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HomeMy WebLinkAbout2004-001 . . . -.L. RESOLUTION 2004- 0 l A RESOLUTION EXPRESSING THE INTENT OF THE ST. LUCIE COUNTY HOUSING FINANCE AUTHORITY TO LOAN FUNDS TO FINANCE THE ACQUISITION, CONSTRUCTION AND EQUIPPING, OF A QUALIFYING HOUSING DEVELOPMENT IN ST. LUCIE COUNTY, FLORIDA; PROVIDING FOR THE LENDING OF FUNDS FOR SUCH PURPOSE TO RIVERVIEW CLUB PARTNERS, LTD., OR ITS PERMITTED SUCCESSORS OR ASSIGNS; PROVIDING FOR THE ISSUANCE OF MULTIFAMILY HOUSING MORTGAGE REVENUE BONDS OF THE AUTHORITY IN ONE OR MORE SERIES IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $6,200,000 FOR THE PURPOSE OF MAKING SUCH A LOAN OF FUNDS TO FINANCE ALL OR A PORTION OF THE COST OF SUCH DEVELOPMENT; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT PERTAINING TO THE ISSUANCE OF SUCH BONDS; AND PROVIDING CERTAIN OTHER DETAILS WITH RESPECT THERETO. BE IT RESOLVED by the ST. LUCIE COUNTY HOUSING FINANCE AUTHORITY, that: SECTION 1. AUTHORITY. This Resolution is adopted pursuant to the provisions of the Florida Housing Finance Authority Law, as amended, Florida Statutes, Chapter 159, Part IV, and other applicable provisions oflaw. SECTION 2. DEFINITIONS. A. "Act" means, collectively, the Florida Housing Finance Authority Law, as amended, Florida Statutes, Chapter 159, Part IV, 8t. Lucie County Ordinance No. 80-3, as supplemented by Resolution No. 80-65, and other applicable provisions of law. B. "Authority" means the 8t. Lucie County Housing Finance Authority, a public body corporate and politic of the State of Florida duly created pursuant to the Act. Page 1 of 11 . . . c. "Bonds" or "Bond" means proposed Multifamily Housing Mortgage Revenue Bonds, notes, or other indebtedness to be issued by the Authority to finance the Development in an aggregate principal amount not exceeding $6,200,000, to be authorized by subsequent resolutions of the Authority pursuant to the Act and in accordance with the terms, conditions and limitations contained in such resolution. D. "Borrower" means Riverview Club Partners, Ltd., a Florida limited partnership, or such successor or assign of which CED Capital Holdings 2004 Q, L.L.c. is a majority shareholder, general partner or managing member. E. "Chairman" means the Chairman (or, in his or her absence or disability, the Vice Chairman) of the Authority. F. "Developmenf' means the acquisition, construction and equipping of an approximately 120-unit multifamily housing facility to be known as "Riverview Club Apartments" and to be located in St. Lucie County, Florida, within the city limits of Ft. Pierce, Florida, at 2300 North U.S. 1, on a site bordered on the west by U.S. 1 and the east by Old Dixie Highway, the residential units which are to be rented in part to persons and families of moderate, middle and lesser income. G. "Secretary" means the Secretary or any Assistant Secretary of the Authority. H. "Code" means the Internal Revenue Code of 1986, as amended and regulations issued pursuant thereto. SECTION 3. PROPOSAL. The Borrower has requested that the Authority issue the Bonds under the Act in an aggregate principal amount not exceeding $6,200,000 for the purpose Page 2 of 11 . . . of financing for all or part of the cost of the Development, which amount the Borrower has represented will, together with other available funds of the Borrower, be sufficient to pay all of the costs of the Development, such Bonds to be secured by amounts payable under the tenns of a loan or financing agreement between the Authority and the Borrower providing for payments in amounts sufficient to pay the principal of and interest on such Bonds as the same become due and payable. SECTION 4. FINDINGS. The Authority hereby finds, determines and declares as follows: A. The Authority is authorized and empowered by the Act to enter into transactions such as those contemplated by the Borrower in connection with the financing of the development, and to fully perform the obligations of the Authority to be undertaken in connection with the financing of the Development in order to assist in alleviating the shortage of housing and of capital to finance the construction of affordable housing in S1. Lucie County, Florida (the "County") and the State of Florida (the "State"). B. Based upon the preliminary information made available to the Authority and subject to further review and analysis, the Development will constitute a "qualifying housing development" within the meaning of the Act and the issuance of Bonds for the purpose of making funds available to the Borrower for the purpose of financing the Development will assist in alleviating the shortage of rental housing for eligible persons and families of low, moderate, or middle income, will assist in alleviating the shortage of capital available for investment in such rental housing, and increase the health, safety, morals, welfare and tax-base of the State and the County, and will otherwise accomplish the intent and purposes of the Act. Page 3 of 11 . c. The Borrower has requested that the Authority issue