SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20259
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2004 Commission file number 0-7716
CENTURY REALTY TRUST
(Exact name of Registrant as specified in its charter)
INDIANA 35-1284316
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
823 Chamber of Commerce Building
Indianapolis, Indiana 46204
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (317)632-5467
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Shares of Beneficial Interest
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports). and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K ---
The aggregate market value of the voting stock held by nonaffiliates of the
Registrant was $16,704,112 based upon the closing market price on March 21,
2005.
Shares of Beneficial Interest, no par value--1,798,112 shares outstanding as of
March 21, 2005.
Documents incorporated by reference: Portions of the proxy statement for the
annual meeting of shareholders to be held May 4, 2005 are incorporated by
reference into Part III of this report as specified therein.
PART I
ITEM 1. BUSINESS
The principal business of Century Realty Trust, an Indiana business trust, is
the ownership of income-producing real properties, which consist of fourteen
apartment complexes, two restaurant properties, three commercial properties,
and various parcels of undeveloped land which are situated adjacent to rental
properties owned by the Trust. The Trust's investment options to include the
exclusive control of real estate through the use of operating partnerships.
Five of the Trust's fourteen apartment properties are owned by operating
partnerships. The Trust's rental income is derived from short-term leases of
units in its various buildings. The residential properties and two of the
three commercial properties are managed under agreements with independent
property management firms. The Trust and its operating partnerships reimburse
the management firms for compensation of approximately 60 persons employed at
the apartment properties.
The Trust has elected to be treated as a real estate investment trust under
the Internal Revenue Code and to distribute substantially all of its real
estate investment trust taxable income. A real estate investment trust is an
investment vehicle which permits individuals, by purchasing shares, to invest
in real estate equities and/or mortgage loans, and share in the profits
therefrom without having profits subjected to federal income taxes at the
trust level.
ITEM 2. PROPERTIES
The following investment properties were owned by the registrant at
December 31, 2004:
Year No. of 2004 Net
Apartments Location Acquired Units Occupancy Investment
- ---------- -------- -------- ------ --------- ----------
Fontenelle Kokomo, IN 1973 176 83 $ 600,891
Park Forest Marion, IN 1973 64 92 217,537
Chester Heights Richmond, IN 1973 110 91 183,538
Driftwood Park Indianapolis, IN 1989 48 93 814,752
Regency Royale Mishawaka, IN 1993 132 93 2,871,749
Creek Bay Indianapolis, IN 1993 208 88 5,678,318
Eagle Creek Indianapolis, IN 1994 188 87 4,867,408
Charter Oaks Evansville, IN 1997 192 86 4,415,083
Barcelona* Kokomo, IN 1997 64 90 1,257,300
Beech Grove* Jeffersonville, IN 1997 182 88 3,684,753
Hampton Court* Indianapolis, IN 1997 92 90 1,519,889
Sheffield Square* New Albany, IN 1997 152 95 3,761,415
West Wind Terrace* Indianapolis, IN 1997 96 76 1,550,281
----- -----------
Total Apartments 1,704 88 $ 31,422,914
* Property is owned by a partnership controlled by the Trust.
Year Square Currently Net
Commercial Location Acquired Feet Leased Investment
- ---------- -------- -------- ------ --------- ----------
Office/Warehouse
401 Industrial Dr. Carmel, IN 1977 38,000 82% $ 228,411
Office Buildings
1810 E. 62nd St. Indianapolis, IN 1986 17,000 73 318,286
3510-20 E. 96th St., Indianapolis, IN 1997 34,000 77 1,436,160
------ -----------
Total Commercial 89,000 1,982,857
Year Square Lease Net
Restaurant Location Acquired Feet Expires Investment
- ---------- -------- -------- ------ --------- ----------
Miami Subs Orlando, FL 1979 3,500 2005 132,123
-----------
All investment properties $33,537,894
-----------
-----------
The following investment properties were classified as held for sale by the
registrant at December 31, 2004:
Year 2004 Net
Apartments Location Acquired Size Occupancy Investment
- ---------- -------- -------- ------ --------- ----------
Fox Run apartments Indianapolis, IN 1995 256 units 78% $5,650,173
Fortune House
restaurant Indianapolis, IN 1979 5,000 sq.ft. Closed 183,913
----------
All real estate held for sale $5,834,086
----------
----------
ITEM 3. LEGAL PROCEEDINGS
There are no material pending legal proceedings against the trust, and no such
proceedings are known to be contemplated.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the fourth
quarter of the year ended December 31, 2004.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Trust's shares of beneficial interest are traded on the NASDAQ SmallCap
market. Cash distributions, if any, are paid approximately 45 days after the
end of each quarter. The high and low published bid prices and distributions
for the last two years were:
Distributions
2004 High Low Declared
- ---- ---- ---- -------------
1st Quarter $12.74 $10.35 --
2nd Quarter 12.95 10.60 --
3rd Quarter 13.20 11.50 --
4th Quarter 17.50 12.07 $1.05
2003
- ----
1st Quarter $12.88 $11.70 $0.14
2nd Quarter 13.00 9.80 0.12
3rd Quarter 12.50 11.41 0.12
4th Quarter 12.70 10.00 --
ITEM 6. SELECTED FINANCIAL DATA
In thousands, except per share data and number of apartments
Years ended December 31, 2004 2003 2002 2001 2000
- ------------------------ ---- ---- ---- ---- ----
Operating Data:(c)
Rental and other
operating income $10,413 $ 9,915 $10,405 $10,505 $10,706
Income (loss)before
minority interest and
discontinued operations 117 (560) 157 424 873
Income from discontinued
operations 2,530 19 532 325 237
Net income (loss) 2,647 (541) 689 749 1,110
Cash distributions declared 1,877 673 984 1,269 1,408
Weighted average number
of shares outstanding 1,787 1,775 1,757 1,740 1,717
Basic and diluted earnings
(loss) per share:
Continuing operations $ 0.08 $ (0.26) $ 0.13 $ 0.27 $ 0.50
Discontinued operations 1.40 (0.04) 0.26 0.16 0.15
Distributions declared 1.05 0.38 0.56 0.73 0.82
Balance Sheet Data:(c)
Total real estate
investments(a) $48,441 $48,346 $48,520 $48,312 $47,774
Allowances for
depreciation (14,903) (13,784) (12,880) (11,787) (10,432)
Real estate held for sale,
net carrying value 5,834 6,530 6,789 6,969 7,186
Total assets 45,870 45,549 46,958 47,556 47,821
Mortgage and other
notes payable 33,026 33,437 34,102 34,482 34,013
Total debt 36,069 36,509 36,719 36,934 36,588
Minority interest in
operating partnerships 315 396 569 802 1,149
Shareholders' equity 9,485 8,644 9,670 9,819 10,084
Number of shares
outstanding 1,789 1,782 1,762 1,749 1,726
Other Data:(c)
Cash flow data:
Cash provided by
operating activities $ 1,327 $ 1,372 $ 2,479 $ 2,382 $ 3,148
Cash provided by (used in)
investing activities 2,652 (340) (666) (702) (498)
Cash (used in)
financing activities (2,492) (1,232) (1,379) (1,114) (2,752)
Funds from operations:(b)
Income (loss) before
minority interest
and discontinued
operations $ 117 $ (560) $ 157 $ 424 $ 873
Income (loss) from
discontinued
operations (191) (71) 461 282 260
Add back investment real
estate depreciation 1,658 1,741 1,796 1,801 1,774
Add back unamortized
loan costs written off 56 - 193 - -
Deduct funds attributed
to minority interest 36 21 (55) (66) (160)
------- ------- ------- ------- -------
Funds from operations $ 1,604 $ 1,131 $ 2,552 $ 2,441 $ 2,747
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Apartment units owned(a):
Owned at December 31 1,960 2,136 2,136 2,136 2,136
Weighted average number
of apartments owned
during the year 2,004 2,136 2,136 2,136 2,136
(a) Real estate owned includes apartments owned by operating partnerships
created and controlled by the Trust
(b) Funds from operations (FFO) is defined as income before gains on sale of
property and minority interest of unitholders in operating partnerships
created and controlled by the Trust plus investment property depreciation.
The amount of funds attributed to minority interest is not available to
shareholders of the Trust and is deducted. FFO should be considered along
with, not as an alternative to, net income and cash flows as a measure of
the Trust's operating performance and liquidity. FFO does not represent
cash flow from operating activities and is not necessarily indicative of
cash available to fund capital expenditures, debt repayment, or other cash
needs.
(c) Reclassified to conform to current year presentation as described in Note 4
to the consolidated financial statements.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
Contained in this discussion and elsewhere in this annual report are
forward-looking statements which management believes to be reasonable and
informative. Such statements are based on assumptions which may not prove to
be correct for reasons management cannot predict. Consequently, the inclusion
of forward-looking statements should not be considered as representations by
the Trust or its management that expected results will be achieved or that
stated objectives will be attained. Several factors that might cause such a
difference are identified at the end of this discussion.
During all of 2004 and 2003 the Trust owned or controlled, as continuing
operations, thirteen apartment communities containing 1,704 apartment units,
three multi-tenant commercial properties containing 89,000 rentable square
feet, and one restaurant property leased to an operator under month-to-month
net lease. Comparative information related to income and expenses contained
in this discussion applies to continuing operation only, unless otherwise
indicated.
In April, 2004, the Trust sold the 176-unit Park Plaza apartments, and in
December, contracted to sell the 256-unit Fox Run apartments. In a separate
sale contract, the Trust agreed to sell to an unrelated buyer, the restaurant
property previously operated as the Fortune House. Management expects to
complete the restaurant property sale in the second quarter of 2005 and the
Fox Run sale in the third quarter of 2005.
In accordance with the provisions of FASB Statement No. 144, the net
investments in those three properties are presented in the consolidated balance
sheets as real estate held for sale. The gain realized from the sale of the
Park Plaza apartments, and the results of operations for it and the other two
properties held for sale, for years ended December 31, 2004, 2003 and 2002, are
summarized and shown in the consolidated statements of operations as income or
loss from discontinued operations. The three sale transactions are described
in Note 4 to the consolidated financial statements.
Five apartment properties containing 586 units are owned by five separate
partnerships that are controlled by the Trust through a wholly-owned
subsidiary. Holders of operating partnership units have the option to
exchange them, one for one, for shares of beneficial interest in the Trust at
any time until November, 2007. As of December 31, 2004 and 2003, holders of
84.6% and 82.5%, respectively of the outstanding units, had exercised their
exchange options. (See Note 3 to the financial statements). Management
anticipates that the increase in outstanding shares and corresponding decrease
in the minority interest will not have a material impact on net income per
share during the next year.
At December 31, 2004 the Trust's net investment in real estate consisted
of apartment properties (93.5%), commercial properties (6%) and net-leased
restaurant properties (.5%). The 1,704 apartment units in the portfolio
throughout 2004 and 2003 contributed 93.9% and 93.6%, respectively, of the
total revenue from continuing real estate operations, and 98.1% and 98.2%,
respectively, of continuing real estate operating expenses.
CRITICAL ACCOUNTING POLICIES
Amortization of Management Contracts.
In 1997 the Trust paid $650,350 for the general partner interest and
absolute management control over five partnerships. The Trust elected to
amortize, on a straight line method, its cost to acquire its position over
the ten-year period during which the holders of limited partnership units
could elect to, or not elect to, exchange those units for shares of beneficial
interest of the Trust; consequently, depreciation expense each year includes
$65,030 for amortization of the acquisition costs.
Carpet Replacement Policy.
From its inception in 1973, the Trust has consistently followed the
practice of charging the cost to replace carpets in its apartment units to
expense as incurred. Real estate operating expenses include costs to replace
carpets of $272,576, $244,727 and $182,883 for 2004, 2003 and 2002
respectively. An acceptable alternative method of accounting would be the
capitalization of costs as incurred, followed by charges for depreciation over
the estimated useful life of the carpet. Management believes that, due to
the relatively short useful life of apartment carpets, the annual expense for
replacements is not materially greater than would be the annual charges for
depreciation had the carpets been capitalized when purchased.
Impairment of Long-Lived Assets.
When an event or change in circumstance indicates that future undiscounted
cash flows and net realizable value is insufficient to recover the carrying
value of a long-lived asset, the asset value is reduced to fair market value
and an impairment loss is recognized.
RESULTS OF OPERATIONS -- 2004
Compared with 2003, rental and related income from the Trust's continuing
apartment operations increased by 5.4% while apartment operating expenses,
exclusive of depreciation, increased by .2%.
The increase in gross income from apartment properties resulted from the
net effect of 1% higher average rental rates and a 4.2% increase in overall
occupancy rates. Apartment economic occupancy rates increased from an average
of 84.8% in 2003 to 88.4% in 2004. In mid-December, 2004 the aggregate physical
occupancy rate for the Trust's apartment properties was 92.1% up from 90.3%
in mid-December, 2003. The increasing trend in occupancy rates that commenced
in the fourth quarter of 2003 is due primarily to intensive marketing efforts
and the use of rental incentives and discounts. The lack of employment
opportunities in several Indiana communities, and relatively low mortgage loan
interest rates continue to make home ownership a viable alternative for
residents of higher-rent apartments.
Real estate operating expenses, including real estate taxes (excluding
interest and depreciation) for the apartment properties increased .2% in 2004.
Operating expenses amounted to 54.1% of gross possible income for 2004, down
from 54.6% in 2003. Maintenance and repairs and building services expenses
were lower in 2004, however, those decreases were more than offset by higher
site personnel costs. Real estate taxes estimated to be payable in 2005 that
were accrued in 2004, decreased by 6.8% from amounts that were accrued in 2003.
Real estate tax accruals for amounts estimated to be payable in 2005
decreased by $84,000 from comparable accruals in 2003 due to successful
appeals for reduction of assessed values that resulted from an Indiana
statewide reassessment of real property as of March 1, 2002. Some further
reductions are possible from appeals that are still pending for four
properties. In addition to the reduction in the amounts accrued for payment
in 2005, additional benefits were realized from refunds of taxes accrued for
payments in 2003 and 2004. Those prior year overpayments credited against
real estate tax expense in 2004 amounted to $191,000.
Mortgage interest expense for 2004 decreased by $77,000 from the amount
reported for 2003. Approximately $25,700 of that decrease is attributable to
lower interest rates on three mortgage loans that were refinanced in 2004.
The balance of the decrease is attributed primarily to a reduction in mortgage
loan balances that resulted from scheduled monthly debt service.
General and administrative expenses in 2004 increased by $97,000 from
the previous year primarily due to an increase in amounts incurred for
professional fees. In 2004 the Trust incurred approximately $12,000 of legal
fees and $28,000 for a strategic analysis related to a shareholder proposal
that received a favorable vote of approximately 50% at the annual meeting of
shareholders in May, 2004. Approximately $15,200 of legal fees were incurred
to comply with certain corporate governance mandates by the Sarbanes-Oxley
Act of 2002. The Trust paid $16,000 more in Trustee fees in 2004 than it
paid in 2003 because of two more trustee meetings, one more audit committee
meeting, and the addition of one trustee in November, 2003. General and
administrative expenses amounted to 7% of income from real estate operations
in 2004, compared with 6.4% in 2003. Officer and employee compensation costs,
including payroll taxes and benefits that are included in administrative
expenses, amounted to $287,600 in 2004, compared with $288,100 in 2003.
The changes in income and expenses attributable to discontinued operations
are described in Note 4 to the consolidated financial statements. In addition
to the gain realized on the sale of the Park Plaza apartments in April, 2004,
the Trust incurred operating losses aggregating $190,669 and $70,508 in 2004
and 2003, respectively, from the following three properties:
2004 2003
_________ _________
Park Plaza apartments $ (14,433) $ 46,559
Fox Run apartments (193,121) (152,520)
Fortune House restaurant 16,885 35,453
_________ _________
Total income (loss) $(190,669) $(70,508)
For the portion of 2004 that the Trust owned Park Plaza, its occupancy
rate was 78.1% and operating expenses were 79.9%, compared with occupancy of
75.6% and operating expenses of 62.4% for all of 2003.
During 2004 Fox Run had occupancy of 77.8% and operating expenses of 61%
of gross possible income, compared with occupancy of 75.2% and operating
expenses of 59.9% for 2003. In addition to a $51,300 increase in current
real estate taxes that resulted from reassessment for taxes payable in 2003
and subsequent years, an additional $73,300 was charged for under-estimated
real estate taxes for the prior year. An appeal for a reduction of the new
assessed values has been filed by the Trust.
A 25-year lease that began in 1979 expired in November, 2004. The lessee
elected not to renew the lease, and vacated the property. In addition to the
loss of revenue from the property, the Trust accrued $9,300 in 2004 for
estimated real estate taxes payable in 2005. Under the prior lease, the
lessee was responsible for real estate taxes.
RESULTS OF OPERATIONS -- 2003
Compared with 2002, rental and related income from the Trust's apartment
operations decreased by 4.6% while apartment operating expenses, exclusive
of depreciation, increased by 11.5%.
The decrease in gross income from apartment properties resulted from
the net effect of .4% higher average rental rates and a 4.9% decrease in
overall occupancy rates. Apartment economic occupancy rates decreased from
an average of 89.2% in 2002 to 84.8% in 2003. In mid-December, 2003 the
aggregate physical occupancy rate for the Trust's apartment properties had
improved to 90.3% from 88.3% in mid-December of 2002. The downward trend
in occupancy rates from the fourth quarter of 2000 to the fourth quarter of
2002 is due primarily to a decline in employment opportunities in several
Indiana communities, and relatively low mortgage loan interest rates that
continue to make home ownership a viable alternative for residents of
higher-rent apartments.
The Board of Trustees and management have taken action to counter the
recent disappointing operating results. During 2003, the Trust changed
management firms for its apartment properties. The Board selected a
management firm that it believes to have a highly qualified staff, a
proactive management philosophy and particular strength in marketing. While
the management change was costly in 2003, apartment occupancy has been
steadily, albeit slowly, improving.
Real estate operating expenses, including real estate taxes (excluding
interest and depreciation) for the apartment properties increased 12.9% in
2003. Operating expenses amounted to 54.6% of gross possible income for
2003, up from 49.1% in 2002. Utility costs were up 16% due to higher rates
and the cost of providing electricity and heat to vacant units. Carpet
and tile replacement costs increased by 36% to provide rental incentive and
to catch up from a lower than average expense level in the previous year.
Maintenance and repairs increased by 24% from 2002. The 2003 amount
represented 4.9% of gross potential income, a level that management
considers normal for the Trust's portfolio.
Real estate tax accruals for amounts estimated to be payable in 2004
increased by $141,500, or 12.9% from comparable accruals in 2002 due to an
Indiana statewide reassessment of real property. Contrary to the significant
increase in real estate taxes following reassessment of the apartment
properties, each one of the commercial properties experienced lower assessed
values and lower billings for taxes payable in 2003. The Trust, in its
accruals in 2002, underestimated by approximately $108,000 the amount of
real estate tax payable in 2003. That underestimate was a charge against
income in 2003 in addition to the amount accrued as an operating expense
in 2003 for taxes payable in 2004. On-site personnel costs, as a percent
of gross possible income, were up from 12.4% in 2002 to 12.6% in 2003, a
2% increase.
Mortgage interest expense for 2003 decreased by $96,300 from the amount
reported for 2002. Approximately $59,200 of that decrease is attributable
to lower interest rates on three mortgage loans that were refinanced in
July, 2002. The balance of the decrease is attributed primarily to a
reduction in mortgage loan balances that resulted from scheduled monthly debt
service. No mortgage loans were refinanced in 2003.
General and administrative expenses in 2003 decreased by $100,770 from
2002 due primarily to a reduction in amounts incurred for professional fees.
In 2002 the Trust expensed approximately $46,000, primarily legal fees,
related to the transfer of rental operations to Century Realty Properties,
L.P. and $62,500 for real estate appraisal fees. Offsetting the absence
of those expenses in 2003, approximately $40,000 of legal and accounting
fees were incurred in 2003 related the change in property management firms,
corporate governance matters occasioned by the Sarbanes-Oxley Act of 2002,
and tax issues related to the controlled partnerships. General and
administrative expenses amounted to 6.4% of income from real estate
operations in 2003, compared with 7.1% in 2002. Officer and employee
compensation, including payroll taxes and benefits, amounted to $288,100
in 2003, up 2.9% from $279,900 in 2002.
In 2004 the Trust sold the Park Plaza apartments and executed contracts
to sell the Fox Run apartments and the property formerly known as the
Fortune House restaurant. In accordance with provisions regarding sales
of long-lived assets of FAS No. 144, operating results of the three
aforementioned properties were reclassified to income or loss from
discontinued operations for prior periods.
The changes in income and expenses attributable to discontinued
operations are described in Note 4 to the consolidated financial statements.
The Trust realized an operating loss of $70,508 in 2003 and operating
income of $461,536 in 2002 from the three properties as follows:
2003 2002
_________ _________
Park Plaza apartments $ 46,559 $ 223,586
Fox Run apartments (152,520) 196,199
Fortune House restaurant 35,453 41,751
_________ _________
Total income (loss) $ (70,508) $461,536
During 2003 Park Plaza had occupancy of 75.6% and operating expenses
were 62.4%, compared with occupancy of 85.5% and operating expenses of
53.9% for all of 2002 The decline in occupancy accounted for a decrease
in revenue of $87,300, while the increase in expenses amounted to $87,100.
During 2003 Fox Run had occupancy of 75.2% and operating expenses of
59.9% of gross possible income, compared with occupancy of 88.3% and
operating expenses of 54.5% for 2002. The decline in occupancy accounted
for a decrease in revenue of $216,200. The increase in the portion of gross
possible income used for operating expenses amounted to $107,700 of additional
costs. Marketing, decorating and carpeting costs intended to improve
occupancy accounted for most of the increase in operating expenses.
The decline in income from the Fortune House restaurant property
reflects the scheduled decrease in the amount of previously deferred income
recognized during the year.
CONTRACTUAL OBLIGATIONS
The following schedule represents the Trust's obligations as of December
31, 2004 to make future payments under contracts, such as mortgage debt,
lease agreements, and other long-term obligations (amounts in thousands):
Payments Due by Period
__________________________________________
Within 1 2 to 3 4 to 5 After 5
Obligations Total Year Years Years Years
______________ _______ _______ _______ _______ _______
Mortgage notes $33,026 $5,219 $6,569 $7,030 $14,208
Capital leases - - - - -
Operating leases (1) - - - - -
Purchase obligations - - - - -
Other: Tenants'
Deposits (2) 412 - - - 412
_______ _______ _______ _______ _______
Totals $33,438 $5,219 $6,569 $7,030 $14,620
(1) The Trust is a lessee of certain office equipment, such as copying
machines and postage equipment, which represent insignificant obligations.
(2) The Trust holds security deposits by tenants of its rental properties.
Individual deposits that are refunded, in whole or in part, when a tenant
vacates, are replaced by similar deposits received from incoming tenants.
Changes in the aggregate amount of deposits held during any given period
are not material.
