In late 2007 it was determined that certain remnant parcels from past
developments were still owned by ALP rather than by relevant homeowners
associations or public entities. These remnant parcels have no value and,
to the extent hereafter deeded to third parties, will result in no material
proceeds to the Trust. ALP has commenced working with relevant parties on
some of these parcels to affect the transfer of these parcels where
feasible. However, certain of these parcels carry past-due taxes that
include years where they had been assessed on pre-subdivision values that,
due to the passage of time and the expiration of local appeals periods,
precluded their being deeded over in the normal course. These taxes are
non-recourse to ALP. While these parcels are being handled on a case-by-
case basis, where ALP is unable to effect a transfer whereby any material
accrued taxes are waived by the taxing authority or assumed by the
transferee, ALP generally will allow such parcels to be acquired by third
parties at tax sale in order to relieve ALP from any future liabilities
associated with them. The cost of completing this process is not expected
to be material, however ALP is unable to predict the time period required.
ALP accrues legal liabilities when it is probable that the future
costs will be incurred and such costs can be reasonably estimated. Such
accruals are based upon developments to date, management's estimates of the
outcome of these matters and its experience in contesting, litigating and
settling other matters. Based on evaluation of the Partnership's
litigation matters and discussions with internal and external legal
counsel, management believes that an adverse outcome on one or more of the
matters set forth below, against which no accrual for loss has been made at
September 30, 2009 unless otherwise noted, is reasonably possible but not
probable, and that the outcome with respect to one or more of these
matters, if adverse, is reasonably likely to have a material adverse impact
on the accompanying financial statements of ALP.
The Partnership, the General Partner and certain related parties as
well as other unrelated parties have been named defendants in an action
entitled Rothal v. Arvida/JMB Partners Ltd. et al., Case No. 03-10709
CACE 12, filed in the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida. In this suit that was originally filed on or
about June 20, 2003, plaintiffs purport to bring a class action allegedly
arising out of construction defects occurring during the development of
Camellia Island in Weston, which has approximately 150 homes. On May 9,
2005, plaintiffs filed a nine count second amended complaint seeking
unspecified general damages, special damages, statutory damages,
prejudgment and post-judgment interest, costs, attorneys' fees, and such
other relief as the court may deem just and proper. Plaintiffs complain,
among other things, that the homes were not adequately built, that the
homes were not built in conformity with the South Florida Building Code and
plans on file with Broward County, Florida, that the roofs were not
properly attached or were inadequate, that the truss systems and
installation thereof were improper, and that the homes suffer from improper
shutter storm protection systems. Plaintiffs have filed a motion to expand
the class to include other homes in Weston. The motion to expand the class
has not yet been heard. The Arvida defendants intend to oppose the motion.
The matter is currently scheduled for a hearing on a motion to certify the
class on December 21-22, 2009. The Arvida defendants have filed their
answer to the amended complaint. The Arvida defendants believe that they
have meritorious defenses and intend to vigorously defend themselves. The
Partnership is not able to determine what, if any, loss exposure that it
may have for this matter. This case has been tendered to one of the
Partnership's insurance carriers, Zurich American Insurance Company
(together with its affiliates collectively, "Zurich"), for defense and
indemnity. Zurich is providing a defense of this matter under a purported
reservation of rights. The Partnership has also engaged other counsel in
connection with this lawsuit. The ultimate legal and financial liability
of the Partnership, if any, in this matter cannot be estimated with
certainty at this time. The Partnership is unable to determine the
ultimate portion of the expenses, fees and damages, if any, which will be
covered by its insurance.
The Partnership was named a defendant in a purported class action
entitled Osnovsky, individually and on behalf of others similarly situated,
v. Arvida Company, Arvida/JMB Partners, and Arvida Realty Co., Inc., Case
No. 05015925, filed on November 7, 2005, in the Circuit Court of the 17th
Judicial Circuit in and for Broward County, Florida. On February 8, 2008,
the court entered an order dismissing the case with prejudice, each party
to bear its own fees and costs. The Partnership paid no money.
The following lawsuits in large part allegedly arise out of
landscaping issues at certain subdivisions in the Weston Community. These
lawsuits are collectively referred to as the "landscape cases." In
addition to the following landscaping cases, the General Partner has
received letters from other homeowners' associations in the Weston
Community complaining about their landscaping. These associations have not
filed suit.
A case, The Ridges Maintenance Association, Inc. v. Arvida/JMB
Partners, et al., Case No. 03-10189 (05) (the "Ridges Case"), was filed on
or about June 6, 2003 in the Circuit Court of the 17th Judicial Circuit in
and for Broward County, Florida. The defendants in this action include
Arvida/JMB Partners, Arvida/JMB Managers, Inc., Arvida Management Limited
Partnership, CCL Consultants, Inc. ("CCL"), Bamboo Hammock Nursery, Inc.
