HomeMy WebLinkAboutBonfante Gardens, Inc. - Amendment Agreement
AMENDMENT AGREEMENT
Amendment Agreement dated as of January 8,2004 between Bonfante Gardens, Inc., a
Delaware nonprofit corporation (the "Corporation"), and the City of Gilroy, a California charter
city and municipal corporation (the "City").
WHEREAS, the Corporation and the City are parties to the Senior Lien Loan Agreement
dated as of December 1,2000 (the "Senior Lien Loan Agreement") between the Corporation as
borrower and the City as lender; and
WHEREAS, the obligations ofthe Corporation under the Senior Lien Loan Agreement
have been pledged by the City to secure the City's Senior Lien Project Revenue Bonds (Bonfante
Gardens Theme Park Project), Series 2000 (the "Bonds") pursuant to the Senior Lien Trust
Indenture dated as of December 1,2000 (the "Senior Lien Trust Indenture") between the City
and BNY Western Trust Company, a California banking corporation, as trustee (the "Trustee");
and
WHEREAS, the Corporation has been delinquent for more than three Business Days (as
defined in the Senior Lien Trust Indenture) in the payment of Loan Repayments (as defined in
the Senior Lien Trust Indenture) and other obligations; and
WHEREAS, pursuant to Section 4.4(b) of the Senior Lien Loan Agreement, in the event
of such delinquency the Project Revenue Fund (as defined in the Senior Lien Trust Indenture) is
required to be transferred to the Trustee and applied as provided in said Section 4.4(b); and
WHEREAS, the Corporation, the beneficial owners of a majority of the outstanding
aggregate principal amount of the Bonds and other parties are in discussions as to how to resolve
the delinquencies and related concerns; and
WHEREAS, the transfer of the Project Revenue Fund to the Trustee at this time pursuant
to Section 4.4(b) of the Senior Lien Loan Agreement could have a material adverse effect on the
ability of the Corporation to continue its operations; and
WHEREAS, the Corporation has requested that the operation of Section 4.4(b) of the
Senior Lien Loan Agreement be deferred while the discussions regarding the delinquencies
continue; and
WHEREAS, pursuant to Section 10.1 of the Senior Lien Loan Agreement and Section
6.07(b) of the Senior Lien Trust Agreement, the provisions of the Senior Lien Loan Agreement
may be amended by the Corporation and the City with the consent of the Trustee, the Trustee's
consent to be upon the consent of the holders of a majority in principal amount of the Bonds at
the time outstanding; and
WHEREAS, by their execution of the consent attached hereto the holders of a majority in
principal amount of the Bonds now outstanding have consented to this Amendment Agreement;
9346359.Bragg Amendment to Indenture
NOW, THEREFORE, the Corporation and the City agree that the Senior Lien Loan
Agreement is hereby amended by amending the second sentence of the third paragraph of
Section 4.4(b) of the Senior Lien Loan Agreement to read in its entirety as follows:
Unless such delinquent amount is paid within five (5) Business Days after receipt of such
notice, then at the direction of the Trustee (to be rendered only upon the request of a
majority in aggregate principal amount of the Owners of the Outstanding Bonds), the
Corporation shall cause the depository bank( s) to, and the depository bank( s) shall,
transfer the Project Revenue Fund to the name and credit of the Trustee.
Neither the execution and delivery of this Amendment Agreement or any consent thereto,
nor any other act in connection herewith or therewith, shall constitute or be interpreted as a
waiver of any default or of any remedy or other right on the part of the City, the Trustee or any
holder of Bonds under the Bonds, the Senior Lien Trust Indenture, the Senior Lien Loan
Agreement or any related instrument, or as an agreement or undertaking to forbear for. any period
from exercising any such remedy or right.
This Amendment Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute one instrument.
This Amendment Agreement is governed by and construed under the laws of California.
IN WITNESS WHEREOF, the City and the Corporation have caused this Amendment
Agreement to be executed in their respective names as of the date first above written.
CITY OF GILROY
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BONF ANTE GARDENS, INC.
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By (4-' I: .~,
Name: ~ ~0-r f' f{1-C<-~
Title: PILeJ~~f
9346359.Bragg Amendment to Indenture
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The foregoing Amendment
Agreement is hereby consented to:
BNY WESTERN TRUST COMPANY, as
Trustee
By
Authorized Officer
CONSENT OF MAJORITY HOLDERS
Each of the undersigned represents that it is the beneficial owner of the principal amount
of Bonds set forth below next to its signature and confirms that it consents to the amendment of
Section 4.4(b) of the Senior Lien Loan Agreement set forth in the foregoing Amendment
Agreement dated as of January 8, 2004 and to the execution by the Trustee of a consent to such
Amendment Agreement.
Outstanding
Principal Amount
of Bonds
PUTNAM [MUNICIPAL HIGH
YIELD FUND]
By
Name:
Title:
9346359.Bragg Amendment to Indenture