City of Tampa, Florida

Transcription

NEW ISSUE – BOOK ENTRY ONLY
SEE “RATINGS” HEREIN
In the opinion of Bryant Miller Olive P.A., Bond Counsel, assuming compliance by the Issuer and the Borrower with certain covenants,
under existing statutes, regulations and judicial decisions, the interest on the Series 2015 Bonds is excluded from gross income for federal
income tax purposes of the holders thereof and is not an item of tax preference for purposes of the federal alternative minimum tax imposed
on individuals and corporations. However, interest on the Series 2015 Bonds shall be taken into account in determining adjusted current
earnings for purposes of computing the alternative minimum tax on corporations. See “TAX MATTERS” herein for a description of certain
other tax consequences to holders of the Series 2015 Bonds.
$76,690,000
CITY OF TAMPA, FLORIDA
REVENUE AND REVENUE REFUNDING BONDS
(THE UNIVERSITY OF TAMPA PROJECT),
SERIES 2015
Dated: Date of Delivery
Due: April 1, as shown on inside cover
The City of Tampa, Florida (the “Issuer”) is issuing its Revenue and Revenue Refunding Bonds (The University of Tampa Project), Series 2015 (the
“Series 2015 Bonds”) as fully registered bonds, without coupons. The Series 2015 Bonds, when issued, will be registered in the name of Cede & Co.,
as holder and securities depository nominee of The Depository Trust Company, New York, New York (“DTC”). Individual purchases will be made in
book-entry form only through DTC Participants (as herein defined), in the principal amount of $5,000 or any integral multiple thereof, and purchasers of
the Series 2015 Bonds will not receive physical delivery of bond certificates. So long as Cede & Co. is the registered owner of the Series 2015 Bonds, as
nominee for DTC, references herein to the bondholders or registered owners shall mean Cede & Co. and shall not mean the Beneficial Owner (as defined
herein) of the Series 2015 Bonds. See “THE SERIES 2015 BONDS – Book Entry System” herein.
The Series 2015 Bonds are being issued under a Bond Trust Indenture dated as of April 1, 2015 (the “Indenture”) between the Issuer and Regions Bank,
as trustee. The Series 2015 Bonds shall be dated their date of delivery, and shall bear interest payable semi-annually on October 1 and April 1, commencing
October 1, 2015. The proceeds of the Series 2015 Bonds will be loaned to The University of Tampa, Incorporated, a Florida not-for-profit corporation (the
“Borrower”) under a Loan Agreement dated as of April 1, 2015 (the “Loan Agreement”) between the Issuer and the Borrower. The obligation to make
payments due to the Issuer under the Loan Agreement will be evidenced and secured by an Obligation (“Obligation No. 6”) to be delivered by the Borrower
as the sole Member of the Obligated Group (each as defined herein), under and pursuant to a Master Trust Indenture dated as of April 1, 2012, as amended
and supplemented, and particularly as supplemented by Supplemental Indenture for Obligation No. 6, dated as of April 1, 2015 (collectively, the “Master
Trust Indenture”), each between the Borrower and Regions Bank, as master trustee (in such capacity, the “Master Trustee”). Obligation No. 6 is secured
by a pledge of the Pledged Revenues (as defined herein) of the Borrower, as the sole Member of the Obligated Group, on parity with all other Obligations
(as herein defined) hereafter outstanding under the Master Trust Indenture. See “SECURITY FOR THE SERIES 2015 BONDS” and “APPENDIX F - Form
of Master Trust Indenture and Supplement No. 6” herein. Capitalized terms used herein shall have the same meanings as given to them in the Indenture,
the Loan Agreement or the Master Trust Indenture, as applicable, unless otherwise defined herein or unless the context clearly requires otherwise.
The Series 2015 Bonds are being issued to provide funds for the purpose of making a loan to the Borrower to be applied, together with other
available money of the Borrower, to: (i) finance and refinance the acquisition, construction, equipping and installation of student housing facilities and the
construction, equipping and installation of a mixed use facility, including additions and improvements to an existing parking garage, offices, classrooms
and other facilities (the “Mixed Use Facility”), each located or to be located on the Borrower’s campus that is located within the corporate limits of the City
of Tampa, Florida; (ii) advance refund all of the outstanding City of Tampa, Florida Revenue Bonds (University of Tampa Project), Series 2006 maturing
on and after April 1, 2016, the proceeds of which were used to finance the construction, equipping and furnishing of a 7-story, approximately 448-bed
dormitory residence owned by the Borrower and the second phase of a parking structure to provide approximately 700 additional parking spaces; (iii)
refinance a bank loan, the proceeds of which were used to finance a portion of the costs of the Mixed Use Facility and (iv) pay certain bond issuance costs.
See “PURPOSE OF THE SERIES 2015 BONDS AND REFUNDING PLAN” herein.
Certain of the Series 2015 Bonds are subject to redemption prior to maturity, as described herein. See “REDEMPTION” herein.
THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2015 BONDS, DO NOT CONSTITUTE A DEBT OR
LIABILITY OF THE STATE OF FLORIDA (THE “STATE”) OR OF ANY AGENCY OR POLITICAL SUBDIVISION THEREOF, OR A PLEDGE
OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OR OF ANY POLITICAL SUBDIVISION OR AGENCY THEREOF, BUT
SHALL BE PAYABLE SOLELY FROM THE FUNDS PLEDGED THEREFOR IN ACCORDANCE WITH THE INDENTURE AND OBLIGATION
NO. 6. THE ISSUANCE OF THE SERIES 2015 BONDS UNDER THE PROVISIONS OF THE ACT DOES NOT, DIRECTLY, INDIRECTLY
OR CONTINGENTLY, OBLIGATE THE ISSUER, THE STATE OR ANY AGENCY OR POLITICAL SUBDIVISION THEREOF TO LEVY ANY
FORM OF TAXATION FOR THE PAYMENT THEREOF OR TO MAKE ANY APPROPRIATION FOR THEIR PAYMENT AND THE SERIES
2015 BONDS AND THE INTEREST PAYABLE THEREON DO NOT NOW AND SHALL NEVER CONSTITUTE A DEBT OF THE ISSUER, THE
STATE OR ANY AGENCY OR POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF THE CONSTITUTION OR THE STATUTES
OF THE STATE AND DO NOT NOW AND SHALL NEVER CONSTITUTE A CHARGE AGAINST THE CREDIT OR TAXING POWER OF
THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF. NEITHER THE STATE NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, REDEMPTION
PREMIUM, IF ANY, OR INTEREST ON THE SERIES 2015 BONDS OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR
AGREEMENT OF ANY KIND WHATSOEVER WHICH MAY BE UNDERTAKEN BY THE ISSUER. NO BREACH BY THE ISSUER OF ANY
SUCH PLEDGE, OBLIGATION OR AGREEMENT MAY IMPOSE ANY LIABILITY, PECUNIARY OR OTHERWISE, UPON THE ISSUER,
THE STATE OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF OR ANY CHARGE UPON ITS OR THEIR GENERAL CREDIT OR
AGAINST ITS OR THEIR TAXING POWER.
Investment in the Series 2015 Bonds is subject to certain risks. See “CERTAIN INVESTMENT CONSIDERATIONS” and “SUITABILITY FOR
INVESTMENT” herein.
This cover page contains certain information for quick reference only. It is not a summary of this issue. Investors are directed to read the entire
Official Statement to obtain information essential to the making of an informed investment decision.
The Series 2015 Bonds are offered when, as and if delivered to the Underwriters, subject to prior sale, withdrawal or modification of the offer
without any notice, and to the approval of legality by Bryant Miller Olive P.A., Tampa, Florida, Bond Counsel, and to certain other conditions.
Certain legal matters will be passed upon for the Borrower by Holland & Knight LLP, Tampa, Florida, as Special Counsel to the Borrower and
Disclosure Counsel, for the Underwriters by their counsel, GrayRobinson, P.A., Tampa, Florida, and for the Issuer by the Office of the City Attorney,
Tampa, Florida. Public Financial Management, Inc., Orlando, Florida, is acting as financial advisor to the Borrower in connection with the Series
2015 Bonds. It is expected that the Series 2015 Bonds in definitive form will be available for delivery on or about April 23, 2015.
SunTrust Robinson Humphrey
Dated: April 8, 2015
BofA Merrill Lynch
MATURITIES, PRINCIPAL AMOUNTS, INTEREST RATES, PRICES AND
INITIAL CUSIP NUMBERS
$76,690,000
SERIES 2015
$32,890,000 2015 Serial Bonds
Maturity
(April 1)
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
Principal
Amount
$ 980,000
920,000
960,000
995,000
1,045,000
1,095,000
1,150,000
1,210,000
1,270,000
1,335,000
1,400,000
1,470,000
1,545,000
1,625,000
1,700,000
1,785,000
1,880,000
3,340,000
3,505,000
3,680,000
Interest
Rate
4.00%
4.00
4.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
Price
103.283
106.044
107.970
113.255
115.107
116.293
117.153
118.373
118.505
119.065
117.358*
115.772*
114.668*
113.939*
113.306*
112.319*
111.874*
111.519*
111.166*
110.902*
Initial
CUSIP No.†
875231 KJ0
875231 KK7
875231 KL5
875231 KM3
875231 KN1
875231 KP6
875231 KQ4
875231 KR2
875231 KS0
875231 KT8
875231 KU5
875231 KV3
875231 KW1
875231 KX9
875231 KY7
875231 KZ4
875231 LA8
875231 LB6
875231 LC4
875231 LD2
$15,555,000 5.00% Term Bonds Due April 1, 2040, Price: 110.814* CUSIP No. 875231 LF7†
$28,245,000 5.00% Term Bonds Due April 1, 2045, Price: 110.376* CUSIP No. 875231 LG5†
†The Issuer and the Borrower are not responsible for the use of CUSIP numbers, nor is any representation made as to their correctness. They
are included solely for the convenience of the readers of this Official Statement.
* Priced to first optional redemption date.
Revenue and Revenue Refunding Bonds
(The University of Tampa Project),
Series 2015
BOND COUNSEL
Bryant Miller Olive P.A.
Tampa, Florida
COUNSEL TO THE ISSUER
Office of the City Attorney
Tampa, Florida
SPECIAL COUNSEL AND DISCLOSURE COUNSEL TO THE BORROWER
Holland & Knight LLP
Tampa, Florida
FINANCIAL ADVISOR TO THE BORROWER
Public Financial Management, Inc.
Orlando, Florida
BOND TRUSTEE AND MASTER TRUSTEE
Regions Bank
Jacksonville, Florida
No dealer, broker, salesman or any other person has been authorized by the City of Tampa, Florida (the "Issuer"), The
University of Tampa, Incorporated (the "Borrower") or the Underwriters reflected on the cover page hereof (the "Underwriters")
to give any information or to make any representation, other than those contained in this Official Statement, and, if given or made,
such other information or representations must not be relied upon as having been authorized by the foregoing. This Official
Statement does not constitute an offer to sell or the solicitation of an offer to buy, and there shall be no sale of the Series 2015
Bonds by any person, in any jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale.
The information set forth herein has been obtained from the Issuer, the Borrower, and other sources which are believed to be
reliable, but is not guaranteed as to accuracy or completeness by, and is not to be construed as a representation of, the
Underwriters or of the Issuer. The Underwriters have provided the following statement for inclusion in this Official Statement:
The Underwriters have reviewed the information in this Official Statement in accordance with, and as part of, their responsibilities
to investors under the federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriters do
not guaranty the accuracy or completeness of such information. The information and expressions of opinion herein are subject to
change without notice and neither the delivery of this Official Statement nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the affairs of the Issuer or the Borrower since the date
hereof or the earliest date as of which such information is given. Any statements in this Official Statement involving estimates,
assumptions and matters of opinion, whether or not expressly stated, are intended as such and not as representations of fact.
Upon issuance, the Series 2015 Bonds will not be registered by the Issuer under the Securities Act of 1933, as amended, or
any state securities law, and will not be listed on any stock or other securities exchange. Neither the Securities and Exchange
Commission nor any other federal, state or other governmental entity or agency will have recommended the Series 2015 Bonds or
passed upon or confirmed the accuracy or adequacy hereof or approved the Series 2015 Bonds for sale (except that the Issuer has
authorized the issuance and sale of the Series 2015 Bonds). Any representation to the contrary may be a criminal offense.
In making an investment decision, investors must rely on their own examination of the Borrower and the terms of the
offering, including the merits and risks involved.
IN CONNECTION WITH THE OFFERING OF THE SERIES 2015 BONDS, THE UNDERWRITERS MAY OVERALLOT OR EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES 2015
BONDS OFFERED HEREBY AT LEVELS ABOVE THOSE THAT MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. THE UNDERWRITERS
MAY OFFER AND SELL THE SERIES 2015 BONDS TO CERTAIN DEALERS AND OTHERS AT PRICES LOWER THAN
THE PUBLIC OFFERING PRICES STATED ON THE INSIDE COVER PAGE OF THIS OFFICIAL STATEMENT, AND
SUCH PUBLIC OFFERING PRICES MAY BE CHANGED FROM TIME TO TIME BY THE UNDERWRITERS.
Statements contained herein that are not purely historical, are forward-looking statements. Readers should not place undue
reliance on forward-looking statements. All forward-looking statements included herein are based on information available on the
date hereof, and the Issuer and Borrower assume no obligation to update any such forward-looking statements. Such forwardlooking statements are necessarily based on various assumptions and estimates and are inherently subject to various risks and
uncertainties, including risks and uncertainties relating to the possible invalidity of the underlying assumptions and estimates and
possible changes or developments in social, economic, business, industry, market, legal, and regulatory circumstances and
conditions and actions taken or omitted to be taken by third parties. Assumptions related to the foregoing involve judgments with
respect to, among other things, future economic, competitive, and market conditions and future business decisions, all of which
are difficult or impossible to predict accurately and many of which are beyond the control of the Issuer and the Borrower. Actual
results could differ materially from those discussed in such forward-looking statements and, therefore, there can be no assurance
that the forward-looking statements included herein will prove to be accurate.
THIS OFFICIAL STATEMENT DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUER OR THE
UNDERWRITERS AND ANY ONE OR MORE OF THE OWNERS OF THE 2015 BONDS. This Official Statement is being
provided to prospective purchasers either in bound printed form ("Original Bound Format") or in electronic format on the
following websites: WWW.MUNIOS.COM or WWW.EMMA.MSRB.ORG. This Official Statement should be relied upon only if
it is in its Original Bound Format or as printed in its entirety directly from such websites.
Certain information in this Official Statement has been provided by The Depository Trust Company, New York, New York
("DTC"). Neither the Issuer nor the Borrower has provided information in this Official Statement with respect to DTC and do not
certify as to the accuracy or sufficiency of the disclosure policies of or content provided by DTC and are not responsible for the
information provided by DTC.
TABLE OF CONTENTS
Page No.
Page No.
INTRODUCTION ......................................................... 1
Purpose of the Series 2015 Bonds ............................ 1
The Issuer ................................................................. 2
The Borrower ........................................................... 2
The Series 2015 Bonds............................................. 2
Security for the Series 2015 Bonds .......................... 3
The Obligated Group and Master Trust Indenture ... 4
Additional Indebtedness ........................................... 4
Outstanding Indebtedness of the Borrower .............. 4
Bondholder's Risks ................................................... 5
Defined Terms.......................................................... 5
PURPOSE OF THE SERIES 2015 BONDS AND
REFUNDING PLAN.................................................. 5
The 2015 Project ...................................................... 5
Refunding Plan ......................................................... 6
ESTIMATED SOURCES AND USES OF FUNDS ..... 7
THE ISSUER ................................................................ 7
Disclosure Required by Florida Blue Sky
Regulations ......................................................... 7
THE UNIVERSITY ...................................................... 8
THE SERIES 2015 BONDS ......................................... 8
General ..................................................................... 8
Denominations; Payment ......................................... 8
Book Entry System .................................................. 9
REDEMPTION ........................................................... 12
Optional Redemption ............................................. 12
Mandatory Redemption .......................................... 12
Extraordinary Optional Redemption ...................... 13
Notice of Redemption ............................................ 13
Method of Selection of Series 2015 Bonds for
Redemption ...................................................... 14
SECURITY FOR THE SERIES 2015 BONDS .......... 14
General ................................................................... 14
The Master Trust Indenture and Obligation No. 6 . 15
No Debt Service Reserve Fund Securing the
Series 2015 Bonds ............................................ 20
Outstanding Indebtedness of the Borrower ............ 21
Loan Agreement ..................................................... 21
CERTAIN INVESTMENT CONSIDERATIONS ...... 22
General ................................................................... 22
Borrower Revenues and Enrollment ...................... 22
Financial Aid to Students ...................................... 22
Gifts, Grants and Bequests .................................... 23
Other Factors Affecting the Financial
Performance of the Borrower .......................... 23
Tax-Exempt Status of the Borrower and the Series
2015 Bonds ...................................................... 24
Amendments to the Indenture, Loan Agreement
and Master Trust Indenture .............................. 25
Damage to Facilities .............................................. 25
Acceleration of the Series 2015 Bonds.................. 25
Enforcement of Remedies ..................................... 26
Environmental Concerns ....................................... 26
Effectiveness of Security Interest .......................... 26
Mortgages on Facilities ......................................... 27
Rights of Credit Providers and Others ................... 27
Project Risks .......................................................... 28
Other Factors ......................................................... 28
RATINGS ................................................................... 29
TAX MATTERS ........................................................ 29
General .................................................................. 29
Tax Treatment of Bond Premium .......................... 30
Information Reporting and Backup Withholding .. 30
Other Tax Matters ................................................. 31
LEGAL MATTERS ................................................... 31
LITIGATION ............................................................. 32
The Issuer .............................................................. 32
The Borrower ........................................................ 32
SUITABILITY FOR INVESTMENT ........................ 32
UNDERWRITING ..................................................... 32
FINANCIAL ADVISOR ............................................ 33
CONTINUING DISCLOSURE.................................. 33
VERIFICATION OF ARITHMETICAL
COMPUTATIONS .................................................. 34
INDEPENDENT AUDITORS ................................... 34
CONTINGENT FEES ................................................ 34
CERTAIN RELATIONSHIPS ................................... 35
FORWARD-LOOKING STATEMENTS .................. 35
ACCURACY AND COMPLETENESS OF OFFICIAL
STATEMENT ......................................................... 35
CERTIFICATE CONCERNING THE OFFICIAL
STATEMENT ......................................................... 35
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
General Information Regarding the University
Audited Financial Statements of the Borrower for the Fiscal Years Ended May 31, 2014 and 2013
Form of Bond Counsel Opinion
Form of Loan Agreement
Form of Bond Indenture
Form of Master Trust Indenture and Supplement No. 6
Form of Continuing Disclosure Agreement
i
[THIS PAGE INTENTIONALLY LEFT BLANK]
OFFICIAL STATEMENT
relating to the issuance of
$76,690,000
SERIES 2015
INTRODUCTION
This Official Statement, including the cover page, inside cover page, table of contents page and
the appendices, is provided to furnish information in connection with the issuance by the City of Tampa,
Florida (the "Issuer") of $76,690,000 principal amount of its Revenue and Revenue Refunding Bonds
(The University of Tampa Project), Series 2015 (the "Series 2015 Bonds").
The descriptions and summaries of various documents in this Official Statement do not purport to
be comprehensive or definitive, and reference is made to each document for the complete details of all
terms and conditions. All statements are qualified in their entirety to each document and by reference to
laws and principles of equity relating to or affecting generally the enforcement of creditors' rights.
Reference is made to the originals of all such documents for full and complete statements of all matters of
fact relating to the Series 2015 Bonds, the security for the payment of the Series 2015 Bonds, and the
rights and remedies of Bondholders. Copies of the above-described documents not attached hereto are
available for inspection during the initial offering period at the corporate trust office of Regions Bank, at
10245 Centurion Parkway, 2nd Floor, Jacksonville, Florida 32256.
This Introduction contains only a brief summary of certain information contained in this Official
Statement. It is not intended to be complete and is qualified by more detailed information contained
elsewhere in this Official Statement.
No person has been authorized by the Issuer, the Borrower or the Underwriters to give any
information or to make any representations, other than those contained in this Official Statement and, if
given or made, such other information or representations must not be relied upon as having been
authorized by any of the foregoing.
Purpose of the Series 2015 Bonds
The Series 2015 Bonds are being issued for the purpose of making a loan from the Issuer to The
University of Tampa, Incorporated, a Florida not-for-profit corporation (the "Borrower") pursuant to a
Loan Agreement (the "Loan Agreement") dated as of April 1, 2015 between the Issuer and the Borrower.
The proceeds of the sale of the Series 2015 Bonds will be used, together with other legally available funds
of the Borrower, to: (i) finance and refinance the acquisition, construction, equipping and installation of
student housing facilities (the "New Dormitory") and the construction, equipping and installation of a
mixed use facility, including additions and improvements to an existing parking garage, offices,
classrooms and other facilities (the "Mixed Use Facility" and together with the New Dormitory, the "2015
Project"), each located or to be located on the Borrower's campus that is located within the corporate
limits of the City of Tampa, Florida; (ii) advance refund all of the outstanding City of Tampa, Florida
Revenue Bonds (University of Tampa Project), Series 2006 (the "Series 2006 Bonds") maturing on and
after April 1, 2016 (the "Refunded Bonds"), the proceeds of which were used to finance the construction,
equipping and furnishing of a 7-story, approximately 448-bed dormitory residence owned by the
Borrower and second phase of a parking structure to provide approximately 700 additional parking spaces
(the collectively, "2006 Project"); (iii) refinance a bank loan (the "2013 Bank Loan"), the proceeds of
which were used to finance a portion of the costs of the Mixed Use Facility (together with the 2015
Project and the 2006 Project, the "Project") and (iv) pay certain bond issuance costs. See "PURPOSE OF
THE SERIES 2015 BONDS AND REFUNDING PLAN" herein.
The Issuer
The City of Tampa, Florida (the "Issuer") is a municipal corporation organized and existing under
the Constitution and laws of the State of Florida and is authorized and empowered under Chapter 166,
Florida Statutes, Part II of Chapter 159, Florida Statutes, the Charter of the Issuer, the Issuer's home rule
powers and other applicable provisions of law (collectively, the "Act") and Resolution No. 2015-204
adopted on March 5, 2015, to issue the Series 2015 Bonds and to loan the proceeds thereof to the
Borrower to finance and refinance the costs of the 2015 Project, refund the Refunded Bonds, to refinance
the 2013 Bank Loan, pay certain bond issuance costs and to secure the Series 2015 Bonds by an
assignment of the payments to be received by it under the Loan Agreement.
The Borrower
The Borrower is a Florida not-for-profit corporation and operates an independent, comprehensive
four-year co-educational university on an approximately 102-acre residential campus adjacent to
downtown Tampa, Florida. See "THE UNIVERSITY" herein and "APPENDIX A – General Information
Regarding the University" attached hereto.
The Series 2015 Bonds
The Series 2015 Bonds are being issued pursuant to a Bond Trust Indenture dated as of April 1,
2015 (the "Indenture"), between the Issuer and Regions Bank, as trustee (in such capacity, the "Bond
Trustee"), which will create a pledge of and first lien on the Trust Estate, consisting, of all right, title and
interest of the Issuer in and to the funds created under the Indenture and all amounts held therein,
including investment earnings (excluding moneys held by the Bond Trustee in the Rebate Fund), (ii) all
right, title and interest of the Issuer in and to Obligation No. 6 and all sums payable in respect of the
indebtedness evidenced thereby, in and to the Loan Agreement and the amounts payable to the Issuer
under the Loan Agreement (excluding Unassigned Rights), and (iii) any and all other property of every
kind and nature from time to time thereafter, by delivery or by writing of any kind, conveyed, pledged,
assigned or transferred as and for additional security under the Indenture by the Issuer, the Borrower or
any other Member of the Obligated Group or by anyone on their behalf to the Bond Trustee, including
without limitation, any funds held by the Bond Trustee in any of the funds established under the Indenture
as security for the Series 2015 Bonds. See "SECURITY FOR THE SERIES 2015 BONDS" herein.
The Series 2015 Bonds are being issued in fully registered form in the name of Cede & Co., as
nominee for The Depository Trust Company, New York, New York ("DTC"), which will act as securities
depository for the Series 2015 Bonds. The Series 2015 Bonds will be available to purchasers in
denominations of $5,000 and integral multiples thereof. Interest on the Series 2015 Bonds is payable on
October 1, 2015 and on each October 1 and April 1 thereafter until maturity or redemption. Amounts due
on the Series 2015 Bonds will be paid to Cede & Co., as nominee for DTC, as registered owner of the
Series 2015 Bonds, to be subsequently disbursed to DTC Participants (as defined herein) and thereafter to
the Beneficial Owners (as defined herein) of the Series 2015 Bonds. See "THE SERIES 2015 BONDS Book Entry System" herein.
Certain of the Series 2015 Bonds will be subject to redemption prior to maturity as described
herein. See "REDEMPTION" herein.
2
Security for the Series 2015 Bonds
The proceeds of the Series 2015 Bonds are being loaned to the Borrower pursuant to the Loan
Agreement, the terms of which obligate the Borrower to make payments in such amounts and at such
times as are necessary to provide for timely payment of the principal of, premium, if any, and interest on
the Series 2015 Bonds. To secure its obligations under the Loan Agreement, the Borrower, as the sole
Member of the Obligated Group, will issue its The University of Tampa, Incorporated – Obligation No. 6
(2015 Financing) ("Obligation No. 6") to the Bond Trustee, in an original principal amount equal to the
original principal amount of the Series 2015 Bonds. Obligation No. 6 will be issued pursuant to a Master
Trust Indenture dated as of April 1, 2012 (the "Master Indenture"), as supplemented by Supplemental
Indenture for Obligation No. 6, dated as of April 1, 2015 ("Supplement No. 6" and together with the
Master Indenture, as supplemented and amended, the "Master Trust Indenture"), each between the
Borrower, as the sole Member of the Obligated Group, and Regions Bank, as master trustee (in such
capacity, the "Master Trustee"). Obligation No. 6 is secured by a pledge of the Pledged Revenues of the
Borrower as the sole Member of the Obligated Group on parity with all other Obligations outstanding
under the Master Trust Indenture.
Payments under the Loan Agreement and Obligation No. 6 are designed to be sufficient, together
with other funds available for such purpose, to pay when due the principal of, premium, if any, and
interest on the Series 2015 Bonds. Obligation No. 6 (which secures the Series 2015 Bonds) will not be
secured by the Debt Service Reserve Fund created under the Master Trust Indenture or any account
therein. See "SECURITY FOR THE SERIES 2015 BONDS" herein.
The Issuer will assign to the Bond Trustee substantially all of its right, title and interest in and to
the Loan Agreement, including the right to receive loan payments to be made by the Borrower thereunder,
but excluding certain rights of the Issuer to receive payment of its fees and expenses, its rights to
indemnification in certain circumstances, its right to execute and deliver supplements and amendments to
the Loan Agreement, its right to have notice and to grant consents under the Loan Agreement and the
Issuer's right to exercise the same rights of discretion as are granted to the Master Trustee under the
Master Trust Indenture (collectively, the "Unassigned Rights"). See "SECURITY FOR THE SERIES
2015 BONDS" herein.
THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2015
BONDS, DO NOT CONSTITUTE A DEBT OR LIABILITY OF THE STATE OF FLORIDA
(THE "STATE") OR OF ANY AGENCY OR POLITICAL SUBDIVISION THEREOF, OR A
PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OR OF ANY
POLITICAL SUBDIVISION OR AGENCY THEREOF, BUT SHALL BE PAYABLE SOLELY
FROM THE FUNDS PLEDGED THEREFOR IN ACCORDANCE WITH THE INDENTURE
AND OBLIGATION NO. 6. THE ISSUANCE OF THE SERIES 2015 BONDS UNDER THE
PROVISIONS OF THE ACT DOES NOT, DIRECTLY, INDIRECTLY OR CONTINGENTLY,
OBLIGATE THE ISSUER, THE STATE OR ANY AGENCY OR POLITICAL SUBDIVISION
THEREOF TO LEVY ANY FORM OF TAXATION FOR THE PAYMENT THEREOF OR TO
MAKE ANY APPROPRIATION FOR THEIR PAYMENT AND THE SERIES 2015 BONDS AND
THE INTEREST PAYABLE THEREON DO NOT NOW AND SHALL NEVER CONSTITUTE A
DEBT OF THE ISSUER, THE STATE OR ANY AGENCY OR POLITICAL SUBDIVISION
THEREOF WITHIN THE MEANING OF THE CONSTITUTION OR THE STATUTES OF THE
STATE AND DO NOT NOW AND SHALL NEVER CONSTITUTE A CHARGE AGAINST THE
CREDIT OR TAXING POWER OF THE ISSUER, THE STATE OR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF. NEITHER THE STATE NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL IN ANY EVENT BE LIABLE FOR THE
PAYMENT OF THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, OR INTEREST ON
THE SERIES 2015 BONDS OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION
3
OR AGREEMENT OF ANY KIND WHATSOEVER WHICH MAY BE UNDERTAKEN BY THE
ISSUER. NO BREACH BY THE ISSUER OF ANY SUCH PLEDGE, OBLIGATION OR
AGREEMENT MAY IMPOSE ANY LIABILITY, PECUNIARY OR OTHERWISE, UPON THE
ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF OR ANY
CHARGE UPON ITS OR THEIR GENERAL CREDIT OR AGAINST ITS OR THEIR TAXING
POWER.
See "SECURITY FOR THE SERIES 2015 BONDS" and "APPENDIX F - Form of Master Trust
Indenture and Supplement No. 6" attached hereto.
The Obligated Group and Master Trust Indenture
The Master Trust Indenture creates an Obligated Group, which currently consists of only the
Borrower. Additional Members can be added or can withdraw pursuant to the terms of the Master Trust
Indenture. However, the Master Trust Indenture provides that the Borrower must always be a Member.
To evidence the Obligated Group's obligation with respect to the Series 2015 Bonds, the
Borrower will issue Obligation No. 6 to the Bond Trustee. The terms of Obligation No. 6 will require
payments by the Obligated Group which, together with other moneys available therefor (and the interest
earned thereon), will be sufficient to provide for the timely payment of the principal of, premium, if any,
and interest on the Series 2015 Bonds. See "SECURITY FOR THE SERIES 2015 BONDS" herein and
"APPENDIX F - Form of Master Trust Indenture and Supplement No. 6" attached hereto.
Additional Indebtedness
Additional Obligations under the Master Trust Indenture secured and payable on a parity with
Obligation No. 6 may be issued by the Members of the Obligated Group for the purposes of and upon the
terms and subject to the conditions provided in the Master Trust Indenture. Additional Obligations may
be issued to secure additional bonds or other obligations issued by the Borrower or any other Member of
the Obligated Group.
Outstanding Indebtedness of the Borrower
The Higher Educational Facilities Financing Authority ("HEFFA"), as a conduit issuer, has
previously issued for the benefit of the Borrower (i) the Higher Educational Facilities Financing Authority
Revenue and Revenue Refunding Bonds (The University of Tampa Project), Series 2012A (the "Series
2012A Bonds") which are currently outstanding in the aggregate principal amount of $69,495,000
(exclusive of unamortized original issue premium), (ii) the Higher Educational Facilities Financing
Authority Revenue Refunding Bond (The University of Tampa Project), Series 2012B (the "Series 2012B
Bond") which is currently outstanding in the principal amount of $3,885,000, and (iii) the Higher
Educational Facilities Financing Authority Revenue Bond (The University of Tampa Project), Series
2012C (the "Series 2012C Bond") which is currently outstanding in the principal amount of $20,000,000,
in each case, net of scheduled principal payments due on April 1, 2015.
The Borrower issued its Obligation Nos. 1, 2 and 3 each dated April 30, 2012 to evidence the
Obligated Group's obligation under the Series 2012A Bonds, the Series 2012B Bond and the Series
2012C Bond, respectively. Obligation Nos. 1, 2 and 3 are collectively referred to herein as the
"Outstanding Obligations." Obligation No. 4 was issued by the Borrower to evidence its obligations with
respect to the Refunded Bonds and Obligation No. 5 was issued by the Borrower to evidence its
obligations with respect to the 2013 Bank Loan. Both Obligation No. 4 and Obligation No. 5 are
expected to be canceled upon issuance of the Series 2015 Bonds. All outstanding Obligations are
4
Accelerable Obligations, as defined in the Master Trust Indenture, and Obligation No. 6 will be an
Accelerable Obligation.
The Series 2012A Bonds were issued for the purpose of making a loan from HEFFA to the
Borrower pursuant to a Loan Agreement dated as of April 1, 2012 between the Borrower and HEFFA (the
"2012A Loan Agreement") to refinance certain debt of the Borrower that had been outstanding at the time
and to finance certain capital projects on the campus of the University. The Refunded Bonds, secured by
Obligation No. 4, financed and refinanced the 2006 Project. In addition to the security for the payment
and performance of its duties and obligations under the 2012A Loan Agreement and Obligation No. 1
given to secure the Series 2012A Bonds, the Borrower granted a mortgage on the 2006 Project pursuant to
a Mortgage and Security Agreement dated as of April 1, 2012 (the "Mortgage"), from the Borrower to the
Master Trustee. The Refunded Bonds are secured by a first mortgage on the 2006 Project and the Series
2012A Bonds are secured by a second mortgage on the 2006 Project. Upon issuance of the Series 2015
Bonds, the mortgage securing the Refunded Bonds will be satisfied and the Mortgage which secures the
Series 2012A Bonds will become a first mortgage on the 2006 Project. Other than the 2006 Project
securing the Series 2012A Bonds and the Refunded Bonds, no other property of the Borrower is secured
by a mortgage, and the Borrrower's ability to grant additional mortgages and other liens is subject to
certain restrictions set forth in the Master Trust Indenture. See "SECURITY FOR THE SERIES 2015
BONDS - The Master Trust Indenture and Obligation No. 6" under the subheading "Permitted Liens"
herein. The Mortgage does not secure the Series 2015 Bonds. Upon a foreclosure of the 2006
Project proceeds derived from the 2006 Project (whether by sale or otherwise) would be
available first to the holders of the Series 2012A Bonds and would not be available to
holders of other indebtedness of the Borrower, including the Series 2015 Bonds, until all
obligations secured by the Mortgage on the 2006 Project have been satisfied.
See "SECURITY FOR THE SERIES 2015 BONDS - The Master Trust Indenture and Obligation
No. 6 - Additional Indebtedness" herein for additional indebtedness that may be issued by Borrower,
certain types of which may be issued without limit and may have a lien on a portion of the revenues of the
Borrower.
Bondholder's Risks
Investment in the Series 2015 Bonds is subject to certain risks, and the Series 2015 Bonds are not
a suitable investment for all potential investors. See "CERTAIN INVESTMENT CONSIDERATIONS"
and "SUITABILITY FOR INVESTMENT" herein.
Defined Terms
Capitalized terms used herein shall have the same meanings as given to them in the Loan
Agreement, the Indenture or the Master Trust Indenture, as applicable, unless otherwise defined herein or
unless the context clearly requires otherwise. It should be noted that certain capitalized terms used herein
are defined in each of the Loan Agreement, the Indenture, and the Master Trust Indenture and that the
definitions may differ depending on the instrument from which they are derived. The definitions in the
Loan Agreement, the Indenture, and the Master Trust Indenture attached to this Official Statement as
Appendices "D," "E" and "F," respectively, should be read in conjunction with this Official Statement.
PURPOSE OF THE SERIES 2015 BONDS AND REFUNDING PLAN
The 2015 Project
A portion of the proceeds of the Series 2015 Bonds will, together with certain other funds of the
Borrower, be used to construct the 2015 Project. See "APPENDIX A – General Information Regarding
5
the University" under the caption "FACILITIES - The Project" for a description of the 2015 Project. See
"CERTAIN INVESTMENT CONSIDERATIONS - Project Risks" herein.
Refunding Plan
The Series 2015 Bonds are also being issued to provide funds, together with other available
moneys of the Borrower, to refund the Refunded Bonds outstanding on the date hereof in the aggregate
principal amount of $38,365,000 and to refinance the 2013 Bank Loan outstanding on the date hereof in
the principal amount of approximately $12,639,715. Upon delivery of the Series 2015 Bonds, the 2013
Bank Loan will be paid in full.
The Borrower, U.S. Bank National Association (the "Escrow Agent") and the Issuer will enter
into an escrow deposit agreement (the "Escrow Deposit Agreement") pertaining to the Refunded Bonds.
The Escrow Deposit Agreement will create an irrevocable escrow deposit trust fund (the "Escrow
Account") to be held by the Escrow Agent and funded with a portion of the proceeds of the Series 2015
Bonds and certain other legally available moneys (including, without limitation, funds held in a debt
service reserve fund securing only the Refunded Bonds). The Escrow Account will be held in trust by the
Escrow Agent and the money and securities therein will be irrevocably pledged to the payment of the
principal of, and redemption premium, if any, and interest on the Refunded Bonds on or prior to their
redemption date on April 1, 2016. Moneys in the Escrow Account, other than amounts held uninvested as
cash balances, will be invested in non-callable direct obligations of the U.S. Government maturing in such
amounts and bearing interest at rates sufficient, together with cash held uninvested in the Escrow
Account, to pay the principal of and redemption premium, if any, and interest on the Refunded Bonds as
the same become due or are called for redemption.
Upon delivery of the Series 2015 Bonds, Integrity Public Finance Consulting LLC (the
"Verification Agent"), will verify the accuracy of the arithmetical computations of the sufficiency of the
maturing principal amount of, and interest on, the securities held in the Escrow Account, together with the
cash balances held therein, to pay the principal of and interest on the Refunded Bonds. See
"VERIFICATION OF ARITHMETICAL COMPUTATIONS" herein.
Assuming the proper execution and delivery of the Escrow Deposit Agreement and in reliance
upon the above-referenced schedules and verification, at the time of delivery of the Series 2015 Bonds,
Bond Counsel shall deliver an opinion to the effect that: (i) the defeasance of the Refunded Bonds will
not, in and of itself, adversely affect the exclusion of interest on the Refunded Bonds for purposes of
federal income taxation, the defeasance of the Refunded Bonds has been undertaken in compliance with
the Indenture of Trust dated as of June 1, 2006 between the Issuer and U.S. Bank National Association, as
successor trustee, pursuant to which the Refunded Bonds were issued (the "Refunded Bonds Indenture"),
and (ii) the rights granted by the Refunded Bonds Indenture have ceased, terminated and become void
within the meaning of Article IX of the Refunded Bonds Indenture.
The moneys and securities held under the Escrow Deposit Agreement will be used only to pay the
Refunded Bonds and will not be available for payment of debt service on the Series 2015 Bonds.
6
ESTIMATED SOURCES AND USES OF FUNDS
The proceeds expected to be received from the sale of the Series 2015 Bonds and other sources of
funds of the Borrower and their expected application is as follows:
Source of Funds
Principal Amount of Series 2015 Bonds
Original Issue Premium
Other Legally Available Funds(1)
TOTAL SOURCES
$76,690,000.00
8,928,990.50
2,901,725.00
$88,520,715.50
Uses of Funds
Deposit to Escrow Fund(2)
Repayment of the 2013 Bank Loan (2)
Deposit to Project Fund(2)
Costs of Issuance(3)
TOTAL USES
$40,169,947.21
12,639,697.07
35,000,000.00
711,071.22
$88,520,715.50
________________________
(1)
(2)
(3)
Release of the debt service reserve funds securing the Refunded Bonds and other legally available funds, if any.
See "PURPOSES OF THE SERIES 2015 BONDS AND REFUNDING PLAN" herein.
Includes legal, printing, ratings and Trustee fees, Underwriters' discount, counsel fees and other related financing costs.
THE ISSUER
The Issuer is a municipal corporation of the State of Florida. The Issuer is authorized under the
Act to issue the Series 2015 Bonds to refund the Refunded Bonds, to refinance the 2013 Bank Loan and
to finance and refinance the costs of the 2015 Project and to secure the Series 2015 Bonds by an
assignment of the payments to be received by it under the Loan Agreement. In order to accomplish the
foregoing, the Issuer is authorized to enter into the Indenture and the Loan Agreement.
The Series 2015 Bonds will be limited obligations of the Issuer as described under the caption
"THE SERIES 2015 BONDS – General."
Disclosure Required by Florida Blue Sky Regulations
Rule 69W-400.03, Rules for Government Securities, promulgated by the Florida Office of
Financial Regulation, under Section 517.051(1), Florida Statutes ("Rule 69W-400.03"), requires the
Issuer to disclose each and every default as to the payment of principal and interest with respect to an
obligation issued by the Issuer after December 31, 1975. Rule 69W-400.03 further provides, however,
that if the Issuer in good faith believes that such disclosures would not be considered material by a
reasonable investor, such disclosures may be omitted. The Issuer, in the case of the Series 2015 Bonds, is
merely a conduit for payment, in that the Series 2015 Bonds do not constitute a general debt, liability or
obligation of the Issuer, but are instead secured by and payable solely from payments or prepayments
upon Obligation No. 6, other amounts payable under the Loan Agreement pledged in the Indenture
(exclusive of the fees and expenses of the Issuer and amounts payable to the Issuer as indemnification
under certain circumstances), and amounts on deposit in the funds created under the Indenture (other than
the Rebate Fund). The Series 2015 Bonds are not being offered on the basis of the financial strength or
condition of the Issuer. The Issuer believes, therefore, that disclosure of any default related to a financing
not involving the Borrower or any person or entity related to the Borrower would not be material to a
reasonable investor. Accordingly, the Issuer has not taken affirmative steps to contact any trustee of any
other conduit bond issue of the Issuer to determine the existence of prior defaults. The Issuer has
previously issued bonds for the benefit of the Borrower and to the knowledge of the Issuer, the Borrower
7
has not been in default as to payment of principal or interest with respect to its obligations related to such
bonds at any time after December 31, 1975.
The Issuer assumes no responsibility as to the accuracy, adequacy or completeness of the
information in this Official Statement, other than with respect to the accuracy of the information relating
to the Issuer under this caption and under the sections, "INTRODUCTION - The Issuer" and
"LITIGATION – The Issuer" herein.
THE UNIVERSITY
The Borrower owns and operates an independent, comprehensive four-year co-educational
university known as The University of Tampa (the "University") that is situated on a campus of
approximately 102 acres and is adjacent to downtown Tampa, Florida. The University was founded by
Frederic H. Spaulding, a former high school principal, initially as Tampa Junior College. It became a
four-year liberal arts university in 1933. The Borrower is a not-for-profit corporation originally
incorporated on March 13, 1930, under the laws of the State of Florida, and is a tax-exempt charitable
organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"),
exempt from federal income taxation under Section 501(a) of the Code.
See "APPENDIX A – General Information Regarding the University" hereto for additional
information regarding the University, including a description of the University's colleges, major programs
and degrees offered, and the Borrower's management. The audited consolidated financial statements of
the Borrower as of and for the years ended May 31, 2014 and 2013 are included in APPENDIX B to this
Official Statement.
For purposes of Rule 69W-400.03, the Borrower has not been in default as to payment of
principal or interest at any time after December 31, 1975 on bonds, notes or other debt obligations issued
or guaranteed by the Borrower.
THE SERIES 2015 BONDS
General
The Series 2015 Bonds will be dated, will bear interest at the rates per annum and, subject to the
redemption provisions set forth below, will mature on the dates and in the amounts, set forth on the inside
cover page of this Official Statement. Interest on the Series 2015 Bonds will be payable semi-annually on
October 1 and April 1 (each an "Interest Payment Date"), commencing October 1, 2015, until maturity or
prior redemption. Interest on the Series 2015 Bonds will be calculated on the basis of a 360-day year
composed of twelve 30-day months. Regions Bank, Jacksonville, Florida, is the initial Bond Trustee,
Paying Agent and the Bond Registrar for the Series 2015 Bonds.
Denominations; Payment
The Series 2015 Bonds are issuable as fully registered bonds, without coupons, in denominations
of $5,000 and any integral multiple thereof. The Series 2015 Bonds will be initially issued in the form of
a single fully-registered certificate for each maturity. Upon initial issuance, the ownership of the Series
2015 Bonds will be registered on the registration books of the Issuer (the "Bond Register") kept by the
Bond Trustee as registrar (the "Bond Registrar") to evidence the registration and transfer of Series 2015
Bonds, in the name of Cede & Co., as nominee for The Depository Trust Company, New York, New
York ("DTC"). See "Book Entry System" below.
8
Interest payments on the Series 2015 Bonds (other than with respect to Defaulted Interest) shall
be made to the registered owner thereof appearing on the Bond Register as of the close of business of the
Bond Registrar on the fifteenth day (whether or not a Business Day) preceding each Interest Payment
Date (the "Record Date"); provided, however, that such payments shall be made by check or draft of the
Bond Trustee, from available amounts in the Interest Fund, mailed on the Interest Payment Date to such
registered owner at the address of such owner as it appears on the Bond Register or at such other address
furnished in writing by such registered owner to the Bond Registrar or to any owner of $1,000,000 or
more in aggregate principal amount of Series 2015 Bonds as of the close of business of the Bond
Registrar on the Record Date for a particular Interest Payment Date, by wire transfer sent on the Interest
Payment Date, to such owner. The principal of and premium, if any, on the Series 2015 Bonds shall be
payable upon presentation and surrender thereof at the designated corporate office of the Bond Trustee, or
its successor in trust; provided, however, that for so long as the Series 2015 Bonds are registered in the
book entry only system maintained by DTC, principal of and interest will be paid directly to DTC, which
will in turn remit such payments to the DTC Participants (as described below) for subsequent distribution
to the beneficial owners. See "Book Entry System" below.
Principal of, premium, if any, and interest on the Series 2015 Bonds shall be payable in any
currency of the United States of America which, at the respective dates of payment thereof, is legal tender
for the payment of public and private debts.