("Bamboo Hammock"), and Lagasse Pool Construction, Co. ("Lagasse").
Plaintiff is alleged to be a homeowners' association representing the
owners of approximately 1,500 homes and extensive common areas in the
Ridges subdivision in Weston. In the seven-count amended complaint that
was filed on September 16, 2005, plaintiff seeks unspecified compensatory
damages, prejudgment interest, court costs and such other and further
relief as the court might deem just and proper. In Count I, plaintiff
seeks damages from the Arvida defendants for alleged negligent design,
construction and/or maintenance of the landscaping and common elements that
allegedly resulted in defects of the landscaping, sidewalks, irrigation
systems, and community pool. With respect to the landscaping claims, the
plaintiff claims that it evaluated the condition of the common areas after
the turnover of the community in January 2000 and alleges that it
discovered numerous construction, design and maintenance defects and
deficiencies including, but not limited to, improper planting of inferior
quality/grade of landscaping contrary to controlling government codes,
shallow planting of landscaping, landscape planting in inappropriate areas,
and the planting of landscaping that would uproot sidewalks. In Count II,
plaintiff seeks damages from CCL, the alleged civil engineer for the
community, in connection with the alleged negligent design, construction or
maintenance of the common areas and elements. In Count III, plaintiff
seeks damages from Bamboo Hammock, the alleged landscape engineer,
architect, supplier, installer and/or designer, in connection with alleged
defects in the landscaping resulting in damage to, among other things, the
landscaping and sidewalks. In Count IV, plaintiff seeks damages from
Lagasse for alleged defects in the community pool. In Count V, plaintiff
seeks damages from Arvida/JMB Partners, a general partnership in which ALP
owns a 99.9% interest, and Arvida/JMB Managers, Inc., the former General
Partner of the Partnership, seeking to hold these entities vicariously
responsible for the acts of CCL, Bamboo Hammock, and/or Lagasse. In
Count VI, plaintiff seeks damages from the Arvida/JMB Partners and
Arvida/JMB Managers, Inc. for various breaches of fiduciary duty. In this
count, plaintiff alleges that prior to the turnover of the community, these
defendants engaged in acts that amounted to a breach of fiduciary duty to
plaintiff in that they, among other things, (i) allegedly improperly
executed an amendment to the declarations of covenant for their sole
benefit and to the financial detriment of the plaintiff; (ii) allegedly
engaged in acts that constituted a conflict of interest; (iii) allegedly
failed to maintain appropriate care, custody and control over the financial
affairs of the homeowners' association by failing to pay for common
expenses; (iv) allegedly improperly transferred funds by and between
plaintiff and a non-party, The Town Foundation, Inc., which transfers
allegedly amounted to a violation of these defendants' obligations to fund
operating deficits and a breach of fiduciary duty; and (v) allegedly
transferred funds by and between various entities under their common
control in violation of Florida statute and their fiduciary duty to
plaintiff. Plaintiffs voluntarily withdrew Count VII. The Arvida
defendants filed their answer to the amended complaint denying substantive
liability and raising various defenses. The Arvida defendants believe that
they have meritorious defenses and intend to vigorously defend themselves.
The case went to mediation on March 30, 2009 and again on July 13, 2009.
The case did not settle. Plaintiff has filed a motion to add punitive
damages. The Arvida defendants will contest vigorously. The case has been
transferred to the complex litigation unit of the Broward County court
system and is set for a case management conference on January 8, 2010 at
which point further dates for the resolution of this case, including a
possible trial date, will be set. The Ridges has been tendered to the
carrier for defense and indemnity and the carrier has issued a purported
reservation of rights letter. The Ridges remains subject to the purported
reservation of rights letter despite the settlement of certain disputes
with the carrier discussed below. The Partnership has engaged additional
counsel with respect to the Ridges litigation. The Partnership is not able
to determine what, if any, loss exposure that it may have for the Ridges,
and the accompanying financial statements do not reflect any accruals
related to this case.
A case entitled The Falls Maintenance Association, Inc. v. Arvida/JMB
Partners, Arvida/JMB Managers, Inc., CCL Consultants, Inc. and Stiles
Corporation f/k/a Stiles Landscape Service Co., Case No. 0302577 (the
"Falls Maintenance Case"), was filed on or about February 10, 2003, in the
17th Judicial Circuit in and for Broward County, Florida. Before the case
was called for trial, the case settled for the payment of $75,000 to the
plaintiff homeowners' association plus legal fees and specified costs.
Such amounts were paid in the third quarter of 2008.
