Securities and Exchange Commission
Washington, D.C. 20549
----------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 4, 1994
THE CENTENNIAL GROUP, INC.
(Exact name of registrant as specified in its chapter)
Delaware File No. 2-79708 33-0089455
-------------------- ------------------ ----------------
(State or other (Commission File No.) (I.R.S. Employer
jurisdiction Identification No.
of incorporation)
282 South Anita Drive, Orange, CA 92668 92668
------------------------------------- ------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone no., including area code: (714)634-9200
- -----------------------------------------------------------------
Former name or former address, if changed since last report
ITEM 3. BANKRUPTCY OR RECEIVERSHIP
On March 4, 1994 ( the "Confirmation Date" ) the United States
Bankruptcy Court for the Central District of California entered an
order confirming the Second Amended Plan of Reorganization as
Modified ( the "Plan" ) which had been filed by The Centennial
Group, Inc. ( the "Company" ). The Plan will become effective ( the
"Effective Date") 90 days after the Confirmation Date, although
several aspects of the Plan will become effective immediately. The
Company had originally filed a voluntary petition for relief under
Chapter 11 of the United States Bankruptcy Code on December 13,
1991 ( the "Petition Date" ).
The Plan provides for thirty-two separate classes of creditors
as follows: i) Classes one through twenty-seven are comprised of
claims secured by liens against the Company's real properties and
include principally mortgage notes, governmental bond assessments
and real property taxes; ii) Class twenty-eight claims are
comprised of prepetition allowed unsecured claims that are less
than or equal to $25,000; iii) Class twenty-nine claims are
comprised of prepetition allowed unsecured claims other than claims
included in class twenty-eight; iv) Class thirty claims are
comprised of prepetition unsecured claims of certain subsidiaries
of the Company; v) Class thirty-one claims are comprised of the
members of the class represented by the Daniel's Plaintiffs in the
Daniels litigation and all other claims related thereto; and vi)
Class thirty-two which is comprised of the Stockholders of the
Company.
The following discussion provides information about the
treatment of these various classes of creditors and the expected
impact on the properties currently owned by the Company. These
properties are referred to by numbers which correspond with numbers
used in the Company's Form 10-K for the year ended June 30, 1993 on
file with the Securities and Exchange Commission. A separate
balance sheet for The Centennial Group, Inc. as of December 31,
1993 is included in the consolidating balance sheets beginning on
page 29 of the Company's Form 10-Q for the quarter ending December
31, 1993 which is also on file with the Securities and Exchange
Commission. The Company's assets and liabilities had not changed
materially between December 31, 1993 and the date the Bankruptcy
Court entered its order approving the Plan.
UNIMPAIRED CLAIMS
Creditors holding notes and other liens secured by Property
No.s 3, 4, 5, 13 and 23 are unimpaired pursuant to the Plan and may
complete their foreclosure of these properties if they elect to do
so. The Company expects these creditors to complete foreclosure
proceedings on these properties in the next several months. The
principal, accrued interest and accrued real estate taxes included
in the Company's balance sheet for these claims as of December 31,
1993 as presented in its Form 10-Q on file with the Securities and
Exchange Commission totalled approximately $21,098,000 , $9,192,000
and $1,839,000 , respectively. The Company's net carrying value
for these properties was approximately equal to these liens and
totalled $32,129,000. Upon foreclosure, the Company expects that
its liabilities and assets will be reduced by these amounts with no
significant gain or loss recorded upon foreclosure.
Classes thirty-one and thirty-two are also unimpaired
pursuant to the Plan. Four other classes of secured claims,
including three classes with claims which are secured by Property
No. 6 which was lost in foreclosure during December 1993, were also
unimpaired by the plan. The Company does not believe it has any
further liability under these four classes of secured claims.
The Plan requires that administrative claims which have been
incurred after the Petition Date will be paid in cash by the
Effective Date, unless the holders of the particular claims agree
otherwise. These claims totalled approximately $615,000 as of
December 31, 1993.
IMPAIRED CLAIMS
Although a substantial portion of the claims against the
Company as of the Petition Date are considered to be impaired by
the Plan, the Plan has not reduced the amount owed as of the
Petition Date nor the interest which has accrued thereon from the
Petition Date through the Confirmation Date pursuant to contracts
in existence as of the Petition Date. These claims are considered
to be impaired as a result of the modification of repayment terms
and in certain cases, modifications of interest rates subsequent to
the Confirmation Date pursuant to the Plan. Unsecured claims
against the Company as of the Petition Date will not accrue any
interest from the Petition Date through the Effective Date. A
brief discussion of the major types of impaired claims is provided
in the following paragraphs.
Delinquent property taxes which had accrued as of the Petition
Date and have accrued from the Petition Date through the
Confirmation Date will generally be repaid in five equal annual
installments together with interest at a fixed annual rate
determined by adding 3% to the yield on five year United States
Treasury Bonds as of the Confirmation Date. These annual payments
are to commence on either April 10, 1994 or December 31, 1994.
Delinquent Mello Roos District bond assessments will either be
repaid in a single installment within twelve months or in monthly
installments over 84 months with interest at a fixed rate
determined by adding 3% to the yield on seven year United States
Treasury Bonds as of the Confirmation Date. Post Confirmation Date
taxes and bond assessments will continue to accrue and become
payable pursuant to existing tax codes. Interest had generally
been accruing on the unpaid taxes and bond assessments at the rate
of 18% per annum from the Petition Date through the Confirmation
Date.
The maturity dates on notes secured by the remaining
properties have generally been extended for either five or seven
years pursuant to the Plan. Certain notes will require monthly
principal and interest payments while other notes will require
quarterly or annual interest only payments. Interest will accrue
at rates ranging from the Prime rate plus 2% to a fixed rate of 10%
with the exception of one note secured by Property No. 2 . This
note, which had a balance of approximately $1.4 million as of
December 31, 1993 , will bear interest at 24% per annum unless paid
prior to eighteen months after the Confirmation Date in which event
the interest in excess of 9% will be waived. One of the notes
secured by Property No. 7 , which had a balance of approximately
$8.9 million as of December 31, 1993 , will provide for certain
discounted payoff amounts for principal reductions made prior to
maturity. These discounts range from 26% for payments made during
1994 down to 5% for payments made during 1998, after which no
discounts are available.
Class twenty-eight claims will be paid in full in cash on or
before the Effective Date of the Plan. These claims are expected
to total less than $200,000.
Class twenty-nine claims shall receive future quarterly
distributions by the Company. The $5,739,000 in accounts payable
and other accrued liabilities included under liabilities subject to
compromise on the Company's December 31, 1993 balance sheet is
principally comprised of these class twenty-nine claims.
Additionally, it could be determined that the Company is liable for
a substantial portion of certain secured liabilities of Arizona
Commercial Property Developers, Inc. which totalled $2,631,000 and
are shown under liabilities subject to compromise on the
consolidating balance sheet as of December 31, 1993. All of these
class twenty-nine claims will bear interest at the rate of 7% per
annum after the Effective Date. Payments will be made out of cash
on hand after deducting on a quarterly basis a reserve for 12
months' future operations by the Company, which reserve shall
include amounts necessary to pay anticipated interest and property
tax and bond obligations relating to the Company's retained
properties. The balance owing to Class twenty-nine claimants will
be paid in full by no later than four years after the Effective
Date. A minimum payment of $1,000,000 shall have been paid by
December 31, 1994; an additional minimum payment of $2,000,000
shall have been paid by December 31, 1995; an additional minimum
payment of $2,000,000 shall have been paid by December 31, 1996.
Class thirty claims shall be paid in future quarterly
distributions by the Company after the members of Class 28 and 29
have been paid in full. These claims will bear interest at the
rate of 7% per annum after the Effective Date and be payable in
quarterly installments out of cash on hand after deducting a
reserve for 12 months' future operations by the Company as
discussed above.
ITEM 5. OTHER EVENTS
In conjunction with and effective upon the Bankruptcy Court's order
approving the Company's plan of reorganization, Messrs. Krinsky,
Miles and Cheshier resigned from the Company's board of directors.
The Company is not aware of any disagreement which these former
directors had with the Company's remaining directors and officers
on any matter relating to the Company's operations, policies or
practices.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
2.1 The Centennial Group, Inc. "Second Amended Plan of
Reorganization as Modified" which was confirmed on March
4, 1994.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto
duly authorized.
The Centennial Group, Inc.
Date March 18, 1994
--------------------------
Joel H. Miner
Vice President and Chief
Financial Officer
<PAGE>
discussed above.
ITEM 5. OTHER EVENTS
In conjunction with and effective upon the Bankruptcy Court's order
approving the Company's plan of reorganization, Messrs. Krinsky,
Miles and Cheshier resigned from the Company's board of directors.
The Company is not aware of any disagreement which these former
directors had with the Company's remaining directors and officers
on any matter relating to the Company's operations, policies or
practices.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
2.1 The Centennial Group, Inc. "Second Amended Plan of
Reorganization as Modified" which was confirmed on March
4, 1994.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto
duly authorized.
The Centennial Group, Inc.
Date March 18, 1994
/s/Joel H. Miner
--------------------------
Joel H. Miner
Vice President and Chief
Financial Officer
Exhibit 2.1
The Centennial Group, Inc.
"Second Amended Plan of Reorganization as Modified"
JEFFREY W. BROKER - State Bar #53226
SEAN A. O'KEEFE - State Bar #122417
LOBEL, WINTHROP & BROKER
19800 MacArthur Blvd., Suite #1100
Irvine, CA 92715
Mailing Address:
P.O. Box 19588
Irvine, CA 92713
Telephone: (714) 476-7400
Facsimile: (714) 476-7444
Attorneys for Debtor and
Debtor-in-Possession
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re ) Case No. SA 91-41813 JW
)
THE CENTENNIAL GROUP, INC., ) Chapter 11 Proceeding
a Delaware corporation, )
) ORDER CONFIRMING DEBTOR'S
Debtor and ) SECOND AMENDED PLAN OF
Debtor-in-Possession ) REORGANIZATION AS
) MODIFIED
)
)
) DATE: September 13,
) 1993
) TIME: 11:00 a.m.
) PLACE: Courtroom 604
)
) CONFIRMATION HEARING:
)
) DATE: February 23, 1994
) TIME: 11:00 A.M.
) CTRM: 604
The matter of the hearing on confirmation of the Debtor's
Second Amended Plan of Reorganization as Modified (the "Plan")
filed by The Centennial Group, Inc., a Delaware corporation, Debtor
and Debtor-in-Possession herein (the "Debtor") was held on February
23, 1994 at the hour of 11:00 a.m. before the undersigned
Bankruptcy Judge. Jeffrey W. Broker and Sean O'Keefe of Lobel,
Winthrop & Broker appeared on behalf of the Debtor. Joel S.
Miliband of Rus, Miliband, Williams & Smith appeared on behalf of
the Committee of Creditors Holding Unsecured Claims. Alan H.
Martin of Sheppard, Mullin, Richter & Hampton appeared on behalf of
Bank of America and BA Mortgage. Steven Skacevic of Frandzel &
Share appeared on behalf of Sacramento Savings. Other appearances
are as noted in the record.
The Court having determined, after hearing on notice,
after reviewing the pleadings and declarations filed in support of
confirmation of the Plan, and all objections to confirmation of the
Plan having been withdrawn, and good cause appearing that:
1. The Plan, the Debtor's Second Amended Disclosure
Statement for Debtor's Chapter 11 Plan of Reorganization, and
ballots in a form perviously approved by this Court were duly
transmitted to all creditors and parties-in-interest, in accordance
with Section 1125 of the Bankruptcy Code;
2. The Plan complies with the requirements of Section
1123 of the Bankruptcy Code;
3. The Plan has been timely accepted in writing by each
class of creditors whose acceptance is required by law, except that
creditors in Classes 1, 5, 9, 12 and 13 failed to vote on the Plan;
4. The Plan complies with the applicable provisions of
Title 11 as required by Section 1129(a)(1) of the Bankruptcy Code;
5. The Debtor, as proponent of the Plan, has complied
with the applicable provisions of Title 11 as required by Section
1129(a)(2) of the Bankruptcy Code;
6. The Plan has been proposed in good faith and not by
any means forbidden by law as required by Section 1129(a)(3) of the
Bankruptcy Code;
7. Any payments made or promised by the Debtor for
services or costs and expenses incurred in, or in connection with,
the Plan and incident to the case, have been fully disclosed to the
Court and are reasonable, or, if to be fixed after confirmation of
the Plan, will be subject to the approval of the Court as required
by Section 1129(a)(4) of the Bankruptcy Code;
8. The Debtor has disclosed the identities and the
proposed compensation that will be paid to all parties contemplated
under Section 1129(a)(5) of the Bankruptcy Code;
9. Each holder of an impaired claim or interest has
accepted the Plan, or, will receive or retain under the Plan
property of a value, as of the Effective Date of the Plan, that is
not less than the amount that such holder would so receive or
retain if the Debtor were liquidated under Chapter 7 of the
Bankruptcy Code on such date as required by Section 1129(a)(7) of
the Bankruptcy Code;
10. With respect to each class of claims, each class has
accepted the plan, with the exception of Classes 1, 5, 9, 12 and
13, which classes failed to vote. Notwithstanding such failure to
vote, the Debtor's plan satisfies the requirements for confirmation
set forth by Section 1129(b) of the Bankruptcy Code in that the
holders of the secured claims which did not vote (Classes 1, 5, 9,
12 and 13) retained their liens and said parties are to receive
under the Plan deferred cash payments totalling at least the
allowed amount of their claims on the Effective Date of the Plan.
The Debtor has thereby satisfied the requirements of Section
1129(a)(8) of the Bankruptcy Code;
11. The Plan fully complies of the requirements in
Section 1129(a)(9) of the Bankrupcy Code in that all allowed
administrative and priority claims will be paid by the Effective
Date of the Plan;
12. At least one class of claims that is impaired under
the Plan has accepted the Plan, determined without including any
acceptance by any insider, in that fifteen out of the twenty-one
impaired classes under the Plan have accepted the Plan with six
classes having failed to vote, thereby satisfying the requirements
of Section 1129(a)(10) of the Bankruptcy Code;
13. The Plan is feasible, and the Debtor has
demonstrated by competent evidence that confirmation of the Plan is
not likely to be followed by the liquidation or the need for
further financial reorganization of the Debtor or any successor to
the Debtor under the Plan, thereby satisfying the requirements of
Section 1129(a)(11) of the Bankruptcy Code;
14. All fees payable under 28 U.S.C. Section 1930 have been
paid for the Plan provides for the payment of all such fees on or
before the Effective Date of the Plan, as required by Section
1129(a)(12) of the Bankruptcy Code;
15. The Debtor and the Plan have otherwise complied with
the requirements of all subsections of Section 1129(a) of the
Bankruptcy Code (subsections 1129(a)(6) and (13) being
inapplicable);
Good cause appearing therefor, it is hereby
ORDERED that the Plan, a true and correct copy of which
is attached hereto as Exhibit "1," is hereby CONFIRMED and all
terms thereof are incorporated herein and may be part of this order
and shall be deemed enforceable as an order of this Court; and it
is further
ORDERED that, until this case is closed, the Court shall
retain jurisdiction over this case to ensure that the purposes and
intent of the Plan are carried out until the Plan has been fully
consummated, pursuant to and for the purposes set forth in the
Bankruptcy Code, and specifically for the purposes of:
a. Classification of the Claim of any Creditor in the
reexamination of Claims which have been allowed for the purposes of
voting for the determination of such objections as may be filed to
Creditors' Claims. The failure by the Debor to object to or
examine any claim for the purpose of voting shall not be deemed to
be a waiver of Debtor's right to object to or reexamine the Claim
in whole or in part;
b. The allowance of compensation or other
administrative expenses;
c. To hear and determine Claims concerning state, local
and federal taxes pursuant to Sections 346, 505, 525, and 1146 of
the Bankruptcy Code;
d. To hear and determine any action or proceeding
brought by Debtor under Sections 510, 542, 543, 544, 545, 547, 548,
549, 550, 551, and 553 of the Bankruptcy Code, whether such action
or proceeding is brought before or after the Effective Date;
e. To hear and determine all actions and proceedings
which relate to pre-confirmation matters brought by the Debtor
whether such action or proceeding is brought before or after the
Effective Date;
f. The determination of any issues relating to the
assumption or rejection of executory contracts and unexpired leases
including the assumption or rejection of executory contracts or
unexpired leases not expressly dealt with herein;
g. The correction of any defects, the curing of any
omission, or the reconciliation of any inconsistency of this Plan
or in the Order of Confirmation as may be necessary to carry out
the purposes and intent of this Plan;
h. The modification of this Plan after confirmation
pursuant to the Bankruptcy Rules and Title 11 of the United States
Code;
i. The enforcement and interpretation of the terms of
this Plan;
j. The entry of any order, including injunctions,
necessary to enforce title, rights and powers of the Debtor; and to
impose such limitations, restrictions, terms and conditions of such
title, rights and powers as this Court may deem necessary
including, without limitation, any right of the Debtor to recover
assets pursuant to the provisions of the Bankruptcy Code;
k. The determination of the validity, extent and
priority of all liens and security interests against property of
the Debtor's Chapter 11 estate;
l. To hear and determine such matters and make such
orders as are consistent with the Plan as may be necessary or
desirable to carry out the provisions thereof;
m. Any disputes arising under or relating to any order
entered by the Court in this proceeding;
n. To hear and determine such matters and make such
orders as may be necessary to implement the Mortgage Note offering
previously approved by this Court;
o. The entry of an order concluding and terminating
this Chapter 11 case; and it is further
ORDERED that the Debtor shall comply fully with Local
Bankruptcy Rule 142(3), and in connection therewith file with the
Court a status report with 120 days of the entry of this Order, and
every six months thereafter, describing Debtor's progress towards
plan consummation; and it is further
ORDERDED that when the Plan is fully consummated; the
Debtor shall file any application for Final Decree closing this
bankruptcy case.
DATED: March 2, 1994 ______________________________
JOHN J. WILSON
UNITED STATES BANKRUPTCY JUDGE
Presented by:
LOBEL, WINTHROP & BROKER
By: __________________________
Jeffrey W. Broker
Attorneys for Debtor and
Debtor-in-Possession
Exhibit 1
JEFFREY W. BROKER - State Bar #53226
SEAN A. O'KEEFE - State Bar #122417
LOBEL, WINTHROP & BROKER
19800 MacArthur Blvd., Suite #1100
Irvine, CA 92715
Mailing Address:
P.O. Box 19588
Irvine, CA 92713
Telephone: (714) 476-7400
Facsimile: (714) 476-7444
Attorneys for Debtor and
Debtor-in-Possession
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re ) Case No. SA 91-41813 JW
)
THE CENTENNIAL GROUP, INC., ) Chapter 11 Proceeding
a Delaware corporation, )
) DEBTOR'S SECOND
Debtor and ) AMENDED CHAPTER 11 PLAN OF
Debtor-in-Possession ) REORGANIZATION AS
) MODIFIED
)
)
) DISCLOSURE STATEMENT
) HEARING:
)
) DATE: September 13,
) 1993
) TIME: 11:00 a.m.
) PLACE: Courtroom 604
)
) CONFIRMATION HEARING:
)
) DATE: February 23, 1994
) TIME: 11:00 A.M.
) PLACE: Courtroom 604
) 34 Civic Center Plaza
) Santa Ana, California
TO THE HONORABLE JOHN WILSON, UNITED STATES BANKRUPTCY JUDGE:
The Centennial Group, Inc., a Delaware corporation, the Debtor
and Debtor-in-Possession herein, proposes the following Second
Amended Chapter 11 Plan of Reorganization as Modified:
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALL
STATEMENTS IN THIS PLAN AND THE ACCOMPANYING DISCLOSURE STATEMENT
CONCERNING THE HISTORY OF THE DEBTOR'S BUSINESS, THE PAST OR
PRESENT FINANCIAL CONDITION OF THE DEBTOR, TRANSACTIONS TO WHICH
THE DEBTOR WAS OR IS A PARTY, OR THE EFFECT OF CONFIRMATION OF THE
PLAN ON SECURED CREDITORS, UNSECURED CREDITORS OR EQUITY SECURITY
HOLDERS ARE ATTRIBUTABLE EXCLUSIVELY TO THE DEBTOR AND NOT TO
COUNSEL TO THE DEBTOR.
ARTICLE I
Definitions
The definitions contained in the Bankruptcy Code are
incorporated herein. Whether or not inconsistent with definitions
contained in the Bankruptcy Code, the following terms used in this
Plan of Reorganization shall have the following meanings:
1.01. Alder Creek: Refers to approximately sixty-seven
(67) acres of partially developed real property owned by the Debtor
located in the City of Folsom, County of Sacramento, California, at
Highway 50 and Folsom Boulevard between the Folsom freeway offramp
and Hazel Avenue. A more detailed description of this property
appears in Section VIII in the Disclosure Statement.
1.02. Alder Creek Purchase and Sale Agreement: Refers to
that certain Agreement dated January 23, 1991, and all amendments
thereto, between the Debtor and Peterson/Perry for the sale of
approximately 17 acres of the original 75 acres of Alder Creek
owned by the Debtor.
1.03. Allowed Administrative Claim: An Allowed Claim
relating to the administration of the Case pursuant to Section
503(b) of the Code, including, without limitation, any fees of
professionals employed in this Case which have been approved by the
United States Bankruptcy Court, and any quarterly fees owing to the
Office of the United States Trustee.
1.04. Allowed Claim: A claim that is either (a) scheduled
in the list of creditors prepared or filed with the Court by the
Debtor and not listed as disputed, contingent or unliquidated as to
amount, or (b) with respect to which a proof of claim has been
filed with the Court and as to which no objection to the allowance
thereof has been filed within the applicable period of limitations
fixed by the Court, or as to which any such objection has been
determined by an order or judgment which has become final.
Notwithstanding the foregoing, no claim shall be deemed an Allowed
Claim if such Claim includes attorneys' fees, default interest,
late penalties or similar charges or costs of any kind, accrued or
incurred post-petition, unless the same have been approved by the
Court in accordance with the procedure set forth in Article IX,
Section 9.01, of the Plan.
1.05. Allowed Amount: The amount of any claim against the
Debtor determined in accordance with 11 U.S.C. Section 502 and
506(a) and any other applicable section of the Bankruptcy Code, and
recognized by the Debtor as valid or allowed by final order of the
Court, except to the extent described or defined otherwise herein.
1.06. Allowed Priority Claim: An Allowed Claim entitled
to priority pursuant to Sections 507(a)(3), (4) or (6), of the
Code.
1.07. Allowed Secured Claim: An allowed claim secured by
a lien, security interest or other charge against property in which
this estate has an interest, or which is subject to setoff under
Section 553 of the Bankruptcy Code, to the extent of the value,
determined in accordance with Section 506(a) of the Bankruptcy
Code, of the interest of the holder of such secured claim in the
estate's interest in such property, or to the extent of the amount
subject to any setoff, as the case may be. Unpaid principal and
all accrued interest shall be computed as of the Confirmation Date
and shall thereafter bear interest as provided for in the Plan.
Notwithstanding the foregoing, no claim shall be deemed an Allowed
Secured Claim if such Claim includes attorneys' fees, default
interest, late penalties or similar charges or costs of any kind,
accrued or incurred post-petition, unless the same have been
approved by the Court in accordance with the procedure set forth in
Article IX, Section 9.01, of the Plan.