A mortgage loan on the land and buildings of the Fox Run apartments is
scheduled to mature March 30, 2005 with a balance due of $4,531,000. The
Fox Run apartments are under contract to be sold on terms that permit the
buyer to delay closing of the sale until the third quarter of 2005. The
mortgagor has granted an extension of the maturity date until the earlier
of the closing date of the sale or December 31, 2005.
LIQUIDITY AND SOURCES OF CAPITAL
At December 31, 2004, the Trust and its controlled partnerships had
$3,037,000 in cash, including $355,700 in controlled partnership accounts,
which management believes is sufficient to meet anticipated working
capital requirements. Other than the gain realized from the sale of an
apartment property in 2004, the Trust's investment properties have not
produced sufficient cash flow since the first half of 2003 to justify
distributions to shareholders. In December, 2004 the Trust distributed
$1.05 per share, all of which was designated as capital gain. Due to better
than expected operating results in the fourth quarter of 2004, an additional
$0.10 per share of capital gain will be paid in 2005. The Trust intends to
resume quarterly distributions when operating results permit.
Other than cash that may be required for property improvements and
replacements which amounts may exceed funds generated by operations,
management is not aware of any significant transactions or events which will
require material expenditures in 2005. Management is considering
recommendations by the property managers to undertake significant exterior
painting and paving projects. The Trust has not made any commitments, which
would require expenditures in excess of funds expected to be provided by
operations during 2005.
Management expects to continue to operate as a qualified real estate
investment trust, and to distribute to shareholders all of its otherwise
taxable income. Since the Trust's net income for 2004 consisted entirely of
gain from the sale of property, the $1,876,772 that was distributed to
shareholders in 2004, was designated as capital gain. During 2003, the Trust
distributed $672,517, all of which was designated as return of capital. The
aggregate surplus cash distributed to the minority interest partners by the
controlled partnerships totaled $6,101 during 2003. There were no distributions
by the controlled partnerships in 2004.
Due to differences in depreciation rates and carrying values of some
properties, the net income reported for 2004 was 4.5% more than taxable
income. The reported net loss for 2003, was 15% more than the loss for tax
purposes; and, for 2002, reported net income was 5% less than taxable income.
IMPACT OF INFLATION
Inflation, except for increases in real estate taxes payable in 2003 that
resulted from the Indiana state-wide reassessment of real estate, has not had
a significant impact on the Trust during 2004, 2003 and 2002.
BUSINESS RISK FACTORS AND PROSPECTS
Among the factors, some of which are beyond the control of management,
that could affect the Trust's business and results of its operations in the
future are the following:
* failure to generate sufficient marginal revenue to offset the marginal
costs to comply with internal control documentation and related auditing
requirements of the Sarbanes-Oxley Act of 2002.
* failure by the Trust and its principal management agent to attract and
retain qualified management personnel in key positions.
* long-term unfavorable apartment market and economic conditions that
adversely effect occupancy and rental rates.
* difficulty selling properties that no longer meet the Trust's investment
criteria.
* unforeseen impediments in closing sales of properties that are under
contract to be sold.
* competitive factors that may inhibit the Trust's ability to lease
apartments or to maintain or increase rental rates.
* inability to generate sufficient revenue to service debt.
* adverse changes in interest rates and real estate taxes that could have
a negative impact on the market price of the Trust's shares.
* failure to qualify for REIT status that could result in the imposition
of income taxes.
ITEM 7a. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
The Trust does not believe it is subject to market risk.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements, which are included on pages 8 through 18 of the
annual shareholders report for the year ended December 31, 2003, are
included as exhibits under Item 15.
Unaudited summarized consolidated quarterly financial data for the year ended
December 31, 2004 is as follows:
Three Months Ended
______________________________________________
March 31 June 30 September 30 December 31
________________________________________________________________________________
Rental and other operating income $2,591,252 $2,587,929 $2,617,428 $2,616,613
Income (loss) before minority
interest and discontinued
operations (61,414) (126,989) 38,311 267,018
Income (loss) from
discontinued operations (10,500) 2,660,816 (30,865) (120,521)
Net income (loss) (59,306) 2,555,526 16,050 134,797
Earnings (loss) per
share - basic and diluted:
Income (loss) before
discontinued operations $ (0.03)$ (0.06)$ 0.03 $ 0.14
Income (loss) from
discontinued operations $ 0.00 $ 1.49 $ (0.02)$ (0.07)
Net income (loss) $ (0.03)$ 1.03 $ 0.01 $ 0.07
Unaudited summarized consolidated quarterly financial data for the year ended
December 31, 2003 is as follows:
Three Months Ended
______________________________________________
March 31 June 30 September 30 December 31
________________________________________________________________________________
Rental and other operating income $2,463,895 $2,460,962 $2,519,224 $2,470,534
Income (loss) before minority
interest and discontinued
operations ( 7,094) ( 60,974) (153,893) (338,124)
Income (loss) from
discontinued operations 47,797 56,273 (114,596) ( 59,982)
Net income (loss) 51,576 8,006 (237,062) (363,178)
Earnings (loss) per
share - basic and diluted:
Income (loss) before
discontinued operations $ (0.00)$ (0.02)$ (0.07)$ (0.17)
Income (loss) from
discontinued operations $ 0.03 $ 0.02 $ (0.06)$ (0.03)
Net income (loss) $ 0.03 $ 0.00 $ (0.13) $ (0.20)
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
No change of accountants or reported disagreements have occurred
which are to be disclosed hereunder.
ITEM 9a. CONTROLS AND PROCEDURES
(a) Evaluation of disclosure controls and procedures. The Chief
Executive Officer serves as the principal operating officer and
in such capacity supervises, directly or indirectly, the daily
operation of the Trust and investment properties. The Chief
Financial Officer serves as the principal accounting officer and
in such capacity supervises, directly or indirectly, the
accounting and financial operations of the Trust and its
subsidiaries. The centralized and compact management structure
of the registrant provides adequate and effective disclosure
control.
(b) Changes in internal controls. There have been no changes in
internal controls or in other factors that could significantly
affect internal controls within the past ninety days.
Management has discovered no significant deficiencies or
material weaknesses in internal controls that would warrant
corrective actions.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information relative to executive officers, members of the Board
of Trustees and nominee(s) for election to the Board of
Trustees, which is included on pages 4 through 7 of the proxy
statement for the annual meeting of shareholders to be held May
4, 2005, is incorporated herein by reference. The proxy
statement will be filed with the Commission pursuant to
Regulation 14A within 120 days after December 31, 2004. The
Trust has no executive officers other than those individuals
presently serving as Trustees.
ITEM 11. EXECUTIVE COMPENSATION
Information relative to management remuneration and transactions
is included on page 7 of the proxy statement for the annual
meeting of shareholders to be held May 4 2005, and is
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
Information relative to security ownership of certain beneficial
owners and management is included on pages 2 through 6 of the
proxy statement for the annual meeting of shareholders to be
held May 4, 2005, and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
There were no relationships or transactions, as defined under
this item, nor are any contemplated, to be disclosed hereunder.
ITEM 14. ACCOUNTANTS FEES
Information relative to accountants fees is included on page 10
of the proxy statement for the annual meeting of shareholders to
be held May 4 2005, and is incorporated herein by reference.
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a)(1) and (2) The response to this portion of Item 15
is submitted as a separate section of this report.
(b) Reports on Form 8-K
A Form 8-K was filed December 10, 2004 that reported,
under Item 1.01, an agreement executed December 7, 2004,
to sell the 256-unit Fox Run apartments for $6,975,000;
and, reported, under Item 8.01, a separate agreement
with a different party, to sell the land and building
at 9106 Wesleyan Road in Indianapolis, formerly leased
to a restaurant operator, for $850,000.
(c) Exhibits
(1) Consent of Independent Registered Public Accounting Firm
(2) Code of Ethics for Senior Financial Officers executed by
the President, Treasurer and CEO (Exhibit 14.1) and by the
Controller and CFO (Exhibit 14.2) were filed with Form 10-K
for the year ended December 31, 2003, and are incorporated
herein by reference.
(3) Rule 13a-14(a)/15d-14(a) Certifications:
31.1 - Certification by Principal Exective Officer
31.2 - Certification by Principal financial and accounting
officer
(4) Sec. 906, Sarbanes-Oxley Act, Certifications:
32.1 - Certification of Chief Executive Officer
32.2 - Certification of Chief finanacial officer and
principal accounting officer
(5) Other exhibits:
3(i) - Trust Instrument of Century Realty Trust
3(ii) - Code of By-laws of Century Realty Trust
10.1 - Purchase Agreement executed December 7, 2004, for
sale of Fox Run Apartments
10.2 - Trustee's Option to Purchase Shares granted May 5,
2004, to Larry S. Boulet
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report be signed on its behalf by the undersigned,
thereunto duly authorized.
CENTURY REALTY TRUST
Date: 3/26/05 By: S/ JOHN I. BRADSHAW, JR.
President and Trustee
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the registrant and in the capacities and on the
dates indicated.
Date: 3/26/05 S/ DAVID F. WHITE
Controller
Date: 3/29/05 S/ FRANCIS M. HAPAK
Trustee, Chairman of the Board
Date: 3/31/05 S/ JOHN W. ADAMS
Trustee
Date: 3/27/05 S/JOHN J. DILLON
Trustee
Date: 3/27/05 S/ MARVIN L. HACKMAN
Trustee
Date: 3/29/05 S/ JOHN A. WALLACE
Trustee
Date: 3/28/05 S/MURRAY R. WISE
Trustee
Date: 3/28/05 S/LARRY S. BOULET
Trustee
ITEM 15(a)(1) AND (2). LIST OF FINANCIAL STATEMENTS AND FINANCIAL STATEMENT
SCHEDULES
The following consolidated financial statements of Century
Realty Trust and subsidiaries are included herein and in the
annual report of the Registrant to its shareholders for the year
ended December 31, 2004:
Consolidated balance sheets - December 31, 2004 and 2003
Consolidated statements of operations - Years ended December 31,
2004, 2003 and 2002
Consolidated statements of shareholders' equity - Years ended December 31,
2004, 2003 and 2002
Consolidated statements of cash flows - Years ended December 31, 2004,
2003 and 2002
Notes to consolidated financial statements
The following financial statement schedule of Century Realty
Trust and Subsidiaries is included in Item 15(d):
Schedule III - Real estate and accumulated depreciation
All other schedules for which provision is made in the
applicable accounting regulation of the Securities and Exchange
Commission are not required under the related instructions or
are inapplicable, and therefore have been omitted.
ITEM 15(c) EXHIBITS
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Annual
Report (Form 10-K) of Century Realty Trust and subsidiaries of
our report dated February 25, 2005, included in the 2004 Annual
Report to Shareholders of Century Realty Trust and subsidiaries.
Our audits also included the financial statement schedule of
Century Realty Trust and subsidiaries listed in Item 15(a).
This schedule is the responsibility of the Trust's management.
Our responsibility is to express an opinion based on our audits.
In our opinion, the financial statement schedule, referred to
above, when considered in relation to the basic financial
statements taken as a whole, presents fairly in all material
respects the information set forth therein.
S/ ERNST & YOUNG LLP
Indianapolis, Indiana
March 30, 2005
EXHIBIT 31.1
CERTIFICATION
I, John I. Bradshaw, Jr., certify that:
1. I have reviewed this annual report on Form 10-K of Century
Realty Trust;
2. Based on my knowledge, this annual report does not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not
misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other
financial information included in this annual report, fairly
present in all material respects the financial condition,
results of operations and cash flows of the registrant as of,
and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are
responsible for establishing and maintaining disclosure controls
and procedures (as defined in Exchange Act Rules 13a-14 and
15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure
that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others
within those entities, particularly during the period in which
this annual report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures as of a date within 90 days prior to
the filing date of this annual report (the "Evaluation Date");
and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based
on our evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have
disclosed, based on our most recent evaluation, to the
registrant's auditors and the audit committee of registrant's
board of trustees (or other persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of
internal controls which could adversely affect the registrant's
ability to record, process, summarize and report financial data
and have identified for the registrant's auditors any material
weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management
or other employees who have a significant role in the registrant's
internal controls; and
6. The registrant's other certifying officer and I have
indicated in this annual report whether there were significant
changes in internal controls or in other factors that could
significantly affect internal controls subsequent to the date of
our most recent evaluation, including any corrective actions
with regard to significant deficiencies and material weaknesses.
Date: 3/26/05 /S/ John I. Bradshaw, Jr.
Chief Executive Officer
President and Treasurer
EXHIBIT 31.2
CERTIFICATION
I, David F. White, certify that:
1. I have reviewed this annual report on Form 10-K of Century
Realty Trust;
2. Based on my knowledge, this annual report does not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not
misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other
financial information included in this annual report, fairly
present in all material respects the financial condition,
results of operations and cash flows of the registrant as of,
and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are
responsible for establishing and maintaining disclosure controls
and procedures (as defined in Exchange Act Rules 13a-14 and
15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure
that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others
within those entities, particularly during the period in which
this annual report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures as of a date within 90 days prior to the
filing date of this annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based
on our evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have
disclosed, based on our most recent evaluation, to the
registrant's auditors and the audit committee of registrant's
board of trustees (or other persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of
internal controls which could adversely affect the registrant's
ability to record, process, summarize and report financial data
and have identifiedfor the registrant's auditors any material
weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management
or other employees who have a significant role in the registrant's
internal controls; and
6. The registrant's other certifying officer and I have
indicated in this annual report whether there were significant
changes in internal controls or in other factors that could
significantly affect internal controls subsequent to the date of
our most recent evaluation, including any corrective actions
with regard to significant deficiencies and material weaknesses.
Date: 3/26/05 S/ David F. White
Controller (chief financial officer
and principal accounting officer)
EXHIBIT 32.1
CERTIFICATION
In connection with the accompanying Annual Report of the Trust
on Form 10-K for the period ending December 31, 2003, I, John I.
Bradshaw, Jr., Chief Executive Officer, President and Treasurer
of the Trust, certify, pursuant to 18 U.S.C Sec. 1350, as
adopted pursuant to Sec. 906 of the Sarbanes-Oxley Act of 2002,
that:
1) The Report fully complies with the requirements of section
13(a)of the Securities Exchange Act of 1934; and
2) The information contained in the Report fairly presents, in
all material respects, the financial condition and results of
operations of the Trust.
S/ John I. Bradshaw, Jr.
Chief Executive Officer, President
and Treasurer
EXHIBIT 32.2
CERTIFICATION
In connection with the accompanying Annual Report of the Trust
on Form 10-K for the period ending December 31, 2003, I, David
F. White, Controller of the Trust, certify, pursuant to 18 U.S.C
Sec. 1350, as adopted pursuant to Sec. 906 of the Sarbanes-Oxley
Act of 2002, that:
1) The Report fully complies with the requirements of section
13(a) of the Securities Exchange Act of 1934; and
2) The information contained in the Report fairly
presents, in all material respects, the financial condition and
results of operations of the Trust.
S/ David F. White
Controller (chief financial officer
and principal accounting officer)
ITEM 15(a)1--Audited Financial Statements
Century Realty Trust and Subsidiaries
Consolidated Balance Sheets
December 31
2004 2003
___________ ___________
Assets
Real estate investments:
Land $3,140,029 $3,156,889
Buildings 44,531,489 44,432,745
Equipment 769,765 756,135
Allowances for depreciation (14,903,389) (13,783,584)
___________ ___________
33,537,894 34,562,185
___________ ___________
Real estate held for sale, net
of allowances for depreciation,
2004 - $1,861,117, 2003 - $3,304,950 5,834,086 6,530,175
Cash and cash equivalents 3,037,234 1,550,459
Restricted cash 1,885,865 1,431,860
Accounts and accrued interest receivable 426,478 330,530
Unamortized management contracts 189,686 254,721
Unamortized mortgage costs 275,478 292,904
Undeveloped land 99,675 99,675
Other assets 185,075 115,561
Real estate held for sale, other assets 398,114 381,110
___________ ___________
$45,869,585 $45,549,180
___________ ___________
___________ ___________
Liabilities and shareholders' equity
Liabilities:
Mortgage notes payable $33,026,470 $33,437,032
Accounts payable and accrued liabilities 580,338 466,210
Accrued interest 150,236 176,875
Accrued property taxes 1,386,978 1,328,217
Tenants' security deposits and unearned income 520,118 509,114
Real estate held for sale, other liabilities 405,074 592,045
___________ ___________
36,069,214 36,509,493
Minority interest in operating partnerships 315,004 396,135
Shareholders' equity:
Shares of Beneficial Interest, no par
value - authorized 5,000,000 shares,
issued - 1,795,909 shares including 6,507 in
treasury in 2004, and 1,790,297 shares
including 8,507 shares in treasury in 2003 9,599,697 9,548,835
Overdistributed income other than from
gain on the sale of real estate (2,176,023) (2,133,491)
Undistributed net realized gain from the
sale of real estate 2,128,905 1,316,078
Cost of treasury shares (67,212) (87,870)
___________ ___________
9,485,367 8,643,552
___________ ___________
$45,869,585 $45,549,180
___________ ___________
___________ ___________
See accompanying notes.
Century Realty Trust and Subsidiaries
Consolidated Statements of Operations
Year ended December 31
2004 2003 2002
__________ __________ __________
Income:
Real estate operations:
Rental Income $10,233,114 $9,745,507 $10,215,619
Other income 180,108 169,108 189,558
__________ __________ __________
10,413,222 9,914,615 10,405,177
Less:
Real estate operating expenses 4,921,806 4,820,743 4,291,621
Depreciation 1,418,720 1,456,135 1,516,766
Real estate taxes 1,018,211 1,375,129 1,132,443
__________ __________ __________
7,358,737 7,652,007 6,940,830
__________ __________ __________
3,054,485 2,262,608 3,464,347
Interest income 38,780 16,615 22,075
__________ __________ __________
3,093,265 2,279,223 3,486,422
Expenses:
Interest 2,128,408 2,205,435 2,301,782
Mortgage loan extinguishment costs 117,044 - 293,484
General and administrative expenses 730,887 633,873 734,643
__________ __________ __________
2,976,339 2,839,308 3,329,909
__________ __________ __________
Income (loss) before minority interest
and discontinued operations 116,926 (560,085) 156,513
Minority interest in operating
partnerships 31,211 89,935 71,190
__________ __________ __________
Income (loss) before
discontinued operations $148,137 ($470,150) $227,703
Income (loss) from discontinued
operations, including $2,689,599
gain on sale of property in 2004 2,498,930 (70,508) 461,536
__________ __________ _________
Net income (loss) 2,647,067 (540,658) 689,239
__________ __________ __________
__________ __________ __________
Earnings (loss)per share -
basic and diluted:
Income (loss) before
discontinued operations $0.08 ($0.26) $0.13
Income (loss) from
discontinued operations $1.40 ($0.04) $0.26
__________ __________ _________
Net income (loss) $1.48 $0.30 $0.39
__________ __________ __________
__________ __________ __________
See accompanying notes.
Century Realty Trust and Subsidiaries
Consolidated Statements of Shareholders' Equity
Undistributed
(Overdistributed) Undistributed
Income Other Net
Outstanding Than From Realized
Shares of Shares of Gain on Gain from Cost of
Benefical Benefical Sale of Sale of Treasury
Interest Interest Real Estate Real Estate Shares Total
___________________________________________________________________________
Balance at January 1, 2002 1,749,042 $9,327,102 ($625,709) $1,316,078 ($198,392) $9,819,079
Shares issued 12,659 145,730 - - - 145,730
Net income for 2002 - - 689,239 - - 689,239
Dividends ($.56 per share) - - (983,846) - - (983,846)
_________ __________ __________ __________ __________ __________
Balance at December 31, 2002 1,761,701 9,472,832 (920,316) 1,316,078 (198,392) 9,670,202
Shares issued 9,389 76,850 - - - 76,850
Stock options exercised 10,700 (847) - - 110,522 109,675
Net loss for 2003 - - (540,658) - - (540,658)
Dividends ($.38 per share) - - (672,517) - - (672,517)
_________ __________ __________ __________ __________ __________
Balance at December 31, 2003 1,781,790 $9,548,835 ($2,133,491) $1,316,078 ($87,870) $8,643,552
Shares issued 5,612 49,920 - - - 49,920
Stock options exercised 2,000 942 - - 20,658 21,600
Net income (loss) for 2004 - - (42,532) 2,689,599 - 2,647,067
Dividends ($1.05 per share) - - - (1,876,772) - (1,876,772)
_________ __________ __________ __________ __________ __________
Balance at December 31, 2004 1,789,402 $9,599,697 ($2,176,023) $2,128,905 ($67,212) $9,485,367
_________ __________ __________ __________ __________ __________
_________ __________ __________ __________ __________ __________
See accompanying notes.
Century Realty Trust and Subsidiaries
Consolidated Statements of Cash Flows
Year ended December 31
2004 2003 2002
__________ __________ __________
Operating Activities
Net income (loss) $2,647,067 ($540,658) $689,239
Adjustments to reconcile net
income (loss)to net cash provided by
operating activities:
Less gain on sale
of apartment property (2,689,599) - -
Depreciation and amortization 1,711,885 1,796,467 1,854,553
Write off unamortized costs of
mortgage loans extinguished 56,572 - 192,543
Minority interest (31,211) (89,935) (71,190)
Changes in operating assets
and liabilities:
Restricted cash (358,265) (150,018) (179,341)
Accounts and accrued income
receivable (69,237) (74,501) (110,611)
Other assets (76,106) (23,167) (58,032)
Accounts payable and accrued
liabilities 102,598 404,556 159,945
Tenants' security deposits and
unearned rent 33,108 48,991 2,176
__________ __________ __________
Net cash provided by operations 1,326,812 1,371,735 2,479,282
Investing Activities:
Net proceeds from sales of property 2,989,586 - -
Purchase of property and improvements (389,546) (389,675) (709,037)
Lease principal payments received 51,731 49,548 43,249
Net cash provided by (used in) __________ __________ __________
investing activities 2,651,771 (340,127) (665,788)
Financing Activities:
Net short-term bank
borrowings (repayments) - - (92,406)
Net proceeds from mortgage
notes payable 4,484,115 - 5,990,699
Mortgage loan balances refinanced (4,410,439) - (5,658,466)
Principal payments on mortgage
notes payable (710,312) (664,591) (620,565)
Sale of treasury shares 21,600 109,675 -
Distributions to minority interest - (6,101) (16,460)
Dividends paid to shareholders (1,876,772) (671,183) (981,544)
__________ __________ __________
Net cash used in
financing activities (2,491,808) (1,232,200) (1,378,742)
__________ __________ __________
Net increase (decrease) in cash
and cash equivalents 1,486,775 (200,592) 434,752
Cash and cash equivalents
at beginning of year 1,550,459 1,751,051 1,316,299
__________ __________ __________
Cash and cash equivalents
at end of year $3,037,234 $1,550,459 $1,751,051
__________ __________ __________
__________ __________ __________
Supplemental Data:
Selected noncash activities related to
investing and financing activities
were as follows:
Issued 5,612, 9,389 and 12,659
shares of beneficial interest in
2004, 2003 and 2002, respectively, in
exchange for operating partnership
units (See Note 3) $49,920 $76,850 $145,730
See accompanying notes.