Interest on any Series 2015 Bond which is payable but not duly paid on the date due ("Defaulted
Interest") will cease to be payable to the holder of such Bond on the relevant Record Date and shall be
payable to the holder in whose name such Series 2015 Bond is registered at the close of business on the
date fixed by the Bond Trustee for the payment of Defaulted Interest (the "Special Record Date"), which
Special Record Date shall be fixed in the following manner. The Borrower must notify the Bond Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each Series 2015 Bond and the date
of the proposed payment (which date shall be such as will enable the Bond Trustee to comply with the
second sentence hereafter), and will deposit with the Bond Trustee at the time of such notice an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Bond Trustee for such deposit prior to the date of the proposed
payment. Money deposited with the Bond Trustee will be held in trust for the benefit of the holders of the
Series 2015 Bonds entitled to such Defaulted Interest. Following receipt of such funds the Bond Trustee
must fix a Special Record Date for the payment of such Defaulted Interest which must be not more than
15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Bond Trustee of the notice of the proposed payment. The Bond Trustee must promptly
notify the Borrower of such Special Record Date and, in the name and at the expense of the Borrower,
will cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, not less than 10 days prior to such Special Record Date, to each
holder of a Series 2015 Bond at the address of such holder as it appears on the Bond Register.
Book Entry System
The following contains a description of the procedures and operations of DTC and is based upon
information provided by DTC. Neither the Issuer nor the Borrower has independently investigated or
verified such procedures and operations and assumes no responsibility for the accuracy or completeness
of the description thereof.
DTC, New York, New York, will act as securities depository for the Series 2015 Bonds. The
Series 2015 Bonds will be issued as fully registered Series 2015 Bonds, registered in the name of Cede
&Co. (DTC's partnership nominee) or such other name as may be requested by an authorized
representative of DTC. One fully registered certificate for each series of the Series 2015 Bonds will be
9
issued in the aggregate principal amount of the Series 2015 Bonds of each maturity thereof and will be
deposited with DTC.
DTC, the world's largest securities depository, is a limited purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over
3.5 million issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues and money
market instruments from over one hundred (100) countries that DTC's Participants ("Direct Participants")
deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and
other securities transactions in deposited securities, through electronic computerized book-entry transfers
and pledges between Direct Participants' accounts. This eliminates the need for physical movement of
securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC is the holding company
for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which
are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the
DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers,
banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect Participants"). DTC has a Standard &
Poor's rating of AA+. The DTC Rules applicable to its Participants are on file with the Securities and
Exchange Commission. More information about DTC can be found at www.dtcc.com.
Purchases of Series 2015 Bonds under the DTC system must be made by or through Direct
Participants, which will receive a credit for the Series 2015 Bonds on DTC's records. The ownership
interest of each actual purchaser of each Series 2015 Bond ("Beneficial Owner") is in turn to be recorded
on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive written confirmations
providing details of the transaction, as well as periodic statements of their holdings, from the Direct or
Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Series 2015 Bonds are to be accomplished by entries made on the books of
Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in the Series 2015 Bonds, except in the event
that use of the book-entry system for the Series 2015 Bonds is discontinued.
To facilitate subsequent transfers, all Series 2015 Bonds deposited by Direct Participants with
DTC are registered in the name of DTC's partnership nominee, Cede & Co or such other name as may be
requested by an authorized representative of DTC. The deposit of Series 2015 Bonds with DTC and their
registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2015 Bonds, DTC's
records reflect only the identity of the Direct Participants to whose accounts such Series 2015 Bonds are
credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will
remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners will be governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. Beneficial Owners of Series 2015 Bonds may wish to
take certain steps to augment the transmission to them of notices of significant events with respect to the
Series 2015 Bonds, such as redemptions, defaults, and proposed amendments to the Indenture. For
example, Beneficial Owners of Series 2015 Bonds may wish to ascertain that the nominee holding the
10
Series 2015 Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the
alternative, Beneficial Owners may wish to provide their names and addresses to the Bond Registrar and
request that copies of notices be provided directly to them.
Redemption notices shall be sent by the Bond Trustee to DTC. If less than all of the Series 2015
Bonds are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to
the Series 2015 Bonds unless authorized by a Direct Participant in accordance with DTC's MMI
Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the Series 2015 Bonds are credited on the record date (identified in
a listing attached to the Omnibus Proxy).
Principal and interest payments on the Series 2015 Bonds will be made to Cede & Co. or such
other nominee as may be requested by an authorized representative of DTC. DTC's practice is to credit
Direct Participants' accounts upon DTC's receipt of funds and corresponding detail information from the
Issuer or the Paying Agent on the payable date in accordance with their respective holdings shown on
DTC's records. Payments by Direct Participants or Indirect Participants to Beneficial Owners will be
governed by standing instructions and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name," and will be the responsibility of such
Participant and not of DTC, the Paying Agent, or the Issuer, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal and interest to Cede & Co. (or
such other nominee as may be requested by an authorized representative of DTC) is the responsibility of
the Issuer or the Paying Agent, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with respect to the Series
2015 Bonds at any time by giving reasonable notice to the Issuer or the Paying Agent. Under such
circumstances, in the event that a successor depository is not obtained, Series 2015 Bond certificates are
required to be printed and delivered.
Subject to the policies and procedures of DTC (or any successor securities depository), the Issuer
may decide to discontinue use of the system of book-entry transfers through DTC (or a successor
securities depository). In that event Series 2015 Bonds certificates will be printed and delivered.
SO LONG AS CEDE & CO. IS THE REGISTERED OWNER OF THE SERIES 2015 BONDS,
AS NOMINEE OF DTC, REFERENCES HEREIN TO THE HOLDER OF THE SERIES 2015 BONDS
OR REGISTERED OWNERS OF THE SERIES 2015 BONDS SHALL MEAN DTC AND SHALL NOT
MEAN THE BENEFICIAL OWNERS OF THE SERIES 2015 BONDS.
The Issuer does not have any responsibility or obligations to the DTC Participants, Indirect
Participants or the Beneficial Owners with respect to (A) the accuracy of the records of DTC, Cede & Co.
or any Participant with respect to any ownership interest on the Series 2015 Bonds, (B) the delivery to
any DTC Participant or any other Person other than a Bondholder, as shown in the registration books kept
by the Bond Registrar, of any notice with respect to the Series 2015 Bonds, including any notice of
redemption, or (C) the payment to any Participant or any other Person, other than a Bondholder, as shown
in the registration books kept by the Bond Registrar, of any amount with respect to principal of,
redemption price, if any, or interest on the Series 2015 Bonds.
11
NONE OF THE ISSUER, THE BORROWER OR THE TRUSTEE SHALL HAVE ANY
OBLIGATION WITH RESPECT TO ANY DEPOSITORY PARTICIPANT OR BENEFICIAL OWNER
OF THE SERIES 2015 BONDS DURING SUCH TIME AS THE SERIES 2015 BONDS ARE
REGISTERED IN THE NAME OF A SECURITIES DEPOSITORY PURSUANT TO A BOOK-ENTRY
ONLY SYSTEM OF REGISTRATION.
REDEMPTION
Optional Redemption
The Series 2015 Bonds maturing on or before April 1, 2025, shall not be subject to optional
redemption prior to maturity. The Series 2015 Bonds maturing after April 1, 2025 shall be subject to
redemption and payment prior to maturity by the Issuer, upon written direction of the Borrower, on and
after April 1, 2025, in whole or in part at any time at a redemption price of par, plus accrued interest
thereon to the redemption date.
Mandatory Redemption
The Series 2015 Bonds maturing on April 1, 2040, are required to be retired, in accordance with
the schedule set forth below, by redemption prior to maturity or at maturity beginning on April 1, 2036,
and annually on April 1 thereafter to and including April 1, 2040, by operation of the Bond Sinking Fund
as provided in the Indenture at the principal amounts set forth below (without premium) plus accrued
interest to the redemption date.
Redemption Date
(April 1)
2036
2037
2038
2039
2040*
Amount
$3,865,000
$4,060,000
$2,420,000
$2,540,000
$2,670,000
__________
* Maturity
The Series 2015 Bonds maturing on April 1, 2045, are required to be retired, in accordance with
the schedule set forth below, by redemption prior to maturity or at maturity beginning on April 1, 2041,
and annually on April 1 thereafter to and including April 1, 2045, by operation of the Bond Sinking Fund
as provided in the Indenture at the principal amounts set forth below (without premium) plus accrued
interest to the redemption date.
Redemption Date
(April 1)
2041
2042
2043
2044
2045*
Amount
$2,800,000
$2,945,000
$7,135,000
$7,495,000
$7,870,000
__________
* Maturity
The Series 2015 Bonds to be so redeemed by mandatory redemption shall be selected by the
Bond Trustee by lot in any customary manner of selection as determined by the Bond Trustee. If Series
2015 Bonds are to be called for optional redemption on the same date as Series 2015 Bonds are to be
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redeemed by mandatory redemption, the Series 2015 Bonds shall be selected first for optional redemption
and then for mandatory redemption.
Extraordinary Optional Redemption
The Series 2015 Bonds are subject to redemption prior to maturity by the Issuer, to the extent of
available Net Proceeds of insurance or condemnation, upon the direction of the Borrower in the event
(i) the Project or any portion thereof are damaged, destroyed or condemned, (ii) the Net Proceeds of
insurance or condemnation received in connection therewith exceed the greater of (a) 5% of Property,
Plant and Equipment of the Obligated Group or (b) $500,000 and (iii) the Borrower elects to have all or
any part of such Net Proceeds applied to the prepayment of Obligation No. 6. If called for redemption in
any such event, the Series 2015 Bonds shall be subject to redemption in whole or in part at any time, and
if in part, by maturities designated by the Borrower (and, if less than all of a maturity is being redeemed,
by lot within a maturity) at a redemption price equal to the principal amount thereof plus accrued interest
to the redemption date, without premium.
The Series 2015 Bonds are also subject to redemption prior to their maturity, as a whole or in
part, at the direction of the Borrower on the earliest practicable date in the event that (i) the board of
trustees of the Borrower (the "Governing Body") determines in good faith that continued operation of the
Project (or portions thereof) is not financially feasible or is otherwise disadvantageous to the Borrower;
(ii) as a result thereof, the Borrower sells, leases or otherwise disposes of all or a portion of the Project to
a Person or entity unrelated to the Borrower; and (iii) there is delivered to the Bond Trustee a written
statement of Bond Counsel to the effect that, unless the Series 2015 Bonds are redeemed or retired in the
amount specified either prior to or concurrently with such sale, lease or other disposition, or on a
subsequent date prior to the first date on which the Series 2015 Bonds are subject to redemption, at the
option of the Borrower, such Bond Counsel will be unable, absent payment of penalties by the Borrower
or the Issuer to the Internal Revenue Service, to render an unqualified opinion that such sale, lease or
other disposition of all or a portion of the Project will not adversely affect the validity of any Series 2015
Bonds or any exemption from federal income taxation to which the interest on such Series 2015 Bonds
would otherwise be entitled. Any extraordinary optional redemption undertaken under this section will be
at a redemption price (plus accrued interest to the redemption date) equal to the principal amount thereof,
without premium.
Notice of Redemption
A copy of the notice of the call for any such redemption identifying the Series 2015 Bonds to be
redeemed must be given by the Bond Trustee by first class mail, postage prepaid, to the registered owners
of Series 2015 Bonds to be redeemed at their addresses as shown on the Bond Register not less than 30
days and not more than 60 days prior to the redemption date. Except for mandatory redemptions, prior to
the date that the redemption notice is first given, funds must be placed with the Bond Trustee or an
escrow agent to pay the principal of such Series 2015 Bonds, any premium thereon and accrued interest
thereon to the redemption date, or, alternatively, a provision in such notice of a statement that any
redemption is conditional on such funds being deposited with the Bond Trustee or escrow agent on or
before the redemption date and that a failure to make such deposit shall not constitute a Default under the
Indenture.
Failure to give notice in the manner prescribed in the Indenture with respect to any Series 2015
Bond, or any defect in such notice, will not affect the validity of the proceedings for redemption for any
Series 2015 Bond with respect to which notice was properly given. Upon the happening of the above
conditions and if sufficient moneys are on deposit with the Bond Trustee on the applicable redemption
date to redeem the Series 2015 Bonds to be redeemed and to pay interest due thereon and premium, if
any, the Series 2015 Bonds thus called shall not after the applicable redemption date bear interest, be
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protected by the Indenture or be deemed to be outstanding under the provisions of the Indenture. The
Bond Trustee shall redeem such an aggregate principal amount of such Series 2015 Bonds at the principal
amount thereof plus accrued interest to the redemption date and unpaid thereon and premium, if any, as
will exhaust as nearly as practicable such funds. At the direction of the Borrower, such funds may be
invested in United States Government Obligations until needed for redemption payout in accordance with
the Indenture.
Notwithstanding the foregoing, so long as Series 2015 Bonds are subject to the book-entry only
system of registration, such notice shall only be sent to DTC and such notice may be sent by means of
facsimile or any other means acceptable to DTC or such other successor securities depository.
Method of Selection of Series 2015 Bonds for Redemption
In the event that less than all of the Outstanding Series 2015 Bonds or portions thereof shall be
optionally redeemed, the maturities of the Series 2015 Bonds to be redeemed shall be designated by the
Borrower and, if not so designated, the Series 2015 Bonds to be redeemed shall be redeemed in inverse
order of maturity. If less than all Series 2015 Bonds or portions thereof of a single maturity are to be
optionally redeemed or if less than all of a maturity of a Series 2015 Bond with Bond Sinking Fund
redemptions as described above under "REDEMPTION - Mandatory Redemption" are to be optionally
redeemed, then the particular years of the sinking fund redemptions for that maturity shall be designated
by the Borrower.
SECURITY FOR THE SERIES 2015 BONDS
General
The Series 2015 Bonds are being issued by the Issuer under and pursuant to the Indenture. The
Series 2015 Bonds and all payments to be made by the Issuer thereon and into the various funds
established under the Indenture are not general obligations of the Issuer but are special limited obligations
payable solely from payments or prepayments upon Obligation No. 6, other amounts payable under the
Loan Agreement pledged in the Indenture (exclusive of the fees and expenses of the Issuer and amounts
payable to the Issuer as indemnification under certain circumstances), and amounts on deposit in the
funds created under the Indenture (other than the Rebate Fund). The Issuer will assign to the Bond
Trustee substantially all of its right, title and interest in and to the Loan Agreement, including the right to
receive loan payments to be made by the Borrower, but excluding the Unassigned Rights.
THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2015
BONDS, DO NOT CONSTITUTE A DEBT OR LIABILITY OF THE STATE OF FLORIDA
(THE "STATE") OR OF ANY AGENCY OR POLITICAL SUBDIVISION THEREOF, OR A
PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OR OF ANY
POLITICAL SUBDIVISION OR AGENCY THEREOF, BUT SHALL BE PAYABLE SOLELY
FROM THE FUNDS PLEDGED THEREFOR IN ACCORDANCE WITH THE INDENTURE
AND OBLIGATION NO. 6. THE ISSUANCE OF THE SERIES 2015 BONDS UNDER THE
PROVISIONS OF THE ACT DOES NOT, DIRECTLY, INDIRECTLY OR CONTINGENTLY,
OBLIGATE THE ISSUER, THE STATE OR ANY AGENCY OR POLITICAL SUBDIVISION
THEREOF TO LEVY ANY FORM OF TAXATION FOR THE PAYMENT THEREOF OR TO
MAKE ANY APPROPRIATION FOR THEIR PAYMENT AND THE SERIES 2015 BONDS AND
THE INTEREST PAYABLE THEREON DO NOT NOW AND SHALL NEVER CONSTITUTE A
DEBT OF THE ISSUER, THE STATE OR ANY AGENCY OR POLITICAL SUBDIVISION
THEREOF WITHIN THE MEANING OF THE CONSTITUTION OR THE STATUTES OF THE
STATE AND DO NOT NOW AND SHALL NEVER CONSTITUTE A CHARGE AGAINST THE
CREDIT OR TAXING POWER OF THE ISSUER, THE STATE OR ANY POLITICAL
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SUBDIVISION OR AGENCY THEREOF. NEITHER THE STATE NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL IN ANY EVENT BE LIABLE FOR THE
PAYMENT OF THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, OR INTEREST ON
THE SERIES 2015 BONDS OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION
OR AGREEMENT OF ANY KIND WHATSOEVER WHICH MAY BE UNDERTAKEN BY THE
ISSUER. NO BREACH BY THE ISSUER OF ANY SUCH PLEDGE, OBLIGATION OR
AGREEMENT MAY IMPOSE ANY LIABILITY, PECUNIARY OR OTHERWISE, UPON THE
ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF OR ANY
CHARGE UPON ITS OR THEIR GENERAL CREDIT OR AGAINST ITS OR THEIR TAXING
POWER.
The Indenture establishes the following funds and accounts for the benefit of the Holders of all
Series 2015 Bonds Outstanding under the Indenture: (i) Revenue Payment Fund, (ii) Interest Fund, (iii)
Bond Sinking Fund, (iv) Expense Fund, (v) Redemption Fund, and (vi) Project Fund. See "APPENDIX E
- Form of Bond Indenture" for more information regarding the funds and accounts created by the
Indenture. Moneys in the Revenue Payment Fund, Interest Fund, Bond Sinking Fund, Expense Fund and
Redemption Fund shall be invested in Qualified Investments (as defined in the Indenture) and moneys
held in the Redemption Fund will only be invested in United States Government Obligations with a term
not exceeding the earlier of 30 days from the date of investment of such moneys or the date such moneys
are anticipated to be required.
Investment in the Series 2015 Bonds is subject to certain risks. See "CERTAIN INVESTMENT
CONSIDERATIONS" and "SUITABILITY FOR INVESTMENT" herein.
The Master Trust Indenture and Obligation No. 6
General. The Master Trust Indenture provides for the issuance from time to time of Obligations
(the "Obligations") by Members of the Obligated Group. The Members are jointly and severally liable
for the payment of each Obligation. As of the date of this Official Statement the Borrower will be the
only Member of the Obligated Group; however, upon the satisfaction of certain conditions set forth in the
Master Trust Indenture, additional entities may become Members. In addition, Members of the Obligated
Group, other than the Borrower, may withdraw from the Obligated Group upon the satisfaction of certain
conditions set forth in the Master Trust Indenture.
The proceeds of the Series 2015 Bonds are being loaned to the Borrower pursuant to the Loan
Agreement, under the terms of which the Borrower is obligated to make payments in such amounts and at
such times as are necessary to provide for timely payment of the principal of, premium, if any, and
interest on the Series 2015 Bonds. To evidence the Borrower's obligation with respect to the Series 2015
Bonds, the Borrower will issue Obligation No. 6 under the Master Trust Indenture to the Bond Trustee.
The Issuer's rights under Obligation No. 6 will be assigned to the Bond Trustee for the benefit of the
Holders of the Series 2015 Bonds and will become part of the Trust Estate pledged under the Indenture
relating to the Series 2015 Bonds.
Obligation No. 6 will be secured by a pledge of the Pledged Revenues of the Members of the
Obligated Group and other moneys pledged under the Master Trust Indenture on a parity with the
Outstanding Obligations and any additional Obligations issued by the Borrower pursuant to the Master
Trust Indenture to secure Additional Indebtedness. The Series 2015 Bonds will not be secured by the
Debt Service Reserve Fund or any account therein. See "No Debt Service Reserve Fund Securing the
Series 2015 Bonds" below.
The Master Trust Indenture includes certain covenants of, and imposes certain restrictions on, the
Members of the Obligated Group for the benefit of all holders of Obligations issued under the Master
15
Trust Indenture, including, but not limited to (i) limitations on the creations of liens on the Property of the
Obligated Group, with the exception of Permitted Liens, and (ii) limitations on the disposition of property
of the Obligated Group.
Pledge of Pledged Revenues. To secure the prompt payment of the principal of, redemption
premium, if any, and the interest on the Obligations and the performance by each Member of the
Obligated Group of its other obligations under the Master Trust Indenture, each Member of the Obligated
Group has agreed to pledge, assign and grant to the Master Trustee a security interest in all (a) revenues,
receipts and money from tuition, fees, room and board and auxiliary services and programs, (b) all gifts,
grants, bequests, contributions and donations unrestricted as to their use for the payment of Obligations,
(c) rent received from the leasing of real or tangible personal property and (d) proceeds derived from (i)
insurance or condemnation awards relating to Property, except to the extent otherwise required by the
Master Trust Indenture, (ii) accounts (as defined in Section 679.1021(b), Florida Statutes) and accounts
receivable for any of the items described in clauses (a) - (c) above ("Pledged Revenues").
The Borrower has agreed, and each additional Member of the Obligated Group will agree, to
promptly pay or cause to be paid the principal of, premium, if any, and interest on each Obligation issued
pursuant to the Master Trust Indenture at the place, on the dates and in the manner provided in the Master
Trust Indenture and in said Obligation according to the terms thereof whether at maturity, upon
proceedings for redemption, by acceleration or otherwise. See "SECURITY FOR THE SERIES 2015
BONDS - Outstanding Indebtedness of the Borrower" herein.
The Borrower has agreed, and each additional Member of the Obligated Group will agree, not to
pledge or grant a security interest in any of its Property, except as may be provided in the Master Trust
Indenture or any Supplement.
Security for Obligations. All Obligations outstanding from time to time under the Master Trust
Indenture, including, without limitation, Obligation No. 6, will be secured by a security interest in the
Pledged Revenues of the Obligated Group. See "CERTAIN INVESTMENT CONSIDERATIONS Effectiveness of Security Interest" for a discussion on the security interest in Pledged Revenues in favor
of the Master Trustee being perfected only with respect to those types of collateral in which a security
interest can be perfected by filing a financing statement in accordance with the Florida Uniform
Commercial Code.
Indebtedness may be incurred by the Obligated Group, with or without the issuance of
Obligations. Additionally, Non-Recourse Indebtedness may be incurred without limit and may be
secured by a perfected lien on a portion of the revenues produced by such Property. "Non-Recourse
Indebtedness" is defined in the Master Trust Indenture to mean any Indebtedness incurred to finance the
purchase or improvement of Property secured exclusively by a Lien on or pledge of such Property or the
revenues or net revenues produced by such Property or both, the liability for which is effectively limited
to such Property or revenues subject to such Lien with no recourse, directly or indirectly, to any other
Property or revenues of any Member of the Obligated Group. See "APPENDIX F - Form of Master Trust
Indenture and Supplement No. 6" in the Master Trust Indenture under the caption "LIMITATIONS ON
INDEBTEDNESS" for a description of the financial tests and limits on Additional Indebtedness in the
Master Trust Indenture.
See "APPENDIX F - Form of Master Trust Indenture and Supplement No. 6" under the caption
"APPLICATION OF MONEYS AFTER DEFAULT" for a description of the application of Pledged
Revenues upon an Event of Default under the Master Trust Indenture.
Revenue Fund. As additional security for its obligation to pay amounts due on Obligations, the
Borrower has agreed to maintain for the benefit of the holders of Obligations the Revenue Fund. The
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Borrower has agreed to make deposits of the Pledged Revenues directly into the Revenue Fund promptly
following receipt of such moneys by the Borrower. Pursuant to the pledge contained in the Master
Indenture, the Borrower has granted to the Master Trustee on behalf of the holders of the Obligations a
lien on and security interest in all moneys deposited in the Revenue Fund to secure its obligations under
the Master Trust Indenture, including but not limited to the obligations to make payments pursuant to the
Obligations issued under the Master Trust Indenture. The Borrower will at all times maintain accounting
records reflecting the source of Pledged Revenues for all amounts deposited into the Revenue Fund from
time to time. Provided no Event of Default shall have occurred and be continuing under the Master Trust
Indenture, the Borrower will have authority to draw upon moneys in the Revenue Fund for use for any
lawful purpose. If an Event of Default has occurred and is continuing under the Master Trust Indenture,
the Borrower will not be permitted to draw upon moneys in the Revenue Fund for any purpose (other than
for ongoing operation and maintenance of the Borrower).
The accounts or funds comprising the Revenue Fund (which may consist of one or more
accounts), into which the Borrower deposits the Pledged Revenues, will be operated in accordance with
the Master Trust Indenture. Any financial institution or depository holding a depository account
comprising all or a part of the Revenue Fund must expressly waive any right to set off against any
amounts on deposit as a consequence of any default or dispute between the depository and the Borrower
and will not be entitled to such remedy of set off. Such depository shall execute a written voluntary and
intentional waiver of any and all rights to set off as a remedy for any action or omission by the Borrower
prior to the deposit of Pledged Revenues. The accounts or funds comprising the Revenue Fund will all be
governed by one or more Revenue Fund Control Agreements. See "CERTAIN INVESTMENT
CONSIDERATIONS - Effectiveness of Security Interest" herein.
Permitted Liens. The Master Trust Indenture authorizes certain Permitted Liens on Property of
Members of the Obligated Group, including, without limitation, (i) Liens on Property in an aggregate
amount not exceeding 15% of the Book Value of all Property of the Obligated Group, (ii) Liens on
accounts receivable arising as a result of the sale of such accounts receivable with or without recourse,
provided that the principal amount of Indebtedness secured by any such Lien does not exceed the
aggregate sales price of such accounts receivable received by the Member selling the same by more than
15%, (iii) any Lien on Property acquired by a Member of the Obligated Group, which Lien secures
Indebtedness which is Non-Recourse Indebtedness and where if the aggregate principal amount of such
Indebtedness does not exceed the fair market value of the Property subject to such Lien as determined in
good faith by the Governing Body of the applicable Member of the Obligated Group, and (iv) any Lien on
Property as long as such Lien is granted pari passu to all Holders of Obligations outstanding at the time
such Lien is placed upon the Property (unless the right to be secured by such Lien is waived by such
Holder). Additionally, Permitted Liens includes the Mortgage. See the caption "LIMITATIONS ON
CREATION OF LIENS; PERMITTED LIENS" in "APPENDIX F – Form of Master Trust Indenture and
Supplement No. 6" for a description of all Permitted Liens.
Pledges of Property. The Borrower has agreed that it will not pledge any portion or all of the real
property on its campus with an address of 401 W. Kennedy Boulevard or any real property acquired by
the Borrower on or after the effective date of the Master Trust Indenture, to secure any indebtedness,
whether by means of mortgage, deed of trust, or security agreement or otherwise, unless (i) all of the
Obligations and the Obligated Group's obligations to the Master Trustee under the Master Trust Indenture
have been paid in full, or sufficient funds therefor (including investment obligations and investment
income) are held in trust for such payment or (ii) such security interest or pledge is granted to the Holders
of all Obligations (unless waived by such Holders). All Permitted Liens are allowable as described in the
Master Trust Indenture.
To additionally secure the payment and performance of its duties and obligations under the
2012A Loan Agreement related to the Series 2012A Bonds and the related Obligation No. 1, the
17
Borrower granted the Mortgage on the 2006 Project to the Master Trustee. See "INTRODUCTION –
Outstanding Indebtedness of the Borrower" herein.
Additional Indebtedness. Additional Obligations on parity with Obligation No. 6 may be issued
by the Members of the Obligated Group for the purposes and upon the terms and subject to the conditions
provided in the Master Trust Indenture. Additional Obligations may be issued to secure additional bonds
or other Additional Indebtedness of the Members of the Obligated Group. Subject to the conditions
contained therein, the Master Trust Indenture also permits the Members of the Obligated Group to incur
secured and unsecured indebtedness in addition to the Obligations and to enter into Guaranties. The
Master Trust Indenture provides that certain types of Additional Indebtedness may be incurred by the
Members of the Obligated Group without limit and without meeting any financial test. See the caption
"LIMITATIONS ON INDEBTEDNESS" in "APPENDIX F – Form of Master Trust Indenture and
Supplement No. 6" for a summary of the limitations on the incurrence of Additional Indebtedness.
To evidence the Obligated Group's obligation with respect to the Series 2012A Bonds, the Series
2012B Bond and the Series 2012C Bond, the Borrower issued Obligations under the Master Trust
Indenture in original principal amounts equal to the outstanding principal amount of such indebtedness.
The Borrower also issued Obligations to evidence its obligations with respect to the Refunded Bonds and
the 2013 Bank Loan, which Obligations are expected to be retired upon issuance of the Series 2015
Bonds.
Entrance into the Obligated Group, and Withdrawal from the Obligated Group. Persons which
are not Members of the Obligated Group and corporations which are successor corporations to any
Member of the Obligated Group through a merger or consolidation permitted by the Master Trust
Indenture may, with the prior written consent of the Borrower as the Obligated Group Representative (or
such other Person as may be designated as Obligated Group Representative pursuant to written notice to
the Master Trustee executed by all of the Members of the Obligated Group) (the "Obligated Group
Representative"), become Members of the Obligated Group by delivering to the Bond Trustee an
agreement to comply with the terms of the Master Trust Indenture and agreeing to be jointly and severally
liable for all Obligations and upon satisfaction of certain other conditions set forth in the Master Trust
Indenture. See "APPENDIX F - Form of Master Trust Indenture and Supplement No. 6" under the
caption "PARTIES BECOMING MEMBERS OF THE OBLIGATED GROUP" for a description of the
requirements for entry into the Obligated Group.
Pursuant to the Master Trust Indenture, the Borrower may not at any time withdraw from the
Obligated Group. Members of the Obligated Group, other than the Borrower may withdraw from the
Obligated Group, upon the written consent of the Obligated Group Representative and upon satisfaction
of the conditions set forth in the Master Trust Indenture. See "APPENDIX F - Form of Master Trust
Indenture and Supplement No. 6" under the caption "WITHDRAWAL FROM THE OBLIGATED
GROUP" for a description of the requirements for withdrawal of a Member from the Obligated Group.
Rate Covenant. Each Member of the Obligated Group will agree to set rates and charges for its
facilities, services and products such that the ratio determined by dividing (a) the Income Available for
Debt Service by (b) Long-Term Debt Service Requirement, calculated at the end of each Fiscal Year
calculated from the audited financial statements, will not be less than 1.00; provided, however, that in any
case where Long-Term Indebtedness has been incurred to acquire or construct capital improvements, the
Long-Term Debt Service Requirement with respect thereto will not be taken into account in making the
foregoing calculation until the first Fiscal Year commencing after the occupation or utilization of such
capital improvements unless the Long-Term Debt Service Requirement with respect thereto is required to
be paid from sources other than the proceeds of such Long-Term Indebtedness prior to such Fiscal Year.
18
If at any time the ratio determined as required in the preceding paragraph is less than 1.00, as
derived from the most recent Audited Financial Statements for the most recent Fiscal Year, the Borrower
has agreed to retain a Consultant, within 30 days after the date the Audited Financial Statements become
available, to make recommendations to increase such ratio in the following Fiscal Year to the level
required or, if in the opinion of the Consultant the attainment of such level is impracticable, to the highest
level attainable. Any Consultant so retained shall be required to submit such recommendations to the
Master Trustee, any Credit Facility Providers and the Borrower within 45 days after being so retained.
Each Member of the Obligated Group agrees that it will, to the extent permitted by law, follow the
recommendations of the Consultant. So long as a Consultant is retained and each Member of the
Obligated Group shall follow such Consultant's recommendations to the extent permitted by law, this
covenant shall be deemed to have been complied with even if the ratio for the following Fiscal Year is
below the required level, but in no event less than 1.00; provided, however, that the revenues and
unrestricted cash and investments on hand of the Obligated Group shall not be less than the amount
required to pay when due the total Expenses of the Obligated Group and to pay when due the debt service
on all Indebtedness of the Obligated Group for such Fiscal Year and further provided, however, that the
Obligated Group shall not be required to retain a Consultant to make recommendations pursuant to this
paragraph more frequently than biennially.
If a report of a Consultant is delivered to the Master Trustee, which report shall state that federal,
state or other applicable governmental laws or regulations affecting any Member of the Obligated Group
and its educational facilities and placing restrictions and limitations on the (i) fees and charges to be fixed,
charged and collected by any Member of the Obligated Group or (ii) the amount or timing of the receipt
of such revenues ("Governmental Restrictions") have been imposed which make it impossible for the
coverage requirement described above to be met, then such coverage requirement shall be reduced to the
maximum coverage permitted by such Governmental Restrictions, for so long as such Governmental
Restrictions are in effect, a report of a Consultant stating that Governmental Restrictions which make it
impossible for the coverage requirement in the preceding paragraph to be met are still in effect shall be
delivered to the Master Trustee biennially.
Rights of Credit Facility Providers. Notwithstanding anything in the Master Trust Indenture to
the contrary, but subject to the terms of any Supplement, in the event that a Credit Facility is in full force
and effect as to any Series of Related Bonds, the Credit Facility Provider is not insolvent and no default
of the Credit Facility exists on the part of the Credit Facility Provider, then said Credit Facility
Provider(s), in place of the owner of the Obligations to which such Related Bonds relate shall have the
power and authority to give any written consents and exercise any and all other rights which the owner of
that Obligation would otherwise have the power and authority to make, give or exercise, including, but
not limited to, the exercise of remedies provided in the Master Trust Indenture and the giving of written
consents to Supplements when required by the Master Trust Indenture, and such consent shall be deemed
to also constitute the consent of the owners of all of those Related Bonds which are secured by such
Credit Facility.
In addition, the Master Trust Indenture provides that all beneficial owners of Related Bonds not
secured by such Credit Facility which are adversely affected by any amendments or supplements under
the Master Trust Indenture shall be required to join with the Credit Facility Provider in consent to such
amendments or supplements, unless the consent of such beneficial owners has been waived or otherwise
not required for the specific purpose of such amendment or supplement.
The Authorized Representative or the Obligated Group Representative may execute and deliver
any contracts or agreements with Credit Facility Providers to carry out the provisions described under this
caption or to clarify the rights of such Credit Facility Provider with respect to any Related Bonds.
19
Other Master Trust Indenture Covenants. In addition to the security and other provisions
described above, the Master Trust Indenture contains provisions, covenants, and restrictions related to
mergers and other corporate combinations and divestitures, sales, leases or other dispositions of assets and
other matters. See "APPENDIX F - Form of Master Trust Indenture and Supplement No. 6" herein.
Events of Default and Remedies. See "EVENTS OF DEFAULT" and "ADDITIONAL
REMEDIES AND ENFORCEMENT OF REMEDIES" under "APPENDIX F – Form of Master Trust
Indenture and Supplement No. 6" for a summary of Events of Default and remedies available upon an
Event of Default.
Acceleration. Obligations issued under the Master Indenture will be subject to acceleration only
in accordance with the provisions of the Supplement related to such Obligations, and any Related Bonds
issued under a Related Bond Indenture will be subject to acceleration on account of any Event of Default
only in accordance with the terms of their Related Bond Indenture and shall be permitted only if the
Obligation related to such Related Bonds may be accelerated. Pursuant to Supplement No. 6, Obligation
No. 6 is an Accelerable Obligation under the Master Trust Indenture. Pursuant to Supplement No. 6, the
Master Trustee shall only be entitled to accelerate Obligation No. 6 (which secures all of the Series 2015
Bonds) upon written direction of the Bond Trustee. (Currently, all Obligations outstanding have been
designated as Accelerable Obligations.) See "CERTAIN INVESTMENT CONSIDERATIONS –
Acceleration of the Series 2015 Bonds."
No Debt Service Reserve Fund Securing the Series 2015 Bonds
The Master Trust Indenture establishes a Debt Service Reserve Fund and permits the creation of
separate accounts therein to secure specific Obligations. Obligation No. 6 will not be secured by the Debt
Service Reserve Fund or any accounts therein and therefore the Series 2015 Bonds do not receive the
benefit of such Fund or any account therein. Only the Series 2012A Bonds are currently secured by the
Debt Service Reserve Fund.
The Master Trustee may establish and maintain any separate accounts in the Debt Service
Reserve Fund as may be set forth in a Supplement to the Master Trust Indenture, which accounts may be
for the benefit of one or more Obligations, as provided in the applicable Supplement. Any future
Supplement to the Master Indenture creating an Obligation shall provide whether such Obligation will be
entitled to the benefit of the Debt Service Reserve Fund or to any separate account therein. If an
Obligation is entitled to the benefit of an account in the Debt Service Reserve Fund, the Supplement
related thereto shall provide for the deposit of such amount of the proceeds from the sale thereof as may
be necessary to cause the amount on deposit in the Debt Service Reserve Fund (or the separate account
therein) to equal the Debt Service Reserve Fund Requirement on all Obligations outstanding that are
specified to be entitled to the benefit of the Debt Service Reserve Fund (or the separate account therein).
If, on any date on which principal of or interest on an Obligation entitled to the benefit of the
Debt Service Reserve Fund or an account therein is to be paid to the Holder thereof, the moneys on
deposit are insufficient to pay the principal of or interest on such Obligation, then the Master Trustee must
proceed to use moneys on deposit in the Debt Service Reserve Fund (or applicable account therein) to
make up any deficiencies by paying money on deposit in the Debt Service Reserve Fund (or applicable
account therein) to the Holder of the applicable Obligation(s) to make up any deficiencies. In the event
that moneys are withdrawn from the Debt Service Reserve Fund to make up any such deficiencies, the
Master Trustee must notify the Obligated Group of the amount so withdrawn. In the case of any such
withdrawal, the Obligated Group agrees to restore the amount on deposit in the Debt Service Reserve
Fund or applicable account therein to an amount equal to the applicable Debt Service Reserve Fund
Requirement as soon as reasonably practicable and in any event in not more than 12 substantially equal
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consecutive monthly installments beginning with the first day of the first month after the month in which
the withdrawal was made.
Investments in the Debt Service Reserve Fund (or applicable account therein) shall be valued by
the Master Trustee as of the last Business Day of each March and September on the basis of fair market
value (which valuation shall take into account any accrued and unpaid interest). The funds in the Debt
Service Reserve Fund may be invested in Qualified Investments as directed by the Obligated Group.
Reserve Fund Credit Facilities, surety bonds, guaranteed investment contracts and other investment
agreements constituting "Qualified Investments" in the Debt Service Reserve Fund shall be valued at the
amount which is available to be drawn or paid thereunder. If on any valuation date the amount on deposit
in the Debt Service Reserve Fund is less than 100% of the Debt Service Reserve Fund Requirement as a
result of a decline in the market value of investments in the Debt Service Reserve Fund, the Obligated
Group shall deposit in the Debt Service Reserve Fund the amount necessary to restore the amount on
deposit in the Debt Service Reserve Fund to the Debt Service Reserve Fund Requirement within not more
than 60 days following the date on which it receives notice of such deficiency from the Master Trustee. If
the amount on deposit in the Debt Service Reserve Fund is more than the Debt Service Reserve Fund
Requirement, the amount of such excess shall, if the Obligated Group so directs, (i) be transferred to the
Related Bond Trustee to the extent of the amount required to be deposited for debt service for the next
required principal payment date on the Related Bonds occurring within 13 months of such transfer and
any excess shall be deposited in the interest fund and used to pay interest on the Related Bonds or (ii)
used for any other corporate purpose, provided, however, the Master Trustee shall have received an
Opinion of Bond Counsel (which Opinion, including the scope, form, substance and other aspects thereof
are acceptable to the Master Trustee) to the effect that the foregoing use in (ii) will not adversely affect
the validity or enforceability in accordance with their terms of the Related Bonds or any exception for the
purposes of federal income taxation to which interest on the Related Bonds are otherwise entitled.
Outstanding Indebtedness of the Borrower
HEFFA, as a conduit issuer, has previously issued for the benefit of the Borrower the Series
2012A Bonds, the Series 2012B Bond and the Series 2012C Bond, and the Borrower issued its Obligation
Nos. 1, 2 and 3, each dated April 30, 2012, to evidence the Obligated Group's obligations with respect to
the Series 2012A Bonds, the Series 2012B Bond and the Series 2012C Bond, respectively. The Series
2012A Bonds, the Series 2012B Bond, the Series 2012C Bond and Obligation Nos. 1, 2 and 3 are
expected to remain outstanding after the issuance of the Series 2015 Bonds.
See APPENDIX A under the captions "RESULTS OF OPERATIONS – Long-Term Estimated
Debt Service" and "DEBT SERVICE COVERAGE" for a summary of the Borrower's estimated debt
service on the Series 2012A Bonds, the Series 2012B Bond, the Series 2012C Bond and the Series 2015
Bonds and estimated debt service coverage, respectively.
Loan Agreement
The Series 2015 Bonds are being issued for the purpose of making a loan from the Issuer to the
Borrower pursuant to the Loan Agreement. The Issuer will assign to the Bond Trustee substantially all of
its right, title and interest in and to the Loan Agreement, including the right to receive loan payments to
be made by the Borrower, but excluding the Unassigned Rights. The Loan Agreement imposes certain
restrictions on the Borrower for the benefit of the Issuer and the owners of the Series 2015 Bonds.
Pursuant to the Loan Agreement and Obligation No. 6, the Borrower will unconditionally agree to pay the
full amount needed and at the times needed to enable the Issuer (or the Bond Trustee on its behalf) to
make timely payment of the principal of (whether due upon maturity, redemption, acceleration or
otherwise), premium, if any, and interest on the Series 2015 Bonds. The Borrower has also made
additional covenants in the Loan Agreement, concerning, among others, the maintenance of the 2015
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Project, inspection of property, plant and equipment, indemnity, maintenance of its status as an
organization described in Section 501(c)(3) of the Code and its exemption from federal income taxation
under Section 501(a) of the Code and maintenance of its existence. See "APPENDIX D –Form of Loan
Agreement" herein.
CERTAIN INVESTMENT CONSIDERATIONS
The following are certain investment considerations that have been identified by the Borrower
and should be carefully considered by prospective purchasers of the Series 2015 Bonds. Such discussion
is not, and is not intended to be, exhaustive and should be read in conjunction with all other parts of this
Official Statement and should not be considered as a complete description of all risks that could affect
payment or the value of the Series 2015 Bonds. Prospective purchasers of the Series 2015 Bonds should
analyze carefully the information contained in this Official Statement, including the Appendices hereto.
General
The Series 2015 Bonds are payable solely from payments to be made by the Borrower under the
Loan Agreement, the Master Trust Indenture and Obligation No. 6 and certain other amounts held in
certain of the funds and accounts created under the Indenture, which amounts are pledged under the
Indenture, subject to application as provided in the Indenture, for the security and payment of the
principal of (whether at maturity or upon prior redemption) and premium, if any, and interest on the
Series 2015 Bonds. Pursuant to the provisions of the Loan Agreement and Obligation No. 6, the
Borrower will be obligated to make payments thereunder sufficient to pay the principal of and premium,
if any, and interest on the Series 2015 Bonds. No representation or assurance can be given that the
Borrower will realize revenues or will have other monies available in amounts sufficient to make such
payments. The realization by the Borrower of future revenues is dependent upon, among other things,
government regulations, the capabilities of the management of the Borrower, gifts, grants and bequests
and future changes in economic and other conditions that are unpredictable and cannot be determined at
this time.
Borrower Revenues and Enrollment
A significant portion of the Borrower's operating revenues are provided through tuition and fees.
Although the Borrower has been able to demonstrate an acceptable level of student demand for its
programs at current fee levels and in the past has been able to enroll a sufficient amount of students and
raise tuition and related fees without adversely affecting enrollment at the University, there can be no
assurance that it will continue to be able to do so in the future. Demand for attendance at the University
may be subject to factors beyond the Borrower's control, such as general economic and demographic
conditions, demand for higher education in general or for programs offered by the Borrower in particular,
funding of financial aid programs and legislation to provide free community college. Additionally,
competition for students is substantial. The Borrower competes with other private and public colleges
and universities. (See "OPERATIONS - Competition" in APPENDIX A attached hereto.) A significant
decrease in enrollment for any reason could adversely affect the Borrower's financial position and results
of operations, as well as the amount of Pledged Revenues.
Financial Aid to Students
The Borrower participates in Federal Title IV Programs, which include the Federal Pell Grants,
Federal Supplemental Education Opportunity Grants, Federal Work Study, Federal Perkins Loans,
Subsidized and Unsubsidized Federal Stafford Loans, and Federal Parent Loan for Undergraduate
Students (PLUS). In addition, certain undergraduate students at the University are eligible to receive
funds from the State of Florida financial aid programs. These include the Florida Resident Access Grant
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(FRAG), Florida Student Assistance Grant (FSAG), Florida Bright Futures Scholarships, and several
other programs some of which are for students planning to become teachers. The Borrower also offers
academic scholarships and student employment, as well as providing information to students with regard
to several alternative/private loan programs. The Borrower also participates in various veterans'
programs. In the Borrower's fiscal year ending May 31, 2014 approximately 88.6% of the Borrower's full
time undergraduate student body received financial assistance, defined as loans, grants, work assistance or
scholarships, from one, or more, of the following sources: federal, state, the Borrower and private. There
can be no assurance that the current levels of state, federal or financial aid from the Borrower will be
maintained in future years. Any significant reduction in federal assistance for student financial aid,
coupled with increasing costs of education, would have a negative impact on the number of students
applying for and attending universities and colleges, including the University, and could have a
significant impact on the revenues of the Borrower because of the large percentage of the University's
students receiving assistance.
Student loan default legislation for the Federal Stafford Loan Program will affect the program
participation of institutions with default rates higher than 20%. The Borrower does not anticipate that this
will affect the level of financial aid it receives. See the table entitled "Cohort Default Rate" under the
section "OPERATIONS - Financial Aid" in APPENDIX A attached hereto for a summary of the
historical cohort default rates applicable to the Borrower.
Gifts, Grants and Bequests
The Borrower annually solicits gifts, donations and bequests for both current operating purposes
and other needs. In addition, the Borrower receives various grants from private foundations and from
agencies of federal, state and local governments. Certain donations, bequests and grants are subject to
restrictions which limit the purposes for which they may be used. There can be no assurance that the
amount of gifts, donations, grants and bequests received by the Borrower will remain stable or increase in
the future. Such items could be adversely affected by a number of different factors, including changes in
general economic conditions and changes in income tax laws affecting the deductibility of charitable
contributions. A decrease in the amount of gifts, grants and bequests could adversely affect the
Borrower's financial position and results of operations. (See "RESULTS OF OPERATIONS Fundraising" in APPENDIX A attached hereto.)
Other Factors Affecting the Financial Performance of the Borrower
One or more of the following factors or events, or the occurrence of other unanticipated factors or
events, could adversely affect the Borrower's operations and financial performance to an extent that
cannot be determined at this time:
Changes in Management. Changes in key management personnel could affect the capability of
management to effectively administer the business of the University.