1.08. Anita Drive: Refers to a leasehold interest in a
parcel of real property located in the City of Orange, County of
Orange, California, wherein the Debtor is the lessee and which has
been improved by a three story office building that currently
serves as the Debtor's corporate headquarters. A more detailed
description of this property appears in Section VIII in the
Disclosure Statement.
1.09. Approval Date: The date on which an order approving
the Debtor's Disclosure Statement, or an amended version thereof,
is entered by the Clerk on the Court's docket.
1.10. BA Mortgage: BA Mortgage and International Realty
Corporation, as successor in interest to Security Pacific National
Bank of Arizona, the holder of a Class 29 Claim.
1.11. Bank of America: Bank of America, NT&SA, the holder
of a Claim secured by a first priority deed of trust encumbering
the Cordova Retail Center. This Claim has been classified as the
Class 6 Claim. Bank of America also holds the Class 8 Claim as a
result of its merger with Security Pacific Bank. Therefore, Bank
of America is also the holder of a Claim secured by a first
priority deed of trust encumbering the Debtor's leasehold interest
in Moovalya Plaza.
1.12. Bankruptcy Code or Code: Title 11 of the United
States Code, as amended. All citations in this Plan to section
numbers are to the Code unless otherwise expressly indicated.
1.13. Bankruptcy Court or Court: The United States
Bankruptcy Court for the Central District of California or such
successor court or tribunal as may hereafter be confirmed or
created by lawful authority with power to confirm reorganization
plans under Chapter 11, Title 11, United States Code and all other
applicable statutes, rules and regulations.
1.14. Bankruptcy Rules or Rules: The Federal Rules of
Bankruptcy Procedure, as amended, and the local Bankruptcy Rules,
as adopted, by the Court for use in the United States Bankruptcy
Court for the Central District of California.
1.15. Bar Date: The last date for filing claims which was
90 days after service of the notice thereof on Creditors. The Bar
Date expired as to all known Creditors no later than December 20,
1992.
1.16. Brewer: Daryl D. and Alice Brewer, the holders of
a claim secured by a first priority deed of trust encumbering a
portion of Alder Creek. This Claim has been classified as the
Class 9 Claim.
1.17. Case: The within Chapter 11 proceeding, known as In
re The Centennial Group, Inc., a Delaware corporation, and bearing
Case No. SA 91-41813 JW, pending before the United States
Bankruptcy Court, Central District of California.
1.18. CCDI: Centennial Community Developers, Inc., a
California corporation, which is a wholly-owned subsidiary of the
Debtor. This entity's unsecured claim against the Debtor consists
of two unsecured notes dated July 1, 1990 and March 12, 1991 in the
principal amounts of $3,220,469.32 and $224,750.00, respectively,
and have been classified as a Class 30 Claim.
1.19. CCI: Centennial Capital, Inc., a California
corporation, which is a wholly-owned subsidiary of the Debtor.
This entity's unsecured claim against the Debtor consists of 18
unsecured promissory notes dated between September 25, 1987 and
March 12, 1991 which represent loans and advances to the Debtor for
working capital purposes. These claims have been classified as a
Class 30 Claim.
1.20. Centerpointe: Refers to approximately 166 acres of
undeveloped real property located in the City of Moreno Valley,
County of Riverside, California. A more detailed description of
this property appears in Section VIII in the Disclosure Statement.
1.21. Claim: Right to payment, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured; or, a right to an equitable remedy
for breach of performance if such breach gives rise to a right to
payment, whether or not such right is an equitable remedy or is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
1.22. Claimants or Creditors: Persons or entities holding
Allowed Claims.
1.23. Class: A category of holders of Claims or interests
which are substantially similar to other Claims or interests in
such Class.
1.24. Class 1 Claimant: County of Sacramento, CA
1.25. Class 2 Claimant: County of La Paz, AZ
1.26. Class 3 Claimant: City of Sacramento, CA
1.27. Class 4 Claimant: Laguna Community District.
1.28. Class 5 Claimant: Nimbus Water District.
1.29. Class 6 Claimant: Bank of America.
1.30. Class 7 Claimant: First Fidelity.
1.31. Class 8 Claimant: Bank of America
1.32. Class 9 Claimant: Brewer.
1.33. Class 10 Claimant: Custis.
1.34. Class 11 Claimant: Lane.
1.35. Class 12 Claimant: Mencarini.
1.36. Class 13 Claimant: Morgan.
1.37. Class 14 Claimant: Mott.
1.38. Class 15 Claimant: Smith.
1.39. Class 16 Claimant: Wilcox.
1.40. Class 17 Claimant: NIRT.
1.41. Class 18 Claimant: Peterson/Perry.
1.42. Class 19 Claimant: Foothill.
1.43. Class 20 Claimant: Sacramento Savings.
1.44. Class 21 Claimant: Laguna Business Park.
1.45. Class 22 Claimant: FDIC.
1.46. Class 23 Claimant: Valley Land.
1.47. Class 24 Claimant: Valley Land.
1.48. Class 25 Claimant: Sacramento Savings.
1.49. Class 26 Claimant: RTC.
1.50. Class 27 Claimant: RTC.
1.51. Class 28 Claimant(s): The holder(s) of Allowed
Unsecured Claims less than, equal to, or voluntarily reduced by the
holder thereof to $25,000.00.
1.52. Class 29 Claimant(s): The holder(s) of Allowed
Unsecured Claims other than Claims included in Class 28.
1.53. Class 30 Claimants: CCDI, CCI and CMIF.
1.54. Class 31 Claimants: The members of the class
represented by the Daniels Plaintiffs in the Daniels Litigation and
all other claims related thereto.
1.55. Class 32 Claimants: The Stockholders (Equity
Security Holders) of the Debtor.
1.56. CMIF: CMIF, Inc., a California corporation, which
is a wholly owned subsidiary of CCI. This entity's unsecured claim
against the Debtor consists of two unsecured promissory notes dated
August 31, 1987 and July 10, 1990 and have been classified as a
Class 30 Claim.
1.57. Confirmation: The entry by the Bankruptcy Court of
an order confirming this Plan.
1.58. Confirmation Date: The date upon which the
Confirmation Order is entered by the Clerk on the Court docket.
1.59. Confirmation Order: The order entered by the Court
confirming the Plan.
1.60. Cordova Retail Center: Refers to approximately 1.1
acres of real property owned by the Debtor which have been improved
by a single story multi-tenant retail building, located at 11088
Olson Drive just outside the City of Sacramento in Rancho Cordova,
County of Sacramento, California. A more detailed description of
this property appears in Section VIII in the Disclosure Statement.
1.61. Cordova Station: Refers to approximately 13 acres
of undeveloped real property owned by the Debtor located on Highway
50 at Zinfadel Drive and Progress Court just outside the City of
Sacramento in Rancho Cordova, County of Sacramento, California. A
more detailed description of this property appears in Section VIII
in the Disclosure Statement.
1.62. Court: The United States Bankruptcy Court for the
Central District of California or such successor court or tribunal
as may hereafter be confirmed or created by lawful authority with
power to confirm reorganization under Chapter 11, Title 11, United
States Code, and all applicable statutes, rules and regulations
pertaining thereto.
1.63. Creditor: A person or entity holding an Allowed
Claim or Claims against the Debtor.
1.64. Credits: Any amounts received on account of the
claim from any source after the Petition Date which are not turned
over to the Debtor.
1.65. Custis: Alvin E. and Betty L. Custis, the holders
of a Claim secured by a first priority deed of trust encumbering a
portion of Alder Creek. This Claim has been classified as the
Class 10 Claim.
1.66. Daniels Litigation: That certain class action which
was dismissed by the United States District Court, Central District
of California, entitled "Shirley Daniels, et al. vs. The Centennial
Group, Inc., et al.," Civil No. 90-2372DT(BX), and that certain
action pending before the Superior Court, County of Orange, State
of California, entitled "Shirley Daniels, et al. vs. The Centennial
Group, Inc., et al.," Case No. 526708.
1.67. Daniels Plaintiffs: The class plaintiffs in the
Daniels Litigation. These parties have been classified as the
holders of the Class 31 Claim.
1.68. Debtor: The Centennial Group, Inc., a Delaware
corporation, Debtor and Debtor-in-Possession in this Chapter 11
Case.
1.69. Department of the Interior and the Colorado River
Indian Tribes: The ground lessors on Moovalya Plaza.
1.70. Development Projects: Truxel 75, Gateway Five West,
Northpointe, and Laguna.
1.71. Disclosure Statement: The Disclosure Statement
prepared by the Debtor as required by Section 1125 of the Code and
approved by an order of the Court.
1.72. Effective Date: The Effective Date of this Plan
shall be the 90th day following the Confirmation Date.
1.73. Equity Security: Common stock in the Debtor or
options for the purchase of same.
1.74. Equity Security Holder: A Stockholder owning common
stock of the Debtor. These parties have been classified as the
holders of Class 32 Claims.
1.75. Estate: The estate created under Section 541 of the
Bankruptcy Code in this Case.
1.76. FDIC: Federal Deposit Insurance Corporation, the
successor to the interest of the Federal Savings & Loan Insurance
Company, the holder of a Claim secured by a first deed of trust
encumbering Northpointe. This Claim has been classified as the
Class 22 Claim.
1.77. First Fidelity: First Fidelity Thrift & Loan
Association, the holder of a Claim secured by a first priority deed
of trust encumbering the Debtor's leasehold interest in Anita
Drive. This Claim has been classified as the Class 7 Claim.
1.78. Foothill: Foothill Capital Corporation, the holder
of a Claim secured by: a first priority deed of trust encumbering
Gateway Five West; a first priority deed of trust encumbering
Truxel 75. This Claim has been classified as the Class 19
Claim.
1.79. Freeway Partners: The successor-in-interest to the
original ground lessor on Anita Drive.
1.80. Gateway Five West: Refers to approximately 369
acres of undeveloped real property owned by the Debtor which is
located within the City of Sacramento, County of Sacramento,
California, approximately four miles outside of the downtown
Sacramento area. A more detailed description of this property
appears in Section VIII in the Disclosure Statement.
1.81. Indenture: Refers to that certain Trust Indenture
Agreement dated as of August 1, 1993, entered into by Norwest Bank
Minnesota, National Association, as Indenture Trustee, and the
Debtor.
1.82. Indenture Trustee: Refers to Norwest Bank
Minnesota, National Association, as Indenture Trustee under the
Indenture.
1.83. Laguna: Refers to approximately 211.9 acres of
undeveloped real property owned by the Debtor located on the
Northwest Corner of State Highway 99 and the Laguna Boulevard
interchange within the City of Elk Grove, County of Sacramento,
California, approximately eleven miles south of the downtown
Sacramento area. A more detailed description of this property
appears in Section VIII in the Disclosure Statement.
1.84. Laguna Business Park: Laguna Business Park Ltd.,
the holder of a disputed Claim secured by a first priority deed of
trust encumbering approximately 197.5 acres of Laguna. This Claim
has been classified as the Class 21 Claim.
1.85. Laguna Community District: Laguna Community
Facilities District Special Tax Bonds, Series 1987, and its
successors in interest. The Laguna Community District relates to
portions of the Debtor's Laguna property in Sacramento County,
California. Included within this Class are all derivative Claims
via direct and overlapping bonded debt to the following entities:
Sacramento County; Sacramento Municipal Utility District;
Sacramento Regional County Sanitation District; Sacramento Yolo
Port District; City of Sacramento; Elk Grove Unified School
District (various issues); Elk Grove Unified School District
Community Facilities District #1; and Laguna Community Facilities
District. This Claim has been classified as the Class 4 Claim.
1.86. Lane: George E. and Virginia L. Lane, the holders
of a Claim secured by a first priority deed of trust encumbering a
portion of Alder Creek. This Claim has been classified as the
Class 11 Claim.
1.87. Mencarini: Shirley Mencarini, the holder of a Claim
secured by a first priority deed of trust encumbering a portion of
Alder Creek. This Claim has been classified as the Class 12 Claim.
1.88. Moovalya Plaza: Refers to a leasehold estate owned
by the Debtor in an approximately 9.55 acre parcel of real property
located in Parker, Arizona, which has been improved by a 87,752
square foot multi-tenant shopping center. A more detailed
description of this property appears in Section VIII in the
Disclosure Statement.
1.89. Morgan: Benjamin F. and Jeanne M. Morgan, the
holders of a Claim secured by a first priority deed of trust
encumbering a portion of Alder Creek. This Claim has been
classified as the Class 13 Claim.
1.90. Mortgage Note(s): Refers to the Certificates of
Participation in Note Proceeds in Respect of 25% Interest Bearing
Notes Maturing December 31, 1996 Secured by First Trust Deeds
(Mortgages) proposed to be issued to Participating Stockholders and
other accredited parties under the Indenture.
1.91. Mott: Ann V. Mott, the holder of a Claim secured by
an all-inclusive purchase money deed of trust encumbering a portion
of Alder Creek. This Claim has been classified as the Class 14
Claim.
1.92. Nimbus Water District: Nimbus Water Assessment
District, the holder of "1915 Act Bonds" which are secured by a
first priority lien encumbering Alder Creek. This Claim has been
classified as the Class 5 Claim.
1.93. NIRT: National Income Realty Trust, the holder of
a Claim secured by a deed of trust encumbering the entirety of
Alder Creek which stands in a first priority position as to certain
portions of Alder Creek, and in a second and third position as to
other portions of this Project. This Claim has been classified as
the Class 17 Claim.
1.94. Northpointe: Refers to approximately 934 acres of
undeveloped real property owned by the Debtor located within the
City of Sacramento, County of Sacramento, California, approximately
four miles outside of the downtown Sacramento area. A more
detailed description of this property appears in Section VIII in
the Disclosure Statement.
1.95. Participating Stockholder: A Stockholder that
purchases certificates in Mortgage Notes under the Indenture.
1.96. Person: Any natural person, corporation,
partnership or legal entity.
1.97. Peterson/Perry: Charles G. Peterson and William O.
Perry, the holders of a contingent Claim secured by a second
priority deed of trust encumbering a portion of Alder Creek. This
Claim has been classified as the Class 18 claim.
1.98. Petition Date: December 13, 1991, the date on which
the Debtor filed its Chapter 11 Petition with the Court.
1.99. Plan: This Second Amended Chapter 11 Plan of
Reorganization, in its entirety and all addenda, exhibits,
schedules, releases and other attachments thereto, as the same may
be amended or supplemented from time to time and any amendment or
modification thereof.
1.100. Projects: The ten properties currently owned or
leased by the Debtor which are listed alphabetically as follows:
Alder Creek
Anita Drive
Centerpointe
Cordova Retail Center
Cordova Station
Gateway Five West
Laguna
Moovalya Plaza
Northpointe
Truxel 75
1.101. Prospectus: The written solicitation by the Debtor
describing the Mortgage Notes pursuant to which Stockholders and
otherss may voluntarily and discretionarily purchase same. A copy
of the Prospectus is attached to the Disclosure Statement as
Exhibit "G."
1.102. Reorganized Debtor: The entity which shall assume
all of the rights and obligations of the Debtor together with title
to and control of the Debtor's assets and liabilities upon
Confirmation, as such rights, obligations, assets and liabilities
are modified in this Plan.
1.103. RTC: The Resolution Trust Corporation, in its
capacity as receiver for Lincoln Savings & Loan Association, F.A.,
the holder of a Claim secured by a first priority deed of trust
encumbering Centerpointe. This Claim has been classified as the
Class 26 claim. In addition, the Resolution Trust Corporation, in
its capacity as receiver for Lincoln Savings & Loan Association,
F.A., is also the holder of a separate Claim secured by a second
priority deed of trust encumbering Centerpointe. This Claim has
been classified as the Class 27 Claim.
1.104. Sacramento Savings: Sacramento Savings Bank, the
holder of a Claim secured by (i) a second priority lien encumbering
Gateway Five West, Truxel 75, and (ii) a first priority lien on
approximately sixteen acres of Laguna. This Claim has been
classified as the Class 20 Claim. In addition, Sacramento Savings
is also the holder of a separate Claim secured by a first priority
lien encumbering Cordova Station. This Claim has been classified
as the Class 25 Claim. Sacramento Savings also holds disputed
Unsecured Claims.
1.105. Stockholder: The holder of record as of July 15,
1993 of an Equity Security (common stock) of the Debtor. These
parties have been classified as the holders of Class 32 Claims.
1.106. Stockholders' Committee: The committee of
Stockholders appointed by the Office of the United States Trustee.
1.107. Smith: William A. and Alice G. Smith, the holders
of a Claim secured by an all-inclusive purchase money deed of trust
encumbering a portion of Alder Creek. This Claim has been
classified as the Class 15 Claim.
1.108. Truxel 75: Refers to approximately 75 acres of
undeveloped real property owned by the Debtor located within the
City of Sacramento, County of Sacramento, California, approximately
four miles outside of the downtown Sacramento area. A more
detailed description of this property appears in Section VIII in
the Disclosure Statement.
1.109. Unclassified Claims: The allowed amount of:
(i) all administrative expenses of the Debtor's
Chapter 11 case, allowed pursuant to Section 503(b) of the Code,
and
(ii) all Allowed, Unsecured Claims entitled to
priority pursuant to Section 507(a)(1), (3), (4) and (6) of the
Code for wages, salaries, vacation, severance, sick pay or
commissions.
1.110. Unsecured Claims: The Allowed Amounts of those
Claims against the Debtor for which there are no assets of the
Debtor serving as security, but not including any priority Claims.
These Claims have been classified as the Class 28 and 29 Claims.
1.111. Unsecured Creditors: Creditors holding Allowed,
Unsecured Claims against the Debtor for which there are no assets
of the Debtor serving as security, but not including priority
Claims.
1.112. Unsecured Creditors' Committee: The official
committee of creditors holding unsecured claims appointed by the
Office of the United States Trustee.
1.113. Valley Land: Valley Land Company Investors I.L.P.,
the holder of Claims secured by second and third priority deeds of
trust securing purchase money notes encumbering Northpointe. These
Claims have been classified in Classes 23 and 24 respectively.
1.114. Wilcox: Wallace R. and Dorothy M. Wilcox, the
holders of a Claim secured by a first priority deed of trust
encumbering a portion of Alder Creek. This Claim has been
classified as the Class 16 Claim.
ARTICLE II
Administrative Expenses and
Unclassified Claims
2.01. Unless the holder of a particular Claim agrees
otherwise, all Allowed Administrative Claims and Allowed Priority
Claims shall be paid in full, in cash, on the Effective Date.
2.02. The holders of Allowed Claims described by Section
507(a)(7) of the Bankruptcy Code, i.e., unsecured priority tax
claims, shall receive deferred cash payments equal to the value of
their Allowed Claims as of the Effective Date payable as follows:
From and after the Effective Date these claims shall bear interest
at the rate of seven percent (7%) per annum. The balance owed on
said claims shall be paid in thirty-six (36) equal monthly
installments of principal and interest, with the first payment
being due on the fifteenth (15th) day of the first full month
following the Effective Date, and the last payment being due on the
fifteenth (15th) day of after the thirty-seventh (37th) full month
after the Effective Date.
ARTICLE III
Classification of Claims and Interests
For purposes of satisfying Debtor's obligations under the
Plan, claims and interests are classified as follows:
3.01. Class 1: Class 1 is comprised of all real property
tax claims held by the County of Sacramento, California, which are
secured by statutory liens on one or more of the Projects within
that County. Each legally distinct parcel of real property owned
by the Debtor (having a distinct Assessor's Parcel Number) gives
rise to a separate and distinct Claim in favor of the Class 1
Claimant. The aggregate balance of these tax claims as of June 30,
1993 was approximately $5,515,000.
3.02. Class 2: Class 2 is comprised of all personal
property tax claims held by the County of La Paz, Arizona, which
are secured by statutory liens on personal property at Moovalya
Plaza. The aggregate balance of these tax claims as of June 30,
1993 was approximately $487,000.
3.03. Class 3: Class 3 is comprised of the Allowed
Secured Claim held by the City of Sacramento. This Claim arises
from the balance due under certain "1915 Act Bonds" which are
secured by a first priority lien encumbering Truxel 75. The
arrearage owed on these bonds as of June 30, 1993 was approximately
$398,035.
3.04. Class 4: Class 4 is comprised of the Allowed
Secured Claim held by the Laguna Community District. This Claim
arises from the balance due on certain Mello-Roos Bonds issued by
the Class 4 Claimant in favor of the Debtor which are secured by a
statutory lien on portions of Laguna. The arrearage owed on this
Claim as of June 30, 1993 was approximately $1,812,000.
3.05. Class 5: Class 5 is comprised of the Allowed
Secured Claim held by the Nimbus Water District. This Claim arises
from the balance due under certain "1915 Act Bonds" which are
secured by a statutory lien encumbering Alder Creek. The arrearage
owed on this Claim as of June 30, 1993 will be approximately
$18,000.
3.06. Class 6: Class 6 is comprised of the Allowed
Secured Claim held by Bank of America. This Claim arises from the
balance due under that certain promissory note dated November 7,
1988, originally executed by the Debtor in favor of Bank of
America. This Claim is secured by a first priority deed of trust
encumbering the Cordova Retail Center. The balance owed on this
Claim as of June 30, 1993 was approximately $875,000.
3.07. Class 7: Class 7 is comprised of the Allowed
Secured Claim held by First Fidelity. This Claim arises from the
balance due under that certain promissory note dated November 7,
1990, originally executed by the Debtor in favor of First Fidelity.
This Claim is secured by a first priority deed of trust encumbering
the Debtor's leasehold interest in Anita Drive. The balance owed
on this claim as of June 30, 1993 was approximately $840,000.
3.08. Class 8: Class 8 is comprised of the Allowed
Secured Claim held by Bank of America. This Claim arises from the
balance due under that certain promissory note dated July 26, 1985,
originally executed by Centennial Capital Fund, a California
limited partnership in favor of Security Pacific National Bank.
This Claim is secured by a first priority deed of trust encumbering
the Debtor's leasehold interest in Moovalya Plaza. The balance
owed on this Claim as of June 30, 1993 was approximately
$2,163,000.
3.09. Class 9: Class 9 is comprised of the Allowed
Secured Claim held by Brewer. This Claim arises from the balance
due under that certain promissory note dated September 6, 1983,
originally executed by Sparks Properties, Inc., a California
corporation, in favor of Brewer. This Claim is secured by a first
priority deed of trust encumbering a portion of Alder Creek. The
balance owed on this Claim as of June 30, 1993 was approximately
$419,000.
3.10. Class 10: Class 10 is comprised of the Allowed
Secured Claim held by Custis. This Claim arises from the balance
due under that certain promissory note dated October 11, 1983,
originally executed by Sparks Properties, Inc., a California
corporation, in favor of Custis. This Claim is secured by a first
priority deed of trust encumbering a portion of Alder Creek. The
balance owed on this Claim as of June 30, 1993 was approximately
$186,000.
Class 11: Class 11 is comprised of the Allowed
Secured Claim held by Lane. This Claim arises from the balance due
under that certain promissory note dated October 5, 1983,
originally executed by Sparks Properties, Inc., a California
corporation, in favor of Lane. This Claim is secured by a first
priority deed of trust encumbering a portion of Alder Creek. The
balance owed on this Claim as of June 30, 1993 was approximately
$422,000.