Century Realty Trust and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2004
1. Significant Accounting Policies
Organization and Management Agreements:
Century Realty Trust (the Trust) commenced operations under a Plan of
Reorganization as of January 1, 1973, as the successor in interest to
American National Trust and Republic National Trust. CRT Investments, Inc.
was formed as a wholly owned subsidiary in 2001. Century Realty
Properties, L.P., an Indiana limited partnership, was formed in 2001, with
Century Realty Trust as its manager and sole general partner and CRT
Investments, Inc. as its sole limited partner. During 2001, the Trust
conveyed substantially all of its investment properties to Century Realty
Properties, L.P. Charter Oaks Associates, LLC and CR Management, Inc. were
formed as wholly owned subsidiaries in 1997. CR Management, Inc. is the
manager and sole general partner of five partnerships (Porter Portfolio),
each of which owns one apartment property as its principal asset. As the
sole general partner and pursuant to each partnership agreement, the
Trust, through its wholly owned subsidiary, has full, exclusive and
complete responsibility and discretion in the management and control of
each of these five partnerships. Control is demonstrated by the ability of
the general partner to manage day-to-day operations, refinance debt and
sell the assets of the partnerships without the consent of the limited
partners and the inability of the limited partners to replace the general
partner. Interests held by limited partners other than the Trust in the
five real estate partnerships are reflected as minority interests in
operating partnerships. Charter Oaks Associates, LLC holds title to the
Charter Oaks apartments in Evansville, Indiana, which the Trust purchased
in 1997.
The Trust owns and operates 14 residential rental properties and three
commercial properties throughout Indiana. The Trust also owns two
restaurant properties in Indiana and Florida. At December 31, 2004, one
of the residential properties and the restaurant property in Indiana were
under contract to be sold in 2005. The Trust aggregates its properties
into a single investment property segment because the residential rental
properties have similar economic characteristics, facilities and services,
and the restaurant and commercial properties are not material to the
consolidated financial statements to warrant separate disclosure. All
segment disclosures are included in or can be derived from the Trust's
consolidated financial statements.
The residential rental properties owned and controlled by the Trust are
managed under agreements with independent property management firms. The
agreements provide for management fees based generally on gross rental
collections.
Principles of Consolidation:
The accompanying consolidated financial statements include the accounts of
the Trust, and its wholly owned and controlled subsidiaries, including the
five operating partnerships controlled by CR Management, Inc. All
significant intercompany balances and transactions have been eliminated in
consolidation.
Revenue Recognition:
The revenue of the Trust primarily consists of rental income associated
with short-term leases from apartments with terms generally of one year or
less. Rental income is recognized when earned.
Cash and Cash Equivalents:
Cash and cash equivalents include cash and short-term investments with
original maturities of less than 30 days.
Restricted Cash:
Restricted cash includes security deposit savings accounts, property
completion and replacement reserves, and real estate tax and insurance
escrow accounts held by lenders.
Unamortized Management Contracts:
Unamortized management contracts represent the allocation of the purchase
price related to the Porter Portfolio acquisition identifiable with
obtaining management of those properties (See Note 3). Amortization is
computed by the straight-line method for a 10 year period which is the
number of years the limited partners in the five controlled partnerships
have to exchange their operating partnership units (O.P. units) into
shares of beneficial interest of the Trust. The cumulative amortization
was $460,664 and $395,629 at December 31, 2004 and 2003, respectively.
Unamortized Mortgage Costs:
Unamortized mortgage costs represent costs incurred to acquire long-term
financing. Amortization is computed by the straight-line method based on
the terms of the loans which approximates the effective interest method.
The cumulative amortization was $197,987 and $267,021 at December 31, 2004
and 2003, respectively.
Real Estate Investments:
Real estate investments are stated on the basis of cost. Depreciation is
computed by the straight-line method based on estimated economic lives
ranging from 29 to 40 years for buildings and 3 to 15 years for equipment.
When an event or change in circumstance indicates that future undiscounted
cash flows and net realizable value is insufficient to recover the
carrying value of a long-lived asset, the asset value is reduced to fair
market value, and an impairment loss is recognized.
Real estate investments classified as held for sale are generally under
contract to be sold with a high probability of being consummated within
one year. Real estate held for sale is carried at the lower of cost, net
of accumulated depreciation, or fair market value less cost to dispose.
Income net of expenses related to real estate held for sale is classified
on the Statement of Operations as income or loss from discontinued
operations.
Treasury Shares:
Treasury shares are carried at cost and shares reissued are removed based
on average cost. The difference between proceeds received on reissuance
and the average cost is credited or charged to Shares of beneficial
interest.
Income Taxes:
The Trust intends to continue to qualify as a real estate investment trust
as defined in the Internal Revenue Code and will distribute the majority
of its taxable income. Realized gains on the sale of investments are
distributed to shareholders if and when recognized for income tax
purposes. Assuming compliance with other requirements of the Code, income
so distributed will not be taxable to the Trust. Accordingly, no provision
for federal income taxes is made in the consolidated financial statements.
For income tax purposes, distributions paid to shareholders consist of
ordinary income, capital gains, return of capital or a combination
thereof. Earnings and profits, which determine the taxability of dividends
to shareholders, differ from reported net income due to differences for
tax purposes in the estimated useful lives used to compute depreciation
and the carrying values of the depreciable properties.
No provision has been made for income taxes or related credits of the
operating partnerships, as the results of operations are includable in the
tax returns of the partners.
Net Income (loss) per Share:
Net income (loss) per share is computed in accordance with Statement of
Financial Accounting Standards No.128.
Stock Based Compensation:
As permitted by SFAS No. 123, Accounting for Stock Based Compensation the
Trust accounts for its trustee stock options using the intrinsic value
method. Accordingly, no compensation expense is recognized for stock
options to the extent the option exercise price equals fair value on the
date of the grant. If compensation expense for the Company's stock
options had been determined based on the fair value method of accounting,
net income (loss) and earnings (loss) per share would not have been
materially impacted.
Use of Estimates:
The preparation of financial statements requires management to make
estimates and assumptions that affect the amounts reported in the
financial statements and accompanying notes. Actual results could differ
from those estimates.
Recently Issued Accounting Pronouncements:
In December 2004, SFAS No. 123(R), Share Based Payments was issued. Among
other items, SFAS No. 123(R) eliminates the use of the intrinsic value
method of accounting for stock options, and requires companies to
recognize the cost of service received in exchange for stock options based
on the grant date fair value of those awards. The effective date of SFAS
No. 123 (R) is the first reporting period beginning after June 15, 2005,
which is the third quarter of 2005 for the Trust. The Trust expects to
adopt SFAS No. 123(R) effective July 1, 2005, however, the Trust, has not
yet determined which of the adoption methods or pricing models allowed
under the new standard will be selected.
2. Real Estate Investments
Real estate investments consist principally of apartments and commercial
properties in Indiana. In connection with these properties, the Trust is
principally a lessor using short-term operating leases except for two
restaurant properties, which it leased to the operators under long-term
agreements, the last of which expired in 2004. The Indiana restaurant
property is closed and held for sale at December 31, 2004. The Florida
restaurant property is currently operating under a month-to-month rental
agreement.
3. Interest In Operating Partnerships
In 1997 the Trust, through its wholly owned subsidiary, CR Management,
Inc., acquired from a single unrelated seller, the general partner
interest in five limited partnerships (the Porter Portfolio) each of which
owned a single apartment property as its principal asset.
The acquisition resulted in creating five new partnerships that issued, in
the aggregate, 286,908 O.P. units to the selling partnerships for their
contribution of net assets to the newly formed partnerships. At the date
of acquisition, the market value of the Trust's shares of beneficial
interest was $11.625 per share.
The acquisition agreement provided that the Trust would use it best
efforts to grant to each beneficial owner of O.P. units, commencing two
years after closing, the right to exchange those units on a one for one
basis for shares of beneficial interest of the Trust.
Such exchange rights were granted in December, 1999, effective January 1,
2000 and on the first day of each quarter thereafter, and will exist until
November 27, 2007, at which time the Trust may, at its option, require the
exchange of any remaining outstanding O.P. units. Through December 31,
2004, holders of 242,381 O.P. units have elected to exchange their units
for shares of beneficial interest. The Trust repurchased 13,793 of those
shares, for a total cost of $162,986, from residents of certain states
with which the Trust elected not to register its shares. As a result of
the exchanges, the Trust owned 84.6% of the limited partnership interests
in the Porter Portfolio partnerships at December 31, 2004.
Due to the level of control that the Trust has over the activities and
operations of each of these partnerships included in the Porter Portfolio,
the financial position and results of operations of those partnerships are
included in the consolidated financial statements of the Trust from the
date of their acquisition. The equity interests that the Trust does not
own is described in the consolidated financial statements as the minority
interest in operating partnerships.
4. Real Estate Held For Sale and Discontinued Operations
In April, 2004 the Trust sold the Park Plaza apartments, a 176-unit
apartment community in Indianapolis, and in December, announced that it
had entered into contracts with separate unrelated parties to sell the Fox
Run apartments, a 256-unit apartment community in Indianapolis, and a
restaurant property formerly operated as the Fortune House at 9106
Wesleyan Road in Indianapolis. Both the Fox Run contract and restaurant
property contract contain a number of contingencies to be resolved before
the sales can be consummated in 2005. Assuming both pending sales are
completed in accordance with the contract terms, which management believes
have a high probability of occurring, the Trust will receive gross
proceeds of $6,975,000 for the Fox Run property and $850,000 for the
Fortune House property. The Trust will utilize the proceeds to pay off
the mortgage note payable on the Fox Run property which totaled
approximately $4,574,000 at December 31, 2004. The Fortune House property
does not have a mortgage note payable outstanding at December 31, 2004.
In accordance with provisions of FASB Statement No. 144, Accounting for
the Impairment or Disposal of Long Lived Assets, the property sold and the
two properties with sales pending are classified in the balance sheets as
Real Estate Held for Sale. The results of operations with respect to the
three properties have been separately classified for all periods presented
as discontinued operations.
Following is a summary of the income (loss) from operations of Park Plaza
apartments, Fox Run apartments and the formerly net-leased restaurant
property at 9106 Wesleyan Road, Indianapolis, for 2004, 2003 and 2002:
Year Ended December 31
2004 2003 2002
Rental income $1,560,248 $2,016,519 $2,293,784
Other income 58,173 73,906 100,120
Income from financing leases 8,856 16,548 22,846
__________ __________ __________
1,627,277 2,106,973 2,416,750
Less:
Rental operating expenses 1,034,640 1,404,105 1,226,737
Provision for depreciation 246,969 292,901 287,816
Real estate taxes 346,843 281,460 235,662
Interest expense 189,494 199,015 204,999
__________ __________ __________
1,817,946 2,177,481 1,955,214
__________ __________ __________
Income (loss) from discontinued
operations, before gain on sale (190,669) (70,508) 461,536
Gain on sale of apartment property 2,689,599 - -
Income (loss) from discontinued __________ __________ __________
operations $2,498,930 ($70,508) $461,536
5. Short-term Debt
The Trust elected not to renew its line of credit in 2004. At December
31, 2003, the maximum borrowing limit was $3,000,000, against which the
Trust had no borrowings. The line of credit agreement included a covenant
that required the Trust to demonstrate a minimum level of operating income
for the quarter preceding borrowing under the agreement. For the quarters
ended September 30, 2003 and December 31, 2003, the Trust did not achieve
the specified minimum operating results to borrow against this line of
credit and accordingly no borrowings were made.
6. Mortgage Notes Payable
Mortgage notes are payable in monthly installments, including interest at
rates ranging from 4% to 9% per annum, and mature from March 30, 2005 to
August 1, 2037. At December 31, 2004 and 2003, mortgage notes payable by
the Trust amounted to $33,026,470 and $33,437,032, respectively. The
aggregate amount of long-term debt maturities for each of the five years
after December 31, 2004 is: 2005, $5,219,012; 2006, $6,039,473; 2007,
$529,809; 2008, $6,307,744; 2009, $722,497 and thereafter $14,207,935.
At December 31,2004 and 2003, the Fox Run apartments had an outstanding
mortgage note payable of $4,573,800 and $4,698,760, respectively. The
mortgage note payable on the Fox Run apartments matures on March 30, 2005.
In connection with the sale of the Fox Run apartments, the Trust intends
to repay in its entirety, the outstanding balance on the Fox Run mortgage.
There is no outstanding mortgage debt related to the Fortune House
property which is also held for sale at December 31, 2004.
A mortgage loan on the Chester Heights apartments that provided for
monthly payments of $9,986, including 8.125% interest, matured in October
2004 with an unpaid balance of $731,787. That balance was repaid with the
proceeds of a new $731,787 mortgage loan from the same lender, repayable
in monthly installments of $9,566, including 4.7% interest, until it
matures in October 2009 with a balance due at maturity of $287,140.
Two of the mortgage loans from the Porter Portfolio totaling $3,684,450
were repaid during 2004 using the proceeds of two new fixed rate long-term
mortgage loans approximately totaling $3,978,400. The new loans allowed
the Porter Portfolio to reduce their aggregate average interest rate from
approximately 7.6% to 6.4%. In connection with the refinancing, the two
respective partnerships wrote-off unamortized costs of $56,572 and
incurred loan prepayment premiums of $60,471.
Cash paid for interest was $2,357,631, $2,411,133, and $2,451,779 for the
years ended December 31, 2004, 2003, and 2002, respectively.
At December 31, 2004, approximately $24,743,000 of the owned real estate
investments, and $11,511,000 of controlled partnership-owned real estate
investments, after allowances for depreciation, represents collateral for
the mortgage notes payable.
7. Shareholder Rights Plan
A Shareholder Rights Plan that the Board of Trustees adopted in 1989
expired December 31, 2004, and all Rights granted therewith were revoked.
Under that plan each outstanding share had one purchase right to purchase
from the Trust one share of beneficial interest at a price of $20 per
share, subject to certain antidilution adjustments. The Rights were not
exercisable or transferable apart from the shares at any time during the
existence of the Plan.
8. Stock Options
In May, 2004, the Board of Trustees granted to a newly elected Trustee, an
option to purchase up to 5,000 shares of beneficial interest exercisable
on or before May 5, 2007, at a price of $10.80 per share, the fair market
value at the date of grant. Options for 2,000 shares were exercised in
December, 2004. Options for 3,000 shares were unexercised at December 31,
2004.
No options were granted during 2003 and there were no unexercised options
at December 31, 2003.
9. Fair Values of Financial Instruments
The following methods and assumptions were used by the Trust in estimating
its fair value disclosures for financial instruments:
Cash, Cash Equivalents and Restricted Cash: The carrying amount reported
in the balance sheets for cash and cash equivalents approximates fair
value.
Short-term Debt and Mortgage Notes Payable: The fair values of the Trust's
mortgage notes payable are estimated using discounted cash flow analyses,
based on the Trust's current incremental borrowing rates for similar types
of borrowing arrangements.
The carrying amounts and fair values of the Trust's financial instruments
are as follows:
December 31, 2004
__________________________
Carrying Fair
Amount Value
__________________________
Cash and cash equivalents $ 3,037,234 $ 3,037,000
Restricted cash 1,885,865 1,885,000
Mortgage notes payable 33,026,470 33,437,000
December 31, 2003
__________________________
Carrying Fair
Amount Value
__________________________
Cash and cash equivalents $ 1,550,459 $ 1,550,000
Restricted cash 1,742,053 1,742,000
Mortgage notes payable 33,437,032 33,575,000
10. Earnings (Loss) Per Share
A reconciliation of the numerator and denominator of the earnings (loss)
per share computation is as follows:
2004 2003 2002
___________________________________
Numerator (net income/loss):
Numerator for basic and diluted
earnings (loss) per share $2,647,067 $ (540,658) $ 689,239
___________________________________
___________________________________
Denominator:
Denominator for basic earnings
(loss) per share-weighted average
shares 1,786,602 1,774,987 1,757,079
Effect of dilutive securities:
Stock options 747 - 1,621
Denominator for diluted earnings
(loss) per share-adjusted weighted
average shares and assumed ___________________________________
conversions 1,787,349 1,774,987 1,758,700
___________________________________
___________________________________
Basic earnings (loss) per share $1.48 $ (0.30) $ 0.39
___________________________________
___________________________________
Diluted earnings (loss) per share $1.48 $ (0.30) $ 0.39
___________________________________
___________________________________
Shareholder rights have not been included in the earnings (loss) per share
calculation because they would be anti-dilutive at December 31, 2003 and
2002.
11. Federal Income Taxes
The Trust intends to continue to qualify as a real estate investment trust
as defined in the Internal Revenue Code and will distribute the majority
of its taxable income. Realized gains on the sale of investments are
distributed to shareholders if and when recognized for income tax
purposes.
The Trust initially intended to use the proceeds from the sale of the Park
Plaza apartments in April, 2004 to acquire replacement investment property
in accordance with provisions of Internal Revenue Code Section 1031. The
Trust was unable to acquire a suitable replacement, and subsequently
declared and paid a special cash distribution of $1.05 per share, an
amount management believed would approximate the otherwise taxable income
of the Trust for 2004.
Due to more favorable that expected operating results in the fourth
quarter of 2004, including reductions in real estate taxes for several
locations, the special cash distribution in December was not sufficient to
offset all of the Trust's otherwise taxable income. The Board of Trustees
intends to declare a special cash dividend in 2005 that will include the
2004 distribution deficiency.
Assuming that the Trust complies with other requirements with the Internal
Revenue Code, income, including capital gain, will not be taxable to the
Trust. Accordingly, no provision for federal income taxes is made in the
consolidated financial statements.
12. Shareholder Recommendation
A shareholder proposal recommending that the Board of Trustees undertake a
plan to sell all of the Trust's assets and liquidate the Trust was
supported by 50.4% of the votes cast by shareholders at the annual
shareholder meeting on May 5, 2004. The Board of Trustees has no plan of
liquidation under consideration at this time, but will consider that
recommendation, along with other strategic options, in its efforts to
maximize shareholder value.
13. Subsequent Event (Unaudited)
In connection with the proposed sale of the Fox Run apartments, as
described in Note 4, the mortgagee agreed to extend the maturity date of
the Fox Run apartment mortgage note until December 31, 2005 (See Note 6).
Principal payments will remain unchanged at $10,470 per month until the
expected sale of the property occurs. The Trust incurred an extension fee
in connection with the new mortgage terms equal to 1/4% of the outstanding
balance, or $11,327. Management believes that the extension provides the
Trust sufficient time and funding to complete the sale of Fox Run.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Shareholders and Board of Trustees
Century Realty Trust
We have audited the accompanying consolidated balance sheets of Century
Realty Trust and Subsidiaries (the Trust) as of December 31, 2004 and
2003, and the related consolidated statements of operations, shareholders'
equity, and cash flows for each of the three years in the period ended
December 31, 2004. These financial statements are the responsibility of
the Trust's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with auditing standards of the
Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material misstatement.
We were not engaged to perform an audit of the Trust's internal control
over financial reporting. Our audit included consideration of internal
control over financial reporting as a basis for designing audit procedures
that are appropriate in the circumstances, but not for the purpose of
expressing an opinion on the effectiveness of the Trust's internal control
over financial reporting. Accordingly, we express no such opinion. An
audit includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements, assessing the accounting
principles used and significant estimates made by management, and
evaluating the overall financial statement presentation We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Century
Realty Trust and Subsidiaries at December 31, 2004 and 2003, and the
consolidated results of their operations and their cash flows for each of
the three years in the period ended December 31, 2004, in conformity with
accounting principles generally accepted in the United States.