Organized Labor Efforts. Efforts to organize employees of the Borrower into collective
bargaining units could result in adverse labor actions or increased labor costs.
Technological Advances. Changes in technology, including expansions of the offering of collegelevel courses or degrees via the internet, could significantly impact the manner in which colleges and
universities operate, could allow other competition to enter the field of education without making
significant investment in capital assets such as land and buildings, and could adversely affect the financial
position of established universities and colleges, such as the University.
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Accreditation. A failure on the part of the Borrower to maintain the accreditation of the
University may result in a reduced number of students attending the University and a reduction in
revenues and could have a material adverse effect on the financial condition of the Borrower. See
"OPERATIONS – Accreditations" in APPENDIX A attached hereto.
Natural and Other Disasters. The occurrence of natural disasters, such as hurricanes, tornadoes,
floods or droughts, or other disasters could damage the Borrower's facilities, interrupt services or
otherwise impair operations and the ability of the Borrower to produce revenues.
Additional Debt. The Borrower may incur additional indebtedness so long as it satisfies the
conditions set forth in the Master Trust Indenture. See "Form of Master Trust Indenture and Supplement
No. 6" in APPENDIX F hereto. Such additional indebtedness would increase debt service requirements
and could adversely affect debt service coverage on the Series 2015 Bonds.
Tax-Exempt Status of the Borrower and the Series 2015 Bonds
The Internal Revenue Service (the "IRS") has determined that the Borrower is an organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and, therefore, is
exempt from federal income taxation. As a tax-exempt organization, the Borrower is subject to a number
of requirements affecting its operations. In recent years, the IRS has increased the frequency and scope of
its audit and other enforcement activity regarding tax-exempt organizations, and such organizations are
increasingly subject to a greater degree of scrutiny by the IRS. The primary penalty available to the IRS
under the Code with respect to a tax-exempt entity engaged in unlawful, private benefit is the revocation
of its tax-exempt status. Although the IRS has not frequently revoked the 501(c)(3) tax-exempt status of
not-for-profit organizations, loss of the tax-exempt status of the Borrower could result, among other
consequences, in the Borrower being in default of certain of its covenants under the Indenture. Loss of
the 501(c)(3) tax-exempt status of the Borrower would have material adverse consequences on the
financial condition of the Borrower, including, but not limited to loss of certain state income and real
property tax exemptions, the loss of the deductibility by donors of gifts to the Borrower and would
increase borrowing costs as a result of the Borrower's inability to obtain the benefit of tax-exempt
indebtedness and the impact of gross-up provisions in certain of its Outstanding Indebtedness, which
would increase the interest rate payable by the Borrower if the interest on such Indebtedness was no
longer excludable from gross income for federal income tax purposes. The Indenture does not provide for
the payment of any additional interest or penalty in the event of a determination of taxability of the
interest on the Series 2015 Bonds.
In recent years, the IRS and state, county and local taxing authorities have been undertaking
audits and reviews of the operations of tax-exempt organizations with respect to their exempt activities
and generation of unrelated business taxable income ("UBTI"). The Borrower has historically not
generated any significant amounts of UBTI. The Borrower may participate in activities which generate
UBTI in the future. Management of the Borrower believes it has properly accounted for and reported
UBTI; nevertheless, an investigation or audit would lead to a challenge which could result in taxes,
interest and penalties with respect to unreported UBTI and in some cases could ultimately affect the taxexempt status of the Borrower as well as the loss of the exclusion from gross income for income tax
purposes of interest on outstanding Related Bonds, including the Series 2015 Bonds.
Neither the Issuer, the Borrower nor Bond Counsel can predict whether the IRS will commence
an audit of the Series 2015 Bonds. Owners of the Series 2015 Bonds are advised that, if the IRS does
audit the Series 2015 Bonds, under current IRS procedures, at least during the early stages of an audit, the
IRS will treat the Issuer as the taxpayer, and the owners of the Series 2015 Bonds may have limited rights
to participate in such procedure. The commencement of an audit could adversely affect the market value
and liquidity of the Series 2015 Bonds until the audit is concluded, regardless of the ultimate outcome.
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Management of the Borrower believes that any arrangements into which the Borrower has entered are in
compliance with the tax laws. There can be no assurance, however, that the IRS will not pursue an action
against the Borrower on account of such arrangements.
The possible modification or repeal of certain existing federal income tax laws or property tax
laws or other loss by the Borrower of the present advantages of such laws, or any legislation imposing
additional conditions on tax-exempt organizations or affecting the deductibility of gifts to tax-exempt
organizations, could adversely affect the financial position of the Borrower.
See also "TAX MATTERS" herein.
Amendments to the Indenture, Loan Agreement and Master Trust Indenture
Under the terms of the Master Trust Indenture, the Indenture and the Loan Agreement
amendments to each of these instruments may be made with and without the consent of the holders of the
Series 2015 Bonds and Obligation No. 6. To the extent consent is required for an amendment to the
Master Trust Indenture, the consent of the holders of not less than a majority in aggregate principal
amount of all Obligations (including Obligation No. 6) outstanding must be obtained for such consent to
be effective. In the event that any request, direction or consent is requested or permitted under the Master
Trust Indenture of the Holders of any Obligation securing an issue of Related Bonds (including the Series
2015 Bonds), the registered owners of such Related Bonds (including the Series 2015 Bonds) then
outstanding shall be deemed to be such Holders for the purpose of any such request, direction or consent
in the proportion that the aggregate principal amount of Related Bonds (including the Series 2015 Bonds)
then outstanding held by each such owner of Related Bonds (including the Series 2015 Bonds) bears to
the aggregate principal amount of all Related Bonds (including the Series 2015 Bonds) then outstanding,
excluding certain Obligations held by Credit Facility providers and Members of the Obligated Group.
See "APPENDIX E - Form of Bond Indenture" and "APPENDIX F - Form of Master Trust Indenture and
Supplement No. 6" attached hereto.
Damage to Facilities
Any damage or destruction of other components of property of the Borrower could materially
adversely affect the Borrower's receipt of revenues. Under the Master Trust Indenture each Member of
the Obligated Group has agreed to maintain, or cause to be maintained, insurance (including one or more
self-insurance programs considered under customary standards for similar universities or colleges to be
adequate) covering such risks, in such amounts and with such deductibles and co-insurance provisions as,
in the judgment of the Obligated Group Representative are adequate to protect it and its Property and
operations. There can be no assurance that the amount of insurance required to be obtained or actually
obtained with respect to the Borrower's facilities will be adequate, or that the cause of any damage or
destruction to such facilities will be as a result of a risk which is insured. Further, there can be no
assurance with respect to the ongoing creditworthiness of the insurance companies from which the
Borrower obtains insurance policies.
Acceleration of the Series 2015 Bonds
The occurrence of certain events of default under the Indenture (which may include certain events
of default under the Loan Agreement and/or the Master Trust Indenture) may cause the Series 2015
Bonds, to be declared to be immediately due and payable. Further, the occurrence of an event of default
with respect to the Series 2012A Bonds, the Series 2012B Bond or the Series 2012C Bond or any other
Related Bonds and related Obligations issued under the Master Trust Indenture may also cause the Series
2015 Bonds and such other bonds and obligations to be declared to be immediately due and payable. In
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such event, Holders of the Series 2015 Bonds may not have the opportunity to hold such Series 2015
Bonds for a time period consistent with their original investment intentions.
Enforcement of Remedies
Enforcement of remedies under the Indenture, the Loan Agreement, and the Master Trust
Indenture may be limited or restricted by state laws concerning the use of assets of charitable corporations
and by federal and state laws relating to bankruptcy, fraudulent conveyances, and rights of creditors and
by application of general principles of equity affecting the enforcement of creditors' rights and liens
securing such rights, and by the exercise of judicial authority by state or federal courts, may be subject to
discretion and delay in the event of litigation or statutory remedy procedures, and may be substantially
delayed in the event of litigation or statutory remedy procedures. The various legal opinions to be
delivered concurrently with the delivery of the Series 2015 Bonds will be qualified as to the enforceability
of the various legal instruments by limitations imposed by state and federal laws, rulings and decisions
affecting remedies, and by general principles of equity and by bankruptcy, reorganization, insolvency or
other similar laws affecting the rights of creditors. See "APPENDIX E - Form of Bond Indenture" and
"APPENDIX F - Form of Master Trust Indenture and Supplement No. 6" each attached hereto, for a
description of events of default and remedies.
Environmental Concerns
Legislative, regulatory, administrative or enforcement action involving environmental controls
could adversely affect the operation of the facilities of the University. For example, if property of the
Borrower is determined to be contaminated by hazardous materials, the Borrower could be liable for
significant clean-up costs even if it was not responsible for the contamination. See "APPENDIX A –
General Information Regarding the University" under the caption "Environmental Matters" herein.
Effectiveness of Security Interest
The effectiveness of the security interest in the Pledged Revenues granted to the Bond Trustee
may be limited by a number of factors, including, for example: (i) state and federal laws giving priority to
certain kinds of statutory liens such as tax liens; (ii) rights arising in favor of the United States of America
or any agency thereof; (iii) constructive trusts, equitable or other rights impressed or conferred by a
federal or state court in the exercise of its equitable jurisdiction; (iv) federal bankruptcy laws which may
affect the enforceability of the security interest in Pledged Revenues which are earned by the Borrower
within 90 days preceding and after any effectual institution of bankruptcy proceedings by or against the
Borrower, including, without limitation, the enforceability of the lien on Pledged Revenues on income
received after the filing of a petition for relief under the federal bankruptcy law; (v) rights of third parties
in all or a portion of the Pledged Revenues converted to cash and not in the possession of the Bond
Trustee; (vi) claims that might arise if appropriate financing or continuation statements are not filed in
accordance with the Uniform Commercial Code of Florida (or other applicable jurisdictions) as from time
to time in effect or state laws dealing with fraudulent conveyances affecting assignments of revenues and
assets; (vii) state laws affecting perfection and priority of security interests in proceeds of collateral and of
security interests in cash, cash equivalents and other items that cannot be perfected by filing; (viii) certain
judicial decisions which cast doubt upon the right of the Master Trustee, in the event of bankruptcy of the
Borrower, to collect and retain grants due the Borrower from governmental programs and (ix) present or
future prohibitions against assignment contained in any Florida or federal statutes or regulations.
The effectiveness of the pledge of Pledged Revenues of the Obligated Group is limited since a
security interest in money generally cannot be perfected by the filing of financing statements under the
Florida Uniform Commercial Code (the "UCC"). Rather, such a security interest may be perfected only
by the secured party taking possession of the subject funds. To the extent that a security interest in the
26
Pledged Revenues or the rights of the Borrower (or other Members of the Obligated Group) thereto can
be perfected by the filing of financing statements, such action will be taken. If the security interest
granted to the Master Trustee in the Pledged Revenues is deemed not to be perfected, such security
interest may not be enforceable against third parties unless and until the Pledged Revenues are actually
transferred to the Master Trustee or the Bond Trustee or unless an exception under the UCC applies.
Only upon the deposit of Pledged Revenues into the funds and accounts established under the Indenture
will the Bond Trustee have the right to control the expenditure of moneys deposited therein.
Mortgages on Facilities
The Borrower has agreed not to pledge its real property as described in "SECURITY FOR THE
SERIES 2015 BONDS - The Master Trust Indenture and Obligation No. 6 - Pledges of Property" herein
except as permitted under the Master Trust Indenture; however, under the terms of the Master Trust
Indenture, the Borrower is permitted to grant liens, mortgages on or security interests in some of its
revenue-producing property and facilities, which liens, mortgages or security interests would not be
shared in by the Master Trustee for the benefit of the holders of the Series 2015 Bonds. The Borrower
has previously granted the Mortgage on the 2006 Project for the benefit of the holders of the Series
2012A Bonds. See "INTRODUCTION - Outstanding Indebtedness of the Borrower" herein. Foreclosure
of mortgages or liens on such assets, or deeds granted in lieu of foreclosure, or the execution of any liens,
could adversely affect the Borrower's revenues or its operations. Upon a foreclosure of the 2006 Project
proceeds derived from the 2006 Project (whether by sale or otherwise) would be available first to the
holders of the Series 2012A Bonds and would not be available to holders of other indebtedness of the
Borrower, including the Series 2015 Bonds, until all obligations secured by the Mortgage on the 2006
Project have been satisfied. See "SECURITY FOR THE SERIES 2015 BONDS - The Master Trust
Indenture and Obligation No. 6 - Permitted Liens" herein.
Rights of Credit Providers and Others
Under the terms of the supplement to the Master Trust Indenture entered into by the Borrower
and the Master Trustee in connection with the issuance of the Series 2012A Bonds, so long as (i) any
Series 2012 Bond insured by the municipal bond insurance policy (the "2012A Bond Insurance Policy")
issued by Assured Guaranty Municipal Corp. (the "2012A Bond Insurer") are Outstanding and (ii) the
2012A Bond Insurance Policy is in full force and effect and the 2012 Bond Insurer has not defaulted on
its payment obligations thereunder, the Borrower and the Master Trustee have agreed to certain additional
and more restrictive covenants of the Borrower under the Master Trust Indenture. These covenants can
be waived or amended in the discretion of the 2012A Bond Insurer without notice to or the consent of the
holders of the Series 2012A Bonds or the holders of the Series 2015 Bonds. No determination is required
to be made as to whether such waiver or amendment has an adverse effect on the Bondholders or the
Bond Trustee. Because of the ability of the 2012A Bond Insurer to amend or waive the application of
such covenants, no summary of such covenants is being provided herein.
The financing agreements with respect to the Series 2012B Bond and the Series 2012 Bond each
contains covenants in addition to those set forth in the Master Trust Indenture. Such covenants may be
more restrictive than the covenants in the Master Trust Indenture and may be enforced solely by the
Bondholder of the Series 2012B Bond with respect to the Series 2012B Bond and the Bondholder of the
Series 2012C Bond with respect to the Series 2012C Bond. The additional or different covenants can be
waived or amended in the discretion of respective holders of the Series 2012B Bond and the Series 2012C
Bond without the consent of or notice to the Bondholder of any other Bonds or the Master Trustee. No
determination is required to be made as to whether such waiver or amendment has an adverse effect on
the other Bondholders. Because of the ability of the Bondholders of the Series 2012B Bond and the
Series 2012C Bond to amend or waive the application of such covenants, no summary of such covenants
is provided herein.
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Failure of the Borrower to comply with the covenants in the respective documents related to the
Series 2012A Bonds, the Series 2012B Bond and the Series 2012C Bond could create an event of default
with respect to such applicable Bonds, and the remedies thereunder may include acceleration of such
Bonds and the Borrower's obligations issued under the Master Trust Indenture with respect to such
Bonds. An event of default under the financing agreements related to the Series 2012B Bond, Series
2012C Bond or any other Related Bond Indenture or Related Bond is also an event of default under the
Loan Agreement and Indenture for the Series 2015 Bonds, and upon certain conditions being satisfied
may result in an acceleration of the Series 2015 Bonds and the Borrower's obligations under Obligation
No. 6.
The Borrower may also agree to additional covenants and restrictions in the future in connection
with the incurrence of additional indebtedness, including Indebtedness issued pursuant to a Supplement.
Certain existing additional covenants and restrictions are, and future additional covenants and restrictions
may be, more restrictive than those set forth in the Indenture, the Loan Agreement or Master Trust
Indenture. Failure of the Borrower to comply with these additional covenants and restrictions may be an
event of default under such loan documents and could trigger the enforcement of remedies, including,
without limitation, acceleration of payment with respect to such obligations and the Series 2015 Bonds.
Project Risks
The 2015 Project is subject to the risks associated with all construction projects, including, but
not limited to, delays in the issuance of required building permits or other necessary approvals or permits,
strikes, terrorism, vandalism, shortages of materials, and adverse weather conditions, including hurricanes
and tornadoes. Such events could result in delaying completion and occupancy of the 2015 Project,
potentially increasing the level of expenditures of the Borrower for the 2015 Project and delaying or
reducing anticipated revenues from the 2015 Project. The Borrower has entered into maximum
guaranteed price contracts for the components of the 2015 Project, however, cost overruns may occur
with respect to the 2015 Project due to change orders or certain costs not included in the guaranteed
maximum price contracts, delays in the construction schedule, scarcity of building materials and other
factors.
Other Factors
The ability of the Borrower to pay its obligations under the Loan Agreement and the Obligations
will depend upon the continued ability of the Borrower to generate revenues sufficient to meet such
obligations, the Borrower's operating expenses, debt service on other indebtedness, extraordinary costs or
expenses which may occur and other costs and expenses. Pledged Revenues and expenses of the
Borrower will be affected by future events and conditions relating generally to, among other things, the
ability of the Borrower to provide educational programs to meet the needs and expectations of students
during the time that the Series 2015 Bonds remain outstanding, the capabilities of the Borrower's
Governing Body and administration, the Borrower's ability to control expenses during inflationary
periods, the Borrower's ability to maintain or increase rates for tuition, fees and other revenues without
reducing enrollment, the ability of the Borrower to attract and retain quality faculty members for its
educational programs, the investment experience of the Borrower's endowment and other funds, future
gifts, donations and bequests, governmental assistance for student financial aid, and grants and contracts
from governmental bodies and agencies and others. In addition, in the future, the following factors,
among many others, may adversely affect the operations of the Borrower to an extent that cannot be
determined at this time: (a) employee strikes and other adverse labor actions that could result in a
substantial reduction in revenues without corresponding decreases in costs; (b) increased costs and
decreased availability of insurance; (c) cost and availability of energy; (d) high interest rates which could
prevent borrowing for needed capital expenditures; (e) an increase in the costs of health care benefits,
retirement plan or other benefit packages offered by the Borrower to its employees; and (f) reduction in
28
funding support from donors or other external sources, including, but not limited to external funding for
research. Future revenues and expenses of the Borrower will be subject to other conditions that cannot be
determined at this time.
RATINGS
The Series 2015 Bonds have received ratings of "BBB+" (with Stable outlook) and "BBB+" (with
Stable outlook) from Standard and Poor's Ratings Services, a Standard & Poor's Financial Services LLC
Business and Fitch Ratings, respectively.
A rating reflects only the view of the rating agency giving such rating. An explanation of the
significance of such rating may be obtained only from such organization. There is no assurance that a
rating will apply for any given period of time or that a rating will not be revised downward or withdrawn
entirely if, in the judgment of the rating agency, circumstances so warrant. A downward change in or
withdrawal of a rating may have an adverse effect on the market price of the Series 2015 Bonds. The
Issuer, the Borrower, and the Underwriters have undertaken no responsibility either to bring to the
attention of the registered owners of the Series 2015 Bonds any proposed change in or withdrawal of such
rating or to oppose any such revision or withdrawal, except as otherwise agreed to be provided by the
Borrower in the Continuing Disclosure Agreement.
TAX MATTERS
General
The Code establishes certain requirements which must be met subsequent to the issuance of the
Series 2015 Bonds in order that interest on the Series 2015 Bonds be and remain excluded from gross
income for purposes of federal income taxation. Non-compliance may cause interest on the Series 2015
Bonds to be included in federal gross income retroactive to the date of issuance of the Series 2015 Bonds,
regardless of the date on which such non-compliance occurs or is ascertained. These requirements
include, but are not limited to, provisions which prescribe yield and other limits within which the
proceeds of the Series 2015 Bonds and the other amounts are to be invested and require that certain
investment earnings on the foregoing must be rebated on a periodic basis to the Treasury Department of
the United States. The Issuer and the Borrower have covenanted in the Loan Agreement to comply with
such requirements in order to maintain the exclusion from federal gross income of the interest on the
Series 2015 Bonds.
In the opinion of Bond Counsel, assuming compliance with certain covenants, under existing
laws, regulations, judicial decisions and rulings, interest on the Series 2015 Bonds is excluded from gross
income for purposes of federal income taxation. Interest on the Series 2015 Bonds is not an item of tax
preference for purposes of the federal alternative minimum tax imposed on individuals or corporations;
however, interest on the Series 2015 Bonds may be subject to the federal alternative minimum tax when
any Series 2015 Bond is held by a corporation. The federal alternative minimum taxable income of a
corporation must be increased by seventy-five percent (75%) of the excess of such corporation's adjusted
current earnings over its alternative minimum taxable income (before this adjustment and the alternative
tax net operating loss deduction). "Adjusted Current Earnings" will include interest on the Series 2015
Bonds.
Except as described above, Bond Counsel will express no opinion regarding other federal income
tax consequences resulting from the ownership of, receipt or accrual of interest on, or disposition of
Series 2015 Bonds. Prospective purchasers of Series 2015 Bonds should be aware that the ownership of
Series 2015 Bonds may result in collateral federal income tax consequences, including (i) the denial of a
deduction for interest on indebtedness incurred or continued to purchase or carry Series 2015 Bonds; (ii)
29
the reduction of the loss reserve deduction for property and casualty insurance companies by fifteen
percent (15%) of certain items, including interest on the Series 2015 Bonds; (iii) the inclusion of interest
on the Series 2015 Bonds in earnings of certain foreign corporations doing business in the United States
for purposes of the branch profits tax; (iv) the inclusion of interest on the Series 2015 Bonds in passive
income subject to federal income taxation of certain Subchapter S corporations with Subchapter C
earnings and profits at the close of the taxable year; and (v) the inclusion of interest on the Series 2015
Bonds in "modified adjusted gross income" by recipients of certain Social Security and Railroad
Retirement benefits for the purposes of determining whether such benefits are included in gross income
for federal income tax purposes.
As to questions of fact material to the opinion of Bond Counsel, Bond Counsel will rely upon
representations and covenants made on behalf of the Issuer and the Borrower in the Indenture and the
Loan Agreement, certificates of appropriate officers and certificates of public officials (including
certifications as to the use of proceeds of the Series 2015 Bonds and of the property financed or
refinanced thereby) and on the opinions being delivered by counsel to the Borrower in connection with
the delivery of the Series 2015 Bonds with respect to the Borrower being an organization described in
Section 501(c)(3) of the Code, without undertaking to verify the same by independent investigation.
PURCHASE, OWNERSHIP, SALE OR DISPOSITION OF THE SERIES 2015 BONDS AND
THE RECEIPT OR ACCRUAL OF THE INTEREST THEREON MAY HAVE ADVERSE FEDERAL
TAX CONSEQUENCES FOR CERTAIN INDIVIDUAL AND CORPORATE HOLDERS OF THE
SERIES 2015 BONDS, INCLUDING, BUT NOT LIMITED TO, THE CONSEQUENCES DESCRIBED
ABOVE. PROSPECTIVE HOLDERS OF THE SERIES 2015 BONDS SHOULD CONSULT WITH
THEIR TAX SPECIALISTS FOR INFORMATION IN THAT REGARD.
Tax Treatment of Bond Premium
The difference between the principal amount of the Series 2015 Bonds and the initial offering
price to the public (excluding bond houses, brokers or similar persons or organizations acting in the
capacity of underwriters or wholesalers) at which price a substantial amount of such Series 2015 Bonds of
the same maturity and, if applicable, interest rate, was sold constitutes to an initial purchaser amortizable
bond premium which is not deductible from gross income for federal income tax purposes. The amount
of amortizable bond premium for a taxable year is determined actuarially on a constant interest rate basis
over the term of each of the Series 2015 Bonds, which ends on the earlier of the maturity or call date for
each of the Series 2015 Bonds which minimizes the yield on such Series 2015 Bonds to the purchaser.
For purposes of determining gain or loss on the sale or other disposition of a Series 2015 Bond, an initial
purchaser who acquires such obligation in the initial offering is required to decrease such purchaser's
adjusted basis in such Series 2015 Bond annually by the amount of amortizable bond premium for the
taxable year. The amortization of bond premium may be taken into account as a reduction in the amount
of tax-exempt income for purposes of determining various other tax consequences of owning such Series
2015 Bonds. Bondholders of the Series 2015 Bonds are advised that they should consult with their own
tax advisors with respect to the state and local tax consequences of owning such Series 2015 Bonds.
Information Reporting and Backup Withholding
Interest paid on tax-exempt bonds such as the Series 2015 Bonds is subject to information
reporting to the Internal Revenue Service (the "IRS") in a manner similar to interest paid on taxable
obligations. This reporting requirement does not affect the excludability of interest on the Series 2015
Bonds from gross income for federal income tax purposes. However, in conjunction with that
information reporting requirement, the Code subjects certain non-corporate owners of Series 2015 Bonds,
under certain circumstances, to "backup withholding" at the rate specified in the Code with respect to
payments on the Series 2015 Bonds and proceeds from the sale of Series 2015 Bonds. Any amount so
30
withheld would be refunded or allowed as a credit against the federal income tax of such owner of Series
2015 Bonds. This withholding generally applies if the owner of Series 2015 Bonds (i) fails to furnish the
payor such owner's social security number or other taxpayer identification number ("TIN"), (ii) furnished
the payor an incorrect TIN, (iii) fails to properly report interest, dividends, or other "reportable payments"
as defined in the Code, or (iv) under certain circumstances, fails to provide the payor or such owner's
securities broker with a certified statement, signed under penalty of perjury, that the TIN provided is
correct and that such owner is not subject to backup withholding. Prospective purchasers of the Series
2015 Bonds may also wish to consult with their tax advisors with respect to the need to furnish certain
taxpayer information in order to avoid backup withholding.
Other Tax Matters
During recent years, legislative proposals have been introduced in Congress, and in some cases
enacted, that altered certain federal tax consequences resulting from the ownership of obligations that are
similar to the Series 2015 Bonds. In some cases, these proposals have contained provisions that altered
these consequences on a retroactive basis. Such alteration of federal tax consequences may have affected
the market value of obligations similar to the Series 2015 Bonds. From time to time, legislative proposals
are pending which could have an effect on both the federal tax consequences resulting from ownership of
the Series 2015 Bonds and their market value. No assurance can be given that legislative proposals will
not be enacted that would apply to, or have an adverse effect upon, the Series 2015 Bonds. For example,
in connection with federal deficit reduction, job creation and tax law reform efforts, proposals have been
and others are likely to be made that could significantly reduce the benefit of, or otherwise affect, the
exclusion from gross income of interest on obligations like the Series 2015 Bonds. There can be no
assurance that any such legislation or proposal will be enacted, and if enacted, what form it may take.
The introduction or enactment of any such legislative proposals may affect, perhaps significantly, the
market price for, or marketability of, the Series 2015 Bonds.
Prospective purchasers of the Series 2015 Bonds should consult their own tax advisors as to the
tax consequences of owning the Series 2015 Bonds in their particular state or local jurisdiction and
regarding any pending or proposed federal or state tax legislation, regulations or litigation, as to which
Bond Counsel expresses no opinion.
LEGAL MATTERS
Certain legal matters incident to the validity of the Series 2015 Bonds including their
authorization, issuance and sale by the Issuer, are subject to the unqualified approving legal opinion of
Bryant Miller Olive P.A., Tampa, Florida, in its capacity as Bond Counsel. The form of Bond Counsel
Opinion appears as APPENDIX C to this Official Statement. Certain legal matters will be passed upon
for the Issuer by the Office of the City Attorney, Tampa, Florida and for the Borrower by Holland &
Knight LLP, Tampa, Florida, Special Counsel and Disclosure Counsel to the Borrower. Certain legal
matters will be passed upon for the Underwriters by their counsel GrayRobinson, P.A. Tampa, Florida.
The opinions delivered by counsel are based on existing law, which is subject to change. Such
opinions are further based on factual representations made to counsel as of the date thereof. Counsel does
not assume a duty to update or supplement its opinions to reflect any facts or circumstances, including
changes in law that may thereafter occur or become effective.
The legal opinions to be delivered concurrently with the delivery of the Series 2015 Bonds
express the professional judgment of the attorneys rendering the opinions regarding the legal issues
expressly addressed therein. By rendering a legal opinion, the opinion giver does not become an insurer
or guarantor of the result indicated by that expression of professional judgment of the transaction on
31
which the opinion is rendered or for future performance of the parties to the transaction, nor does the
rendering of an opinion guarantee the outcome of any legal dispute that may arise out of the transaction.
LITIGATION
The Issuer
No litigation, proceedings or investigations are pending or, to the knowledge of the Issuer,
threatened against the Issuer or its officers which seeks to restrain or enjoin the issuance or delivery of the
Series 2015 Bonds, or questions or affects the validity of the Series 2015 Bonds or the proceedings or
authority under which the Series 2015 Bonds are to be issued, or which in any manner questions the right
of the Issuer to enter into the Indenture or the Loan Agreement or to secure the Series 2015 Bonds in the
manner provided in the Indenture and the Act.
The Borrower
No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower,
threatened against the Borrower or its officers or property except litigation, proceedings or investigations
being defended by or on behalf of the Borrower in which the probable ultimate recoveries and the
estimated costs and expenses of defense, in the opinion of management of the Borrower and counsel of
the Borrower responsible therefor, will be entirely within the Borrower 's applicable self-insurance and
insurance policy limits (including primary and excess insurance policies and subject to applicable
deductibles and self-insured retentions), or will not have a material adverse effect on the operations or
condition, financial or otherwise, of the Borrower. No litigation, investigations or proceedings are now
pending or, to the Borrower's knowledge, threatened against the Borrower which would in any manner
challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out
the transactions described in or contemplated by, or the execution, delivery, validity or performance by
the Borrower of the Loan Agreement, the Master Trust Indenture, Obligation No. 6 or the status of the
Borrower as an organization described in Section 501(c)(3) of the Code.
SUITABILITY FOR INVESTMENT
Investment in the Series 2015 Bonds poses certain economic risks. Prospective investors in the
Series 2015 Bonds should have such knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of an investment in the Series 2015 Bonds and have the ability
to bear the economic risks of such prospective investment, including a complete loss of such investment.
No dealer, broker, salesman or other person has been authorized by the Issuer, the Borrower or the
Underwriters to give any information or make any representations, other than those contained in this
Official Statement, and, if given or made, such other information or representations must not be relied
upon as having been authorized by either of the foregoing. See "CERTAIN INVESTMENT
CONSIDERATIONS" herein.
UNDERWRITING
The Series 2015 Bonds are being purchased by SunTrust Robinson Humphrey, Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (collectively, the "Underwriters"), at a purchase price of
$85,349,917.00 (consisting of $76,690,000.00 principal amount of Series 2015 Bonds, plus original issue
premium of $8,928,990.50 and less an Underwriters' discount of $269,073.50), subject to certain terms
and conditions set forth in the purchase contract among the Issuer, the Borrower and the Underwriters.
The Series 2015 Bonds are offered for sale to the public at the prices set forth on the inside cover page of
this Official Statement. The Series 2015 Bonds may be offered and sold to certain dealers (including
32
dealers depositing bonds into investment trusts) and others at prices lower than the public offering prices,
and following the initial public offering prices may be changed from time to time by the Underwriters.
The Underwriters and their respective affiliates are full service financial institutions engaged in
various activities, which may include sales and trading, commercial and investment banking, advisory,
investment management, investment research, principal investment, hedging, market making, brokerage
and other financial and non-financial activities and services. In the various courses of their various
business activities, the Underwriters and their respective affiliates, officers, directors and employees may
purchase, sell or hold a broad array of investments and actively trade securities, derivatives, loans,
commodities, currencies, credit default swaps and other financial instruments for their own account and
for the accounts of their customers, and such investment and trading activities may involve or relate to
assets, securities and/or instruments of Borrower (directly, as collateral securing other obligations or
otherwise) and/or persons and entities with relationships with the Borrower. The Underwriters and their
respective affiliates may also communicate independent investment recommendations, market color or
trading ideas and/or publish or express independent research views in respect of such assets, securities or
instruments and may at any time hold, or recommend to clients that they should acquire, long and/or short
positions in such assets, securities and instruments.
SunTrust Robinson Humphrey, Inc. ("STRH"), one of the underwriters of the Series 2015 Bonds,
has entered into an agreement (the "Distribution Agreement") with SunTrust Investment Services, Inc.
("STIS") for the retail distribution of certain municipal securities offerings, including the Series 2015
Bonds. Pursuant to the Distribution Agreement, STRH will share a portion of its underwriting or
remarketing agent compensation, as applicable, with respect to the Series 2015 Bonds with STIS. STRH
and STIS are both subsidiaries of SunTrust Banks, Inc. SunTrust Robinson Humphrey is the trade name
for certain capital markets and investment banking services of SunTrust Banks and its subsidiaries.
FINANCIAL ADVISOR
Public Financial Management, Inc., Orlando, Florida is serving as financial advisor to the
Borrower in matters relating to the issuance of the Series 2015 Bonds. Public Financial Management,
Inc. will not engage in any underwriting activities with regard to the Series 2015 Bonds.
CONTINUING DISCLOSURE
Simultaneously with the issuance of the Series 2015 Bonds, the Borrower and Digital Assurance
Certification, L.L.C., as disclosure dissemination agent, will enter into a Continuing Disclosure
Agreement, a proposed form of which is included as APPENDIX G hereto (the "Continuing Disclosure
Agreement") in accordance with the provisions of Rule 15c2-12 (the "Rule"), as promulgated by the
Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, in effect from
time to time and applicable to the Series 2015 Bonds, to provide or cause to be provided, to the Electronic
Municipal Market Access ("EMMA") system operated by the Municipal Securities Rule Making Board at
such times as required by the Continuing Disclosure Agreement, certain financial information and
operating data relating to the Borrower and to provide notices of the occurrence of certain enumerated
material events.
The specific nature of the financial information, operating data, and of the type of events which
trigger a disclosure obligation, and other details of the undertaking are described in "APPENDIX G –
Form of Continuing Disclosure Agreement" attached hereto. The Continuing Disclosure Agreement
shall be executed by the Borrower and the dissemination agent upon the issuance of the Series 2015
Bonds. The covenants in the Continuing Disclosure Agreement have been made in order to assist the
Underwriters in complying with the continuing disclosure requirements of the Rule.
33
The Borrower will reserve the right to terminate its obligation to provide annual financial
information and notices of material events if and when the Borrower no longer remains an obligated
person with respect to the Series 2015 Bonds within the meaning of the applicable rule or rules. The
undertakings described above may be amended or modified from time to time in accordance with the
terms of the Continuing Disclosure Agreement. See "APPENDIX G – Form of Continuing Disclosure
Agreement" herein.
The Borrower will agree that its undertaking pursuant to the Rule described in the Continuing
Disclosure Agreement is intended to be for the benefit of the Holders and beneficial owners of the Series
2015 Bonds and shall be enforceable by such Holders and beneficial owners; provided that the right to
enforce the provisions of this undertaking shall be limited to a right to seek mandamus or specific
performance to cause the Borrower to comply with its obligations. Any failure by the Borrower to
comply with the provisions of the undertaking shall not be an event of default with respect to the Series
2015 Bonds under the Loan Agreement, the Indenture or the Master Trust Indenture. With respect to the
Series 2015 Bonds, no party other than the Borrower is obligated to provide, nor is expected to provide,
any continuing disclosure information.
The Borrower, in connection with the issuance of certain bonds, entered into continuing
disclosure undertakings to provide certain financial information, operating data and notice of certain listed
events with certain national repositories in accordance with the terms thereof. The Borrower filed certain
of its financial information as required under its agreements but due to an unintentional oversight of such
requirements failed to file certain operating data it had agreed to provide. The Borrower has since
discovering the oversight filed with EMMA the operating data it had agreed to provide in such continuing
disclosure undertakings for the previous five fiscal years for applicable bonds outstanding as of the date
of this Official Statement.
VERIFICATION OF ARITHMETICAL COMPUTATIONS
The accuracy of the arithmetical computations of the adequacy of the maturing principal and
interest earned on the investments in the Escrow Account, together with initial cash balances, to pay when
due or upon earlier redemption, the principal of, redemption premium, if any, and interest on the
Refunded Bonds have been verified by the Verification Agent.
INDEPENDENT AUDITORS
The consolidated financial statements of the Borrower as of and for the years ended May 31,
2014 and May 31, 2013, included in APPENDIX B to this Official Statement, have been audited by
KPMG, LLP, independent auditors, as stated in their report appearing in APPENDIX B. KPMG LLP, has
not been engaged to perform and has not performed, since the date of its report included herein, any
procedures on the financial statements addressed in that report. KPMG LLP also has not performed any
procedures relating to this official statement or APPENDIX A to this Official Statement.
CONTINGENT FEES
The Borrower has retained Bond Counsel with respect to the authorization, sale, execution and
delivery of the Series 2015 Bonds. Payment of all or a portion of the fees of Bond Counsel relating to the
issuance of the Series 2015 Bonds, a discount to the Underwriters and the fees of Underwriters' Counsel
are each contingent upon the issuance of the Series 2015 Bonds.
34
CERTAIN RELATIONSHIPS
Allen R. Brinkman a member of the Board of Trustees of the University is the Chairman,
President and Chief Executive Officer of SunTrust Bank, Tampa Bay which is a corporate affiliate of
SunTrust Robinson Humphrey, Inc., the managing underwriter of the Series 2015 Bonds. Further,
William Goede, a member of the Board of Trustees of the University is the Tampa Bay Market President
for Bank of America, N.A. which is a corporate affiliate to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, one of the Underwriters of the Series 2015 Bonds.
FORWARD-LOOKING STATEMENTS
This Official Statement, which includes appendices hereto, contains certain "forward-looking
statements" concerning the Borrower's operations, performance and financial condition, including its
future economic performance, plans and objectives and the likelihood of success in developing and
expanding. These statements are based upon a number of assumptions and estimates which are subject to
significant uncertainties, many of which are beyond the control of the Borrower. Any statements that
express, or involve discussions as to expectations, beliefs, plans, objectives, assumptions, future events or
performance (often, but not always, through the "may," "would," "could," "will," "expect," "anticipate,"
"believe," "intend," "plan," "estimate," "will result," "expects to," "will continue" and similar expressions
are meant to identify these forward-looking statements), are not historical and may be forward-looking.
Forward-looking statements are subject to known and unknown risks, uncertainties and other factors,
including, but not limited to, the risks described under the heading "CERTAIN INVESTMENT
CONSIDERATIONS" which may cause actual results to be materially different from those expressed or
implied by such forward-looking statements. Although the Borrower believes that the expectations
reflected in the forward-looking statements are reasonable, the Borrower cannot guarantee future
resolutions, levels of activity, performance or achievements. The Borrower undertakes no obligation to
publicly update or revise any forward-looking statements in this Official Statement, whether as a result of
new information, future events or otherwise.
ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT
The references, excerpts, and summaries of all documents, statutes, and information concerning
the Issuer and the Borrower and certain reports and statistical data referred to herein do not purport to be
complete, comprehensive and definitive and each such summary and reference is qualified in its entirety
by reference to each such document for full and complete statements of all matters of fact relating to the
Series 2015 Bonds, the security for the payment of the Series 2015 Bonds and the rights and obligations
of the owners thereof and to each such statute, report or instrument.
Any statements made in this Official Statement involving matters of opinion or of estimates,
whether or not so expressly stated are set forth as such and not as representations of fact, and no
representation is made that any of the estimates will be realized. Neither this Official Statement nor any
statement that may have been made verbally or in writing is to be construed as a contract with the owners
of the Series 2015 Bonds.
The appendices attached hereto are integral parts of this Official Statement and must be read in
their entirety together with all foregoing statements.
CERTIFICATE CONCERNING THE OFFICIAL STATEMENT
Concurrently with the delivery of the Series 2015 Bonds, the Issuer will furnish its certificate,
executed by its Mayor (the "Mayor") to the effect that, to the best of its knowledge, the information
regarding the Issuer in this Official Statement under the captions "INTRODUCTION - The Issuer," "THE
35
ISSUER" and "LITIGATION – The Issuer," as of its date and as of the date of the delivery of the Series
2015 Bonds, does not contain an untrue statement of a material fact and does not omit any material fact
which should be included therein for the purpose for which the Official Statement is to be used, or which
is necessary to make the statements contained therein, in light of the circumstances under which they
were made, not misleading. Concurrently with the delivery of the Series 2015 Bonds, the Borrower will
furnish its certificate, executed by its Vice President for Administration and Finance, to the effect that, to
the best of its knowledge, this Official Statement, as of its date and as of the date of the delivery of the
Series 2015 Bonds (excluding the information supplied by the Issuer, the information regarding DTC and
the book-entry only system of registration of the Series 2015 Bonds and the information supplied by the
Underwriters under the caption "UNDERWRITING," as to which no opinion is expressed), does not
contain an untrue statement of a material fact and does not omit any material fact which should be
included therein for the purpose for which the Official Statement is to be used, or which is necessary to
make the statements contained therein, in light of the circumstances under which they were made, not
misleading.
With respect to the information regarding the Borrower, while such information provided by the
Borrower is believed to be accurate and reliable, neither the Issuer nor the Underwriters guaranty the
accuracy or completeness thereof. The Borrower has agreed to indemnify the Underwriters, to the extent
set forth in the purchase contract relating to the Series 2015 Bonds to be entered into among the Issuer,
the Borrower and the Underwriters, against losses, claims, damages and liabilities arising out of any
incorrect statement or information contained in or information omitted from this Official Statement
related to the Borrower (and the University) and the 2015 Project. The Borrower has agreed to indemnify
the Issuer and the Bond Trustee against certain liabilities relating to this Official Statement to the extent
set forth in the Loan Agreement.
The execution and delivery of this Official Statement by the Mayor of the Issuer on behalf of the
Issuer and by the Vice President for Administration and Finance on behalf of the Borrower have been
duly approved by the Issuer and the Borrower, respectively.
THE UNIVERSITY OF TAMPA, INCORPORATED
By: /s/ Richard W. Ogorek
Vice President for Administration and Finance
36
APPENDIX A
GENERAL INFORMATION REGARDING THE UNIVERSITY
APPENDIX A
ORGANIZATION AND OPERATIONS
TABLE OF CONTENTS
Page
HISTORY AND BACKGROUND ................................................................................................ 1
CORPORATE STRUCTURE ........................................................................................................ 1
General ........................................................................................................................................ 1
Board of Trustees ........................................................................................................................ 1
Committees ................................................................................................................................. 5
ADMINISTRATION, FACULTY AND EMPLOYEES ............................................................... 5
Administration ............................................................................................................................ 5
Faculty ........................................................................................................................................ 6
Employees ................................................................................................................................... 6
FACILITIES ................................................................................................................................... 7
The University ............................................................................................................................ 7
The 2015 Projects ....................................................................................................................... 8
The Master Plan .......................................................................................................................... 8
OPERATIONS ................................................................................................................................ 9
Academic Programs .................................................................................................................... 9
Intercollegiate Athletic Programs ............................................................................................... 9
History of Student Enrollment .................................................................................................. 10
Enrollment Profile..................................................................................................................... 11
Entrance Exam Scores .............................................................................................................. 11
Demographics of Student Population ....................................................................................... 11
Tuition and Fees........................................................................................................................ 12
Residential Facilities, Policies and Demand ............................................................................. 12
Financial Aid............................................................................................................................. 14
Accreditations ........................................................................................................................... 15
Competition .............................................................................................................................. 16
Risk Management and Insurance .............................................................................................. 16
Environmental Matters ............................................................................................................. 17
RESULTS OF OPERATIONS ..................................................................................................... 17
Financial Records ..................................................................................................................... 17
Budget ....................................................................................................................................... 17
Financial Management Policies and Procedures ...................................................................... 18
Management's Discussion and Analysis of Operations ............................................................ 18
Summary Statement of Total Revenues and Expenses ............................................................. 18
Investments and Net Assets ...................................................................................................... 20
Fundraising ............................................................................................................................... 22
Outstanding Debt ...................................................................................................................... 22
Long-Term Estimated Debt Service ......................................................................................... 23
DEBT SERVICE COVERAGE .................................................................................................... 24
RETIREMENT BENEFITS.......................................................................................................... 24
HISTORY AND BACKGROUND
The University of Tampa, Incorporated (the "Borrower") is a not-for-profit corporation
originally incorporated on March 13, 1930, under the laws of the State of Florida, and is a
tax-exempt charitable organization under Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the "Code"), exempt from federal income taxation under Section 501(a) of
the Code, and operates the University of Tampa (the "University"). The University was founded
by Frederic H. Spaulding, a former high school principal, initially as Tampa Junior College. It
became a four-year liberal arts university in 1933.
The University is an independent, comprehensive four-year co-educational university
situated on a campus of approximately 102 acres that is adjacent to downtown Tampa, Florida.
The University has four colleges: the College of Arts & Letters; the College of Natural and
Health Sciences; the College of Math, Education, and Social Sciences; and the College of
Business. The four colleges offer over 140 fields of undergraduate study and pre-professional
programs through a core curriculum rooted in a liberal arts tradition. At the graduate level, the
University offers a Master of Business Administration, a Master of Science in Finance, a Master
of Science in Accounting, a Master of Science in Marketing, an Executive MBA program, a
Master of Science in Nursing, a Master of Science in Exercise and Nutrition, a Master of Fine
Arts in Creative Writing, and a Master of Education. The University is fully accredited by the
Southern Association of Colleges and Schools and its nursing, chemistry, music, athletic
training, education and business programs are accredited by the National League of Nursing, the
American Chemical Society, the National Association of Schools of Music, the Commission on
Accreditation of Athletic Training Education, the Florida State Board of Education, and the
American Assembly of Collegiate Schools of Business, respectively. The University competes
in 21 men's and women's sports in Division II of the National Collegiate Athletic Association.
CORPORATE STRUCTURE
General
The Borrower has no members and no capital stock and is governed by a Board of
Trustees. At the present time there are no affiliated or related corporations under common
control with the Borrower with the exception of Kennedy Boulevard Holding LLC, a land
holding corporation of the University.
Board of Trustees
The Borrower is governed by a Board of Trustees. The Board of Trustees has general
charge of the business and affairs of the University and may do and perform all acts necessary to
carry out its purposes. The Board of Trustees consists of a maximum of 61 members elected to
three-year terms commencing with their election at the annual meeting of the Board of Trustees
or to fill unexpired terms in such a manner that approximately one-third of the terms will expire
each year. The members of the Borrower's Board of Trustees serve in a voluntary capacity and
receive no remuneration for service rendered in such capacity. No elected member of the Board
of Trustees may serve more than two successive full terms. Upon leaving the Board of Trustees
for any reason other than for removal with cause, a member of the Board of Trustees is eligible
for election to the Board of Trustees again after one year.
