Fort Walton Beach Resolution — 85-60-Issuance of IdRB-Perry Street Ltd — reading text

center ( the " project") to be located in the City of Fort Walton Beach, Florida; and pursuant to the terms of the Loan Agreement the Borrower executed and delivered its Promissory Note dated December 20, 1984 in the principal amount of $ 7, 500, 000 ( the Note") payable to the Issuer, and the Issuer has assigned the Note to the Trustee as security for the Bonds; and WHEREAS, as security for its obligations under the Note, the Borrower has executed and delivered that certain Mortgage and Security Agreement dated as of December 15, 1984 ( the " Mortgage") from the Borrower to the Trustee, constituting a first mortgage lien on the Project, and that certain Assignment of Rents and Leases dated as of December l5, 1984 ( the " Assignment of Rents and Leases") from the Borrower to the Trustee, relating to rents from and leases of portions of the Project; and  C WHEREAS, due to unforeseen circumstances the Project has not progressed according the Borrower' to s expectations at the time the Bonds were issued, and accordingly, the Issuer and the Bor rower, wi th the consent of the Trustee and the Purchaser ( on behalf of the holders of all of the Bonds), have agreed to certain amendments to the Loan Agreement and wish to evidence such agreement in this First Amendment; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto formally covenant, agree and bind themselves as follows ( provided, that in the performance of the agreements of the Issuer herein contained, any obligation it may thereby incur for the payment of money shall constitute or give rise to a pecuniary liability not or a charge upon its general credit or against its taxing powers but shall be payable solely out of the proceeds derived from the Loan Agreement, the Note, the Mortgage and the sale of the Bonds referred to in Section 2. 1 of the Loan Agreement), to wit: Section l. Terms and Definitions. ( a) Except as otherwise def ined in this First Amendment, the terms used herein shall have the meanings given thereto in the Loan Agreement. b) The definitions of the following words and terms in Section l. lof the Loan Agreement are hereby amended or added, as the case may be, to read as follows: Amended Note' means the Amended Note of the Borrower in the principal amount o[ $ 7, 500, 000, executed and delivered by the Borrower to the Issuer pursuant to Section 9 of this First Amendment, concurrently with the execution and delivery of this First Amendment. Bond Purchase Agreement' means the Bond Purchase Agreement dated as of December l5, 1984, as amended by that certain First Amendment thereto dated as of December l5, 1985, among the Issuer, the Bor rower and the Purchaser ( an executed counterpart of which has been delivered to the Trustee). Indenture' means the Indenture of Trust dated as of December 15, 1984, as amended and supplemented by that certain First Supplement thereto dated as of December 15, 1985, between the Issuer and the Trustee, author izing the Bonds. 2-  Mortgage' means the Mortgage and Security Agree- ment dated as of December 15, 1984, as supplemented by that certain First Supplement thereto dated as of December 15, 1985, from the Borrower to the Trustee. means the Note' Note of the Borrower in the principal of $ 7, 500, 000, amount executed and delivered by the Borrower to the Issuer pursuant to Section 4. 2 of the Loan Agreement, concurrently wi th the sale and delivery by the Issuer of the Bonds. From and after the execution and delivery of the Amended Note, ' Note' shall mean the Amended Note." Section 2. Additional Representation of the Bor rower. The following clauses ( p) through ( t) are hereby added to Section 2. 2 of the Loan Agreement: p) None of the proceeds of the Bonds will be used directly or indirectly to provide residential real property for family units, within the meaning of Section I03( b)( 6)( J) of the Code. q) None of the proceeds of the Bonds will be used directly or acquisition of land ( or an indirectly for the interest therein) to be used farming purposes. Less than for 25% of the proceeds of the Bonds will be used directly or indirectly for the acquisition of land ( or an interest therein) for a purpose other than that described in the immediately preceding sentence. r) The first use of the Project being acquired and constructed with the proceeds of the Bonds has been or will be by the Borrower pursuant to such acquisition and construction. s) Not more than 25% of the proceeds of the Bonds will be used to provide a facility the primary purpose of which is one of the following: _ retail food and beverage services, automobile sales service, or the provision of recreation or or entertainment. of the proceeds of the Bonds is to be None used to provide the following: any private or commercial golf course, country club, massage parlor, tennis club, skating facili ty ( including roller skating, skateboard and ice skating), racquet sports facility ( including any handball or racquetball court), hot tub facility, suntan facility or racetrack. None of the proceeds of the Bonds will be used to provide any airplane, skybox, or other private luxury box, any health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises. 3-  Section 7. Optional and Required Prepayments of Note. Section 7. 1 of the Loan Agreement is hereby amended by changing subsection 7. 1( g) so as to read in its entirety as follows: g) the Note shall be subject to prepayment in whole or in part in connection with a prepayment of the Bonds from a draw on the Letters of Credit pursuant to Paragraph ll(g) of the Bonds. The prepayment pr ice wi th respect to a draw on both Letters of Credit shall be 110% of the principal amount so redeemed, and the prepayment price with respect to a draw on the Second Letter of Credit ( following the occurrence of the First Release Date) shall be 100% of the principal amount so redeemed. It is understood that pursuant to Paragraph 6 of Exhibi t A to the Amended Commi tment referred to in the Bond Purchase Agreement, all or a portion of the Second Letter of Credit may be so applied." Section 8. Nonrecourse Obligat ion. Section 9. ll of the Loan Agreement is amended so as to read in its enti rety as follows: Section 9. ll. Nonrecourse Obligation. Anything in this Loan Agreement, the Note or the Mortgage to the contrary notwi thstanding and irrespective of any breach, incomplete- ness inaccuracy of any statement, certification, represen- or tation, warranty, covenant, agreement or understanding of any nature whatsoever made by the Borrower or any general or limited partner of the Borrower, no recourse shall be had for the payment of the principal of, premium, if any, or interest on the Note or for any claim based thereon or otherwise in respect thereof or based on or in respect of this Loan Agree- ment against the Borrower or any general or limited partner of the Borrower, either directly or through the Borrower or through any predecessor or successor partnership of the Borrower, or under any rule of law, statute or constitution, or by the enforcement of any assessment or penalty, or other- wise; it being expressly understood that the Note and all obligations of the Borrower and any general or limited partner thereof under this Loan Agreement, the Note and the Mortgage are solely nonrecourse obligations as to the Borrower and any general or limited partner and that all such liability of the Borrower and such general or limited partners, is and is to be, by the acceptance of this Loan Agreement and the Note by the Issuer, expressly waived and released as a condi tion of, and as consideration for, the execution and delivery of this Loan Agreement, the Note and the Mortgage; provided, however, that nothing contained herein or in the Note shall constitute a waiver of any indebtedness evidenced by this Loan Agreement or the Note or shall be taken to prevent the enforcement by way of specific performance or recourse to and the enforcement of the 5-