February 25, 2005 S/ERNST & YOUNG
Indianapolis, IN
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
CENTURY REALTY TRUST
December 31, 2004
Col. B Col. C Col. D
Cost Capitalized
Initial Cost to Company Subsequent to
Acquisition
_______________________ _____________________
Buildings
and Carrying
Description Encumbrances Land Improvements Improvements Costs
__________________________________________ _____________ __________ ____________ ____________ ________
Garden apartments (no. of units)
Chester Heights (110), Richmond, IN $716,152 $56,700 $852,500 $324,806 $ ---
Park Forest (64), Marion, IN 728,716 57,800 517,200 455,285 ---
Fontenelle (176), Kokomo, IN --- 128,000 1,622,000 1,353,201 ---
Driftwood Park (48), Indianapolis, IN 523,601 117,000 1,168,308 253,612 ---
Regency Royale (132), Mishawaka, IN 1,744,829 125,000 3,638,499 218,301 ---
Creek Bay (208), Indianapolis, IN 6,220,143 340,940 7,101,480 218,884 ---
Eagle Creek Park (188), Indianapolis, IN 4,732,103 378,000 5,679,172 518,584 ---
Charter Oaks (192), Evansville, IN 3,383,335 241,500 4,851,716 263,041 ---
Barcelona (64), Kokomo, IN 1,267,413 59,200 1,350,384 116,672 ---
Beech Grove (182), Jeffersonville, IN 2,700,000 469,000 3,612,360 264,626 ---
Hampton Court (92), Indianapolis, IN 1,333,319 225,600 1,481,900 81,425 ---
Sheffield Square (152), New Albany, IN 3,185,333 227,000 4,020,424 251,458 ---
West Wind Terrace (96), Indianapolis, IN 1,323,775 136,700 1,610,241 102,190 ---
Commercial (square feet):
Office/Warehouse (38,000), Carmel, IN 593,951 54,000 446,075 187,947 ---
Office (17,000), Indianapolis, IN --- 71,500 457,818 78,249 ---
Office (34,000), Indianapolis, IN --- 348,725 1,184,344 184,646 ---
Net leased restaurant (square feet):
Miami Subs (3,500), Longwood, FL --- 113,479 54,026 --- ---
___________ __________ ___________ __________ ________
28,452,670 3,150,144 39,648,447 4,872,927 ---
Equipment--various locations --- --- 407,266 231,312 ---
___________ __________ ___________ __________ ________
TOTAL REAL ESTATE INVESTMENTS $28,452,670 $3,150,144 $40,055,713 $5,104,239 $ ---
___________ __________ ___________ __________ ________
___________ __________ ___________ __________ ________
Real estate held for sale:
Fox Run apartments (256), Indianapolis, IN $4,573,800 $398,000 $6,446,469 $450,634 ---
Fortune House (5,000), Indianapolis, IN --- 136,494 47,419 --- ---
Equipment--Fox Run apartments --- --- 85,000 131,187
___________ __________ ___________ __________ ________
TOTAL REAL ESTATE HELD FOR SALE 4,573,800 534,494 6,578,888 581,821 ---
___________ __________ ___________ __________ ________
TOTAL REAL ESTATE HELD FOR
INVESTMENT AND SALE $33,026,470 $3,684,638 $46,634,601 $5,686,060 $ ---
___________ __________ ___________ __________ ________
___________ __________ ___________ __________ ________
Undeveloped land - various locations $ $99,675 $ $ $ ---
___________ __________ ___________ __________ ________
___________ __________ ___________ __________ ________
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
CENTURY REALTY TRUST
December 31, 2004
Col. E Col. F Col. G Col. H Col.I
Gross Amount at Which
Carried at Close of Period
Life on Which
___________________________________ Depreciation in
Buildings Latest Income
and Accumulated Date of Date Statements
Description Land Improvements Total Depreciation Construction Acquired Is Computed
__________________________________________ ___________ ____________ ___________ ____________ ____________ ________ ______________
<c> <c> <c> <c> <c> <c>
Garden apartments (no. of units)
Chester Heights (110), Richmond, IN $46,585 $1,187,421 $1,234,006 $1,066,721 1965 01/73 31 years
Park Forest (64), Marion, IN 57,800 972,485 1,030,285 823,716 1962 01/73 31 years
Fontenelle (176), Kokomo, IN 128,000 2,975,201 3,103,201 2,543,076 1966 01/73 29 years
Driftwood Park (48), Indianapolis, IN 117,000 1,421,920 1,538,920 742,207 1963 09/89 28 years
Regency Royale (132), Mishawaka, IN 125,000 3,856,800 3,981,800 1,144,934 1983 06/93 40 years
Creek Bay (208), Indianapolis, IN 340,940 7,320,364 7,661,304 2,036,883 1992 12/93 40 years
Eagle Creek Park (188), Indianapolis, IN 378,000 6,197,756 6,575,756 1,749,508 1974 03/94 40 years
Charter Oaks (192), Evansville, IN 241,500 5,114,757 5,356,257 981,741 1984 06/97 40 years
Barcelona (64), Kokomo, IN 59,200 1,467,056 1,526,256 279,095 1971 11/97 33 years
Beech Grove (182), Jeffersonville, IN 469,000 3,876,986 4,345,986 706,419 1973 11/97 33 years
Hampton Court (92), Indianapolis, IN 225,600 1,563,325 1,788,925 287,645 1980 11/97 33 years
Sheffield Square (152), New Albany, IN 227,000 4,271,882 4,498,882 772,151 1974 11/97 33 years
West Wind Terrace (96), Indianapolis, IN 136,700 1,712,431 1,849,131 315,807 1967 11/97 33 years
Commercial (square feet):
Office/Warehouse (38,000), Carmel, IN 54,000 634,022 688,022 459,611 1972 10/77 33 years
Office (17,000), Indianapolis, IN 71,500 536,067 607,567 289,755 1966 7/86 33 years
Office (34,000), Indianapolis, IN 348,725 1,368,990 1,717,715 282,030 1975 5/97 40 years
Net leased restaurant (square feet):
Miami Subs (3,500), Longwood, FL 113,479 54,026 167,505 35,383 1978 1/79 10 years
__________ ____________ ___________ ___________
3,140,029 44,531,489 47,671,518 14,516,682
Equipment--various locations --- 769,765 769,765 386,707 Various Various 3-15 years
__________ ____________ ___________ ___________
TOTAL REAL ESTATE INVESTMENTS $3,140,029 $45,301,254 $48,441,283(A) $14,903,389(A)
__________ ____________ ___________ ___________
__________ ____________ ___________ ___________
Real estate held for sale:
Fox Run apartments(256), Indianapolis, IN $398,000 $6,897,103 $7,295,103 $1,755,877 1974 03/95 40 years
Fortune House (5,000), Indianapolis, IN 136,494 47,419 183,913 --- 1979 11/79 N/A
Equipment--Fox Run apartments --- 216,187 216,187 105,240
__________ ____________ ___________ ___________
TOTAL REAL ESTATE HELD FOR SALE 534,494 7,160,709 7,695,203(B) 1,861,117(B)
__________ ____________ ___________ ___________
TOTAL REAL ESTATE HELD FOR
INVESTMENT AND SALE $3,674,523 $52,461,963 $56,136,486 $16,764,506
__________ ____________ ___________ ___________
__________ ____________ ___________ ___________
Undeveloped land - various locations $99,675 $ $99,675(C) $ N/A 1/73 N/A
__________ ____________ ___________ ___________
__________ ____________ ___________ ___________
(A) The aggregate carrying value for tax purposes is $25,931,627
(B) The aggregate carrying value for tax purposes is $5,908,870
(C) The aggregate carrying value for tax purposes is $72,522
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION (CONTINUED)
CENTURY REALTY TRUST
December 31, 2004
Total Land,
Buildings Buildings
and and Accumulated Undeveloped
Land Improvements Improvements Equipment Depreciation Land
__________ ____________ ____________ __________ ___________ ___________
Balance January 1, 2002 $3,776,383 $52,792,086 $56,568,469 $1,357,386 $14,623,791 $99,675
Additions:
Improvements --- 610,912 610,912 98,125 --- ---
Depreciation --- --- --- --- 1,731,340 ---
Deductions:
Fully amortized costs --- 74,245 74,245 295,902 370,147 ---
__________ ___________ ___________ __________ ___________ ________
Balance December 31, 2002 3,776,383 53,328,753 57,105,136 1,159,609 15,984,984 99,675
Additions:
Improvements --- 245,840 245,840 143,835 --- ---
Depreciation --- --- --- --- 1,676,226 ---
Deductions:
Fully amortized costs --- 309,680 309,680 262,996 572,676 ---
__________ ___________ ___________ __________ ___________ ________
Balance December 31, 2003 $3,776,383 $53,264,913 $57,041,296 $1,040,448 $17,088,534 $99,675
Additions:
Improvements --- 346,021 346,021 90,946 --- ---
Depreciation --- --- --- --- 1,592,786 ---
Deductions:
Property sold 101,860 1,965,316 2,067,176 79,831 1,681,596
Fully amortized costs --- 169,607 169,607 65,611 235,218 ---
__________ ___________ ___________ __________ ___________ ________
Balance December 31, 2004 $3,674,523 $51,476,011 $55,150,534 $985,952 $16,764,506 $99,675
__________ ___________ ___________ __________ ___________ ________
__________ ___________ ___________ __________ ___________ ________
OTHER EXHIBITS
EXHIBIT 3(i)
COPY OF THE TRUST INSTRUMENT OF CENTURY REALTY
TRUST AS FILED AND RECORDED DECEMBER 21, 1972,
AND WITH ALL AMENDMENTS THERETO
ADOPTED THROUGH AND INCLUDING
DECEMBER 31,2004
____________________________________________
TRUST INSTRUMENT OF CENTURY REALTY TRUST
(An Indiana Real Estate Investment Trust)
This TRUST INSTRUMENT is made this 6th day of December, 1972, by the
undersigned trustees with the undersigned and with the persons hereinafter
called Beneficiaries.
ARTICLE I. DEFINITIONS
Section 1.1. Name. This trust shall be known as CENTURY REALTY TRUST
(hereinafter called "the Trust" or "Trust").
Section 1.2. Organization. The Trust is hereby declared to be a
business trust under the Indiana Business Trust Act of 1963 (Ind. Code
23-5-1-1 and following). The Trustees intend that the Trust comply with
Sections 856, 857, and 858 of the Internal Revenue Code of 1954 (P.L. 86-779
as amended: Title 26 United States Code annotated Section 856 and following):
References in this Trust Agreement to Internal Revenue Code of 1954 shall mean
the U.S. Internal Revenue Code of 1954 as amended.
Section 1.3. Trust Instrument. This trust instrument, together with
amendments thereto made from time to time, constitutes the trust instrument of
the Trust.
Section 1.4. Trustees. The Trustees shall consist of five (5) to nine
(9) persons, subject to vacancies which shall be filled as provided in this
trust instrument. The original trustees shall be the undersigned trustees.
The trustees from time to time thereafter shall be those duly elected or
appointed as provided in this trust instrument. The term "trustee" shall apply
to the trustees collectively in their fiduciary capacity and shall not apply to
them severally or as individuals.
Section 1.5. Shareholders. The term "shareholders" shall apply jointly
and severally to the persons who are holders of record on the books of the
Trust or any registrar or transfer agent acting on behalf of the Trust of
certificates of beneficial interest in the Trust. It shall include the word
"stockholders", "certificate holders" or "beneficiaries", when appropriate.
Section 1.6. Shares. The term "shares" means shares of beneficial
interest in the Trust as evidenced by certificates of beneficial interest.
ARTICLE 11. INVESTMENT POLICIES
Section 2.1. Type of Property. The trustees will attempt to comply with
the provisions of Section 856, 857 and 858 of the Internal Revenue Code of
1954, at the earliest practicable date consistent with the best Interests of
the Trust.
Section 2.2. Policy. The policy of the Trust will be to invest
primarily in Real Estate Equities and Mortgage Loans secured by valid liens on
Real Estate and to distribute not less than ninety percent (90%) of its net
income to its stockholders or such other percentage as will take maximum
advantage of the tax savings offered by the applicable sections of the Internal
Revenue Code.
The Trust may from time to time acquire real estate for cash or through
the issuance of shares or in exchange of real estate.
Section 2.3. Change of Investment Policies. The investment policy of
the Trust may be changed by amendment of this trust instrument as provided
hereafter.
ARTICLE III. SHARES
Section 3.1. Shares: Certificates of Beneficial Interest. The units
into which the beneficial interest in the Trust will be divided shall be
designated as shares. The certificates evidencing ownership of shares in the
Trust will be designated as Certificates of Beneficial Interest or shares.
The shares shall be personal property. The beneficiaries shall have no
legal title or interest in the property of the Trust and no right to a
partition thereof or to an action for accounting during the continuance of the
Trust.
Section 3.2. Number, Par Value, and Nonassessability. The beneficial
interest in this Trust shall initially be divided into five million (5,000,000)
shares. Such shares shall have no par value. No assessment shall ever be made
upon the shareholders.
Section 3.3. Sale of Shares. The Trustees may in their discretion, from
time to time, without vote of the shareholders, issue, sell by private or
public offering, or exchange shares in the Trust, in such number, for such sums
of money, real estate or other consideration and on such terms as they deem
proper. However, the shareholders shall have pre-emptive rights, except as to
any shares hereafter issued in connection with acquisitions by the Trust of
interests in real estate. The Trustees are authorized to enter into a contract
or contracts with an underwriter or under-writers upon such terms and with such
commissions for services as may be agreed upon by the parties. The Trustees
shall cause to be issued Certificates of Beneficial Interest to evidence the
ownership of shares in the Trust.
Section 3.4. Transfer of Shares. The persons in whose names the shares
are registered on the books of the Trust shall be deemed the absolute owners
thereof, and until a transfer is effected on the books of the Trust the
trustees shall not be affected by any notice, actual or constructive, of any
transfer.
The shares of the Trust shall be transferable only on the books of the
Trust upon surrender of the certificate or certificates representing the same,
properly endorsed by the registered holder or by his duly authorized
attorney-in-fact, such endorsement or endorsements to be witnessed by one
witness.
Section 3.5. Ownership, Stop-transfer, and Redemption. The
Shareholders, upon request, shall furnish to the trustees, in writing, such
particulars as to the direct and indirect ownership of the shares as the
trustees deem necessary for compliance with the provisions of the Internal
Revenue Code of 1954 and the Regulations thereunder regarding beneficial
ownership in a real estate investment trust, as those provisions and the
Regulations may be amended from time to time. Should the trustees, at any
time, in good faith, be of the opinion that beneficial ownership of shares of
the Trust has or will become so concentrated as to prevent the Trust from
continuing to qualify as a real estate investment trust under the applicable
provisions of the Internal Revenue Code, the trustees shall have the power to
prevent the transfer of such shares by means deemed equitable to them or to
call such number of shares for redemption as will be sufficient to maintain or
bring the beneficial ownership of shares in conformity with the applicable
provisions of the Internal Revenue Code. The price to be paid for the redeemed
shares shall be (a) the sale price on the securities exchange on which the
shares are traded, as reported at the close of the last business day prior to
the date of redemption or (b) if the shares are not traded on any securities
exchange, the last bid quotation on such business day as reported by the
National Association of Security Dealers or a similar organization selected by
the trustees, or (c) if not determined as above, the book value of the shares.
From the date of redemption, the holder of any shares called for redemption
shall no longer be entitled to any dividends, distributions, voting rights, or
any other benefits of shareholders, except the right to the redemption price.
Section 3.6. Effect of Transfer of Shares or Death, Insolvency or
Incapacity of Shareholders. Neither the transfer of shares nor the death,
insolvency or incapacity of any shareholder shall operate to dissolve or
terminate the Trust, nor shall it entitle any transferee, legal representative
or other person to a partition of the property of the Trust or to an action for
accounting.
Section 3.7. Acquisition of Shares by Trust. The Trust may repurchase
or otherwise acquire its own shares on such terms and conditions as the
trustees deem appropriate, and for this purpose the Trust may create and
maintain such reserves as are deemed necessary and proper.
Shares issued hereunder and purchased or otherwise acquired for the
account of the Trust shall not, so long as they belong to the Trust, either
receive distributions (except that they shall be entitled to receive
distributions payable in shares of the trust) or be voted at any meeting of the
Shareholders. Such shares may, in the discretion of the Trustees, be cancelled
and the number of shares authorized be thereby reduced or such shares may, in
the discretion of the Trustees, be held in the treasury and be disposed of by
the trustees at such time or times, to such party or parties, and for such
consideration, as the Trustees may deem appropriate.
Section 3.8. Acquisition of Shares by Trustee. Any trustee hereunder
may acquire, hold and dispose of shares in this trust to the same extent and in
the same manner as if he were not a trustee and without affecting in any way
his status or power as such trustee.
Section 3.9. Lost, Stolen or Destroyed Certificates. The Trust may
issue a new certificate for shares of the Trust in the place of any certificate
theretofore issued and alleged to have been lost, stolen or destroyed, but the
trustee may require the owner of such lost, stolen or destroyed certificate, or
his legal representative, to furnish affidavit as to such loss, theft, or
destruction, and to give a bond in such form and substance, and with such
surety or sureties, with fixed or open penalty, as they may direct, to
indemnify the Trust against any claim that may be made on account of the
alleged loss, theft or destruction of such certificate.
ARTICLE IV. SHAREHOLDERS
Section 4.1. Meetings.
1. Annual Meeting of Shareholders. The first annual meeting of the
shareholders shall be held sometime between January 1, 1974 and June 30, 1974.
Thereafter, the annual meeting shall be held at such time and place as the
By-Laws provide, and upon the giving of notice as provided in Sub-Section 3
herein. At the annual meeting of shareholders, trustees shall be elected and
such business may be transacted as may lawfully come before the meeting;
provided, however, that at such annual meeting the shareholders shall vote only
on those matters upon which they are specifically entitled to vote by this
Trust. If the election of trustees shall not be held on the day designated
herein for any annual meeting, or at any adjournment thereof, the trustees
shall cause the election to be held at a meeting of the shareholders as soon
thereafter as conveniently may be. Duly elected trustees shall serve until
their successors are elected and shall have qualified. Failure to hold any
annual meeting shall not work any forfeiture or a dissolution of the Trust.
2. Special Meetings. Special Meetings may be called by the secretary on
the order or written request of the president or the trustees upon the giving
of notice as provided in Sub-Section 3 hereof, and if there has been no annual
meeting held for a period exceeding eighteen (18) months, said special meetings
shall be called upon written request of the shareholders holding an aggregate
of not less than ten percent (10%) of the outstanding shares. Such request
shall specify the purpose or purposes for which such meeting is to be called.
At such special meeting, the shareholders shall vote only on those matters upon
which they are specifically entitled to vote by this trust.
3. Notice of Meetings. A written or printed notice, stating the place,
date and hour of any annual or special meeting of the shareholders shall, not
less than ten days nor more than forty days before such meeting, be delivered
personally to each shareholder, or shall be mailed, postage prepaid, by the
secretary to each shareholder of record, addressed to him at his address as it
appears in the records of the Trust. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail. The notice of all
special meetings shall set forth the purpose for which the meeting is called,
and no business not stated in the notice of the meeting shall be considered at
any special meeting of the shareholders.
4. Quorum. At any shareholders' meeting, thirty-three and one-third
percent (33-1/3%) of the shares of beneficial interest outstanding must be
represented by person or proxy in order to constitute a quorum for the
transaction of business; but, the shareholders present at any meeting, although
less than a quorum, may adjourn the meeting from time to time, without further
notice, to some other day or hour. Once a quorum is present to organize a
meeting, the quorum cannot be destroyed by the subsequent withdrawal or
revocation of the proxy of any shareholder. If a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting shall
be the act of the shareholders unless the affirmative vote of more than a
majority is required by any provision of this trust.
Section 4.2. Matters on Which Beneficiaries Shall Be Entitled to Vote.
The beneficiaries shall be entitled to vote on the following matters, and no
others:
a. Election of Trustees: Each beneficiary shall be entitled-to one
(l) vote in person or by proxy, for each share registered in his name. The
candidates receiving the highest number of votes up to the number of
trusteeships to be filled in the election shall be elected.
b. Removal of Trustees: Any trustee may be removed as provided in
Section 5.16 herein.
c. Termination of Trust: The Trust may be terminated as provided in
Section 8.2 herein.
Section 4.2d. General. Notwithstanding any other provisions of the
Trust Instrument to the contrary, any action taken by the Trustees to merge or
consolidate or otherwise amalgamate the Trust with any other Trust or
corporation, or to amend the Trust Instrument shall not become effective until
such action is first approved by the vote or written consent of the holders of
either:
(1) A majority of the issued and outstanding shares; or
(2) Two-thirds of the shares voting on the matter, providing a quorum is
present in person or by proxy.
Section 4.3. Voting Lists. The Transfer Agent of the Trust shall, at
least five days before each election of trustees, make a complete list of the
certificate holders entitled to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote held by each,
which list shall be on file at the principal office of the Trust and subject to
inspection by any shareholder. Such list shall be produced and kept open at
the time and place of election and subject to the inspection of any shareholder
during the holding of such election. The original stock register or transfer
book, or a duplicate thereof kept in the State of Indiana, shall be the only
evidence as to who are the shareholders entitled to examine such list, or the
stock ledger or transfer book, or to vote at any meeting of the shareholders.
Section 4.4. Fixing of Record Date to Determine Certificate Holders
Entitled to Vote. The Trustees may fix a day and hour not more than forty (40)
days prior to the holding of any meeting of certificate holders as the time as
of which certificate holders entitled to notice of, and to vote at, such
meeting shall be determined, and all persons who are holders of record of
voting shares at such time, and no others, shall be entitled to notice of, and
to vote at, such meeting.
Section 4.5. Non-Liability of Beneficiaries. Shareholders shall not be
liable for any assessment on account of the shares owned by them, and the
trustees shall have no power to bind the shareholders personally. All persons
dealing with or having any claim against the trustees or any officer or agent
of this trust shall look only to the funds and property of this trust for the
payment of any debt, claim, damage, judgment or decree, or of any money or
other thing that may become due or payable in any way, whether founded upon
contract or tort, and the shareholders shall not be personally or individually
liable therefor. Any shareholder held so personally liable shall be entitled
to exoneration from the Trust's assets.
In every written order, contract, instrument or obligation given or
executed by the trustees or under their authority, it shall be the duty of the
trustees to insert or cause to be inserted a stipulation to the effect that the
shareholders shall not be liable for any debt, demand or liability incurred by
or under the authority of the trustees, and reference shall be made to this
Trust Instrument. However, no dereliction of the trustees or of the officers
or agents of this Trust in this regard shall have the effect of rendering any
shareholder personally liable.
Section 4.6. Distributions. It is the declared policy of the Trust that
the trustees shall (and may more frequently) declare and pay, within sixty (60)
days after the end of each annual period after the calendar year in which the
Trust is created, to the Shareholders as near to all of the net income of the
Trust (net income for the purpose of this Section shall mean net income for
tax purposes adding back deductions for depreciation and similar non-cash
charges) as shall be available therefor unless the trustees deem it imprudent
to make such distributions, but in any event the trustees shall, from time to
time, declare and pay to the shareholders such distributions as may be
necessary to continue to qualify the Trust as such "real estate investment
trust", (so long as such qualification, in the opinion of the trustees, is in
the best interest of the shareholders) as well as such additional distributions
as the trustees may, in their discretion, declare. Each distribution when made
shall be accompanied by a written statement indicating, to the fullest extent
practicable, the sources of the distribution.
Section 4.7. Fixing of Record Date to Determine Certificate Holders
Entitled to Receive Trust Benefits. The Trustee may fix a day and hour not
exceeding thirty (30) days preceding the date fixed for payment of any
dividend, or for the delivery of evidences of rights, or for the distribution
of certificates for shares, without par value, upon a change of outstanding
shares, without par value, into a greater or lesser number of shares, as a
record time for the determination of the certificate holders entitled to
receive any such dividend, rights or distribution, and in such case only
certificate holders of record at the time so fixed shall be entitled to receive
such dividend, rights or distribution. The trustees at their option may also
prescribe a period not exceeding thirty(30) days prior to the payment of such
dividend, delivery or distribution, during which no transfer of shares on the
books of the Trust may be made.
Section 4.8. Reports to Shareholders. The Trust shall transmit to the
shareholders annually within three (3) calendar months following the close of
its fiscal year a report which shall contain:
(1) a statement by the Trustees as to the course of the operations of
the Trust during the fiscal year covered by such report, including a schedule
of the funds distributed to the share-holders during such fiscal year and the
respective sources thereof;
(2) a description of the major real estate assets and mortgages owned by
the Trust at the close of such fiscal year, and other disclosures of material
interest to the shareholders; and
(3) financial statements consisting of a balance sheet, a profit and
loss statement, and an analysis of surplus, all prepared in accordance with
generally accepted accounting principles, and generally conforming to the
requirements for financial statements to be included in annual reports filed
with the Securities and Exchange Commission by companies subject to its
jurisdiction. Such statements shall be audited and certified by an independent
certified public accountant.
As promptly as possible after the close of each semiannual period in each
fiscal year, the Trustees shall(and may more frequently) transmit an income and
expense statement to the shareholders for such six-month period, which
statement need not be audited or certified by an independent certified public
accountant.
Section 4.9. Books and Records. The books and records of the Trust
shall be open to inspection upon the written demand of a shareholder at any
reasonable time for a good faith purpose reasonably related to the interests of
such shareholder as a shareholder.
Such inspection by a shareholder may be made in person or by agent or
attorney and the right of inspection includes the right to make extracts.
Demand of inspection other than at a shareholders' meeting shall be made
in writing upon the Chairman of the Trustees, or the Secretary.
The duly authorized officials of any state shall have the same right of
inspection as a shareholder.
ARTICLE V - TRUSTEES
Section 5.1. Number. The number of trustees shall be fixed from time to
time by a resolution passed by a majority of the trustees, but shall not be
less than five (5) nor more than nine (9).
Section 5.2. Classes. Each trustee named herein, prior to the first
annual meeting of shareholders, shall (except in the event of resignations or
vacancies or removals pursuant to Sections 5.5, 5.6 and 5.16) hold office until
his successor has been elected at such meeting. At such meeting the trustees
shall be divided into three (3) classes, and one class of trustees shall be
elected to hold office for a term of one year, one class of trustees shall be
elected to hold office for a term of two years, and one class of trustees shall
be elected to hold office for a term of three years, and, in each case, until
their respective successors are duly elected and qualified. At each annual
meeting of shareholders thereafter, one class of Trustees shall be elected to
hold office for a term of three years and until their respective successors are
duly elected and qualified.