A-1
In addition to the elected members of the Board of Trustees, members of the Board ex
officio include the immediate Past Chair of the Board of Trustees, the President of the
University, the Chair of the Board of Overseers, the Chair of the Board of Fellows, the Chair of
the Board of Counselors, the President of the National Alumni Association, the President of The
Chiselers, Inc. (a women's organization that supports the University), the President of the Parents
Council, the President of the Tampa Chamber of Commerce and the Mayor of the City of
Tampa.
Board Member
Term Expires / Ex-Officio-Members / Board Officers
Charlotte Baker
Digital Hands, Tampa
2017
Leo B. Berman
Palm Beach Yacht Center
Palm Beach Gardens
2017
Thilo D. Best
Brookdale Senior Living, Tampa
2016
Allen R. Brinkman
SunTrust Bank, Tampa Bay, Tampa
2016
Mayor, City of Tampa *
Robert F. Buckhorn
City of Tampa, Tampa
Christine M. Burdick
Tampa Downtown Partnership, Tampa
President, Tampa Downtown Partnership*
Robert Calafell
GTE (Verizon), Retired
2015
Phillip E. Casey
Gerdau Ameristeel (Retired), Tampa
Secretary, Board of Trustees
Blake J. Casper
Caspers Company, Tampa
2016
Patricia Martini Clark
Toni Everett Company
2015
Thomas A. Castriota
Castriota Chevrolet, Hudson FL
2015
O. Rex Damron, Ph.D.
Sant' Yago Education
Foundation, Tampa
2017
*
Ex Officio Trustee
A-2
Board Member
Don Defosset
DJD Group, Tampa
Immediate Past Chair, Board of Trustees *
James L. Ferman, Jr.
Ferman Automotive
Management, Tampa
Vice Chair, Board of Trustees
William Goede
Bank of America, Tampa
2017
Robert D. Gries, Jr.
Gries Investment Fund, Tampa
2015
Gary W. Harrod
Harrod Properties, Tampa
2016
John Holton
Rita Technology Services
2015
Howard Jenkins
Publix Supermarkets
2016
Suzanne T. Kirkconnell
Tampa
2015
Edward M. Kobel
DeBartolo Development
2015
Katie Krimitsos
Tampa Bay Business
2015
Mariano Legaz
Verizon Wireless
2015
Susan W. Leisner
Chartered Financial Analyst (Retired)
2015
John P. Lowth III
Arnone, Lowth, Wilson, Liebowitz,
Andriano and Greco, Inc.
2017
James E. MacDougald
Westshore Ventures, Inc., St. Petersburg
2015
A.D. (Sandy) MacKinnon
MacKinnon Equipment & Services
2017
*
Ex Officio Trustee
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Board Member
James S. MacLeod
Coastal South Bankshares Inc.
2015
Kamal N. Majeed, Ph.D.
NexTech
2016
Roy J. McCraw Jr.
Regional Chairman Wachovia (Retired)
2015
Joseph G. Meterchick
PNC Bank
2015
James K. (Jack) Murray, Jr.
Murray Company, Tampa
2016
Nancy J. Rabenold
Xcia, Inc.
2017
Robert J. Rohrlack, Jr.
Greater Tampa Chamber of Commerce
Tampa
President, Greater Tampa Chamber of Commerce *
Douglas C. Rothschild
Cassidy Turley Group
2015
Michael S. Southard
Kichler Lighting, Orange Village, OH
2017
Thomas W. Spruance
Family Association Board of Directors
2015
Craig C. Sturken
SpartanNash
2017
Robert M. Thomas
Two Rivers Ranch, Inc., Thonotosassa
2015
James A. (Bubba) Turner, III
Tampa Armature Works, Inc., Tampa
2015
President, The University of Tampa*
Ronald L. Vaughn, Ph.D.
The University of Tampa
R. Vijayanagar, M.D.
Advanced Innovative Medicine, Tampa
*
2012
Ex Officio Trustee
A-4
Board Member
Benjamin B. West
22squared
2017
John B. West
Hire Velocity, Tampa
Chairman, Board of Trustees
Rufus J. Williams III
Cardinal Point Advisors
2015
Committees
The Board of Trustees of the Borrower has standing committees which meet regularly to
handle assigned responsibilities and make recommendations to the Board. The membership of
each standing committee, other than the Executive Committee, consists of at least four Trustees
appointed by the Chair of the Board, with the assent of the Chair of the committee, the
appropriate senior officer and faculty representative of the Borrower, and such other members of
the University community as the Chair of the committee may appoint.
ADMINISTRATION, FACULTY AND EMPLOYEES
Administration
The Borrower's Board of Trustees has delegated authority for the management and daily
operations of the University to the President and Chief Executive Officer and the management
staff. The President and Chief Executive Officer and the principal members of the executive
management staff, who are appointed by the Board of Trustees, its Executive Committee or the
President and Chief Executive Officer, and selected biographical information, are as follows:
Ronald L. Vaughn, Ph.D., 68, President and Chief Executive Officer. Dr. Vaughn has
worked for the University for 30 years. Prior to his appointment as President and Chief
Executive Officer of the University on January 1, 1995, Dr. Vaughn served as Dean of the
College of Business. Dr. Vaughn graduated from Indiana State University with both a Bachelor
of Science degree and a Masters of Business Administration degree, and received a Ph.D. from
the University of Georgia.
Linda W. Devine, Ph.D., 57, Vice President for Operations and Planning. Dr. Devine
has worked for the University for 33 years. Prior to her appointment as Vice President, she
served as Dean of Students and in several student development-related roles. She holds a Ph.D.
in curriculum and instruction from the University of South Florida, a Master of Arts degree in
college student personnel from Bowling Green State University, and Bachelor of Science degree
from Ashland College.
Dan T. Gura, CFRE, B.S., 70, Vice President for Development and University Relations.
Mr. Gura joined the University in 1990. Mr. Gura graduated from Bradley University with a
Bachelor of Science degree.
Dennis L. Nostrand, M.S., 66, Vice President for Enrollment. Mr. Nostrand joined the
University in 2009. Prior to his joining the University, he worked as vice president for
A-5
enrollment at University of New Haven and Arcadia University. Mr. Nostrand graduated from
Ohio Northern University with a Bachelor of Arts degree, and received a Master of Science
degree from the State University of New York at Cortland.
Richard W. Ogorek, CPA, B.S., 63, Vice President for Administration and Finance and
Chief Financial Officer. Mr. Ogorek has worked for the university for 22 years and has held his
current office since 2010, rising from the position of Associate Vice President. Mr. Ogorek
received a Bachelor of Science degree in Business Administration from Illinois State University.
Donna B. Popovich, PHR, B.L.S., 59, Executive Director for Human Resources and
Corporate Secretary. Ms. Popovich has worked for the University for 30 years, serving as
Corporate Secretary since 1989 and Chief Human Resources Officer since 1993. She graduated
from The University of Tampa with a Bachelor in Liberal Studies degree, and received a
Bachelor of Science degree in education from the University of South Florida.
David S. Stern, Ph.D., 55, Provost and Vice President for Academic Affairs. Dr. Stern
joined the University and assumed his position in 2013. He is serving the president as the key
academic advisor. Prior to joining the University of Tampa, Dr. Stern was the Vice President for
Academic and Student Affairs at Hamline University in St. Paul, MN. He has served in academic
administration for 15 years. Dr. Stern earned masters and doctoral degrees from the University
of California, San Diego.
Larry J. Marfise, M.S., 63, Athletic Director. Mr. Marfise joined the University in 1999.
Prior to his joining the University he was the Athletics Director at Ferris State University. Mr.
Marfise received a bachelor's degree and Master of Arts degree from DePauw University, and a
Master of Science degree from Ohio University.
Faculty
The following table sets forth the University's full-time faculty, number of faculty with
terminal degrees, tenured faculty and the number of fall adjunct appointments during the last five
years as of each fall semester.
Faculty Profile
(2010-2014)
Fall
Semester
Full-Time
Faculty
Faculty with
Terminal Degree
Tenured
Faculty
Number of Fall
Adjunct
Appointments
2010
2011
2012
2013
2014
260
263
270
279
283
230
240
240
241
255
129
123
137
151
157
274
301
323
350
372
Employees
As of October 30, 2014, the University employed 683 persons (including part-time
employees).
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Management of the University considers its relationship with its employees to be
excellent. Management has worked to strengthen that relationship by instituting various
programs addressing the interaction of faculty, staff and management. Management has
established mechanisms for addressing employee grievances and involving employees in the
management process.
Pay increases for employees of the University have averaged 2.55% per year over the last
five years. The University provides a variety of benefits to its employees, including health
insurance, dental insurance, long-term disability insurance, life insurance, tuition reimbursement,
retirement benefits and customary vacation, holidays and sick days.
At present, none of the University's employees are represented by a union or other
collective bargaining representative. Management is not aware of any organizing activity or of
any work disruption involving its employees.
FACILITIES
The University
The University's residential campus is located on approximately 102 beautifully
landscaped acres along the banks of the Hillsborough River in downtown Tampa, Florida. The
campus includes 58 buildings, many of which are new or are well-maintained historic structures.
Plant Hall, the original building housing the University, serves as the University's main
academic and administrative building. It was built in the late nineteenth century by Henry B.
Plant as a luxury resort hotel. The design is in an exotic style, usually described as "Moorish" or
"Turkish," and the building is about a quarter of a mile in length, which was enormous by late
nineteenth century standards. Located in Plant Hall are a museum, classrooms, laboratories and
administrative and faculty offices and rooms used for recitals, plays, lectures, receptions, dances
and concerts.
The Vaughn Center, made possible through a private donation, is the hub of campus
activity, housing student government and organizations, the yearbook, literary journal, student
newspaper, Residence Life and Student Activities offices, lounges, meeting rooms, a student and
faculty cafeteria, a state of the art theatre, a campus bookstore, and residential accommodations
for 550 students.
The Sykes Chapel and Center for Faith is a 13,200 square foot vaulted structure that
houses a pipe organ, main hall, meeting and meditation rooms, and vestibule. It provides unique
spaces on campus for meetings, seminars, concerts, ceremonies and other spiritual programs.
The Dickey Health and Wellness Center was completed in October 2010 and includes
10,200 square feet of space housing a waiting area, eight exam rooms, a triage space, pharmacy,
staff offices and counseling spaces.
The Cass Science Annex includes 7,800 square feet of space that houses an organic
chemistry and a micro-biology laboratory. Research labs and offices complete the facility. The
building was planned and designed with the flexibility to expand to the east when demand for
additional science spaces arises.
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The Macdonald Kelce Library has more than 275,000 bound volumes, 1,600 periodicals
and provides seating for 300 people, including individual study carrels, six study rooms and an
audiovisual facility with a listening booth. The library is also a depository for United States and
state government publications and is a member of the Tampa Bay Library Consortium, which
provides books and research materials from a variety of member libraries. Professional reference
assistance, bibliographic instruction and inter-library loan services are provided for students as
well as for faculty members. A microcomputer lab for student use is located on the second floor.
The David A. Falk Theatre is located on Kennedy Boulevard across from Plant Hall.
University music and drama productions, lectures and convocations take place at the theatre.
The former Florida State Fairgrounds complex has been converted and restored and now
includes art, music and ballet studios, a nursing instructional and skills facility, The Academic
Success Center (advising and tutoring), the Communications Department and the Computer
Resources Center. The complex also includes the Saunders Center for the Arts. The Computer
Resources Center offers hands-on experience in a laboratory environment, combining practical
application with theoretical application.
Pepin Stadium borders the edge of the old fairgrounds. The stadium has 1,500 seats
overlooking the field. Other outdoor sports fields provide facilities for soccer practice, baseball,
tennis, lacrosse and other sports for campus and community audiences. Nearby is the Bob
Martinez Sports Center which includes a gymnasium seating 3,500 persons for intercollegiate
sports events, weight and training facilities, offices for coaches and professors, locker rooms,
concessions, classrooms, a laundry room and physiology laboratory. The University also has an
Army ROTC Program and an agreement with the University of South Florida for the support of
an Air Force and a Navy ROTC program. In addition to classrooms and offices, the ROTC
building contains a library and cadet lounge.
There currently are 12 residence facilities on campus for University students with a
current capacity of 3,859. Each residence hall is air-conditioned, furnished and provides a study
area. Most have television lounges and recreational space as well. Some of the residence
facilities are coeducational and two have apartment-style living units. See "OPERATIONS Residential Facilities, Policies and Demand" in this Appendix A.
The 2015 Projects
The 2015 Project has two parts. The first part includes the costs of the construction of an
apartment style 7-story student residence hall, to be constructed in phases and located on the
Borrower's campus. The initial phase to be completed in 2015 will house 209 full-time students.
This residential facility was built on the site of a former residential project in the residential
center of campus. A second part includes the construction, equipping and installation of a mixed
use facility, including additions and improvements to an existing parking garage, offices,
classrooms and other facilities. See "PURPOSE OF THE SERIES 2015 BONDS AND
REFUNDING PLAN" in the Official Statement.
The Master Plan
The University's Master Plan, approved by the Board of Trustees in 1996 and revised in
2001 and 2011, envisions continuing campus expansion and replacement of outmoded facilities
A-8
over the fifteen to twenty year period that commenced in 2001. The plan includes new academic
facilities, new student life and support facilities, and major renovation of existing facilities. The
University's management expects that these additions and renovations will be undertaken as part
of an ongoing major capital campaign with involvement from corporate and private sources.
Selected facilities will not be constructed until funds necessary for their completion are available.
The University is currently involved in numerous smaller projects consistent with the master
plan, most of which are renovations or expansion of existing facilities.
OPERATIONS
Academic Programs
The undergraduate academic programs of the University are organized into four units, the
College of Arts and Letters, the College of Natural and Health Sciences, the College of Math,
Education, and Social Sciences, and the College of Business, offering over 140 fields of
undergraduate study and pre-professional programs. The University offers the following
undergraduate degrees: Bachelor of Arts, Bachelor of Science, Bachelor of Fine Arts, Bachelor
of Music, Bachelor of Science in Nursing, Bachelor of Science in Athletic Training, and
Bachelor of Liberal Studies. The University also offers a Master of Business Administration
(MBA), Master of Science in Finance (MSF), Master of Science in Accounting (MSA), Master
of Science in Marketing (MSM), a Master of Science in Nursing (MSN), a Master of Fine Arts in
Creative Writing, (MFA), a Master of Education (MED), a Master of Science in Instructional
Design and Technology (MSIDT), and a Master of Science in Exercise and Nutrition (MSENS).
The student body is comprised of undergraduate and graduate students who come from
diverse socioeconomic, geographic and formative backgrounds. In response to this diversity, the
University offers programs which offer students career opportunities in the arts and sciences,
business, education, government health services, humanities and social services.
Intercollegiate Athletic Programs
The University competes at the NCAA Division II level, with teams competing in men's
and women's basketball, soccer, swimming, golf, cross country, lacrosse and men’s baseball and
women's volleyball, crew, tennis, and softball.
A-9
History of Student Enrollment
The following table sets forth the University's fall semester enrollment for each of the last
five academic years:
Enrollment
(Fall Semester)
2010-11
Undergraduate
Full-time
Part-time
Total Undergraduates
Graduate Students
Full-time
Part-time
Total Graduate Students
Total Full-time
Total Part-time
Grand Total
2011-12
2012-13
2013-14
2014-15
5,333
350
5,683
5,698
353
6,051
5,797
346
6,143
6,184
315
6,499
6,543
280
6,823
305
435
740
5,638
785
6,423
253
434
687
5,951
787
6,738
282
487
769
6,079
833
6,912
262
499
761
6,446
814
7,260
383
477
860
6,926
757
7,683
The following table sets forth the University's undergraduate retention statistics for the
past five academic years:
Undergraduate Freshman to Sophomore Retention
(Full-Time - All Programs)
Cohort
Established
Fall 2009
Fall 2010
Fall 2011
Fall 2012
Fall 2013
Retention %
69%
75%
74%
75%
72%
[Remainder of Page Intentionally Left Blank]
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Enrollment Profile
The following table sets forth the University's undergraduate applications for admission,
the number of first-time applications accepted, and the number of first-time freshman who
enrolled at the University for the last five fall semesters:
Enrollment Information
Fall Semester of
2010
2011
2012
2013
2014
Admissions Applications
Applications Accepted
Acceptance Rate
First time Freshman Enrolled
Matriculation Rate
11,985
6,363
53%
1,350
21%
13,203
7,111
54%
1,625
23%
14,703
6,828
46%
1,516
22%
14,832
7,934
53%
1,590
20%
17,230
8,936
52%
1,752
20%
Entrance Exam Scores
The academic demands of the curriculum require that students admitted possess a
satisfactory preparatory education. The following tables set forth the average SAT test scores for
the last five years for first-time freshmen at the University:
Average College Entrance Test Scores
Fall Semester
2010
2011
2012
2013
2014
SAT Verbal
SAT Math
SAT Combined
550
560
1,110
546
554
1,100
544
560
1,104
528
541
1,069
552
559
1,111
Demographics of Student Population
Students come from 46 different states and 138 foreign countries.
summarizes the origin of undergraduate students for the fall 2014 semester:
The following
Student Population Demographic Summary
Home Residence
Students
Florida
New York
International
New Jersey
Massachusetts
Connecticut
Illinois
Pennsylvania
Other States
Total
2,157
943
777
527
401
252
249
228
1,289
6,823
A-11
Percent
31.6%
13.8%
11.4%
7.7%
5.9%
3.7%
3.6%
3.3%
18.9%
100%
Tuition and Fees
The University meets the costs of its educational programs primarily through tuition,
fees, gifts and grants. The following table sets forth the base tuition charged to a full-time
student by the undergraduate and graduate programs of the University for the past five academic
years.
Tuition
Academic Year
Full-Time
Undergraduate(1)
% Increase
Full-Time
Graduate(2)
% Increase
2010-11
2011-12
2012-13
2013-14
2014-15
$22,116
3.3%
$22,834
3.3%
$23,520
3.0%
$23,990
2.0%
$24,528
2.2%
$9,072
3.3%
$9,360
3.2%
$9,630
2.9%
$9,828
2.1%
$10,044
2.2%
___________________
(1)
Tuition only, based on 24 to 36 credit hours per year.
(2)
Tuition only, based on 18 credit hours per year.
The University also assesses three separate student fees: 1) the Student Government Fee,
which provides basic support to the student government, student productions, publications and
other student-sponsored organizations; 2) the Student Service Fee, which provides support for a
number of student service programs, services and activities, computing labs, tutoring and other
academic career support services, free admission to on-campus athletic events and recreational
and intramural use of athletic fields; and 3) the Student Health Fee, which provides support for a
student injury and sickness plan as well as health, counseling and wellness services.
The following table sets forth the annual fees paid by students at the University for the
past five academic years:
Student Fees
Academic
Year
2010-11
2011-12
2012-13
2013-14
2014-15
Student
Government
Full-Time
Student Services
$192
192
192
192
192
$910
950
820
850
860
Student
Health Fee
$ 0
0
690
740
750
Part-Time
Student Services
$80
80
80
80
80
Residential Facilities, Policies and Demand
See "FACILITIES - The University" in this Appendix A for a general description of the
University's current residential facilities.
University housing is available on a first-come, first-served, space-available basis, and is
offered only to full-time students. Housing agreements are for a full academic year, unless a
student withdraws from the University.
A-12
Currently, the demand for the University's residence facilities exceeds the space
available. To the extent capacity of the residential facilities has been exceeded, additional
students have been accommodated by temporarily increasing the capacity of some rooms from
two residents to three. In addition, for the 2014 fall semester, the University housed 453 students
in interim housing near the campus because of lack of space in its residence facilities. Phase 1 of
the on-campus Palm Apartments opened in January of 2015 with 209 beds and alleviated some
overflow into interim housing. Over the last four years, the University's full-time undergraduate
enrollment has increased from 5,698 in the fall of 2011 to 6,543 in the fall of 2014, with 3,969
undergraduate students living in the University's residential facilities in fall of 2013 and 4,069 in
the fall of 2014 (including overflow to interim housing) exceeding 100% of dormitory capacity
for each such year.
A summary of available on-campus housing and occupancy rates for the fall 2014
semester is set forth below:
Building Name
Fall 2014
Total Beds
Fall 2014
Occupancy
Fall 2014
Occupancy Rate*
Austin Hall
Boat House
Brevard Hall
McKay Hall
ResCom
Jenkins Hall
Smiley Hall
Morsani Hall
Straz Hall
Urso Hall
Vaughn Center
Housing Total
479
18
471
194
140
528
136
464
490
182
548
3,650
478
17
465
192
137
528
134
463
486
172
544
3,616
100
94
99
99
98
100
99
100
99
95
99
99%
___________________
* Occupancy Rate percentage is rounded.
The following table sets forth yearly student room charges at the University for the past
five academic years:
Room Charges
(ranges in dollars)
Academic
Year
2010-11
2011-12
2012-13
2013-14
2014-15
Single
$6,130-6,880
6,330-7,104
6,536-7,336
6,732-7,556
6,884-7,740
Double
Triple
$3,880-4,590
4,040-4,700
4,172-4,852
4,298-4,996
4,380-5,100
$3,320-4,060
3,428-4,192
3,540-4,328
3,646-4,458
3,720-4,556
A-13
Quad
Apartment
$3,320
3,428
3,540
3,646
3,720
$6,130-9,060
6,330-9,320
6,536-9,620
6,732-9,908
6,884-9,908
The following table sets forth total housing revenues of the Borrower for the past five
years ending May 31, 2014.
Fiscal Year
Housing Revenues(1)
2009-10
2010-11
2011-12
2012-13
2013-14
$15,978,417
16,983,388
18,794,461
19,564,223
22,470,631
Number of Beds on Campus
3,155
3,186
3,181
3,278
3,747(2)
___________________
(1) Includes additional revenues from overflow students housed in interim housing near the campus.
(2) Includes Jenkins residence hall, added in Fiscal Year 2013-14.
In semesters where demand for housing has outstripped supply, the University has
assigned students to interim housing near the campus. The University currently acquires this
space from a local hotel and subsidizes the additional costs.
Financial Aid
A student typically receives an aid "package" consisting of grants, loans and work
assistance, which supplements each family's contribution to the student's total educational
expenses. In the Borrower's fiscal year ending May 31, 2014 approximately 88.6% of the
University's full time undergraduate student body received financial assistance, defined as loans,
grants, work assistance or scholarships, from one, or more, of the following sources: federal,
state, the Borrower and private. This percentage includes students who took private loans
outside of the Federal Family Educational Loan Program.
The following table presents the sources of student financial aid for students at the
University for the financial aid years indicated (financial aid years may differ from the
University fiscal year):
Sources of Student Financial Aid
2009-10
2010-11
2011-12
2012-13
2013-14
State Grants
Federal Grants(1)
Institutional Grants & Scholarships
Private Grants(2)
Total Grants and Scholarships
$ 7,899,7492
6,388,120
35,124,925
1,190,553
$50,603,347
$ 7,562,012
7,438,772
37,753,772
1,296,802
$54,051,358
$ 5,973,837
7,086,953
42,544,925
1,307,982
$56,913,697
$ 5,501,983
7,198,219
45,880,295
1,334,115
$59,914,612
$ 6,102,420
7,459,812
49,215,127
1,669,410
$64,446,769
Private Loans
Federal PLUS Loans
Federal Student Loans(3)
Work Study
Total Self Help
Total All Aid
$ 6,010,749
11,393,339
27,027,634
470,378
$44,902,100
$95,505,447
$ 5,838,017
13,735,949
28,405,351
322,525
$ 48,301,842
$102,353,200
$ 6,169,692
17,677,385
30,326,162
634,985
$ 54,808,224
$111,721,921
$ 6,694,423
17,875,214
31,215,244
484,024
$ 56,268,905
$116,183,517
$ 8,704,944
19,733,084
31,115,895
450,903
$ 60,004,826
$124,451,595
___________________
(1)
(2)
(3)
Federal Grants including Pell Grants, Federal Supplemental Educational Opportunity Grant (SEOG).
Private Grants are all other grants or scholarships outside of federal, state and institutional aid.
Federal Student Loans Include Stafford, Subsidized Direct, Unsubsidized Direct, and Perkins Loans.
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The University uses the Free Application for Federal Student Aid ("FAFSA")
methodology to determine a family's expected contribution. The average expected family
contribution of main campus undergraduate dependent students in 2013-14 was $18,699. The
average unmet need for aided dependent students – the amount remaining after the family
contribution and financial aid are subtracted from the cost of attendance – was $2,666 in
2013-14. Families typically borrow to finance this difference. A student's financial need and aid
award are reviewed in conjunction with the student's academic records to determine the exact
size and composition of an aid package.
In 2013-14, approximately 53.6% of undergraduate students received Federal Student
Loans. On average, these students borrowed approximately $6,534 for the year from this source.
For the University's 2014 fiscal year the full-time undergraduate tuition discount rate was
32.707%.
The following table presents the University's three-year official cohort default rate. This
rate is the percentage of the University's borrowers who enter repayment status on certain
Federal Family Educational Loan (FFEL) or Direct Loan Program loans during a particular
federal fiscal year (October 1 to September 30) and default or fail to meet other specified
conditions prior to the end of the next fiscal year.
Cohort Default Rate
2009
2010
2011
8.5%
6.9%
6.7%
The University has engaged a third party servicer to assist with efforts in default
prevention and management. See "CERTAIN INVESTMENT CONSIDERATIONS" in the
Official Statement.
Accreditations
The University is accredited by the Southern Association of Colleges and Schools
Commission on Colleges ("SACS COC") to award the Associate’s, Baccalaureate and Master
Degrees. The University was initially accredited in 1951 and has been renewed since by the
regional agency. Accreditation from SACS COC is for a ten year period. A self-assessment was
prepared and submitted in calendar year 2014 and an on-site review was completed in February
2015 with decisions expected to be released in December 2015. The reviews are timed so that
there is no expiration of the accreditation and the University expects to be re-accredited for a
next ten-year period through 2025.
In addition, the University's music program is accredited by the National Association of
Schools of Music, and the nursing programs are recognized by the Accreditation Commission for
Education in Nursing for nursing programs and the Florida Board of Nursing. The University is
accredited for teacher education by the Florida State Board of Education and the Florida State
Approving Agency for Veteran's Training recognizes the University with approval for veterans'
educational benefits. Further, the Athletic Training Program is accredited by the Commission on
Accreditation of Athletic Training Education. The University's degree program with an Applied
Concentration in Sociology has been accredited by the Commission to Accredit Programs in
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Applied and Clinical Sociology (CAPACS). The University's chemistry program is named as an
approved school, accredited by the American Chemical Society. The program in Biochemistry is
approved by the American Society for Biochemistry and Molecular Biology. The Computing
Accrediting Commission for the Accreditation Board for Engineering and Technology has
accredited the Information Systems Program. The undergraduate and graduate programs in
business are additionally accredited by the Association to Advance Collegiate Schools of
Business ("AACSB"). The Henry B. Plant Museum is accredited by the American Alliance of
Museums.
Competition
The University's management considers private liberal arts colleges and universities in
Florida to be its primary competition for students, along with the Florida public universities,
including the University of South Florida in Tampa.
On the basis of its enrollment and applicant information, the University believes that its
most significant competitors are the institutions listed in the following table:
Representative Competitors of University – 2014-2015
College
Private Institutions
Tuition and
Mandatory Fees
Room and
Board
Total
University of Miami
Rollins College
Stetson University
Butler University
Elon University
Jacksonville University
Queens University of Charlotte
Bradley University
Belmont University
Barry University
Samford University
University of Tampa
$44,350
43,080
40,040
35,652
31,247
31,370
30,850
30,844
28,660
28,204
27,324
26,330
$12,684
13,470
11,476
11,320
10,667
10,460
10,466
9,420
9,740
9,810
9,012
9,624
$57,034
56,550
51,516
46,972
41,914
41,830
41,316
40,264
38,400
38,014
36,336
35,954
Florida Public Institutions
(Instate)
Florida Atlantic University
University of Florida
University of South Florida
$ 6,193
6,310
6,410
$11,924
9,630
9,400
$18,117
15,940
15,810
Risk Management and Insurance
The University's risk management program is secured by participation in FICURMA, a
cooperative of independent colleges and schools in Florida. This cooperative of 14 institutions
pools reserves and purchases co-insurance on behalf of the members under the advice and
direction of consultants, led by AON. The University's participation in the cooperative is
A-16
managed by the Vice President for Administration and Finance. The University's physical assets
are insured at replacement value. Liability coverage is provided in two forms - commercial
coverage at $3,000,000 per occurrence and umbrella coverage adding $30,000,000. The
umbrella coverage provides inclusion of malpractice, errors and omissions and certain special
inclusions tailored to institutions of higher education. Coverages also provide for business
income continuation and extra expense in the event of a disruptive catastrophic occurrence.
Environmental Matters
Through the combined efforts of the University's Chemical Hygiene Officer and loss
prevention specialists, the University periodically surveys its campus and facilities to monitor
compliance with local, state and federal environmental requirements. Phase I environmental
studies are performed as part of property acquisitions and the pre-construction phase of major
renovation and new construction projects. There are three parcels of land, two of which are
owned by a wholly owned subsidiary of the University and the third owned by the University,
that, based on disclosures by the seller and Phase I and II environmental reports have found
petroleum contaminated soil and groundwater. Based on the University's review of the
environmental reports and proposals for the removal of the contaminated soil, the University
expects cleanup costs to be less than $300,000.
RESULTS OF OPERATIONS
Financial Records
The Borrower maintains its financial records on the basis of a fiscal year ending May 31
of each year. The Borrower's records are audited on the accrual basis of accounting in
accordance with generally accepted auditing standards. The financial statements of the Borrower
as of May 31, 2014 and May 31, 2013, and for the years then ended, are included in Appendix B
to the Official Statement. The financial statements were audited by KPMG, LLP, who were
engaged as independent auditors, as stated in their reports included in Appendix B to the Official
Statement. KPMG LLP has not been engaged to perform and has not performed, since the date
of its report included in the Official Statement, any procedures on the financial statements
addressed in that report. KPMG LLP also has not performed any procedures relating to the
Official Statement or this Appendix A.
Budget
The Borrower's budget process, which begins nine months prior to the applicable fiscal
year, is driven by a macro-level budget model prepared by the Chief Financial Officer. This
model incorporates economic, enrollment and staffing assumptions and projections which
encompass all aspects of the operating budget. These assumptions and projections are reviewed
periodically by the Senior Staff, the Borrower's Budget and Planning Committee, the Executive
Committee and the Administrative Affairs Committee of the Board of Trustees. The model then
serves as the guide by which the departmental budgets are prepared. The budget requests are
reviewed and modified by each unit's senior level officer and submitted to the Chief Financial
Officer who in turn reviews and recommends changes to the President for final incorporation.
The process is also guided by the Comprehensive Plan of the University to ensure that goals and
priorities are adequately addressed. The Chief Financial Officer presents the proposed budget to
A-17
the Executive and Administrative Affairs Committees of the Board of Trustees for approval and
recommendation of adoption by the full Board of Trustees as required by the Bylaws.
Financial Management Policies and Procedures
While budgetary authority and accountability is set up at the departmental level, approval
for purchases and check requisitions is required at the appropriate senior officer level.
Thereafter, additional approval is required by the Vice President for Administration and Finance,
who is the Chief Financial Officer for the Borrower. The purchase of goods and services is
normally accomplished through the Borrower's purchasing department on a bid basis unless
waived by the Chief Financial Officer. The Borrower's operating and capital budgets are
managed by the Chief Financial Officer. In addition to traditional internal controls, the Chief
Financial Officer employs variance analysis as a basic management tool. Each department
forecasts its pattern of expenditures by calendar quarter. Actual performance is measured against
these forecasts and variances from them are reviewed and corrected to ensure that budgets are
not over-expended unless the Chief Financial Officer authorizes the overdraft. Department
heads and their senior level officers are held accountable for their units' budgetary performance.
Detailed monthly reports are distributed to all departments and display actual against budget
performance. The cash flow of the Borrower is managed in like fashion and daily balances
swept for enhanced cash investment.
Management's Discussion and Analysis of Operations
The University has experienced annual growth in enrollment for five consecutive years
including the 2014-2015 academic year. The result of this growth has been a favorable impact in
terms of overall revenues. Total operating revenues (restricted and unrestricted) increased by
12.64% from fiscal year 2013 to fiscal year 2014. The growth in enrollment is a result of
improved student recruiting and retention combined with modest tuition increases. See the
financial statements included in Appendix B to the Official Statement for further information
regarding revenues in fiscal years 2013 and 2014.
With respect to expenditures, the growth in enrollment has resulted in increases in the
number of faculty, awarded student financial aid, debt service to fund new residential facilities
and campus expansion, campus-wide expenditures and expenses related to the auxiliary services
of residential programs and dining services. In addition, the increased revenue base has also
allowed for increases in the compensation of faculty and staff to maintain market
competitiveness. Operating expenses rose by 3.24% from fiscal year 2013 to fiscal year 2014.
See the financial statements included in Appendix B to the Official Statement for further
information regarding expenses in fiscal years 2013 and 2014.
Summary Statement of Total Revenues and Expenses
The tables below present summaries of historical statements of total revenues and
expenses of the Borrower for the last five fiscal years. Such information has been derived from
the audited financial statements of the University. The audited financial statements of the
Borrower for fiscal years ending May 31, 2013 and 2014 are attached as Appendix B to the
Official Statement and should be read in conjunction with the tables below. The first table below
combines operating and non-operating revenues and expenses and unrestricted and restricted
A-18
revenues and expenses, which are separately stated in the financial statements included in
Appendix B to the Official Statement. The second table below includes only unrestricted
revenues and expenses. In the opinion of the Borrower's management, there has been no
material adverse change in the financial condition of the Borrower since May 31, 2014, the date
of the last audited financial statements.
COMPARATIVE SUMMARY OF TOTAL REVENUES AND EXPENSES
(Restricted and Unrestricted)
2010
2011
Fiscal Years Ended May 31
2012
2013
2014
Revenues, Gains and Other Support:
Tuition and fees(1)
Contributions and grants
Investment and other income
Other revenue(2)
Total Revenues:
$ 91,871,970
5,862,847
4,471,894
27,682,105
$129,888,816
$ 99,828,295
7,078,800
7,147,070
29,387,414
$143,441,579
$107,650,477
15,773,644
(78,423)
32,486,613
$155,832,311
$116,478,344
9,605,677
6,984,478
34,073,420
$167,141,919
$126,241,502
16,950,499
6,630,430
38,448,377
$188,270,808
Expenses and Losses:
Educational and general
Auxiliary enterprises
Other expenses and losses
Total Expenditures:
$ 86,658,924
26,132,803
1,967,181
$114,758,908
$ 86,666,872
31,599,257
642,471
$118,908,600
$ 92,054,154
34,387,534
546,802
$126,988,490
$100,325,539
37,181,580
78,099
$137,585,218
$102,517,390
39,304,845
226,570
$142,048,805
$ 15,129,908
$173,553,034
$188,682,942
$ 24,532,979
$188,682,942
$213,215,921
$ 28,843,821
$213,215,921
$242,059,742
$ 29,556,701
$242,059,742
$271,616,443
$ 46,222,003
$271,616,443
$317,838,446
Change in net assets
Net assets at beginning of year
Net assets at end of year
___________________
(1) Net of scholarships and grants.
(2) Includes housing, meal, bookstore, student union, athletics and other operations revenue.
A-19
COMPARATIVE SUMMARY OF TOTAL REVENUES AND EXPENSES
(Unrestricted Only)
2010
2011
Fiscal Years Ended May 31
2012
2013
2014
Revenues, Gains and Other Support:
Tuition and fees(1)
Contributions and grants
Investment and other income
Other revenue(2)
Restrictions released(3)
Total Revenues:
$ 91,871,970
5,714,720
3,061,813
27,350,990
13,775,639
$141,775,132
$ 99,828,295
4,273,071
5,705,802
28,962,912
3,949,895
$142,719,975
$107,650,477
11,409,312
(1,538,151
32,238,395
3,148,129
$152,908,162
$116,478,344
5,639,836
2,685,478
33,773,248
12,761,848
$171,338,754
$126,241,502
4,367,763
2,818,111
38,035,169
4,506,554
$175,969,099
Expenses and Losses:
Educational and general
Auxiliary enterprises
Other expenses and losses
Total Expenditures:
$86,658,924
26,132,803
1,967,181
$114,758,908
$86,666,872
31,599,257
642,471
$118,908,600
$92,054,154
34,387,534
546,802
$126,988,490
$100,325,539
37,181,580
78,099
$137,585,218
$102,517,390
39,304,845
226,570
$142,048,805
$ 27,016,224
125,886,423
$152,902,647
$ 23,811,375
152,902,647
$176,714,022
$ 25,919,672
176,714,022
$202,633,694
$ 33,753,536
202,633,694
$234,937,629
$ 33,920,294
234,937,629
$268,857,923
___________________
(1) Net of scholarships and grants.
(2) Includes housing, meal, bookstore, student union, athletics and other operations revenue.
(3) Represents the portions of previously recognized contributions and grants that are no longer subject to any restrictions.
Investments and Net Assets
Investment Policy. The reserves and endowment of the Borrower are professionally
managed under the supervision of the Chief Financial Officer and the Board of Trustees
Committee on Administrative Affairs. The investment policy and management performance are
reviewed quarterly with the assistance of the Institutional Consulting Group of Merrill Lynch.
The portfolio may be rebalanced periodically in order to maintain these allocations. The
investment allocations are periodically reviewed and rebalanced to reflect the desired risk
tolerance ranges of the Committee. The portfolio is diversified into the following asset classes
and allocations:
Investment Allocation
Asset Class
Approved Allocation
Ranges
% Allocation as of
December 31, 2014
Equities (US & international)
Fixed income
Real Estate (a timber fund)
Strategic
50-80%
15-30%
7.5-12.5%
7.5-12.5%
60%
20%
7%
13%
Investments. The market value of the Borrower's investments for the last five fiscal
years ended May 31, 2014 are summarized in the tables below. Investments consist primarily of
equity securities of a variety of domestic and international companies, bonds that consist
A-20
primarily of United States Government and corporate obligations, money market investments,
and real estate.
Investments
Fiscal Year Ending May 31,
Cash equivalents
Stocks
Fixed income securities
Mutual funds
Interest-bearing deposits
Real estate
Alternative investments:
Hedge funds
Timber funds
Gold and silver trusts
Total
2010
$9,463,122
12,866,692
5,669,156
961,979
206,000
730,995
2011
$10,189,402
16,262,121
4,542,933
1,816,564
515,180
743,448
2012
$22,636,726
14,649,671
13,634,696
1,915,009
519,827
27,945
2013
$12,459,507
17,417,179
13,224,078
3,519,169
309,926
27,945
2014
$13,227,094
23,727,553
11,096,799
6,707,140
206,000
857,945
2,184,173
1,988,717
141,902
$34,212,736
2,345,521
2,167,995
208,438
$38,791,602
3,168,429
2,012,701
166,918
$58,731,922
3,384,042
2,097,591
0
$52,439,437
4,423,267
2,254,156
0
$62,499,954
Expendable Net Assets. By the nature of restrictions placed by donors, certain net assets
are available to be expended by the Borrower, while others are not. The following table reflects
the University's total net assets and expendable net assets at the end of each of the last five fiscal
years ended May 31, 2014.
Expendable Net Assets
2010
$188,682,942
2011
$213,215,921
2012
$242,059,742
2013
$271,616,443
2014
$317,838,446
17,913,695
18,646,519
19,530,556
20,917,148
21,644,297
PP&E
237,314,890
247,673,082
276,189,319
344,814,240
364,681,443
Bonds and capital leases payable
Total net assets
Less permanently restricted net assets
Less net investment in plant:
113,709,086
110,354,407
127,261,422
144,152,210
154,312,949
Deposits with bond trustee
6,729,684
6,728,914
19,364,748
8,406,788
8,404,296
Total Net investment in plant
$116,876,120
$130,589,761
$129,563,149
$ 192,255,242
$201,964,198
Expendable net assets
$ 53,893,127
$ 63,979,641
$ 92,966,037
$ 58,444,053
$ 94,229,951
A-21
Fundraising
The following chart reflects all gifts of cash or stock to the Borrower in each of the last
five fiscal years ended May 31, 2014.
Total Giving
2010
Private Gifts and Grants(1)
$3,188,205
2011
$4,637,365
2012
2013
$14,472,472
$8,326,412
2014
$15,532,346
___________________
(1) Consistent with GAAP as reflected in the Borrower's Audited Financial Statements.
Alumni Giving. In each of the past five years, approximately 17-19 percent of
undergraduate alumni donors solicited have participated.
Outstanding Debt
As of May 31, 2014, the following bonds and capitalized leases were outstanding for
which the Borrower is responsible under loan or similar agreements:
Name of Debt
Bank of Tampa Direct Purchase Bank Loan, Series 2013
(The University of Tampa Project)(1)
Higher Educational Facilities Financing Authority Bonds,
Series 2012A (The University of Tampa Project)
Higher Educational Facilities Financing Authority Bonds,
Series 2012B (The University of Tampa Project), PNC Bank
Direct Purchase Bank Loan
Higher Educational Facilities financing Authority Bonds,
Series 2012C (The University of Tampa Project),
Specialized Lending LLC (Bank of America) Direct
Purchase Bank Loan
City of Tampa, Florida Revenue Bonds (University of
Tampa Project), Series 2006(2)
Total Bonds
Capital Leases (Present value of minimum lease payments)
Total Bonds and Capital Leases
Long Term Debt
Outstanding
$ 13,768,223
$ 74,161,910
$
5,125,000
$ 20,000,000
$ 39,325,000
$152,380,133
$ 1,932,816
$ 154,312,949
___________________
(1) Expected to be refunded with a portion of the proceeds of the Series 2015 Bonds.
(2) Series 2006 Bonds maturing on and after April 1, 2016, expected to be refunded with a portion of the proceeds of the Series
2015 Bonds. The maturity due on April 1, 2015 is expected to be paid prior to the delivery of the Series 2015 Bonds.
In addition, the Borrower has entered into various lease purchase agreements for the
purchase of administrative and educational facilities, telephone equipment and administrative
and data processing equipment. See Note 8 and Note 17 to the Borrower's audited financial
statements for the fiscal year ended May 31, 2014, in Appendix B to the Official Statement.
A-22
Long-Term Estimated Debt Service
The following table sets forth the Borrower's expected annual debt service requirements
on the Series 2015 Bonds and the Series 2012A Bonds, Series 2012B Bond and Series 2012C
Bond (collectively, the "Parity Bonds") and certain capitalized leases, expected to be outstanding
after the issuance of the Series 2015 Bonds. The Borrower's capitalized lease obligations and
certain other payment obligations are described in Note 8 and Note 17 to the Borrower's audited
financial statements for the fiscal year ended May 31, 2014, in Appendix B to the Official
Statement.
Fiscal Year
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038
2039
2040
2041
2042
2043
2044
2045
TOTAL
Series 2015 Bond
Debt Service
$4,553,317.23
4,686,700.00
4,689,900.00
4,686,500.00
4,686,750.00
4,684,500.00
4,684,750.00
4,687,250.00
4,686,750.00
4,688,250.00
4,686,500.00
4,686,500.00
4,688,000.00
4,690,750.00
4,684,500.00
4,684,500.00
4,690,250.00
6,056,250.00
6,054,250.00
6,054,000.00
6,055,000.00
6,056,750.00
4,213,750.00
4,212,750.00
4,215,750.00
4,212,250.00
4,217,250.00
8,260,000.00
8,263,250.00
8,263,500.00
$155,680,417.23
Parity Bonds
Debt Service*
$8,675,008.75
8,419,255.01
8,129,409.69
6,730,911.05
6,749,900.29
6,770,014.93
6,794,005.49
6,970,917.14
6,967,267.14
6,970,517.15
6,538,029.64
6,538,079.62
6,537,817.14
6,544,042.14
5,378,517.15
5,387,017.15
5,384,267.14
2,205,925.00
2,208,425.00
2,208,037.50
2,209,762.50
2,208,337.50
4,048,762.50
4,049,175.00
4,045,925.00
4,048,750.00
4,046,862.50
---$146,764,939.12
Total
Debt Service
$13,228,325.98
13,105,955.01
12,819,309.69
11,417,411.05
11,436,650.29
11,454,514.93
11,478,755.49
11,658,167.14
11,654,017.14
11,658,767.15
11,224,529.64
11,224,579.62
11,225,817.14
11,234,792.14
10,063,017.15
10,071,517.15
10,074,517.14
8,262,175.00
8,262,675.00
8,262,037.50
8,264,762.50
8,265,087.50
8,262,512.50
8,261,925.00
8,261,675.00
8,261,000.00
8,264,112.50
8,260,000.00
8,263,250.00
8,263,500.00
$302,445,356.35
__________________
* The Series 2012C Bond is “Balloon Long-Term Indebtedness” as described in the Master Trust Indenture and bears interest
at a variable rate. For purposes of this table debt service on the Series 2012C Bond is based on an assumed variable interest
rate of 2.20% and is amortized as Balloon Long-Term Indebtedness in accordance with the terms of the Master Trust
Indenture, over a term through 2032 based on a level debt service. The Borrower expects to refinance the Series 2012C
Bond on or before its scheduled put date of May 1, 2022 when the remaining principal installment of $13,205,000 is due.
A-23
DEBT SERVICE COVERAGE
The following table sets forth for the fiscal years ended May 31, 2012, 2013 and 2014
the unrestricted revenues reflected in the financial statements of the Borrower available to pay its
debt service and the extent to which such revenues covered debt service requirements on the
actual long-term indebtedness of the Borrower (reflected in the financial statements of the
Borrower) outstanding during such fiscal years. The financial statements of the Borrower as
of May 31, 2014 and May 31, 2013, and for the years then ended, are included in Appendix
B to the Official Statement and this summary should be read in conjunction with such
financial statements. Reference is hereby made to such financial statements, including the
notes thereto. There can be no assurance that the Borrower will generate the revenues set
forth below in subsequent fiscal years.