Class 12: Class 12 is comprised of the Allowed
Secured Claim held by Mencarini. This Claim arises from the
balance due under that certain promissory note dated February 13,
1984, originally executed by Sparks Properties, Inc., a California
corporation, in favor of Exchange Intermediary, Inc., a California
corporation. This Claim is secured by a first priority deed of
trust encumbering a portion of Alder Creek. The balance owed on
this Claim as of June 30, 1993 was approximately $1,149,000.
Class 13: Class 13 is comprised of the Allowed
Secured Claim held by Morgan. This Claim arises from the balance
due under that certain promissory note dated August 2, 1983,
originally executed by Sparks Properties, Inc., a California
corporation, in favor of Morgan. This Claim is secured by a first
priority deed of trust encumbering a portion of Alder Creek. The
balance owed on this Claim as of June 30, 1993 was approximately
$389,000.
Class 14: Class 14 is comprised of the Allowed
Secured Claim held by Mott. This Claim arises from the balance due
under that certain all-inclusive purchase money promissory note
dated April 26, 1983, originally executed by Val Ban Corp., a
California corporation in favor of Mott. This Claim is secured by
an all-inclusive deed of trust encumbering a portion of Alder
Creek. The balance owed on this Claim as of June 30, 1993 was
approximately $176,000.
Class 15: Class 15 is comprised of the Allowed
Secured Claim held by Smith. This Claim arises from the balance
due under that certain all-inclusive purchase money promissory note
dated June 16, 1983, originally executed by Exchange Intermediary,
Inc., a California corporation in favor of Smith. This Claim is
secured by an all-inclusive purchase money deed of trust
encumbering a portion of Alder Creek. The balance owed on this
Claim as of June 30, 1993 was approximately $678,000.
Class 16: Class 16 is comprised of the Allowed
Secured Claim held by Wilcox. This Claim arises from the balance
due under that certain promissory note dated October 17, 1983,
originally executed by Sparks Properties, Inc., a California
corporation, in favor of Wilcox. This Claim is secured by a first
priority deed of trust encumbering a portion of Alder Creek. The
balance owed on this Claim as of June 30, 1993 was approximately
$163,000.
Class 17: Class 17 is comprised of the Allowed
Secured Claim held by NIRT. This Claim arises from the balance due
under that certain promissory note dated February 20, 1985,
originally executed by Centennial Development Fund IV in favor of
Sparks Properties, Inc., a California corporation. This Claim is
secured by a first priority deed of trust on part of Alder Creek
and a second priority deed of trust on the balance of Alder Creek
junior in priority to Claimants in Classes 9 through 16 described
hereinabove. The balance owed on this Claim as of June 30, 1993
was approximately $1,493,000.
Class 18: Class 18 is comprised of the contingent
Allowed Secured Claim held by Peterson/Perry. This contingent
Claim arises from the obligation due under that certain Alder Creek
Auto Center Agreement of Purchase and Sale dated January 28, 1991,
originally executed by the Debtor in favor of Peterson/Perry. The
maximum balance potentially due on this Claim as of June 30, 1993
was approximately $962,000.
Class 19: Class 19 is comprised of the Allowed
Secured Claim held by Foothill. This Claim arises from the balance
due under that certain promissory note dated February 28, 1990,
originally executed by the Debtor in favor of Foothill. This Claim
is secured by first priority deeds of trust encumbering Gateway
Five West and Truxel 75. The balance owed on this Claim as of June
30, 1993 was approximately $7,288,000.
Class 20: The Class 20 Claim is comprised of the
Allowed Secured Claim held by Sacramento Savings. This Claim
arises from the balance due under that certain irrevocable standby
letter of credit dated June 15, 1988, originally executed by the
Debtor in favor of Sacramento Savings. This Claim is secured by a
second priority deed of trust encumbering Truxel 75 and Gateway
Five West and is junior in priority to the Class 19 Claim of
Foothill with respect to Truxel 75 and Gateway Five West, and is
also secured by a first priority deed of trust encumbering a
portion of Laguna. The balance owed on this Claim as of June 30,
1993 was approximately $860,000.
Class 21: Class 21 is comprised of the disputed
Claim held by Laguna Business Park. This Claim arises from the
balance due under that certain promissory note dated May 29, 1987,
originally executed by Centennial Development Fund VI, a California
limited partnership in favor of Laguna Business Park. This Claim
is secured by a first priority deed of trust encumbering
approximately 197.5 acres of Laguna. The balance claimed to be
owed on this Claim as of June 30, 1993 was approximately
$8,684,000.
Class 22: Class 22 is comprised of the Allowed
Secured Claim held by the FDIC. This Claim arises from the balance
due under that certain promissory note dated June 12, 1986,
originally executed by Richard J. Benvenuti, Joseph Benvenuti and
Centennial Development Fund V, a California limited partnership, in
favor of the Federal Savings & Loan Insurance Corporation. This
Claim is secured by a first priority deed of trust on Northpointe.
The balance owed on this Claim as of June 30, 1993 was
approximately $16,813,000.
Class 23: Class 23 is comprised of the Allowed
Secured Claim held by Valley Land. This Claim arises from the
balance due under that certain purchase money promissory note dated
April 21, 1986 originally executed by Centennial Development Fund
V, a California limited partnership, in favor of RJB Interests, a
California general partnership. This Claim is secured by a second
deed of trust encumbering Northpointe, junior in priority to the
Class 22 Claim of the FDIC. The balance owed on this Claim as of
June 30, 1993 was approximately $2,654,000.
Class 24: Class 24 is comprised of the Allowed
Secured Claim held by Valley Land. This Claim arises from the
balance due under that certain purchase money promissory note dated
May 20, 1986 originally executed by Centennial Development Fund V,
a California limited partnership, in favor of RJB Interests, a
California general partnership. This Claim is secured by a third
deed of trust encumbering Northpointe, junior in priority to the
Class 22 Claim of the FDIC and the Class 23 Claim of Valley Land.
The balance owed on this Claim as of June 30, 1992 was
approximately $353,000.
Class 25: Class 25 is comprised of the Allowed
Secured Claim held by Sacramento Savings. This Claim arises from
the balance due under that certain promissory note dated August 14,
1987, originally executed by the Debtor in favor of Sacramento
Savings. This Claim is secured by a first priority deed of trust
encumbering Cordova Station. The balance owed on this Claim as of
June 30, 1993 was approximately $3,520,000.
Class 26: Class 26 is comprised of the Allowed
Secured Claim held by RTC. This Claim arises from the balance due
under that certain promissory note dated July 31, 1984, originally
executed by Centennial Development Fund IV in favor of Lincoln
Savings & Loan. This Claim is secured by a first priority deed of
trust encumbering Centerpointe. The balance owed on this Claim as
of June 30, 1993 was approximately $13,037,000.
Class 27: Class 27 is comprised of the Allowed
Secured Claim held by RTC. This Claim arises from the balance due
under that certain promissory note dated December 27, 1988,
originally executed by Centennial Development Fund IV in favor of
Lincoln Savings & Loan Association. This Claim is secured by a
second priority deed of trust encumbering Centerpointe. The
balance owed on this Claim as of June 30, 1993 was approximately
$3,770,000.
Class 28: Class 28 is comprised of holders of
prepetition Allowed Unsecured Claims that are less than or equal to
Twenty-Five Thousand Dollars ($25,000) in amount each or, which
are, at the election of the holder, reduced to Twenty-Five Thousand
Dollars ($25,000) by submission of a written election prior to the
date fixed by the Court for such election. The Debtor estimates
that this amount will be approximately $120,000.
Class 29: Class 29 is comprised of holders of
prepetition Allowed Unsecured Claims other than Claims included in
Class 28. The Debtor estimates that Allowed Unsecured Claims in
Class 29 will total approximately $4,270,000.
Class 30: Class 30 is comprised of the pre-petition
Allowed Unsecured Claims of CCDI, CCI and CMIF. The balance owed
on these Claims as of the Petition Date was approximately
$7,786,000.
Class 31: Class 31 is comprised of the members of
the class represented by the Daniels Plaintiffs in the Daniels
Litigation and all other claims related thereto.
Class 32: Class 32 is comprised of the Stockholders
of the Debtor.
For ease of reference, categorized alphabetically by Project,
Secured Claims are classified under the Plan as follows:
Alder Creek
Class 1 (County of Sacramento)
Class 5 (Nimbus Water District)
Class 9 (Brewer)
Class 10 (Custis)
Class 11 (Lane)
Class 12 (Mencarini)
Class 13 (Morgan)
Class 14 (Mott)
Class 15 (Smith)
Class 16 (Wilcox)
Class 17 (NIRT)
Class 18 (Peterson/Perry)
Anita Drive
Class 7 (First Fidelity)
Centerpointe
Class 26 (RTC)
Class 27 (RTC)
Cordova Retail Center
Class 1 (County of Sacramento)
Class 6 (Bank of America)
Cordova Station
Class 25 (Sacramento Savings)
Gateway Five West
Class 1 (County of Sacramento)
Class 19 (Foothill)
Class 20 (Sacramento Savings)
Laguna
Class 1 (County of Sacramento)
Class 4 (Laguna Com. Fac. Dist.)
Class 20 (Sacramento Savings)
Class 21 (Laguna Business Park)
Moovalya Plaza
Class 2 (County of LaPaz)
Class 8 (Bank of America)
Northpointe
Class 1 (County of Sacramento)
Class 22 (FDIC)
Class 23 (Valley Land)
Class 24 (Valley Land)
Truxel 75
Class 1 (County of Sacramento)
Class 3 (City of Sacramento)
Class 19 (Foothill)
Class 20 (Sacramento Savings)
ARTICLE IV
Treatment of Unimpaired Classes
The following Classes are not impaired under the Plan as that
term is defined in 11 U.S.C. Section 1124 and by relevant case law:
4.01. Class 18: The Class 18 Claimant shall retain the
priority of its deed of trust on a portion of Alder Creek as
security for the balance owed on its contingent Allowed Secured
Claim, and it shall retain all of its other rights to payment as
provided in the Alder Creek Purchase and Sale Agreement.
4.02. Class 25: The Debtor has determined that it is not
in the best interests of creditors that Cordova Station be
retained. The Debtor will consent to relief from stay in order for
the Class 25 Claimant to foreclose pursuant to remedies available
under state law.
4.03. Class 26: The Debtor has determined that it is not
in the best interests of creditors that Centerpointe be retained.
The Debtor will consent to relief from stay in order for the Class
26 Claimant to foreclose pursuant to remedies available under state
law.
4.04. Class 27: The Debtor has determined that it is not
in the best interests of creditors that Centerpointe be retained.
The Debtor will consent to relief from stay in order for the Class
27 Claimant to foreclose pursuant to remedies available under state
law.
4.05. Class 31: The Debtor believes that the Court will
determine that the treatment of Class 31 under the Plan does not
impair said Class under Section 1124 of the Bankruptcy Code.
4.06. Class 32: The Stockholders of the Debtor are not
impaired under the Plan.
4.07. Class 22: The Debtor does not seek to impair the
rights of the Class 22 Claimant under the Plan. The FDIC has
asserted a Class 29 general unsecured claim in the amount of
$8,291,520.90 by amending its Proof of Claim on or about January 7,
1994. The Debtor intends to object to this Claim. Classification
of the FDIC's claim in Class 22 is without prejudice to its
inclusion in Class 29. Notwithstanding Article III, Section 3.29
hereof, the effect of this modification is that the Class 29 Claims
may be increased by the amount of the FDIC's amended claim. The
Debtor will reserve sufficient funds to pay a pro rata distribution
to the FDIC pending resolution of any objections to the FDIC's
Class 29 Claim.
4.08. Class 23: The Debtor does not seek to impair the
rights of the Class 23 Claimant under the Plan.
4.09. Class 24: The Debtor does not seek to impair the
rights of the Class 24 Claimant under the Plan.
4.10. Class 3: The Debtor has determined that it is not
in the best interests of creditors that Truxel 75 and Gateway Five
West be retained. The Debtor will consent to relief from stay in
order for the Class 3 Claimant to foreclose pursuant to remedies
available under state law. The Debtor does not seek to impair the
rights of the Class 3 Claimant under the Plan.
4.11. Class 19: The Debtor has determined that it is not
in the best interests of creditors that Truxel 75 and Gateway Five
West be retained. The Debtor will consent to relief from stay in
order for the Class 19 Claimant to foreclose pursuant to remedies
available under state law. The Debtor does not seek to impair the
rights of the Class 19 Claimant under the Plan.
ARTICLE V
Treatment of Impaired Classes
5.01. Class 1: The Class 1 Claimant shall retain the
priority of its existing liens on all of the Projects located in
the County of Sacramento as security for the balance owed to said
Claimant for unpaid real property taxes. On the Effective Date,
the Debtor shall make a separate election with respect to each of
the Claims referenced by a distinct Assessor's Parcel Number held
by the Class 1 Claimant and shall so notify the Class 1 Claimant in
writing. Thereafter, the Debtor will commence payment of sums owed
pursuant to the five-year statutory installment redemption right
available to the Debtor as set forth in the California Revenue and
Taxation Code. To the extent that a tax delinquency may exist
which is not subject to the five-year statutory installment
redemption right available to the Debtor under applicable
California law, such tax delinquency is to be cured over a period
of five (5) years from the Effective Date of the Plan in annual
amounts equal to one-fifth of the amount of such tax delinquency.
The first of the five (5) annual payments to be made pursuant to
this Section shall be made on or before April 10, 1994, and on or
before April 10 of the four (4) succeeding years thereafter. All
tax arrearages payable to the Class 1 Claimant shall bear interest
at a fixed annual rate determined by adding three percentage points
(3%) to the yield on five year United States Treasury Bonds as of
the Confirmation Date. No portion of the Allowed Secured Claim
shall include attorneys' fees, default interest, late penalties or
similar charges or costs of any kind, accrued or incurred
post-petition, unless the same have been approved by the Court in
accordance with the procedure set forth in Article IX, Section 9.01
hereof.
5.02. Class 2: The Class 2 Claimant shall retain its
first priority lien on personal property at Moovalya Plaza as
security for any unpaid personal property taxes, together with
accrued statutory interest thereon, owed as of the Effective Date.
Debtor will pay taxes accruing after the Confirmation Date on a
current basis. From the Effective Date to the date the Class 2
Claimant's Allowed Secured Claim is paid in full, the balance
outstanding shall bear interest at a fixed annual rate determined
by adding three percentage points (3%) to the yield on five (5)
year United States Treasury Bonds as of the Confirmation Date. No
portion of the Allowed Secured Claim shall include attorneys' fees,
default interest, late penalties or similar charges or costs of any
kind, accrued or incurred post-petition, unless the same have been
approved by the Court in accordance with the procedure set forth in
Article IX, Section 9.01 hereof.
By December 8, 1993, the Class 2 Claimant shall have been paid
$78,573.50 by the Debtor. After the Confirmation Date, the Class
2 Claimant shall have the remaining amount owing for unpaid
personal property taxes cured over a period of five (5) years from
the Effective Date of the Plan. Each annual installment shall pay
one fifth of such tax delinquency, together with interest thereon,
as provided for hereinabove. The first of the five (5) annual
payments to be made pursuant to this Section shall be made on or
before December 10, 1994.
In the event that the Debtor fails to make the payment due on
the Class 2 Claimant's Allowed Secured Claim in accordance with the
above payment schedule, and such nonpayment remains uncured for a
period of ten (10) days after written notice of said nonpayment is
transmitted to the Reorganized Debtor, then the Class 2 Claimant
may pursue any and all remedies available to the same under state
law and the Bankruptcy Code.
Any transfer of title to Moovalya Plaza to any third party
after the Confirmation Date shall require the prior written consent
of the Class 2 Claimant, unless the terms of such transfer provide
for full payment of the tax delinquency, together with accrued
interest thereon, at or before the transfer of title. The Class 2
Claimant's consent will not be given for any transfer to a
sovereign entity and shall not be unreasonably withheld if (1) the
proposed transferee is creditworthy, and (2) the proposed
transferee undertakes not to transfer title without the Class 2
Claimant's prior written consent; and
5.03. Class 3: (Intentionally Deleted)
5.04. Class 4: The Class 4 Claimant shall retain the
priority of its lien on portions of Laguna as security for the
balance owed on its Allowed Secured Claim, including arrearages and
installments which are not yet due or delinquent.
1. Pre-Petition Secured Claim
Any unpaid portion of the Pre-Petition Secured Claim existing
as of the Confirmation Date shall be paid in full, inclusive of
interest at the annual fixed rate of 3% over the 7 year U.S.
Treasury Bond Rate as reported on the Confirmation Date (the
"Delinquencies"), in equal monthly installments to commence on the
Effective Date over a period of 84 months after the Effective Date
with a balloon payment equal to any unpaid Delinquencies due on the
first day of the 84th month. For purposes of calculating the
monthly installments, the Delinquencies shall be deemed amortized
over a 30 year period. Notwithstanding the foregoing, any pro rata
Delinquencies then remaining against any parcel of property shall
be paid in full by Debtor upon the sale and/or transfer of such
property by the Debtor.
2. Post-Petition/Pre Confirmation Secured Claim.
After the Confirmation Date, the Class 4 Claimant shall be
paid for obligations arising between the Petition Date and the
Confirmation Date, in full, on the earlier of (i) the date that the
pending sale of the 62.86 acres of the Laguna Project to Lewis
Homes of California (or an alternative purchaser) closes escrow, or
(ii) twelve (12) months following the Effective Date.
3. Post-Confirmation Secured Claim
Taxes due and payable on or after the Confirmation Date shall
continue to be assessed, levied, and/or secured by or on behalf of
the Class 4 Claimant free from any constraints by the Bankruptcy
Code automatic stay (11 U.S.C. Section 362) and shall be paid by
Debtor on the later of (i) the Effective Date, or (ii) the date
such tax is due and payable as determined by reference to
applicable California statutes. Notwithstanding the foregoing,
taxes which are due and payable on or after the Confirmation Date
shall accrue interest and penalties at the applicable statutory
rates until paid in full.
4. Rights Upon Default
In the event that the Debtor fails (i) to make any payment
called for hereunder in a timely fashion, and such nonpayment
remains uncured for a period of ten (10) days after written notice
of said nonpayment is transmitted to the Reorganized Debtor, or
(ii) fails to confirm its Plan prior to March 31, 1994, then the
Class 4 Claimant may pursue any and all remedies available under
applicable State and/or Bankruptcy Law, free from the constraints
of the Automatic Stay or any other restrictions which may exist in
the Plan.
5. Elk Grove Settlement Agreement
Nothwithstanding the foregoing, the terms and conditions of
that certain settlement agreement (the "Settlement Agreement")
reached by and between Debtor on the one hand, and Elk Grove
Unified School District and Elk Grove Unified School District
Community Facilities District No. 1 (hereinafter referenced jointly
as "Elk Grove") on the other, shall supersede the provisions of
this Section, and shall govern Elk Grove's treatment hereunder, in
the event any dispute arises over the terms of Elk Grove's
treatment under this or any subsequently modified Plan.
5.05. Class 5: The Class 5 Claimant shall retain the
priority of its lien on Alder Creek as security for the balance
owed on its Allowed Secured Claim. Current payments due on or
about December 10, 1993 and thereafter shall be paid in accordance
with the terms of the underlying "1915 Act Bonds." The Allowed
Secured Claim (representing arrearages only) shall be paid in cash,
in full, on the Effective Date. No portion of the Allowed Secured
Claim shall include attorneys' fees, default interest, late
penalties or similar charges or costs of any kind, accrued or
incurred post-petition, unless the same have been approved by the
Court in accordance with the procedure set forth in Article IX,
Section 9.01 hereof.
5.06. Class 6: The Debtor and the Class 6 Claimant entered
into that certain Settlement Agreement approved by the Bankruptcy
Court on February 14, 1994. The Debtor hereby adopts in this Plan
by reference the terms and conditions of the Sixth Modification
Agreement (Long Form) pertaining to the Debtor's Cordova Retail
Center Project referred to in the Settlement Agreement. A copy of
same is attached hereto as Exhibit "1".
5.07. Class 7: The Class 7 Claimant shall retain its
priority of its deed of trust on the Debtor's leasehold interest in
Anita Drive as security for the balance owed on its Allowed Secured
Claim. From the Confirmation Date to the date the Class 7
Claimant's Allowed Secured Claim is paid in full, the balance
outstanding shall bear interest at a fixed annual rate of ten
percent (10%) per annum. No portion of the Allowed Secured Claim
shall include attorneys' fees, default interest, late penalties or
similar charges or costs of any kind, accrued or incurred
post-petition, unless the same have been approved by the Court in
accordance with the procedure set forth in Article IX, Section 9.01
hereof.
After the Confirmation Date,the Class 7 Claimant shall receive
monthly payments of principal and interest on its Allowed Secured
Claim pursuant to a fifteen year amortization schedule. The first
such payment shall be due and payable on the first (1st) day of the
month following the Confirmation Date and payments shall continue
to be made on the first (1st) day of each and every month
thereafter. The entire balance due and owing on the Class 7
Claimant's Allowed Secured Claim shall be paid in full by on or
before the first (1st) day of the sixtieth (60th) full month after
the Effective Date.
In the event that the Debtor (or any subsequent owner of Anita
Drive) fails to make the payment due on the Class 7 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor, then the Class 7 Claimant may pursue any
and all remedies available to the same under state law and the
Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to its leasehold interest in Anita Drive to any third party after
the Confirmation Date, and this transfer shall not confer upon the
Class 7 Claimant the right to accelerate the payment of its Claim,
or to change, alter or amend the treatment thereof as provided
herein. The proposed third party transferee may, at its option, in
connection with the contemplated transfer of title and assumption
of the leasehold interest, assume the then outstanding contractual
obligations of the Debtor with said Claimant with the Debtor
thereby released from liability to said Claimant (1) by providing
the Claimant with such financial information as may be reasonably
requested to demonstrate the financial ability of such third party
transferee to timely perform said contractual obligations of the
Debtor, with the Consent of the Claimant to assumption of the
Debtor's contractual obligations not thereafter being unreasonably
withheld, (2) by paying to the Claimant after its consent to
assumption is obtained but prior to the recordation of the transfer
of title a one-time "assumption fee", in cash, equal to one percent
(1%) of the then outstanding balance of principal and accrued
interest owing to said Claimant, and (3) by assumption of the
leasehold interest; and
5.08. Class 8: The Debtor and the Class 8 Claimant entered
into that certain Settlement Agreement approved by the Bankruptcy
Court on February 14, 1994. The Debtor hereby adopts in this Plan
by reference the terms and conditions of the Fourth Modification
Agreement (Long Form) pertaining to the Debtor's Moovalya Plaza
Project referred to in the Settlement Agreement. A copy of same is
attached hereto as Exhibit "2".
5.09. Class 9: The Class 9 Claimant shall retain the
priority of its deed of trust on Alder Creek as security for the
balance owed on its Allowed Secured Claim. From the Confirmation
Date to the date the Class 9 Claimant's Allowed Secured Claim is
paid in full, the balance outstanding shall bear interest at a
fixed annual rate determined by adding three percentage points (3%)
to the yield on seven year United States Treasury Bonds as of the
Confirmation Date. No portion of the Allowed Secured Claim shall
include attorneys' fees, default interest, late penalties or
similar charges or costs of any kind, accrued or incurred
post-petition, unless the same have been approved by the Court in
accordance with the procedure set forth in Article IX, Section 9.01
hereof.