Section 5.3. Election and Qualification. After the election of trustees
at the first annual meeting, the trustees shall determine and notify
shareholders which Trusteeships are to be elected at each of the annual
meetings of the shareholders. Nominations for trustees may be made from the
floor by any shareholder at the annual meeting. Incumbent trustees may be
reelected.
The trustees must be United States citizens, but need not be residents of
the State of Indiana. Trustees may, but need not, own shares of this Trust.
The trustees shall not be minors. The election of any Trustee (other than an
individual who was serving as a trustee immediately prior to such election)
shall not become effective unless and until such person shall have in writing
accepted his election and agreed to be bound by the terms of this Trust
Instrument. No person shall be eligible to serve as a trustee of this Trust if
such person is an officer or employee of, or has any direct or indirect
proprietary interest in, any independent contractor which furnishes supplies,
or renders services pertaining to the trust property, or which manages or
operates such property, except as provided in Section 5.19(3) herein.
Section 5.4. Compensation of Trustees. The trustees shall initially
receive such compensation as trustee as the Court shall determine reasonable
and proper. Thereafter, the trustees shall receive such compensation as
trustee as they shall, from time to time, prescribe by resolution as reasonable
and proper.
Section 5.5. Resignation. A trustee may resign at any time by giving
written notice to the Secretary of the Trust, at the principal office of the
Trust. Such resignation shall take effect at the date it is received by the
Secretary of the Trust or at any later time specified in the written
resignation. Acceptance of the resignation shall not be required to make it
effective.
Section 5.6. Vacancies. The vacancy of any or all of the Trusteeships
for any reason whatsoever shall not affect the validity of the Trust or cause
its termination. The surviving or remaining trustee or trustees may exercise
the powers of the Trust given by this Trust Instrument. Any vacancy among the
trustees occurring during a term of office of a duly elected trustee may be
filled until the next annual meeting of the shareholders by a person selected
by a majority vote of the remaining trustees, provided, however, that if there
are less than three (3) trustees qualified and acting hereunder at any time,
or, if the number of trustees duly elected by the shareholders is less than a
majority of the total number of trustees, a special meeting of the shareholders
shall be called by any shareholder within thirty (30) days after the date such
vacancy occurred, at which, meeting trustees shall be elected by the
shareholders to serve the remainder of unexpired terms of all trusteeships in
which vacancies have occurred since the last annual meeting.
Section 5.7. Successor Trustees. Successor trustees shall have the same
powers as the original trustees under this Trust Instrument. Title to all
forms of property held by the trustees or any of them on behalf of the Trust or
in the name of a nominee on behalf of the Trust shall be vested in the
successor trustees upon their election without further action.
Section 5.8. Regular Meetings of Trustees. Regular meetings of the
trustees shall be held quarterly. One of such regular meetings shall be held
immediately after the annual meeting of the shareholders and at the same place
where such annual meeting is held. At such meeting of the trustees, the
trustees shall elect the officers of this trust, as well as the executive
committees, if any, or other trust committees, if any, for the ensuing year.
The other meetings of the Trustees shall be held upon the call of the
President, the Secretary, or any two trustees at such time and place as the
By-Laws or a Resolution of the trustees shall provide or permit. Notice of any
meeting shall be mailed or otherwise given (including, without limitation, by
telephone or telegraph) not less than three (3) days prior to the meeting but
may be waived in writing by any trustee either before or after such meeting.
The attendance of a trustee at a meeting shall constitute a waiver of notice
of such meeting, except where a trustee attends a meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting has not been lawfully called or convened.
Section 5.9. Special Meetings of the Trustees. The president of the
trust, or any two trustees, may call a special meeting of the trustees
whenever, in their opinion, the interests of the trust require it, by notice in
writing served in person or through the mail at least one day previous to such
meeting. Such notice shall state the day, time, place and purpose of the
meeting. However, other matters may come before the meeting unless specific
notice of such matter is required in this Trust Instrument or in the By-Laws or
rules adopted by the Trustees. A waiver of such notice signed by any trustee
or trustees shall be equivalent to the giving of such notice to the signer or
signers. When all the trustees shall be present at any special meeting,
however called or notified, or shall sign a written consent thereto, the acts
of such meeting shall be valid as if legally called and notified.
Section 5.10. Quorum. A majority of the trustees then in office shall
constitute a quorum for the transaction of business at any meeting of the
trustees, but a smaller number may adjourn the meeting from time to time to
another day or hour without further notice.
Section 5.11. Manner of Acting. A majority of the trustees then in
office attending any meeting duly held, may exercise any of the powers,
discretions and trusts vested in the trustees of this trust and their decisions
and actions shall constitute the decisions and actions of all of the trustees
and shall have the same effect as if assented to by all; provided, however,
that if at any time there are less than four (4) trustees acting hereunder,
such powers, discretions and trusts may be exercised by such trustees, but only
upon their unanimous consent. The aforesaid requirement of unanimous consent
among the trustees shall continue in effect until the shareholders have elected
trustees to fill the vacancies.
Section 5.12. Presumption of Assent. A trustee of this trust by his
presence at a meeting of the trustees at which action on any matter is taken
shall be conclusively presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of this trust immediately after adjournment of
the meeting. Such right to dissent shall not apply to a trustee who voted in
favor of such action.
Section 5.13. Action by Trustees without Meeting. It is not the intent
that the trustees must hold meetings for all actions to be taken hereunder
since the places of residence of the trustees and their other business
obligations may preclude the holding of meetings with respect to the exercise
of all of the powers hereunder. Therefore:
(a) The execution of any contract, transfer, conveyance, mortgage,
pledge, lease or other instrument on behalf of this trust by all of the
trustees without holding a meeting shall have the same effect as action
authorized at a meeting of the trustees; and
(b) At least four-fifths (4/5) of the existing trustees, but not less
than three (3) trustees, may take any action or execute any written instrument
in the name of all of the trustees on behalf of this trust without holding a
meeting, provided that at least seven (7) days' prior written notice has been
given to all of the trustees of the subject matter of the proposed action or of
the written instrument to be executed; and provided, further, that no trustee
shall have notified the secretary of this trust in writing of his objection to
the proposed action, or to the proposed execution of the written instrument in
question, prior to the expiration of said seven-day period. If any objection
shall be received by the secretary, then he shall promptly call a meeting of
the trustees to consider the proposed action. Any trustee may waive any notice
required under this subsection.
Section 5.14. Action by Four-Fifths of Trustees Binding As to Third
Parties. Notwithstanding the foregoing provisions or any other provisions of
this Trust, any contract, transfer, conveyance, mortgage, pledge, lease or
other Instrument executed in the name of all of the trustees by four-fifths
(4/5) of the existing trustees, but not less than three (3) trustees, shall,
as to third persons dealing with the trustees, have the same effect as action
authorized at a meeting of the trustees, and no person dealing with the
trustees shall be required to ascertain whether the foregoing provisions with
respect to notice to all of the trustees have been met.
Section 5.15. Power to Appoint an Attorney-in-Fact. Any trustee at any
time acting hereunder may appoint any co-trustee to be the attorney-in-fact-for
the appointing trustee by an instrument in writing executed under seal and
acknowledged as deeds of real estate are required to be acknowledged in
Indiana, giving such attorney-in-fact full power, for such period of time and
to such extent as may be provided in such written instrument to perform the
duties and to execute the powers by this trust conferred upon the appointing
trustee.
Section 5.16. Removal of Trustees. Any trustee may only be removed with
cause at any annual or special meeting of the certificate holders by vote of a
simple majority of the shares of the Trust then outstanding and entitled to
vote.
Any trustee may be removed for cause at any annual or special meeting of
the trustees by vote of two-thirds of the trustees attending such meeting.
Section 5.17. Title and Authority-of the Trustees. The Trustees shall
hold legal title to all property owned in the name of the Trust or in the name
of one or more of the Trustees, as Trustees for the Trust. The Trustees shall
have absolute control, management and disposition of the property of the Trust,
and absolute and exclusive control over the management and conduct of the
business and affairs of the Trust, subject only to the express limitations of
this trust instrument.
Section 5.18. Powers of Trustees. The trustees shall have all of the
powers necessary, convenient or appropriate to effectuate the purposes of the
Trust, and may take any action authorized by vote of a majority of trustees
which they deem necessary or desirable and proper to carry out such purposes
not inconsistent with this Trust instrument. Any determination of the purposes
of the Trust and any construction of the provisions of this Trust instrument
made by the trustees in good faith shall be conclusive for all purposes. In
construing the provisions of this Trust instrument, the presumption shall be in
favor of the grant of powers to the trustees.
Without limiting the generality of the powers of the trustees, conferred
above or elsewhere in this Trust instrument, the powers of the trustees shall
include the following:
(1) To purchase, acquire through the issuance of shares in the Trust,
obligations of the Trust or otherwise, and to mortgage, sell, acquire on lease,
hold, manage, improve, lease to others, option, exchange, release and partition
real estate of every nature, including freehold, leasehold, mortgage, ground
rent and other in-terests therein, and to erect, construct, alter, repair,
demolish or otherwise change buildings and structures of every nature.
(2) To enter into a contract or contracts, on an exclusive or
non-exclusive basis, for the management and operation by another or others of
any or all real estate in which the Trust shall have an interest. Such
contract or contracts may be for any term not exceeding ten years and may be
renewable. Any such contract shall provide that in the event its terms shall
impair the status of the Trust as a "real estate investment trust" within the
meaning of the Real Estate Investment Trust Provisions, such contract will
terminate unless the parties negotiate such amendments thereto as may be
necessary to restore such status, and that if for any reason other than the
terms of such contract the other party shall at any time during the term
thereof not be an "independent contractor" within the meaning of the Real
Estate Investment Trust Provisions, such contract shall forthwith terminate.
(3) To purchase, acquire through the issuance of shares in the Trust,
obligations of the Trust or otherwise, option, sell and exchange stocks, bonds,
notes, certificates of indebtedness and securities of every nature.
(4) To purchase, acquire through the issuance of shares in the Trust,
obligations of the Trust or otherwise, mortgage, sell, acquire or lease, hold,
manage, improve, lease to others, option and exchange personal property of
every nature.
(5) To hold legal title to property of the Trust in the name of the
Trust, or in the name of one or more of the Trustees, without disclosure of the
interest of the Trust therein.
(6) To borrow money for the purposes of the Trust and to give notes,
debentures, bonds, and other negotiable or non-negotiable instruments of the
Trust therefor; to enter into other obligations on behalf of and for the
purposes of the Trust; and to mortgage or pledge or cause to be mortgaged or
pledged real and personal property of the Trust to secure such notes,
debentures, bonds, instruments or other obligations.
(7) To lend money on behalf of the Trust and to, invest the funds of the
Trust.
(8) To create reserve funds for such purposes as they deem advisable.
(9) To deposit funds of the Trust in banks and other depositories
without regard to whether such accounts will draw interest.
(10) To pay taxes and assessments imposed upon or chargeable against the
Trust or the Trustees by virtue of or arising out of the existence, property,
business or activities of the Trust.
(11) To issue, sell or exchange shares of the Trust as provided in
Section 3.3 hereof. The good faith determination of the value of the
consideration received by the Trust shall be within the absolute discretion of
the Trustees.
(12) To adopt and from time to time amend or repeal the By-Laws of the
Trust.
(13) To exercise with respect to property of the Trust, all options,
privileges and rights, whether to vote, assent, subscribe or convert, or of any
other nature; to grant proxies, and to participate in and accept securities
issued under any voting trust agreement.
(14) To participate in any reorganization, readjustment, consolidation,
merger, dissolution, sale, or purchase of assets, lease, or similar proceedings
of any corporation, partnership or other organization in which the Trust shall
have an interest and in connection therewith to delegate discretionary powers
to any reorganization, protective or similar committee and to pay assessments
and other expenses in connection therewith.
(15) To engage or employ agents, representatives and employees of any
nature, or independent contractors, and to delegate to one or more Trustees,
agents, representatives, employees, independent contractors or other persons
such powers and duties as the trustees deem appropriate. The same persons may
be employed in multiple capacities and may receive compensation from the Trust
in as many capacities as they may be engaged or employed by the Trust.
(16) To determine conclusively the allocation between capital and income
of the receipts, holdings, expenses and disbursements of the Trust, regardless
of the allocation which might be considered appropriate in the absence of the
provision.
(17) To determine conclusively the value from time to time and to
revalue the real estate, securities and other property of the Trust, in
accordance with such appraisals or other information as they deem satisfactory.
(18) To compromise or settle claims, questions, disputes and
controversies by, against or affecting the Trust.
(19) To solicit proxies of the Shareholders.
(20) To adopt a fiscal year for the Trust and to amend or change such
fiscal year.
(21) To deal with the Trust property in every way that it would be lawful
for an individual to deal with the same, whether similar to or different from
the ways above specified.
(22) The Trustees shall have power, for such purposes, as the Trustee may
deem necessary or desirable for the transaction of the business of the Trust,
to appoint, employ or contract with any person (including one or more of
themselves and any corporation, partnership or trust of which one or more of
them may be an affiliate, subject to the applicable requirements of Sections
5.19(3) and 11.7) including any person who, under the supervision of the
Trustees, may furnish the Trustees with advice and recommendations with
respect to the acquisition, holding and disposition of investments and with
respect to other aspects of the business and affairs of the Trust, as the
Trustees deem necessary.
Section 5.19. Prohibited Activities. The Trust shall not do or perform
any of the following:
(1) Engage in the business of operating a rural loan and savings
association or credit union; have the power or authority to conduct a banking,
railroad, insurance, safety, safe deposit, mortgage guaranty, or building and
loan business; engage in the business of mining or manufacturing; or engage in
any business regulated under the Public Service Commission of Indiana.
(2) Issue any class of non-voting stock.
(3) Acquire, lend or convey any interest in any property (other than
securities of the Trust) in which any trustee, officer, employee, investment
adviser, manager, or independent contractor of the Trust also has an interest,
directly or indirectly, unless such transaction (i) has been approved, after
disclosure of such relationship, by a majority of the Trustees not so
affiliated; (ii) is on terms fair and reasonable to the Shareholders and (iii)
is on terms at least as favorable to the Trust as the terms for comparable
transactions (of which the Trustees have knowledge) with an entity not an
Affiliate of the Trust. For the purposes of this Sec. 5.19(3), the term
"independent contractor" shall mean an "independent contractor" as defined in
Section 856(d)(3) of the Internal Revenue Code of 1954, which furnishes
services to tenants of, or manages or operates, real property owned by the
Trust.
(4) Engage in any new business activity inconsistent with the
requirements needed to qualify as a Real Estate Investment Trust under the
Internal Revenue laws of the United States.
Section 5.20. Liability of Trustees. No trustee shall be liable for any
act or omission whatsoever of any other trustee or of any officer or agent of
this Trust; nor shall any trustee be liable for any negligence, error in
judgment, or for any act or omission, except for his own wilful misconduct, bad
faith or gross negligence in conduct of his duties, and further except for any
violation or violations of the Federal Securities laws. While it is the
intention of the trustees to operate this trust in such manner as to qualify as
a Real Estate Investment Trust under Sections 856 to 858 of the Internal
Revenue Code of 1954, as amended, or under any similar legislation which may be
hereafter enacted, the trustees shall not be liable to the shareholders if at
any time it should be determined by the Internal Revenue Service that the Trust
does not so qualify. The trustees shall be required to give bond or surety to
secure the performance of their duties under this trust. In general, the
liabilities of the Trustees shall be the same as Directors of corporations.
Every act or thing done or omitted, and every power exercised or
obligation incurred by the trustees, or any of them, in the administration of
this trust or in connection with any business, property or concerns of this
Trust, whether ostensibly in their own names or in their trust capacity, shall
be done, omitted, exercised or incurred by them as trustees and not as
individuals; and every person contracting or dealing with the trustees or
having any debt, claim or judgment against them or any of them shall look only
to the funds and property of this trust for payment or satisfaction; and no
trustee or trustees and no officer or agent of this trust shall ever be
personally liable for or on account of any contract, debt, tort, claim, damage,
judgment or decree arising out of, or out of the preservation of, the property
of this trust or the conduct of any business of this trust. A stipulation or
notice to this effect shall be inserted in any contract, order or similar
instrument made by the trustees or their officers or agents; but the omission
thereof shall not be construed as a waiver of the foregoing provision, and
shall not render the trustees, officers or agents personally liable.
Section 5.21. Indemnification of Trustees, Officers and Others. The
Trust shall indemnify any person made a party to any action, suit or proceeding
by reason of the fact that he is or was a trustee, officer or employee of the
Trust against the reasonable expenses, including attorneys' fees actually and
reasonably incurred by him in connection with the defense of such action, suit
or proceeding, or in connection with any appeal therein, except in relation to
matters as to which it shall be adjudged in such action, suit or proceeding
that such trustee, officer or employee is liable for gross negligence or wilful
misconduct in the performance of his duties, and further except for any
violation or violations of the Federal Securities laws. The Trust may also
reimburse to any such trustee, officer or employee the reasonable costs of
settlement of any such action, suit or proceeding, if it shall be found by a
majority of a committee composed of the trustees not involved in the matter of
controversy (whether or not a quorum) that it was to the interests of the Trust
that such settlement be made and that such trustee, officer or employee was not
guilty of gross negligence or wilful misconduct in the performance of his
duties or of any violation or violations of the Federal Securities laws. Such
rights of indemnification and reimbursement shall not be deemed exclusive of
any other rights to which such trustee, officer or employee may be entitled
apart from the provisions of this Section.
Section 5.22. Persons Dealing with Trustees. Any acts of the trustees
purporting to be done in their capacity as such, or by agents or
representatives of the Trust under authority from the trustees, shall as to
other persons dealing with such trustees, agent or representative, be
conclusively deemed to be within the purposes of the Trust and within the
powers of the trustees. No person dealing with the trustees and agents or
representatives, or any of them, shall be bound to see to the application of
any funds or property passing into their hands or control.
The receipt of the duly authorized agents or representatives of the Trust
for moneys or other consideration paid or delivered to any of them shall be
effectual discharges to persons paying or delivering the same.
ARTICLE VI - COMMITTEES
Section 6.1. Committees Appointed by Trustees. The trustees may appoint
such committees, in addition to an executive committee, as they may from time
to time determine by resolution or pursuant to By-Laws, rules or regulations
adopted by the trustees.
Section 6.2. Executive Committee. At each annual meeting of trustees,
the trustees may appoint not less than three (3) of their number to the
executive committee of the Trust to serve for such term as the trustees may
decide. The term of office of each executive committee member shall continue
until his successor has been elected and qualified.
The executive committee shall have and exercise all of the powers of the
trustees stated in Section 5.18 of this Trust instrument in the month-to-month
management of the Trust; however, the delegation of such authority to the
executive committee shall not operate to relieve any trustee of any
responsibility imposed upon him by law or by this trust instrument.
During the intervals between meetings of the trustees, and subject to
such limitations as may be required by law or by resolution of the trustees,
the executive committee shall have and may exercise all of the powers of the
trustees in the month-to-month management of the business and affairs of the
Trust. All minutes of meetings of the executive committee shall be submitted
at the next succeeding meeting of the trustees for approval, but failure to
submit such minutes or to receive the approval thereof shall not invalidate any
completed action taken by the Trust upon authorization by the executive
committee before the time at which such minutes should have been or were
submitted. The executive committee shall not have the authority of the trustee
in reference to amending this trust instrument; purchasing, acquiring,
mortgaging, selling, or otherwise disposing of real estate; borrowing or
lending money on behalf of the Trust; issuing, selling, exchanging or acquiring
shares of the trust; declaring dividends; adopting an agreement or plan of
merger, consolidation, reorganization or dissolution; or amending the By-Laws,
rules or regulations adopted by the trustees.
ARTICLE VII - OFFICERS
Section 7.1. Number and Election. The officers of the Trust shall
consist of the president, the secretary, the treasurer, and such other officers
as the By-Laws may from time to time provide. The president shall be a
trustee. Any two or more offices may be held by the same person except that
the duties of president and secretary shall not be performed by the same
person.
Section 7.2. Election and Term of Office. The initial president,
secretary and treasurer shall be designated by Order of Court, and thereafter,
the officers shall be elected by a majority vote of the trustees at the meeting
of the trustees to be held immediately after the annual meeting of the
shareholders. Each officer shall hold office during the ensuing year and until
his successor shall have been duly elected and qualified, or until he shall
resign or shall have been removed in the manner hereinafter provided.
Section 7.3. Compensation of Officers. The Trustees shall fix the
compensation of all officers whom they elect, may receive reasonable
compensation for their general services as Trustees and officers hereunder, and
may pay themselves or any one or more of themselves such compensation for
special services as they in good faith may deem reasonable.
Section 7.4. Removal. Any officer elected by the trustees may be
removed by a majority vote of the trustees, at a special meeting called for
such purpose whenever, in their judgment, the best interest of this Trust would
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 7.5. Resignation. Any officer may resign at any time by giving
written notice to the president or secretary at the principal office of the
Trust. Such resignation shall take effect at the date it is received at the
principal office of the Trust or at any later time specified in the written
notice. The acceptance of the resignation shall not be necessary to make it
effective unless the officer has a written employment contract with the Trust.
ARTICLE VIII - DURATION AND TERMINATION OF THE TRUST
Section 8.1. Duration of the Trust. The Trust shall continue
perpetually unless terminated as provided in this trust instrument, except that
in the event that a statute or rule of law shall require that a trust may not
continue perpetually. Then, the Trust shall continue for the longest period of
time permitted by law unless sooner terminated as provided in this trust
instrument, and to the extent that measuring lives in being are required to
determine the term of this Trust, such measuring lives in being shall be the
undersigned trustees who have executed this trust instrument and their issue
living at the time of the execution of this trust instrument, and that Trust
shall in such event continue until the death of the last survivor of them plus
an additional period of twenty-one (21) years, unless sooner terminated as
provided in this trust instrument.
Section 8.2. Termination of the Trust. The Trust may be terminated at
any time by a two-thirds (2/3) vote or written consent of the outstanding
shares of beneficial interest.
The Trust may also be terminated by a majority vote or written consent of
the outstanding shares of beneficial interest when the termination has been
recommended by a two-thirds (2/3) vote of the trustees.
In connection with any termination of the Trust, the trustees, upon
receipt of such releases or indemnity as they deem necessary for their
protection, may either (1) sell and convert into cash the property of the Trust
and distribute the net proceeds among the shareholders proportionately, or
(2) convey the property of the Trust to one or more persons, entities, trusts
or corporations, for consideration consisting in whole or in part of cash,
shares of stock, or other property of any kind, and distribute the net proceeds
among the shareholders proportionately at valuations fixed by the trustees
after independent appraisals, in cash or in kind, or partially in cash and
partially in kind.
Upon termination of the Trust and distribution to the shareholders as
provided in this trust instrument, a majority of the trustees shall execute and
lodge among the records of the Trust, an instrument in writing setting forth
the facts of termination and a full report thereof, a copy of which shall be
sent by mail to each shareholder, and the trustees shall thereupon be
discharged from any and all further liabilities and duties under this trust
instrument, and the right, title and interest of all shareholders shall cease
and be cancelled and discharged.