Bonds in one or more series, in an aggregate principal amount not exceeding $6,200,000 to finance the Development. The Bonds shall be paid solely from the repayment of a loan of the bond proceeds by the Authority to the Borrower and the Bonds shall, unless waived by subsequent proceedings of the Authority, be secured by credit enhancement acceptable to the Authority. D. The capital expenditures to be reimbursed, pursuant to this Resolution if the Bonds are issued, will meet the requirements of the Code insofar as having been incurred within sixty (60) days prior to the date hereof or will be incurred after the date hereof in connection with the Development. . E. The Authority reasonably expects to reimburse the capital expenditures incurred or to be incurred by Borrower with a portion of the proceeds of the Bonds that are issued as tax exempt obligations of the Authority subsequent to the date hereof and no funds from sources other than the "reimbursement bond issue" (as such term has the meaning assigned to it under the Regulations) portion of such Bonds are, or are reasonably expected to be, reserved, allocated on a long term basis, or otherwise set aside by the Authority pursuant to the Authority's policy to pay for such capital expenditures. . F. The Authority will, upon receipt of the proceeds of the Bonds that are issued as tax exempt obligations (or within thirty (30) days thereof), allocate in writing the amount of proceeds of such Bonds used to reimburse the prior capital expenditures incurred by the Borrower in connection with the Development (herein the "Prior Expenditures"). Such allocation will be accomplished within the latter of eighteen (18) months from the earliest date such Prior Expenditures were incurred or the date the Development is placed in service (but in no event later than three (3) years after the first Prior Expenditure was made). Page 4 of 11 . . . SECTION 5. DETERMINATION. If, upon further investigation of the Borrower and their proposal, the Authority is able to find: A. That the Authority is not obligated to pay the Bonds except from the proceeds derived from the repayment of a loan to the Borrower and that neither the faith and credit nor the taxing power of the Authority, the County or of the State or any political subdivision thereof is pledged to the payment of the principal of or the interest or premium, if any, on the Bonds; B. That the Authority and the Borrower will, prior to the issuance of the Bonds, execute the documentation in a form and substance acceptable to the Authority, required for the financing of the Development as contemplated hereby; C. That adequate provision will be made in the documents for the operation, repair and maintenance of the Development at the expense of the Borrower and for the payment of the principal of, premium, if any, and interest on the Bonds and reserves, if any, therefor; D. That the Development constitutes a "qualifying housing development" within the meaning of the Act; E. That the proposal of the Borrower will otherwise comply with all of the provisions of the Act; F. That unless waived by the Authority, the Bonds will be secured by credit enhancement acceptable to the Authority and the Borrower will obtain a rating on the Bonds acceptable to the Authority from rating agencies approved by the Authority; G. That it is in the best interest of the Authority to provide financing for the Development based upon such factors as the Authority shall deem relevant, including, without Page 5 of 11 . . . limitation, competing requests for financing, the availability of private activity bond volume cap allocation, the findings and recommendations provided in a credit underwriting report prepared by a consultant selected by the Authority with respect to the Development (the "Credit Underwriting Report") and that the Borrower and the financing of the Development meet all of the prerequisites established by the Authority for the financing of the Development and the issuance of the Bonds, including without limitation, the conditions set forth in the Credit Underwriting Report; then the Authority shall, and by passage of this Resolution hereby expresses its intention to use its reasonable best efforts to authorize the issuance and sale of the Bonds, to finance the Development in accordance with the provisions and authority of the Act and this Resolution. The interest on the Bonds may be taxable or tax exempt and the principal amount, terms of maturity, interest rate and other details of the Bonds will be determined by the Borrower and the Authority and subsequently adopted by resolution of the Authority. SECTION 6. AUTHORIZATION TO EXECUTE. The Chairman and the Secretary of the Authority are authorized in the name and on behalf of the Authority pursuant to this Resolution to execute and deliver a Memorandum of Agreement (the "Memorandum of Agreement") of even date herewith between the Borrower and the Authority in substantially the form attached to this Resolution as Exhibit "A," with such changes as the officers signing such Memorandum