After the Confirmation Date, the Class 9 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 9 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 9 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 9 Allowed Secured Claim by a fraction, the numerator of which
is the gross acreage of the Release Parcel and the denominator of
which is the gross acreage of all the Property originally covered
under the Trust Deed (the "Par Amount"), and multiplying the Par
Amount by 120%. Release Price payments shall be applied as a
principal reduction against the Class 9 Allowed Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 9 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 9 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 9 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 10: The Class 10 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 10 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the Confirmation Date, the Class 10 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 10 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 10 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 10 Allowed Secured Claim by a fraction, the numerator of
which is the gross acreage of the Release Parcel and the
denominator of which is the gross acreage of all the Property
originally covered under the Trust Deed (the "Par Amount"), and
multiplying the Par Amount by 120%. Release Price payments shall
be applied as a principal reduction against the Class 10 Allowed
Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 10 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 10 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 10 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 11: The Class 11 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 11 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the Confirmation Date, the Class 11 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 11 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 11 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to all other
Release Parcels shall be the amount determined by multiplying the
outstanding principal balance of the Class 11 Allowed Secured Claim
by a fraction, the numerator of which is the gross acreage of the
Release Parcel and the denominator of which is the gross acreage of
all the Property originally covered under the Trust Deed (the "Par
Amount"), and multiplying the Par Amount by 120%. Release Price
payments shall be applied as a principal reduction against the
Class 11 Allowed Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 11 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 11 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 11 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 12: The Class 12 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 12 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the Confirmation Date, the Class 12 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 12 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 12 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 12 Allowed Secured Claim by a fraction, the numerator of
which is the gross acreage of the Release Parcel and the
denominator of which is the gross acreage of all the Property
originally covered under the Trust Deed (the "Par Amount"), and
multiplying the Par Amount by 120%. Release Price payments shall
be applied as a principal reduction against the Class 12 Allowed
Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 12 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 12 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 12 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 13: The Class 13 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 13 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the Confirmation Date, the Class 13 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 13 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 13 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 13 Allowed Secured Claim by a fraction, the numerator of
which is the gross acreage of the Release Parcel and the
denominator of which is the gross acreage of all the Property
originally covered under the Trust Deed (the "Par Amount"), and
multiplying the Par Amount by 120%. Release Price payments shall
be applied as a principal reduction against the Class 13 Allowed
Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 13 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 13 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 13 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 14: The Class 14 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 14 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the confirmation Date, the Class 14 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 14 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 14 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 14 Allowed Secured Claim by a fraction, the numerator of
which is the gross acreage of the Release Parcel and the
denominator of which is the gross acreage of all the Property
originally covered under the Trust Deed (the "Par Amount"), and
multiplying the Par Amount by 120%. Release Price payments shall
be applied as a principal reduction against the Class 14 Allowed
Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 14 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 14 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 14 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 15: The Class 15 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 15 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the Confirmation Date, the Class 15 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 15 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 15 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 15 Allowed Secured Claim by a fraction, the numerator of
which is the gross acreage of the Release Parcel and the
denominator of which is the gross acreage of all the Property
originally covered under the Trust Deed (the "Par Amount"), and
multiplying the Par Amount by 120%. Release Price payments shall
be applied as a principal reduction against the Class 15 Allowed
Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 15 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 15 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 15 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 16: The Class 16 Claimant shall retain the priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. From the Confirmation Date to the
date the Class 16 Claimant's Allowed Secured Claim is paid in full,
the balance outstanding shall bear interest at a fixed annual rate
determined by adding three percentage points (3%) to the yield on
seven year United States Treasury Bonds as of the Confirmation
Date. No portion of the Allowed Secured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
After the Confirmation Date, the Class 16 Claimant shall
receive payments on its Allowed Secured Claim equal to the interest
accruing on such claim after the Confirmation Date. The first such
payment shall be due and payable on the first (1st) day of October,
1993, unless the Confirmation Date is after September 1, 1993, in
which event the first such payment shall be due and payable on the
first (1st) day of the month following the Confirmation Date and
like payments shall be due and payable on the first (1st) day of
every third month (calendar quarter) thereafter. The entire
balance due and owing on the Class 16 Claimant's Allowed Secured
Claim shall be paid in full on or before the first (1st) day of the
eighty fourth (84th) full month after the Effective Date.
The Debtor shall be entitled to a partial reconveyance (lien
release) of the deed of trust relating to the Class 16 Allowed
Secured Claim with respect to each legally distinct portion of
Alder Creek (the "Release Parcel") upon payment of a "Release
Price" for the Release Parcel, provided the Debtor has first paid
current all interest under the Note secured by such deed of trust
and provided that no event of default is then continuing with
respect thereto. The Release Price with respect to a Release
Parcel that the Debtor is required, or elects in its reasonable
discretion, to dedicate or sell to a governmental or
quasi-governmental entity or public agency in connection with the
development of the Property or portion thereof, shall be the lesser
of 120% of the Par Amount (as hereafter defined) or the net
proceeds, if any, from such dedication or sale. The Release Price
with respect to all other Release Parcels shall be the amount
determined by multiplying the outstanding principal balance of the
Class 16 Allowed Secured Claim by a fraction, the numerator of
which is the gross acreage of the Release Parcel and the
denominator of which is the gross acreage of all the Property
originally covered under the Trust Deed (the "Par Amount"), and
multiplying the Par Amount by 120%. Release Price payments shall
be applied as a principal reduction against the Class 16 Allowed
Secured Claim.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 16 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor or the subsequent owner thereof, then the
Class 16 Claimant may pursue any and all remedies available to the
same under state law and the Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 16 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title, assume the then outstanding
contractual obligations of the Debtor with said Claimant with the
Debtor thereby released from liability to said Claimant (1) by
providing the Claimant with such financial information as may be
reasonably requested to demonstrate the financial ability of such
third party transferee to timely perform said contractual
obligations of the Debtor, with the consent of the Claimant to
assumption of the Debtor's contractual obligations not thereafter
being unreasonably withheld and (2) by paying to the Claimant after
its consent to assumption is obtained but prior to the recordation
of the transfer of title a one-time "assumption fee," in cash,
equal to one percent (1%) of the then outstanding balance of
principal and accrued interest owing to said Claimant.
Class 17: The Class 17 Claimant shall retain its priority of
its deed of trust on Alder Creek as security for the balance owed
on its Allowed Secured Claim. The provisions in the Class 17
Claimant's deed of trust and side letter dated June 6, 1985
relating to a release price of $32,098.57 per acre upon sales of
parcels within Alder Creek shall remain in effect so long as there
is no default by the Reorganized Debtor under the Plan.
Notwithstanding the foregoing, the release price per acre for any
acreage as to which the Class 17 Claimant holds a first deed of
trust as security will be $50,000.00 per acre for any sale that
occurs prior to the closing of the Ford/Toyota Sale and the Parcels
47, 48, 64 and 66 Sale. The release price for any acreage as to
which the Class 17 Claimant holds a first deed of trust as security
after the closing of the Ford/Toyota Sale and the Parcels 47, 48,
64 and 66 Sale will be in accordance with the deed of trust and
side letter dated June 6, 1985, referenced-above. No portion of
the Allowed Secured Claim shall include attorneys' fees, default
interest, late penalties or similar charges or costs of any kind,
accrued or incurred post-petition, unless the same have been
approved by the Court in accordance with the procedure set forth in
Article IX, Section 9.01 hereof.
From the Confirmation Date until eighteen (18) months after
the Effective Date, the balance outstanding shall bear interest at
a fixed pay rate of 9% (Pay Rate), and will also bear an additional
accrual rate of interest at 15% ("Accrual Rate"). From the
nineteenth (19th) month until the thirty-sixth (36th) month after
the Effective Date, the balance outstanding shall bear interest at
a fixed pay rate of 12% ("Pay Rate 2"), and will also bear an
additional accrual rate of interest at 12% ("Accrual Rate 2").
From the thirty-seventh (37th) month after the Effective Date,the
balance then outstanding shall bear interest at a fixed pay rate of
24% ("Pay Rate 3"). After the Confirmation Date,the Class 17
Claimant shall receive payments on its Allowed Secured Claim equal
to the Pay Rate, Pay Rate 2, and Pay Rate 3 payments on a monthly
basis beginning on the first day of the month after the Effective
Date, and continuing on the first day of each month thereafter
until the balance is paid in full on or before the first day of the
sixtieth (60th) full month after the Effective Date. Any amounts
of Accrual Rate and Accrual Rate 2 interest that has not been
waived as provided for hereinafter will be added to the balance
outstanding at the end of the waiver period, and will be due at
maturity.
From the Confirmation Date until eighteen (18) months after
the Effective Date,the Class 17 Claimant shall waive any amounts of
Accrual Rate interest that has accrued on any principal balance
that has been paid off during the period beginning with the
Confirmation Date and ending with the eighteenth (18th) month after
the Effective Date. From the nineteenth (19th) month after the
Effective Date until the thirty-sixth month after the Effective
Date, the Class 17 Claimant shall waive any amounts of Accrual Rate
2 interest that has accrued on any principal balance that has been
paid off during the period beginning with the nineteenth (19th)
month after the Effective Date until the thirty-sixth (36th) month
after the Effective Date.
In the event that the Debtor (or any subsequent owner of Alder
Creek) fails to make the payment due on the Class 17 Claimant's
Allowed Secured Claim in accordance with the above payment
schedule, and such nonpayment remains uncured for a period of ten
(10) days after written notice of said nonpayment is transmitted to
the Reorganized Debtor, then the Class 17 Claimant may pursue any
and all remedies available to the same under state law and the
Bankruptcy Code.
The Debtor shall have the right to voluntarily transfer title
to Alder Creek to any third party after the Confirmation Date, and
this transfer shall not confer upon the Class 17 Claimant the right
to accelerate the payment of its Claim, or to change, alter or
amend the treatment thereof as provided herein. The proposed third
party transferee may, at its option, in connection with the
contemplated transfer of title and assumption of the leasehold
interest, assume the then outstanding contractual obligations of
the Debtor with said Claimant with the Debtor thereby released from
liability to said Claimant (1) by providing the Claimant with such
financial information as may be reasonably requested to demonstrate
the financial ability of such third party transferee to timely
perform said contractual obligations of the Debtor, with the
Consent of the Claimant to assumption of the Debtor's contractual
obligations not thereafter being unreasonably withheld, (2) by
paying to the Claimant after its consent to assumption is obtained
but prior to the recordation of the transfer of title a one-time
"assumption fee", in cash, equal to one percent (1%) of the then
outstanding balance of principal and accrued interest owing to said
Claimant.
Class 19: (Intentionally Deleted)
Class 20: The Class 20 Claim is fixed, liquidated,
compromised and allowed as a Secured Claim in the amount of
$904,714.57 as of December 29, 1993, plus any and all interest,
attorneys' fees, and other amounts which may thereafter accrue
under the documentation relating to the Class 20 Claim. The Class
20 Claim is to be treated as follows:
A. A promissory note (the "Note") payable to Sacramento
Savings shall be executed by the Debtor, in the form attached as
Exhibit "9" to that certain Stipulation entered into by and between
Debtor and Sacramento Savings which was approved by the Court on
February 9, 1994. The Note shall provide, without limitation, for
the following:
(1) The principal balance of the Note shall be the
sum equal to all indebtedness owing under the LC Repayment
Agreement as of the Note Effective Date including, without
limitation, all principal, accrued interest, late charges,
foreclosure fees and costs, and attorneys' fees and costs.
(2) The Note shall bear interest from and after the
Note Effective Date at the fixed rate of 8.5% per annum through and
including the twenty-fourth (24th) month following the Note
Effective Date. Thereafter, the Note shall bear interest at a rate
equal to the Bank of America Reference Rate, as the same may vary
from time to time, plus three percent (3%) per annum until the Note
is paid in full (the "Floating Rate"). The Floating Rate shall be
adjusted on a quarterly basis and shall not increase by more than
2 percentage points during the course of any calendar year, and
shall in no event exceed a rate in excess of 12% per annum.
(3) All interest accruing under the Note shall be
paid in full to Sacramento Savings on a current basis, in sixteen
(16) consecutive quarterly installments, commencing on the first
(1st) day of the fourth month following the Note Effective Date,
and continuing thereafter on the first (1st) day of each third
month thereafter through and including the first (1st) day of the
forty-ninth (49th) month following the Note Effective Date, at
which time all unpaid principal, interest, and other amounts owing
under the Note shall become due and payable in full.
(4) An event of default under the Note shall exist
if Debtor fails to timely pay any payment required under the Note,
or otherwise fails to comply with any term, provision or condition
of the Note or any of Sacramento Savings' deeds of trust against
the Truxel Property, the Gateway 5 West Property, or the Laguna
Property. If an event of default occurs under the Note, and such
default remains uncured for a period of ten (10) days after written
notice of such default is transmitted to Debtor, then Sacramento
Savings may immediately and without further notice or order of
court, and subject only to the provisions of paragraph 5A(5) below,
pursue any and all remedies available to it under state law and the
Bankruptcy Code including, without limitation, giving notice of
default, publishing notice of sale, and conducting foreclosure
sales under any and all of its trust deeds.
(5) Notwithstanding the provisions of paragraph
A(4) above, any failure by Debtor to pay or otherwise comply with
the terms of the note and/or trust deed of Foothill Capital
Corporation shall not, in and of itself, give rise to a right by
Sacramento Savings to commence a judicial or nonjudicial
foreclosure proceedings against the Laguna Property. All of
Sacramento Savings' other rights and remedies are specifically
preserved.
B. Neither the Stipulation nor the restructuring of the
LC Secured Claim herein, as provided in paragraph A above, shall in
any way affect the priority of enforceability of Sacramento
Savings' trust deeds encumbering the Gateway 5 West Property
(recorded March 5, 1990 in Book 90-03-05, Page 581 of the Official
Records of Sacramento County, California), the Truxel 75 Property
(recorded on July 1, 1988 in Book 88071, Page 477 of the Official
Records of Sacramento County, California), or the Laguna Property
(recorded on December 30, 1988 in Book 881230, Page 1851 of the
Official Records of Sacramento County, California), each of which
will continue to secure the restructured indebtedness. Debtor
shall immediately obtain, at its own expense, each of the
following:
(1) An ALTA policy of title insurance, insuring
that Sacramento Savings' deed of trust against the Gateway 5 West
Property shall remain as a second priority consensual lien against
the Gateway 5 West Property, subordinate only to the existing trust
deed in favor of Foothill Capital Corporation, and any liens for
real property taxes;
(2) An ALTA policy of title insurance, insuring
that Sacramento Savings' deed of trust against the Truxel Property
shall remain as a second priority consensual lien against the
Truxel Property, subordinate only to the existing trust deed in
favor of Foothill Capital Corporation, and any liens for real
property taxes;
(3) An ALTA policy of title insurance, insuring
Sacramento Savings' deed of trust against the Laguna Property as a
first priority consensual lien against the Laguna Property,
subordinate only to any liens for real property taxes.
(4) Alternatively, Debtor may comply with the
provisions of paragraphs B(1), (2) and (3) above by providing to
Sacramento Savings, with respect to each property, a CLTA 110.5
endorsement to Sacramento Savings' existing ALTA policies of title
insurance, to the effect that the restructuring of the LC Secured
Claim as provided in this Plan shall not alter the existing lien
priority and enforceability of Sacramento Savings' liens against
the Gateway 5 West Property, the Truxel Property, and/or the Laguna
Property.
C. Sacramento Savings agrees that it will release its
trust deed against either the Truxel Property or the Gateway 5 West
Property upon its receipt of a payment from Debtor in an amount
equal to 33.33% of the total indebtedness then owing under the
Note. Sacramento Savings further agrees that if such a 33.33%
payment is received by Sacramento Savings, and a trust deed against
either the Truxel Property of the Gateway 5 West Property released,
then Sacramento Savings will release its trust deed against the
remaining property (either the Truxel Property or the Gateway 5
West Property) upon receipt of an additional payment from Debtor
equal to 33.33% of the total indebtedness that was owing under the
Note immediately prior to the first 33.33% payment.
D. In the event that Debtor later desires to convey a
portion of the Laguna Property, Sacramento Savings agrees that it
will release its lien against the portion to be conveyed, subject
to the occurrence of each of the following conditions precedent:
(1) A determination of legally divisible and
transferrable parcels within the Laguna Property.
(2) Appraisals of the various legally divisible and
transferrable parcels comprising the Laguna Property shall be
conducted, by an independent appraiser selected and approved by
Sacramento Savings and Debtor.
(3) Following the determination of the values of
the parcels comprising the Laguna Property, as described
hereinabove, the pro rata values of each parcel, vis-a-vis the
other parcels, shall be determined, which will result in a value
percentage for each parcel within the Laguna Property (the "Value
Ratio").
(4) In the event that Debtor wishes to convey a
parcel within the Laguna Property, the Value Ratio of that parcel
shall be multiplied against the total indebtedness then owing under
the Note. The resulting figure shall then be multiplied by a
factor of 1.2 (120%), and the resulting dollar amount shall be the
transfer release price for that parcel (the "Release Price"). Upon
receipt by Sacramento Savings of the Release Price with respect to
a given parcel, Sacramento Savings shall release its lien against
the parcel, and shall execute such documents as may be necessary to
effectuate such a release including, without limitation, a partial
reconveyance of its Trust Deed.
(5) Notwithstanding any of the foregoing,
Sacramento Savings will not be obligated to release its lien as
against a parcel if the transfer of such parcel will result in
other untransferred parcels becoming landlocked or situated so that
ingress or egress is substantially impaired.
Class 21:
1. Modification of the Note.
The Class 21 Claimant shall retain the priority of its Deed of
Trust against Laguna as security for the amount owing on its
Allowed Secured Claim, as modified to reflect the amount of the
Modified Note. The deemed allowed amount on the Note as modified
(the "Modified Note") will be $8,744,544 as of December 31, 1993,
plus $180,000.00 of attorneys fees. The Class 21 Claimant agrees
to credit the Debtor for any attorneys' fees which are paid by any
insurers. The Modified Note shall bear interest at a rate equal to
the prime rate of Union Bank, as the same may vary from time to
time, plus three percent (3%) per annum (the "Accrual Rate") from
January 1, 1994, to the date the Class 21 Claimant is paid in full.
Unless modified here, the Modification and Extension of Promissory
Note and the Modification to Release Provision Agreement executed
contemporaneously herewith, the terms, conditions and obligations
set forth in the existing Promissory Note, Deed of Trust, and
Release Provision Agreement shall remain in full force and effect.
(Hereinafter, the existing Promissory Note, Deed of Trust, Release
Provision Agreement and all modifications thereto, the Settlement
Agreement, the Modification and Extension of Promissory Note, the
Modification to Release Provision Agreement shall collectively be
referred to as the "Loan Documents.")
2. Payment of the Modified Note.
The Class 21 Claimant shall receive periodic interest
payments on the Modified Note calculated at an interest rate of
eight percent (8%) per annum (the "Pay Rate") on the then
outstanding principal balance. The first interest payment is due
on December 31, 1994, for the period January 1, 1994 through and
including December 31, 1994. Thereafter, the Debtor shall make
quarterly interest payments to the Class 21 Claimant, calculated at
the Pay Rate, with payments due on March 31, 1995, June 30, 1995,
and September 30, 1995. To the extent the Accrual Rate exceeds the
Pay Rate, all accrued but unpaid interest for the period January 1,
1994 through December 31, 1995 shall be paid to the Class 21
Claimant on December 31, 1995. Commencing on February 1, 1996, and
on the first day of each month thereafter, the Debtor shall make
interest only payments to the Class 21 Claimant calculated at the
Accrual Rate for all interest accruing during the preceding month.
The entire principal balance, as well as all accrued and unpaid
interest, is due and shall be paid to the Class 21 Claimant on or
before December 31, 1999.
3. Default on Payment of the Modified Note.
If at any time prior to the date upon which the
Bankruptcy Court enters an order confirming the Plan the Debtor
fails to make any payment due on the Modified Note in accordance
with the above payment schedule, the Class 21 Claimant is granted
immediate relief from the automatic stay and may pursue any and all
remedies available to the Class 21 Claimant under applicable state
and federal law without further order of the Bankruptcy Court.
In the event the Debtor fails to make any payment due on
the Modified Note after confirmation of the Plan or otherwise
defaults in performance of any of its other obligations under the
Loan Documents, the Debtor shall be deemed in default. If the
Debtor fails to cure such default by payment or otherwise to the
Class 21 Claimant within ten (10) days after payment was due or
within ten (10) days of written notice to the Debtor of any other
default, the Class 21 Claimant may, at its option, accelerate the
obligation and declare that the entire amount is immediately due
and owing. In the event of acceleration, the Class 21 Claimant
shall have all rights under state and federal law to collect the
full amount of the Modified Note, including accrued interest and
such other amounts permitted by the Loan Documents or by law. The
Debtor shall retain all of its rights to cure any payment or other
default as provided in the Loan Documents or by law.
4. Discounts on Modified Note.
Provided that the Debtor is not in default and subject to
paragraph 5 hereinbelow, the Class 21 Claimant will conditionally
grant the Debtor the right to discount the principal balance of the
Modified Note in an amount equal to that appropriate discount
percentage applicable to any partial or full principal payment made
prior to the maturity date; provided, however, (i) no discount
shall become finally effective unless and until all indebtedness of
the Debtor to the Class 21 Claimant evidenced and secured by the
Loan Documents shall have been timely repaid in full according to
the terms of the Loan Documents, and (ii) any discount
conditionally granted shall automatically and without further
action or notice by the Class 21 Claimant be withdrawn and revoked
ab initio upon the failure of the Debtor to make any payment due on
the Modified Note in accordance with the payment schedule set forth
herein or the failure of the Debtor to perform any of its other
obligations under the Loan documents. A default and subsequent
cure by the Debtor in accordance with paragraph 3 hereof will not
affect the availability of the discounts provided herein. The
appropriate discounted percentage to be applied is determined by
the calendar year of principal payment:
Year Percentage of Discount
1994 26%
1995 21%
1996 16%
1997 10%
1998 5%
1999 0%
By way of example, if the Debtor were to pay down the principal on
the Modified Note by $1,000,000 in calendar year 1995, the
discount, in addition to the principal payment to be deducted from
the outstanding principal, would be $210,000 ($1,000,000 x 21%).
All discounts would become conditionally effective concurrently
with the principal reduction as long as all contingencies in
paragraph 5 hereinbelow are fulfilled.
5. Conditions for Discount of the Modified Note.
The availability of any discount would be subject to the
following conditions:
(a) The cash sale of 379 residential lots to close
escrow by June 30, 1994 (no discount will be provided to the Debtor
for the principal reduction resulting from this transaction and
compliance with paragraph 6 hereinbelow);
(b) Full and timely performance of the Debtor's
obligations under the Loan Documents (a default and subsequent cure
within the terms of the Settlement Agreement will not affect the
discounts provided herein);
(c) Dismissal of the State Court Action with prejudice;
(d) Tax and bond payments affecting Laguna maintained on
a current basis after the Confirmation Date (except for the parcels
identified in paragraph 6(d) hereinbelow);
6. Sale of 379 Residential Lots.
In the event that the 379 residential lots at Laguna are
sold, proceeds therefrom are to be utilized and applied as follows:
(a) Sales commission(s) to non-affiliated third parties
not to exceed four percent (4%) of gross sales price;
(b) Selling costs to non-affiliated third parties not to
exceed $50,000.00 in total;
(c) Back taxes and bonds on the 379 residential lot
parcels;
(d) Remaining back taxes and bonds on the remaining
portion of Laguna (excluding tax and bond payments on the parcel(s)
depicted on the map of Laguna attached to this Plan as Exhibit "4"
and incorporated herein by reference (the "Map") containing the 7.1
acres to be zoned multi-family and the parcel(s) containing the
10.2 acres to be zoned for 47 single family lots due to wetlands
issues and any additional acres designated as of December 8, 1993
for use as a park and creek).