ARTICLE IX. - AMENDMENTS
Section 9.1. Amendments by Certificate Holders. This trust instrument
may be amended by vote or written consent as provided in Article IV, Section
4.2d herein.
Section 9.2. Filing and Recording Amendments. No amendment of this
Trust instrument shall be effective until an executed copy thereof has been
filed in the Office of the Secretary of State of Indiana and a file-marked copy
thereof recorded in the office of the County Recorder of the county in which
the principal office of this Trust in the State of Indiana is located.
ARTICLE X. - SEPARABILITY CLAUSE
Section 10.1. Interpretation-Trust Tax Provision or Certificate Holders'
Liability. If any branch, department, agency or instrumentality of the United
States of America, the State of Indiana, or any branch, department, agency or
instrumentality of any jurisdiction where the securities of the Trust are
registered or to be registered shall so interpret or construe any provision of
this trust instrument which shall have the effect of (1) denying to the Trust
the applicability of Sections 858, 857 and 858 of the Internal Revenue Code of
1954, as amended, or any similar federal revenue statute, or (2) denying to the
shareholders freedom from assessment and liability for any and all of the
obligations of the Trust, then provision of this trust instrument shall be
deemed to have no force and effect and the trust instrument shall be deemed to
have been written without such particular provision.
Section 10.2. Interpretation - Invalidity. If any provision of this
trust instrument, or the application thereof to any person or circumstances,
is held ineffective or invalid because contrary to any law, rule or regulation
of the United States of America, the State of Indiana, or any agency or
instrumentality thereof, or of any jurisdiction or any agency or
instrumentality thereof, where the securities of the Trust are registered or to
be registered, the remainder of the provisions of this trust instrument and the
application of such provision to other persons or circumstances shall not be
affected thereby.
Section 10.3. Separability. The finding of invalidity of a Section, or
part of this Trust instrument, shall not affect the validity of any other
Section or part.
ARTICLE XI. MISCELLANEOUS
Section 11.1. Applicable Law. The laws of the State of Indiana shall
govern the construction, validity, and effect of this trust instrument and the
administration of the Trust hereby created.
Section 11.2. Applicability of Indiana General Corporation Laws. The
Trust and the certificates of beneficial interest in the Trust shall be subject
to all applicable provisions of Indiana law, now in effect or hereafter
enacted, relating to Indiana corporations with regard to the issuance and
transfer of securities, filing of required statements, reports, service of
process, and liability for or exclusion from taxation under the provisions of
Indiana Code 6-5-1-1 through 6-5-1-33 (1971).
Section 11.3. Headings for Reference Only. Headings preceding the text,
articles and sections hereof have been inserted solely for convenience and
reference and shall not be construed to affect the meaning, construction or
effect of this declaration of trust.
Section 11.4. Counterparts. This declaration may be simultaneously
executed in several counterparts, each of which when so executed shall be
deemed to be an original, and such counterparts together shall constitute but
one and the same instrument, which shall be sufficiently evidenced by any such
original counterpart.
Section 11.5. Insurance. The Trust will use its best efforts to obtain
or cause to be obtained all customary types of insurance against liabilities or
hazards.
Section 11.6. Right to Engage In Business Activities Similar to Those of
the Trust. Any trustee, officer, employee or agent of the Trust may, in his
personal capacity, engage in business activities in addition to those relating
to the Trust, which interests and activities may be similar to those of the
Trust, and any trustee, officer, employee, or agent of the Trust shall be free
of any obligation to present to the Trust any investment opportunity which
comes to him in any capacity other than solely as trustee, officer, employee or
agent of the Trust.
Section 11.7. Conflict of Interest. No trustee, officer, employee or
agent, or independent contractor of the Trust shall receive any compensation,
either directly or indirectly, in connection with any transaction entered into
with the Trust from any person dealing with the Trust, except such compensation
as is paid by the Trust directly to any trustee, officer, employee, agent or
independent contractor.
ARTICLE XII. SPECIAL VOTING PROVISIONS
Section 12.1. General Rule. Notwithstanding any other provisions of the
Trust Instrument to the contrary, the affirmative vote of the holders of not
less than two-thirds of the outstanding shares of beneficial interest of the
Trust shall be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) of the Trust with any Related Entity (as
hereinafter defined); provided, however, that the two-thirds voting
requirements shall not be applicable if:
(a) The Board of Trustees of the Trust by a majority (1) have expressly
approved in advance the acquisition of outstanding shares of beneficial
interest of the Trust that caused the Related Entity to become a Related Entity
or (2) have approved the Business Combination prior to the Related Entity
involved in the Business Combination having become a Related Entity; or
(b) The Business Combination is solely between the Trust and another
trust, or a corporation, 50% or more of the voting shares of which are owned
directly or indirectly by the Trust; or
(c) The Business Combination is a merger or consolidation and the cash
or market value of the property, securities or other consideration to be
received per share by holders of shares of beneficial interest of the Trust in
the Business Combination is not less than the highest per share price (with
appropriate adjustments for recapitalizations and for stock splits, stock
dividends and like distribution) paid by the Related Entity in acquiring any of
its holdings of its shares of beneficial interest of the Trust within the
two-year period prior to the first public announcement of the proposed Business
Combination.
Section 12.2. Definitions. For the purposes of this Article, the
following words and phrases shall have the meanings set forth below:
(i) The term "Business Combination" shall mean (a) any merger or
consolidation of the Trust or a subsidiary with or into a Related Entity;
(b) any sale, lease, exchange, transfer or other disposition, including without
limitation a mortgage or any other security device, of more than 10% of the
book value of the assets of the Trust (including without limitation any voting
securities of a subsidiary) or of the assets of a subsidiary to a Related
Entity; (c) any merger or consolidation of a Related Entity with or into the
Trust or a subsidiary of the Trust; (d) any sale, lease exchange, transfer or
other disposition of any of the assets of a Related Entity to the Trust or a
subsidiary of the Trust, if such sale, lease, exchange, transfer or other
disposition would have the effect of increasing by 10% the book value of the
Trust, or of a subsidiary of the Trust; (e) the issuance of any securities
(other than by way of pro rata distribution to all shareholders) of the Trust
or a subsidiary of the Trust to a Related Entity; (f) the acquisition by the
Trust or a subsidiary of the Trust of any securities of a Related Entity;
(g) any recapitalization that would have the effect of increasing the voting
power of a Related Entity; and (h) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of Business
Combination.
(ii) The term "Related Entity" shall mean and include any individual,
corporation, partnership or other person or entity which, together with its
"Affiliates" and "Associates" (as defined on the date this provision is adopted
in Rule 12b-2 under the Securities Exchange Act of 1934) "Beneficially Owns"
(as defined on the date this provision is adopted in Rule 13d-3 under the
Securities Exchange Act of 1934) in the aggregate 10% or more of the
outstanding shares of beneficial interest of the Trust, and such term shall
also refer to and include any Affiliate or Associate of any such individual,
corporation, partnership or other person or entity.
(iii) The term "book value" shall be determined with reference to the
total assets of the person or entity in question as of the end of its most
recent fiscal year ending prior to the time the determination is being made.
(iv) Without limitation, any shares of beneficial interest of the Trust
that any Related Entity has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise, shall be
deemed beneficially owned by the Related Entity.
(v) For the purposes of subparagraph 12.1(a) of this Article, the term
"other consideration to be received" shall include without limitation shares of
beneficial interest of the Trust retained by its existing public shareholders
in the event of a Business Combination in which the Trust is the surviving
entity.
Section 12.3. Applicability of Definitions. The Board of Trustees of
the Trust shall have the power and duty to determine for purposes of this
Article XII the applicability of the definitions in Section 12.2.
Section 12.4. Amendment or Repeal of Article XII. Notwithstanding any
other provisions of the Trust Instrument, the affirmative vote of the holders
of two-thirds of the outstanding shares of beneficial interest shall be
required to amend or appeal, or adopt any provisions inconsistent with, this
Article XII of the Trust Instrument; provided, however, that the two-thirds
voting requirement shall not be applicable if such amendment shall have been
approved by a majority of the Board of Trustees.
IN WITNESS WHEREOF, the undersigned trustees have set their hands and
seals.
/s/ C.O. ALIG, JR. One Indiana Square, Indianapolis, IN
/s/ ROBERT E. GREEN P. O. Box 157, Oaktown, IN
/s/ ROBERT J. GREESON 5620 Glencoe Street, Indianapolis, IN
/s/ KING R. TRAUB 320 North Meridian Street, Indianapolis, IN
/s/ MILTON MAIDENBERG 1100 Euclid Avenue, Marion, IN
/s/ JOHN A. WALLACE One Indiana Square, #2500, Indianapolis, IN
/s/ WILLIAM L. ELDER 320 North Meridian, #620, Indianapolis, IN
STATE OF INDIANA )
)SS:
COUNTY OF MARION )
Before me, a Notary Public, personally appeared the trustees and
acknowledged to me their execution of the foregoing Trust Instrument to be
their free, voluntary act.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 6th
day of December , 1972.
/s/ CHRISTINA URICH
Notary Public
My Commission Expires: 12/23/73
NOTICE OF ADOPTION OF PROVISIONS OF
INDIANA CORPORATION LAW
BY CENTURY REALTY TRUST,
AN INDIANA BUSINESS TRUST
Pursuant to the authority granted by IC 23-5-1-9.1, Century Realty Trust,
an Indiana business trust created under the Indiana Business Trust Act, has
adopted the resolution attached hereto and made a part hereof, and the
undersigned hereby certifies that such resolution of the Board of Trustees of
Century Realty Trust was duly adopted on the 7th day of July 1989, and that
the copy attached hereto is a true and accurate copy of the action of such
Board.
/s/JOHN I. BRADSHAW, JR.
JOHN I. BRADSHAW, JR.
Secretary
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public, in and for said County and State, personally
appeared John I. Bradshaw, Jr., Secretary of Century Realty Trust, who
acknowledged the execution of the foregoing, and who first being duly sworn,
stated that the facts contained therein are true to the best of his knowledge,
information and belief.
Witness my had and seal this 8th day of September ,
1989.
My Commission Expires: /s/VICKIE L. NEW
Notary Public
June 28, 1990
My County of Residence is: Vickie L. New
Printed Name
Marion
Resolution of Board of Trustees
Of
CENTURY REALTY TRUST
BE IT RESOLVED that Century Realty Trust, an Indiana business trust
created under the Indiana Business Trust Act of 1968 (I.C. 23-5-1-1 et seq.
(as amended)), hereby adopts the following provisions of the Indiana
Corporation Law and agrees to be bound by the terms thereof:
All of Chapter 42 of the Indiana Business Corporation Law,
being I.C. 23-1-42-1 through 23-1-42-11, inclusive.
Section 5 of Chapter 26 of the Indiana Business
Corporation Law, being I.C. 23-1-26-5.
AND BE IT FURTHER
RESOLVED that the President and Secretary of the Trust are hereby
authorized and directed to file a copy of this Resolution with the Office of
the Indiana Secretary of State, and in the Office of the Marion County
Recorder.
EXHIBIT 3(ii)
COPY OF CODE OF BY-LAWS OF CENTURY REALTY TRUST
INCLUDING ALL AMENDMENTS THERETO
THROUGH AND INCLUDING
DECEMBER 31, 2004
________________________________________
CODE OF BY-LAWS OF CENTURY REALTY TRUST
(An Indiana Real Estate Investment Trust)
BY-LAWS
These articles are the By-Laws of CENTURY REALTY TRUST, a business
trust organized under the laws of the State of Indiana by a Trust Instrument
made on the 6th day of December, 1972, and recorded in the Recorder's
office of Marion County and with the Secretary of State of Indiana. These
By-Laws have been adopted by the Trustees pursuant to Section 5.18 (12) of the
Trust Instrument.
All words and terms capitalized in these By-Laws, unless otherwise
defined herein, shall have the same meaning as they have in the Trust
Instrument.
ARTICLE 1. DEFINITIONS
Section 1.01. Name. This trust shall be known as CENTURY REALTY TRUST
(hereinafter called "the Trust" or "Trust").
Section 1.02. Trust Instrument. The term "trust instrument" means the
Trust Instrument of CENTURY REALTY TRUST executed on December 6 , 1972,
together with amendments thereto made from time to time.
Section 1.03. By-Laws. The term "by-laws" means the code of by-laws of
the Trust together with amendments thereto made from time to time.
ARTICLE 2. IDENTIFICATION
Section 2.01. Principal Office and Resident Agent - Power to Change.
The post-office address of the principal office of the Trust is 823 Chamber of
Commerce Building, Indianapolis, Indiana, Marion County; the name and
post-office address of its resident agent in charge of such office is John I.
Bradshaw, Jr., 823 Chamber of Commerce Building, Indianapolis, Indiana 46204.
The location of its principal office, or the designation of its resident agent,
or both, may be changed at any time, or from time to time, when authorized by
the trustees. In case the location of the principal office of the trust is
changed so that the county in which such new principal office is located is a
different county from Marion County, the trust shall immediately record in the
office of the county recorder of the county in which the new principal office
of the Trust is located copies of the original trust instrument and all
amendments thereto certified as true copies by the Secretary of State of
Indiana.
Section 2.02. Seal. The Trust shall not have a seal.
Section 2.03. Fiscal Year. The fiscal year of the Trust shall begin on
the first day of January in each year and end on the last day of December in
the same year.
ARTICLE 3. SHARES
Section 3.01. Number, Par Value. The number and par value of the shares
of this trust as provided for in Section 3.2 of the Trust Instrument may be
changed at any time, or from time to time, when authorized by the Trustees.
Section 3.02. Form of Certificates. Each holder of the shares of the
Trust shall be entitled to a Certificate of Beneficial Interest or Share
Certificate signed by the President and Chairperson of the Board of the Trust
(except that where any such certificate is signed by a Transfer agent or an
assistant Transfer agent or a Transfer clerk and by a registrar, the signatures
of any such President or Chairperson of the Board may be facsimile, engraved
or printed); and shall be countersigned and registered in such manner, if any,
as the Board of Trustees may by resolution prescribe. Each Certificate of
Beneficial Interest shall state the name of the registered holder, the number
of shares represented thereby, that such shares are without par value, and that
such shares have been fully paid and are not liable to any further call or
assessment.
In case any officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on any such certificate or
certificates, shall cease to be such officer or officers of the Trust before
such certificate or certificates shall have been delivered by the Trust, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates, or whose
facsimile signature or signatures shall have been used thereon, had not ceased
to be such officer of officers of the Trust, and such issuance and delivery
shall constitute adoption thereof by the Trust.
The form of the certificate shall be substantially as follows but may
vary from time to time as the Trustees may by resolution prescribe:
(Front Side)
5,000,000 Authorized Shares Without Par Value
Number_______________________ _______________________Shares
CENTURY REALTY TRUST
An Indiana Real Estate Investment Trust
CREATED UNDER THE LAWS OF THE STATE OF INDIANA
SHARE CERTIFICATE
THIS CERTIFIES that ______________________________________ is the
registered owner of ____________________________________ shares of Beneficial
Interest, without par value, of
CENTURY REALTY TRUST
fully paid and not liable to any further call or assessment, transferable only
on the books of the Trust in person or by duly authorized attorney-in-fact upon
surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall
be held subject to all of the provisions of the Trust Instrument of the Trust
and amendments thereto (copies of which are on file at the principal office of
the Trust), to all of which the holder by the acceptance hereof assents.
No holder or owner of this certificate as such shall have any authority,
power or right whatsoever to do or transact any business for or on behalf of or
binding upon the Trust or any certificate holder thereof.
This certificate in not valid until countersigned by the Transfer Agent.
WITNESS the signatures of its duly authorized Chairman of the Board and
President.
Dated_______________________
____________________________ _____________________________
Chairman of the Board President
Countersigned:
CENTURY REALTY TRUST
TRANSFER AGENT
By:____________________________
Authorized Agent
(Back Side)
For value received, ________________________________________________
hereby sell, assign and transfer unto ____________________________________,
____________________________________ shares of beneficial interest represented
by the within certificate, and do hereby irrevocably constitute and appoint
_________________________________________, attorney-in-fact to transfer the
said shares on the books of the within named Trust, with full power of
substitution in the premises.
Dated__________________ _________________________________________
(Signature of Registered Holder)
SIGNATURE GUARANTEED
__________________________________
(Name of Bank)
BY:___________________________________
(Authorized Officer)
This certificate also entitles the holder hereof to certain Rights as set forth
in a Rights Declaration dated as of the Declaration Date (the "Rights
Declaration"), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal offices of the Trust. Under
certain circumstances, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. Under certain
circumstances, Rights issued to any Person who becomes an Acquiring Person
(as defined in the Rights Declaration) or related Persons and subsequent
holders thereof, may become null and void.
ARTICLE 4. SHAREHOLDERS
Section 4.01. Meetings. The Annual Meeting of Shareholders shall be
held and such business shall be transacted as provided for in Section 4.1 (1)
of the Trust Instrument. The annual meeting shall be held on the first (1st)
Wednesday after the 31 day of May in each year at ten o'clock (10:00)
A.M. at such place, either within or without the State of Indiana, as shall be
designated in advance by the Trustees and shall be specified in the notice of
the meeting. In the absence of any designation by the Trustees, each such
annual meeting shall be held at the office of the Trust.
Section 4.02. Special Meetings. Special Meetings of the Shareholders
shall be held in accordance with Section 4.1 (2) of the Trust Instrument. Each
special meeting of the shareholders shall be held at such place, either within
or without the State of Indiana, as shall be designated in advance by the
Trustees, and shall be specified in the notice of such meeting. Each such
special meeting shall be held at such time as may be specified in the notice
of such meeting.
Section 4.03. Chairperson and Secretary of Shareholders Meetings. The
chairperson of the board or, in his or her absence, the president of the trust,
shall preside at all meetings of the shareholders as "Chairperson of the
Meeting." If both the chairperson of the board and the president are absent,
the Trustees present at each meeting shall elect one of their number as
Chairperson of the Meeting. Unless otherwise provided for by the trustees, the
secretary of the Trust shall be the secretary of such meetings.
Section 4.04. Construction or Interpretation of Trust Instrument or
By-Laws. At any Shareholder's meeting the Chairman of the Meeting shall
determine the construction or interpretation of the Trust Instrument or the
By-Laws, or any part thereof, and the ruling of the Chairman of the Meeting
shall be final.
Section 4.05. Notice of Meetings. The Shareholders shall receive such
notice of Shareholder's meetings as is provided for in Section 4-1 (3) of the
Trust Instrument. Any shareholder may waive notice of any meeting in writing
either before or after such meeting if the waiver sets forth in reasonable
detail the purpose or purposes for which the meeting is called and the time
and place thereof. Attendance at any meeting in person, or by proxy when the
instrument of proxy sets forth in reasonable detail the purpose or purposes for
which the meeting is called, shall constitute a waiver of notice of such
meeting. Each person who has in the manner provided above waived notice of a
meeting or who personally attends a meeting or is represented at a
shareholders' meeting by a proxy authorized to appear by an instrument of proxy
complying with the requirements above set forth shall be conclusively presumed
to have been given due notice of such meeting.
Section 4.06. Addresses of Shareholders. The address of any shareholder
appearing upon the records of the Trust shall be deemed to be the same address
as the latest address of such shareholder appearing on the records maintained
by the Transfer Agent.
Section 4.07. Voting at Shareholders' Meetings. Except as otherwise
provided by law, every holder of shares of the Trust shall have the right at
every shareholders' meeting to one (1) vote for each share standing in his or
her name on the books of the Trust. No share which belongs to the Trust shall
be voted at any meeting. Shares of the Trust standing in the name of a
corporation may be voted by such officer, agent or proxy as the Board of
Directors of such other corporation may appoint, or as the By-Laws of such
other corporation may prescribe, and in the absence of such designation by such
person as may be nominated in a proxy duly executed for the purpose by the
president or a vice president, and the secretary or an assistant secretary of
such other corporation. Shares held by fiduciaries may be voted by the
fiduciaries in such manner as the instrument or order appointing such
fiduciaries may direct unless the Trust has previously been advised and
furnished proper evidence of other procedures or restrictions with respect to
voting such shares. Shares that are pledged may, unless otherwise provided in
the agreement of pledge, be voted by the shareholder pledging the same until
the shares have been transferred to the pledgee on the books of the Trust, and
thereafter they may be voted by the pledgee.
Section 4.08. Proxies. At all meetings of shareholders a shareholder
may vote by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact. Such proxy shall be filed with the secretary of
this trust before or after the time of the meeting. No proxy shall be valid
after eleven (11) months from the date of its execution unless otherwise
provided in the proxy. The form of any such proxy may be prescribed from time
to time by resolution or approval of the Trustees.
Section 4.09. Inspectors of Election and Conduct of Meeting. At all
meetings of the shareholders, the chairman shall appoint an many tellers as he
deems necessary, who shall act as inspectors of election, determine the
validity of the proxies, pass upon the qualification of all persons offering to
vote at such meetings, and to count the ballots. Voting on any question or in
any election may be via voice unless the chairman shall order, or a majority of
the shareholders present shall demand, that voting be by ballot.
ARTICLE 5. TRUSTEES
Section 5.01. Number. The Board of Trustees shall initially consist of
seven (7) persons and thereafter shall consist of such number of Trustees, not
less than five (5) nor more than nine (9), as provided in Section 5.1 of the
Trust Instrument.
Section 5.02. Term. At the first annual meeting of the shareholders,
seven (7) trustees shall be elected, three (3) for a term of three years, two
(2) for a term of two years, and two (2) for a term of one year. Thereafter
all trustees shall be elected for a term of three years as provided in Section
5.2 of the Trust Instrument.
Section 5.03. Regular Meetings of Trustees. The annual meeting of the
Trustees shall be held immediately following the annual meeting of the
Shareholders, as provided in Section 5.8 of the Trust Instrument. Other
meetings of the Trustees shall be called in accordance with Section 5.8 of the
Trust Instrument at such time and place as shall be designated by the notice
provided for therein. Notice of each Trustees' meeting shall be mailed or
delivered to the last known address of the Trustee or to such other address as
may be specified by the Trustee to the president or secretary. Written notices
need not be manually signed. Unless otherwise specified in the notice, any and
all business may be transacted at any Trustees' meeting.
Section 5.04. Special Meetings of Trustees. The Trustees shall hold
special meetings in accordance with Section 5.9 of the Trust Instrument at such
time and place as shall be designated by the notice provided for therein.
Notice of each Trustees' meeting shall be mailed or delivered to the last known
address of the Trustee or to such other address as may be specified by the
Trustee to the president or secretary. Written notices need not be manually
signed.
Section 5.05. Place for Trustees' Meetings. All meetings of the
Trustees may be held within or without the State of Indiana.
Section 5.06. Conducting Meetings. Immediately after the annual meeting
of the shareholders, a majority of the Trustees shall elect a Trustee as
president or chairman of the Board of Trustees, who shall preside at Trustees'
meetings; in his absence, the Trustees present at each meeting shall elect one
of their number as chairman. All rules of conduct adopted and used at
Trustees' Meetings, other than those provided for in these By-Laws and the
Trust Instrument, shall be determined by the chairman whose ruling on all
procedure matters and construction of these By-Laws and the Trust Instrument
shall be final.