of Agreement may approve, as evidenced by their execution thereof. Except to the extent full Authority action is required, the Chairman and the Secretary of the Authority are further authorized to take such further action and execute such further instruments as may be necessary to fully effectuate the purpose and intention of the Memorandum of Agreement and this Resolution. Page 6 of 11 . . . SECTION 7. CONDITIONS PRECEDENT. This Resolution is not intended to be a binding commitment. The agreement of the Authority to issue the Bonds pursuant to this Resolution and the Memorandum of Agreement is conditioned upon the following: (a) The information contained in the application of the Borrower filed with the Authority shall not change in any material respect. Any such material change should be brought to the attention of the Authority immediately in writing for further consideration by the Authority and its Counsel and by Bond Counsel to the Authority. (b) A public hearing shall have been conducted as required by Section l47(f) of the Internal Revenue Code of 1986 as amended, upon payment of the Authority's required fees. (c) Upon issuance and delivery of the Bonds, there shall be delivered to the Authority an opinion of Bond Counsel to the effect that the Bonds are valid and binding obligations of the Authority and the interest of the Bonds (other than taxable bonds) is excluded, to the extent applicable, from gross income for federal income tax purposes. (d) There has been received prior to the issuance of the Bonds from the Division of Bond Finance of the State Board of Administration (the "Division"), a private activity bond allocation equal to the principal amount of Bonds so issued (other than taxable bonds). The Authority makes no representation or guarantees regarding the availability of private activity bond allocation at the time the Developer is ready to proceed with the issuance of the Bonds. Page 7 of 11 . . . (e) The terms and payment of the Bonds, the security for repayment and the methodology for the sale and transfer of such Bonds shall be in conformity with the policies of the Authority and the Credit Underwriters Report. (1) The Bonds shall be issued and delivered no later than fifteen (15) days prior to the stated expiration date of the allocation from the Division, unless such date as is extended by subsequent proceedings of the Authority. (g) The sale of the Bonds has been approved by the Board of County Commissioners for St. Lucie County (the "County") as required under Ordinance No. 80-3 of the County, as supplemented, and Section 147(1) ofthe Code. SECTION 8. EXPRESSION OF INTENT. This Resolution constitutes a declaration of the official intent of the Authority within the contemplation of Section 1.150-2 of the Income Tax Regulations promulgated by the Department of the Treasury to permit the Borrower to use proceeds of the Bonds that are issued as tax exempt obligations to reimburse itself for certain acquisition, construction, planning, design, legal or other costs and expenses originally paid by the Borrower in connection with the Development with funds other than proceeds of the Bonds prior to the issuance of the Bonds (the "Advanced Funds"). All of the expenditures initially to be made with the Advanced Funds that will be reimbursed by the Borrower from proceeds of the Bonds that are issued as tax exempt obligations, will be for costs that (i) properly chargeable to the capital account of the Development under general income tax principles, (ii) constitute non-recurring working capital expenditures (of a type not customarily payable from current revenues), or (iii) costs of issuing the Bonds. Other than any preliminary expenditures for architectural, engineering, surveying, soil testing, costs of issuing the Bonds or similar purposes that may have been paid more than Page 8 of 11 . sixty (60) days prior to the date of this Resolution, no expenditures to be reimbursed have been paid more than sixty days earlier than the date of this Resolution. The expression of official intent set forth herein is made in reliance upon a representation of the Borrower that it reasonably expects to payor incur expenses in connection with the Development prior to the issuance of the Bonds and to reimburse themselves for those expenses from the proceeds of the Bonds that are issued as tax exempt obligations. . SECTION 9. AUTHORIZATION OF PUBLIC HEARING. The County Attorney is hereby authorized on behalf of the Authority to publish notice of and conduct a public hearing with respect to the issuance of the Bonds to finance the Development in accordance with the requirements of Section 147 (f) of the Internal Revenue Codes of 1986, as amended. The County Attorney and Bond Counsel for the Authority are authorized to file such requests with the Division to seek an allocation of private activity bonds for the Development. SECTION 10. TERM OF RESOLUTION. This Resolution shall be effective from the date hereof through December 31, 2004, at the end of which time, the Authority shall review