(e) Wetlands mitigation/park costs totalling $475,000 to
be held in an escrow account until used for wetland mitigation
and/or park construction;
(f) April 1994 real property tax/bond payments for
Laguna (except the Parcels referred to in paragraph 6(d)
hereinabove) to be held in a jointly controlled, interest-bearing
escrow account at North American Title Company, 1792 Tribute Road,
Sacramento, California, Attention: Julie Morotti, until payment is
made prior to April 10, 1994. Any interest remaining after the
above payments are made shall be applied to the Modified Note as
credit towards future payment;
(g) All net proceeds to be paid to the Class 21 Claimant
(or its successor in interest) in the approximate amount of
$1,135,000, but in no event shall the amount paid to the Class 21
Claimant be less than the greater of either (i) $1,000,000 or (ii)
an amount arrived at as a result of the sale of 375 lots at $12,570
per lot less the amounts identified in paragraphs 6(a) through (f)
above.
7. Release Provisions.
The Debtor shall be entitled to a partial reconveyance
(lien release) of the deed of trust relating to the Modified Note
with respect to each legally distinct parcel of Laguna (the
"Release Parcel") upon payment to the Class 21 Claimant of a
"Release Price" for the Release Parcel, provided the Debtor has
first paid current all accrued interest on the Release Parcel and
provided that the Debtor is not then in default under the Loan
Documents. Release price payments shall be applied as a principal
reduction against the Modified Note. Accrued interest on any
Release Parcel shall be determined by multiplying (a) the total of
all accrued and unpaid interest under the Loan Documents times (b)
a fraction the numerator of which is the amount of acres released
and the denominator of which is the then total acreage of the
remaining Property, including the Release Parcel.
(a) With regard to the park site (approximately 7.03
acres) and floodway easement (approximately 14.81 acres) depicted
on the Map, if the same is required to be dedicated for public
purposes without compensation, then it will be released without the
necessity for payment of a "release price." If compensation is
paid to the Debtor, then the release fee to be paid to the Class 21
Claimant will be equal to (50%) of the net proceeds otherwise
available to the Debtor. (For purposes of this paragraph and
hereinafter, the gross sales price less a reasonable commission and
reasonable closing costs paid to unrelated third parties shall be
referred to as "Net Proceeds.")
(b) With regard to Parcel X (1.75 acres) depicted on the
Map, same will be released with all Net Proceeds being held in an
escrow account at North American Title Company, 1792 Tribute Road,
Sacramento, California, Attention: Julie Morotti. The escrow
account shall be jointly controlled by the Debtor and the Class 21
Claimant out of which the Debtor can draw funds with the written
approval of the Class 21 Claimant for any development costs on the
Property after the 379 lot residential sale is closed. Development
costs will be limited to those reasonable costs to third parties
incurred for direct improvement or changes to entitlement of
Laguna. If the 379 residential lots sales do not close escrow by
March 31, 1994, then the Net Proceeds shall be paid to the Class 21
Claimant based on a $2.50 minimum release fee per square foot and
$3.20 net value per square foot as identified in paragraph 7(c)
hereinbelow and applied to the Modified Note.
(c) With regard to all remaining parcels in Laguna
(approximately 103.62 net acres, including Parcel X in paragraph
7(b) hereinabove if the sale of the 379 residential lots is not
closed by March 31, 1994), the Release Price to be paid to the
Class 21 Claimant will be equal to the "minimum release fee per
square foot" as set forth below plus 33.3% of the amount by which
the actual Net Proceeds exceeds the "net value per square foot" set
forth therein. In addition, 33.3% of the amount by which the
actual Net Sales Proceeds exceeds the "net value per square foot"
set forth below will be placed in an escrow account at North
American Title Company, 1792 Tribute Road, Sacramento, California,
Attention: Julie Morotti. This escrow account jointly controlled
by the Debtor and the Class 21 Claimant from which the Debtor can
draw upon, with the Class 21 Claimant's written approval, for any
amounts to be expended on Laguna for interest payments to the Class
21 Claimant, tax or bond payments or reasonable development costs
(as defined in paragraph 7(b) hereinabove).
Minimum
Approximate Proposed Release Net
Net Acres Zoning Fees/SF Value/SF
11.08 GC $3.10 $4.00
16.07 GC $3.10 $4.00
13.65 LC $2.30 $3.00
20.32 Res. $1.00 $1.35
10.20 Res. $1.00 $1.35
7.10 MFR $1.10 $1.38
3.95 O/I $2.50 $3.20
19.50 O/I $3.00 $3.00
___________
103.62
Class 22: (Intentionally Deleted)
Class 23: (Intentionally Deleted)
Class 24: (Intentionally Deleted)
Class 28: Holders of Allowed Unsecured Claim(s) of less than
$25,000, or who voluntarily reduce their claim(s) to $25,000 by the
date set by the Court, will be paid in cash, in full, but without
interest, on or before the Effective Date.
Class 29: The Class 29 Claimants shall receive future
quarterly distributions by the Reorganized Debtor. These claims
will bear interest at the rate of 7% per annum after the Effective
Date. Payments will be made out of cash on hand after deducting on
a quarterly basis a reserve for 12 months' future operations by the
Reorganized Debtor, which reserve shall include amounts necessary
to pay anticipated interest and property tax and bond obligations
relating to the Mortgage Notes to the extent not already reserved
for under the Indenture. The balance owing to Class 29 claimants
will be paid in full by no later than four years after the
Effective Date. A minimum payment of $1,000,000 shall have been
paid by December 31, 1994; an additional minimum payment of
$2,000,000 shall have been paid by December 31, 1995; an additional
minimum payment of $2,000,000 (if fully needed) shall have been
paid by December 31, 1996 (the aforementioned payments shall first
be applied against accrued interest and then against unpaid
principal); the remaining balance, if any, including accrued
interest, shall be all due and payable on December 31, 1997. The
Debtor shall segregate from its cash on hand an amount equal to
five percent (5%) of the net proceeds it may receive as a result of
its Mortgage Note offering and set aside same in a segregated,
interest-bearing account, earmarked towards the mandatory minimum
annual payments called for hereunder. No distribution(s) will be
made to Classes 30, 31 or 32 until the members of Class 29 have
been paid in full. No portion of any Allowed Unsecured Claim shall
include attorneys' fees, default interest, late penalties or
similar charges or costs of any kind, accrued or incurred
post-petition, unless the same have been approved by the Court in
accordance with the procedure set forth in Article IX, Section 9.01
hereof.
Class 30: The Class 30 Claimants shall receive future
quarterly distributions by the Reorganized Debtor after the members
of Class 29 have been paid in full. These claims will bear
interest at the rate of 7% per annum after the Effective Date.
Payments will be made out of cash on hand after deducting on a
quarterly basis a reserve for 12 months' future operations by the
Reorganized Debtor, which reserve shall include amounts necessary
to pay anticipated interest and property tax and bond obligations
relating to the Mortgage Notes to the extent not already reserved
for under the Indenture. No distribution(s) will be made to either
Classes 31 or 32 until the members of Class 30 have been paid in
full. No portion of any Allowed Unsecured Claim shall include
attorneys' fees, default interest, late penalties or similar
charges or costs of any kind, accrued or incurred post-petition,
unless the same have been approved by the Court in accordance with
the procedure set forth in Article IX, Section 9.01 hereof.
Class 31: The Debtor believes that the Court will determine
that the treatment of Class 31 hereunder does not impair said Class
under Section 1124 of the Bankruptcy Code. Notwithstanding the
foregoing, and without the Debtor waiving its right to claim at the
time of the hearing on Confirmation that the treatment of Class 31
hereunder does not impair the legal, equitable or contractual
rights of said Class, the Class 31 claimants will be entitled to
distributions from the Reorganized Debtor if and only if successful
in the Daniels Litigation against the Debtor (Reorganized Debtor).
The Debtor will continue to vigorously defend the Daniels
Litigation. Any judgment rendered against the Debtor (or
Reorganized Debtor) in the Daniels Litigation (the "Daniels
Judgment") is subordinated pursuant to Section 510(b) of the Code
to be of the same priority for distribution purposes as Class 32
claimants and shall have the same rights of such class under
Section 1129 of the Bankruptcy Code pursuant to that certain
judgment entered by the Bankruptcy Court on June 10, 1993 in
Adversary Number SA 93-01239 JW. In the event that the Daniels
Judgment occurs, the Class 31 claimants shall receive
distribution(s) by the Reorganized Debtor at such time after the
Confirmation Date as distribution(s) are made to Class 32
Stockholders. The Class 31 claimants' share of such future
distribution(s) shall be determined by multiplying the amount of
any proposed distribution(s) by a fraction, the numerator of which
shall be the amount of the Daniels Judgment and the denominator of
which shall be the total of the dollar amount of said Daniels
Judgment plus the dollar amount of stockholder equity listed in the
Debtor's or Reorganized Debtor's balance sheet for the calendar
quarter immediately preceding the entry of the Daniels Judgment.
No portion of any Allowed Unsecured Claim shall include attorneys'
fees, default interest, late penalties or similar charges or costs
of any kind, accrued or incurred post-petition, unless the same
have been approved by the Court in accordance with the procedure
set forth in Article IX, Section 9.01 hereof.
ARTICLE VI
Execution and Implementation of the Plan
6.01. Overview
The objective of the Plan is to realize the full value of the
Debtor's various Projects for Creditors and Stockholders. Three of
the Projects, Moovalya Plaza, Cordova Retail Center and Anita
Drive, are fully developed. A fourth Project, Alder Creek, will be
developed out of funds on hand and consequently will not need any
additional outside capital during the period it is held for
development and sale by the Reorganized Debtor. The Debtor has
determined that it is not in the best interests of creditors that
it retain (or take any further steps to retain) Centerpointe or
Cordova Station.
The four Development Projects (Truxel 75, Gateway Five West,
Northpointe and Laguna) may require the infusion of additional
outside capital to realize their full value. The additional
funding may be needed to complete entitlement and development work
and service the indebtedness secured by the Development Projects.
The Debtor does not have sufficient funds internally to pay
all the costs associated with the retention of all of the
Development Projects. As a result, it will be entering into
borrowing arrangements with the Indenture Trustee as well as
possibly with unaffiliated third party investors. Under these
arrangements the Debtor will borrow monies on a first priority
basis and may thereby be in a position to pay off the existing
lenders on the Development Projects in an accelerated fashion.
6.02. Summary of Mortgage Note Offering
The Debtor, through its Mortgage Note offering, will make
available to its Stockholders and other accredited parties
interests in 25% interest bearing notes secured by first trust
deeds on its Development Projects. It anticipates a $2,000,000
minimum subscription and a $35,000,000 maximum subscription.
Certificates will be issued in denominations of $500 and any
integral multiple thereof, with a minimum original balance of
$1,000. The maturity of the Mortgage Notes will be December 31,
1996. The Mortgage Notes will have a 10% per annum quarterly "pay
rate" and a 15% per annum "accrual rate", predicated upon a simple
interest calculation. Out of the funding, funds will be placed in
an interest reserve account sufficient to pay the quarterly 10%
"pay rate" and property tax, bond and assessment payments for the
first twelve months following the issuance.
The Mortgage Notes will be issued predicated upon a loan to
value ratio of not more than 50%, i.e., real property covered by
the first trust deed shall have an appraised value from an MAI
appraiser of at least 200% of the sum of (i) the amount of the
notes secured thereby plus (ii) the then outstanding amount of all
tax installment redemption amount(s) with respect to the secured
parcel(s) within six months of the date of the issuance thereof.
The Debtor will agree that in the event of a default under any of
the Mortgage Notes that it will not utilize the Bankruptcy Code or
its pending bankruptcy proceeding in order to inhibit the prompt
foreclosure rights by the Indenture Trustee. A more detailed
description of the Mortgage Note Offering is contained in the
Prospectus, a copy of which is attached to the Disclosure Statement
as Exhibit "F".
From the Approval Date through the earlier of (i) the
Effective Date (unless prior to the Effective Date at least
$2,000,000 in Subscription Amounts has been deposited into the
Escrow Account); (ii) the date which is ninety (90) days after the
Effective Date; (iii) the date (the "Outside Termination Date")
which is ten (10) months after the Approval Date (subject to the
Debtor's request, after notice and a hearing before the Court, for
an extension of the Outside Termination Date for up to an
additional sixty (60) days); or (iv) the date that the Debtor
elects, in its sole discretion, to terminate the Mortgage Note
Offering, Stockholders and other accredited third parties will be
given the right to acquire interests in the Mortgage Notes. The
offering being made to Stockholders and other accredited third
parties through the Prospectus shall be exempt from registration
and qualification requirements of federal and state securities laws
pursuant to 11 U.S.C. Section 364(f). Stockholders who subscribe
to the Debtor's Mortgage Note Offering will become Participating
Stockholders. If insufficient subscriptions are obtained to reach
the minimum requirement, any monies raised will be returned to the
Participating Stockholders.
6.03. Effect of Unsuccessful Mortgage Note Offering
The Debtor presumes that it will be successful in its Mortgage
Note Offering and thereby raise sufficient capital to fund all
payments required under its Plan as well as to pay off, on an
accelerated basis, selected Secured Claims. In the event that the
Mortgage Note Offering is partially successful or totally
unsuccessful, it is probable that some of the initial payments
called for under the Plan to certain Secured Creditors (those in
Classes 1 (in part), 3, 4, and 19 through 24 may not be made and
such Creditors would thereupon proceed to foreclose upon the real
property securing their property taxes, various bonds and
promissory notes.
ARTICLE VII
Request for Finding of Fair and Equitable
Treatment of Impaired Classes
7.01. The Debtor, as the proponent of this Chapter 11 Plan,
hereby requests pursuant to Section 1129(b) of the Code, that this
Court find that the provisions of this Plan provide fair and
equitable treatment to those Claimants and interest holders who are
impaired under the Plan and who elect not to accept the Plan, and
that this Court confirm the Plan ("cramdown") notwithstanding the
requirement of Section 1129(a)(8) as to such Claimants.
ARTICLE VIII
Conditions Precedent to Distributions Under the Plan
In addition to the other terms and conditions set forth
herein, the following shall constitute conditions precedent to any
Claimant's right to participate in the distributions under the
Plan:
8.01. As a condition to participation in the distributions
under the Plan, all Creditors shall execute and deliver to the
Reorganized Debtor or join in the execution or delivery of any
instrument necessary for consummation of the Plan.
8.02. Within ten (10) days of the Effective Date, the Class
6 through Class 24 Claimants shall provide the Debtor with evidence
that a notation has been placed upon the originals of their
promissory notes reflecting the fact that said notes have been
modified and amended by the Plan. Any Claimant that fails to
comply with this provision shall not be entitled to receive
payments or accrue interest on its Claim until this condition has
been satisfied.
8.03. As a condition to participation in distributions under
the Plan, any Person against whom a turnover judgment has been
entered in this case shall turn over to the Reorganized Debtor the
property, or the value thereof, ordered turned over by such
judgment. No Person against whom a turnover judgment has been
entered shall have any right to participate in distributions under
the Plan until such Person turns over to the Reorganized Debtor the
required amount, or the value thereof, and such Person shall
forfeit any rights to distribution which the Plan contemplates and
which would have occurred during the period of noncompliance with
any turnover judgment. Any right of any such Person to participate
in distributions under the Plan shall terminate six months from
Confirmation in the event such Person has not by that time turned
over to the Reorganized Debtor the required property or the value
thereof. Notwithstanding the foregoing, nothing contained herein
shall limit any right of the Reorganized Debtor to enforce any
judgment of the Court.
8.04. As a condition to participation in distributions under
the Plan, any Person against whom a preference judgment has been
entered shall turn over to the Reorganized Debtor the property
preferentially transferred or the value thereof. No Person shall
have any right to participate in distributions under the Plan until
such Person turns over to the Reorganized Debtor the required
property or the value thereof, and such Person shall forfeit any
rights to distributions which the Plan contemplates and which would
have occurred during the period of noncompliance with any
preference judgment. Any right of any Person to participate in
distributions under the Plan shall terminate five years from
Confirmation in the event such Person has not by that time turned
over to the Reorganized Debtor the required property or the value
thereof.
ARTICLE IX
Disallowance of Claims/Retention of Property
9.01. Notwithstanding anything to the contrary herein, no
attorney's fees or other "professional" fees (as the term
"professional" is defined in 11 U.S.C. Section 327) or default
interest, late penalties or any similar charge claimed after the
Petition Date shall be compensable by the Debtor, or out of
property of the estate, nor shall the same constitute part of an
Allowed Claim, until the creditor seeking to recover said fees from
the Debtor or the estate has had such fees approved as "reasonable"
or otherwise properly payable by the Bankruptcy Court. Such
approval must be made through a motion for the recovery of same
made on no less than twenty-one (21) days' written notice to the
Debtor, the Unsecured Creditors' Committee, the Stockholders'
Committee and the Office of the United States Trustee. Any
professional fees or default interest, late penalties or similar
charges claimed after the Petition Date claimed by a creditor of
the estate as compensable by the Debtor or the estate which have
not been approved through the above procedure within sixty (60)
days after the Confirmation Date shall be barred.
9.02. Notwithstanding anything contained herein, the
Reorganized Debtor shall have the right to request the Court to
disallow any Claim of any Person from which property is recoverable
under section 542, 543, 550, or 553 of Title 11 or that is a
transferee of a transfer avoidable under section 544, 545, 547,
548, or 549 of Title 11 unless such Person or transferee has paid
the amount, or turned over any such property, for which such Person
or transferee is liable.
9.03. Except as otherwise specifically provided herein, the
Reorganized Debtor shall retain all property of the estate
including any rights under avoidance actions, which shall become
property of the Reorganized Debtor.
9.04. All claims objections shall be filed within six (6)
months after the Effective Date, unless the Debtor obtains an
extension of this deadline through a noticed motion.
9.05. Any payment(s) called for under the Plan (which include
(a) checks issued by the Reorganized Debtor which have been
returned as undeliverable without a proper forwarding address or
(b) checks issued by the Reorganized Debtor which were not mailed
or delivered because of the absence of a proper address with which
to mail or deliver same) shall be deposited by the Reorganized
Debtor into an unclaimed property reserve to be held in trust for
the benefit of the holders of Allowed Claims entitled thereto under
the terms of the Plan. For a period of three (3) years following
the Effective Date, such unclaimed property shall be held in the
unclaimed property reserve for the benefit of the holders of
Allowed Claims which have failed to claim such property. After the
expiration of three (3) years following the Effective Date, such
unclaimed property due the holder of an Allowed Claim shall be
released from the unclaimed property reserve and delivered to such
holder upon presentation of proper proof by such holder of its
entitlement thereto. At the end of the third year following the
Effective Date, the holders of Allowed Claims theretofore entitled
to said unclaimed property shall cease to be entitled thereto and
the same shall then become the property of the Reorganized Debtor.
ARTICLE X
Designation of Reorganized Debtor
as Representative of Estate
Pursuant to Section 1123(b)(3)(B) of the Code, the Reorganized
Debtor is designated as the representative of the estate of the
Debtor.
ARTICLE XI
Modification of Plan
The Debtor may propose amendments or modifications to this
Plan at any time prior to confirmation or at the confirmation
hearing, without leave of the Court, upon proper notice. After
confirmation, the Debtor may, with the approval of the Court, and
so long as it does not materially or adversely affect the interest
of creditors or Equity Security Holders, remedy any defect or
omission, or reconcile any inconsistencies in the Plan, or the
order of confirmation, in such manner as may be necessary to carry
out the purposes of this Plan.
ARTICLE XII
Executory Contracts
All prepetition unexpired leases in which the Debtor is the
lessor and which have not been previously rejected during the
course of this Chapter 11 case, shall be assumed through this Plan.
All other prepetition executory contracts and/or unexpired leases
not previously assumed or rejected during the course of this
Chapter 11 case shall be deemed rejected unless set forth on
Exhibit "3" hereto. All claims arising from the rejection of
executory contracts and/or unexpired leases must be filed with the
Court within thirty (30) days of the Confirmation Date or shall be
barred.
ARTICLE XIII
Effect of Confirmation
13.01 From and after the Confirmation Date, the Debtor will
be discharged from any and all debts dischargeable under Section
1141(d) of the Bankruptcy Code, and confirmation of the Plan, which
shall occur on the Confirmation Date shall otherwise have all of
the effects provided in such Section 1141 which are not
inconsistent with the terms of the Plan.
13.02 From and after the Confirmation Date all loan
documents, trust deeds and other contracts documenting claims
against the Debtor shall be deemed modified and/or superseded
completely, as the case may be, by the terms of the Plan. After
the Confirmation Date, Claims shall be paid only in accordance with
the Plan, and any effort by any claimant to compel the Debtor to
pay such Claimant more than its Allowed Claim, or to pay its Claim
in any manner other than as provided for in the Plan shall
constitute a violation of the Order confirming the Plan and 11
U.S.C. Section 1141.
13.03 From and after the Confirmation Date, any cash
collateral stipulation or order regarding the use of cash
collateral then effective in this proceeding, shall be rendered
null and void, and the terms of the Plan shall be controlling.
13.04 Pursuant to Section 1142(a), notwithstanding any other
applicable non-bankruptcy law, rule or regulation relating to
financial condition, the Debtor is authorized to carry out the
terms of the Plan. Moreover, all claimants holding liens on the
Project, are directed, pursuant to 11 U.S.C. Section 1142(b), to
execute or deliver, or to join in the execution or delivery, of any
instrument or other document required to effect a transfer of
property dealt with by the Plan, and to perform any other act,
including the satisfaction of any lien that is necessary for the
consummation of the Plan. To the extent that any lienholder fails
to comply with this provision, the Debtor may seek an order from
the Bankruptcy Court, on an expedited basis, compelling compliance
with this provision, and during the time period encompassed by this
compliance, no payments shall be made to the noncomplying Creditor
under the Plan, and any such Creditor shall be responsible for all
costs and damages incurred by the Debtor as a result of its
noncompliance with this provision.
ARTICLE XIV
Retention of Jurisdiction
The Court shall retain jurisdiction of this Chapter 11 case
until this Plan has been fully consummated, pursuant to and for the
purposes set forth in the Code, and specifically for the purpose
of:
14.01. Classification of the Claim of any Creditor in the
reexamination of Claims which have been allowed for the purposes of
voting for the determination of such objections as may be filed to
Creditors' Claims. The failure by the Debtor to object to or
examine any claim for the purpose of voting shall not be deemed to
be a waiver of Debtor's right to object to or reexamine the Claim
in whole or in part.
14.02. The allowance of compensation or other administrative
expenses.
14.03. To hear and determine Claims concerning state, local,
and federal taxes pursuant to sections 346, 505, 525, and 1146 of
the Bankruptcy Code.
14.04. To hear and determine any action or proceeding brought
by Debtor under sections 510, 542, 543, 544, 545, 547, 548, 549,
550, 551, and 553 of the Bankruptcy Code, whether such action or
proceeding is brought before or after the Effective Date.
14.05. To hear and determine all actions and proceedings
which relate to pre-confirmation matters brought by the Debtor
whether such action or proceeding is brought before or after the
Effective Date.