Fiscal Year Ended May 31
2012
2013
2014
Revenues (1)
Expenses(2)
Income Available for Debt Service
Actual Long-Term Debt Service(3)
Historical Debt Service Coverage Ratio (4)
Pro-forma Maximum Annual Debt Service (5)
Long-term Debt Service Coverage Ratio (6)
$148,487,272
$111,421,531
$37,065,741
$7,866,363
4.71x
$13,228,226
2.80x
$159,405,879
$121,322,973
$38,082,906
$9,108,839
4.18x
$13,228,226
2.88x
$173,635,667
$121,331,730
$52,303,937
$12,411,142
4.21x
$13,228,225
3.95x
___________________
(1) As defined in the Master Trust Indenture, Revenues include the average of the current fiscal year and the preceding two
fiscal years for unrestricted gifts, grants, bequests, contributions and donations and excludes investment gains and losses.
(2) As defined in the Master Trust Indenture, Expenses include the expenses of operating any Member or all Members, as the
case may be, of the Obligated Group excluding depreciation, amortization, provisions for bad debt, and interest expenses, as
determined in accordance with Generally Accepted Accounting Principles consistently applied.
(3) Actual debt service requirements for the respective fiscal years, including capital lease payments.
(4) Pursuant to the Master Trust Indenture, the Borrower is required to maintain the Long-Term Debt Service Coverage Ratio at
no less than 1.00. See "APPENDIX E - Form of Master Trust Indenture" under the caption "Long-Term Debt Service
Coverage Ratio; Rate Covenant" attached to the Official Statement for information regarding the Long-Term Debt Service
Coverage Ratio and its calculation.
(5) Includes debt service on the Series 2012A Bonds, the Series 2012B Bond, the Series 2012C Bond and the Series 2015
Bonds, including capital lease payments. For purposes of this table debt service on the Series 2012C Bond is based on an
assumed variable interest rate of 2.20% and is amortized as Balloon Long-Term Indebtedness in accordance with the terms
of the Master Trust Indenture, over a term through 2032 based on level debt service. The Borrower expects to refinance the
Series 2012C Bond on or before its scheduled put date of May 1, 2022 when the remaining principal installment of
$13,205,000 is due.
(6) "Long-Term debt Service Coverage Ratio" as calculated pursuant to the Master Trust Indenture.
RETIREMENT BENEFITS
The Borrower provides retirement benefits for certain staff members through the
Teachers Insurance and Annuity Association ("TIAA") and the College Retirement Equity Fund
("CREF"), national organizations used to fund pension benefits for educational institutions.
Under this program, the Borrower and plan participants make annual contributions based upon a
defined percentage of the participant's salary to purchase individual retirement annuities and/or
equity units. The Borrower's share of these costs for fiscal year ended May 31, 2014, was
approximately $2,497,517.
The Borrower also provides post-retirement medical and life insurance benefits (the
"OPEB Plan") to certain employees hired prior to June 1, 2003. Surviving spouses are eligible
A-24
for healthcare benefits until they are eligible for Medicare but are not entitled to life insurance
benefits. As of June 1, 2012 there were 110 active employees and 36 retirees receiving postretirement healthcare benefits and 99 retirees receiving life insurance benefits. The Borrower
has not established a separate trust fund through which benefits under the OPEB Plan are paid
and has not currently accumulated or earmarked any funds for this purpose. All approved
benefits are paid from the Borrower's available funds when due.
The following table summarizes certain financial information of the OPEB Plan based on
an actuarial valuation report dated July 24, 2014 performed by AonHewitt for the plan year
ending May 31, 2014 and a valuation report dated June 28, 2013 for the plan year ending
May 31, 2013.
Fiscal Year Ended, May 31
2013
2014
2012
Net Periodic Postretirement Benefit Cost(1)
Accumulated Postretirement Benefit Obligation(2)
Discount Rate(2)
$210,336
$215,873
$219,606
$2,171,121
$2,254,427
$2,258,036
5.45%
4.35%
4.35%
___________________
(1) The expense the program sponsor must record in their financial statements for the applicable fiscal year. This amount
may be lower or higher than amounts actually paid by the Borrower in such fiscal year. See Note 7 to the Borrowers
financial statements attached as Appendix B to the Official Statement for estimated payments of the Borrower in each
of the next five fiscal years and in the aggregate for the five fiscal years thereafter.
(2) Accumulated Postretirement Benefit Obligations and Discount Rate may differ from the audited financial statements
due to the reconciliation of the financial statements to the general ledger as of May 31 of each year.
Actuarial valuations of an ongoing post-employment benefit plan involve estimates of the
value of reported amounts and assumptions about the probability of occurrence of events far into
the future. Examples include assumptions about future employment, termination, mortality,
interest rates and earnings on fund assets (if any), and healthcare cost trends, which cannot be
precisely predicted. Estimates based on experience with similar groups, along with the judgment
of the actuary and the plan sponsor can provide a reasonable approximation of this true cost. As
actual experience emerges under any post-employment benefit plan, it will be necessary to study
the continued appropriateness of the techniques and assumptions employed and to adjust the
contribution rate as necessary.
See Note 7 to the Borrower's audited financial statements for the fiscal year ended
May 31, 2014, in Appendix B to the Official Statement for additional information about the
retirement and OPEB Plan liabilities.
A-25
APPENDIX B
AUDITED FINANCIAL STATEMENTS OF THE BORROWER FOR THE
FISCAL YEARS ENDED MAY 31, 2014 AND 2013
UNIVERSITY OF TAMPA, INC.
Consolidated Financial Statements
May 31, 2014 and 2013
(With Independent Auditors’ Report Thereon)
Consolidated Financial Statements
May 31, 2014 and 2013
Table of Contents
Page
Independent Auditors’ Report
1
Consolidated Financial Statements:
Consolidated Statements of Financial Position
3
Consolidated Statements of Activities and Changes in Net Assets
4
Consolidated Statements of Cash Flows
8
Notes to Consolidated Financial Statements
9
KPMG LLP
Suite 1700
100 North Tampa Street
Tampa, FL 33602
Independent Auditors’ Report
The Board of Trustees
University of Tampa, Inc.:
Report on the Financial Statements
We have audited the accompanying consolidated financial statements of the University of Tampa, Inc.
(the University), which comprise the consolidated statements of financial position as of May 31, 2014 and
2013, and the related consolidated statements of activities and changes in net assets and cash flows for the
years then ended, and the related notes to the consolidated financial statements.
Management’s Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these consolidated financial
statements in accordance with U.S. generally accepted accounting principles; this includes the design,
implementation, and maintenance of internal control relevant to the preparation and fair presentation of
consolidated financial statements that are free from material misstatement, whether due to fraud or error.
Auditors’ Responsibility
Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of
America and the standards applicable to financial audits contained in Government Auditing Standards,
issued by the Comptroller General of the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the consolidated financial statements are free from
material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the
consolidated financial statements. The procedures selected depend on the auditors’ judgment, including the
assessment of the risks of material misstatement of the consolidated financial statements, whether due to
fraud or error. In making those risk assessments, the auditor considers internal control relevant to the
entity’s preparation and fair presentation of the consolidated financial statements in order to design audit
procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on
the effectiveness of the entity’s internal control. Accordingly, we express no such opinion. An audit also
includes evaluating the appropriateness of accounting policies used and the reasonableness of significant
accounting estimates made by management, as well as evaluating the overall presentation of the
consolidated financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our
audit opinion.
KPMG LLP, is Delaware limited liability partnership,
the U.S. member firm of KPMG International Cooperative
(“KPMG International”), a Swiss entity.
Opinion
In our opinion, the consolidated financial statements referred to above present fairly, in all material
respects, the consolidated financial position of the University as of May 31, 2014 and 2013, and the
changes in its net assets and its cash flows for the years then ended, in accordance with U.S. generally
accepted accounting principles.
Other Reporting Required by Government Auditing Standards
In accordance with Government Auditing Standards, we have also issued our report dated August 22, 2014
on our consideration of the University’s internal control over financial reporting and on our tests of its
compliance with certain provisions of laws, regulations, contracts, and grant agreements and other matters.
The purpose of that report is to describe the scope of our testing of internal control over financial reporting
and compliance and the results of that testing, and not to provide an opinion on internal control over
financial reporting or on compliance. That report is an integral part of an audit performed in accordance
with Government Auditing Standards in considering the University’s internal control over financial
reporting and compliance.
August 22, 2014
Certified Public Accountants
2
Consolidated Statements of Financial Position
May 31, 2014 and 2013
Assets
Cash and cash equivalents
Accounts receivable, net of allowance for uncollectibles of
approximately $710,000 and $658,000 in 2014 and 2013,
respectively
Inventories
Prepaid expenses and other assets
Contributions receivable, net
Loans receivable, net
Investments
Investment in plant, net
Total assets
2014
2013
46,399,483
28,647,543
3,115,140
164,212
5,099,086
16,299,000
2,126,863
62,499,954
364,681,443
4,004,616
184,777
5,273,085
12,269,000
2,001,566
52,439,437
344,814,240
$
500,385,181
449,634,264
$
11,119,543
266,675
1,162,298
1,932,816
1,426,991
1,481,938
2,487,549
10,288,792
152,380,133
15,256,818
456,920
1,095,112
1,318,089
1,392,065
1,481,100
2,410,333
11,773,263
142,834,121
182,546,735
178,017,821
268,857,923
27,336,226
21,644,297
234,937,629
15,761,666
20,917,148
317,838,446
271,616,443
500,385,181
449,634,264
$
Liabilities and Net Assets
Liabilities:
Accounts and accrued interest payable
Accrued vacation payable
Agency funds payable
Obligations under capital leases
Private loan funds payable
Governmental loan funds payable
Accrued postretirement benefits
Deferred revenue
Bonds and loans payable
Total liabilities
Net assets:
Unrestricted
Temporarily restricted
Permanently restricted
Total net assets
Total liabilities and net assets
$
See accompanying notes to consolidated financial statements.
3
Consolidated Statement of Activities and Changes in Net Assets
Year ended May 31, 2014
Nonoperating
Total
unrestricted
156,914,999
17,774,718
(47,059,389)
—
—
(1,388,826)
156,914,999
17,774,718
(48,448,215)
—
—
—
—
—
—
156,914,999
17,774,718
(48,448,215)
Net tuition and fees
127,630,328
(1,388,826)
126,241,502
—
—
126,241,502
Contributions and grants:
Annual fund
Sword and Shield
Federal grants and contracts
State grants and contracts
Private gifts and contracts
1,378,939
14,763
—
—
33,955
—
—
1,133,882
284,271
1,521,953
1,378,939
14,763
1,133,882
284,271
1,555,908
—
—
—
—
11,952,560
—
—
—
—
630,176
1,378,939
14,763
1,133,882
284,271
14,138,644
1,427,657
2,940,106
4,367,763
11,952,560
630,176
16,950,499
—
—
—
307,444
—
307,444
413,982
14,857,730
22,470,631
43,925
248,901
—
—
—
—
—
413,982
14,857,730
22,470,631
43,925
248,901
—
—
—
94,549
11,215
—
—
—
—
—
413,982
14,857,730
22,470,631
138,474
260,116
38,035,169
—
38,035,169
413,208
—
38,448,377
111,119
144,918
2,097,852
—
453,167
11,055
111,119
598,085
2,108,907
1,093,253
2,069,616
552,477
64,750
32,223
—
1,269,122
2,699,924
2,661,384
2,353,889
464,222
2,818,111
3,715,346
96,973
6,630,430
169,447,043
2,015,502
171,462,545
16,081,114
727,149
188,270,808
Operating
Revenues, gains, and other support:
Tuition and fees:
Undergraduate tuition
Other tuition and fees
Less scholarships
Total contributions and grants
Other revenues:
Events
Auxiliary enterprises:
Bookstore
Student union
Housing
Athletics
Other
Total other revenues
Investment and other income:
Investment income
Investment gains, net
Other income, net
Total investment and other income
Total revenues, gains, and other support
before reclassifications
$
4
Temporarily
restricted
Permanently
restricted
Total
(Continued)
Reclassifications:
Mandatory and nonmandatory transfers
Net assets released from restrictions
$
Expenses and losses:
Education and general:
Instruction
Academic support
Student services
Institutional support
Research
Total education and general
Athletics
Facilities rental
Residence life and housing
Student meals
Total auxiliary enterprises
Other expenses and losses:
Loss on disposal of plant assets
Total expenses and losses
$
Total
unrestricted
Temporarily
restricted
47,542,555
4,506,554
—
4,506,554
—
(4,506,554)
—
—
—
—
121,904,488
54,064,611
175,969,099
11,574,560
727,149
188,270,808
43,905,380
12,412,936
12,263,228
25,973,682
—
3,317
814,652
1,730,141
4,877,174
536,880
43,908,697
13,227,588
13,993,369
30,850,856
536,880
—
—
—
—
—
—
—
—
—
—
43,908,697
13,227,588
13,993,369
30,850,856
536,880
94,555,226
7,962,164
102,517,390
—
—
102,517,390
3,862,185
727,274
11,643,739
11,116,064
520,453
—
11,191,789
243,341
4,382,638
727,274
22,835,528
11,359,405
—
—
—
—
—
—
—
—
4,382,638
727,274
22,835,528
11,359,405
27,349,262
11,955,583
39,304,845
—
—
39,304,845
—
226,570
226,570
—
—
226,570
121,904,488
20,144,317
142,048,805
—
—
142,048,805
—
33,920,294
33,920,294
11,574,560
727,149
46,222,003
Operating
Nonoperating
(47,542,555)
—
Permanently
restricted
Total
—
234,937,629
234,937,629
15,761,666
20,917,148
271,616,443
—
268,857,923
268,857,923
27,336,226
21,644,297
317,838,446
5
Nonoperating
Total
unrestricted
145,650,351
16,220,965
(44,220,156)
—
—
(1,172,816)
145,650,351
16,220,965
(45,392,972)
—
—
—
—
—
—
145,650,351
16,220,965
(45,392,972)
Net tuition and fees
117,651,160
(1,172,816)
116,478,344
—
—
116,478,344
Contributions and grants:
Annual fund
Sword and Shield
Federal grants and contracts
State grants and contracts
Private gifts and contracts
1,400,892
14,595
—
—
10,193
—
—
1,066,629
212,636
2,934,891
1,400,892
14,595
1,066,629
212,636
2,945,084
—
—
—
—
2,715,752
—
—
—
—
1,250,089
1,400,892
14,595
1,066,629
212,636
6,910,925
1,425,680
4,214,156
5,639,836
2,715,752
1,250,089
9,605,677
—
—
—
199,097
—
199,097
418,267
13,483,792
19,564,223
33,302
273,664
—
—
—
—
—
418,267
13,483,792
19,564,223
33,302
273,664
—
—
—
95,561
5,514
—
—
—
—
—
418,267
13,483,792
19,564,223
128,863
279,178
33,773,248
—
33,773,248
300,172
—
34,073,420
94,114
13,032
1,931,380
—
625,565
21,387
94,114
638,597
1,952,767
898,152
2,719,942
544,403
50,895
85,608
—
1,043,161
3,444,147
2,497,170
2,038,526
646,952
2,685,478
4,162,497
136,503
6,984,478
154,888,614
3,688,292
158,576,906
7,178,421
1,386,592
167,141,919
Operating
Revenues, gains, and other support:
Tuition and fees:
Undergraduate tuition
Other tuition and fees
Less scholarships
Total contributions and grants
Other revenues:
Events
Bookstore
Student union
Housing
Athletics
Other
Total other revenues
Investment and other income:
Investment income
Investment gains
Other income, net
Total investment and other income
before reclassifications
$
6
Temporarily
restricted
Permanently
restricted
Total
(Continued)
Reclassifications:
Mandatory and nonmandatory transfers
Net assets released from restrictions
$
Expenses and losses:
Education and general:
Instruction
Academic support
Student services
Institutional support
Research
Total education and general
Athletics
Facilities rental
Residence life and housing
Student meals
Total auxiliary enterprises
Other expenses and losses:
Total expenses and losses
Cumulative effect of change in accounting principle
(note 13)
$
Operating
Nonoperating
Total
unrestricted
Temporarily
restricted
(36,723,519)
—
36,723,519
12,761,848
—
12,761,848
—
(12,761,848)
—
—
—
—
118,165,095
53,173,659
171,338,754
(5,583,427)
1,386,592
167,141,919
41,893,933
11,549,555
11,523,943
25,695,760
—
2,148,183
1,068,916
1,676,579
4,356,096
412,574
44,042,116
12,618,471
13,200,522
30,051,856
412,574
—
—
—
—
—
—
—
—
—
—
44,042,116
12,618,471
13,200,522
30,051,856
412,574
90,663,191
9,662,348
100,325,539
—
—
100,325,539
3,375,887
778,299
13,020,152
10,327,566
403,784
—
9,087,101
188,791
3,779,671
778,299
22,107,253
10,516,357
—
—
—
—
—
—
—
—
3,779,671
778,299
22,107,253
10,516,357
27,501,904
9,679,676
37,181,580
—
—
37,181,580
—
78,099
78,099
—
—
78,099
118,165,095
19,420,123
137,585,218
—
—
137,585,218
—
33,753,536
33,753,536
(5,583,427)
1,386,592
29,556,701
—
(1,449,601)
(1,449,601)
1,449,601
—
—
—
202,633,694
202,633,694
19,895,492
19,530,556
242,059,742
—
234,937,629
234,937,629
15,761,666
20,917,148
271,616,443
7
Permanently
restricted
Total
Consolidated Statements of Cash Flows
Years ended May 31, 2014 and 2013
Cash flows from operating activities:
Adjustments to reconcile change in net assets to net cash provided by
operating activities:
Depreciation
Provisions for uncollectible accounts
Investment gains, net
In-kind contribution—donated stock
Amortization of bond premium
Receipt of federal financial aid
Disbursement of federal financial aid
Change in operating assets and liabilities:
Accounts receivable
Inventories
Prepaid expenses and other assets
Loans receivable, net
Accounts payable and accrued interest payable
Accrued vacation payable
Private loan funds payable
Governmental loan funds payable
Accrued postretirement benefits
Deferred revenue
2014
2013
46,222,003
29,556,701
14,855,308
(145,754)
(2,699,924)
(4,999,995)
226,570
(92,211)
56,810,961
(56,810,961)
10,816,338
(43,473)
(3,444,147)
—
78,099
(92,211)
54,064,030
(54,064,030)
837,230
20,565
235,160
(3,832,000)
(125,297)
(2,450,954)
(190,245)
67,186
34,926
838
77,216
(1,484,471)
(1,325,255)
(3,758)
281,016
1,176,000
(24,461)
341,906
93,534
12,324
13,372
10,362
388,265
197,813
46,556,151
38,032,425
(35,179,272)
(15,679,962)
13,319,364
(77,840,393)
(9,721,093)
19,457,725
(37,539,870)
(68,103,761)
15,000,000
(5,361,777)
(841,403)
(61,161)
19,500,000
(3,055,000)
(537,571)
—
8,735,659
15,907,429
17,751,940
(14,163,907)
28,647,543
42,811,450
$
46,399,483
28,647,543
$
6,207,962
1,456,130
226,919
4,999,995
5,516,268
1,075,570
1,913,240
—
$
Net cash provided by operating activities
Cash flows from investing activities:
Capital expenditures
Purchases of investments
Sales and maturities of investments
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from debt issuance
Principal payments on bonds and loans payable
Principal payments on obligations under capital leases
Payment of debt issuance costs
Net cash provided by financing activities
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of year
Cash and cash equivalents at end of year
Supplemental disclosures of cash flow information:
Cash paid for interest
Assets acquired under capital leases
Capital asset purchases in accrued expenses
In-kind contribution—donated stock
8
May 31, 2014 and 2013
(1)
Organization
The University of Tampa, Inc. (the University) was founded in 1931 as a junior college. Presently, the
University operates as a privately funded institution offering graduate and undergraduate degrees. The
University is accredited by the Southern Association of Colleges and Schools.
Boulevard and Kennedy Holdings, LLC (BKH) was organized in 2014 for the purpose of holding several
parcels of real property. BKH is a single-member limited liability company wholly-owned by the
University.
(2)
Summary of Significant Accounting Policies
(a)
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the University and, for
fiscal year 2014, the activity of BKH. All significant intercompany balances and transactions have
been eliminated in consolidation.
(b)
Basis of Presentation and Accounting
The consolidated financial statements of the University have been prepared on the accrual basis of
accounting.
Net assets and revenues, expenses, gains, and losses are classified based on the existence or absence
of donor-imposed restrictions. Net assets are reflected in the accompanying consolidated financial
statements as follows:
x
Unrestricted – Net assets that are free of donor-imposed restrictions: all revenues, expenses,
gains, and losses that are not changes in permanently or temporarily restricted net assets.
Unrestricted net assets also include assets required to be reserved under the terms of the
University’s bond agreements (note 6).
x
Temporarily Restricted – Net assets whose use by the University is limited by donor-imposed
stipulations that either expire by passage of time or that can be fulfilled or removed by action
of the University pursuant to those stipulations. Temporarily restricted net assets include net
assets restricted by donors for capital projects, acquisition of plant, specific instructional
programs, and scholarship awards. This category also includes realized and unrealized gains
on endowment and other long-term investments that are not restricted for use by explicit donor
stipulations or by law (note 13).
x
Permanently Restricted – Net assets whose use by the University is limited by donor-imposed
stipulations that neither expire by passage of time nor can be fulfilled or otherwise removed by
actions of the University.
Contributions are reported as increases in the appropriate category of net assets, except for
contributions that impose restrictions met in the same fiscal year they are received, which are
reported as unrestricted revenues. Expenses are reported as decreases in unrestricted net assets.
9
(Continued)
May 31, 2014 and 2013
Gains and losses on investments are reported as increases or decreases in unrestricted net assets
unless their use is restricted by explicit donor stipulations or by law. Expirations of temporary
restrictions recognized on net assets (i.e., the donor-stipulated purpose has been fulfilled and/or the
stipulated time period has elapsed) are reported as reclassifications (net assets released from
restrictions) from temporarily restricted net assets to unrestricted net assets. Temporary restrictions
on gifts to acquire long-lived assets are considered met in the period in which the assets are acquired
or placed in service.
Contributions, including unconditional promises to give, are recognized as revenues in the period
received. Contributions received for capital projects or perpetual or term endowment funds and
contributions under split-interest agreements or perpetual trusts are reported as temporarily or
permanently restricted revenues if restricted by the donor. Conditional promises to give are not
recognized until the conditions on which they depend are substantially met. Contributions of assets
other than cash are recorded at their estimated fair value at the date of gift. Contributions to be
received after one year are discounted at fair value rates. Amortization of the discount is recorded as
an increase to contribution revenue. An allowance is made for uncollectible contributions based upon
management’s judgment and analysis of the creditworthiness of the donors, past collection
experience, and other relevant factors.
Unrestricted nonoperating activities reflect transactions of a long-term investment or capital nature
that are not restricted by donors, including unrestricted contributions, federal, state, and private gifts
and contracts, contributions designated by the Board of Trustees (Board) to be used for facilities and
equipment, and unrealized gains or losses on such contributions or assets. Unrestricted operating
activities reflect ongoing, budgeted revenues, and expenses of the University.
(c)
Cash and Cash Equivalents
All highly liquid investments with an original maturity at the date of acquisition of three months or
less are considered to be cash equivalents.
(d)
Inventories
Inventories are stated at the lower of cost or market using the first-in, first-out method.
(e)
Loans Receivable
The University’s student loan program is made possible by various loan programs such as the
Federal Perkins Student Loan Program and a loan program funded by donors. Default by the student
on his or her loan will result in a loss to the University. The loan programs are largely self-sustaining
in that collections of principal and interest on prior loans have been sufficient to cover cash
requirements for making current student loans.
(f)
Investments
Investments in equity securities and mutual funds with readily determinable fair values and all
investments in debt securities are reported at fair value. In addition, the University utilizes fair value
for reporting certain other investments. Income derived from investments, which is restricted by the
donor, may be recorded as temporarily or permanently restricted revenues in accordance with
10
(Continued)
May 31, 2014 and 2013
explicit donor stipulations or applicable laws. If such income is unrestricted, such revenues are
recorded as unrestricted revenues.
(g)
Investment in Plant
Investment in plant is recorded at cost on the date of acquisition or at estimated fair value, as
determined by the University, at the date of donation. Interest is capitalized in connection with the
construction of major facilities. The capitalized interest is recorded as part of the asset to which it
relates and is depreciated over the asset’s estimated useful life. Interest expense of $644,886 and
$754,527 was capitalized during the years ended May 31, 2014 and 2013, respectively. The
University does not capitalize the purchase of library books. The University has set aside certain
funds to provide for the future renewal and replacement of plant and equipment. Expenditures for
repairs and maintenance are charged to expense as incurred.
Depreciation and amortization of plant and equipment is recorded using the straight-line method over
the estimated useful lives of plant and equipment (or shorter of lease term or useful life for assets
financed by capital leases and for leasehold improvements), which range from five to 40 years
commencing in the fiscal quarter after the property or equipment is placed in service. Collections of
antiques, paintings, and other works of art are not depreciated. Depreciation expense totaled
$14,855,308 and $10,816,338 during the years ended May 31, 2014 and 2013, respectively.
(h)
Impairment of Long-Lived Assets
The University evaluates the recoverability of its plant and equipment whenever adverse events or
changes in the business climate indicate that the expected undiscounted future cash flows from the
related asset may be less than its carrying value. If the net book value of the related asset exceeds the
undiscounted future cash flows of the asset, the carrying amount would be reduced to the present
value of its expected future cash flows and an impairment loss would be recognized. No indicators of
impairment existed at May 31, 2014 or 2013.
(i)
Revenue Recognition
Operating revenues of an academic term that extend over more than one fiscal year are recognized
on a pro rata basis, allocated based upon the number of days of the term occurring in each fiscal year.
Accounts receivable primarily represents outstanding balances on student accounts related to
outstanding tuition and fees.
(j)
Allowance for Doubtful Accounts
The University has established an allowance for doubtful accounts based on historical collections
and industry standards. Uncollectible accounts receivable are specifically identified and charged to
the allowance account. Recovered bad debts are credited to the provision for bad debts when
collected. The receivables are reflected at net realizable value.
(k)
Deferred Revenue
Payments received for activities or services occurring in future fiscal years are recorded as deferred
revenue and are recognized as revenue when the activities or services have been provided. Deferred
11
(Continued)
May 31, 2014 and 2013
revenue also includes unamortized advances on the master lease agreement on the Vaughn Student
Center (note 8).
(l)
Income Taxes
The University is exempt from federal and state income taxes under Section 501(a) as an
organization described in Section 501(c)(3) of the Internal Revenue Code of 1986 (IRC), as
amended. BKH, as a single-member limited liability company, is treated as a disregarded entity for
tax purposes. Management does not consider income taxes connected with the University’s unrelated
business income to be significant.
Financial Accounting Standards Board Accounting Standard Codification Subtopic 740-10, Income
Taxes – Overall, prescribes a recognition threshold and measurement attribute for the financial
statement recognition and measurement of a tax position taken or expected to be taken in a tax
return, and provides guidance on derecognition, classification, interest and penalties, and disclosure.
The University believes that it has appropriate support for its tax positions taken and as such, does
not have any uncertain tax positions that could result in a material impact to the consolidated
financial statements.
(m)
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting
principles requires management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses recognized during the reporting
period. Actual results could differ from those estimates.
(3)
Contributions Receivable
As of May 31, 2014 and 2013, contributions receivable are expected to be collected in the following
periods:
In one year or less
Between one year and five years
More than five years
$
Total
Allowance for uncollectible contributions
Discount on future contributions collectible in future
years (5%)
$
2014
2013
10,680,000
7,002,000
700,000
3,400,000
10,553,000
1,100,000
18,382,000
15,053,000
(385,000)
(583,000)
(1,698,000)
(2,201,000)
16,299,000
12,269,000
Substantially all contributions receivable are classified as temporarily restricted based upon donor
restrictions for amounts to be utilized for capital projects or subject to other time restrictions.
12
(Continued)
May 31, 2014 and 2013
(4)
Investments
The overall investment objective of the University is to invest its assets in a prudent manner that will
achieve a long-term rate of return sufficient to fund a portion of its annual operating activities, fund
programs and scholarships as required by donors, and increase investment value after inflation. The
University diversifies its investments among various asset classes and types of investments, incorporating
multiple strategies, and managers. Major investment decisions are authorized by the Board, which oversees
the University’s investment program in accordance with guidelines established by its investment policy.
A summary of investments, at fair value, at May 31, 2014 and 2013 is as follows:
Cash equivalents
Stocks
Mutual funds
Interest-bearing deposits
Real estate
Alternative investments:
Hedge funds
Timber funds
$
$
2014
2013
13,227,094
23,727,553
11,096,799
6,707,140
206,000
857,945
12,459,507
17,417,179
13,224,078
3,519,169
309,926
27,945
4,423,267
2,254,156
3,384,042
2,097,591
62,499,954
52,439,437
Interest, dividends, and other investment income are reported net of investment management fees of
$209,943 and $194,621 for the years ended May 31, 2014 and 2013, respectively.
(5)
Investment in Plant
Investment in plant consists of the following as of May 31, 2014 and 2013:
Land and improvements
Buildings and improvements
Machinery and equipment
Furniture and fixtures
Construction in progress
Antiques, paintings, and other works of art
Transportation equipment
$
Less accumulated depreciation
$
13
2014
2013
51,155,943
355,693,355
24,733,640
24,203,210
9,122,434
396,451
940,259
42,857,323
295,872,570
20,470,177
21,176,650
50,366,282
197,095
858,655
466,245,292
431,798,752
(101,563,849)
(86,984,512)
364,681,443
344,814,240
(Continued)
May 31, 2014 and 2013
Construction in progress at May 31, 2014 consists of the Thomas Parking Garage expansion with a total
estimated project cost of $22,555,000 and ResCom dormitory replacement for $14,580,000. Construction
in progress at May 31, 2013 consisted of the construction of West Kennedy Hall, facilities compound
renovations, and the street alignment project.
(6)
Bonds and Loans Payable
The bonds and loans payable of the University are summarized as follows as of May 31, 2014 and 2013:
2014
Bank of Tampa Direct Purchase Bank Loan, Series 2013 –
payable in monthly installments of varying amounts through
July 2023. Interest at a fixed rate of 2.65% is due monthly.
Secured by a security interest in the pledged revenues of
the University under the Master Trust Indenture.
$
2013
13,768,223
—
Higher Educational Facilities Financing Authority (Authority)
Bonds, Series 2012A – payable in annual installments of
varying amounts through April 2042 (plus unamortized
premiums of $2,581,910 and $2,674,121 at May 31, 2014
and 2013, respectively). Interest at an average coupon rate
of 4.93% is due semiannually. Secured by a security
interest in the pledged revenues of the University under
the Master Trust Indenture.
74,161,910
76,259,121
PNC Bank Direct Purchase Bank Loan, Series 2012B –
payable in annual installments of varying amounts through
April 2018. Interest at a fixed rate of 2.20% is due monthly.
Secured by a security interest in the pledged revenues of
the University under the Master Trust Indenture.
5,125,000
6,335,000
Specialized Lending LLC (Bank of America) Direct Purchase
Bank Loan, Series 2012C – payable in monthly installments
of varying amounts through May 2032. Interest at a variable
rate of 67% of LIBOR plus 0.87% is due monthly. (Interest
rate at May 31, 2014 and 2013 was 0.97% and 1.00%,
respectively.) Interest-only payments are to be made until
May 1, 2015. Secured by a security interest in the pledged
revenues of the University under the Master Trust
Indenture.
20,000,000
20,000,000
City of Tampa, Florida Bonds, Series 2006 – payable in annual
installments of varying amounts through April 2037. Interest
at an average coupon rate of 4.83% is due semiannually.
Collateralized by a first mortgage on the project properties,
a parking garage addition and a dormitory with dining
facilities, and by direct future dormitory revenues.
39,325,000
40,240,000
152,380,133
142,834,121
$
14
(Continued)
May 31, 2014 and 2013
The Direct Purchase Series 2013 bank loan with The Bank of Tampa was issued on July 19, 2013 for
$15,000,000 to finance construction of a new facility (the Thomas Parking Garage expansion). Debt issue
costs totaling $61,161 have been capitalized and are being amortized over the life of the loan (10 years)
using the straight-line method.
The Series 2012A bonds were issued on April 30, 2012 with a par value of $74,795,000 to finance
construction of a new dormitory (West Kennedy Hall) and to refund several prior bond issues (Series 1999,
2000, 2002, and 2005A). Of this amount, $16,110,000 is related to new construction funds and
$58,685,000 is related to refunding of prior bond issues. The Series 1999, 2002, and 2005A bonds were
refunded on April 30, 2012; and the Series 2000 bonds were refunded on May 1, 2012. In addition, the
Series 2012A bonds had an original issue premium of $2,766,332. This premium has been capitalized and
is being amortized with the semiannual bond interest payments as a reduction of interest expense using the
straight-line method. Original debt issue costs totaling $1,342,289 have been capitalized and are being
amortized over the life of the bonds (30 years) using the straight-line method.
The Direct Purchase Series 2012B bank loan with PNC Bank was issued on April 30, 2012 for $7,300,000
to permanently fix a PNC Bank short-term bridge loan, which had been issued to refund the Series 1998
bonds on October 3, 2011. Original debt issue costs totaling $64,191 have been capitalized and are being
amortized over the life of the loan (6 years) using the straight-line method.
The Direct Purchase Series 2012C bank loan with Specialized Lending LLC (a wholly owned subsidiary of
Bank of America) was issued on April 30, 2012 to finance the construction of West Kennedy Hall. The
maximum loan amount is $20,000,000. Total loan draws reached the maximum balance during fiscal year
2013. Terms of the loan include interest-only payments for the first three years and monthly payments of
principal and interest thereafter. Original debt issue costs totaling $97,814 have been capitalized and are
being amortized over the life of the loan (20 years) using the straight-line method.
The bonds include various restrictive covenants including the maintenance of sinking funds and certain
liquidity ratios.
Interest expense on the bonds and loans payable was $6,099,732 and $5,581,591 for the years ended
May 31, 2014 and 2013, respectively.
15
(Continued)
May 31, 2014 and 2013
Maturities of bonds and loans payable for the succeeding five fiscal years and thereafter are as follows:
Year ending May 31:
2015
2016
2017
2018
2019
Thereafter
$
Total principal payments
149,798,223
Unamortized bond premium
Total bonds and loans
payable
(7)
6,356,830
6,582,861
6,811,600
7,095,541
5,980,542
116,970,849
2,581,910
$
152,380,133
Retirement Benefits
(a)
Defined Contribution Plan
Retirement benefits are provided for certain staff members through Teachers Insurance and Annuity
Association (TIAA) and College Retirement Equity Fund (CREF), which are national organizations
used to manage pension benefits for educational institutions. Under this arrangement, the University
and plan participants make annual contributions based upon a defined percentage of the participant’s
salary to purchase individual retirement annuities and/or equity units. The University’s share of these
costs for the years ended May 31, 2014 and 2013 was $2,497,517 and $2,407,510, respectively.
(b)
Postretirement Benefits
Relevant accounting literature requires the University to recognize the funded status of its
postretirement benefit plan in the consolidated statements of financial position. Actuarial gains and
losses that are not recognized as net periodic pension cost in the same period will be recognized as a
change in unrestricted net assets.
The funded status of the postretirement benefit plan at May 31, 2014 and 2013 consists of the
following:
2014
Accumulated postretirement benefit obligation
Plan assets at fair value
Funded status
Accrued postretirement benefit cost recorded in the
consolidated financial statements
16
2013
$
(2,487,549)
—
(2,410,333)
—
$
(2,487,549)
(2,410,333)
$
(2,487,549)
(2,410,333)
(Continued)
May 31, 2014 and 2013
All participating retirees have reached their maximum benefit level, and medical cost trend rates are
therefore not applicable at May 31, 2014 and 2013. The weighted average assumptions used in
computing the plan status are as follows:
2014
Discount rate at year-end
4.25%
2013
4.35%
The annual benefit costs for the years May 31, 2014 and 2013 are as follows:
Service cost
Interest cost
Amortization of transition obligation
Amortization of net gain
Net periodic postretirement benefit cost
Employer contribution
Benefits paid
2014
2013
$
111,892
95,612
60,600
(48,498)
107,228
92,027
61,100
(44,482)
$
219,606
215,873
$
42,785
42,785
47,790
47,790
The University’s best estimate of employer contributions expected to be paid to the plan during the
fiscal year ending May 31, 2015 is $131,891.
Benefits expected to be paid in each of the next five fiscal years, and in the aggregate for the five
fiscal years thereafter, are as follows:
Year ending May 31:
2015
2016
2017
2018
2019
2020–2024
$
131,891
136,867
142,971
152,814
158,874
804,017
The expected amortization of the transition obligation and net gain for the University’s next fiscal
year is $0 and $18,146, respectively.
(8)
Leases
The University leases data transmission facilities and data processing equipment that have been capitalized
in the accompanying consolidated financial statements as a purchase of assets and incurrence of debt, as if
financed.
17
(Continued)
May 31, 2014 and 2013
Future minimum lease payments under the capitalized data transmission equipment and data processing
equipment leased, together with the present value of the minimum lease payments, are as follows:
Year ending May 31:
2015
2016
2017
2018
$
Total
891,690
653,828
391,952
71,464
2,008,934
Less amounts representing interest
Present value of minimum
lease payments
(76,118)
$
1,932,816
Machinery and equipment includes approximately $6,741,000 and $5,285,000 of original cost under the
capital leases at May 31, 2014 and 2013, respectively. Accumulated depreciation for such equipment was
approximately $4,258,000 and $3,318,000 at May 31, 2014 and 2013, respectively.
The University also leases various facilities and equipment under noncancelable operating leases, which
expire through 2018. Payments for each of the next four years related to noncancelable operating leases are
as follows:
Year ending May 31:
2015
2016
2017
2018
Total operating lease
payments
$
3,633,389
478,770
290,840
27,815
$
4,430,814
Rent expense under noncancelable operating leases totaled approximately $2,497,000 and $2,742,000 for
the years ended May 31, 2014 and 2013, respectively.
In July 2001, the University entered into a master lease agreement and sublease agreement with an
unrelated party to exchange project leasehold interests in the Vaughn Student Center. The lease agreements
are in effect for 15-year periods and expire in June 2016. Pursuant to the master lease agreement, the
University received $14,327,108 as an advance of the total rents due under the master lease agreement, of
which the unamortized amount is included in deferred revenue in the consolidated statements of financial
position. Under the terms of the related sublease agreement, the University is required to make monthly
rental payments of $150,000 over the entire 15-year term of the sublease agreement. The University also
received a 15-year unconditional pledge from a member of the Board in an annual amount equal to the
total amount of rents due under the terms of the sublease agreement.
18
(Continued)
May 31, 2014 and 2013
(9)
Temporarily and Permanently Restricted Net Assets
Temporarily restricted net assets are available for the following purposes or periods at May 31, 2014 and
2013:
Purpose restrictions:
Construction or acquisition of land, buildings, and equipment $
Special-purpose gifts
Time restrictions:
Annuity contracts
Total temporarily restricted net assets
$
2014
2013
18,175,886
9,122,052
4,893,547
10,829,831
38,288
38,288
27,336,226
15,761,666
Permanently restricted net assets consist of the following at May 31, 2014 and 2013:
Endowments
$
2014
2013
21,644,297
20,917,148
(10) Net Assets Released From Restrictions
Net assets were released from donor restrictions by incurring expenses satisfying the restricted purposes or
by occurrence of other events specified by donors, as follows:
2014
2013
Purpose restrictions accomplished:
Construction or acquisition of land, buildings, and equipment $
Special purpose gifts
—
4,506,554
8,766,125
3,995,723
$
4,506,554
12,761,848
(11) Commitments and Contingencies
During the normal course of business, the University is engaged in various lawsuits as a defendant. In the
opinion of management, after giving consideration to the advice of legal counsel, the ultimate outcome of
these various lawsuits should not have a material impact on the University’s operations or financial
condition.
Certain federal and state funded financial aid programs are routinely subject to special audits. The reports
on the audits, which are conducted pursuant to specific regulatory requirements by the auditors for the
University, are required to be submitted to the University and the U.S. and Florida Departments of
Education. Such agencies have the authority to determine liabilities as well as to limit, suspend, or
terminate federal and state financial aid programs.
19
(Continued)
May 31, 2014 and 2013
Other federal and state programs are also subject to audit. Such audits could result in claims against the
resources of the University. No provision has been made for any liabilities, which may arise from such
audits since the amounts, if any, cannot be determined at this date. Management does not believe that the
disallowed costs from the results of such audits would be material to the consolidated financial statements.
(12) Fair Value Measurements
Fair value accounting guidance defines fair value as the exit price that would be received to sell an asset or
transfer a liability in the principal or most advantageous market in an orderly transaction between market
participants on the measurement date. Fair value guidance also establishes a fair value hierarchy that
requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs
when measuring fair value. Based on the inputs used to determine fair value, a three-level fair value
hierarchy is used as follows:
x
Level 1: Fair value is determined by using observable inputs such as quoted prices for identical
assets and liabilities in active markets obtained from independent sources.
x
Level 2: Fair value is determined by using other inputs that are observable directly or indirectly, such
as quoted prices for similar assets or liabilities in active markets, quoted prices for identical or
similar assets or liabilities in markets that are not active and inputs that are derived principally from
or corroborated by observable market data.
x
Level 3: Fair value is determined by using unobservable inputs for which there is little or no market
data and requires an entity to develop its own assumptions, based on the best information available
in the circumstances, about the considerations market participants would use in pricing the asset or
liability.
20
(Continued)
May 31, 2014 and 2013
The following table presents the University’s financial instruments that are measured at fair value on a
recurring and nonrecurring basis at May 31, 2014:
Level 1
inputs
Assets:
Recurring:
$
Investments:
Cash equivalents
Stocks
Mutual funds
Interest bearing deposits
Real estate
Hedge fund investments:
Lighthouse Diversified
Lighthouse Global Long/
Short
Timber funds
46,399,483
13,227,094
18,727,558
—
6,707,140
206,000
—
2014
Valued using
Level 2
inputs
—
—
4,999,995
11,096,799
—
—
—
Level 3
inputs
—
—
—
—
—
—
857,945
—
Total
46,399,483
13,227,094
23,727,553
11,096,799
6,707,140
206,000
857,945
—
1,898,827
1,898,827
—
—
2,524,440
—
—
2,254,156
2,524,440
2,254,156
Total investments
38,867,792
20,520,061
3,112,101
62,499,954
Total recurring
85,267,275
20,520,061
3,112,101
108,899,437
16,299,000
16,299,000
Nonrecurring:
Contributions receivable
—
Disclosure:
Student loans receivable
—
Total assets
$
85,267,275
Level 1
inputs
Liabilities:
Recurring:
$
Disclosure:
Total liabilities
$
—
—
2,126,863
22,646,924
2014
Valued using
Level 2
inputs
—
113,547,210
38,893,223
113,547,210
38,893,223
21
—
19,411,101
2,126,863
127,325,300
Level 3
inputs
Total
1,162,298
1,162,298
—
1,162,298
152,440,433
153,602,731
(Continued)
May 31, 2014 and 2013
The following table presents the University’s financial instruments that are measured at fair value on a
recurring and nonrecurring basis at May 31, 2013:
Level 1
inputs
Assets:
Recurring:
$
Investments:
Cash equivalents
Stocks
Mutual funds
Interest bearing deposits
Real estate
Lighthouse Diversified
Lighthouse Global Long/
Short
Timber funds
28,647,543
2013
Valued using
Level 2
inputs
Total
—
28,647,543
—
—
13,224,078
—
—
—
—
—
—
—
—
27,945
12,459,507
17,417,179
13,224,078
3,519,169
309,926
27,945
—
1,711,064
—
1,711,064
—
—
1,672,978
—
—
2,097,591
1,672,978
2,097,591
12,459,507
17,417,179
—
3,519,169
309,926
—
—
Level 3
inputs
Total investments
33,705,781
16,608,120
2,125,536
52,439,437
Total recurring
62,353,324
16,608,120
2,125,536
81,086,980
12,269,000
12,269,000
Nonrecurring:
Contributions receivable
—
Disclosure:
Student loans receivable
—
Total assets
$
62,353,324
Level 1
inputs
Liabilities:
Recurring:
$
Disclosure:
Total liabilities
$
—
—
2,001,566
18,609,686
2013
Valued using
Level 2
inputs
—
119,815,761
26,335,000
119,815,761
26,335,000
22
—
14,394,536
2,001,566
95,357,546
Level 3
inputs
Total
1,095,112
1,095,112
—
1,095,112
146,150,761
147,245,873
(Continued)
May 31, 2014 and 2013
The fair values of the financial instruments shown in the above tables as of May 31, 2014 and 2013
represent the estimated amounts that would be received to sell those assets or that would be paid to transfer
those liabilities in an orderly transaction between market participants at that date. Those fair value
measurements maximize the use of observable inputs. However, in situations where there is little, if any,
market activity for the asset or liability at the measurement date, the fair value measurement reflects the
University’s own judgments about the assumptions that market participants would use in pricing the asset
or liability. Those judgments are developed by the University based on the best information available in the
circumstances, including expected cash flows and appropriately risk-adjusted discount rates, available
observable and unobservable inputs.
The following methods and assumptions were used to estimate the fair value of each class of financial
instruments:
x
Cash and cash equivalents, investments, contributions receivable, student loans receivable, and
agency funds payable: The carrying amounts, at face value, approximate fair value because of the
relative terms and/or short maturity of these financial instruments. In addition, contributions
receivable to be realized after one year are recorded at the present value of the estimated future cash
flows discounted at an interest rate that reflects the risks inherent in those cash flows. Cash and cash
equivalents, investments, and agency funds payable are reflected in the accompanying consolidated
financial statements at fair value.
x
Bonds and loans payable: The fair value of the University’s Bond Series 2012A and Bond
Series 2006 is measured using quoted offer-side prices when quoted market prices are available. The
fair value of bank loans approximates the carrying value due to the variable interest rates in effect
and the current fixed rates for notes with similar maturities.