the status of the financing structure of the proposed Development. The securing by the Borrower of an acceptable firm commitment from an acceptable third party credit enhancer (unless waived by the Authority), shall not in and of itself obligate the Authority to extend this Resolution, but shall be one of the factors considered by the Authority in determining whether or not to extend this Resolution. There shall be no limitation on the number, length of time or other terms of extensions granted by the Authority. . SECTION 11. OTHER DEVELOPMENT. Sandspur Housing Partners, Ltd., the developer for the Development (the "Developer"), has submitted a separate application to the Authority on behalf of RiverView Club Partners II, Ltd., a Florida limited partnership (the Page 9 of 11 . . . "Other Borrower"), for $5,000,000 in bond financing from the Authority (the "Other Bonds") for the acquisition, construction and equipping of a 96-unit multifamily housing facility to be located adjacent to the Development (the "Other Development"), which Other Bonds and Other Development are the subject of separate resolutions of the Authority being adopted this day. In the event that a private activity bond allocation is obtained for the Other Bonds and the Authority can close on the issuance and sale of the Bonds and the Other Bonds simultaneously, the Bonds and the Other Bonds may be combined into a single issue, in an aggregate principal amount of not exceeding $11,200,000, this Resolution shall be deemed to be an official intent to issue not to exceed $11,200,000 in bonds within the contemplation of Section 1.150-2 of the Income Tax Regulations, and all references in this Resolution or the Memorandum of Agreement to the Bonds, the Development and the Borrower shall be deemed to include the aggregate of the Bonds and the Other Bonds, the Development and the Other Development and the Borrower, the Other Borrower or a successor to the Borrower and the Other Borrower that are controlled by the Developer. The Borrower and the Other Borrower shall be responsible for any additional costs incurred by the Authority in combining the Bonds and the Other Bonds. Page 10 of 11 . SECTION 12. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED this 24th day of March, 2004. ATTEST: . . ST. LUCIE COUNTY HOUSING FINANCE AUTHORITY By: ~~ Chairman Page 11 of 11 . . . EXHIBIT "A" MEMORANDUM OF AGREEMENT This is a Memorandum of Agreement dated as of the 24th day of March, 2004, between the St. Lucie County Housing Finance Authority, a public body corporate and politic under the laws of the State of Florida (the "Authority"), and RiverView Club Partners, Ltd., a Florida limited partnership (together with its permitted successors or assigns, the "Borrower"). WHEREAS, the Authority is authorized and empowered by the provisions of the Constitution and laws of the State of Florida to issue bonds for the purposes of providing funds to finance the acquisition, construction and equipping of "qualifying housing developments" as defined in the Florida Housing Finance Authority Law, as amended (the "Act"), Florida Statutes, Chapter 159, Part IV, and to loan the proceeds from the sale of such bonds to others to finance the acquisition, construction and equipping of such qualifying housing developments; and WHEREAS, the Borrower desires to finance the acquisition, construction and equipping of a 120-unit multifamily rental housing facility known as Riverview Club Apartments, located in St. Lucie County, Florida, within the city limits of Ft. Pierce, Florida, at 2300 North U.S. 1, on a site bordered on the west by U.S. 1 and the east by Old Dixie Highway, to be rented by eligible persons and families of middle, low, moderate or middle income (collectively, the "Development"); and WHEREAS, the Borrower has requested that the Authority issue its multifamily housing revenue bonds in an aggregate principal amount of not to exceed $6,200,000 (the "Bonds") and to loan the proceeds thereof to the Borrower to finance the acquisition, construction, and equipping of the Development; and Page Al of All . . . WHEREAS, Authority has preliminarily determined that the Development constitutes a qualifying housing development within the meaning of the Act; and WHEREAS, based upon preliminary information made available to it and subject to further review and analysis, the Authority believes that the Development will assist in alleviating the shortage of rental housing for eligible persons and families of low, moderate, or middle income and will assist in alleviating the shortage of capital available for investment in such rental housing, and thereby increase the health, safety, morals, welfare, and tax base of the State and in St. Lucie County (the "County"); and WHEREAS, the Borrower desires the Authority to continue is review and analysis of the Borrower's request to provide financing for the Development; and WHEREAS, the Authority, by its adoption of its resolution (the "Reimbursement Resolution"), has indicated its preliminary willingness to proceed with its