HomeMy WebLinkAboutGilroy Gardens - Purchase and Sale Agreement - Amendment No. 1
F~STAMENDMENTTOPURCHASEANDSALEAGREEMENT
(Gilroy Gardens Property, Gilroy, California)
This First Amendment to Purchase and Sale Agreement ("First Amendment") is made
effective as of the 25th day of February, 2008, by and between the CITY OF GILROY, a charter
city and municipal corporation organized under the Constitution and laws of the State of
California ("Purchaser") and GILROY GARDENS F AMIL Y THEME PARK, INC., a Delaware
nonprofit corporation formerly known as "Bonfante Gardens, Inc." ("Seller").
Recitals
A. Seller and Purchaser have entered into that certain Purchase and Sale Agreement
and Escrow Instructions dated as of January 22, 2008 (the "Purchase Agreement"), pursuant to
which Seller has agreed to sell and convey to Purchaser, and Purchaser has agreed to purchase
from Seller, certain real property, consisting of a horticultural education and theme park known
as Gilroy Gardens located in Gilroy, California, and certain related personal property assets
(collectively the "Property"), subject to and on the terms and conditions contained therein.
Except as otherwise defined herein, the capitalized terms used in this First Amendment shall have
the meanings ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
below, and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Recitals. The Recitals set forth above are true and correct and are incorporated
herein by reference.
2. Extension of Closing Date. Section 2.7.1 of the Purchase Agreement is modified to
provide that the Closing Date shall be March 3,2008 (or such earlier date as is agreed upon by the
parties). Seller acknowledges that the Purchase Agreement provides for Purchaser to pay the
Purchase Price by causing the defeasance of all Senior Lien Bonds outstanding as of November 1,
2007, excluding Senior Lien Bonds (if any) which have been purchased by the City and tendered to
the Bond Trustee for retirement on or before the date set forth in such Section 2.7.1, as required to
enable the execution, delivery and recordation of a Deed of Reconveyance of the Senior Bond Deed
of Trust. This arrangement requires Purchaser to effectively deliver the Purchase Price prior to the
formal Closing. Accordingly, if Purchaser has paid the full Purchase Price as aforesaid, but the
Closing is delayed for any reason, Purchaser may extend the Closing Date to a date selected by
Purchaser (but not later than May 3,2008), in the sole exercise of Purchaser's discretion; provided,
however, that in the event closing has not occurred by March 3,2008, then Buyer and Seller shall
promptly execute instructions to the Escrow Holder directing the Escrow Holder to release the
Trust Indenture Deposits (as that term is used in the Purchase Agreement) to Seller. This paragraph
shall not entitle Seller to further extend the Closing or otherwise fail to perform its obligations
under the Purchase Agreement.
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3. Counterparts. This First Amendment may be executed in counterparts, each of
which shall be deemed an original and together shall constitute one instrument. Copies of this First
Amendment signed by either party and transmitted to the other party by facsimile shall be deemed
the same as an original signature on the First Amendment and shall be binding on, and enforceable
against, such party whose signature is transmitted by facsimile.
4. Conflicts. Except as modified above, the terms and conditions of the Purchase
Agreement shall remain unmodified and in full force and effect. In the event of any conflict or
inconsistency between the terms of this First Amendment and the terms of the Purchase Agreement,
the terms of this First Amendment shall control.
[signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this First Amendment as of the date
first set forth above.
SELLER:
GILROY GARDENS F AMIL Y THEME PARK,
INC., a Delaware nonprofit corporation
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By: Name," /t1;~?/kZ::1
TItle: _t~~1
PURCHASER:
CITY OF(OfLROY, C~ifornia
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By:
By:
APPROVED AS TO FORM:
By:
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Name: Linda A. Callon
Title: City Attorney
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