Level 1 assets include cash and cash equivalents and investments in publicly traded corporate equities,
mutual funds, and certificates of deposit. These assets are valued at quoted market prices.
Level 2 assets include investments in fixed income securities traded on the open market which are directly
or indirectly observable, corporate equities that are not publicly traded which are directly or indirectly
observable, and hedge funds which are valued based on net asset values reported to the University as a
practical expedient for fair value. The Level 2 corporate equities were a gift from a donor in May 2014 and
will be sold in fiscal year 2015. These corporate equities are not publically traded and the market price of
the equities is determined by the investees each quarter based on earnings.
Level 3 assets include investments in real estate and a timber fund. These assets are valued using
significant unobservable inputs. The University and other investors in the timber fund do not have a right
to redeem any portion of their investment prior to the scheduled fund dissolution in 2017. A withdrawal
from the timber fund requires a five-day written notice and the approval of the fund manager. A waivable
fee may be assessed on any redemption of the timber fund in an amount equal to 20% of the excess of the
member’s capital account balance over the member’s unreturned capital position at the time of redemption.
23
(Continued)
May 31, 2014 and 2013
The following table summarizes the activity for assets measured at fair value using Level 3 inputs for the
years ended May 31, 2014 and 2013:
Balance at May 31, 2012
Purchases
Settlements
Sales
Total gains (losses) (realized and
unrealized)
Transfers in and/or out of Level 3
Timber fund
Real estate
2,012,701
—
—
—
27,945
—
—
—
2,040,646
—
—
—
84,890
—
—
—
84,890
—
2,097,591
27,945
2,125,536
—
—
—
830,000
—
—
830,000
—
—
156,565
—
—
—
156,565
—
2,254,156
857,945
3,112,101
$
Purchases
Settlements
Sales
Total gains (losses) (realized and
unrealized)
Transfers in and/or out of Level 3
$
Total
The University’s accounting policy is to recognize transfers between levels of the fair value hierarchy on
the date of the event or change in circumstances that caused the transfer. There were no transfers between
Level 1, Level 2, or Level 3 during the years ended May 31, 2014 and 2013.
The fair values of the following investments have been estimated using the net asset value per share of the
investments as of May 31, 2014 and 2013. There are no unfunded commitments on any of these funds.
Lighthouse Diversified Fund
Limited (a)
$
Lighthouse Global Long/Short
Fund Limited (b)
Amsouth Opportunity Fund,
LLC (c)
Total
(a)
$
2014
Fair value
2013
Fair value
Redemption
frequency
Redemption
notice period
1,898,827
1,711,064
Monthly
90 days
2,524,440
1,672,978
Quarterly
60 days
2,254,156
2,097,591
N/A
5 days
6,677,423
5,481,633
The investment objective of the Lighthouse Diversified Fund is to seek consistent stable returns by
allocating the fund’s assets to sub-advisers who use a variety of different investment strategies and
invest across a wide range of financial instruments. The fund seeks to have a substantial
diversification of sub-advisers and investment strategies.
24
(Continued)
May 31, 2014 and 2013
(b)
The primary investment objective of the Lighthouse Global Long/Short Fund is to maximize capital
appreciation over the long term. The fund is a multi-manager fund that seeks to achieve its objective
by deploying its assets primarily among a select group of sub-advisers who invest principally in
global equity markets by employing an investing style known as “long/short.” This style combines
long investments with short sales in the pursuit of opportunities in rising or declining markets. The
investment manager seeks to combine long/short managers with the goal of generating capital
appreciation while attempting to limit risk through the use of a multi-strategy, multi-manager, and
diversified investment philosophy.
(c)
The fund was formed to invest in the equity of the underlying timber properties of Red Mountain
Timberlands LLC, an investment fund formed to acquire investment grade timberlands and/or
long-term timberland leaseholds in the southern United States.
Estimates of fair value are subjective in nature and involve uncertainties and matters of significant
judgment and, therefore, cannot be determined with precision. Changes in assumptions could affect the
estimates.
(13) Endowment
Relevant accounting literature provides guidance on the net asset classification of donor-restricted
endowment funds for a not-for-profit organization that are subject to an enacted version of the Uniform
Prudent Management of Institutional Funds Act of 2006 (UPMIFA) and additional disclosures about an
organization’s endowment funds. These disclosures shall enable users of consolidated financial statements
to understand the net asset classification, net asset composition, changes in net asset composition, spending
policy, and related investment policy of its endowment funds (both donor restricted and board designated).
On July 1, 2012, the State of Florida enacted UPMIFA. As a result, the University implemented all
requirements of UPMIFA, most notably the requirement that all donor-restricted endowment funds that are
not classified as permanently restricted net assets be classified as temporarily restricted net assets until
those amounts are appropriated for expenditure by the University in a manner consistent with the standard
of prudence prescribed in UPMIFA. This adoption resulted in a cumulative effect of a change in
accounting principal reclassification of $1,449,601 of unrestricted net assets at May 31, 2013.
Prior to July 1, 2012, the University followed the Uniform Management of Institutional Funds Act of 1972
(UMIFA) and its own governing documents. As of July 1, 2012, the University now follows UPMIFA. The
University’s management, in working with the Board, has determined that the University’s permanently
restricted net assets meet the definition of endowment funds under both UMIFA and UPMIFA.
The University’s endowments consist of approximately 173 individual funds established for a variety of
purposes. The endowments are classified and reported based on the existence or absence of donor-imposed
restrictions. The University classifies as permanently restricted net assets (a) the original value of gifts
donated to the permanent endowment, (b) the original value of subsequent gifts to the permanent
endowment, and (c) accumulations to the permanent endowment made in accordance with the direction of
the applicable donor gift instrument at the time the accumulation is added to the fund.
The remaining portion of the donor-restricted endowment funds that is not classified in permanently
restricted net assets is classified as temporarily restricted net assets.
25
(Continued)
May 31, 2014 and 2013
In accordance with UPMIFA, the University considers the following factors in making a determination to
appropriate or accumulate donor-restricted endowment funds:
1.
The purpose of the University
2.
The intent of the donors of endowment funds
3.
The terms of the applicable instrument
4.
The long-term and short-term needs of the University carrying out its purpose
5.
The general economic conditions
6.
The possible effects of inflation or deflation
7.
Other resources of the University
8.
The investment policies of the University
UMIFA required the historical dollar amount of a donor-restricted endowment fund to be preserved. In the
absence of donor restrictions, the net appreciation on a donor-restricted endowment fund was spendable
under UMIFA and considered available for unrestricted use. Among UPMIFA’s most significant changes
is the elimination of UMIFA’s important concept of historical dollar value threshold (the amount below
which an organization could not spend from the funds) in favor of a more robust set of guidelines about
what constitutes prudent spending. University donors may place purpose restrictions on the use of the
investment income or net appreciation resulting from the donor-restricted endowment funds. If the fair
value of assets associated with the individual donor restricted endowment funds falls below the level that
UPMIFA requires the University to retain as permanently restricted, these deficiencies are reported in
unrestricted net assets. These deficiencies can result from unfavorable market conditions and fluctuations.
There were no such deficiencies at May 31, 2014 or 2013.
The University has adopted investment policies for endowment assets that attempt to provide a predictable
stream of funding to programs supported by its endowment while seeking to maintain the purchasing
power of the endowment assets. In establishing the investment objectives, the Board has taken into account
the time horizon available for investment, the nature of cash flow requirements, the endowment’s role
within long-term financial plan and other factors that affect their risk tolerance. Spending policies for
endowment assets attempt to provide a predictable stream of funding to programs supported by its
endowment while seeking to maintain the purchasing power of the University’s endowment assets.
The endowment currently has a spending policy at a 3.5% annual rate calculated using a rolling 12-quarter
period.
26
(Continued)
May 31, 2014 and 2013
Changes in endowment funds for the years ended May 31, 2014 and 2013 consisted of the following:
2014
Endowment net assets May 31, 2013
$
Investment return:
Investment income
Net appreciation (realized and
unrealized)
Total investment return
Contributions
Appropriation of endowment assets
for expenditures
Endowment net assets, May 31, 2014
$
Unrestricted
Temporarily
restricted
Permanently
restricted
Total
5,359,620
4,171,548
20,917,148
30,448,316
232,477
971,895
64,750
1,269,122
598,032
2,047,734
32,223
2,677,989
830,509
3,019,629
96,973
3,947,111
—
—
630,176
630,176
(232,477)
(971,895)
—
(1,204,372)
5,957,652
6,219,282
21,644,297
33,821,231
Unrestricted
Temporarily
restricted
Permanently
restricted
Total
4,499,492
—
19,530,556
24,030,048
—
1,449,601
—
1,449,601
196,108
796,158
50,895
1,043,161
660,128
2,721,947
85,608
3,467,683
856,236
3,518,105
136,503
4,510,844
200,000
—
1,250,089
1,450,089
(196,108)
(796,158)
—
(992,266)
5,359,620
4,171,548
20,917,148
30,448,316
2013
Endowment net assets May 31, 2012
Net asset reclassification based on
law change
$
Investment return:
Investment income
Net appreciation (realized and
unrealized)
Total investment return
Contributions
Appropriation of endowment assets
for expenditures
Endowment net assets, May 31, 2013
$
(14) Related Parties
Contributions receivable include amounts pledged by various Board members. At May 31, 2014 and 2013,
net pledges outstanding from such Trustees approximated $9,166,000 and $11,968,000, respectively.
Approximately 93% and 77% of the 2014 and 2013 pledges outstanding amount, respectively, is due from
one Trustee.
27
(Continued)
May 31, 2014 and 2013
(15) Plant Museum
Within the organization and financial records of the University are amounts for the operation of the Henry
B. Plant Museum (the Museum). Under the terms of the lease with the City of Tampa (the City) for
Historic Plant Hall, a portion of one floor of the main academic and administrative building of the campus
is designated to serve as the home for the Museum. The management and staff employees of the Museum
are University employees, and the operation of the Museum is recorded within the University’s accounts.
The collection of the Museum is owned and recorded by the City. No value for the collection is recorded in
the University’s consolidated statements of financial position. The following represents the assets of the
Museum that are recorded in the University’s accompanying consolidated statements of financial position
at May 31, 2014 and 2013.
Cash
Investments
Receivables
Inventories
Other
2014
2013
$
461,075
592,005
—
55,361
10,678
435,892
378,722
212,791
63,915
9,996
$
1,119,119
1,101,316
(16) Campus Store Management Agreement
The University has an agreement with Barnes & Noble College Bookstore, Inc. to manage the Campus
Store. The agreement calls for a guaranteed payment or a percentage of gross sales to be paid to the
University at the end of each contract year. The initial term of the contract was modified in March 2010 to
7 years through February 28, 2017. The guaranteed payment for 2014 and 2013 was either $250,000 or the
combined total of 9.5% of gross sales up to $1,750,000 and 10.5% of sales over $1,750,000, whichever is
greater. Actual payments on the contract totaled $413,982 and $418,267 for the years ended May 31, 2014
and 2013, respectively.
(17) Subsequent Events
On June 27, 2014, the remaining balance of the unamortized advance rents payable under the master lease
agreement of the Vaughn Student Center (note 8) was paid off by the Board member who pledged to
contribute to the University the annual rents due on the sublease. The master lease agreement and sublease
agreement with the unrelated third party were both terminated effective June 27, 2014. The total amount
paid was $2,841,357. This fulfills the Board member’s unconditional pledge obligation.
The University reviewed and evaluated events from May 31, 2014 through August 22, 2014, the date the
consolidated financial statements were available for issuance, and concluded that no other subsequent
events have occurred that require recognition in the consolidated financial statements or disclosure in the
notes to the consolidated financial statements.
28
APPENDIX C
FORM OF BOND COUNSEL OPINION
APPENDIX C
FORM OF BOND COUNSEL OPINION
[Date of Delivery]
City of Tampa
Tampa, Florida
Re:
City of Tampa Revenue and Revenue Refunding Bonds (The University of
Tampa Project), Series 2015 (the "Series 2015 Bonds")
Ladies and Gentlemen:
We have acted as Bond Counsel to The University of Tampa, Incorporated (the
"Borrower") in connection with the issuance by the City of Tampa, Florida (the "Issuer") of the
above-referenced Series 2015 Bonds pursuant to and under the Constitution and laws of the
State of Florida, particularly Chapter 166, Florida Statutes, Chapter 159, Part II, Florida Statutes,
the Charter of the Issuer, the Issuer's home rule powers, Ordinance No. 2002-53 (the
"Ordinance"), enacted by the City Council of the Issuer (the "City Council") on February 21,
2002, and other applicable provisions of law (collectively, the "Act"), a resolution adopted by the
City Council on February 5, 2015, providing certain general authorizations regarding the
issuance and sale of the Series 2015 Bonds and a resolution adopted on March 5, 2015,
evidencing public approval of the Series 2015 Bonds and authorizing the issuance of the Series
2015 Bonds and awarding the sale thereof (collectively, the "Resolutions"), the Bond Trust
Indenture, dated as of April 1, 2015 (the "Bond Indenture") between the Issuer and Regions
Bank, as bond trustee (the "Bond Trustee"); the Master Trust Indenture dated as of April 1, 2012
(the "Original Master Indenture"), between the Borrower and Regions Bank, as master trustee
(the "Master Trustee"); the Supplemental Indenture for Obligation No. 6 dated as of April 1,
2015, between the Borrower and the Master Trustee (the "Supplemental Indenture No. 6") (the
Original Master Indenture and Supplemental Indenture No. 6, collectively, the "Master
Indenture"), the Loan Agreement dated as of April 1, 2015, between the Issuer and the Borrower
(the "Agreement") and such other documents and instruments and proceedings of the Issuer as
we have deemed relevant in connection with the issuance and sale of the Series 2015 Bonds
consisting of book-entry fully registered bonds, dated April 1, 2015. All terms used herein in
capitalized form shall have the same meanings as ascribed to those terms in the Resolution, the
Agreement, the Master Indenture and the Bond Indenture, as applicable.
As to questions of fact material to our opinion, we have examined and relied upon
representations of the Issuer contained in the Bond Indenture and the Borrower contained in the
Agreement and in the certified proceedings and other certifications of public officials and others
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[Date of Delivery]
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furnished to us, without undertaking to verify the same by independent investigation. We have
not undertaken an independent audit, examination, investigation or inspection of such matters
and have relied solely on the facts, estimates and circumstances described in such proceedings
and certifications. We have assumed the genuineness of signatures on all documents and
instruments, the authenticity of documents submitted as originals and the conformity to
originals of documents submitted as copies. We have made no examination of the title to the
Property or the Project or any other property of the Borrower, or any part thereof.
In rendering this opinion, we have examined and relied upon the opinion of even date
herewith of the Office of the City Attorney, Tampa, Florida, counsel to the Issuer, with respect
to various matters concerning the Issuer, including with respect to: (i) the status of the Issuer,
(ii) the due adoption of the Resolution, (iii) the due enactment of the Ordinance, (iv) the due
execution and delivery of the Issuer Documents (as defined therein), and (v) the compliance by
the Issuer with all conditions contained in the ordinances and resolutions of the Issuer
precedent to the issuance of the Series 2015 Bonds.
In rendering this opinion, we have also examined and relied upon the opinion of even
date herewith of Holland & Knight LLP, counsel to Borrower, with respect to various matters
concerning the Borrower, including with respect to: (i) the status of the Borrower as an
organization exempt from federal income tax under Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended (the "Code"), exempt from federal income tax under Section 501(a) of
the Code, and not a private foundation within the meaning of Section 509(a) of the Code, (ii) the
qualification to do business of the Borrower, (iii) the power of the Borrower to enter into and
perform the Borrower Documents (as therein defined), (iv) the authorization, execution and
delivery of the Borrower Documents by the Borrower, and (v) the Borrower Documents being
binding upon and enforceable against the Borrower.
Pursuant to the Bond Indenture, the Series 2015 Bonds are payable as to principal,
premium and interest solely from, and are secured by, payments to be made by the Obligated
Group under the Agreement and Obligation No. 6 issued pursuant to the Master Indenture,
which payments are to be made from and are secured by certain Pledged Revenues derived by
the Obligated Group from their operations and certain moneys held by the Trustee under the
Bond Indenture, all as more fully described in the Agreement, Indenture and the Master
Indenture.
The Series 2015 Bonds are payable from and secured by a pledge of the Pledged
Revenues on parity and equal status with the Higher Educational Facilities Financing Authority
Revenue and Revenue Refunding Bonds (The University of Tampa Project), Series 2012A (the
"Series 2012A Bonds"), the Higher Educational Facilities Financing Authority Revenue
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Refunding Bond (The University of Tampa Project), Series 2012B (the "Series 2012B Bond") and
the Higher Educational Facilities Financing Authority Revenue Bond (The University of Tampa
Project), Series 2012C (the "Series 2012C Bond," collectively with the Series 2012A Bonds and the
Series 2012B Bond, the "Outstanding Parity Bonds"). With respect to each of the Outstanding
Parity Bonds, the Borrower has issued an Obligation under the Master Indenture evidencing its
obligation to repay amounts due with respect to such Outstanding Parity Bonds. Pursuant to
the terms, conditions and limitations contained in the Master Indenture, the Borrower has
reserved the right to issue Obligations in the future which shall have a lien on the Pledged
Revenues equal to that of the Series 2015 Bonds and the Outstanding Parity Bonds.
The Series 2015 Bonds and the obligation evidenced thereby do not constitute a general
debt, liability, or obligation of the Issuer, the State of Florida or any political subdivision
thereof. The Issuer is not obligated to pay the Series 2015 Bonds or any interest or premium
thereon except from amounts payable to it under the Agreement and Obligation No. 6 or from
other collateral pledged therefor, if any, and neither the faith and credit nor the taxing power of
the Issuer, the State of Florida or of any political subdivision thereof is pledged, directly or
indirectly, to the payment of the principal of, premium, if any, or the interest on the Series 2015
Bonds.
The opinions set forth below are expressly limited to, and we opine only with respect to,
the laws of the State of Florida and the federal income tax laws of the United States of America.
Based on our examination, we are of the opinion, that, under existing law:
1.
The Bond Indenture and the Agreement constitute valid and binding obligations
of the Issuer enforceable against the Issuer in accordance with their terms. All rights of the
Issuer under the Agreement (except the Unassigned Rights) have been validly assigned to the
Trustee under the Bond Indenture.
2.
The Series 2015 Bonds are legal, valid and binding limited obligations of the
Issuer, payable solely from the payments received by the Issuer pursuant to the Agreement
(except for Unassigned Rights and except to the extent paid out of moneys attributable to Series
2015 Bond proceeds or the income from the temporary investment thereof and, under certain
circumstances, proceeds from insurance and condemnation awards) in the manner and to the
extent provided in the Bond Indenture.
3.
The Bond Indenture creates a valid lien upon the Trust Estate for the security of
the Series 2015 Bonds, all in the manner and to the extent provided in the Bond Indenture.
C-3
[Date of Delivery]
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4.
Interest on the Series 2015 Bonds is excludable from gross income for federal
income tax purposes and is not an item of tax preference for purposes of the federal alternative
minimum tax imposed on individuals and corporations. However, interest on the Series 2015
Bonds will be taken into account in determining adjusted current earnings for purposes of
computing the alternative minimum tax on corporations. The opinions set forth in the
preceding two sentences are subject to the condition that the Issuer and the Borrower comply
with all requirements of the Code that must be satisfied subsequent to the issuance of the Series
2015 Bonds in order that the interest thereon be, and continue to be, excludable from gross
income for federal income tax purposes. The Issuer has covenanted in the Bond Indenture and
the Borrower has covenanted in the Agreement to comply with all such requirements. Failure
to comply with certain of such requirements may cause interest on the Series 2015 Bonds to be
included in gross income for federal income tax purposes retroactively to the date of issuance of
the Series 2015 Bonds.
It is to be understood that the rights of the owners of the Series 2015 Bonds and the
enforceability thereof may be subject to the exercise of judicial discretion in accordance with
general principles of equity, to the valid exercise of the sovereign police powers of the State of
Florida and of the constitutional powers of the United States of America and to bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors' rights
heretofore or hereafter enacted.
For purposes of this opinion, we have not been engaged or undertaken to review and,
therefore, express no opinion herein regarding the accuracy, completeness or adequacy of the
Official Statement or any other offering material relating to the Series 2015 Bonds. This opinion
should not be construed as offering material, an offering circular, prospectus or official
statement and is not intended in any way to be a disclosure statement used in connection with
the sale or delivery of the Series 2015 Bonds. Furthermore, we are not passing on the accuracy
or sufficiency of any CUSIP numbers appearing on the Series 2015 Bonds or regarding the
perfection or priority of the lien, except as described in paragraph 3 above. In addition, we have
not been engaged to and, therefore, express no opinion as to compliance by the Issuer or the
underwriter or underwriters with any federal or state statute, regulation or ruling with respect
to the sale and distribution of the Series 2015 Bonds. Further, we express no opinion regarding
federal income tax consequences arising with respect to the Series 2015 Bonds other than as
expressly set forth herein.
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Our opinions expressed herein are predicated upon present law, facts and
circumstances, and we assume no affirmative obligation to update the opinions expressed
herein if such laws, facts or circumstances change after the date hereof.
Respectfully submitted,
BRYANT MILLER OLIVE P.A.
C-5
APPENDIX D
FORM OF LOAN AGREEMENT
LOAN AGREEMENT
BETWEEN
CITY OF TAMPA, FLORIDA,
AS ISSUER
and
THE UNIVERSITY OF TAMPA, INCORPORATED,
AS BORROWER
Securing the
(The University of Tampa Project), Series 2015
DATED AS OF APRIL 1, 2015
Certain rights of the City of Tampa, Florida hereunder have been assigned to Regions Bank, as
Bond Trustee under a Bond Trust Indenture dated as of April 1, 2015.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ...................................................................................................................... 2
SECTION 1.1.
SECTION 1.2.
INCORPORATION OF DEFINITIONS. ..................................................... 2
CERTAIN RULES OF INTERPRETATION. .............................................. 3
ARTICLE II. REPRESENTATIONS ........................................................................................................ 3
SECTION 2.1.
SECTION 2.2.
REPRESENTATIONS BY THE ISSUER. ..................................................... 3
REPRESENTATIONS AND WARRANTIES BY THE
BORROWER. .................................................................................................. 3
ARTICLE III. ISSUANCE OF BONDS OF THE ISSUER ..................................................................... 6
SECTION 3.1.
SECTION 3.2.
SECTION 3.3.
SECTION 3.4.
AGREEMENT TO ISSUE SERIES 2015 BONDS; PROCEEDS OF
SERIES 2015 BONDS. .................................................................................... 6
MAKING OF THE LOAN. ........................................................................... 6
PAYMENT OF SERIES 2015 BONDS.......................................................... 6
PLEDGE OF THIS LOAN AGREEMENT AND OBLIGATION
NO. 6. ............................................................................................................... 6
ARTICLE IV. OBLIGATION PAYMENTS, FUND DEPOSITS, PREPAYMENTS AND
OTHER PAYMENTS .................................................................................................................... 7
SECTION 4.1.
SECTION 4.2.
SECTION 4.3.
SECTION 4.4.
SECTION 4.5.
SECTION 4.6.
SECTION 4.7.
SECTION 4.8.
SECTION 4.9.
SECTION 4.10.
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST. ...................................................................................................... 7
PAYMENTS WITH RESPECT TO OBLIGATION NO. 6, THE
SERIES 2015 BONDS AND LOAN AGREEMENT. .................................. 7
CREDITS ON OBLIGATION NO. 6............................................................ 8
PREPAYMENT GENERALLY. .................................................................... 8
NOTICE OF PREPAYMENT. ....................................................................... 9
EFFECT OF PARTIAL PREPAYMENT. ..................................................... 9
AMORTIZATION SCHEDULES. ................................................................ 9
ADDITIONAL PAYMENTS. ....................................................................... 9
NO DEBT SERVICE RESERVE FUND. .................................................... 10
BORROWER'S OBLIGATIONS UNCONDITIONAL. ........................... 10
ARTICLE V. COVENANTS OF THE BORROWER ........................................................................... 10
SECTION 5.1.
SECTION 5.2.
SECTION 5.3.
SECTION 5.4.
SECTION 5.5.
SECTION 5.6.
MAINTENANCE OF THE PROJECT. ...................................................... 10
INSPECTION OF PROPERTY, PLANT AND EQUIPMENT. ............... 11
COMPLIANCE WITH ORDERS AND ORDINANCES......................... 11
SUFFICIENT REVENUES. ......................................................................... 11
ISSUER'S RIGHT TO PERFORM THE BORROWER'S
COVENANTS............................................................................................... 11
INDEMNITY. ............................................................................................... 12
i
SECTION 5.7.
SECTION 5.8.
SECTION 5.9.
SECTION 5.10.
SECTION 5.11.
SECTION 5.12.
SECTION 5.13.
SECTION 5.14.
SECTION 5.15.
NOTICE OF DEFAULT. ............................................................................. 14
MAINTENANCE OF TAX STATUS. ........................................................ 14
MAINTENANCE OF EXISTENCE. .......................................................... 14
FINANCIAL INFORMATION AND REPORTS. .................................... 14
TAX-EXEMPT SERIES 2015 BONDS. ....................................................... 14
INVESTMENTS AND ARBITRAGE. ........................................................ 14
RIGHT TO DOCUMENTS.......................................................................... 15
NOTICE OF INTERNAL REVENUE SERVICE AUDITS. ..................... 15
DISPOSITION OF PROJECT FUND AND EXPENSE FUND
MONEYS. ...................................................................................................... 15
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES THEREFOR ........................................... 15
SECTION 6.1.
SECTION 6.2.
SECTION 6.3.
SECTION 6.4.
SECTION 6.5.
SECTION 6.6.
EVENTS OF DEFAULT AND REMEDIES............................................... 15
APPLICATION OF PROCEEDS OF REMEDIES. ................................... 16
REMEDIES CUMULATIVE. ...................................................................... 17
DELAY OR OMISSION NOT A WAIVER. .............................................. 17
WAIVER OF EXTENSION AND STAYS. ................................................ 17
REMEDIES SUBJECT TO PROVISIONS OF LAW. ................................ 18
ARTICLE VII. SUPPLEMENTS AND AMENDMENTS TO THIS LOAN AGREEMENT ........... 18
SECTION 7.1.
SUPPLEMENTS AND AMENDMENTS TO THIS LOAN
AGREEMENT. ............................................................................................. 18
ARTICLE VIII. DEFEASANCE ............................................................................................................. 18
SECTION 8.1.
DEFEASANCE. ............................................................................................ 18
ARTICLE IX. MISCELLANEOUS PROVISIONS ............................................................................... 19
SECTION 9.1
SECTION 9.2.
SECTION 9.3.
SECTION 9.4.
SECTION 9.5.
SECTION 9.6.
SECTION 9.7.
SECTION 9.8.
SECTION 9.9.
LOAN AGREEMENT FOR BENEFIT OF PARTIES HERETO. ............. 19
SEVERABILITY. ........................................................................................... 19
NOTICES. ..................................................................................................... 19
SUCCESSORS AND ASSIGNS. ................................................................. 19
COUNTERPARTS. ...................................................................................... 19
GOVERNING LAW. ................................................................................... 19
IMMUNITY. ................................................................................................. 19
OBLIGATIONS DUE ON SATURDAYS, SUNDAYS OR
HOLIDAYS. .................................................................................................. 20
LIMITATION ON INTEREST. ................................................................... 20
SCHEDULE A – LOAN REPAYMENT SCHEDULE
ii
LOAN AGREEMENT
This LOAN AGREEMENT dated as of April 1, 2015 (the "Loan Agreement"), between
the CITY OF TAMPA, FLORIDA, a municipal corporation organized and existing under the
Constitution and laws of the State of Florida (the "Issuer"), and THE UNIVERSITY OF
TAMPA, INCORPORATED, a Florida not-for-profit corporation (the "Borrower").
PRELIMINARY STATEMENT
Reference is hereby made to Master Trust Indenture (Security Agreement) dated as of
April 1, 2012, between the Borrower, as Initial Obligated Group Member (as defined therein)
and Regions Bank, as master trustee (the "Master Trustee"), as supplemented from time-to-time
(collectively, the "Master Indenture"), and particularly as supplemented by a Supplemental
Indenture for Obligation No. 6 dated as of April 1, 2015 between the Obligated Group
Representative (as defined in the Master Indenture) and the Master Trustee (the "2015
Supplement") and to the Bond Indenture (hereinafter referred to) for definitions of various
terms used herein.
The Borrower desires to obtain a portion of the moneys which will be used, together
with other available money of the Borrower, to: (i) finance and refinance the acquisition,
construction, equipping and installation of student housing facilities (the "New Dormitory") and
the construction, equipping and installation of a mixed use facility, including additions and
improvements to an existing parking garage, offices, classrooms and other facilities (the "Mixed
Use Facility" and together with the New Dormitory, the "2015 Project"), each located or to be
located on the Borrower's campus that is located within the corporate limits of the City of
Tampa, Florida; (ii) advance refund all of the outstanding City of Tampa, Florida Revenue
Bonds (University of Tampa Project), Series 2006, maturing on and after April 1, 2016 (the
"Refunded Bonds"), the proceeds of which were used to finance the construction, equipping and
furnishing of a 7-story, approximately 448-bed dormitory residence owned by the Borrower (the
"2006 Dormitory") and the second phase of a parking structure to provide approximately 700
additional parking spaces (the "2006 Parking Garage," together with the 2006 Dormitory, the
"2006 Project"); (iii) refinance a bank loan, the proceeds of which were used to finance a portion
of the initial costs of the Mixed Use Facility (the "2013 Project," together with the 2015 Project
and the 2006 Project, the "Project"); and (iv) pay certain bond issuance costs.
Pursuant to the Act, the Issuer is obtaining funds to loan to the Borrower for the
purposes aforesaid through the issuance and sale of its City of Tampa, Florida Revenue and
Revenue Refunding Bonds (The University of Tampa Project), Series 2015 in the aggregate
principal amount of $76,690,000 (the "Series 2015 Bonds"), which will be issued under and
secured by a Bond Trust Indenture dated as of April 1, 2015 (the "Bond Indenture") between the
Issuer and Regions Bank, as bond trustee (the "Bond Trustee"). Pursuant to the Bond Indenture,
the Issuer will pledge and assign certain of its rights under this Loan Agreement as part of the
security for the Series 2015 Bonds. The Series 2015 Bonds will be payable out of the payments to
be made by the Borrower on Obligation No. 6 hereinafter referred to and other payments
provided for in this Loan Agreement.
In order to provide security for the repayment of the Series 2015 Bonds, the Borrower is
concurrently with the delivery hereof issuing to the Issuer its The University of Tampa Obligation No. 6 (2015 Financing) ("Obligation No. 6") dated April 23, 2015 in the principal
amount of $76,690,000. The principal amount of Obligation No. 6 is equal to the principal
amount of the loan being made hereunder by the Issuer to the Borrower. Obligation No. 6 is on
parity with certain other obligations issued or to be issued pursuant to the Master Indenture as
described therein.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants, conditions
and agreements set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the Borrower and the Issuer hereby
covenant and agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1.
INCORPORATION OF DEFINITIONS. The terms used in this
Loan Agreement, unless the context requires otherwise, shall have the same meanings as set
forth in Section 1.1 of the Master Indenture or Article I of the Bond Indenture. In the event of a
conflict, the meanings in the Bond Indenture shall control, unless the context requires
otherwise. All accounting terms not otherwise defined in the Master Indenture or the Bond
Indenture or herein shall have the meanings assigned to them in accordance with Generally
Accepted Accounting Principles. Notwithstanding anything to the contrary herein, in the Bond
Indenture or in the Master Indenture, where the character or amount of any asset or liability or
item of income or expense is required to be determined, or any accounting computation is
required to be made, such determination or calculation shall, to the extent applicable, be made
in accordance with Generally Accepted Accounting Principles in existence as of the date hereof,
consistently applied, unless the Borrower shall have elected (with the concurrence of its
independent public accountant and upon prior written notification to the Bond Trustee and the
Master Trustee) to adopt subsequently promulgated Generally Accepted Accounting Principles
with respect to such determination or computation. In connection with any calculations
hereunder, under the Bond Indenture, the Series 2015 Bonds or the Borrower's Documents
using Generally Accepted Accounting Principles existing on the date hereof which differs from
Generally Accepted Accounting Principles as subsequently promulgated, the Borrower shall
provide a reconciliation, certified by the Vice President of Administration and Finance of the
Borrower, evidencing to the Bond Trustee, the Master Trustee and any recipient of such
calculations any differences between such calculations and the information contained in the
audited financial statements of the Borrower based upon the differences in the Generally
Accepted Accounting Principles being applied from the Generally Accepted Accounting
Principles in effect on the date of such calculation.
2
SECTION 1.2.
CERTAIN RULES OF INTERPRETATION. All references in this
instrument to designated "Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this instrument as originally executed. The words
"herein," "hereof" and "hereunder" and other words of similar import refer to this Loan
Agreement as a whole and not to any particular Article, Section or other subdivision unless the
context indicates otherwise.
Except where the context or use otherwise requires, words importing the singular
number shall include the plural number and vice versa, and the masculine, the feminine and the
neuter shall include all genders.
Reference to an Article number or a Section number shall be construed to be a reference
to the designated Article number or Section number of this Loan Agreement unless the context
or use clearly indicates another or different meaning or intent.
ARTICLE II.
REPRESENTATIONS
SECTION 2.1.
REPRESENTATIONS BY THE ISSUER. The Issuer represents
and warrants for the benefit of the Borrower, the Bond Trustee and the owners of the Series
2015 Bonds as follows:
(a)
it is a municipal corporation organized and existing under the Constitution and
laws of the State and will do or cause to be done all things within its power necessary to
preserve its existence during the term of the Series 2015 Bonds;
(b)
the Issuer has duly authorized the issuance, execution, delivery and performance
of this Loan Agreement, the Bond Indenture and the other documents to which it is a party
associated with the issuance of the Series 2015 Bonds;
(c)
the Issuer has not pledged or assigned and will not pledge or assign its interest in
the Loan Agreement, Obligation No. 6 or any of the other documents associated with the
issuance of the Series 2015 Bonds other than to secure the Series 2015 Bonds from time to time
Outstanding as provided in the Bond Indenture; and
(d)
each of the Issuer's representations, warranties and certifications contained in
this Loan Agreement, the Tax Regulatory Agreement and the Purchase Contract is true and
correct in all material respects.
SECTION 2.2.
REPRESENTATIONS
AND
WARRANTIES
BY
THE
BORROWER. The Borrower makes the following representations and warranties as the basis
for its covenants herein:
3
(a)
each of its representations, warranties and certifications contained in this Loan
Agreement, the Tax Regulatory Agreement, the Purchase Contract and the Borrower's Closing
Certificate is true and correct in all material respects;
(b)
it owns or will own all of the Project, and it will own the Project throughout the
term of this Agreement subject to the applicable provisions of the Master Indenture and it
intends to use such projects as educational facilities and no Person other than the Borrower
currently owns or will own or use any portion of the Project;
(c)
it is duly authorized under the laws of the State and all other applicable
provisions of law and its articles of incorporation and by-laws to create and issue Obligation
No. 6 and to deliver this Loan Agreement and each of the other documents executed by the
Borrower relating to the Series 2015 Bonds, that all action on its part necessary for the valid
creation and issuance of Obligation No. 6 and the valid execution and delivery of this Loan
Agreement and each of the other documents or instruments to which the Borrower is a party
related to the issuance of the Series 2015 Bonds (collectively the "Borrower's Documents") has
been duly and effectively taken, and Obligation No. 6 in the hands of its holder is the legal and
valid obligation of the Borrower;
(d)
except as provided in (e) below, it has all material licenses and permits from all
State, local and other governmental and regulatory agencies having jurisdiction required for the
operation of the Borrower's facilities;
(e)
it has obtained all licenses and permits from all State, local and other
governmental and regulatory agencies having jurisdiction required for the occupancy and
operation of the Project, which are currently obtainable and the Borrower is not aware of any
facts or circumstances which lead it to believe that all licenses and permits from all State, local
and other governmental and regulatory agencies having jurisdiction required for the occupancy
and operation of the Project which are not currently available will not be issued in due course;
(f)
it has received and reviewed the Bond Indenture and understands and agrees to
the terms and conditions thereof;
(g)
no event has occurred and no condition exists that, upon execution of this Loan
Agreement, would constitute a Default hereunder or under the Master Indenture by the
Borrower;
(h)
the Borrower is an accredited, nonprofit educational institution empowered to
provide a program of education beyond the high school level within the meaning of Section
243.20, Florida Statutes, is duly incorporated and in good standing under the laws of the State of
Florida, has power to enter into this Loan Agreement, the Master Indenture, the Tax Regulatory
Agreement, the Continuing Disclosure Agreement and Obligation No. 6, and by proper
corporate action has duly authorized the execution and delivery of this Loan Agreement, the
4
Master Indenture, the Tax Regulatory Agreement, the Continuing Disclosure Agreement and
Obligation No. 6;
(i)
neither the execution and delivery of this Loan Agreement, the Master Indenture,
the Tax Compliance Agreement, the Continuing Disclosure Agreement and Obligation No. 6,
the consummation of the transactions contemplated hereby and thereby, nor the fulfillment of
or compliance with the terms and conditions of this Loan Agreement, the Master Indenture, Tax
Compliance Agreement, the Continuing Disclosure Agreement or Obligation No. 6, conflict
with or result in a breach of any of the terms, conditions or provisions of any corporate
restriction or any agreement or instrument to which the Borrower is now a party or by which it
is bound or constitute a default under any of the foregoing;
(j)
to the best of its knowledge, no event of default or any event which, with the
giving of notice or the lapse of time, or both, would constitute an event of default under the
Master Indenture, has occurred;
(k)
the Project promotes and enhances the public purposes set forth in the Act and
will benefit the economy of the Issuer;
(l)
the New Dormitory and the 2006 Dormitory each constitute "educational
facilities" within the meaning of Section 159.27, Florida Statutes; and
(m)
the New Parking Garage, the Mixed Use Facility, the 2006 Parking Garage and
the 2013 Project are each incidental, necessary or convenient for the New Dormitory, the 2006
Dormitory and certain other "educational facilities" on the Borrower's campus within the
meaning of Chapter 159.27, Florida Statues;
(n)
the costs to be paid from the proceeds of the Series 2015 Bonds will be authorized
expenditures pursuant to the Act;
(o)
the Project presently constitutes and until the expiration of the term of this Loan
Agreement will constitute a "project" within the meaning of the Act, and all proceeds of the
Series 2015 Bonds will be used to pay "costs" within the meaning of the Act;
(p)
the Borrower operates or intends to operate the Project in a manner such that the
Project constitute capital projects permitted to be financed or refinanced with the proceeds of
the Series 2015 Bonds pursuant to the Act, or cause the Project to be so operated until the Series
2015 Bonds are fully paid;
(q)
each of the Borrower Documents and the other documents contemplated thereby
to which the Borrower is a party (assuming due authorization, execution and delivery by the
other parties thereto) constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms;
5
(r)
the Series 2015 Bonds will constitute, upon their issuance, "Related Bonds" under
the Master Indenture;
(s)
as of the date of this Loan Agreement, the Borrower is a not-for-profit
corporation and an organization described in Section 501(c)(3) of the Code; the Borrower is in
compliance with all terms, conditions and limitations, if any, contained in any letter or ruling
issued in conjunction with the grant of its tax-exempt status; the facts and circumstances that
form the basis of such letter or ruling as represented to the Internal Revenue Service continue
substantially to exist; and the Borrower, so long as the Series 2015 Bonds are outstanding, will
continue to be exempt from federal income taxes under Section 501(a) and Section 501(c)(3) of
the Code; and
(t)
each of the representations and warranties of the Borrower contained in each
other Borrower's Document is true and correct.
ARTICLE III.
ISSUANCE OF BONDS OF THE ISSUER
SECTION 3.1.
AGREEMENT TO ISSUE SERIES 2015 BONDS; PROCEEDS OF
SERIES 2015 BONDS. In order to provide funds to make the loan to the Borrower hereunder,
the Issuer agrees to issue and sell the Series 2015 Bonds pursuant to the Purchase Contract. The
Borrower agrees that the proceeds of the Series 2015 Bonds being loaned to the Borrower
pursuant to this Loan Agreement shall be deposited with the Bond Trustee and applied as
provided in the Bond Indenture.
SECTION 3.2.
MAKING OF THE LOAN. The Issuer hereby loans $76,690,000 to
the Borrower, and the Borrower accepts the loan from the Issuer on the terms and conditions
provided in this Loan Agreement. The proceeds of such loan will be disbursed to the Borrower
as provided in this Loan Agreement and the Bond Indenture.
SECTION 3.3.
PAYMENT OF SERIES 2015 BONDS. The Borrower agrees that
the principal of and the interest and redemption premium, if any, on the Series 2015 Bonds shall
be payable in accordance with the provisions of the Bond Indenture and Schedule A to this
Loan Agreement and that this Loan Agreement and payments to be made hereunder (excluding
Unassigned Rights) and Obligation No. 6 shall be assigned and pledged to the Bond Trustee to
secure the payment of the Series 2015 Bonds. The foregoing notwithstanding, the Borrower
agrees that the moneys and securities, if any, on deposit in the Rebate Fund created by the Tax
Regulatory Agreement are not part of the "trust estate" and are not available to make payments
of principal of, premium, if any, and interest on the Series 2015 Bonds.
SECTION 3.4.
PLEDGE OF THIS LOAN AGREEMENT AND OBLIGATION
NO. 6. Except for Unassigned Rights, all of the Issuer's right, title and interest in this Loan
6
Agreement and Obligation No. 6 (including the right to receive the payments to be made by the
Borrower pursuant to Obligation No. 6 and this Loan Agreement) have been assigned to the
Bond Trustee pursuant to the Bond Indenture. The Borrower consents to that assignment and
agrees that the Bond Trustee may enforce any of the rights, privileges and remedies of the
Issuer under this Loan Agreement and Obligation No. 6, other than the Unassigned Rights. In
the event the Issuer ceases operations, the Issuer's right to execute and deliver amendments to
this Loan Agreement or the Bond Indenture and to receive notices and other documents and to
provide its consent, acceptance or approval with respect to matters as to which that right is
given in this Loan Agreement or the Bond Indenture may be exercised and enforced by the
Bond Trustee.
ARTICLE IV.
OBLIGATION PAYMENTS, FUND DEPOSITS,
PREPAYMENTS AND OTHER PAYMENTS
SECTION 4.1.
INTEREST. The Borrower will duly and punctually pay the principal of, premium, if any, and
interest on Obligation No. 6 at the dates and the places and in the manner mentioned in
Obligation No. 6 and Schedule A to this Loan Agreement, according to the true intent and
meaning thereof and hereof. Notwithstanding any schedule of payments set forth herein or in
Obligation No. 6, the Borrower agrees to make payments upon Obligation No. 6 and be liable
therefor at the times and in the amounts (including principal, interest and premium, if any)
equal to the principal of, premium, if any, and interest on the Series 2015 Bonds from time to
time outstanding, whether as regularly scheduled interest or principal payments, at maturity,
by mandatory or optional redemption, acceleration or otherwise; provided, however, that the
Borrower may be entitled to certain credits on such payments as permitted by Section 4.3
hereof.
SECTION 4.2.
PAYMENTS WITH RESPECT TO OBLIGATION NO. 6, THE
SERIES 2015 BONDS AND LOAN AGREEMENT. The Borrower covenants and agrees to
make the following deposits to provide for payments and prepayments upon Obligation No. 6
or under this Loan Agreement, as the case may be, directly to the Bond Trustee for deposit into
the appropriate Fund established by the Bond Indenture, on the following dates:
(a)
Interest. On or before the tenth (10th) day preceding each October 1 and April 1,
beginning October 1, 2015, an amount not less than the interest to become due on such Series
2015 Bond on the next succeeding October 1 or April 1; provided, however, that the Borrower
may be entitled to certain credits on such payments as permitted under Section 4.3 hereof.
(b)
Principal. On or before the tenth (10th) day next preceding each Principal
Payment Date as set forth on Schedule A hereto, including each mandatory Bond Sinking Fund
redemption date established pursuant to Section 5.1 of the Bond Indenture, an amount equal to
the amount of principal to become due on each Bond on such date by maturity or mandatory
7
Bond Sinking Fund redemption; provided, however, that the Borrower may be entitled to
certain credits on such payments as permitted under Section 4.3 hereof.
SECTION 4.3.
CREDITS ON OBLIGATION NO. 6. Notwithstanding any
provision contained in this Loan Agreement or in the Bond Indenture to the contrary, in
addition to any credits on Obligation No. 6 resulting from the payment or prepayment thereof
from other sources:
(a)
Interest. Any moneys deposited by the Bond Trustee from funds provided by
the Borrower pursuant to Obligation No. 6 or otherwise in the Interest Fund with respect to
such Series 2015 Bonds then outstanding shall be credited against the obligation of the Borrower
under Section 4.2(a) hereof to pay interest on Obligation No. 6 with respect to such Series 2015
Bonds as the same becomes due.
(b)
Principal. Any moneys on deposit from funds provided by the Borrower
pursuant to Obligation No. 6 or otherwise in the Bond Sinking Fund shall be credited against
the obligation of the Borrower under Section 4.2(b) hereof to pay the principal of Obligation No.
6 as it becomes due in order to provide for the payment of principal on the Series 2015 Bonds as
the same becomes due.
(c)
Purchase of Series 2015 Bonds. The principal amount of Series 2015 Bonds of any
maturity purchased by the Borrower and delivered to the Bond Trustee, or purchased by the
Bond Trustee on behalf of the Borrower and canceled, shall be credited against the obligation of
the Borrower to pay the principal of Obligation No. 6 in such order as the Borrower shall elect
prior to such purchase or if no such election is made prior to such purchase, in the inverse order
thereof.
SECTION 4.4.
PREPAYMENT GENERALLY. No prepayment of Obligation No.