14.06. The determination of any issues relating to the
assumption or rejection of executory contracts and unexpired leases
including the assumption or rejection of executory contracts or
unexpired leases not expressly dealt with herein.
14.07. The correction of any defects, the curing of any
omission, or the reconciliation of any inconsistency of this Plan
or in the Order of Confirmation as may be necessary to carry out
the purposes and intent of this Plan.
14.08. The modification of this Plan after confirmation
pursuant to the Bankruptcy Rules and Title 11 of the United States
Code.
14.09. The enforcement and interpretation of the terms of
this Plan.
14.10. The entry of any order, including injunctions,
necessary to enforce title, rights and powers of the Debtor, and to
impose such limitations, restrictions, terms and conditions of such
title, rights and powers as this Court may deem necessary
including, without limitation, any right of the Debtor to recover
assets pursuant to the provisions of the Bankruptcy Code.
14.11. The determination of the validity, extent and priority
of all liens and security interests against property of the
Debtor's Chapter 11 estate.
14.12. To hear and determine such matters and make such
orders as are consistent with the Plan as may be necessary or
desirable to carry out the provisions thereof.
14.13. Any disputes arising under or relating to any order
entered by the Court in this proceeding.
14.14. To hear and determine such matters and make such
orders as may be necessary to implement the Mortgage Note offering
previously approved by this Court.
14.15. The entry of an order concluding and terminating this
Chapter 11 case.
DATED: February 17, 1994 THE CENTENNIAL GROUP, INC.
a Delaware corporation
Debtor and Debtor-in-Possession
By:_______________________________
Robert Ishii
Executive Vice President/
Chief Operating Officer
LOBEL, WINTHROP & BROKER
JEFFREY W. BROKER
SEAN A. O'KEEFE
By:___________________________
Jeffrey W. Broker
Attorneys for Debtor and
Debtor-in-Possession
SIXTH MODIFICATION AGREEMENT
(Long Form)
This Sixth Modification Agreement (this "Agreement") is made
as of February __, 1994, by THE CENTENNIAL GROUP, INC., a Delaware
corporation ("Borrower"), and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association ("Bank").
Factual Background
A. Under a Construction Loan Agreement dated November 7,
1988 (the "Loan Agreement"), Bank agreed to make a construction
loan (the "Loan") to Borrower. Capitalized terms used here without
definition have the meanings given to them in the Loan Agreement.
B. The Loan is evidenced by a Promissory Note Secured by
Deed of Trust dated November 7, 1988 (the "Note"), made payable to
Bank in the stated principal amount of $1,300,000.00. The Note is
secured by a Construction Deed of Trust with Assignment of Rents,
Security Agreement and Fixture Filing dated November 7, 1988 (the
"Deed of Trust"), executed by Borrower as trustor, to Continental
Auxiliary Company as trustee, for the benefit of Bank as
beneficiary. The Deed of Trust was recorded on November 21, 1988
in the Official Records of Sacramento County, California as
Instrument No. 264640, at Book 88-1121, Page 2018. The Deed of
Trust encumbers certain Property located in Sacramento County,
California, as more particularly therein described.
C. In connection with the Loan, Borrower executed a Secured
and Unsecured Indemnity Agreement dated July 3, 1990 ("Borrower's
Indemnity"). Borrower's Indemnity is not a Loan Document, as
defined below.
D. The Loan Documents previously have been modified by
(collectively, the "Prior Modifications"): (i) a Revision Agreement
dated December 18, 1989 between Borrower and Bank; (ii) a
Modification Agreement (Long Form) dated July 3, 1990, between
Borrower and Bank; (iii) a Modification Agreement (Long Form) dated
January 23, 1991, between Borrower and Bank; (iv) a Modification
Agreement (Long Form) dated August 20, 1991, between Borrower and
Bank; and (v) a Modification Agreement dated October 24, 1991,
between Borrower and Bank.
E. As used herein, the term "Loan Documents" means the Loan
Agreement, the Note, the Deed of Trust, the Prior Modifications,
and any other documents executed in connection with the Loan,
including those which evidence, guaranty, secure or modify the
Loan, as any or all of them may have been amended to date. This
Agreement is a Loan Document.
F. The outstanding principal balance of the Loan as of
December 1, 1993 is $875,733.70. Bank is no longer obligated to
make any further disbursements to Borrower.
G. The Note matured on February 1, 1992 and has not been
repaid.
H. On December 13, 1991, Borrower commenced its Chapter 11
bankruptcy case by filing a Chapter 11 petition in the United
States Bankruptcy Court, Central District of California, Case No.
SA-91-41813 JW (the "Bankruptcy"). In connection with the
Bankruptcy, Borrower has filed Debtor's Second Amended Chapter 11
Plan of Reorganization (the "Second Amended Plan").
I. Pursuant to the terms of the Second Amended Plan,
Borrower and Bank have agreed to modify the Loan as set forth
below.
Agreement
Therefore, Borrower and Bank agree as follows:
1. Recitals. The recitals set forth above in the Factual
Background are true, accurate and correct.
2. Reaffirmation of Loan. Borrower reaffirms all of its
obligations under the Loan Documents and Borrower's Indemnity.
Borrower agrees to execute any and all additional documents that
Bank reasonably requires to further reaffirm such obligations.
Borrower acknowledges that it has no claims, offsets or defenses
with respect to the payment of sums due under the Note or any other
Loan Document or Borrower's Indemnity. In the event of any
inconsistency between the terms of the Loan Documents or Borrower's
Indemnity and the terms of the Second Amended Plan, the terms of
the Loan Documents and Borrower's Indemnity shall govern.
3. Modification of Loan Documents. Effective prospectively
as of the Effective Date (as defined in Section 6 below), the Loan
Documents are hereby amended as follows:
3.1 Exhibit A of the Note is deleted in its entirety.
Paragraph 2 of the Note is deleted in its entirety and replaced
with the following new paragraph 2:
"2. As used in this Note, the term "Effective Date"
shall have the same meaning given to such term in the Sixth
Modification Agreement (Long Form) dated February __, 1994, between
Borrower and Bank. As of the Effective Date, the Note Rate shall
be changed to equal (i) the Reference Rate (as defined below) in
effect on the Effective Date, plus (ii) two percent (2%) per annum
(the "Initial Note Rate"). Upon the expiration of the last day of
the twelfth (12th) month following the month in which the Effective
Date occurs, and upon the expiration of the last day of each
twelve (12) month period thereafter during the remaining term of
the Note (each, an "Adjustment Date"), the Note Rate shall be
adjusted to equal the lesser of the following: (i) the Reference
Rate (as defined below) in effect on the applicable Adjustment
Date, plus two percent (2%) per annum; (ii) the Note Rate in effect
immediately prior to such Adjustment Date, plus two percent (2%)
per annum; and (iii) the Initial Note Rate, plus five percent (5%)
per annum. The Initial Note Rate, and each subsequently adjusted
Note Rate, shall remain constant until the next succeeding
Adjustment Date. The term "Reference Rate" shall mean the rate of
interest publicly announced from time to time by Bank at
San Francisco, California as its Reference Rate. The Reference
Rate is set by Bank based on various factors, including Bank's
costs and desired return, general economic decisions and other
factors, and is used as a reference point for pricing loans. Bank
may price loans at, above or below the Reference Rate. Any change
in the Reference Rate shall take effect on the day specified in the
public announcement of such change. Borrower agrees Interest shall
be calculated on the basis of a 360-day year and actual days
elapsed, which results in more interest than if a 365-day year were
used."
3.2 Paragraph 3 of the Note is deleted in its entirety
and replaced with the following new paragraph 3:
"3. As used in this Note, the term "Installment
Commencement Date" shall mean the first day of the month
immediately following the month in which the Effective Date occurs.
Monthly installments of principal and interest in the applicable
amount described below shall be due and payable in arrears
commencing on the Installment Commencement Date, and on the 1st day
of each month thereafter during the remaining term of the Note.
The initial monthly installment amount shall equal an amount which
would fully amortize the Loan balance existing on the Effective
Date, over a 240 month amortization period that began on the
Effective Date, assuming that the Initial Note Rate remained
constant during such amortization period. The monthly installment
amount shall be adjusted thereafter on each Adjustment Date to
equal an amount which would fully amortize the then remaining Loan
balance, over the then remaining portion of the 240 month
amortization period that began on the Effective Date, assuming that
the then applicable Note Rate (i.e. as adjusted on such Adjustment
Date) remained constant during the remaining amortization period.
The initial monthly installment amount, and each subsequently
adjusted monthly installment amount, shall remain constant until
the next succeeding Adjustment Date. Bank shall give Borrower
notice of the initial monthly installment amount, and each
subsequently adjusted installment amount, provided, however, that
Bank's failure to give such notice shall not relieve Borrower of
the obligation to pay the amounts owing under this Note. Each
monthly installment shall be applied (in the following order) to
late charges, accrued and unpaid interest as of the due date of the
installment, and principal, unless an Event of Default exists, in
which event Bank may apply the monthly installment in such manner
as Bank determines in its sole discretion. Notwithstanding the
above, all principal and accrued and unpaid interest shall become
due and payable on the fifth (5th) annual anniversary of the
Effective Date (the "Maturity Date")."
3.3 Paragraph 4 of the Note is hereby deleted.
3.4 Paragraph 7 of the Note is deleted and replaced with
the following new paragraph 7:
"7. Borrower acknowledges that late payment to Bank
of any monthly installment will cause Bank to incur administrative
and other costs not contemplated by this Loan. Such costs include,
without limitation, processing and accounting charges. Therefore,
if Bank has not received the full amount of any monthly installment
within 15 calendar days after the date it is due, Borrower will pay
an additional sum to Bank in the amount of 5% of the overdue
installment as a late charge. This late charge shall be payable
only once on any late monthly installment. If any such late charge
is not recognized as liquidated damages to Bank (as contemplated by
the parties), and is deemed to be in excess of the amount permitted
to be charged to Borrower under applicable law, Bank shall be
permitted to collect a late charge only in the highest amount
permitted by law, and any amount actually collected by Bank in
excess of such lawful amount shall be applied as a payment in
reduction of outstanding principal. In addition to (and not in
lieu of) the foregoing late charge, if any monthly installment is
not paid within 15 calendar days after the date it is due, such
monthly installment shall bear interest from the date it is due
until paid at an annual rate (the "Default Rate") of 3% in excess
of the then applicable Note Rate. Borrower acknowledges that such
interest is a charge for the Borrower's use of the delinquent
amount and not for administrative costs which are intended to be
covered by the late charge."
3.5 Section 2.13 of the Loan Agreement (Financial
Information) is amended and restated in its entirety as follows:
"2.13 Financial Information. Borrower shall keep
true and correct financial books and records with respect to the
operation of the Property. Borrower shall deliver to Bank during
the remaining term of the Loan, in form and detail satisfactory to
Bank, the following financial information:
(a) as soon as available and in any event not later
than 15 days following the last day of each calendar month, an
operating statement (on a cash basis) for such month reflecting all
cash income and expenses (including reserves) with respect to the
operation of the Property, certified by the chief financial officer
of Borrower to be true and correct;
(b) as soon as available and in any event not later
than 45 days following the last day of each of the first three
quarters of each fiscal year, (i) financial statements (i.e. a
balance sheet, income statement and cash flow statement) for
Borrower for such quarter, prepared in accordance with generally
accepted accounting principles consistently applied ("GAAP"), and
(ii) an updated rent roll for the Property, each certified by the
chief financial officer of Borrower to be true and correct; and
(c) as soon as available and in any event not later
than 90 days following the last day of each fiscal year, (i)
financial statements (i.e. a balance sheet, income statement and
cash flow statement) for Borrower for such fiscal year, prepared in
accordance with GAAP, and audited by an independent certified
public accountant, and (ii) an updated rent roll for the Property,
certified by the chief financial officer of Borrower to be true and
correct; and
(d) Borrower shall also promptly provide Bank with
any additional audited financial information that Borrower may
obtain, as well as signed copies of any tax returns and such other
information concerning its affairs and properties as Bank may
reasonably request.
3.6 Borrower agrees that Bank's attorneys fees incurred
in this transaction in the amount of $5,780.00 shall be deemed
protective advances and added to the principal balance of the Loan
(and shall bear interest and be payable in the same manner as other
principal owing under the Note and shall be secured by the Deed of
Trust).
3.7 Borrower shall pay to Bank, within five days
following the Effective Date, a principal payment on the Note equal
to: (i) the number of monthly installments that accrued on the Note
during the period from the Plan Confirmation Date (as defined in
Section 7.1 below) through the Effective Date; multiplied by (ii)
the amount of the new monthly Note installment (as determined on
the Effective Date pursuant to this Agreement) less the amount of
the monthly Note installment immediately prior to such adjustment.
3.8 The Deed of Trust is modified to secure payment and
performance of the Loan as amended to date, in addition to all
other "Secured Obligations" as therein defined. The foregoing
notwithstanding, certain obligations continue to be excluded from
the Secured Obligations, as provided in the Deed of Trust."
4. One-Time Right To Have Loan Documents Assumed By
Purchaser Of The Property. Notwithstanding anything in the Loan
Documents to the contrary, it shall be an "Event of Default" under
the Loan Documents if, without complying with the provisions of
this Section, any of the following events occur: (i) Any sale,
contract to sell (unless conditioned upon compliance with this
Section), conveyance, encumbrance, or other transfer of all or any
part of or any interest in the Property, whether voluntary,
involuntary, by operation of law or otherwise; (ii) If Borrower is
a corporation, any transfer or transfers of shares which, in the
aggregate, constitute more than 50% of the voting power of Borrower
(excluding, however, any publicly held shares if Borrower is a
publicly held corporation); (iii) If Borrower is a partnership, any
transfer or transfers of partnership interests which directly or
indirectly, in the aggregate, constitute more than 50% of the
partnership interests in Borrower; or (iv) If Borrower is any other
form of entity, any transfer or transfers of ownership interests
which directly or indirectly, in the aggregate, constitute more
than 50% of the ownership interests in Borrower. Notwithstanding
the above, The Centennial Group, Inc., a Delaware corporation ("The
Centennial Group"), and only The Centennial Group, may have the
Loan Documents assumed by a bona fide third party purchaser of the
Property one time only, provided that each of the following
conditions are satisfied prior to or concurrently with the transfer
of the Property to such purchaser:
4.1 Bank shall receive a loan assumption fee equal to
one percent (1%) of the loan balance outstanding as of the date of
assumption. Such fee is independent of and in addition to any cost
reimbursement to Bank required in connection with the assumption.
4.2 No Event of Default, or event or condition that with
the giving of notice or the passage of time would become an Event
of Default, then exists.
4.3 Bank shall have approved, in its good faith
discretion, the creditworthiness, real estate experience and
management ability (and any other factors deemed material by Bank)
of the proposed purchaser in accordance with then applicable laws,
regulations, underwriting criteria and internal Bank policies and
guidelines. Without limiting the generality of the foregoing, Bank
may require the proposed purchaser to (i) demonstrate its financial
capacity to service the debt being assumed, (ii) demonstrate that
neither it (nor its principals) have ever filed (or had filed
against them with cause) any bankruptcy or other similar proceeding
or lost any property by foreclosure or deed in lieu of foreclosure,
(iii) provide banking references demonstrating positive banking
relationships, and (iv) demonstrate that the operation of shopping
centers is part of its ordinary course of business.
4.4 The proposed purchaser must acquire fee title to the
Property concurrently with the assumption of the Loan Documents.
4.5 The assumption must be effected by documentation
prepared by Bank. Such documentation may include appropriate
amendments to the Loan Documents and an environmental indemnity on
Bank's then standard form. Bank must receive such assurance,
including any applicable title policy endorsements required by
Bank, as Bank may require that the lien and priority of its Deed of
Trust will not be affected by the assumption.
4.6 Bank shall receive reimbursement for its actual
costs incurred in connection with the assumption (including
attorneys fees, title and recording costs, appraisal fees and any
other costs, and allocated in-house costs).
4.7 At the time the Loan Documents are assumed, at least
78% of the rentable square footage within the shopping center
situated on the Property must be occupied by tenants under bona
fide written leases entered into in accordance with the provisions
of the Loan Agreement. Bank may disregard any leases that are then
in default.
4.8 At the time the Loan Documents are assumed, the
Property shall have a minimum annualized "Debt Coverage Ratio" (as
defined below) of 1.00:1.00. As used in this Section, "Debt
Coverage Ratio" shall mean the ratio of (i) net operating income
produced from the operation of the Property on an annualized cash
basis, to (ii) debt service owing on the Loan on an annualized
basis. Bank shall reasonably determine the "Debt Coverage Ratio"
based on an annualization of the monthly cash operating statements
provided by The Centennial Group to Bank as provided in Section 3.5
above. Bank may disregard any leases that are then in default.
4.10 At the time the Loan Documents are assumed, the
ratio of (i) the then total outstanding amount of the Loan to
(ii) the then current market value of the Property shall not exceed
75% (the "Maximum Loan-to-Value Ratio"). For purposes of this
Section, Bank may obtain at The Centennial Group's expense a
current (i.e. within six months of the date of assumption of the
Loan Documents) appraisal by an independent MAI certified
appraiser. Such appraisal shall determine the then current market
value of the Property using a methodology which (i) conforms to
then-current regulatory requirements, (ii) is considered by Bank to
be reasonable and appropriate under the circumstances, and
(iii) takes into account then-current market conditions, including
vacancy factors, discount rates, and rental rates and concessions.
Provided that all of the above conditions are satisfied or waived
by Bank in writing in its sole discretion, at such time as the
assumption of the Loan Documents by the proposed purchaser becomes
final and effective, The Centennial Group will be released from
further personal liability with respect to the repayment of the
Note. The one time right to have the Loan Documents assumed in
this Section is personal to The Centennial Group and shall
terminate after such right is exercised by The Centennial Group.
5 Future Default. In the event that Borrower subsequently
defaults on its obligations under the Note, the Deed of Trust or
any of the Loan Documents, Bank shall be entitled to record a
notice of default (or, if appropriate, to continue its foreclosure
of any prior recorded notice of default) and accelerate the entire
unpaid indebtedness and/or exercise such other remedies as are
available under the Loan Documents or California law. In the event
of such a default, Borrower agrees that: (i) Bank may obtain
emergency relief from the Bankruptcy court upon 24 hours' tele-
phonic notice to the Borrower and counsel for the Borrower to
proceed with the enforcement of the foregoing remedies;
(ii) Borrower will not oppose the relief described in the preceding
clause (i) or any motion for relief from automatic stay filed by
Bank in connection with the Bankruptcy or any subsequent bankruptcy
proceeding filed by any of them with respect to the Property; and
(iii) Borrower will not attempt to file any action to enjoin a
foreclosure sale of the Property by Bank including pursuant to,
among other things, Bankruptcy Code Section 105 in connection with
the Bankruptcy or any subsequent bankruptcy proceeding.
6. Waivers and Releases. Borrower hereby knowingly makes
the following acknowledgments, agreements, waivers and releases to
and for the benefit of Bank and the other entities and persons
described below:
6.1 Borrower, on behalf of itself and all partnerships,
corporations and other entities which it controls or in which it
has an interest (the "Non-Bank Affiliates"), hereby releases and
forever discharges Bank and its affiliates, agents, employees,
officers, representatives, attorneys, predecessors, successors and
assigns (collectively, the "Bank Affiliates") of and from any and
all claims, demands and cause or causes of action of any nature
whatsoever, whether known or unknown, fixed or contingent, matured
or unmatured, or otherwise now existing or hereafter arising out
of, related to or connected with any transactions between Bank
(and/or the Bank Affiliates) and Borrower (and/or the Non-Bank
Affiliates), or any of them, arising from or related to the
Bankruptcy, the Loan and/or the Loan Documents (or any of them),
including without limitation any and all claims, demands and cause
or causes of action arising out of, related to or connected with
Bank's (or any Bank Affiliate's) negotiation, execution,
performance, enforcement of, or acts or omissions with respect to
the Bankruptcy, the Loan and/or the Loan Documents (or any of
them). Borrower represents and warrants that it has not heretofore
sold, assigned, hypothecated or otherwise transferred to any third
party any rights or interests in or to any such claims, demands or
causes of action.
6.2 Borrower acknowledges that it may have claims
against Bank and/or some or all of the Bank Affiliates of which it
has no knowledge at the time of the execution of this Agreement.
Borrower further acknowledges and agrees that the release set forth
in this Section is specifically intended to and does extend to any
and all claims and causes of action in any way based upon, con-
nected with, or related to the Bankruptcy, the Loan and/or the Loan
Documents (or any of them) or any other dealings between the
parties, whether known or unknown, claimed or suspected. As
further consideration and inducement to Bank, Borrower hereby
waives the provisions of Section 1542 of the California Civil Code,
which reads as follows:
"a general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
___________________
Borrower's Initials
7. Conditions Precedent. This Agreement shall become
effective on the date (the "Effective Date") that Bank records a
short form of this Agreement in the Official Records. Bank shall
have no obligation to record the short form of this Agreement
unless and until all of the following conditions have been
satisfied on or before May 1, 1994, at Borrower's sole cost and
expense in a manner acceptable to Bank (or waived by Bank in
writing) in the exercise of Bank's sole judgement:
7.1 The order of the Bankruptcy court confirming the
Second Amended Plan has been entered, and the applicable time
period for appeal thereof has expired with no appeal having been
filed or with any appeal having been mooted so that the order is
final and non-appealable (the "Plan Confirmation Date").
7.2 Bank shall have received such assurance as Bank may
require that the validity and priority of the Deed of Trust has not
been and will not be impaired by this Agreement or the transactions
contemplated by it, including CLTA Endorsement No. 110.5 to be
attached to Title Policy No. 901941 dated September 14, 1989,
issued by First American Title Insurance Company.
7.3 Bank shall have received fully executed and, where
appropriate, acknowledged originals of this Agreement, the short
form of this Agreement and any other documents which Bank may
require or request in accordance with this Agreement or the other
Loan Documents including without limitation a corporate resolution
of Borrower authorizing this transaction.
7.4 The short form of this Agreement shall have been
recorded in the Official Records of the County of Sacramento,
California, in addition to all other documents which Bank may
require to be recorded.
7.5 Bank shall have received reimbursement, in
immediately available funds, of all costs incurred by Bank in
connection with this Agreement for title policy endorsements,
recording, filing and escrow charges.
7.6 Borrower shall have obtained and recorded in the
Official Records a nonexclusive parking easement establishing that
the Property has nonexclusive parking rights with respect to the
adjoining 25 parking spaces. Such parking easement shall prior to
recordation thereof: (i) be approved by Bank; (ii) satisfy all
legal parking requirements affecting the Property; and (iii) be
senior in priority (by virtue of subordination agreements if
necessary) to any and all liens affecting the adjoining parking
spaces so as to prevent any possibility of extinguishment of such
parking rights by foreclosure of such liens (and such priority
shall be evidenced by an appropriate title policy or endorsement to
Bank's existing title policy). Further, prior to recordation
thereof Borrower shall submit a copy of the final easement document
to the local planning commission with a request that the planning
commission confirm in writing that the easement fulfills the
parking requirements affecting the Property, and shall use its best
efforts to obtain such confirmation.
7.7 All accrued interest owing under the Note (in
accordance with the terms of the Note prior to its modification by
this Agreement, without regard to the Maturity Date) shall be paid
through the Effective Date of this Agreement.