Section 5.07. Voting at Meetings. Voting at Trustees' meetings may be
conducted orally, by show of hands or, if requested by any Trustee, by written
ballot. The results of all voting shall be recorded by the Secretary, or in
his absence another Trustee, in the minute book.
Section 5.08. Action by Consent. Except as provided for in Section 5.13
of the Trust Instrument, any action required or permitted to be taken at any
meeting of trustees or by a committee thereof may be taken without a meeting,
if prior to such action a written consent to such action is signed by all
trustees or all members of such committee as the case may be, and such written
consent is filed with the minutes of proceedings of the trustees or committee.
ARTICLE 6. COMMITTEES
Section 6.01. Executive Committee. The Trustees may appoint at least
three (3) of their number to the executive committee of the Trust as provided
in Section 6.2 of the Trust Instrument. The executive committee shall
designate a chairman and secretary. It shall keep minutes of all its meetings.
Reasonable notice of each meeting shall be given by the chairman. Any meeting
shall be a legal meeting without notice thereof having been given if all the
members of the committee shall be present in person. The committee may hold
its meetings within or without the State of Indiana as it may from time to time
determine. A majority of the committee shall be necessary to constitute a
quorum for the transaction of any business, and the act of a majority of the
members present at a meeting at which a quorum is present shall be the act of
the committee. The members of the committee shall act only as a committee, and
the individual members shall have no powers, as such.
Section 6.02. Meetings of Committees. Any action permitted to be taken
at any meeting of any committee may be taken without a meeting if all members
of the committee consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the committee.
Section 6.03. Rules and Regulations of Committees. Each committee
(including the Executive Committee) elected or appointed by the Trustees may
adopt such standing rules and regulations for the conduct of its affairs except
those specified in those By-Laws and in the Trust Instrument, as it may deem
desirable, subject to review and approval of such rules and regulations by the
Trustees at the next succeeding meeting of the Trustees.
ARTICLE 7. OFFICERS
Section7.01(a). Chairperson of the Board. The position of chairperson
of the board, if there is one, shall be chosen from among the Trustees. The
chairperson shall act as chair of all meetings of the trustees and of the
shareholders and shall perform such other duties as the Board of Trustees may
from time to time assign. The chairperson of the board shall have the
authority to call special meetings of the trustees or of the shareholders.
Section 7.01 (b). The President. The president shall be the chief
executive officer of the Trust and shall have general charge, direction, and
supervision of the Trust's business affairs and over its officers, agents and
employees. The president shall appoint and discharge employees and agents of
the Trust (other than officers elected or agents selected by the Board of
Trustees), and shall see that orders and resolutions of the Board of Trustees
are carried into effect. In the absence of the chairperson of the board, the
president shall preside at all meetings of the shareholders and of the
trustees. The president shall sign with the chairperson of the board, or in
his absence, the secretary, or other proper officers of this Trust thereunto
authorized by the Trust, certificates for shares of the Trust. The president
shall have power to execute, acknowledge and deliver all deeds, bonds,
contracts and other obligations and documents in the name of the Trust which
the trustees have authorized to have executed. The president shall have such
other powers and duties as may, from time to time, be prescribed by the Board
of Trustees.
Section 7.02. Vice-President. In the absence of the president, or in
the event of the inability or refusal of the president to act, like power and
authority shall be vested in the vice-presidents, if any, each serving in the
order of his election.
Section-7.03. Treasurer. The treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of this trust;
receive and give receipts for moneys due and payable to this trust from any
source whatsoever, and deposit all such moneys in the name of this trust in
such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of this trust; and (b) in general, perform all
duties incident to the office of treasurer and such other duties as, from time
to time, may be assigned to him by the president or by the trustees.
Section 7.04. Secretary. The secretary shall: (a) keep the minutes of
the shareholders' and of the trustees' meetings in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with
the provisions of this trust; (c) be custodian of the trust records; (d) keep
or cause to be kept a register of the post office address of each shareholder,
which shall be furnished to the secretary by such shareholder; (e) sign with
the president certificates for shares of this trust; (f) have general charge of
the stock transfer books of this trust; and (g) in general, perform all duties
incident to the office of secretary and such other duties as from time to time
may be assigned to him by the president or by the trustees.
Section 7.05. Asst. Treasurers and Asst. Secretaries. The assistant
treasurers and assistant secretaries, if any, in general shall perform such
duties as shall be assigned to them by the treasurer or secretary,
respectively, or by the president or trustees.
Section 7.06. Filling Vacancies and Appointing New Officers. Any
vacancy of the offices of President, Secretary and Treasurer shall be filled by
an election at any meeting of the Trustees. Those individuals selected to fill
the vacancies of the office of president, secretary, or treasurer shall be
elected by a majority vote of the Trustees and shall hold the office for the
remainder of the term. All other officers of the Trust may be appointed by the
president. Such officers shall hold office for any term as determined by the
Trustees or president subject to removal with or without cause, at any time by
the Trustees or president. The names of all such officers appointed by the
president shall be submitted at the next succeeding meeting of the Trustees and
recorded in the minutes of said meeting.
Section 7.07. Delegation of Duties. Duties of officers may be
delegated. In case of the absence or disability of any officer of the Trust,
or for any other reason that the Board may deem sufficient, the Board may
delegate, for the time being the powers or duties, or any of them, of such
officer to any other officer, or to any Trustee.
Section 7.08. Loans. No loans shall be contracted on behalf of this
trust and no evidence of indebtedness shall be issued in its name by any
officer unless authorized by a resolution of the trustees. Such authority may
be general or confined to specific loans or evidences of indebtedness.
Section 7.09. Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of this trust shall be signed by such officer or officers of this trust
and in such manner as shall from time to time be determined by resolution of
the trustees.
Section 7.10. Deposits. All funds of this trust not otherwise employed
shall be deposited from time to time by the officers to the credit of this
trust in such banks, trust companies or other depositories as the trustees may
select.
ARTICLE 8. EXECUTION OF WRITTEN INSTRUMENTS.
Section 8.01. Execution of Negotiable Instruments. All checks, drafts,
notes, bonds, bills of exchange and orders for the payment of money of the
Trust shall, unless otherwise directed by the trustees, or unless otherwise
required by laws be signed by the President or Secretary and one other trustee.
The trustees may, however, authorize by resolution any one of such officers or
an employee of the Trust to sign checks, drafts, and orders for the payment of
money, which are for respective amounts not in excess of one thousand dollars
($1,000) in any case, singly and without necessity of countersignature.
Section 8.02. Execution of Deeds, Mortgages, Etc. All deeds, mortgages
and leases made by the Trust and all other written instruments to which the
Trust shall be a party shall be executed in its name by the President and
Secretary. The trustees may, however, by resolution authorize any Trust Officer
or employee to execute any such written instrument singly and without necessity
of countersignature upon such terms and conditions as the trustees deem
appropriate.
Section 8.03. Endorsement of Stock Certificates. Any share or shares of
stock issued by any corporation and owned by the Trust may, for sale or
transfer, be endorsed in the name of the Trust by the President, and such
endorsement shall be duly attested by the Secretary.
Section 8.04. Voting of Stock Owned by Trust. Any share or shares of
stock issued by any corporation and owned or controlled by the Trust may be
voted at any stockholders' meeting of such corporation by the President of the
Trust if he is present, or in his absence by any Trust officer or employee
designated by the President. Whenever in the judgment of the President it is
desirable for the Trust to execute a proxy or give a shareholder's consent in
respect to any share or shares of stock issued by any corporation and owned by
the Trust, such proxy or consent shall be executed in the name of the Trust by
the President and shall be attested by the Secretary of the Trust. Any person
or persons designated in the manner above stated as the proxy or proxies of the
Trust shall have full right, power and authority to vote the share or shares of
stock issued by such corporation and owned by the Trust the same an such share
or shares might be voted by the Trust.
ARTICLE 9. AMENDMENTS
Section 9.01. These By-Laws may be amended or repealed, or new by-laws
adopted, at any meeting of the Board of Trustees by the Vote of at least a
majority of the entire Board.
Section 9.02. Any proposal to amend or repeal these By-Laws or to adopt
new by-laws shall be stated in the notice of the meeting of the Board of
Trustees, or in the waiver of notice thereof, as the case may be, unless all of
the Trustees are present at such meeting.
EXHIBIT 10.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made and entered into as of
the "Effective Date" (which shall be the last date of execution and delivery of
this Agreement by both Buyer and Seller) Century Realty Properties, L.P.
("Seller") and LDG-Fox Run, LP ("Buyer").
In consideration of the mutual covenants and benefits set forth below,
the Deposit, and Buyer's efforts and expense in attempting to satisfy certain
conditions, Seller agrees to sell and Buyer agrees to purchase the certain
real property, improvements and related personal property and equipment,
according to the terms and subject to satisfaction of the conditions of this
Agreement.
1. Property. The term "Property" as used in this Agreement shall mean
(a) Land and Buildings. All of Seller's right, title and interest
in and to that land in Indianapolis, Indiana, more particularly described in
Exhibit A attached as part of this Agreement, together with all rights,
privileges and appurtenances appertaining to the land, and all buildings and
improvements constructed or located on that land, commonly known as Fox Run
Apartments located at 523 Tomahawk Trail, Indianapolis, Indiana, and containing
approximately 284,538 square feet of gross building area and approximately
19.91 acres of land. Property consists of 48 one bedroom flats, 111 two
bedroom flats, 40 two bedroom townhouses, 49 three bedroom flats, and 8 three
bedroom townhouses. The legal description is subject to revision pursuant to a
current survey.
(b) Fixtures. All appliances, fixtures, plumbing, incinerators,
lighting equipment, radiators, furnaces, boilers, hot water heaters, water
systems and air conditioning equipment located on or used in connection with
the real property and improvements.
(c) Personalty. All furnishings, furniture, equipment, supplies,
inventories, replacement parts, and other personal property owned by Seller,
used in connection with the real property and improvements, including leases of
such items to the extent assignable and to the extent Buyer desires to assume
such leases including all copiers, computers, desks, office furniture and
fixtures, maintenance tools, equipment and spare parts.
(d) Permits. All permits, licenses, certificates of occupancy,
consents, governmental authorizations and approvals of any governmental or
quasi-governmental agency or body, including without limitation certificates of
occupancy.
(e) Records. All business records, books of account, customer
lists, correspondence, and files relating to any tenancy or occupancy of the
real property and improvements.
(f) Plans. All plans relating to architectural, structural, safety
and mechanical systems.
(g) Service Agreements. All maintenance and service contracts,
supply contracts, and other agreements, contracts and contract rights relating
to the ownership and operation of the real property and improvements, to the
extent assignable and to the extent Buyer desires to assume such agreements or
contracts.
(h) Guaranties. All guaranties and warranties relating to any of
above items.
(i) Name. The right to use the name "Fox Run Apartments" and
derivations thereof.
(j) Tenant Leases. All leases or subleases and tenancies with
tenants or lessees of portions of the real property and improvements,
amendments and modifications to leases, and all guaranties related to such
leases (the "Tenant Leases").
(k) Deposits. All security deposits, prepaid rents and other
miscellaneous deposits related to the ownership and operation of the real
property and improvements.
2. Deposit. Within three days of the Effective Date of this Agreement,
Buyer shall pay into the escrow account of First American Title Insurance
Company ("Escrow Agent") the sum of $25,000 as a good faith deposit ("Deposit")
binding this Agreement. The Deposit shall be credited to the Purchase Price at
closing, or otherwise held and distributed according to the provisions of this
Agreement. Buyer shall deposit an additional $25,000 upon removal of all
contingencies. Upon removal of all contingencies, the Deposit and the
additional $25,000 deposit shall be non-refundable, but applicable to the
Purchase Price.
3. Purchase Price. The "Purchase Price" for the Property shall be SIX
MILLION NINE HUNDRED SEVENTY FIVE THOUSAND DOLLARS ($6,975,000.00). Buyer shall
pay the Purchase Price, after adjustments for expenses and prorations set forth
in this Agreement, in immediately available funds at closing.
4. Closing. The closing of the Property shall occur on a date, at a
time and at a place designated by Buyer and reasonably agreed to by Seller, but
not later than ninety (90) days from the end of the Contingency Period
(defined in section 11(b) of this Agreement, as may be extended pursuant to
section 11(c) of this Agreement).
5. Seller Deliveries at Closing. At (or before) closing Seller shall
deliver to Buyer the following:
(a) Deed. A General Warranty Deed duly executed and delivered by
Seller to Buyer, conveying title to the Property subject only to (i) the lien
of ad valorem property taxes affecting the Property not yet due and payable,
(ii) applicable governmental laws, rules and regulations, including without
limitation, zoning regulations affecting the Property, and (iii) the Permitted
Exceptions (as defined in section 11 (a)(ii) of this Agreement).
(b) Assignment of Tenant Leases. An Assignment of the Tenant Leases,
together with the originals of all Tenant Leases, under which Seller assigns
all of its interests in the Tenant Leases, Buyer assumes all obligations of
Seller as landlord under the Tenant Leases, and each indemnifies the other from
and against acts occurring during the applicable period of ownership, and
together with correspondence or other files relating to the Tenant Leases.
(c) Bill of Sale. A bill of sale transferring all Property not
conveyed by the Deed, with customary representations and warranties of title
and freedom from liens, and together with any unexpired warranties relating to
the personal property.
(d) Assignment of Service Contracts. An assignment of any service
contracts that Buyer elects to assume, together with originals of any such
service contracts.
(e) Affidavit. A mechanics and materialmen's lien and owner's
affidavit and indemnity acceptable to Buyer's title insurance company, in the
form most recently published by the Indianapolis Bar Association.
(f) Authority. Evidence of the authority of the person or persons
executing the documents on behalf of Seller, acceptable to Buyer's title
insurance company.
(g) Miscellaneous. Such other agreements, documents, and instruments
as may reasonably be requested by Buyer or Buyer's title insurance company; and
(h) Possession. Exclusive possession of the Property and the present
improvements located thereon free and clear of liens and claims of others,
except for tenants under the Tenant Leases, Permitted Exceptions (as
hereinafter defined) and in the present condition thereof, ordinary wear and
tear excepted.
(i) Certificate. A "non-foreign" certificate as required by Section
1445 of the Internal Revenue Code.
(j) Closing Statement. A closing statement showing the payment and
application of the Purchase Price and the prorations and expenses between
Seller and Buyer.
(k) Certification. A certification that Seller's representations and
warranties set forth in this Agreement are true and correct as of closing.
(1) Rent Roll. A rent roll certified as true and correct as of
closing, including all certificates of occupancy.
(m) Tenant Letter. Letters to all tenants under the Tenant Leases
advising them of the change in ownership and directing them to pay all rents to
Buyer.
(n) Management Termination. Evidence that any management agreements
affecting the Property have been terminated and that any employees of Seller
with respect to Property have been terminated.
(o) Keys. All keys to the Property.
6. Buyer Deliveries at Closing. At (or prior to) closing Buyer shall
deliver to Seller the following:
(a) Purchase Price. The Purchase Price, after adjustments for
prorations, apportionments and expenses set forth in this Agreement.
(b) Closing Statement. A closing statement showing the payment and
application of the Purchase Price and the prorations and expenses between
Seller and Buyer.
(c) Assumptions. An assumption of the Tenant Leases and of any
service contracts or agreements that Buyer desires to assume.
(d) Miscellaneous. Such other agreements, documents, and instruments
as may reasonably be requested by Seller or the title insurance company.
7. Prorations and Expenses. Seller and Buyer shall make the following
prorations at closing and pay the expenses set forth in this section, subject
to post-closing adjustments as set forth in this section.
(a) Taxes. All ad valorem real property taxes affecting the Property
that are due and payable in the year of the closing shall be prorated between
Seller and Buyer as of the closing date, on a calendar or fiscal year basis, as
applicable. Taxes attributable to the date of closing shall be charged to
Buyer. If sufficiently accurate information is not available on the closing
date, Buyer and Seller agree to prorate (or re-prorate) such taxes when
appropriate information is available. Any tax refunds available as the result
of any pending tax appeal or any tax appeal filed prior to the date of closing
shall be the sole and exclusive property of Seller.
(b) Assessments. Seller shall be responsible for paying the full
amount of all assessments pending or contemplated against the Property at or
before closing and shall pay the full amount of such assessments, even if they
may be paid in installments not due until after closing.
(c) Tenant Lease Rents. All rents and other charges due and payable
under the Tenant Leases in the month of closing that have been received by
Seller on or before the date of closing shall be prorated between Seller and
Buyer as of the closing date based on the number of days in the month of
closing, if rents are payable on a calendar month basis, and based on the
number of days in the payment period, if rents are not paid on a calendar month
basis. Rents attributable to the date of closing shall belong to Buyer. All
rents for the month of closing not yet received by Seller on or prior to the
closing date shall be prorated on the same basis whether received by Seller or
Buyer, and each of Seller and Buyer has the obligation to report and pay the
prorated amount to the other promptly upon receipt. Buyer shall have no
obligation to Seller to collect rents due prior to the closing date.
Commencing ninety (90) days after the date of closing, Seller shall have the
right to pursue tenants whose rent, through the date of closing, has not been
paid to Seller, provided, the amount of the unpaid rent is $250.00 or more.
(d) Utilities. Buyer and Seller shall attempt to cause all utility
meters to be read as of the day before the date of closing (except those in any
tenant's name), in which event Seller shall be responsible for all charges to
the date the meter is read, and Buyer shall be responsible for all charges
thereafter. To the extent meters are not read on that date, or to the extent
utility charges are otherwise not ascertainable on the date of closing, Buyer
and Seller shall make such post-closing adjustments as are necessary to cause
Seller to pay all charges through and including the day before the date of
closing and to cause Buyer to pay all charges on the date of closing and
thereafter.
(e) Service Contracts. All charges ascertainable under any service
contracts that Buyer assumes with respect to the Property shall be prorated
between Seller and Buyer as of the closing date based on the number of days in
the month of closing, if the charges are payable on a calendar month basis, and
based on the number of days in the payment period, if the charges are not paid
on a calendar month basis. Charges attributable to the date of closing shall be
charged to Buyer. Charges not ascertainable on the date of closing shall be
prorated between Buyer and Seller on the same basis, and payment made, as soon
as the actual amount is known.
(f) Security Deposits. Security deposits shall be paid to or
credited to Seller on the closing date.
(g) Closing Expenses. Seller shall pay for the transfer tax on the
deed, for preparation of the deed, and for any state sales or use tax imposed
on the sale of any personal property components of the Property. Buyer shall
pay for all title examination charges and for any premiums for title insurance
desired by Buyer and all recording fees. Buyer and Seller shall each pay its
own attorney, accounting and other professional fees and costs. Seller shall
pay the real estate commission as set forth in section 16 of this Agreement.
All remaining closing costs shall be evenly divided between Seller and Buyer.
8. Seller's Representations. Seller represents and warrants to Buyer
as follows:
(a) Authority. Seller has full right and power to enter into this
Agreement and, when executed and delivered, all parties having any interest in
the Property (other than tenants under the Tenant Leases) shall be lawfully
bound by this Agreement. Seller is a validly existing limited partnership in
good standing and qualified to do business under the laws of the state of
Indiana. The execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement will not violate or result in a
breach by Seller of any agreement or instrument to which Seller is a party.
(b) Title. Seller has and will have on the closing date fee simple
title to the Property, subject only to matters referred to in section 5(a) of
this Agreement and to liens that will be released for the payment of money not
in excess of the Purchase Price payable at closing. There are no persons
occupying the Property or with a right to occupy or claiming a right to occupy
the Property except tenants under the Tenant Leases.
(c) Actions. There are no actions, suits or proceedings, including
without limitation eminent domain or similar condemnation proceedings, pending
or, to the best knowledge of Seller, threatened by or before any judicial body
or governmental agency or authority against or affecting any portion of the
Property.
(d) No Contracts. There are no outstanding contracts to sell or
options to purchase with respect to the Property.
(e) Compliance. To Seller's knowledge, the Property and Seller's
operation of the Property are in compliance with all applicable laws,
ordinances and regulations of all governmental and quasi-governmental agencies
and authorities with jurisdiction, including without limitation zoning laws and
regulations and minimum parking requirements.
(f) Tenant Leases. The Tenant Leases, or copies of the Tenant
Leases, delivered or to be delivered by Seller to Buyer are or will be true,
correct and complete copies of all leases and amendments affecting the Property
and constitute the entire agreements between Seller and such tenants. The rent
roll attached as Exhibit B is true, accurate and complete. Except as shown on
Exhibit B, there are no security deposits under the Tenant Leases. Except as
shown on Exhibit B, there are no options to renew or extend. Except as shown on
Exhibit B, no tenant under any Tenant Lease has paid rent more than one month
in advance. Except as shown on Exhibit B, no tenant is in default under an
applicable Tenant Lease, nor to Seller's knowledge has any event occurred that
with the passage of time or the giving of notice would constitute a default by
a tenant under any Tenant Lease. To Seller's knowledge, Seller is not in
default under any Tenant Lease, nor has any event occurred that with the
passage of time or the giving of notice would constitute a default by Seller
under any Tenant Lease, and there exist no disputes with any tenant under any
Tenant Lease that could result in any termination of a Tenant Lease or any
charge against Seller or the Property. To Seller's knowledge, there are no
circumstances that would allow any tenant under a Tenant Lease to cancel or
terminate a Tenant Lease. All work, including all tenant finish work, that
Seller is required to perform under any Tenant Lease has been completed and
payment made.
(g) Environmental. Seller has not stored, held, transferred, dumped,
buried, placed, injected, disposed of or processed any solid waste or
hazardous, toxic, flammable or dangerous wastes, substances or materials, or
Petroleum, on the Property (other than incidental cleaning and maintenance
chemicals used in the oridinary course of Seller's business), nor does Seller
have knowledge of any prior storage, holding, transfer, dumping, burial,
placement, injection, disposal of or processing of any solid waste or
hazardous, toxic, flammable or dangerous wastes, substances or materials, or
Petroleum on, in or under the Property or the groundwater thereunder, and/or
of the assertion of any environmental or other lien on the Property by any
governmental agency, authority or instrumentality to secure the cost and
expense of removing or neutralizing any solid waste or hazardous, toxic,
flammable or dangerous wastes, substances or materials, or Petroleum present
on, in or under the Property, nor does Seller have any knowledge of
contamination of groundwater under the Property. For purposes of this
Agreement, (i) the phrase "hazardous, toxic, flammable or dangerous wastes,
substances or materials" shall include by way of illustration and but not of
limitation, any pollutants, contaminants, asbestos and radioactive material and
any hazardous, toxic, flammable or dangerous waste, substance or material, or
other material, defined as such in, or for purposes of, or regulated by, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. 9601, et seq.; the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. 1801, et seq.; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. 6901, et seq.; the Solid Waste Disposal
Act, as amended; the Clean Air Act, as amended, 42 U.S.C. 740 et seq.; the
Clean Water Act, as amended, 42 U.S.C. 1251 et seq.; the Safe Water Drinking
Act, as amended, 42 U.S.C. 300f et seq.; the Toxic Substance Control Act, as
amended, 42 U.S.C. 2601 et seq.; the Emergency Planning and Community Right to
Know Act, 42 U.S.C. 11001 et seq.; any so-called "Superfund" or "superlien"
law, or any other federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any solid waste or hazardous, toxic, flammable
or dangerous waste, substance or material,, and (ii) the term "Petroleum" shall
mean petroleum in whatever state and its products and by-products, including
without limitation, petrochemicals, and "oil" and "oil waste" as such terms
are defined in the Clean Water Act (33 U.S.C. 1251 et seq.), as amended, and
any compounds or substances containing any of the same (all such statutes,
laws, ordinances, codes, rules, regulations, orders and decrees referred to
in or contemplated by the foregoing subparts (i) and (ii) being referred to
collectively in this Agreement as "Environmental Laws"). Seller shall defend,
indemnify and hold harmless Buyer from any and all liabilities, damages, costs,
expenses, liens, actions and/or causes of action, including without limitation
environmental clean up costs, liens or super-liens arising under any
Environmental Law, and all reasonable attorney fees and court costs, which
Buyer may suffer or incur as a result of or related to the breach or material
inaccuracy of the representations and warranties set forth in this section 8(g).