The Partnership has received from Zurich certain purported
reservation of rights letters in connection with certain of the landscaping
cases. For this and other reasons, on September 26, 2005, Arvida/JMB
Partners, L.P., Arvida/JMB Managers, Inc., and Arvida Management L.P.
(collectively "Arvida") filed a complaint, as amended, for declaratory
relief and damages against Zurich American Insurance Co., individually and
as successor to Zurich Insurance co. (collectively "Zurich"), Case No.
0514346 in the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida. In this complaint, Arvida sought, among other
things, a declaration of its rights under its policies, attorney fees and
costs, and such other relief as the court deems appropriate. On March 11,
2008, Arvida and Zurich entered into an agreement to voluntarily dismiss
the pending action pending further discussions about the potential
settlement of disputes regarding insurance coverage for the landscaping
cases. Pursuant to the parties' agreement, the case was voluntarily
dismissed on April 9, 2008. In the third quarter of 2009, ALP entered into
a settlement agreement with Zurich. As a result, the parties have settled
their differences with respect to the carrier's purported reservation of
rights for two prior landscaping cases, the Falls and Weston Lakes matters,
which settled in September 2008 and December 2006, respectively, and the
parties have released each other with respect to any claims arising out of
the defense costs and settlement payments for those matters. Further under
the terms of the settlement, the parties resolved their differences with
respect to certain claims under agreements governing, among other things,
deductibles for a payment of $800,000. This payment was made in July 2009.
Further, Zurich paid ALP approximately $436,000 for the defense of the
Rothal case through September 30, 2009 and paid certain amounts to ALP's
outside counsel for the defense of the Falls litigation. In September 2009,
ALP was refunded approximately $328,000 from its outside counsel.
Other than as described above, the Partnership is not subject to any
material legal proceedings, other than ordinary routine litigation
incidental to the business of the Partnership.
SUBSEQUENT EVENTS
ALP has evaluated subsequent events through November 9, 2009, the
date the financial statements were issued as a part of the quarterly report
filed on From 10-Q for the period ended September 30, 2009.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR
PLAN OF OPERATION
Reference is made to the notes to the accompanying financial
statements ("Notes") contained in this report for additional information
concerning the Liquidating Trust.
This report, including this Management's Discussion and Analysis of
Financial Condition and Results of Operations, contains forward-looking
statements. Words like "believes," "expects," "anticipates," "likely," and
similar expressions used in this report are intended to identify forward-
looking statements. These forward-looking statements give ALP's current
estimates or expectations of future events, circumstances or results,
including statements concerning possible future distributions and the
amount of time and money that may be involved in completing the
liquidation, winding up and termination of ALP. Any forward-looking
statements made in this report are based upon ALP's understanding of facts
and circumstances as they exist on the date of this report, and therefore
such statements speak only as of that date. In addition, the forward-
looking statements contained in this report are subject to risks,
uncertainties and other factors that may cause the actual events or
circumstances, or the results or performances of ALP, to be materially
different from those estimated or expected, expressly or implicitly, in the
forward-looking statements. In particular, but without limitation, the
accuracy of statements concerning possible future distributions to the
holders of the beneficial interest units (the "Unit Holders") or the
timing, proceeds or costs associated with completion of a liquidation,
winding up and termination may be adversely affected by, among other
things, various factors discussed below.
OVERVIEW
Effective September 30, 2005, Arvida/JMB Partners, L.P. (the
"Partnership") completed its liquidation by contributing all of its
remaining assets to ALP Liquidating Trust ("ALP"), subject to all of the
Partnership's obligations and liabilities. Arvida Company, an affiliate of
the general partner of the Partnership, acts as Administrator (the
"Administrator") of ALP.
In connection with its formation, ALP issued a total of 448,794
beneficial interest units to the partners of the Partnership. In the
liquidation, each partner in the Partnership received a beneficial interest
in ALP for each interest the partner held in the Partnership. As a result,
a partner's percentage interest in ALP remained the same as that person's
percentage interest was in the Partnership immediately prior to its
liquidation.
Upon completion of the liquidation of the Partnership, pursuant to
Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), ALP elected to become the successor issuer to the
Partnership for reporting purposes under the Exchange Act and elect to
report under the Exchange Act effective September 30, 2005. ALP has
assumed all reports filed by the Partnership prior to liquidation of the
Partnership under the Exchange Act.
CRITICAL ACCOUNTING POLICIES
Prior to the formation of ALP, the Partnership relied on certain
estimates to determine the construction and land costs and resulting gross
margins. The Partnership's land and construction costs were comprised of
direct and allocated costs, including estimated costs for future homeowner
claims. Additionally, ALP accrues liabilities when it is probable that the
future costs will be incurred and such costs can be reasonably estimated.