8. Borrower's Representations and Warranties. Borrower
represents and warrants to Bank as follows:
8.1 Loan Documents. This transaction has been duly
authorized by Borrower, and the individuals executing this
Agreement and any other documents executed in connection with this
Agreement have the power and authority and are duly authorized to
execute such documents and bind Borrower. All representations and
warranties made and given by Borrower in this Agreement and any and
all documents executed in connection with this Agreement are true,
accurate and correct.
8.2 No Default. Except as described in Recital F to
this Agreement, no Event of Default has occurred and is continuing,
and no event has occurred and is continuing which, with notice or
the passage of time or both, would be an Event of Default.
8.3 Property. Borrower lawfully possesses and holds fee
simple title to all of the Property which is real property, and the
Deed of Trust is a first and prior lien on that property. Borrower
owns all of the Property which is personal property free and clear
of any reservations of title and conditional sales contracts, and
also of any security interests other than the Deed of Trust, which
is a first and prior lien on such property. There is no financing
statement affecting any Property on file in any public office
except for financing statements in favor of Bank.
8.4 Borrowing Entity. Borrower continues to be a
corporation which is duly organized and validly existing under the
laws of the State of Delaware and qualified to do business in the
State of California, and there have been no changes in the
formation documents of Borrower since the inception of the Loan.
Borrower is a publicly held corporation and no one person or entity
currently holds more than 15% of the outstanding shares of
Borrower.
9. Incorporation. This Agreement shall form a part of each
Loan Document, and all references to a given Loan Document shall
mean that document as hereby modified.
10. No Prejudice; Reservation of Rights. This Agreement
shall not prejudice any rights or remedies of Bank under the Loan
Documents or Borrower's Indemnity. Bank reserves, without
limitation, all rights which it has against any indemnitor,
guarantor, or endorser of the Note.
11. No Impairment. Except as specifically hereby amended,
the Loan Documents and Borrower's Indemnity shall each remain
unaffected by this Agreement and all such documents shall remain in
full force and effect. Nothing in this Agreement shall impair the
lien of the Deed of Trust, which as hereby amended shall remain one
deed of trust with one power of sale, creating a first lien
encumbering the Property.
12. Purpose and Effect of Bank's Approval. Bank's approval
of any matter in connection with the Loan shall be for the sole
purpose of protecting Bank's security and rights. No such approval
shall result in a waiver of any default of Borrower. In no event
shall Bank's approval be a representation of any kind with regard
to the matter being approved.
13. Disclosure to Title Company. Without notice to or the
consent of Borrower, Bank may disclose to any title insurance
company which insures any interest of Bank under the Deed of Trust
(whether as primary insurer, coinsurer or reinsurer) any
information, data or material in Bank's possession relating to
Borrower, the Loan, the Improvements or the Property.
14. Integration. The Loan Documents, including this
Agreement and Borrower's Indemnity: (a) integrate all the terms and
conditions mentioned in or incidental to the Loan Documents and
Borrower's Indemnity; (b) supersede all oral negotiations and prior
and other writings with respect to their subject matter; and (c)
are intended by the parties as the final expression of the
agreement with respect to the terms and conditions set forth in
those documents and as the complete and exclusive statement of the
terms agreed to by the parties. If there is any conflict between
the terms, conditions and provisions of this Agreement and those of
any other agreement or instrument, including any of the other Loan
Documents or Borrower's Indemnity, the terms, conditions and
provisions of this Agreement shall prevail.
15. Miscellaneous. This Agreement and any attached consents
or exhibits requiring signatures may be executed in counterparts,
and all counterparts shall constitute but one and the same
document. If any court of competent jurisdiction determines any
provision of this Agreement or any of the other Loan Documents or
Borrower's Indemnity to be invalid, illegal or unenforceable, that
portion shall be deemed severed from the rest, which shall remain
in full force and effect as though the invalid, illegal or
unenforceable portion had never been a part of the Loan Documents
or Borrower's Indemnity. This Agreement shall be governed by the
laws of the State of California, without regard to the choice of
law rules of that State. As used here, the word "include(s)" means
"includes(s), without limitation," and the word "including" means
"including, but not limited to."
THE CENTENNIAL GROUP, INC.,
a Delaware corporation
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
a national banking association
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
FOURTH MODIFICATION AGREEMENT
(Long Form)
This Fourth Modification Agreement (this "Agreement") is
made as of February __, 1994, by THE CENTENNIAL GROUP, INC., a
Delaware corporation ("Borrower"), and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, a national banking association
("Bank"). Bank is the successor by merger to Security Pacific
National Bank, a national banking association ("SPNB").
Factual Background
A. Under a Building Loan Agreement dated May 31, 1982 (the
"Loan Agreement"), SPNB agreed to make a construction loan (the
"Loan") to Centennial Capital Fund, a California limited
partnership ("Original Borrower"). Capitalized terms used here
without definition have the meanings given to them in the Loan
Agreement.
B. The following documents, among others, were initially
executed in connection with the Loan:
(i) a Promissory Note dated May 31, 1982 (the
"Note"), executed by Original Borrower, as maker, in favor of
SPNB, as payee, in the stated principal amount of $2,550,000.00;
(ii) a Construction Deed of Trust and Assignment of
Rents and Leases dated May 31, 1982 (the "Deed of Trust"),
executed by Original Borrower as trustor, to First American Title
Insurance Company of Arizona, a corporation as trustee, for the
benefit of SPNB as beneficiary. The Deed of Trust was recorded
on September 15, 1982 in Docket 1298, page 542 in the Office of
the County Recorder of Yuma County (now La Paz County), Arizona
(the "Official Records"), and filed on September 28, 1982 as No.
603-21-79 in the records of the Southwest Title Plant, Bureau of
Indian Affairs in Albuquerque, New Mexico. The Deed of Trust
encumbers certain Property located in La Paz County, Arizona, as
more particularly therein described;
(iii) Security Agreement dated May 31, 1982, executed
by Original Borrower, as debtor, in favor of SPNB, as secured
party (the "Security Agreement");
(iv) a Continuing Guaranty dated May 31, 1982 (the
"Guaranty"), executed by Ronald R. White, John B. Joseph,
Centennial Capital, Inc., a California corporation, Ronald R.
White as Trustee of the Ronald R. White Family Trust, and John B.
Joseph as Trustee of the John B. Joseph Family Trust
(collectively, "Guarantors"); and
(v) an Attornment Agreement dated May 31, 1982 (the
"Attornment Agreement"), executed by the Secretary of the
Department of the Interior, the Colorado River Indian Tribes and
Original Borrower, in favor of SPNB. The Attornment Agreement
was recorded on September 15, 1982, in Docket 1298, Page 554 in
the Official Records, and filed on September 28, 1982 as No. 603-
21-79 in the Southwest Title Plant, Bureau of Indian Affairs in
Albuquerque, New Mexico.
C. The Loan Documents previously have been modified by the
following (collectively, the "Prior Modifications"):
(i) a Modification of Building Loan Agreement and
Promissory Note dated August 6, 1984, between SPNB and Original
Borrower, and recorded in Docket _____, Page ___, in the Official
Records;
(ii) a Loan Assumption Agreement dated June 19, 1987,
between SPNB, as lender, Original Borrower, as assignor, and
Borrower, as assignee, and recorded on February 1, 1988, as
Instrument No. 88-0691 in the Official Records;
(iii) a Second Modification of Building Loan Agreement
and Promissory Note dated December 11, 1989, between SPNB and
Borrower, and recorded in Docket _____, Page ___, in the Official
Records; and
(iv) a Third Modification of Building Loan Agreement
and Promissory Note dated June 1, 1990, between SPNB and
Borrower, and recorded in Docket _____, Page ___, in the Official
Records.
D. As used herein, the term "Loan Documents" means the
Loan Agreement, the Note, the Deed of Trust, the Security
Agreement, the Guaranty, the Attornment Agreement, the Prior
Modifications, and any other documents executed in connection
with the Loan, including those which evidence, guaranty, secure
or modify the Loan, as any or all of them may have been amended
to date. This Agreement is a Loan Document. The parties
acknowledge that certain loan documents for a permanent loan in
the face amount of $3,000,000 were prepared and signed by the
Borrower (but not the Bank) in or about July, 1985, and that such
loan documents never became effective and are not Loan Documents.
E. The outstanding principal balance of the Loan as of
December 1, 1993 is $2,156,610.34. Bank is no longer obligated
to make any further disbursements to Borrower.
F. The Note matured on June 1, 1991 and has not been
repaid.
G. On December 13, 1991, Borrower commenced its Chapter 11
bankruptcy case by filing a Chapter 11 petition in the United
States Bankruptcy Court, Central District of California, Case No.
SA-91-41813 JW (the "Bankruptcy"). In connection with the
Bankruptcy, Borrower has filed Debtor's Second Amended Chapter 11
Plan of Reorganization, as modified (the "Second Amended Plan").
H. Pursuant to the terms of the Second Amended Plan,
Borrower and Bank have agreed to modify the Loan as set forth
below.
Agreement
Therefore, Borrower and Bank agree as follows:
1. Recitals. The recitals set forth above in the Factual
Background are true, accurate and correct.
2. Reaffirmation of Loan. Borrower reaffirms all of its
obligations under the Loan Documents. Borrower agrees to execute
any and all additional documents that Bank reasonably requires to
further reaffirm such obligations. Borrower acknowledges that it
has no claims, offsets or defenses with respect to the payment of
sums due under the Note or any other Loan Document. In the event
of any inconsistency between the terms of the Loan Documents and
the terms of the Second Amended Plan, the terms of the Loan
Documents shall govern.
3. Modification of Loan Documents. Effective
prospectively as of the Effective Date (as defined in Section 7
below), the Loan Documents are hereby amended as follows:
3.1 Paragraphs (a), (b), and (c) on page 1 of the
Note (as the foregoing have been amended by the Prior
Modifications), are deleted in their entirety and replaced with
the following new paragraphs (a), (b) and (c) as follows:
"(a) As used in this Note, the term "Effective
Date" shall have the same meaning given to such term in the
Fourth Modification Agreement (Long Form) dated February __,
1994, between Borrower and Bank. The principal amount outstanding
hereunder from time to time shall bear interest at the applicable
rate ("Note Rate") described below. As of the Effective Date,
the Note Rate shall be changed to equal (i) the Reference Rate
(as defined below) in effect on the Effective Date, plus (ii) two
percent (2%) per annum (the "Initial Note Rate"). Upon the
expiration of the last day of the twelfth (12th) month following
the month in which the Effective Date occurs, and upon the
expiration of the last day of each twelve (12) month period
thereafter during the remaining term of the Note (each, an
"Adjustment Date"), the Note Rate shall be adjusted to equal the
lesser of the following: (i) the Reference Rate (as defined
below) in effect on the applicable Adjustment Date, plus two
percent (2%) per annum; (ii) the Note Rate in effect immediately
prior to such Adjustment Date, plus two percent (2%) per annum;
and (iii) the Initial Note Rate, plus five percent (5%) per
annum. The Initial Note Rate, and each subsequently adjusted
Note Rate, shall remain constant until the next succeeding
Adjustment Date. The term "Reference Rate" shall mean the rate
of interest publicly announced from time to time by Bank at
San Francisco, California as its Reference Rate. The Reference
Rate is set by Bank based on various factors, including Bank's
costs and desired return, general economic decisions and other
factors, and is used as a reference point for pricing loans.
Bank may price loans at, above or below the Reference Rate. Any
change in the Reference Rate shall take effect on the day
specified in the public announcement of such change.
(b) As used in this Note, the term "Installment
Commencement Date" shall mean the first day of the month
immediately following the month in which the Effective Date
occurs. Monthly installments of principal and interest in the
applicable amount described below shall be due and payable in
arrears commencing on the Installment Commencement Date, and on
the 1st day of each month thereafter during the remaining term of
the Note. The initial monthly installment amount shall equal an
amount which would fully amortize the Loan balance existing on
the Effective Date, over a 180-month amortization period that
began on the Effective Date, assuming that the Initial Note Rate
remained constant during such amortization period. The monthly
installment amount shall be adjusted thereafter on each
Adjustment Date to equal an amount which would fully amortize the
then remaining Loan balance, over the then remaining portion of
the 180-month amortization period that began on the Effective
Date, assuming that the then applicable Note Rate (i.e. as
adjusted on such Adjustment Date) remained constant during the
remaining amortization period. The initial monthly installment
amount, and each subsequently adjusted monthly installment
amount, shall remain constant until the next succeeding
Adjustment Date. Bank shall give Borrower notice of the initial
monthly installment amount, and each subsequently adjusted
installment amount, provided, however, that Bank's failure to
give such notice shall not relieve Borrower of the obligation to
pay the amounts owing under this Note. Each monthly installment
shall be applied (in the following order) to late charges,
accrued and unpaid interest as of the due date of the
installment, and principal, unless an Event of Default exists, in
which event Bank may apply the monthly installment in such manner
as Bank determines in its sole discretion. Notwithstanding the
above, all principal and accrued and unpaid interest shall become
due and payable on the fifth (5th) annual anniversary of the
Effective Date (the "Maturity Date").
(c) Borrower acknowledges that late payment to
Bank of any monthly installment will cause Bank to incur
administrative and other costs not contemplated by this Loan.
Such costs include, without limitation, processing and accounting
charges. Therefore, if Bank has not received the full amount of
any monthly installment within 15 calendar days after the date it
is due, Borrower will pay an additional sum to Bank in the amount
of 5% of the overdue installment as a late charge. This late
charge shall be payable only once on any late monthly
installment. If any such late charge is not recognized as
liquidated damages to Bank (as contemplated by the parties), and
is deemed to be in excess of the amount permitted to be charged
to Borrower under applicable law, Bank shall be permitted to
collect a late charge only in the highest amount permitted by
law, and any amount actually collected by Bank in excess of such
lawful amount shall be applied as a payment in reduction of
outstanding principal. In addition to (and not in lieu of) the
foregoing late charge, if any monthly installment is not paid
within 15 calendar days after the date it is due, such monthly
installment shall bear interest from the date it is due until
paid at an annual rate (the "Default Rate") of 3% in excess of
the then applicable Note Rate. Borrower acknowledges that such
interest is a charge for the Borrower's use of the delinquent
amount and not for administrative costs which are intended to be
covered by the late charge."
3.2 The definition of "Maturity Date" on page 3 of
the Loan Agreement is hereby deleted in its entirety and replaced
with the following new definition of "Maturity Date":
"'Maturity Date' shall have the meaning given to
such term in the Note."
3.3 Section 6.8 of the Loan Agreement is amended as
follows. Paragraphs (a), (b) and (c) of Section 6.8 are deleted,
and the following new paragraphs (a), (b) and (c) are substituted
therefor. The following new paragraph (m) is added to the end of
Section 6.8. All other paragraphs within Section 6.8 shall
remain unaffected:
"(a) as soon as available and in any event not
later than 15 days following the last day of each calendar month,
an operating statement (on a cash basis) for such month
reflecting all cash income and expenses (including reserves) with
respect to the operation of the Property, certified by the chief
financial officer of Borrower to be true and correct;
(b) as soon as available and in any event not
later than 45 days following the last day of each of the first
three quarters of each Fiscal Year, (i) financial statements
(i.e. a balance sheet, income statement and cash flow statement)
for Borrower for such quarter, prepared in accordance with
generally accepted accounting principles consistently applied
("GAAP"), and (ii) an updated rent roll for the Property, each
certified by the chief financial officer of Borrower to be true
and correct;
(c) as soon as available and in any event not
later than 90 days following the last day of each Fiscal Year,
(i) financial statements (i.e. a balance sheet, income statement
and cash flow statement) for Borrower for such Fiscal Year,
prepared in accordance with GAAP, and audited by an independent
certified public accountant, (ii) financial statements (i.e. a
balance sheet, income statement and cash flow statement) for each
Guarantor for such Fiscal Year, accompanied by the certificate of
the applicable Guarantor that such statements present fairly the
financial position of such Guarantor as of the date thereof in
conformity with GAAP, and (iii) an updated rent roll for the
Property, certified by the chief financial officer of Borrower to
be true and correct . . .
(m) Promptly upon receipt thereof, any audited
financial information of any nature regarding Borrower, the
Property or any Guarantor that becomes available."
3.4 Section 9.1 of the Loan Agreement is amended to
include the following additional subsection (p) at the end
thereof:
"(p) Borrower fails to pay any payment of
personal or property taxes affecting the Property as required by
the Second Amended Chapter 11 Plan of Reorganization approved by
the court in Borrower's Chapter 11 proceeding in the United
States Bankruptcy Court, Central District of California, Case No.
SA-91-41813 JW."
3.5 Any remaining undisbursed Loan proceeds (if any)
are cancelled, and Bank has no further obligation to make any
advances under the Loan Documents.
3.6 Borrower agrees that Bank's attorneys fees
incurred in this transaction in the amount of $14,220.00 shall be
deemed protective advances and added to the principal balance of
the Loan (and shall bear interest and be payable in the same
manner as other principal owing under the Note and shall be
secured by the Deed of Trust).
3.7 Borrower shall pay to Bank, within five days
following the Effective Date, a principal payment on the Note
equal to: (i) the number of monthly installments that accrued on
the Note during the period from the Plan Confirmation Date (as
defined in Section 7.1 below) through the Effective Date;
multiplied by (ii) the amount of the new monthly Note installment
(as determined on the Effective Date pursuant to this Agreement)
less the amount of the monthly Note installment immediately prior
to such adjustment.
3.8 The Deed of Trust is modified to secure payment
and performance of the Loan as amended to date, in addition to
all other "Secured Obligations" as therein defined.
4. One-Time Right To Have Loan Documents Assumed By
Purchaser Of The Property. Notwithstanding anything in the Loan
Documents to the contrary, it shall be an "Event of Default"
under the Loan Documents if, without complying with the
provisions of this Section, any of the following events occur:
(i) Any sale, contract to sell (unless conditioned upon
compliance with this Section), conveyance, encumbrance, or other
transfer of all or any part of or any interest in the Property,
whether voluntary, involuntary, by operation of law or otherwise;
(ii) If Borrower is a corporation, any transfer or transfers of
shares which, in the aggregate, constitute more than 50% of the
voting power of Borrower (excluding, however, any publicly held
shares if Borrower is a publicly held corporation); (iii) If
Borrower is a partnership, any transfer or transfers of
partnership interests which directly or indirectly, in the
aggregate, constitute more than 50% of the partnership interests
in Borrower; or (iv) If Borrower is any other form of entity, any
transfer or transfers of ownership interests which directly or
indirectly, in the aggregate, constitute more than 50% of the
ownership interests in Borrower. Notwithstanding the above, The
Centennial Group, Inc., a Delaware corporation ("The Centennial
Group"), and only The Centennial Group, may have the Loan
Documents assumed by a bona fide third party purchaser of the
Property one time only, provided that each of the following
conditions are satisfied prior to or concurrently with the
transfer of the Property to such purchaser:
4.1 Bank shall receive a loan assumption fee equal to
one percent (1%) of the loan balance outstanding as of the date
of assumption. Such fee is independent of and in addition to any
cost reimbursement to Bank required in connection with the
assumption.
4.2 No Event of Default, or event or condition that
with the giving of notice or the passage of time would become an
Event of Default, then exists.
4.3 Bank shall have approved, in its good faith
discretion, the creditworthiness, real estate experience and
management ability (and any other factors deemed material by
Bank) of the proposed purchaser in accordance with then
applicable laws, regulations, underwriting criteria and internal
Bank policies and guidelines. Without limiting the generality of
the foregoing, Bank may require the proposed purchaser to
(i) demonstrate its financial capacity to service the debt being
assumed, (ii) demonstrate that neither it (nor its principals)
have ever filed (or had filed against them with cause) any
bankruptcy or other similar proceeding or lost any property by
foreclosure or deed in lieu of foreclosure, (iii) provide banking
references demonstrating positive banking relationships, and
(iv) demonstrate that the operation of shopping centers is part
of its ordinary course of business.
4.4 The proposed purchaser must acquire title to the
Property concurrently with the assumption of the Loan Documents.
4.5 The assumption must be effected by documentation
prepared by Bank. Such documentation may include appropriate
amendments to the Loan Documents and an environmental indemnity
on Bank's then standard form. Bank must receive such assurance,
including any applicable title policy endorsements required by
Bank, as Bank may require that the lien and priority of its Deed
of Trust will not be affected by the assumption.
4.6 Bank shall receive reimbursement for its actual
costs incurred in connection with the assumption (including
attorneys fees, title and recording costs, appraisal fees and any
other costs, and allocated in-house costs).
4.7 At the time the Loan Documents are assumed, at
least 80% of the rentable square footage within the shopping
center situated on the Property must be occupied by tenants under
bona fide written leases entered into in accordance with the
provisions of the Loan Agreement. Bank may disregard any leases
that are then in default.
4.8 At the time the Loan Documents are assumed, the
Property shall have a minimum annualized "Debt Coverage Ratio"
(as defined below) of 1.40:1.00. As used in this Section, "Debt
Coverage Ratio" shall mean the ratio of (i) net operating income
produced from the operation of the Property on an annualized cash
basis, to (ii) debt service owing on the Loan on an annualized
basis. Bank shall reasonably determine the "Debt Coverage Ratio"
based on an annualization of the monthly cash operating
statements provided by The Centennial Group to Bank as provided
in Section 3.5 above. Bank may disregard any leases that are
then in default.
4.10 At the time the Loan Documents are assumed, the
ratio of (i) the then total outstanding amount of the Loan to
(ii) the then current market value of the Property shall not
exceed 75% (the "Maximum Loan-to-Value Ratio"). For purposes of
this Section, Bank may obtain at The Centennial Group's expense
a current (i.e. within six months of the date of assumption of
the Loan Documents) appraisal by an independent MAI certified
appraiser. Such appraisal shall determine the then current
market value of the Property using a methodology which
(i) conforms to then-current regulatory requirements, (ii) is
considered by Bank to be reasonable and appropriate under the
circumstances, and (iii) takes into account then-current market
conditions, including vacancy factors, discount rates, and rental
rates and concessions.
Provided that all of the above conditions are satisfied or waived
by Bank in writing in its sole discretion, at such time as the
assumption of the Loan Documents by the proposed purchaser
becomes final and effective, The Centennial Group and Guarantors
will be released from further personal liability with respect to
the repayment of the Note. The one time right to have the Loan
Documents assumed in this Section is personal to The Centennial
Group and shall terminate after such right is exercised by The
Centennial Group.
5. Future Default. In the event that Borrower
subsequently defaults on its obligations under the Note, the Deed
of Trust or any of the Loan Documents, Bank shall be entitled to
record a notice of default (or, if appropriate, to continue its
foreclosure of any prior recorded notice of default) and
accelerate the entire unpaid indebtedness and/or exercise such
other remedies as are available under the Loan Documents or
Arizona law. In the event of such a default, Borrower and
Guarantors each agree that: (i) Bank may obtain emergency relief
from the Bankruptcy court upon 24 hours' telephonic notice to the
Borrower and counsel for the Borrower to proceed with the
enforcement of the foregoing remedies; (ii) Borrowers and
Guarantor will not oppose the relief described in the preceding
clause (i) or any motion for relief from automatic stay filed by
Bank in connection with the Bankruptcy or any subsequent
bankruptcy proceeding filed by any of them with respect to the
Property; and (iii) Borrower and Guarantors will not attempt to
file any action to enjoin a foreclosure sale of the Property by
Bank including pursuant to, among other things, Bankruptcy Code
Section 105 in connection with the Bankruptcy or any subsequent
bankruptcy proceeding.