6 may be made except to the extent and in the manner expressly permitted with respect to the
Series 2015 Bonds by the Bond Indenture. In addition, if such prepayment is made in
compliance with the terms of the Bond Indenture, the Issuer agrees to accept prepayment of
Obligation No. 6 to the extent required to provide for a permitted prepayment of the Series 2015
Bonds. No other prepayment of Obligation No. 6 shall be permitted. Such prepayments shall
be made by paying to the Bond Trustee an amount sufficient to redeem (when redeemable) all
or a part of the Series 2015 Bonds, as the case may be, at the redemption prices specified
therefor in the Bond Indenture. Any prepayment pursuant to this Section shall include accrued
interest and premium, if any, required for redemption of such Series 2015 Bonds as shall be
redeemed by such prepayment. Notwithstanding the prepayment of a portion of Obligation No.
6 pursuant to this Section, the Borrower is obligated to make the mandatory principal payments
upon Obligation No. 6 pursuant to Section 4.2(b) hereof to the extent any portion of the Series
2015 Bonds remains outstanding and is subject to mandatory Bond Sinking Fund redemption.
8
SECTION 4.5.
NOTICE OF PREPAYMENT.
(a)
The Borrower shall provide the Bond Trustee with a copy to the Issuer, with a
Written Request of any optional prepayment of Obligation No. 6 and optional redemption of
the Series 2015 Bonds not less than sixty (60) days (or such shorter time as may be agreed to by
the Bond Trustee) prior to the prepayment date in accordance with Section 5.4 of the Bond
Indenture, which Written Request shall designate the date of prepayment and the amount
thereof and direct the redemption of Series 2015 Bonds in amounts corresponding to Obligation
No. 6 prepayment.
(b)
Notwithstanding subsection (a) above, in the case of a prepayment to be applied
to the special optional redemption of Obligated Group Bonds pursuant to Section 5.3(b) of the
Bond Indenture, the Borrower shall give the Issuer and the Bond Trustee not less than one (1)
Business Day's prior written notice, which notice shall designate the date of prepayment and
the amount thereof and direct the redemption of Obligated Group Bonds in the amount
corresponding to Obligation No. 6 prepayment.
SECTION 4.6.
EFFECT OF PARTIAL PREPAYMENT.
Upon any partial
prepayment of Obligation No. 6, each installment of interest which shall thereafter be payable
on Obligation No. 6 shall be reduced, taking into account the interest rate on the Series 2015
Bonds remaining outstanding after the redemption of Series 2015 Bonds from the proceeds of
such partial prepayment and after the purchase and delivery and cancellation of Series 2015
Bonds described in Section 4.3(c) hereof, so that the interest remaining payable on Obligation
No. 6 shall be sufficient to pay the interest on the outstanding Series 2015 Bonds when due.
SECTION 4.7.
AMORTIZATION SCHEDULES. On the date of any partial
prepayment of Obligation No. 6, the Borrower shall deliver to the Bond Trustee two copies of
an amortization schedule with respect to Obligation No. 6 then outstanding setting forth the
amount of the principal installments to be paid on Obligation No. 6 after the date of such partial
prepayment and the unpaid principal balance of Obligation No. 6 after payment of each such
installment.
SECTION 4.8.
ADDITIONAL PAYMENTS. The Borrower agrees to pay directly
all reasonable costs incurred by or on behalf of the Issuer or the Bond Trustee in connection
with or incident to the issuance and sale of the Series 2015 Bonds which exceed the amount on
deposit in the Expense Fund described in Section 3.1 of the Bond Indenture, including, without
limitation, any commitment and other financing costs, recording expenses, trustee's acceptance
fees and initial annual fees, legal fees, printing expenses, bond counsel fees and other fees.
The Borrower agrees to pay or cause to be paid the following items to the following
persons as additional payments under this Loan Agreement:
(a)
to the Bond Trustee, upon demand, an amount equal to all reasonable fees of the
Bond Trustee for services rendered under the Bond Indenture and all fees and charges of any
9
Paying Agent, registrar, counsel, accountant, Consultant, engineer or other persons incurred in
the direct performance of services under, and required by the terms of, the Bond Indenture on
request of the Bond Trustee for which the Bond Trustee and such other persons are entitled to
payment or reimbursement;
(b)
to the Issuer, within thirty (30) days of receipt of invoice, all reasonable fees and
expenses incurred by the Issuer in relation to Obligation No. 6 or the Series 2015 Bonds which
are not otherwise required to be paid by the Borrower under the terms of this Loan Agreement,
including, without limitation, all fees, expenses, taxes and charges of the Issuer as provided for
under the Act;
(c)
(i) to the Issuer or the Bond Trustee, as the case may be, the amount of all
advances of funds made by either of them under the provisions of this Loan Agreement or an
amount equal to all advances made by either of them under the Bond Indenture, with interest
thereon at the Bond Trustee's Prime Rate from the date of each such advance and (ii) to the
Master Trustee, an amount equal to all advances of funds made by it under the provisions of the
Master Indenture with respect to Obligation No. 6, with interest thereon as described in the
Master Indenture; and
(d)
to the Bond Trustee, an amount equal to any deficiency in the amount required
to be on deposit in any fund under the Bond Indenture caused by a decrease in the value of the
investments therein.
SECTION 4.9.
NO DEBT SERVICE RESERVE FUND. There shall be no
subaccount of the Debt Service Reserve Fund held under the Master Indenture for the Series
2015 Bonds or Obligation No. 6. Neither the Series 2015 Bonds nor Obligation No. 6 shall be
entitled to any benefit of the Debt Service Reserve Fund.
SECTION 4.10.
BORROWER'S OBLIGATIONS UNCONDITIONAL.
The
Borrower agrees that its obligation to make the payments described in this Loan Agreement and
Obligation No. 6 and to perform its obligations under this Loan Agreement and Obligation No.
6 are absolute and unconditional and are not subject to diminution by any defense (other than
payment), by any right of set off, counterclaim or abatement, by the happening or nonhappening of any event or for any other reason whatsoever.
ARTICLE V.
COVENANTS OF THE BORROWER
SECTION 5.1.
MAINTENANCE OF THE PROJECT. The Borrower agrees that it
will maintain and keep the Project in good repair, working order and condition except for
ordinary wear and tear and that it will make or cause to be made all necessary repairs and
replacements.
10
In the event the Borrower fails to perform its obligations under this Section, the Issuer or
the Bond Trustee may (but is under no obligation to) perform the Borrower's obligations for the
Borrower. Any money advanced by the Issuer or the Bond Trustee in discharge of the
Borrower's obligations under this Section are additional obligations of the Borrower to the one
making the advance, are due from the Borrower in immediately available funds on demand and
bear interest at the Bond Trustee's Prime Rate from the date of the advance until paid.
SECTION 5.2.
INSPECTION OF PROPERTY, PLANT AND EQUIPMENT. The
Borrower agrees that the Bond Trustee and its authorized agents, on reasonable prior notice and
as often as the Bond Trustee reasonably determines to be desirable: (a) have the right at
reasonable times to enter upon the Property, Plant and Equipment of the Members of the
Obligated Group and to examine and inspect them, (b) have the right to any access to such
Property, Plant and Equipment which is reasonably necessary to repair and maintain such
Property, Plant and Equipment in the event the Borrower fails to do so; (c) will be permitted to
discuss the affairs and finances of the Borrower with its officers and independent accountants;
and (d) will be permitted at all reasonable times to examine and copy the books and records of
the Borrower with respect to such Property, Plant and Equipment.
SECTION 5.3.
COMPLIANCE WITH ORDERS AND ORDINANCES. Subject
to the following sentence, the Borrower will, at its sole cost and expense, comply with all
present and future laws, ordinances, orders, decrees, rules, regulations and requirements of
every duly constituted governmental authority, commission and court (collectively, a
"Governmental Rule") of which the Borrower has notice and the violation of which would
materially and adversely affect the Property, Plant and Equipment of the Members of the
Obligated Group or their use, occupancy, or condition. The Borrower is not required to comply
with any Governmental Rule so long as the Borrower, in good faith and at its own cost and
expense, is contesting the validity of the Governmental Rule or its applicability to the Borrower
or is taking other appropriate action in an appropriate manner and by appropriate proceedings
which operate during its pendency to prevent the sale, forfeiture, loss or loss of use and
occupancy of the Property, Plant and Equipment of the Members of the Obligated Group or any
part thereof; provided that no contest, action or proceeding may subject the Issuer or the Bond
Trustee to any liability unless the Borrower had indemnified the Issuer or the Bond Trustee, as
the case may be, to the satisfaction of the Issuer or the Bond Trustee, as applicable.
SECTION 5.4.
SUFFICIENT REVENUES. Notwithstanding any other provision
of the Borrower's Documents, the Borrower unconditionally agrees that it will pay pursuant to
this Loan Agreement and Obligation No. 6 the full amount needed and at the times needed to
enable the Issuer (or the Bond Trustee on its behalf) to make timely payment of the principal of
(whether due upon maturity, redemption, acceleration or otherwise), premium, if any, and
interest on the Series 2015 Bonds.
SECTION 5.5.
ISSUER'S RIGHT TO PERFORM THE BORROWER'S
COVENANTS. In addition to the rights given to the Issuer and the Bond Trustee in Section 5.2,
if the Borrower fails to make any payment or perform any act required by any of the Borrower's
11
Documents (unless the payment or performance is one which any of the Borrower's Document
permits the Borrower to contest and the Borrower is contesting it by diligently pursuing
appropriate proceedings) then the Issuer or the Bond Trustee, upon not less than the (10) days'
prior written notice to the Borrower, may (but is not obligated to) remedy the default for the
account of the Borrower and make advances for that purpose. No remedy by the Issuer or the
Bond Trustee operates to release the Borrower from its default. Any money advanced by the
Issuer or the Bond Trustee in the discharge of an obligation of the Borrower under this Loan
Agreement are additional obligations of the Borrower to the one making the advance, are due
from the Borrower in immediately available funds on demand and bear interest at the Bond
Trustee's Prime Rate from the date of the advance until paid.
SECTION 5.6.
INDEMNITY.
(a)
The Borrower agrees to pay, and agrees to protect, indemnify and save the
officers, directors, members, employees, attorneys or agents of the Issuer and the Bond Trustee
harmless from and against any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees), causes of action, settlements, judgments or other obligations of any
nature arising through any suits, claims, demands, actions or proceedings of any nature arising
from, in connection with or as a result of:
(i)
any injury to or death of any person or damage to property in or upon the
Project or resulting from or connected with the use, non-use, condition or occupancy of
the Project or any part thereof;
(ii)
the violation of any agreement or condition of this Loan Agreement or the
Tax Regulatory Agreement, except by the Issuer or the Bond Trustee;
(iii)
the violation of any contract, agreement or restriction by the Borrower or
any other Member relating to their respective Property, Plant and Equipment;
(iv)
the violation of any law, ordinance or regulation arising out of the
ownership, occupancy or use of the Property, Plant and Equipment of the Members or
any part thereof;
(v)
the construction, acquisition, equipping and installation of the 2015
Project or the failure to construct, acquire, equip or install the 2015 Project;
(vi)
the issuance and sale of the Series 2015 Bonds or the execution, delivery
and performance of the Borrower's Documents or the Bond Indenture;
(vii) any act of the Borrower or any other Member, or any of their agents,
contractors or licensees; and
12
(viii) any statement or information concerning the Borrower, its officers and
members or the Property, Plant and Equipment of the Members contained in the official
statement for the Series 2015 Bonds or any other final official statement or prospectus
furnished to purchasers of any securities that is untrue or incorrect in any material
respect and any omission from any official statement or prospectus of any statement or
information which should be contained in it for the purpose for which it is to be used or
which is necessary to make the statements in it concerning the Borrower, its officers and
members or the Property, Plant and Equipment of the Members not misleading in any
material respect, if such other final official statement or prospectus is approved in
writing by the Borrower.
Nothing contained in this Loan Agreement prohibits the Borrower from pursuing its
remedies against the Bond Trustee for damages caused by the Bond Trustee's negligent or
willful misconduct.
(b)
The Borrower also agrees to indemnify and hold harmless the Bond Trustee
against any loss, liability or expense incurred without negligence or willful misconduct on the
part of the Bond Trustee arising out of or in connection with the acceptance or administration of
the Bond Indenture including the costs and expense of a defense against any claim or liability.
(c)
If any suit, claim, demand, action or proceeding is brought against the Issuer or
the Bond Trustee with respect to which indemnity may be sought under this Section, the Issuer
and the Bond Trustee, as the case may be, agree to promptly notify the Borrower in writing, and
the Borrower agrees to assume the defense of the suit, claim, demand, action or proceeding
including the employment of Counsel and the payment of all reasonable expenses. Each of the
Issuer and the Bond Trustee may, however, retain its own counsel and still be indemnified
against the cost of employing counsel and all other expenses despite an assumption of the
defense by the Borrower if the Issuer or the Bond Trustee believes in good faith that there are
defenses available to it which are not available to the Borrower or which are adverse to or in
conflict with those available to the Borrower and which the Issuer or the Bond Trustee believes
in good faith cannot be effectively asserted by common counsel. The Issuer and the Bond
Trustee always have the right to employ separate Counsel but, subject to the preceding
sentence, the fees and expenses of its separate Counsel must be paid by the Issuer or the Bond
Trustee unless the Borrower and the Issuer or the Bond Trustee, as the case may be, have
mutually agreed to the employment of the Issuer's or the Bond Trustee's separate Counsel. The
Borrower is not liable for any settlement of a suit, claim, demand, action or proceeding effected
without its written consent. If the suit, claim, demand, action or proceeding is settled with the
consent of the Borrower or results in a final judgment for the plaintiff, the Borrower agrees to
indemnify and hold harmless the Issuer and the Bond Trustee from and against any loss or
liability by reason of the settlement or judgment.
13
All amounts payable to or with respect to the Issuer under this Section shall be deemed
to be fees and expenses of the Issuer for the purposes of the provisions hereof and of the Bond
Indenture dealing with the assignment of the Issuer's rights hereunder.
SECTION 5.7.
NOTICE OF DEFAULT. The Borrower agrees to give to the Bond
Trustee and the Issuer notice of any event which with the lapse of time or the giving of notice or
both would be an event of default hereunder (a "default") within ten (10) days' of any of the
Borrower's officers obtaining actual knowledge of the occurrence of the default.
SECTION 5.8.
MAINTENANCE OF TAX STATUS. The Borrower agrees that it
will at all times maintain its existence as a not-for-profit corporation and its status as an
organization described in Section 501(c)(3) of the Code and exempt from federal income
taxation under Section 501(a) of the Code. The Borrower agrees that it will not take any action
or permit any action to be taken by others which will adversely affect its agreement made in
this paragraph.
SECTION 5.9.
MAINTENANCE OF EXISTENCE. The Borrower agrees that
during the term of this Loan Agreement, except as provided in the Master Indenture, it will
maintain its corporate existence and will be duly qualified to transact business in the State, will
not dissolve, will not sell, lease, transfer or otherwise dispose of all or substantially all of its
assets.
SECTION 5.10.
FINANCIAL INFORMATION AND REPORTS. The Borrower
agrees to keep proper books of record and account in which full, true and correct entries will be
made of all the Borrower's business and affairs in accordance with Generally Accepted
Accounting Principles consistently applied, subject to the provisions of Section 1.1 hereof.
SECTION 5.11.
TAX-EXEMPT SERIES 2015 BONDS. The Borrower and the
Issuer intend that the interest paid on the Series 2015 Bonds will be excluded from the gross
income of the Owners of the Series 2015 Bonds for federal income tax purposes pursuant to
Section 103 of the Code. The Borrower agrees that it will not take any action which would, or
fail to take any action the omission of which would, adversely affect the validity of the Series
2015 Bonds or any exemption from federal income taxation to which interest on the Series 2015
Bonds would otherwise be entitled.
SECTION 5.12.
INVESTMENTS AND ARBITRAGE. Section 4.7 of the Bond
Indenture provides that money on deposit pursuant to the Bond Indenture will be invested in
Qualified Investments as directed by the Borrower. The Borrower agrees (i) to provide written
investment instructions to the Bond Trustee as needed, (ii) that all of such investment
instructions are subject to the provisions of the Tax Regulatory Agreement and Article VI of the
Bond Indenture, and (iii) that it will not make or direct any use of any funds which will cause
the Series 2015 Bonds to be "arbitrage bonds" within the meaning of such term as used in
Section 148 of the Code ("Arbitrage Bonds"). The Borrower agrees for the benefit of the Owners
14
of the Series 2015 Bonds that no use will be made of the proceeds derived from the issuance and
sale of the Series 2015 Bonds which will cause the Series 2015 Bonds to be Arbitrage Bonds.
SECTION 5.13.
RIGHT TO DOCUMENTS. So long as any Series 2015 Bonds
remain outstanding, all items required to be delivered or addressed to the Master Trustee under
the Master Indenture shall, at the written request of the Issuer, also be delivered or addressed to
the Issuer.
SECTION 5.14.
NOTICE OF INTERNAL REVENUE SERVICE AUDITS. The
Borrower and the Issuer each agree to provide prompt written notice to the other upon receipt
of a notice from the Internal Revenue Service that the Series 2015 Bonds are being audited or
otherwise investigated or that the Internal Revenue Service or another agency has requested
documents or other information relating to the Series 2015 Bonds. The Borrower shall be
responsible for all reasonable costs and expenses of the Issuer and its counsel relating to such an
audit or inquiry.
SECTION 5.15.
DISPOSITION OF PROJECT FUND AND EXPENSE FUND
MONEYS. The Borrower agrees that if after payment by the Bond Trustee of all amounts
requested pursuant to Written Requests theretofore tendered to the Bond Trustee under the
provisions of Sections 3.1 and 3.2 of the Bond Indenture, there shall remain any moneys in the
Project Fund, such moneys may be withdrawn and shall be used or deposited as provided in
Section 3.2 of the Bond Indenture.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES THEREFOR
SECTION 6.1.
EVENTS OF DEFAULT AND REMEDIES. The occurrence and
continuance of any of the following events shall constitute an "event of default" hereunder:
(a)
failure of the Obligated Group to pay any installment of interest, principal or any
premium on Obligation No. 6 as described in Section 4.2 hereof; or failure by the Borrower to
make any other payment required by Section 4.1 or 4.2 hereof for the payment of the Series 2015
Bonds when the same shall become due and payable, whether upon a scheduled Interest
Payment Date, at maturity, upon any date fixed for prepayment or purchase, by acceleration or
otherwise; or
(b)
any event of default shall occur under the Master Indenture which would permit
the acceleration of any Obligation (as defined in the Master Indenture); or
(c)
if the Borrower admits insolvency or bankruptcy or its inability to pay its debts
as they mature, or is generally not paying its debts as such debts become due, or makes an
assignment for the benefit of creditors or applies for or consents to the appointment of a trustee,
custodian or receiver for the Borrower, or for the major part of its Property; or
15
(d)
if a trustee, custodian or receiver is appointed for the Borrower or for the major
part of its Property and is not discharged within sixty (60) days after such appointment; or
(e)
if bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, proceedings under Title 11 of the United States Code, as amended, or other
proceedings for relief under any bankruptcy law or similar law for the relief of debtors under
federal or State law are instituted by or against the Borrower (other than bankruptcy
proceedings instituted by the Borrower against third parties) and, if instituted against the
Borrower, are not dismissed, stayed or otherwise nullified within sixty (60) days after
institution; or
(f)
if payment of any installment of interest or principal, or any premium, on any
Series 2015 Bond shall not be made when the same shall become due and payable under the
provisions of the Bond Indenture or any other "event of default" shall occur under the Bond
Indenture.
Upon the occurrence of an event of default, as limited by Section 7.10 of the Bond
Indenture, the Bond Trustee, as assignee of the Issuer, may, or upon receipt from the owners of
at least twenty-five percent (25%) of the principal amount of the Series 2015 Bonds then
Outstanding of a request to do so, shall by written notice to the Master Trustee, request that the
Master Trustee declare the principal of Obligation No. 6 (if not then due and payable) to be due
and payable immediately subject to the provisions of Section 4.9 of the Master Indenture
regarding waiver of events of default, anything in Obligation No. 6 or in this Loan Agreement
contained to the contrary notwithstanding.
Upon the occurrence of any event of default, as limited by Section 7.10 of the Bond
Indenture, the Bond Trustee, as assignee of the Issuer, may take whatever action at law or in
equity it deems necessary or desirable (i) to collect any amounts then due under this Loan
Agreement or Obligation No. 6, (ii) to enforce performance of any obligation, agreement or
covenant of the Borrower under this Loan Agreement, Obligation No. 6 or any other document
to which the Borrower is a party associated with the issuance of the Series 2015 Bonds or the
Master Indenture or (iii) to otherwise enforce any of its rights.
No waiver of any event of default extends to or affects any subsequent event of default
or impairs any rights or remedies consequent thereon.
SECTION 6.2.
APPLICATION OF PROCEEDS OF REMEDIES. The proceeds
or avails resulting from the exercise of any such remedies, together with any other sums which
then may be held by the Issuer under this Loan Agreement, whether under the provisions of
this Article or otherwise, and which are available for such application shall be applied as
follows:
16
FIRST: To the payment of the costs and expenses of the exercise of such remedies,
including reasonable compensation to the Issuer, the Master Trustee and the Bond Trustee, their
agents, attorneys and counsel, and the expenses of any judicial proceedings wherein the same
may be made, and of all fees, expenses, liabilities and advances made or incurred by any of
them as permitted by this Loan Agreement, together with interest at the Bond Trustee's Prime
Rate on such advances (if any) made by the Issuer, and to the payment of all taxes, assessments
or claims prior to the claim of this Loan Agreement, except any taxes, assessments, liens or
other charges, subject to which Property may have been sold.
SECOND: To the payment of any amounts then payable under the Tax Regulatory
Agreement.
THIRD: To the payment of the whole amount then due, owing and unpaid upon
Obligation No. 6 for principal, interest and premium, if any, and in case such proceeds shall be
insufficient to pay in full the whole amount so due, owing or unpaid upon Obligation No. 6,
then ratably according to the aggregate of such principal and the accrued and unpaid interest
and premium, if any, without preference or priority as between principal, interest or premium;
such application to be made upon presentation of Obligation No. 6 and the notation thereon of
the payment, if partially paid, or the surrender and cancellation thereof, if fully paid.
FOURTH: To the payment of any other sums required to be paid by the Borrower
pursuant to any provisions of this Loan Agreement or of Obligation No. 6.
FIFTH: To the payment of any other sums required to be paid by the Borrower pursuant
to any provision of the Master Indenture.
SIXTH: To the payment of the surplus, if any, to the Borrower, its successors or assigns,
upon the Written Request of the Borrower or to whomsoever may be lawfully entitled to receive
the same upon its written request, or as any court of competent jurisdiction may direct.
SECTION 6.3.
REMEDIES CUMULATIVE. No remedy herein conferred upon
or reserved to the Issuer is intended to be exclusive of any other remedy or remedies, and each
and every such remedy shall be cumulative, and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute.
SECTION 6.4.
DELAY OR OMISSION NOT A WAIVER. No delay or omission
of the Issuer to exercise any right or power accruing upon any event of default shall impair any
such right or power, or shall be construed to be a waiver of any such event of default or an
acquiescence therein; and every power and remedy given by this Loan Agreement to the Issuer
may be exercised, from time to time and as often as may be deemed expedient by the Issuer.
SECTION 6.5.
WAIVER OF EXTENSION AND STAYS. To the extent permitted
by law, the Borrower will not during the continuance of any event of default hereunder insist
17
upon, or plead, or in any manner whatever claim or take any benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants and terms of performance of this Loan Agreement; and the Borrower hereby
expressly waives all benefits or advantage of any such law or laws and covenants not to hinder,
delay or impede the execution of any power herein granted or delegated to the Issuer, but to
suffer and permit the execution of every power as though no such law or laws had been made
or enacted.
SECTION 6.6.
REMEDIES SUBJECT TO PROVISIONS OF LAW. All rights,
remedies and powers provided by this Article may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of the law of the State or any other
applicable law and all the provisions of this Article are intended to be subject to all applicable
mandatory provisions of the law of the State and other applicable provisions of law which may
be controlling and to be limited to the extent necessary so that they will not render this Loan
Agreement invalid or unenforceable under the provisions of any applicable law.
ARTICLE VII.
SUPPLEMENTS AND AMENDMENTS TO THIS LOAN AGREEMENT
SECTION 7.1.
SUPPLEMENTS AND AMENDMENTS TO THIS LOAN
AGREEMENT. This Loan Agreement may be supplemented and amended only as provided in
Article X of the Bond Indenture.
ARTICLE VIII.
DEFEASANCE
SECTION 8.1.
DEFEASANCE. If the Borrower shall pay and discharge or
provide, in a reasonable manner, for the payment and discharge of the whole amount of the
principal of, premium, if any, and interest on Obligation No. 6 in such manner as to render all
Series 2015 Bonds issued under the Bond Indenture no longer outstanding, and shall pay or
cause to be paid all other sums payable hereunder, and all sums payable under the Bond
Indenture, or shall make reasonable arrangements for such payment and discharge, then and in
that case all property, rights and interest hereby conveyed or assigned or pledged shall revert to
the Borrower, and the estate, right, title and interest of the Issuer therein shall thereupon cease,
terminate and become void; and this Loan Agreement, and the covenants of the Borrower
contained herein, shall be discharged except as provided in Section 5.6, and the Issuer in such
case on demand of the Borrower and at its cost and expense, shall execute and deliver to the
Borrower a proper instrument or proper instruments acknowledging the satisfaction and
termination of this Loan Agreement, and shall convey, assign and transfer or cause to be
conveyed, assigned or transferred, and shall deliver or cause to be delivered, to the Borrower,
all Property, including money, then held by the Issuer other than moneys deposited with the
Bond Trustee for the payment of the principal of and premium, if any, or interest on Obligation
No. 6 together with Obligation No. 6 marked paid or canceled.
18
ARTICLE IX.
MISCELLANEOUS PROVISIONS
SECTION 9.1
LOAN AGREEMENT FOR BENEFIT OF PARTIES HERETO.
Except as provided in Section 5.6, nothing in this Loan Agreement or Obligation No. 6, express
or implied, is intended or shall be construed to confer upon, or to give to, any person other than
the parties hereto and the holder of Obligation No. 6, any right, remedy or claim under or by
reason of this Loan Agreement or any covenant, condition or stipulation hereof; and the
covenants, stipulations and agreements in this Loan Agreement and Obligation No. 6 contained
are and shall be for the sole and exclusive benefit of the parties hereto, their successors and
assigns the holder of Obligation No. 6.
SECTION 9.2.
SEVERABILITY. In the event any provision of this Loan
Agreement or Obligation No. 6 is held invalid or unenforceable by any court of competent
jurisdiction, the holding is not to invalidate or render unenforceable any other provision of this
Loan Agreement or Obligation No. 6.
SECTION 9.3.
NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed
by first class mail postage prepaid with proper address as indicated in the Bond Indenture. The
Issuer, the Borrower and the Bond Trustee may, by written notice given by each to the others,
designate any address or addresses to which notices, certificates or other communications to
them shall be sent when required as contemplated by this Loan Agreement.
SECTION 9.4.
SUCCESSORS AND ASSIGNS. Whenever in this Loan
Agreement any of the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included and all the covenants, promises and agreements in this
Loan Agreement contained by or on behalf of the Borrower, or by or on behalf of the Issuer,
shall bind and inure to the benefit of the respective successors and assigns, whether so
expressed or not.
SECTION 9.5.
COUNTERPARTS. This Loan Agreement is being executed in
any number of counterparts, each of which is an original and all of which are identical. Each
counterpart of this Loan Agreement is to be deemed an original hereof and all counterparts
collectively are to be deemed but one instrument.
SECTION 9.6.
GOVERNING LAW. It is the intention of the parties hereto that
this Loan Agreement and the rights and obligations of the parties hereunder shall be governed
by and construed and enforced in accordance with the laws of the State.
SECTION 9.7.
IMMUNITY. To the extent permitted by law, no recourse may be
had for the payment of the principal of, or premium, if any, or interest on Obligation No. 6, or
for any claim based on it or on this Loan Agreement or any agreement supplemental to this
Loan Agreement, against any member, director, trustee or officer, past, present or future
member, employee, director or agent of the Borrower, or any predecessor or successor
19
corporation, as such, either directly, or through the Borrower or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability, whether at common
law, in equity, by a constitution, statute or otherwise, of members, directors, trustees or officers,
as such, being released as a condition of and consideration for the execution of this Loan
Agreement and of the issuance of Obligation No. 6.
SECTION 9.8.
OBLIGATIONS DUE ON SATURDAYS, SUNDAYS OR
HOLIDAYS. If any date upon which an obligation of the Borrower or the Issuer is to be
performed falls on a day which is not a Business Day, then the payment or fulfillment of the
obligation may be made on the next succeeding Business Day with the same effect as if made on
the date due.
SECTION 9.9.
LIMITATION ON INTEREST. No provision of this Loan
Agreement or Obligation No. 6 is intended to require the payment or permit the collection of
interest in excess of the maximum permitted by law. If any provision of this Loan Agreement
or Obligation No. 6 requires payment of interest in an amount in excess of the maximum
permitted by law, no Borrower is obligated to pay any interest in excess of the amount
permitted by law. This provision controls any provisions of this Loan Agreement inconsistent
with it.
20
IN WITNESS WHEREOF, the Borrower and the Issuer have caused this Loan
Agreement to be executed in their respective corporate names and have caused their respective
corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the
date first above written.
(SEAL)
By:
Name: Bob Buckhorn
Title: Mayor
Attest:
By:
Name: Shirley Foxx-Knowles
Title: City Clerk
THE UNIVERSITY OF TAMPA,
INCORPORATED
(SEAL)
By:
Name: Richard Ogorek
Title: Vice President for Administration and
Finance
Attest:
By:
Name: Donna B. Popovich
Title: Secretary
[Signature Page | Loan Agreement]
21
SCHEDULE A
LOAN REPAYMENT SCHEDULE
Payment
Date
5/31/2016
5/31/2017
5/31/2018
5/31/2019
5/31/2020
5/31/2021
5/31/2022
5/31/2023
5/31/2024
5/31/2025
5/31/2026
5/31/2027
5/31/2028
5/31/2029
5/31/2030
5/31/2031
5/31/2032
5/31/2033
5/31/2034
5/31/2035
5/31/2036
5/31/2037
5/31/2038
5/31/2039
5/31/2040
5/31/2041
5/31/2042
5/31/2043
5/31/2044
5/31/2045
Principal
Interest
Debt Service
$980,000 $3,573,317.23
$4,553,317.23
920,000
3,766,700.00
4,686,700.00
960,000
3,729,900.00
4,689,900.00
995,000
3,691,500.00
4,686,500.00
1,045,000
3,641,750.00
4,686,750.00
1,095,000
3,589,500.00
4,684,500.00
1,150,000
3,534,750.00
4,684,750.00
1,210,000
3,477,250.00
4,687,250.00
1,270,000
3,416,750.00
4,686,750.00
1,335,000
3,353,250.00
4,688,250.00
1,400,000
3,286,500.00
4,686,500.00
1,470,000
3,216,500.00
4,686,500.00
1,545,000
3,143,000.00
4,688,000.00
1,625,000
3,065,750.00
4,690,750.00
1,700,000
2,984,500.00
4,684,500.00
1,785,000
2,899,500.00
4,684,500.00
1,880,000
2,810,250.00
4,690,250.00
3,340,000
2,716,250.00
6,056,250.00
3,505,000
2,549,250.00
6,054,250.00
3,680,000
2,374,000.00
6,054,000.00
3,865,000
2,190,000.00
6,055,000.00
4,060,000
1,996,750.00
6,056,750.00
2,420,000
1,793,750.00
4,213,750.00
2,540,000
1,672,750.00
4,212,750.00
2,670,000
1,545,750.00
4,215,750.00
2,800,000
1,412,250.00
4,212,250.00
2,945,000
1,272,250.00
4,217,250.00
7,135,000
1,125,000.00
8,260,000.00
7,495,000
768,250.00
8,263,250.00
7,870,000
393,500.00
8,263,500.00
$76,690,000 $78,990,417.23 $155,680,417.23
Schedule A
APPENDIX E
FORM OF BOND INDENTURE
BOND TRUST INDENTURE
between
CITY OF TAMPA, FLORIDA,
AS ISSUER
and
REGIONS BANK,
AS BOND TRUSTEE
DATED AS OF APRIL 1, 2015
$76,690,000
(The University of Tampa Project), Series 2015
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ...................................................................................................................... 4
ARTICLE II. THE SERIES 2015 BONDS .............................................................................................. 15
SECTION 2.1.
SECTION 2.2.
SECTION 2.3.
SECTION 2.4.
SECTION 2.5.
SECTION 2.6.
SECTION 2.7.
SECTION 2.8.
SECTION 2.9.
SECTION 2.10.
SECTION 2.11.
AUTHORIZED AMOUNT OF SERIES 2015 BONDS............................. 15
ISSUANCE OF SERIES 2015 BONDS ....................................................... 15
EXECUTION; LIMITED OBLIGATION; NO LIABILITY OF
STATE............................................................................................................ 17
AUTHENTICATION .................................................................................. 18
FORM OF SERIES 2015 BONDS AND TEMPORARY SERIES
2015 BONDS ................................................................................................. 19
DELIVERY OF SERIES 2015 BONDS ........................................................ 19
MUTILATED, LOST, STOLEN OR DESTROYED SERIES 2015
BONDS .......................................................................................................... 20
TRANSFER AND EXCHANGE OF SERIES 2015 BONDS;
PERSONS TREATED AS OWNERS.......................................................... 20
BOOK-ENTRY ONLY SYSTEM FOR THE SERIES 2015 BONDS ........ 21
SUCCESSOR SECURITIES DEPOSITORY; TRANSFERS
OUTSIDE BOOK-ENTRY ONLY SYSTEM .............................................. 22
PAYMENTS AND NOTICES TO CEDE & CO ....................................... 23
ARTICLE III. APPLICATION OF SERIES 2015 BOND PROCEEDS AND REQUIRED
FUND DEPOSITS........................................................................................................................ 23
SECTION 3.1.
SECTION 3.2.
SECTION 3.3.
EXPENSE FUND.......................................................................................... 23
PROJECT FUND .......................................................................................... 24
DEPOSIT OF BOND PROCEEDS .............................................................. 25
ARTICLE IV. REVENUES AND FUNDS ............................................................................................ 25
SECTION 4.1.
SECTION 4.2.
SECTION 4.3.
SECTION 4.4.
SECTION 4.5.
SECTION 4.6.
SECTION 4.7.
SECTION 4.8.
SECTION 4.9.
SOURCE OF PAYMENT OF SERIES 2015 BONDS ................................ 25
REVENUE PAYMENT FUND ................................................................... 25
INTEREST FUND ........................................................................................ 26
BOND SINKING FUND ............................................................................. 26
[RESERVED] ................................................................................................. 27
REDEMPTION FUND ................................................................................ 27
INVESTMENT OF FUNDS; INCOME ...................................................... 28
TRUST FUNDS; ELIGIBLE ACCOUNTS ................................................. 28
EXCLUDED FUNDS; TRANSFERS TO REBATE FUND ...................... 29
ARTICLE V. REDEMPTION OF SERIES 2015 BONDS ..................................................................... 29
SECTION 5.1.
SECTION 5.2.
SECTION 5.3.
MANDATORY SINKING FUND REDEMPTIONS ................................ 29
EXTRAORDINARY OPTIONAL REDEMPTION................................... 30
OPTIONAL REDEMPTION ....................................................................... 31
i
SECTION 5.4.
SECTION 5.5.
SECTION 5.6.
SECTION 5.7.
NOTICE OF REDEMPTION ...................................................................... 31
METHOD OF SELECTING SERIES 2015 BONDS IN CASE OF
PARTIAL REDEMPTION........................................................................... 32
SERIES 2015 BONDS DUE AND PAYABLE ON
REDEMPTION DATE; INTEREST CEASES TO ACCRUE ................... 32
CANCELLATION ....................................................................................... 33
ARTICLE VI. GENERAL COVENANTS ............................................................................................. 33
SECTION 6.1.
SECTION 6.2.
SECTION 6.3.
SECTION 6.4.
SECTION 6.5.
SECTION 6.6.
SECTION 6.7.
SECTION 6.8.
SECTION 6.9.
INTEREST ..................................................................................................... 33
PERFORMANCE OF COVENANTS; LEGAL
AUTHORIZATION ..................................................................................... 33
OWNERSHIP; INSTRUMENTS OF FURTHER ASSURANCE ............ 34
RECORDING AND FILING ...................................................................... 34
BOOKS AND RECORDS ............................................................................ 34
LIST OF BONDHOLDERS ......................................................................... 34
RIGHTS UNDER THE LOAN AGREEMENT; BOND TRUSTEE
AS HOLDER OF OBLIGATION NO. 6 .................................................... 35
DESIGNATION OF ADDITIONAL PAYING AGENTS ....................... 35
ARBITRAGE; COMPLIANCE WITH TAX REGULATORY
AGREEMENT .............................................................................................. 35
ARTICLE VII. EVENTS OF DEFAULT AND REMEDIES ................................................................ 35
SECTION 7.1.
SECTION 7.2.
SECTION 7.3.
SECTION 7.4.
SECTION 7.5.
SECTION 7.6.
SECTION 7.7.
SECTION 7.8.
SECTION 7.9.
SECTION 7.10.
SECTION 7.11.
SECTION 7.12.
SECTION 7.13.
EVENTS OF DEFAULT .............................................................................. 35
ACCELERATION ........................................................................................ 37
REMEDIES; RIGHTS OF SERIES 2015 BONDHOLDERS ..................... 38
DIRECTION OF PROCEEDINGS BY HOLDERS ................................... 38
APPOINTMENT OF RECEIVERS ............................................................. 39
APPLICATION OF MONEYS.................................................................... 39
REMEDIES VESTED IN BOND TRUSTEE .............................................. 41
RIGHTS AND REMEDIES OF BONDHOLDERS ................................... 41
TERMINATION OF PROCEEDINGS ....................................................... 41
WAIVER OF EVENTS OF DEFAULT....................................................... 42
BORROWER'S RIGHTS OF POSSESSION AND USE OF
PROPERTY ................................................................................................... 42
WAIVER OF REDEMPTION; EFFECT OF SALE OF TRUST
ESTATE ......................................................................................................... 42
NOTICE OF DEFAULT; ENDORSEMENT OF OBLIGATION
NO. 6 .............................................................................................................. 43
ARTICLE VIII. THE BOND TRUSTEE................................................................................................. 43
SECTION 8.1.
SECTION 8.2.
ACCEPTANCE OF THE TRUSTS ............................................................. 43
FEES, CHARGES AND EXPENSES OF BOND TRUSTEE AND
ANY ADDITIONAL PAYING AGENT ................................................... 46
ii
SECTION 8.3.
SECTION 8.4.
SECTION 8.5.
SECTION 8.6.
SECTION 8.7.
SECTION 8.8.
SECTION 8.9.
SECTION 8.10.
SECTION 8.11.
SECTION 8.12.
SECTION 8.13.
NOTICE TO THE ISSUER, THE MASTER TRUSTEE AND
BONDHOLDERS IF DEFAULT OCCURS ............................................... 47
INTERVENTION BY BOND TRUSTEE ................................................... 47
SUCCESSOR BOND TRUSTEE ................................................................. 47
BOND TRUSTEE REQUIRED; ELIGIBILITY .......................................... 47
RESIGNATION BY THE BOND TRUSTEE ............................................. 48
REMOVAL OF THE BOND TRUSTEE..................................................... 48
APPOINTMENT OF SUCCESSOR BOND TRUSTEE BY THE
BONDHOLDERS; TEMPORARY BOND TRUSTEE .............................. 48
CONCERNING ANY SUCCESSOR BOND TRUSTEES ........................ 49
BOND TRUSTEE PROTECTED IN RELYING UPON
RESOLUTION, ETC .................................................................................... 49
SUCCESSOR BOND TRUSTEE AS BOND TRUSTEE OF
FUNDS, PAYING AGENT AND BOND REGISTRAR .......................... 49
PAYING AGENTS; APPOINTMENT AND ACCEPTANCE OF
DUTIES; REMOVAL ................................................................................... 50
ARTICLE IX. SUPPLEMENTAL INDENTURES................................................................................ 50
SECTION 9.1.
SECTION 9.2.
SUPPLEMENTAL INDENTURES NOT REQUIRING
CONSENT OF BONDHOLDERS; RELEASE AND
SUBSTITUTION OF OBLIGATIONS........................................................ 50
SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF
BONDHOLDERS ......................................................................................... 52
ARTICLE X. AMENDMENTS, ETC. TO LOAN AGREEMENT ...................................................... 54
SECTION 10.1.
SECTION 10.2.
SECTION 10.3.
AMENDMENTS TO THE LOAN AGREEMENT AND
OBLIGATION NO. 6 NOT REQUIRING CONSENT............................. 54
AMENDMENTS TO THE LOAN AGREEMENT AND
OBLIGATION NO. 6 REQUIRING CONSENT OF
BONDHOLDERS ......................................................................................... 54
NO AMENDMENT MAY ALTER OBLIGATION NO. 6 ...................... 55
ARTICLE XI. SATISFACTION OF THIS BOND INDENTURE ....................................................... 56
SECTION 11.1.
SECTION 11.2.
SECTION 11.3.
SECTION 11.4.
DEFEASANCE ............................................................................................. 56
LIABILITY OF THE ISSUER NOT DISCHARGED ................................ 57
PROVISION FOR PAYMENT OF A PORTION OF THE SERIES
2015 BONDS ................................................................................................. 58
WHEN REFUNDING IS NOT PERMITTED ........................................... 59
ARTICLE XII. MANNER OF EVIDENCING OWNERSHIP OF SERIES 2015 BONDS ................ 59
SECTION 12.1.
PROOF OF OWNERSHIP........................................................................... 59
ARTICLE XIII. MISCELLANEOUS ...................................................................................................... 60
SECTION 13.1.
LIMITATION OF RIGHTS ......................................................................... 60
iii
SECTION 13.2.
SECTION 13.3.
SECTION 13.4.
SECTION 13.5.
SECTION 13.6.
SECTION 13.7.
SECTION 13.8.
UNCLAIMED MONEYS ............................................................................ 60
SEVERABILITY ............................................................................................ 61
NOTICES....................................................................................................... 61
ADDITIONAL NOTICES TO RATING AGENCY ................................. 63
COUNTERPARTS ....................................................................................... 63
APPLICABLE LAW..................................................................................... 63
IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS OF
THE ISSUER ................................................................................................. 63
EXHIBIT A – FORM OF BOND ........................................................................................................... A-1
EXHIBIT B – FORM OF REQUISITION.............................................................................................. B-1
iv
BOND TRUST INDENTURE
THIS BOND TRUST INDENTURE, dated as of April 1, 2015 (this "Bond Indenture"),
between the CITY OF TAMPA, FLORIDA, a municipal corporation organized and existing
under the Constitution and laws of the State of Florida (together with its successors and assigns,
the "Issuer"), and REGIONS BANK, an Alabama banking corporation organized and existing
under the laws of the State of Alabama, as bond trustee (the "Bond Trustee");
PRELIMINARY STATEMENT
The Issuer has authorized the issuance of $76,690,000 of its Revenue and Revenue
Refunding Bonds (The University of Tampa Project), Series 2015 (the "Series 2015 Bonds"). The
Series 2015 Bonds will be issued pursuant to the Constitution and laws of the State of Florida,
particularly Chapter 166, Florida Statutes, Chapter 159, Part II, Florida Statutes, the Charter of
the Issuer, the Issuer's home rule powers, Ordinance No. 2002-53, enacted by the City Council of
the Issuer on February 21, 2002, and other applicable provisions of law (collectively the "Act"),
and the Supplemental Indenture for Obligation No. 6 (as defined below) and thereafter shall be
governed by the terms and conditions of this Bond Indenture. The Series 2015 Bonds will be
sold to the purchasers identified in a Purchase Contract among the Issuer, the Borrower
(defined below) and the purchasers dated April 8, 2015. The proceeds derived from the sale of
the Series 2015 Bonds will be loaned to The University of Tampa, Incorporated, a Florida notfor-profit corporation (together with its successors and assigns and any surviving, resulting or
transferee corporation, the "Borrower"), initially pursuant to the terms and conditions of a Loan
Agreement dated as of April 1, 2015 between the Borrower and the Issuer (as amended from
time to time, the "Loan Agreement").
To evidence its obligation to repay the loan, the Borrower will cause to be issued The
University of Tampa – Obligation No. 6 (2015 Financing) ("Obligation No. 6") dated April 23,
2015 in the principal amount of $76,690,000. Obligation No. 6 is being issued under and
pursuant to the Master Trust Indenture (Security Agreement) dated as of April 1, 2012, between
the Borrower, as the Initial Obligated Group Member (as defined in the hereinafter defined
Master Indenture) and Regions Bank, as master trustee, as supplemented from time-to-time
(collectively, the "Master Indenture"), and particularly as supplemented by a Supplemental
Indenture for Obligation No. 6 dated as of April 1, 2015 between the Obligated Group
Representative (as defined in the Master Indenture) and the Master Trustee (the "2015
Supplement"). Obligation No. 6 will be substantially in the form set forth in Exhibit A to the
2015 Supplement.
The Series 2015 Bonds are being issued, together with other available money of the
Borrower, to: (i) finance and refinance the acquisition, construction, equipping and installation
of student housing facilities (the "New Dormitory") and the construction, equipping and
installation of a mixed use facility, including additions and improvements to an existing
parking garage, offices, classrooms and other facilities (the "Mixed Use Facility" and together
with the New Dormitory, the "2015 Project"), each located or to be located on the Borrower's
campus that is located within the corporate limits of the City of Tampa, Florida; (ii) advance
refund all of the outstanding City of Tampa, Florida Revenue Bonds (University of Tampa
Project), Series 2006, maturing on and after April 1, 2016 (the "Refunded Bonds"), the proceeds
of which were used to finance the construction, equipping and furnishing of a 7-story,
approximately 448-bed dormitory residence owned by the Borrower (the "2006 Dormitory") and
the second phase of a parking structure to provide approximately 700 additional parking spaces
(the "2006 Parking Garage," together with the 2006 Dormitory, the "2006 Project"); (iii) refinance
a bank loan (the "2013 Bank Loan"), the proceeds of which were used to finance a portion of the
initial costs of the Mixed Use Facility (the "2013 Project," together with the 2015 Project and the
2006 Project, the "Project"); and (iv) pay certain bond issuance costs.
The Series 2015 Bonds shall rank equally with respect to their lien on the Pledged
Revenues, as defined in the Master Indenture, and their sources and security for payment from
Obligation No. 6 without preference of any Obligation issued thereafter over any other.