consideration of the Borrower's request for such financing; and WHEREAS, the Authority wishes to enter into certain agreements with the Borrower with respect to its consideration of the Borrower's request to provide financing for the Development and its efforts with respect to the issuance of the Bonds and the financing of the Development. NOW, THEREFORE, for good and valuable consideration, the parties hereto agree as follows: 1. The Authority agrees: (a) That, if the Authority makes the determination described in Section 5 of the Reimbursement Resolution and the Borrower meets all prerequisites for Page A2 of All .' . the issuance of the Bonds established by the Authority, it will make all reasonable efforts to authorize the issuance and sale of the Bonds pursuant to the terms of the Constitution of the State, the Act, and the Reimbursement Resolution, applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and this Memorandum of Agreement; and . (b) That, if the Bonds are issued, it will (but only to the extent of the net proceeds received from the sale of the Bonds) make a loan to the Borrower to finance the Development, with installment payments due under a loan or financing agreement between the Authority and the Borrower to be at least sufficient to pay the principal of, interest on and redemption premiums, if any, with respect to the Bonds as and when the same shall become due and payable, together with all other costs and expenses connected with such financing; and (c) That, m the event the Authority acqUIres an interest m or a mortgage on the Development, it will conveyor release any such interest it retains in the Development to the Borrower upon the retirement of the outstanding Bonds, and the payment by the Borrower of all other costs connected with such financing. 2. The Borrower agrees: (a) That the Borrower will use all reasonable efforts to find one or more purchasers for the Bonds; and (b) That the Borrower will enter into a loan or financing agreement with the Authority, under the terms of which the Borrower will be obligated to pay to the Authority sums sufficient to pay the principal of, interest on and redemption premiums, if . Page A3 of All . . . any, with respect to the Bonds when the same shall become due and payable, to operate, maintain and repair the Development at its own expense, to report or cause to be reported annually to the Authority the annual bond indebtedness outstanding and any other information necessary to comply with Florida Statutes, Section 218.32, and to pay all costs and expenses incurred by the Authority in connection with the financing of the Development, except as may be paid out of Bond proceeds or otherwise; and (c) That all risk of loss to the Development will be borne by the Borrower. 3. All commitments of the Authority under Paragraph 1 hereof and of the Borrower under Paragraph 2 hereof are subject to the mutual agreement of the Authority and the Borrower as to the terms and conditions of the above- referenced loan or financing agreement and of the Bonds and the other instruments and proceedings relating to the Bonds, and to the sale of the Bonds pursuant to such terms and conditions. It is the intent of the parties hereto that the Bonds shall be prepared in such form and shall be issued, underwritten and sold and the proceeds thereof used, all as may be mutually agreed upon by the parties in accordance with the requirements and provisions of the Constitution of the State and the Act. 4. The Borrower and the Authority further agree as follows: (a) If the Borrower advances funds with respect to the acquisition, construction, eqmppmg or financing of the Development, it shall be entitled to reimbursement for such expenses from, and only to the extent of, the net proceeds received from the sale of the Bonds in accordance with subparagraph (b) below. Page A4 of All . (b) To the extent of the net proceeds derived from the sale of the Bonds, and only from such proceeds, and in accordance with the provisions of the Act and the Code, the Borrower will be entitled to reimbursement for all costs and expenses, direct or indirect, incurred by the Borrower after the date sixty (60) days prior to the date of adoption of the Reimbursement Resolutions. All such costs shall be reimbursed to the Borrower in accordance with the terms of the Act and the Code. . (c) If the net proceeds derived from the sale of the Bonds shall be less than the cost of the Development, the Borrower agrees to complete the Development at the Borrower's expense. The Authority does not make any warranty, either expressed or implied, that the Bonds will be issued or that the funds derived from the sale of the Bonds, if issued, will be sufficient to pay all of the costs incurred in connection with the acquisition, construction and equipping of the Development or that any additional bonds will be issued or may be sold. The Borrower recognizes that the Borrower shall not be entitled to reimbursement from the Authority for costs incurred by it in completing the acquisition, construction