6. Waivers and Releases. Borrower and Guarantors
(collectively, the "Waiving Parties") hereby knowingly make the
following acknowledgments, agreements, waivers and releases to
and for the benefit of Bank and the other entities and persons
described below:
6.1 Each of the Waiving Parties, on behalf of itself
and all partnerships, corporations and other entities which it
controls or in which it has an interest (the "Non-Bank
Affiliates"), hereby releases and forever discharges Bank and its
affiliates, agents, employees, officers, representatives,
attorneys, predecessors, successors and assigns (collectively,
the "Bank Affiliates") of and from any and all claims, demands
and cause or causes of action of any nature whatsoever, whether
known or unknown, fixed or contingent, matured or unmatured, or
otherwise now existing or hereafter arising out of, related to or
connected with any transactions between Bank (and/or the Bank
Affiliates) and the Waiving Parties (and/or the Non-Bank
Affiliates), or any of them, arising from or related to the
Bankruptcy, the Loan and/or the Loan Documents (or any of them),
including without limitation any and all claims, demands and
cause or causes of action arising out of, related to or connected
with Bank's (or any Bank Affiliate's) negotiation, execution,
performance, enforcement of, or acts or omissions with respect to
the Bankruptcy, the Loan and/or the Loan Documents (or any of
them). Each of the Waiving Parties represents and warrants that
it has not heretofore sold, assigned, hypothecated or otherwise
transferred to any third party any rights or interests in or to
any such claims, demands or causes of action.
6.2 Each of the Waiving Parties acknowledges that it
may have claims against Bank and/or some or all of the Bank
Affiliates of which it has no knowledge at the time of the
execution of this Agreement. Each of the Waiving Parties further
acknowledges and agrees that the release set forth in this
Section is specifically intended to and does extend to any and
all claims and causes of action in any way based upon, connected
with, or related to the Bankruptcy, the Loan and/or the Loan
Documents (or any of them) or any other dealings between the
parties, whether known or unknown, claimed or suspected.
7. Conditions Precedent; Effective Date. This Agreement
shall become effective on the date (the "Effective Date") that
Bank records a short form of this Agreement in the Official
Records. Bank shall have no obligation to record the short form
of this Agreement unless and until all of the following
conditions have been satisfied on or before May 1, 1994, at
Borrower's sole cost and expense in a manner acceptable to Bank
(or waived by Bank in writing) in the exercise of Bank's sole
judgement:
7.1 The order of the Bankruptcy court confirming the
Second Amended Plan has been entered, and the applicable time
period for appeal thereof has expired with no appeal having been
filed or with any appeal having been mooted so that the order is
final and non-appealable (the "Plan Confirmation Date").
7.2 Bank shall have received such assurance as Bank
may require that the validity and priority of the Deed of Trust
has not been and will not be impaired by this Agreement or the
transactions contemplated by it, including CLTA Endorsement No.
110.5 to be attached to Title Policy No. 901941 dated
September 14, 1989, issued by First American Title Insurance
Company.
7.3 Bank shall have received fully executed and,
where appropriate, acknowledged originals of this Agreement, the
short form of this Agreement and any other documents which Bank
may require or request in accordance with this Agreement or the
other Loan Documents, including without limitation a UCC-1
Financing Statement and fixture filing executed by Borrower with
respect to the Property and a corporate resolution of Borrower
authorizing this transaction.
7.4 The short form of this Agreement shall have been
recorded in the Official Records of La Paz County, Arizona, in
addition to all other documents which Bank may require to be
recorded.
7.5 Bank shall have received reimbursement, in
immediately available funds, of all costs incurred by Bank in
connection with this Agreement for title policy endorsements,
recording, filing and escrow charges.
7.6 Each of the Guarantors shall have provided to
Bank financial statements (i.e. balance sheet, income statement
and statement of changes in financial condition) reasonably
acceptable to Bank and prepared within six months prior to the
date of this Agreement. Further, Bank shall have received copies
of the most recent trust agreements and amendments of those
Guarantors that are trusts.
7.7 All accrued interest owing under the Note (in
accordance with the terms of the Note prior to its modification
by this Agreement, without regard to the Maturity Date) shall be
paid through the Effective Date of this Agreement.
7.8 The $78,573.50 payment required by the Second
Amended Plan to be made to La Paz County for personal property
taxes for the tax year January 1, 1993 through December 31, 1993
shall have been paid by Borrower from the funds held (in the
amount of approximately $110,000.00) in an impound account as a
reserve for the payment of La Paz County taxes. The balance of
the funds in such account (approximately $31,000.00) shall be
held in such account and applied by Borrower to the first
installment owing under the Second Amended Plan for delinquent
personal property taxes which becomes due on December 10, 1994).
8. Borrower's Representations and Warranties. Borrower
represents and warrants to Bank as follows:
8.1 Loan Documents. This transaction has been duly
authorized by Borrower and the individuals executing this
Agreement and any other documents executed in connection with
this Agreement have the power and authority and are duly
authorized to execute such documents and bind Borrower. All
representations and warranties made and given by Borrower in this
Agreement and any and all documents executed in connection with
this Agreement are true, accurate and correct.
8.2 No Default. Except as described in Recital F to
this Agreement or below in this Section, no Event of Default has
occurred and is continuing, and no event has occurred and is
continuing which, with notice or the passage of time or both,
would be an Event of Default. Borrower has disclosed to Bank
that: (i) Borrower is in default in the payment of personal or
property taxes owing to La Paz County, and that the repayment of
such delinquency has been provided for in the Second Amended
Plan; and (ii) Ground Lessor has informed Borrower that Ground
Lessor has alleged certain defaults under the Ground Lease
relating to (aa) the alleged failure of Borrower to obtain Ground
Lessor's consent to certain leases affecting the Property and
(bb) that the sale of water from stores on the Property may
violate the Ground Lease. The giving of such disclosures to Bank
shall not in any manner waive or affect any rights or remedies
that Bank has under the Loan Documents or the Attornment
Agreement with respect thereto (except that the Bank has
consented to the payment schedule set forth in the Second Amended
Plan for delinquent personal property taxes owing to La Paz
County).
8.3 Property. Borrower lawfully possesses and holds
title to all of the Property which is a ground leasehold interest
in real property, and the Deed of Trust is a first and prior lien
on that property. Borrower owns all of the Property which is
personal property free and clear of any reservations of title and
conditional sales contracts, and also of any security interests
other than the Deed of Trust, which is a first and prior lien on
such property. There is no financing statement affecting any
Property on file in any public office except for financing
statements in favor of Bank.
8.4 Borrowing Entity. Borrower continues to be a
corporation which is duly organized and validly existing under
the laws of the State of Delaware and qualified to do business in
the State of California, and there have been no changes in the
formation documents of Borrower since the inception of the Loan.
Borrower is a publicly held corporation and no one person or
entity currently holds more than 15% of the outstanding shares of
Borrower.
9. Incorporation. This Agreement shall form a part of
each Loan Document, and all references to a given Loan Document
shall mean that document as hereby modified.
10. No Prejudice; Reservation of Rights. This Agreement
shall not prejudice any rights or remedies of Bank under the Loan
Documents. Bank reserves, without limitation, all rights which
it has against any indemnitor, guarantor, or endorser of the
Note.
11. No Impairment. Except as specifically hereby amended,
the Loan Documents shall each remain unaffected by this Agreement
and all such documents shall remain in full force and effect.
Nothing in this Agreement shall impair the lien of the Deed of
Trust, which as hereby amended shall remain one deed of trust
with one power of sale, creating a first lien encumbering the
Property.
12. Purpose and Effect of Bank's Approval. Bank's approval
of any matter in connection with the Loan shall be for the sole
purpose of protecting Bank's security and rights. No such
approval shall result in a waiver of any default of Borrower
(except that the approval by La Paz County and the Bankruptcy
court of the payment schedule for delinquent personal property
taxes set forth in the Second Amended Plan shall cure Borrower's
existing default with respect to the nonpayment of such taxes).
In no event shall Bank's approval be a representation of any kind
with regard to the matter being approved.
13. Disclosure to Title Company. Without notice to or the
consent of Borrower, Bank may disclose to any title insurance
company which insures any interest of Bank under the Deed of
Trust (whether as primary insurer, coinsurer or reinsurer) any
information, data or material in Bank's possession relating to
Borrower, the Loan, the Improvements or the Property.
14. Integration. The Loan Documents, including this
Agreement: (a) integrate all the terms and conditions mentioned
in or incidental to the Loan Documents; (b) supersede all oral
negotiations and prior and other writings with respect to their
subject matter; and (c) are intended by the parties as the final
expression of the agreement with respect to the terms and
conditions set forth in those documents and as the complete and
exclusive statement of the terms agreed to by the parties. If
there is any conflict between the terms, conditions and
provisions of this Agreement and those of any other agreement or
instrument, including any of the other Loan Documents, the terms,
conditions and provisions of this Agreement shall prevail.
15. Miscellaneous. This Agreement and any attached
consents or exhibits requiring signatures may be executed in
counterparts, and all counterparts shall constitute but one and
the same document. If any court of competent jurisdiction
determines any provision of this Agreement or any of the other
Loan Documents to be invalid, illegal or unenforceable, that
portion shall be deemed severed from the rest, which shall remain
in full force and effect as though the invalid, illegal or
unenforceable portion had never been a part of the Loan
Documents. This Agreement shall be governed by the laws of the
State of Arizona, without regard to the choice of law rules of
that State. As used here, the word "include(s)" means
"includes(s), without limitation," and the word "including" means
"including, but not limited to."
THE CENTENNIAL GROUP, INC.,
a Delaware corporation
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
a national banking association,
successor by merger to Security
Pacific National Bank
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
GUARANTOR'S CONSENT
This Guarantor's Consent (this "Consent") is attached to
that certain Fourth Modification Agreement (Long Form) dated as
of February __, 1994 (the "Modification Agreement"), between The
Centennial Group, Inc., a Delaware corporation, and Bank of
America National Trust and Savings Association. All capitalized
terms used in this Consent that are not defined herein shall have
the same meanings given to such terms in the Modification
Agreement. Ronald R. White, an individual ("RRW"), John B.
Joseph, an individual ("JBJ"), Centennial Capital, Inc., a
California corporation ("Centennial Capital"), Ronald R. White,
Trustee of the Ronald R. White Family Trust established pursuant
to that certain Agreement Establishing the Ronald R. White Family
Trust dated February 17, 1978 (the "RRW Trust"), and John B.
Joseph, Trustee of the John B. Joseph Family Trust established
pursuant to that certain Agreement Establishing the John B.
Joseph Family Trust dated November 17, 1975 (the "JBJ Trust")
(collectively, "Guarantors"), each executed the Guaranty referred
to in the Modification Agreement which guaranties the Loan.
RRW and JBJ have represented to Bank that due to changes
they have previously made to the RRW Trust and the JBJ Trust,
respectively, and the substitution of new trustees for such
trusts over which they have no control, they cannot obtain the
signatures of such trusts to this Consent.
RRW and JBJ (for themselves individually and on behalf of
the RRW Trust and the JBJ Trust, respectively, as trustors of
such trusts and otherwise to the extent that they may have
authority to bind such trusts), and Centennial Capital, each
having read and understood the foregoing provisions of the
Modification Agreement, each hereby:
(a) consents to all of the terms and provisions of
the Modification Agreement;
(b) agrees that the Modification Agreement does not
terminate any of the obligations of the undersigned to Bank under
the Guaranty, and that the Guaranty extends to the Loan Documents
as modified by the Modification Agreement;
(c) consent to not obtaining the signatures of the
RRW Trust and JBJ Trust to this Consent, and agree that the Bank
did not intend to and has not waived or released any obligations
of the RRW Trust and the JBJ Trust under the Guaranty; and
(d) joins in and agrees to the provisions of
Sections 4 (Future Default), 5 (Waivers and Releases) and 3.3
(Financial Statements) of the Agreement, all of which Sections
are incorporated herein by this reference.
Further RRW and JBJ represent to the Bank that the
Modification Agreement does not release the RRW Trust and the JBJ
Trust from any obligations under the Guaranty.
Each Guarantor has been advised to, and has had the
opportunity to, consult with counsel regarding this document, and
has executed this document with full knowledge of the
consequences hereof. Nothing contained herein shall constitute
a waiver of Bank's right to modify the Note or any other Loan
Document without the consent of the undersigned or any Guarantors
who have not signed this Consent.
Dated: February __, 1994
_________________________________
RONALD R. WHITE, an individual
_________________________________
JOHN B. JOSEPH, an individual
CENTENNIAL CAPITAL, INC., a California corporation
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
CONSENT OF GROUND LESSOR AND
SECRETARY OF THE INTERIOR
This Consent of Ground Lessor and Secretary of the Interior
(this "Consent") is attached to that certain Fourth Modification
Agreement (Long Form) dated as of February __, 1994 (the
"Modification Agreement"), between The Centennial Group, Inc., a
Delaware corporation ("Original Tenant"), and Bank of America
National Trust and Savings Association, successor by merger to
Security Pacific National Bank.
Colorado River Indian Tribes ("Ground Lessor") and Borrower
are the current landlord and tenant, respectively, under that
certain Master Lease No. B-526-CR, which has been modified by
written amendments dated December 28, 1979, April 11, 1980 and
February 6, 1981, and by an Assignment of Lease dated January 17,
1980 (pursuant to which Borrower became the tenant under the
Lease) (collectively, the "Lease"). Ground Lessor, the Secretary
of the Department of the Interior (the "Secretary") and Original
Borrower previously executed an Attornment Agreement dated
May 31, 1982, in favor of Security Pacific National Bank (the
"Attornment Agreement"). The Attornment Agreement was recorded
on September 15, 1982, in Docket 1298, Page 554 in the Official
Records, and filed on September 28, 1982 as No. 603-21-79 in the
Southwest Title Plant, Bureau of Indian Affairs in Albuquerque,
New Mexico.
The undersigned Ground Lessor and Secretary each hereby (i)
consent to and approve of the attached Modification Agreement,
and (ii) agree that the changes to the Loan Documents evidenced
by the Modification Agreement shall in no way detract from or
otherwise affect the obligations of the Ground Lessor and
Secretary under the Attornment Agreement.
Dated: February __, 1994
SECRETARY OF THE DEPARTMENT OF THE INTERIOR
By _____________________________
Superintendent,
Colorado River Indian Agency
COLORADO RIVER INDIAN TRIBES
By _____________________________
___________________, Chairman
By _____________________________
__________________, Secretary
EXHIBIT "3"
EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO ASSUME
CONTRACTING PARTY: TYPE OF CONTRACT/LEASE:
CAL OLSON GOLF COURSE ARCHITECTURE GOLF COURSE ARCHITECTURE
3070 BRISTOL STREET, SUITE 460 SERVICES
COSTA MESA, CA 92626 NORTHPOINTE ESTATES
DE LA VERGNE & MCMURTRY CONTRACT FOR LEGAL SERVICES
1730 I STREET, SUITE 260
SACRAMENTO, CA 95814
CITY OF FOLSOM VARIOUS AGREEMENTS WITH CITY
PHIL MERING, CITY ATTORNEY ENVIRONMENTAL IMPACT REPORT 50
NATOMAS STREET AND OTHER MATTERS RELATED
FOLSOM, CA 95630 - ALDER CREEK
CHARLES G. PETERSON & CONTRACT FOR SALE 15 ACRES
WILLIAM O. PERRY OF LAND AND RELATED
C/O CHARLES G. PETERSON AGREEMENTS. ALDER CREEK DEBTOR
FOLSOM LAKE FORD IS SELLER.
9479 MADISON AVE.
FOLSOM, CA 95630
CHARLES G. PETERSON & CONTRACT FOR SALE 1 ACRE OF
WILLIAM O. PERRY LAND. ALDER CREEK DEBTOR
C/O CHARLES G. PETERSON IS SELLER.
FOLSOM LAKE FORD
9479 MADISON AVE.
FOLSOM, CA 95630
SACRAMENTO COUNTY REGIONAL REIMBURSEMENT AGREEMENT
SANITATION DISTRICT NORTH NATOMAS
9660 ECOLOGY LANE
SACRAMENTO, CA 95827
RECLAMATION DISTRICT 1000 INTERIM AGREEMENT
1633 GARDEN HIGHWAY NORTH NATOMAS DRAINAGE
SACRAMENTO, CA 95833 AGREEMENT TRUXEL 75
CITY OF SACRAMENTO DEVELOPMENT AGREEMENT
915 I STREET NORTHPOINTE ESTATES
ROOM 203
SACRAMENTO, CA 95814
CITY OF SACRAMENTO DEVELOPMENT AGREEMENT
915 I STREET GATEWAY 5 WEST
ROOM 203
SACRAMENTO, CA 95814
CITY OF SACRAMENTO DEVELOPMENT AGREEMENT
915 I STREET TRUXEL 75
ROOM 203
SACRAMENTO, CA 95814
SOUTHERN CALIFORNIA WATER COMPANY REIMBURSEMENT AGREEMENT
3625 WEST SUTTER ST. CORDOVA RETAIL CENTER
P.O. BOX 76893
LOS ANGELES, CA 90076
630 E. FOOTHILL
SAN DIMAS, CA 91773
SCHOW DEVELOPMENT SALE COMMISSION AGREEMENT ON
P.O. BOX 22517 DEBTOR'S ALDER CREEK PROPERTY
FLAGSTAFF, AZ 86002
ATTN: BRENT SCHOW
TARGET LETTER OF INTENT TO PURCHASE -
33 SOUTH SIXTH STREET LAGUNA. DEBTOR IS SELLER.
P.O. BOX 1392
MINNEAPOLIS, MN 55940-1392
CENTENNIAL PROPERTIES, INC. PROPERTY MANAGEMENT CONTRACT
282 SOUTH ANITA DRIVE ON DEBTOR'S 282 ANITA DRIVE
ORANGE, CA 92668 PROPERTY
CENTENNIAL PROPERTIES, INC. PROPERTY MANAGEMENT CONTRACT
282 SOUTH ANITA DRIVE ON DEBTOR'S CORDOVA RETAIL
ORANGE, CA 92668 CENTER PROPERTY
WALKER SWEEPING SWEEPING SERVICE
P.O. BOX 445 CORDOVA RETAIL CENTER
FOLSOM, CA 95630
ARROW LANDSCAPE LANDSCAPE SERVICE
P.O. BOX 2516 CORDOVA RETAIL CENTER
FAIR OAKS, CA 95628
SACRAMENTO CONTROL SYSTEMS FIRE ALARM SERVICE
11249 SUNCO DRIVE, SUITE 3 CORDOVA RETAIL CENTER
RANCHO CORDOVA, CA 95742
CLEAN IMPRESSIONS JANITORIAL SERVICE
7109 HATFIELD COURT CORDOVA RETAIL CENTER
CITRUS HEIGHTS, CA 95610
DEVELOPERS INSURANCE COMPANY INDEMNIFICATION AGREEMENT -
17780 FITCH PERFORMANCE BONDS
IRVINE, CA 92714 DEBTOR IS INDEMNIFIER.
FIRST INTERSTATE BANK REGISTRAR & TRANSFER AGENT
707 WILSHIRE BLVD. AGREEMENT
LOS ANGELES, CA 90017
TRI-AD ACTUARIES, INC. FLEX PLAN ADMINISTRATION
411 S. IVY ST. AGREEMENT
ESCONDIDO, CA 92033
EMPLOYEES, OFFICERS & DIRECTORS INDEMNIFICATION AGREEMENT PER
THE CENTENNIAL GROUP, INC. BYLAWS AND CERTIFICATE OF
282 S. ANITA DR. INCORPORATION. DEBTOR IS
ORANGE, CA 92668 INDEMNIFIER.
RONALD R. WHITE INDEMNIFICATION AGREEMENT.
282 S. ANITA DRIVE DEBTOR IS INDEMNIFIER.
ORANGE, CA 92668
JOHN B. JOSEPH INDEMNIFICATION AGREEMENT.
282 S. ANITA DR. DEBTOR IS INDEMNIFIER.
ORANGE, CA 92668
RONALD R. WHITE & JOHN B. JOSEPH STOCK PRICE PERFORMANCE
282 S. ANITA DR. AGREEMENT
ORANGE, CA 92668
EMPLOYEES, OFFICERS & DIRECTORS STOCK OPTION AGREEMENT
THE CENTENNIAL GROUP, INC.
282 S. ANITA DR.
ORANGE, CA 92668
LEWIS HOMES OF CALIFORNIA RIGHT OF FIRST OFFER.
1156 N. MOUNTAIN AVE. DEBTOR HOLDS RIGHT OF FIRST
OFFER.
UPLAND, CA 91785
BEACHCOMBERS LOCKER COMMERCIAL LEASE.
P.O. BOX 3046 MOOVALYA PLAZA
PARKER, AZ 85344 DEBTOR IS LESSOR.
49'ER PIZZA COMMERCIAL LEASE.
155 W. RIVERSIDE DRIVE MOOVALYA PLAZA
PARKER, AZ 85344 DEBTOR IS LESSOR.
FASHION CROSSROADS COMMERCIAL LEASE.
950 GARDEN CREST MOOVALYA PLAZA
KINGMAN, AZ 86401 DEBTOR IS LESSOR.
KORNER LAUNDROMAT COMMERCIAL LEASE.
143 W. RIVERSIDE DRIVE MOOVALYA PLAZA
PARKER, AZ 85344 DEBTOR IS LESSOR.
PARKER OFFICE SUPPLY COMMERCIAL LEASE.
139 RIVERSIDE DRIVE MOOVALYA PLAZA
PARKER, AZ 85344 DEBTOR IS LESSOR.
RIVER RAGS COMMERCIAL LEASE.
125 RIVERSIDE DRIVE MOOVALYA PLAZA
PARKER, AZ 85344 DEBTOR IS LESSOR.
VIDEO PLUS COMMERCIAL LEASE.
145 W. RIVERSIDE DRIVE MOOVALYA PLAZA
PARKER, AZ 85344 DEBTOR IS LESSOR.
3M NATIONAL ADV. LEASE FOR ADVERTISING.
2050 W. FREMONT ST. ALDER CREEK
STOCKTON, CA 95203 DEBTOR IS LESSOR.
AHMAD A. SHEHADEH LEASE OF RETAIL SPACE.
99 CENT VIDEO CORDOVA RETAIL CENTER
1555 RIVER PARK DRIVE, SUITE 250 DEBTOR IS LESSOR.
SACRAMENTO, CA 95815
DOI V. NGUYEN & HUNG V. LE LEASE OF RETAIL SPACE.
ASIA GARDEN CORDOVA RETAIL CENTER
11088 OLSON DRIVE DEBTOR IS LESSOR.
RANCHO CORDOVA, CA 95670
DAVID MIRYABIANEH LEASE OF RETAIL SPACE.
SUPERB BURGER CORDOVA RETAIL CENTER
8169 WALNUT HILL WAY DEBTOR IS LESSOR.
FAIR OAKS, CA 95628
FREEWAY PARTNERSHIP LAND LEASE.
817 N. BROADWAY, #D 282 S. ANITA DRIVE
SANTA ANA, CA 92701 DEBTOR IS LESSEE.
CITICORP NORTH AMERICA EQUIPMENT LEASE.
P.O. BOX 7247-0150 COPY MACHINE
PHILADELPHIA, PA 19170-0150 DEBTOR IS LESSEE.
MARINE NATIONAL BANK LETTER OF CREDIT
18401 VON KARMAN AVENUE
IRVINE, CA 92715