Such accruals are based upon developments to date, management's estimates
of the outcome of these matters and its experience in such matters. Actual
future claims and contingencies could differ from the currently estimated
amounts.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 2009, ALP had unrestricted cash and cash equivalents
of approximately $5,199,000, as well as short-term investments of approxi-
mately $17,649,000. The source of both short-term and long-term future
liquidity is expected to be derived from cash on hand, the sale of
investments, and income earned thereon.
Until the ultimate completion of the liquidation, winding up and
termination of ALP, it is currently anticipated that ALP will retain all or
substantially all of its funds in reserve to provide for the payment of,
the defense against, or other satisfaction or resolution of obligations,
liabilities (including contingent liabilities) and current and possible
future claims, and pending and possible future litigation. It is not
possible at this time to estimate the amount of time or money that it will
take to effect ALP's liquidation, winding up and termination. That
portion, if any, of the funds held in reserve that are not ultimately used
to pay, defend or otherwise resolve or satisfy obligations, liabilities or
claims are currently anticipated to be distributed to the Unit Holders in
ALP at a later date and may not be distributed until the completion of the
liquidation. At such time that ALP considers its liquidation, winding up
and termination to be imminent and its net realizable assets to be
reasonably determinable, it expects to adopt the liquidation basis of
accounting.
RESULTS OF OPERATIONS
The decrease in cash and cash equivalents and related increase in
investments in securities at September 30, 2009 as compared to December 31,
2008 is primarily the result of the purchase of U.S. Government Obligations
maturing in October 2009.
The decrease in restricted cash at September 30, 2009 as compared to
December 31, 2008 is the result of the release of collateral related to
certain escrow agreements ALP is no longer required to maintain.
The decrease in accounts payable and accrued expenses at
September 30, 2009 as compared to December 31, 2008 is due to the timing of
payments for professional services.
The decrease in interest income for the three and nine months ended
September 30, 2009 as compared to the same period in 2008 is primarily due
to lower cash balances available for investment as well as a decrease in
the rates ALP is able to earn on its invested cash reserves.
The decrease in professional services for the three and nine months
ended September 30, 2009 as compared to the same period in 2008 is
primarily due to the timing of litigation in which ALP is involved as well
as refunds of approximately $328,000 received in September 2009 for fees
previously paid.
ITEM 4. CONTROLS AND PROCEDURES
Pursuant to Section 302 of the Sarbanes-Oxley Act and Rule 13a-15 of
the Securities Exchange Act of 1934 (the "Exchange Act") promulgated
thereunder, the principal executive officer and the principal financial
officer of the Liquidating Trust have evaluated the effectiveness of the
Liquidating Trust's disclosure controls and procedures as of the end of the
period covered by this report. Based on such evaluation, the principal
executive officer and the principal financial officer have concluded that
the Liquidating Trust's disclosure controls and procedures were effective
as of the end of the period covered by this report to ensure that
information required to be disclosed in this report was recorded,
processed, summarized and reported within the time period specified in the
applicable rules and form of the Securities and Exchange Commission for
this report.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
See Item 1 of the Financial Statements included in Part I of this
report.
ITEM 6.
(a) Exhibits
4.1. Liquidating Trust Agreement of ALP Liquidating Trust,
dated as of September 30, 2005, by and among, Arvida/JMB
Partners, L.P., Arvida Company, as Administrator, and
Wilmington Trust Company, as Resident Trustee.
16.1. Agreement dated July 3, 2006 by and between Arvida/JMB
Partners, a Florida general partnership, successor in interest
to Arvida Corporation, a Delaware corporation, and Interconn
Ponte Vedra Company, LLC. is hereby incorporated herein by
reference to the Trust's Report for July 3, 2006 on Form 8-K
(File No. 0-16976) dated July 12, 2006.
31.1. Certification of the Principal Executive Officer pursuant
to Rule 13a-14(a)/15d-14(a) of the Securities Exchange
Act of 1934, as amended, is filed herewith.
31.2. Certification of the Principal Financial Officer pursuant
to Rule 13a-14(a)/15d-14(a) of the Securities Exchange
Act of 1934, as amended, is filed herewith.
32. Certifications of Chief Executive Officer and Chief
Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002 are furnished herewith.
(b) No reports on Form 8-K were filed since the beginning of the
last quarter of the period covered by this report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Partnership has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
ALP LIQUIDATING TRUST
BY: Arvida Company
as Administrator
By: GAILEN J. HULL
Gailen J. Hull, Vice President
Date: December 22, 2009
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed on behalf of ALP Liquidating Trust by the
following person in the capacities and on the date indicated.
By: GAILEN J. HULL
Gailen J. Hull, Chief Financial Officer
and Principal Accounting Officer
Date: December 22, 200