and equipping of the Development, except to the extent of moneys otherwise available from the sale of the Bonds, and agree that the Borrower shall not be entitled to any abatement or diminution of the loan installments payable under the loan or financing agreement to be entered into between the Borrower and the Authority upon the delivery of the Bonds because of such unreimbursed costs. (d) The Borrower acknowledges and agrees that, pnor to or simultaneously with the issuance and delivery of the Bonds, it will enter into a regulatory or land use restriction agreement with respect to the Development and a continuing . Page A5 of All . disclosure agreement with respect to the Bonds, each in form and substance acceptable to the Authority and its counsel. 5. The issuance of the Bonds by the Authority shall be subject to the Authority's filing for an allocation of a Private Activity Bond Allocation with the Division of Bond Finance of the State Board of Administration of the State of Florida (the "Division") in an amount to be subsequently determined by the Authority and at the sole discretion of the Authority and upon receipt of an allocation from the Division. The Borrower shall close on the issuance of the Bonds within one hundred fifty-five (155) days of receipt such allocation unless the Authority shall, within its sole discretion, extend the term of this Memorandum of Agreement. THE AUTHORITY DOES NOT ENTER INTO "ESCROWED CLOSINGS." The Authority makes no representation as to the amount of allocation available from the Division. . 6. The ability of the Authority to move forward on any aspect of the transactions contemplated hereby or pursuant to the Reimbursement Resolution, shall be subject to the approval by the Board of County Commissioners of St. Lucie County, Florida (the "County Commission") of the issuance of the Bonds to finance the Development in accordance with Section 147(f) of the Code and within the meaning of the Authority's enabling Ordinance. . 7. The Borrower agrees to indemnify, defend and hold harmless the Authority, its members and its agents against any and all liability, loss, costs (including credit underwriting and market study), cost overruns, expenses, charges, claims, damages and attorney's fees of whatever kind or nature, which the Authority, its members or its agents may incur or sustain by reason or in consequence of the relationship existing between the Authority and the Borrower with respect to the execution and delivery of this Memorandum of Agreement, the consideration of the Borrower's request to issue the Bonds to finance the Development, the issuance and sale of the Page A6 of All . Bonds or the acquisition, construction and equipping of the Development. The Borrower hereby releases the Authority, the members and officers of the Authority, and the agents, attorneys and employees of the Authority from any liability, loss, cost, expenses, charges, claims, damages and reasonable attorneys fees of whatever kind or nature which may result from the failure of the Authority to issue the Bonds regardless of the reason therefor. 8. All commitments of the Authority pursuant to this Memorandum of Agreement are subject to the condition that on or before fifteen (I5) days prior to the stated expiration of an allocation from the Division, but not later than one hundred forty (140) days from the receipt of such allocation, the Authority and the Borrower shall have agreed to mutually acceptable terms of the Bonds and the sale and delivery thereof, and mutually acceptable terms and conditions for the agreements referred to in Paragraphs 2 and 3 hereof. . 9. If the events set forth in Paragraph 8 do not take place within the time set forth or within any extension thereof, the Borrower agrees that it will reimburse for all fees and out-of- pocket expenses which the Authority, and the Authority's counsel and Bond Counsel and Financial Advisor may have incurred in connection with the execution of this Memorandum of Agreement or anything related thereto or in connection with the request of the Borrower to issue the Bonds and the performance by the Authority or its professional staff described herein of their obligations described hereunder; and upon such reimbursement this Memorandum of Agreement shall thereupon terminate. The Borrower further agrees that if the events in Paragraph 8 do not take place within the term set forth or any extension thereof (which may, subject to applicable law, be granted by the Authority in its sole discretion), the Authority has the right to use the allocation received for the Development, if any, for another development. . Page A 7 of A 11 . . . 