(h) Assessments. The Property is not subject to or affected by any
assessment for public improvements. To the best knowledge of Seller, no
assessment for public improvements is pending or contemplated.
(i) Permits. Seller has all permits, licenses, certificates of
occupancy, consents, governmental authorizations and approvals of any
governmental or quasi-governmental agency or body necessary to operate the
Property in the manner presently operated.
(j) Management. Any management contract affecting the Property will
be terminated by Seller at or before closing.
(k) Utilities. The Property is currently served by all utilities at,
to Seller's knowledge, normal rates, including without limitation water,
electric, gas, phone, sewer and internet.
(1) Zoning. The Property is zoned D-7 which, to Seller's knowledge,
is the correct zoning for 256 apartment units.
(m) Complete and Accurate. No representation or warranty made by
Seller contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements in this Agreement not
misleading.
(n) As-Is; Where-Is. BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS PARAGRAPH 8, SELLER HAS MADE NO WARRANTIES OR REPRESENTATIONS
PERTAINING TO THE QUALITY OR CONDITION OF THE PROPERTY OR ANY ENVIRONMENTAL
MATTERS WITH RESPECT THERETO, AND THAT BUYER HAS INSPECTED OR WILL INSPECT
THE PROPERTY AND AGREES TO PURCHASE THE PROPERTY IN "AS IS" CONDITION, AND
SELLER HEREBY DISCLAIMS ANY WARRANTIES, INCLUDING, WITHOUT LIMITATION, AS TO
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE, OR ENVIRONMENTAL CONDITIONS OR
CONTAMINATION WITH RESPECT TO THE PROPERTY, UNLESS EXPRESSLY STATED IN THIS
PARAGRAPH 8.
Each of the foregoing representations and warranties shall be affirmed
by Seller on the closing date.
9. Entry Upon Property. From and after the Effective Date, Buyer, its
agents, employees, engineers, contractors and nominees, shall have the right to
enter upon the Property from time to time and the right of ingress and egress
over, through and from the Property, for the purpose of inspecting, testing,
making surveys, conducting soil and environmental tests, making test borings
and making such other observations and inspections of the Property as are
deemed necessary or appropriate by Buyer. Seller shall cooperate fully with
Buyer, its agents, employees, engineers, contractors and nominees in providing
access to the Property (subject to any notice requirements to tenants required
by the Tenant Leases) and information about the Property fully available to
Buyer. Seller shall continue to allow any inspections and site visits requested
by the Buyer prior to closing including those after the removal of
contingencies. Buyer agrees to indemnify Seller from any damages, actions,
liability, liens or claims arising out of the actions of Buyer on the Property
and to repair any damage to the Property arising from Buyer's actions on the
Property.
10. Seller Covenants. Seller covenants and agrees with Buyer as follows:
(a) Affirmative. Seller will (i) operate the Property through the
date of closing and conduct its business in the regular and ordinary course;
(ii) maintain the Property in substantially the same condition as on the date
of this Agreement, ordinary wear and tear excepted; (iii) maintain insurance on
the Property in at least the amounts now in effect on the date of this
Agreement; (iv) duly perform its obligations under the Tenant Leases and all
service contracts affecting the Property, (v) upon the expiration of the
Contingency Period, provide notice to Buyer of any default or potential default
by a tenant under any Tenant Lease, (vi) provide notice to Buyer of any notice
Seller receives that may affect the Property, (vii) upon the expiration of the
Contingency Period, provide to Buyer any offers or proposals to lease any
portion of the Property, by whomever generated, (viii) provide to Buyer notice
of any violation received by Seller from any court, governmental agency or
insurance underwriter with respect to the Property, and (ix) provide to Buyer
within ten (10) days of the Effective Date originals or copies of all title
reports or policies Seller has with respect to the Property, any surveys of the
Property, any environmental report for the Property, the Tenant Leases, service
contracts, certificates of occupancy and other information Seller has with
respect to the Property.
(b) Negative. Seller will not, without the prior written approval
of Buyer, such approval not to be unreasonably withheld, (i) take any action
that could result in a default by Seller under any Tenant Lease, (ii) upon the
expiration of the Contingency Period, cancel, terminate, amend or accept the
surrender of any Tenant Lease, (iii) enter into or renew any service agreement
or other contract affecting the Property that may not be terminated at or
before closing, (iv) enter into or renew any Tenant Lease affecting the
Property except in the ordinary course of business [except that even if in the
ordinary course of business Seller grants rent or other concessions or
incentives, none of such concessions or incentives may apply to the period
after the date of closing], or (v) take, agree to take or knowingly permit to
be done anything in the conduct of the business of Seller, or otherwise, that
would be contrary to this Agreement or would cause any of Seller's
representations contained in this Agreement to be or become untrue.
11. Conditions. Buyer's obligation to purchase the Property is subject
to satisfaction in Buyer's sole discretion, or waiver by Buyer, of the
following conditions precedent:
(a) Conditions.
(i) Title. Buyer obtaining a satisfactory ALTA title insurance
commitment issued by a national title insurance company for an owner's and
lender's policy of title insurance acceptable to Buyer and Buyer's lender, at
regular rates.
(ii) Easements, Survey. Buyer verifying that no easements,
restrictions, stipulations, encumbrances or other matters of record affecting
the Property, or any matters disclosed by a survey (including without
limitation encroachments or that the Property is not contiguous), would limit
or adversely affect Buyer's use of the Property. Any such exceptions not
objected to by Buyer shall be deemed "Permitted Exceptions". Buyer need not
object to any mortgage or other lien that can be released by the payment of
money by Seller at closing.
(iii) Environmental. Buyer's determining to its satisfaction that
the Property has not been used for the storage or transportation of hazardous,
toxic, flammable or dangerous wastes, substances or materials (other than
incidental cleaning and maintenance chemicals used in the ordiinary course of
Seller's business), that no hazardous, toxic, flammable or dangerous wastes,
substances or materials are or have been stored or located on or under the
Property (other than incidental cleaning and maintenance chemicals used in the
ordiinary course of Seller's business), that the Property has not been used as
a dumpsite, and that there are no and have been no underground tanks on the
Property. The phrase "hazardous, toxic, flammable or dangerous wastes,
substances or materials" has the meaning given to it in section 8(g) of this
Agreement.
(iv) Accuracy of Representations. Buyer's verifying the accuracy
and completeness of Seller's representations and warranties set forth in this
Agreement, and Seller complying with Seller's covenants set forth in this
Agreement.
(v) Tenant Leases. Buyer shall have had the opportunity to review
all Tenant Leases and shall have determined that the Tenant Leases are
reasonably acceptable to Buyer. Seller shall copy all leases and tenant
application within 25 days of acceptance of this offer and deliver said copies
to the Buyer.
(vi) Physical. Buyer determining in Buyer's sole discretion that
the physical condition of the Property is acceptable to Buyer in all material
respects, including without limitation the availability of all utility services
deemed necessary or appropriate by Buyer.
(vii) Financing. Buyer obtaining a firm loan commitment on terms
acceptable to Buyer for financing the acquisition of the Property. Buyer
obtaining an inducement from the city of Indianapolis for bond financing
(b) Time Period. Buyer shall have until April 1, 2005, to attempt
to satisfy or to waive the conditions contained in section 11 (a) of this
Agreement (the "Contingency Period"). Buyer shall apply for bond volume cap on
or before the February deadline as set by The Indiana Housing Finance Authority
(IHFA), however Buyer shall have an extension if IHFA changes the date it first
accepts applications or if the first award of bond volume cap extends beyond
April 1, 2005. If Buyer at any time during the Contingency Period determines
that Buyer cannot satisfy one or more of these conditions, and if Buyer
declines to waive any such condition, then Buyer may terminate this Agreement,
in which event the Deposit shall immediately be refunded to Buyer and, after
such refund, neither Buyer nor Seller shall have any further rights or
obligations under this Agreement. Buyer's notice of satisfaction or waiver of
a condition shall be effective only if there is no material adverse change in
the matter satisfied or waived between the date of satisfaction or waiver and
the date of closing. If there is any material adverse change in condition, then
Buyer shall again have the right to terminate this Agreement, in which event
the Deposit shall immediately be refunded to Buyer and, after such refund,
neither Buyer nor Seller shall have any further rights or obligations under
this Agreement.
(c) Certain Cure Rights By Seller. If Buyer objects during the
Contingency Period to any title matters as contemplated by section 11(a)(i) or
(ii) of the Agreement or to any physical conditions as contemplated by section
11(a)(vii) of this Agreement, then Seller shall have a period of thirty (30)
days at Seller's cost either (i) to correct the title or physical matter
objected to by Buyer to Buyer's satisfaction, or (ii) to notify Buyer that
Seller will not correct the title or physical matter objected to by Buyer to
Buyer's satisfaction. If Seller does not respond within 10 days of Buyer's
notice, Seller will be deemed to have elected not to correct the title or
physical matter objected to by Buyer to Buyer's satisfaction, in which event
Buyer may either withdraw the objection and close the transactions contemplated
by this Agreement, or Buyer may terminate this Agreement as provided for in
section 11(b) of this Agreement. If Seller elects not to correct the title or
physical matter objected to by Buyer to Buyer's satisfaction, Buyer may either
withdraw the objection and close the transactions contemplated by this
Agreement, or Buyer may terminate this Agreement as provided for in section
11(b) of this Agreement. If Seller elects to correct the title or physical
matter objected to by Buyer to Buyer's satisfaction, Seller shall do so at
Seller's cost and expense with all reasonable due diligence, but in no event to
be completed later than 30 days of the date of Seller's election, in which
event the closing and outside closing date shall be extended to a date that is
the later of 30 days after Seller completes the correction.
12. Non-Assumption of Liabilities. Buyer shall not assume, pay or
perform any liabilities or obligations of Seller whatsoever, known or unknown,
contingent or accrued, with respect to the Property that arise from or are in
any way related to the Property or Seller's ownership or operation of the
Property before the date of the closing, including without limitation any tort
liabilities of Seller, any environmental liabilities of Seller, any obligations
of Seller with respect to federal, state or local income or other taxes, and
any obligations of Seller to any employees. Seller shall defend, indemnify and
hold harmless Buyer from any losses, claims, demands, damages, costs and
expenses (including without limitation reasonable attorney fees and court
costs) arising out of any such liabilities or obligations of Seller. Seller
shall not assume, pay or perform any liabilities or obligations of Buyer
whatsoever, known or unknown, contingent or accrued, with respect to the
Property that arise from or are in any way related to the Property or Buyer's
ownership or operation of the Property after the date of the closing, including
without limitation any tort liabilities of Buyer, any environmental liabilities
of Buyer, any obligations of Buyer with respect to federal, state or local
income or other taxes, and any obligations of Buyer to any employees. Buyer
shall defend, indemnify and hold harmless Seller from any losses, claims,
demands, damages, costs and expenses (including without limitation reasonable
attorney fees and court costs) arising out of any such liabilities or
obligations of Buyer.
13. Risk of Loss. All risk of loss with respect to the Property shall
remain with Seller until the Property has been closed and deed delivered. If a
portion of the Property is taken by eminent domain, or if there is damage by
fire or other casualty to the Property, then Buyer shall have the option to
terminate this Agreement, in which event the Deposit and any interest earned
thereon shall be returned to Buyer, and neither Buyer nor Seller shall have any
further rights or obligations under this Agreement. If Buyer does not terminate
this Agreement, then the Purchase Price shall be adjusted by an amount equal to
the condemnation proceeds or insurance proceeds, as applicable, received by
Seller or, if the proceeds have not yet been received, they shall be assigned
and paid to Buyer.
14. Default.
(a) By Buyer. If Buyer breaches the terms and conditions of this
Agreement, and fails to cure such breach within 10 days of written notice by
Seller to Buyer specifying the breach, then Seller shall be paid by Escrow
Agent the Deposit as liquidated damages for Buyer's breach and as Seller's sole
remedy for Buyer's breach. Buyer and Seller agree that it would be difficult or
impossible to ascertain Seller's actual damages and that the Deposit represents
a reasonable estimate of such damages.
(b) By Seller. If Seller breaches the terms and conditions of this
Agreement, or otherwise fails to perform its obligations under this Agreement,
then Buyer shall have all such remedies as may be available at law or in
equity, including without limitation specific performance.
15. Notices. All notices required or permitted by this Agreement shall
be in writing and either personally delivered or sent by U.S. certified mail,
postage prepaid, return receipt requested, or by a nationally recognized
overnight service that guaranties next day delivery, or by facsimile with
receipt acknowledged, to the addresses set forth in the preamble to this
Agreement, or to such other addresses or persons as any party may direct by
notice given pursuant to this section. Notices shall be deemed given the date
received, if personally delivered, or two days after deposit in the U.S. mail,
if sent by certified mail, or one day after deposit with the overnight delivery
service if sent by overnight delivery service. Failure or refusal to accept a
notice shall be deemed receipt.
16. Commissions. Except for a commission that Buyer agrees to pay to
Colliers Turley Martin Tucker and Michael B. Drew, the agent for Seller, and a
commission that Buyer is to pay to Creek House Realty (per separate agreement),
the agent for the Buyer, the Seller and the Buyer each represent that there are
no real estate commissions or brokers' or other fees due or payable by Seller
or by Buyer as a result of the transactions contemplated by this Agreement, and
each shall defend, indemnify and hold harmless the other for any breach of this
representation.
17. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana.
(b) Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs and
personal representatives and permitted successors and assigns. Buyer may assign
this Agreement to an entity in which any existing principal of Buyer has a
financial interest.
(c) Entire Agreement. This Agreement contains the entire
understanding between Buyer and Seller pertaining to its subject matter and
supersedes all other understandings, both oral and written, between Buyer and
Seller concerning the subject matter of this Agreement. This Agreement may only
be amended by a written instrument signed by both Buyer and Seller.
(d) Severability. If any term, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the same shall remain valid and enforceable in all permitted
contexts, and, at all times, the remainder of the provisions of this Agreement
shall remain in full force and effect and shall in no way be affected thereby.
(e) Section Headings and Captions. The section headings and
captions used in this Agreement are for convenience only and shall be ignored
in construing the substantive provisions of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement.
(g) Exhibits. All exhibits referred to in this Agreement are made
part of this Agreement and incorporated in this Agreement by reference above
the signatures of the parties.
(h) Time is of the Essence. Time is of the essence of this
Agreement.
(i) Confidentiality. Both parties agree to keep the terms and
conditions of this Agreement confidential, except as certain matters may be
required to be disclosed by law or court order, and except that Buyer may
disclose the terms to actual and potential investors and lenders and Buyer's
professional consultants.
(j) Survival. Except for the provisions of this Agreement that have
been fully performed at closing, the terms, covenants, representations,
warranties, conditions and indemnities set forth in this Agreement shall
survive closing and delivery of deed.
(k) Drafting. This Agreement was drafted by Buyer for convenience
only and shall not be construed for or against Buyer on such basis.
(1) Exchange. Seller (or its assigns) has the option to sell and
convey the Property as part of a deferred exchange of like kind properties, as
contemplated by section 1031 of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder. Buyer will cooperate in such
exchange so long as Buyer incurs no additional expense or liability or delay
as a result of such cooperation.
(m) Clubhouse. Buyer agrees to waive Seller's obligation to
participate in the costs of renovating, rebuilding, replacing or maintaining
the clubhouse that is shared by Fox Run Apartments and Tomahawk Apartments as
an additional inducement to the Seller. It is agreed that if the Buyer fails
to get awarded bond volume cap or fails to close for any reason other than
breach by the Seller that Buyer will permanently waive Seller's requirement to
participate in said costs.
(n) Purchase of Tomahawk Village. Seller shall be entitled to
terminate this Agreement if Buyer fails to close on the purchase of Tomahawk
Village Apartments by October 31, 2004. If Seller terminates the Agreement
pursuant to this paragraph 17(n), the Deposit shall be refunded to Buyer and
the parties shall not be further obligated hereunder.
(o) Ten Year Hold. This offer contingent upon buyer verifying that
the property will qualify for acquisition credit under the section 42 tax
credit program. Seller will cooperate with the buyer to verify and certify the
information necessary to remove this contingency.
(p) Temporary Waiver of Shared Expenses. Buyer agrees, as an
additional inducement to Seller, to cause Tomahawk Village Apartments to waive,
for a period of one (1) year from the effective date of this Agreement, any and
all charges to Seller for reimbursement of certain expenses incurred by
Tomahawk Village, which expenses would, in the absence of such waiver, be
subject to partial reimbursement by Seller, pursuant to the provisions of
various easements, all of which shall remain in effect, and related documents
executed by and between the respective predecessors in interest of the current
owners of the Fox Run and Tomahawk Village properties.
18. Offer/Acceptance. By delivering two executed originals of this
Agreement to Seller, Buyer is offering to purchase the Property on the terms
and subject to the conditions set forth in this Agreement. If not accepted by
Seller, as evidenced by Seller delivering to Buyer an executed original
counterpart of this Agreement by 5:00 P. M. Eastern Standard Time on
_______________, then this offer shall be null and void.
WITNESS the signatures of Buyer, Seller and Escrow Agent on the dates set
forth below.
SELLER:
CENTURY REALTY PROPERTIES, L.P.
By Century Realty Trust, its General Partner
By: /S/ John I. Bradshaw, Jr.
_____________________________
Title: President
Date: 12/07/04
_____________________________
BUYER:
LDG - Fox Run LP
_________________________________
By: /s/ Chris Dischinger
_____________________________
Title: __________________________
Date: 12/1/04
___________________________
The undersigned Escrow Agent executes this Agreement to acknowledge receipt of
the Deposit and to agree to hold and distribute the Deposit according to the
terms of this Agreement.
ESCROW AGENT:
_________________________________
By: _____________________________
Title: __________________________
Date: ___________________________
EXHIBIT A
BEING the same property conveyed to Century Realty Properties, L.P., by deed
dated August 30, 2001, and recorded October 15, 2001 as Instrument Number
2001-0182568 in the office of the Recorder of Marion County, Indiana, as more
fully described on the attached sheet:
EXHIBIT B
[Current Rent Roll]
EXHIBIT 10.2
TRUSTEE'S OPTION TO PURCHASE SHARES
CENTURY REALTY TRUST, an Indiana business trust, hereby grants to Larry S.
Boulet , of 9075 Pickwick Drive , Indianapolis ,
Indiana 46260 (hereinafter "the grantee"), the option to purchase shares
of beneficial interest (hereinafter "the shares") in Century Realty Trust
(hereinafter "the grantor"), on the following terms and conditions.
1. Shares Subject To Option. This option shall apply to
5,000 shares of treasury stock, to the extent there are a
sufficient number of treasury shares to fund this option.
2. Authorization And Consideration. This option is granted pursuant
to a resolution of the Board of Trustees of grantor which was adopted on
May 5 , 2004 . No monetary consideration has been paid by grantee for
this option. Grantee is as of the date hereof a duly elected, qualifying and
acting trustee of grantor.
3. Purchase Price For Shares. The purchase price for any shares
purchased pursuant to this option shall be $10.80 per share, that being
by stipulation and agreement of the parties hereto the fair market value of the
shares as of the option date.
4. Duration Of Option. This option shall be effective on and after
May 5 , 2004 , which date is herein called the "grant
date". This option shall expire three years from the grant date, on
May 4 , 2007 , said date of expiration being herein called the
"expiry date". The duration of this option shall not be affected by the death
of grantee, nor by the termination of grantee's status as a trustee of grantor.
5. Manner of Exercise. Grantee may exercise this option, with or
without notice to grantor, at 320 N. Meridian Street, Suite 823, Indianapolis,
Indiana 46204(or at such other address as grantor may from time to time
designate) at any time selected by grantee on or after the grant date and prior
to the expiry date. Said notice shall indicate the number of shares grantee
wishes to purchase, and be accompanied by payment to grantor for the shares
being purchased.
6. Method Of Payment. Payment for any shares purchased by grantee
pursuant to this option shall be made in cash, check or money order, or such
other form of payment as would constitute "good funds" in normal commercial
transactions. The date on which the purchase price is received by grantor shall
constitute the purchase date. Upon payment for any shares purchased pursuant to
this option, grantor shall cause share certificate(s) for the shares purchased
to be issued to grantee, or his nominee, in negotiable form, subject only to
proper notation for the restrictions set out in paragraph 7 below.
7. Restrictions On Dividend And Voting Rights. The holder of any
shares issued by the grantor pursuant to this option shall not be deemed to be
the record owner of such shares, for the purpose of being entitled to dividends
or other cash distributions from the Trust, or for voting rights, until ninety
(90) days following the purchase date as defined in paragraph 6 above. The date
on which the holder of the shares issued pursuant to this option becomes the
record owner for dividends, other cash distributions and voting rights shall be
known as the "vesting date". Shares issued pursuant to this option shall be
assignable prior to the vesting date, but shall carry a notation indicating
the restrictions set out in this paragraph.
8. Partial Exercise. Grantee shall not be obligated to purchase all
shares subject to this option at one time, but may, at grantee's option,
purchase as few as 100 shares at any one time. Any partial exercise of this
option may be made at any intervals grantee may select, but not more frequently
than once in each calendar quarter. Any shares not purchased following a
partial exercise of this option shall remain subject to the terms of this
option until the expiry date.
9. Status At Expiry Date. After the expiry date, as noted above, all
shares not purchased shall no longer be subject to this option.
10. Successor And Assigns. This option shall be binding on the
grantor and its successors and its assigns.
11. Assignability Of Option. This option shall be fully assignable
by grantee, at any time after the grant date, but partial assignments shall not
be made. This option shall inure to the benefit of grantee's heirs, successors
and assigns.
IN WITNESS WHEREOF, the Grantor has executed this option to purchase
shares as of the 5th day of May , 2004 .
CENTURY REALTY TRUST
By: /S/ John I. Bradshaw, Jr.
__________________________
President
/S/ John W. Adams
__________________________
Secretary
"GRANTOR"