10. The Borrower agrees to deliver to the Authority, simultaneously with the approval of the Development by the Authority, a good faith deposit payable to the Authority in the amount of $25,000.00. This good faith deposit will be held by the Authority until either (i) the Bonds are issued, (ii) the time set forth in Paragraph 9 has run, or (iii) there has been an abandonment prior to the issuance of the Bonds by the Borrower of the acquisition and construction of the Development. If the financing of the Development as contemplated hereunder is completed as provided in clause (i) above, the Borrower shall have the option of having the good faith deposit returned in whole or applied against its costs at the time of closing, If any of the events in clauses (ii) or (iii) above shall occur, the Authority shall be entitled to the deposit hereunder to the extent necessary to pay the expenses incurred by the Authority's Counsel, Bond Counsel and Financial Advisor related to this financing and the amount of the good faith deposit so applied shall be credited against the Borrower's obligation to pay such amounts. 11. The Development and the Bonds shall also be subject to subsequent review and approval by the County Commission, as required and no assurance can be given by the Authority as to the outcome of such review and conditions. Further, no assurance can be given by the Authority as to the result of any action or inaction by a governmental agency, whether local, state, or federal, nor as to the result of any judicial action, which may affect in any way the bond issue or the Development; and the Authority shall not be responsible nor held liable for any costs or damages incurred by any party as a result thereof. 12. If for any reason the Authority shall fail to deliver the Bonds within the time limit set forth in Paragraph 8, if the Authority sooner abandons its efforts to issue the Bonds at its discretion, or if the Borrower shall terminate this Memorandum of Agreement by written notice to the Authority, this Memorandum of Agreement shall terminate. Nothing contained herein, Page A8 of All . . . however, shall release the Borrower from its obligations to indemnity the Authority III accordance with the terms of this Memorandum of Agreement. 13. This Memorandum of Agreement may be supplemented and amended from time to time by written agreement signed by both parties, and shall be superseded by the loan agreement to be executed by the Authority and the Borrower, upon the execution thereof, to the extent the terms thereof conflict with the terms contained herein. 14. Notwithstanding any other provision of this Memorandum of Agreement, as a matter of general assurance by the Borrower to the Authority, the Borrower hereby covenants and agrees that it will pay the fees of the Authority, and that it will indemnity the Authority for all reasonable expenses, costs and obligations incurred by the Authority, including but not limited to printing costs, rating agency fees, the fees and expenses of the Authority's Counsel, Bond Counsel and Financial Advisor under the provisions of this Memorandum of Agreement to the end that the Authority will not suffer any out-of- pocket losses as a result of the carrying out of any of its undertakings herein contained. The only obligation the Authority shall have in connection with this Memorandum of Agreement shall be the payment of the Bonds, if and when issued, but such payment shall be limited solely to the revenues derived from the financing, sale, operation or leasing of the Development, and nothing contained in this Memorandum of Agreement shall ever be construed to constitute a personal or pecuniary liability or charge against the Authority or any member or officer or employee of the Authority, and in the event of a breach of any undertaking on the part of the Authority contained in this Memorandum of Agreement, no personal or pecuniary liability or charge payable directly or indirectly from the general funds of the Authority shall arise therefrom. Page A9 of All . . . 15. If the Bonds to be issued hereunder are to be underwritten by a public offering, they shall be underwritten by investment banking firms selected and approved by the Authority. 16. The Borrower agrees to pay to the Authority the Authority fees as outlined in the Applications Procedures and Program Guidelines (the "Guidelines") which have been adopted by the Authority. 17. The Borrower acknowledges and agrees to the terms of the Inducement Resolution adopted by the Authority of even date herewith and the Guidelines, which Guidelines are incorporated in this Memorandum of Agreement by reference as if they were repeated verbatim herein. In the event of any inconsistency between this Memorandum of Agreement and such Guidelines, the Guidelines shall prevail. [The Rest of this Paf!e lntentionallv Left Blank] Page AlO of All . 18. Nothing herein shall be deemed to require that the Authority agree to submit itself to the jurisdiction of the courts of any state other than the State of Florida. IN WITNESS WHEREOF, the parties hereto have set their hands and seal as of the day and year first above written. ST. LUCIE COUNTY HOUSING FINANCE AUTHORITY Name: Title: By: Chairman ATTEST: . Secretary RIVERVIEW CLUB PARTNERS, LTD., a Florida limited partnership By: CED Capital Holdings 2004 Q, L.L.c., a Florida limited liability company, its general partner By: Tampa/30332,2 35488,0000 J 3/23/04 I Page All of All -- "