NOW, THEREFORE, THIS BOND INDENTURE WITNESSETH:
That the Issuer in consideration of the premises and of the purchase of the Series 2015
Bonds and of other good and lawful consideration, the receipt of which is hereby
acknowledged, and to secure the payment of the principal of, premium, if any, and interest on
the Series 2015 Bonds and the performance and observance of all of the covenants and
conditions herein and therein contained, has executed and delivered this Bond Indenture and
has conveyed, granted, assigned, transferred, pledged, set over and confirmed and granted a
security interest in and by these presents does hereby convey, grant, assign, transfer, pledge, set
over and confirm and grant a security interest to the Bond Trustee, its successor or successors
and its assigns forever, with power of sale, all and singular the property, real and personal,
hereinafter described (said property being herein sometimes referred to as the "trust estate" or
"Trust Estate") to wit:
GRANTING CLAUSES
DIVISION I
All right, title and interest of the Issuer in and to the funds created hereunder and all
amounts held therein, including investment earnings;
DIVISION II
All right, title and interest of the Issuer in and to Obligation No. 6 and all sums payable
in respect of the indebtedness evidenced thereby;
2
DIVISION III
All right, title and interest of the Issuer in and to the Loan Agreement and the amounts
payable to the Issuer under the Loan Agreement (excluding Unassigned Rights);
DIVISION IV
Any and all other property of every kind and nature from time to time hereafter, by
delivery or by writing of any kind, conveyed, pledged, assigned or transferred as and for
additional security hereunder by the Issuer, the Borrower or any other Member of the Obligated
Group or by anyone in their behalf to the Bond Trustee, including without limitation, any funds
held by the Bond Trustee in any of the funds established hereunder as security for the Series
2015 Bonds;
EXCEPTED PROPERTY
There is, however, expressly excepted and excluded from the trust estate moneys held
by the Bond Trustee in the Rebate Fund established pursuant to the Tax Regulatory Agreement;
TO HAVE AND TO HOLD, all and singular, the properties and the rights and
privileges hereby conveyed, assigned and pledged by the Issuer or intended so to be, unto the
Bond Trustee and its successors and assigns forever, in trust, nevertheless, with power of sale
for the equal and pro rata benefit and security of each and every holder of the Series 2015 Bonds
issued and to be issued hereunder, without preference, priority or distinction as to participation
in the lien, benefit and protection hereof of one Bond over or from the others, by reason of
priority in the issue or negotiation or maturity thereof, or for any other reason whatsoever,
except as herein otherwise expressly provided, so that each and all of such Series 2015 Bonds
shall have the same right, lien and privilege under this Bond Indenture and shall be equally
secured hereby with the same effect as if the same had all been made, issued and negotiated
simultaneously with the delivery hereof and were expressed to mature on one and the same
date;
PROVIDED, NEVERTHELESS, and these presents are upon the express condition, that
if the Issuer or its successors or assigns shall well and truly pay or cause to be paid the principal
of the Series 2015 Bonds with interest, according to the provisions set forth in such Series 2015
Bonds and each of them or shall provide for the payment or redemption of such Series 2015
Bonds by depositing or causing to be deposited with the Bond Trustee the entire amount of
funds or securities required for payment or redemption thereof when and as authorized by the
provisions hereof, and shall also pay or cause to be paid all other sums payable hereunder by
the Issuer, then these presents and the estate and rights hereby granted shall cease, terminate
and become void, and thereupon the Bond Trustee, on payment of its lawful charges and
disbursements then unpaid, on demand of the Issuer and upon the payment of the costs and
expenses thereof, shall duly execute, acknowledge and deliver to the Issuer such instruments of
3
satisfaction or release as may be necessary or proper to discharge this Bond Indenture,
including if appropriate any required discharge of record, and if necessary, shall grant, reassign
and deliver to the Issuer, its successors or assigns, all and singular the property, rights,
privileges and interests by it hereby granted, conveyed and assigned, and all substitutes
therefor, or any part thereof, not previously disposed of or released as herein provided;
otherwise this Bond Indenture shall be and remain in full force;
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between
the parties hereto that all Series 2015 Bonds are to be issued, authenticated and delivered, and
that all the trust estate is to be held and applied, subject to the further covenants, conditions,
releases, uses and trusts hereinafter set forth, and the Issuer, for itself and its successors, does
hereby covenant and agree to and with the Bond Trustee and its respective successors in said
trust, for the benefit of those who shall own the Series 2015 Bonds, or any of them, as follows:
ARTICLE I.
DEFINITIONS
To the extent not defined herein, the terms used in this Bond Indenture shall have the
same meanings as set forth in the Master Indenture. All accounting terms not otherwise
defined in the Master Indenture or herein have the meanings assigned to them in accordance
with Generally Accepted Accounting Principles then in effect, subject to Section 1.1 of the Loan
Agreement.
In addition to the words and terms elsewhere defined in this Bond Indenture, the
following words and terms as used in this Bond Indenture shall have the following meanings
unless the context or use indicates another or different meaning or intent:
"Act" has the meaning specified in the Preliminary Statement to this Bond Indenture.
"Authorized Denomination" means $5,000 and any integral multiple thereof.
"Bond Counsel" means, as of the date hereof, Bryant Miller Olive P.A., and thereafter,
any other nationally recognized municipal bond counsel acceptable to the Issuer.
"Bond Indenture" means this Bond Trust Indenture dated as of April 1, 2015, including
the Exhibits hereto, between the Issuer and the Bond Trustee, as it may from time to time be
amended or supplemented.
"Bond Register" means the registration books of the Issuer kept by the Bond Trustee to
evidence the registration and transfer of Series 2015 Bonds.
"Bond Registrar" means the Bond Trustee as keeper of the Bond Register.
4
"Bond Sinking Fund" means the fund by that name created in Section 4.4 hereof.
"Bond Trustee" or "Trustee" means Regions Bank, or any successor trustee under this
Bond Indenture.
"Bond Trustee's Prime Rate" means a fluctuating rate of interest equal to the prime rate
established from time to time by the applicable department of the Bond Trustee or the largest
commercial bank with which it is affiliated if it does not have a prime rate. The Bond Trustee's
Prime Rate shall change simultaneously with any corresponding change or changes in the Bond
Trustee's or such affiliated bank's prime rate.
"Bond Year" means a 12-month period beginning on April 1 and ending on and
including the following March 30, except for the first period which begins on April 1, 2015.
"Bondholder," "holder" and "owner of the Series 2015 Bonds" means any registered
owner of any Bond.
"Borrower" has the meaning specified in the Preliminary Statement to this Bond
Indenture.
"Borrower's Closing Certificate" means the Officer's Certificate of the Borrower dated
the date of and delivered on the Closing Date.
"Borrower's Documents" means the Loan Agreement, the Master Indenture, Obligation
No. 6, the Representation Letter, the Purchase Contract, the Official Statement, the Continuing
Disclosure Agreement, the Tax Regulatory Agreement and all other documents to which the
Borrower is a party related to the issuance of the Series 2015 Bonds.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday or any
other day on which banking institutions in the State or the State of New York are authorized by
law to close or (b) a day on which the New York Stock Exchange is closed.
"Closing Date" means April 23, 2015, the date of the initial issuance and delivery of the
Series 2015 Bonds.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code herein shall be deemed to include the United States Treasury Regulations,
including temporary or proposed regulations relating to such Section which are applicable to
the Series 2015 Bonds or the use of the proceeds thereof.
"Continuing Disclosure Agreement" means the Continuing Disclosure Agreement
dated April 23, 2015 between the Borrower and Digital Assurance Certification, L.L.C., as
dissemination agent, related to the Series 2015 Bonds.
5
"Counsel" means an attorney duly admitted to practice law before the highest court of
any state and, without limitation, may include independent or in-house legal counsel for the
Borrower or the Bond Trustee.
"Default" means any event of default under this Indenture as specified in and defined
by Section 7.1 hereof.
"Defaulted Interest" means interest on any Bond which is payable but not duly paid on
the date due.
"DTC" means The Depository Trust Company.
"DTC Participant" means those broker dealers, banks and other financial institutions
reflected on the books of DTC.
"Eligible Account" means an account that is either (a) maintained with a federal or state
chartered depository institution or trust company that has a Standard and Poor's short-term
debt rating of at least 'A-2' (or, if no short-term debt rating, a long-term debt rating of at least
'BBB+'); or (b) maintained with the corporate trust department of a federal depository institution
or state-chartered depository institution subject to the regulations regarding fiduciary funds on
deposit similar to Title 12 of the U.S. Code of Federal Regulation Section 9.10(b), which, in either
case, has corporate trust powers and is acting in its fiduciary capacity.
"Escrow Agent" means U.S. Bank National Association, acting in the capacity of escrow
agent under the Escrow Deposit Agreement, its successors and assigns.
"Escrow Deposit Agreement" means the Escrow Deposit Agreement dated as of April 1,
2015, among the Issuer, the Borrower and the Escrow Agent.
"Expense Fund" means the fund by that name created in Section 3.1 hereof.
"Fitch" means Fitch Inc., its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a securities rating agency,
"Fitch" shall be deemed to refer to any other nationally recognized securities rating agency
which has been designated by the Borrower by notice to the Issuer and the Bond Trustee.
"Governing Body" means the board of directors, the board of trustees or similar group
in which the right to exercise the powers of corporate directors or trustees is vested.
"Government Obligations" means (a) cash (insured at all times by the Federal Deposit
Insurance Corporation), (b) United States Government Obligations or (c) evidences of a direct
ownership in future interest or principal payments on United States Government Obligations,
6
which United States Government Obligations are held in book-entry form on the books of the
Department of the Treasury.
"Immediate Notice" means notice by email, telephone, telex or telecopier to such email
address, telephone number, telex number or telecopier number as the addressee shall have
directed in writing, followed by written notice by first class mail postage prepaid within five (5)
Business Days after (i) delivery of such email, telex or telecopy, to such address as the addressee
shall have directed in writing or (ii) the date of such telephone conference.
"Independent Counsel" means an attorney duly admitted to practice law before the
highest court of any state and, without limitation, may include independent legal counsel for
the Issuer, the Borrower, any other Member, the Bond Trustee or the Master Trustee.
"Indirect Participant" means a person on behalf of whom a DTC Participant directly or
indirectly holds an interest in the Series 2015 Bonds.
"Interest Fund" means the fund by that name created in Section 4.3 hereof.
"Interest Payment Date" means each October 1 and April 1, commencing October 1,
2015.
"Issuer" has the meaning specified in the Preliminary Statement to this Bond Indenture.
"Issuer's Expenses" means the reasonable and necessary fees and expenses incurred by
the Issuer, its counsel, or Bond Counsel with respect to this Bond Indenture, the Loan
Agreement, the 2015 Supplement, Obligation No. 6, the Purchase Contract, the Master
Indenture, the Series 2015 Bonds or any property financed or refinanced with the proceeds of
the Series 2015 Bonds, including any advances made by the Issuer plus interest on those
advances as provided by any of the applicable documents to which the Borrower is a party and
those for any legal, accounting, financial or other experts reasonably retained by the Issuer, the
Issuer's financing fee which is $57,000.00, as well as any recording expenses, trustee's
acceptance fees, escrow and title insurance costs, legal fees, bank fees and rating agency fees,
printing expenses and other fees and fair and customary expenses incurred or to be incurred by
or on behalf of the Issuer in connection with or as an incident to the issuance and sale of the
Series 2015 Bonds, any audit or inquiry relating to the Series 2015 Bonds, or any ongoing
matters under the documents relating thereto.
"Loan Agreement" has the meaning specified in the Preliminary Statement of this Bond
Indenture.
"Master Indenture" has the meaning specified in the Preliminary Statement of this Bond
Indenture or, following the release of Obligation No. 6 pursuant to the provisions of Section 9.1
hereof, any replacement Master Indenture pursuant to which a Substitute Obligation is issued.
7
"Master Trustee" has the meaning specified in the Preliminary Statement of this Bond
Indenture.
"Maturity Date" means the maturity date for each Series 2015 Bond assigned a specific
serial or different term maturity date pursuant to Section 2.2 hereof.
"Maximum Interest Rate" means the maximum rate permitted by law.
"Member" or "Obligated Group Member" means any Person becoming a Member of the
Obligated Group pursuant to Section 3.11 of the Master Indenture, but excluding any Person
that has withdrawn from the Obligated Group pursuant to Section 3.12 of the Master Indenture.
"Moody's" means Moody's Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating
agency which has been designated by the Borrower by notice to the Bond Trustee and the
Issuer.
"Obligated Group" has the meaning specified in the Master Indenture.
"Obligated Group Bonds" means any Series 2015 Bond which is registered in the name
of an Obligated Group Member.
"Obligated Group Representative" has the meaning specified in the Master Indenture.
"Obligated Issuer" means an Obligated Group Member.
"Obligation No. 6" has the meaning specified in the Preliminary Statement of this Bond
Indenture.
"Officer's Certificate" means a certificate signed, in the case of a certificate delivered by
a corporation, by the president, any vice president or any other officer authorized to sign by
resolution of the Governing Body of such corporation or, in the case of a certificate delivered by
any other Person, the chief executive or chief financial officer of such other Person, in either case
whose authority to execute such Officer's Certificate shall be evidenced to the satisfaction of the
Bond Trustee.
"Official Statement" means the Official Statement dated April 8, 2015, prepared in
connection with the issuance and sale of the Series 2015 Bonds.
8
"Opinion of Bond Counsel" means a written opinion of Bond Counsel in form and
substance acceptable to the Issuer and the Bond Trustee which opinion may be based on a
ruling or rulings of the Internal Revenue Service.
"Outstanding Series 2015 Bonds" or "Series 2015 Bonds Outstanding" means all Series
2015 Bonds which have been duly authenticated and delivered by the Bond Trustee under this
Bond Indenture, except:
(a)
Series 2015 Bonds canceled after purchase in the open market or because of
payment at or redemption prior to maturity;
(b)
Series 2015 Bonds for the payment or redemption of which cash or Government
Obligations shall have been theretofore deposited with the Bond Trustee (whether upon or
prior to the maturity or redemption date of any such Series 2015 Bonds) in accordance with
Article XI of this Bond Indenture; provided that if such Series 2015 Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given or arrangements
satisfactory to the Bond Trustee shall have been made therefor, or waiver of such notice
satisfactory in form to the Bond Trustee shall have been filed with the Bond Trustee;
(c)
Series 2015 Bonds in lieu of which others have been authenticated under Section
2.7 or 2.8 of this Bond Indenture; and
(d)
for the purpose of all consents, approvals, waivers and notices required to be
obtained or given under this Bond Indenture, Series 2015 Bonds held or owned by the Borrower
or any other Member of the Obligated Group or any Person controlling, controlled by or under
common control with the Borrower or any Member to the extent provided in Section 12.1
hereof.
"Paying Agent" means the Bond Trustee and the bank or banks, if any, designated
pursuant to this Bond Indenture to receive and disburse the principal of and interest on the
Series 2015 Bonds.
"Payment Date" means each Interest Payment Date and each Principal Payment Date.
"Person" means any natural person, firm, joint venture, association, partnership,
business trust, corporation, limited liability company, public body, agency or political
subdivision thereof or any other similar entity.
"Principal Payment Date" means the date on which a principal payment, whether at
maturity or pursuant to a mandatory sinking fund amortization, is due on the Series 2015
Bonds.
"Project Fund" means the fund by that name created in Section 3.2 hereof.
9
"Property, Plant and Equipment" has the meaning specified in the Master Indenture.
"Purchase Contract" means the Purchase Contract dated April 8, 2015, among SunTrust
Robinson Humphrey, together with any co-underwriters named therein, as underwriters, the
Issuer and the Borrower, providing for the sale of the Series 2015 Bonds.
"Qualified Investments" means, subject to the Tax Regulatory Agreement, any of the
following, if and to the extent that the same are at the time legal for investment of funds of the
Issuer:
A.
Direct obligations of the United States of America (including obligations issued
or held in book-entry form on the books of the Department of the Treasury, and CATS and
TIGRS) or obligations the principal of and interest on which are unconditionally guaranteed by
the United States of America.
B.
Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed
by any of the following federal agencies and provided such obligations are backed by the full
faith and credit of the United States of America (stripped securities are only permitted if they
have been stripped by the agency itself):
1.
U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial ownership
2.
Farmers Home Administration (FmHA)
Certificates of beneficial ownership
3.
Federal Financing Bank
4.
Federal Housing Administration Debentures (FHA)
5.
General Services Administration
Participation certificates
6.
Government National Mortgage Association (GNMA or "Ginnie Mae")
GNMA - guaranteed mortgage-backed bonds
GNMA - guaranteed pass-through obligations
(not acceptable for certain cash-flow sensitive issues.)
7.
U.S. Maritime Administration
Guaranteed Title XI financing
10
8.
U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed
public housing notes and bonds
C.
Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed
by any of the following non-full faith and credit U.S. government agencies (stripped securities
are only permitted if they have been stripped by the agency itself):
1.
Federal Home Loan Bank System
Senior debt obligations
2.
Federal Home Loan Mortgage Corporation (FHLMC or "Freddie Mac")
Participation Certificates
3.
Federal National Mortgage Association (FNMA or "Fannie Mae")
Mortgage-backed securities and senior debt obligations
4.
Student Loan Marketing Association (SLMA or "Sallie Mae")
5.
Resolution Funding Corp. (REFCORP) obligations
6.
Farm Credit System
Consolidated systemwide bonds and notes
D.
Money market funds which may be managed or advised by the Bond Trustee or
affiliates registered under the Federal Investment Company Act of 1940, whose shares are
registered under the Federal Securities Act of 1933, and having a rating by S&P of AAAm-G;
AAA-m; or AA-m and if rated by Moody's rated Aaa, Aa1 or Aa2.
E.
Certificates of deposit secured at all times by collateral described in (A) and/or
(B) above. Such certificates must be issued by commercial banks, savings and loan associations
or mutual savings banks. The collateral must be held by a third party and the bondholders
must have a perfected first security interest in the collateral.
F.
Certificates of deposit, savings accounts, deposit accounts or money market
deposits which are fully insured by FDIC, including BIF and SAIF, or an interest bearing
deposit account of the Trustee which is fully collateralized (for amounts in excess of FDIC
11
coverage) at 105% with obligations of the U.S. Government, senior debt obligations of any U.S.
Government Agency and/or municipal securities with an underlying rating of "A" of better.
G.
Commercial paper rated, at the time of purchase, in the single highest
classification, "P-1" by Moody's, F1+ by Fitch or "A-1+" by S&P, and which matures not more
than 270 calendar days after the date of purchase.
H.
Bonds or notes issued by any state which are rated by Moody's, Fitch or S&P in
one of the two highest rating categories assigned by such agencies or Bonds or notes issued by
any municipality which are rated "Aaa" by Moody's, "AAA" by Fitch or "AAA" by S&P.
I.
Federal funds or bankers acceptances with a maximum term of one year of any
bank which has an unsecured, uninsured and unguaranteed obligation rating of "Prime - 1" or
"A3" or better by Moody's and "A-1" or "A" or better by S&P.
J.
Repurchase Agreements for 30 days or less must follow the following criteria:
Repurchase agreements provide for the transfer of securities from a dealer bank or
securities firm (seller/borrower) to a municipal entity (buyer/lender), and the transfer of cash
from a municipal entity to the dealer bank or securities firm with an agreement that the dealer
bank or securities firm will repay the cash plus a yield to the municipal entity in exchange for
the securities at a specified date.
1.
Repos must be between the municipal entity and a dealer bank or
securities firm
a.
Primary dealers on the Federal Reserve reporting dealer list which
are rated A or better by Standard & Poor's or Moody's, or
b.
2.
Banks rated "A" or above by Standard & Poor's or Moody's.
The written repo contract must include the following:
a.
Securities which are acceptable for transfer are:
(l)
Direct U.S. governments, or
(2)
Federal agencies backed by the full faith and credit of the
U.S. government (and FNMA & FHLMC)
12
b.
The term of the repo may be up to 30 days
c.
The collateral must be delivered to the municipal entity, trustee (if
trustee is not supplying the collateral) or third party acting as agent for
the trustee (if the trustee is supplying the collateral) before/simultaneous
with payment (perfection by possession of certificated securities).
d.
Valuation of Collateral
(l)
The securities must be valued weekly, marked-to-market
at current market price plus accrued interest
(a)
The value of collateral must be equal to 104% of the
amount of cash transferred by the municipal entity to the
dealer bank or security firm under the repo plus accrued
interest. If the value of securities held as collateral slips
below 104% of the value of the cash transferred by
municipality, then additional cash and/or acceptable
securities must be transferred. If, however, the securities
used as collateral are FNMA or FHLMC, then the value of
collateral must equal 105%.
3.
Legal opinion which must be delivered to the Issuer to the effect that the
repo meets guidelines under state law for legal investment of public funds.
Rating categories when referred to in this definition shall be without regard to
gradations within such categories, such as "plus" or "minus."
"Rating Agency" means Moody's, Standard & Poor's and Fitch or their respective
successors and assigns.
"Rebate Fund" means the fund by that name created by the Tax Regulatory Agreement.
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) next
preceding an Interest Payment Date therefor.
"Redemption Fund" means the fund by that name created in Section 4.6 hereof.
"Refunded Bonds" shall be as defined in the recitals hereof.
"Representation Letter" means the Blanket Issuer Letter of Representations dated
December 17, 1998 from the Issuer to DTC.
13
"Series 2015 Bonds" or "Bonds" means the $76,690,000 aggregate principal amount of
City of Tampa, Florida Revenue and Revenue Refunding Bonds (The University of Tampa
Project), Series 2015, authorized to be outstanding by the Issuer pursuant to the terms and
conditions of Section 2.2 hereof.
"Special Record Date" means the date fixed by the Bond Trustee pursuant to Section 2.2
hereof for the payment of Defaulted Interest.
"Standard & Poor's" means Standard & Poor's, a corporation organized and existing
under the laws of the State of New York, its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a securities rating
agency, "Standard & Poor's" shall be deemed to refer to any other nationally recognized
securities rating agency which has been designated by the Borrower by notice to the Bond
Trustee and the Issuer.
"State" means the State of Florida.
"Substitute Obligation" has the meaning specified in Section 9.1 hereof.
"Tax-Exempt Organization" means a Person organized under the laws of the United
States of America or any state thereof which is an organization described in Section 501(c)(3) of
the Code, which is exempt from federal income taxes under Section 501(a) of the Code and
which is not a "private foundation" within the meaning of Section 509(a) of the Code, or
corresponding provisions of federal income tax laws from time to time in effect.
"Tax Regulatory Agreement" means the Tax Regulatory Agreement relating to the
Series 2015 Bonds dated as of April 1, 2015, among the Borrower, the Bond Trustee and the
Issuer.
"Unassigned Rights" means the right of the Issuer to receive payment of its fees and
expenses, the Issuer's right to indemnification in certain circumstances, the Issuer's right to
execute and deliver supplements and amendments to the Loan Agreement, the Issuer's right to
have notice and to grant consents under the Loan Agreement and the Issuer's right to exercise
the same rights of discretion as are granted to the Master Trustee under the Master Indenture.
"United States Government Obligations" means direct obligations of, or obligations the
payment of the principal of and interest on which are fully guaranteed by, the United States of
America.
"Written Request" means with reference to the Issuer, a request in writing signed by any
officer of the Issuer and with reference to the Borrower means a request in writing signed by the
President or a Vice President of the Borrower or any other officers designated in writing by the
14
Issuer or the Borrower, as the case may be. "Written Requests" to requisition amounts
deposited in the Project Fund shall be in substantially the form of Exhibit B hereto.
"2015 Supplement" has the meaning specified in the Preliminary Statement of this Bond
Indenture.
Words of the feminine gender shall be deemed and construed to include correlative
words of the masculine and neuter genders. Unless the context shall otherwise indicate, words
importing the singular number shall include the plural and vice versa. Headings of articles and
sections herein and the table of contents hereof are solely for the convenience of reference, do
not constitute a part hereof and shall not affect the meaning, construction or effect hereof. All
references in this instrument to designated "Articles," "Sections" and other subdivisions are to
the designated Articles, Sections and other subdivisions of this instrument as originally
executed. The words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Bond Indenture as a whole and not to any particular Article, Section or other subdivision
unless the context indicates otherwise.
ARTICLE II.
THE SERIES 2015 BONDS
SECTION 2.1.
AUTHORIZED AMOUNT OF SERIES 2015 BONDS. No Series
2015 Bonds may be outstanding under the provisions of this Bond Indenture except in
accordance with this Article. The Series 2015 Bonds shall be issued initially under this Bond
Indenture and thereafter shall be outstanding hereunder and shall be in the initial aggregate
principal amount of $76,690,000. No other Series 2015 Bonds may be issued under this Bond
Indenture.
SECTION 2.2.
ISSUANCE OF SERIES 2015 BONDS.
(a)
The Series 2015 Bonds shall be designated "City of Tampa, Florida Revenue and
Revenue Refunding Bonds (The University of Tampa Project), Series 2015." The Series 2015
Bonds shall be issued under this Bond Indenture and shall be fully registered Series 2015 Bonds
in Authorized Denominations. Unless the Issuer shall otherwise direct, the Series 2015 Bonds
shall be numbered from R-1 upward. Interest on the Series 2015 Bonds shall be payable on each
Interest Payment Date applicable thereto. Each Bond shall be dated as of the most recent
Interest Payment Date to which interest has been duly paid or provided for next preceding its
date of issue, unless issued on an Interest Payment Date on which interest has been paid or
provided for, in which event it shall be dated as of such Interest Payment Date or, if issued prior
to the first Interest Payment Date on which interest is paid, it shall be dated the date of delivery.
(b)
The Series 2015 Bonds shall mature on April 1, in the years and in the principal
amounts as follows and bear interest rates per annum set forth below:
15
Series 2015 Serial Bonds
Maturity Date
(April 1)
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
Principal Amount
$980,000
920,000
960,000
995,000
1,045,000
1,095,000
1,150,000
1,210,000
1,270,000
1,335,000
1,400,000
1,470,000
1,545,000
1,625,000
1,700,000
1,785,000
1,880,000
3,340,000
3,505,000
3,680,000
Interest Rate
4.00%
4.00
4.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
5.00
Series 2015 Term Bonds
Principal Amount
$15,555,000
$28,245,000
(c)
day months.
Interest Rate
5.00%
5.00%
Term Bonds maturing April 1, 2040
Term Bonds maturing April 1, 2045
Interest shall be calculated on the basis of a 360-day year composed of twelve 30-
(d)
The principal of and premium, if any, on the Series 2015 Bonds shall be payable
upon presentation and surrender thereof at the designated corporate office of the Bond Trustee,
or its successor in trust. Payment of principal of, premium, if any, and interest on the Series 2015
Bonds shall be payable in any currency of the United States of America which, at the respective
dates of payment thereof, is legal tender for the payment of public and private debts.
(e)
Interest payments on a Series 2015 Bond (other than with respect to Defaulted
Interest) shall be made to the registered owner thereof appearing on the Bond Register as of the
close of business of the Bond Registrar on the Record Date; provided, however, that such
payments shall be payable by check or draft of the Bond Trustee, from available amounts in the
16
Interest Fund, mailed on the Interest Payment Date to such registered owner at the address of
such owner as it appears on the Bond Register or at such other address furnished in writing by
such registered owner to the Bond Registrar or to any owner of $1,000,000 or more in aggregate
principal amount of Series 2015 Bonds as of the close of business of the Bond Registrar on the
Record Date for a particular Interest Payment Date, by wire transfer sent on the Interest
Payment Date, to such owner. The foregoing notwithstanding, Defaulted Interest shall be
payable as provided in (f) below.
(f)
Defaulted Interest with respect to any Series 2015 Bond shall cease to be payable
to the holder of such Bond on the relevant Record Date and shall be payable to the holder in
whose name such Bond is registered at the close of business on the Special Record Date for the
payment of such Defaulted Interest, which Special Record Date shall be fixed in the following
manner. The Borrower shall notify the Bond Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Bond and the date of the proposed payment (which date
shall be such as will enable the Bond Trustee to comply with the second sentence hereafter), and
shall deposit with the Bond Trustee at the time of such notice an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Bond Trustee for such deposit prior to the date of the proposed
payment. Money deposited with the Bond Trustee shall be held in trust for the benefit of the
holders of the Series 2015 Bonds entitled to such Defaulted Interest as provided in this Section.
Following receipt of such funds the Bond Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than fifteen (15) nor less than ten
(10) days prior to the date of the proposed payment and not less than ten (10) days after the
receipt by the Bond Trustee of the notice of the proposed payment. The Bond Trustee shall
promptly notify the Borrower of such Special Record Date and, in the name and at the expense
of the Borrower, shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, not less than ten (10) days
prior to such Special Record Date, to each holder of a Series 2015 Bond at the address of such
holder as it appears on the Bond Register.
SECTION 2.3.
EXECUTION; LIMITED OBLIGATION; NO LIABILITY OF
STATE. The Series 2015 Bonds shall be executed on behalf of the Issuer by the facsimile or
manual signature of its Mayor or Vice Mayor and its City Clerk (or such other Person as may be
designated by the Issuer) and shall have impressed or printed manually or by facsimile thereon
the corporate seal of the Issuer. The facsimile signatures of said Persons shall have the same
force and effect as if such Persons had manually signed each of said Series 2015 Bonds. In case
any officer whose signature or facsimile of whose signature shall appear on the Series 2015
Bonds shall cease to be such officer before the delivery of such Series 2015 Bonds, such
signature or such facsimile shall nevertheless be valid and sufficient for all purposes, the same
as if such Person had remained in office until delivery.
The principal of, premium, if any, and interest on the Series 2015 Bonds shall be special
and limited obligations of the Issuer payable solely from payments or prepayments to be made
17
on Obligation No. 6 and other amounts payable under the Loan Agreement (except for
Unassigned Rights and except to the extent paid out of moneys attributable to Bond proceeds or
the income from the temporary investment thereof and, under certain circumstances, proceeds
from insurance and condemnation awards) and shall be a valid claim of the respective holders
thereof only against the funds established under this Bond Indenture and other moneys held by
the Bond Trustee for the benefit of the Series 2015 Bonds and the payments due or to become
due upon or under Obligation No. 6 and the Loan Agreement (except for Unassigned Rights) all
of which are hereby assigned and pledged hereunder for the equal and ratable payment of the
Series 2015 Bonds and shall be used for no other purpose than to pay the principal of, premium,
if any, and interest on the Series 2015 Bonds, except as may be otherwise expressly authorized
in this Bond Indenture.
The principal of, premium, if any, and interest on the Series 2015 Bonds do not
constitute a debt or liability of the State or of any agency or political subdivision thereof, or a
pledge of the faith and credit of the Issuer, the State or of any political subdivision or agency
thereof, but shall be payable solely from the funds pledged therefor in accordance with this
Bond Indenture and Obligation No. 6. The issuance of the Series 2015 Bonds under the
provisions of the Act does not, directly, indirectly or contingently, obligate the Issuer, the State
or any agency or political subdivision thereof to levy any form of taxation for the payment
thereof or to make any appropriation for their payment and the Series 2015 Bonds and the
interest payable thereon do not now and shall never constitute a debt of the Issuer, the State or
any agency or political subdivision thereof within the meaning of the Constitution or the
statutes of the State and do not now and shall never constitute a charge against the credit or
taxing power of the Issuer, the State or any political subdivision or agency thereof. Neither the
State nor any political subdivision or agency thereof shall in any event be liable for the payment
of the principal of, redemption premium, if any, or interest on the Series 2015 Bonds or for the
performance of any pledge, obligation or agreement of any kind whatsoever which may be
undertaken by the Issuer. No breach by the Issuer of any such pledge, obligation or agreement
may impose any liability, pecuniary or otherwise, upon the Issuer, the State or any political
subdivision or agency thereof or any charge upon its or their general credit or against its or
their taxing power.
SECTION 2.4.
AUTHENTICATION. No Bond shall be valid or obligatory for any
purpose or entitled to any security or benefit under this Bond Indenture unless and until a
certificate of authentication on such Bond substantially in the form set forth in Exhibit A shall
have been duly executed by the Bond Trustee, and such executed certificate of the Bond Trustee
upon any such Bond shall be conclusive evidence that such Bond has been authenticated and
delivered under this Bond Indenture. The Bond Trustee's certificate of authentication on any
Bond shall be deemed to have been executed by it if signed by an authorized signatory of the
Bond Trustee but it shall not be necessary that the same signatory sign the certificate of
authentication on all of the Series 2015 Bonds issued hereunder.
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SECTION 2.5.
FORM OF SERIES 2015 BONDS AND TEMPORARY SERIES 2015
BONDS. The Series 2015 Bonds shall be substantially in the form set forth in Exhibit A hereto
with such appropriate variations, omissions and insertions as are permitted or required by this
Bond Indenture or deemed necessary by the Issuer.
The Series 2015 Bonds may be initially issued in temporary form exchangeable for
definitive Series 2015 Bonds when ready for delivery. The temporary Series 2015 Bonds shall be
of such denomination or denominations as may be determined by the Issuer, and may contain
such reference to any of the provisions of this Bond Indenture as may be appropriate. Every
temporary Bond shall be executed by the Issuer and be authenticated by the Bond Trustee upon
the same conditions and in substantially the same manner as the definitive Series 2015 Bonds. If
the Issuer issues temporary Series 2015 Bonds it will execute and furnish definitive Series 2015
Bonds without delay and thereupon the temporary Series 2015 Bonds may be surrendered for
cancellation in exchange therefor at the designated corporate trust office of the Bond Trustee,
and the Bond Trustee shall authenticate and deliver in exchange for such temporary Series 2015
Bonds an equal aggregate principal amount of definitive Series 2015 Bonds of authorized
denominations. Until so exchanged, the temporary Series 2015 Bonds shall be entitled to the
same benefits under this Bond Indenture as definitive Series 2015 Bonds authenticated and
delivered hereunder.
SECTION 2.6.
DELIVERY OF SERIES 2015 BONDS.
Upon the execution and
delivery of this Bond Indenture, the Issuer shall execute and deliver to the Bond Trustee and the
Bond Trustee shall authenticate the Series 2015 Bonds to be issued initially under this Bond
Indenture in the aggregate principal amount of $76,690,000 and the Bond Trustee shall deliver
them through the DTC system.
Prior to the delivery by the Bond Trustee of any of the Series 2015 Bonds, there shall be
filed with or delivered to the Bond Trustee and the Issuer:
(a)
a copy, duly certified by the Mayor or Vice Mayor or the City Clerk of the Issuer,
of the resolution adopted and approved by the Issuer authorizing the execution and delivery of
the Loan Agreement and this Bond Indenture and the issuance and sale of the Series 2015
Bonds;
(b)
a copy, duly certified by the Secretary or an Assistant Secretary of the Borrower,
of the resolutions adopted and approved by the Governing Body of the Borrower authorizing
the execution and delivery of the Master Indenture, Obligation No. 6, the Loan Agreement, the
Official Statement and the Tax Regulatory Agreement and approving this Bond Indenture and
the issuance and sale of the Series 2015 Bonds;
(c)
an executed copy of the Master Indenture, an original executed counterpart of
this Bond Indenture, the Loan Agreement, the Tax Regulatory Agreement and the Series 2015
19
Bond, and the original executed and authenticated Obligation No. 6 which shall be retained by
the Bond Trustee;
(d)
a request and authorization to the Bond Trustee on behalf of the Issuer and
signed by its Mayor or Vice Mayor to authenticate and deliver the Series 2015 Bonds to the
purchaser named therein upon payment to the Bond Trustee, but for the account of the Issuer,
of the net proceeds from the sale of the Series 2015 Bonds; and
(e)
such other closing documents and opinions of counsel as the Issuer, Counsel to
the Issuer or Bond Counsel may reasonably specify.
SECTION 2.7.
MUTILATED, LOST, STOLEN OR DESTROYED SERIES 2015
BONDS. In the event any temporary or definitive Series 2015 Bond is mutilated, lost, stolen or
destroyed, the Issuer may execute and the Bond Trustee may authenticate a new Bond of like
form, date and denomination as that mutilated, lost, stolen or destroyed; provided that, in the
case of any mutilated Bond, such mutilated Bond shall first be surrendered to the Issuer, and in
the case of any lost, stolen or destroyed Bond, there shall be first furnished to the Issuer and the
Bond Trustee evidence of such loss, theft or destruction satisfactory to the Issuer and the Bond
Trustee, together with indemnity satisfactory to them. In the event any such Series 2015 Bond
shall have matured, instead of issuing a duplicate Series 2015 Bond the Issuer may pay the same
without surrender thereof. The Issuer and the Bond Trustee may charge the holder or owner of
such Bond with their reasonable fees and expenses in this connection.
SECTION 2.8.
TRANSFER AND EXCHANGE OF SERIES 2015 BONDS;
PERSONS TREATED AS OWNERS. The Issuer shall cause the Bond Register to be kept at the
designated corporate trust office of the Bond Trustee, as Bond Registrar, which is hereby
constituted and appointed the registrar of the Issuer. Upon surrender for transfer of any Series
2015 Bond at the designated corporate trust office of the Bond Trustee, duly endorsed by, or
accompanied by a written instrument or instruments of transfer in form satisfactory to the Bond
Trustee and duly executed by, the registered owner or the attorney of such owner duly
authorized in writing, the Issuer shall execute and the Bond Trustee shall authenticate, date and
deliver in the name of the transferee or transferees a new Series 2015 Bond or Series 2015 Bonds
of the same maturity of authorized denominations, for the same aggregate principal amount
and of like tenor. Any Series 2015 Bond or Series 2015 Bonds may be exchanged at said office of
the Bond Trustee for the same aggregate principal amount of Series 2015 Bond or Series 2015
Bonds of other authorized denominations and of like tenor. The execution by the Issuer of any
Series 2015 Bond shall constitute full and due authorization of such Series 2015 Bond and the
Bond Trustee shall thereby be authorized to authenticate, date and deliver such Series 2015
Bond.
The Bond Trustee shall not be required to register the transfer of or exchange any Series
2015 Bond after the mailing of notice calling such Bond or portion thereof for redemption has
20
occurred as herein provided, or during the period of fifteen (15) days next preceding the giving
of notice calling any Series 2015 Bond or Series 2015 Bonds of the same maturity for redemption.
The Person in whose name any Series 2015 Bond shall be registered shall be deemed and
regarded as the absolute owner thereof for the purpose of receiving payment of or on account of
principal thereof and premium, if any, thereon and interest due thereon and for all other
purposes, and neither the Issuer, nor the Bond Trustee shall be affected by any notice to the
contrary, but such registration may be changed as herein provided. All such payments shall be
valid and effectual to satisfy and discharge the liability upon such Series 2015 Bond to the extent
of the sum or sums so paid.
Any Series 2015 Bond surrendered for the purpose of payment or retirement or for
exchange or transfer or for replacement pursuant to Section 2.7 or 2.8 hereof, shall be canceled
upon surrender thereof to the Bond Trustee or any Paying Agent. Any such Series 2015 Bonds
canceled by any Paying Agent other than the Bond Trustee shall be promptly transmitted by
such Paying Agent to the Bond Trustee. Certification of Series 2015 Bonds canceled by the Bond
Trustee and Series 2015 Bonds canceled by a Paying Agent other than the Bond Trustee which
are transmitted to the Bond Trustee shall be made to the Issuer and to the Borrower. Canceled
Series 2015 Bonds may be destroyed by the Bond Trustee unless instructions to the contrary are
received from the Issuer or the Borrower.
The Issuer and the Bond Trustee may charge each Bondholder requesting an exchange,
change in registration or registration of transfer a sum not exceeding the actual cost of any tax,
fee or other governmental charge required to be paid with respect to such exchange, registration
or transfer, except in the case of the issuance of a definitive Bond for a temporary Bond and
except in the case of the issuance of a Series 2015 Bond or Series 2015 Bonds for the unredeemed
portion of a Bond surrendered for redemption.
SECTION 2.9.
BOOK-ENTRY ONLY SYSTEM FOR THE SERIES 2015 BONDS.
The Series 2015 Bonds shall be initially issued in the form of a separate single fully registered
Bond for each of the maturities. Upon initial issuance, the ownership of each such Bond shall be
registered in the Bond Register in the name of Cede & Co., as nominee of DTC, and except as
provided in Section 2.10 hereof, all of the outstanding Series 2015 Bonds shall be registered in
the Bond Register in the name of Cede & Co., as nominee of DTC.
With respect to Series 2015 Bonds registered in the Bond Register in the name of Cede &
Co., as nominee of DTC, the Issuer, the Bond Trustee and the Borrower shall have no
responsibility or obligation to any DTC Participant or to any person on behalf of whom such a
DTC Participant holds an interest in the Series 2015 Bonds. Without limiting the immediately
preceding sentence, the Issuer, the Bond Trustee and the Borrower shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC
Participant with respect to any ownership interest in the Series 2015 Bonds, (ii) the delivery to
any DTC Participant or any other Person, other than a Bondholder, as shown in the Bond
21
Register, of any notice with respect to the Series 2015 Bonds, including any notice of
redemption, or (iii) the payment to any DTC Participant or any other Person, other than a
Bondholder, as shown in the Bond Register, of any amount with respect to principal of,
premium, if any, or interest on the Series 2015 Bonds. Notwithstanding any other provision of
this Bond Indenture to the contrary, the Issuer, the Bond Trustee, and each Paying Agent, if any,
shall be entitled to treat and consider the Person in whose name each Bond is registered in the
Bond Register as the absolute owner of such Bond for the purpose of payment of principal,
premium, if any, and interest on such Bond, for the purpose of giving notices of redemption
and other matters with respect to such Bond, for the purpose of registering transfers with
respect to such Bond, and for all other purposes whatsoever. The Bond Trustee and each
Paying Agent, if any, shall pay all principal of, premium, if any, and interest on the Series 2015
Bonds only to or upon the order of the respective Bondholders, as shown in the Bond Register
as provided in this Bond Indenture, or their respective attorneys duly authorized in writing,
and all such payments shall be valid and effective to satisfy and discharge the Issuer's
obligations fully with respect to payment of principal of, premium, if any, and interest on the
Series 2015 Bonds to the extent of the sum or sums so paid. No Person other than a Bondholder,
as shown in the Bond Register, shall receive a Bond certificate evidencing the obligation of the
Issuer to make payments of principal, premium, if any, and interest pursuant to this Bond
Indenture. Upon delivery by DTC to the Bond Trustee of written notice to the effect that DTC
has determined to substitute a new nominee in place of Cede & Co., and subject to the
provisions in this Bond Indenture with respect to interest checks or drafts being mailed to the
registered owner as of the close of business on the Record Date, the word "Cede & Co." in this
Bond Indenture shall refer to such new nominee of DTC; and upon receipt of such a notice the
Bond Trustee shall promptly deliver a copy thereof to each Paying Agent, if any.
SECTION 2.10. SUCCESSOR
SECURITIES
DEPOSITORY;
TRANSFERS
OUTSIDE BOOK-ENTRY ONLY SYSTEM. In the event that the Issuer or the Borrower
determines that DTC is incapable of discharging its responsibilities described herein and in the
Representation Letter or that it is in the best interest of the beneficial owners of the Series 2015
Bonds that they be able to obtain certificated Series 2015 Bonds, the Issuer or the Borrower shall
(i) appoint a successor securities depository, qualified to act as such under Section 17(a) of the
Securities Act of 1934, as amended, notify DTC and DTC Participants of the appointment of
such successor securities depository and transfer one or more separate Bond certificates to such
successor securities depository or (ii) notify the DTC and DTC Participants of the availability
through DTC of Bond certificates and transfer one or more separate Bond certificates to DTC
Participants having Series 2015 Bonds credited to their DTC accounts. In such event, the Series
2015 Bonds shall no longer be restricted to being registered in the Bond Register in the name of
Cede & Co., as nominee of DTC, but may be registered in the name of the successor securities
depository, or its nominee, or in whatever name or names Bondholders transferring or
exchanging Series 2015 Bonds shall designate, in accordance with the provisions of this Bond
Indenture. The Bond Trustee shall give written notice to the Borrower of a determination to
issue certificated bonds.
22
SECTION 2.11. PAYMENTS AND NOTICES TO CEDE & CO. Notwithstanding
any other provision of this Bond Indenture to the contrary, so long as any of the Series 2015
Bonds is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to
principal of, premium, if any, and interest on such Bond and all notices with respect to such
Bond shall be made and given, respectively, in the manner provided in the Representation
Letter. The Bond Trustee shall request in each notice sent to Cede & Co. pursuant to the terms
of this Bond Indenture that Cede & Co. forward or cause to be forwarded such notice to the
DTC Participants, but neither the Bond Trustee nor the Issuer shall be liable if the Bond Trustee
fails to make such request or if Cede & Co. fails to honor such request.
ARTICLE III.
APPLICATION OF SERIES 2015 BOND PROCEEDS AND
REQUIRED FUND DEPOSITS
SECTION 3.1.
EXPENSE FUND. A special fund is hereby established with the Bond
Trustee and designated the "Series 2015 Bond Expense Fund – The University of Tampa,
Incorporated" (hereinafter called the "Expense Fund") to the credit of which such deposits shall
be made as are required by the provisions of Section 3.3 of this Bond Indenture.
The money in the Expense Fund shall be held by the Bond Trustee in trust and shall be
applied to the payment of the costs of issuing the Series 2015 Bonds, including necessary
incidental expenses and reimbursement to the Borrower for such costs and expenses paid by the
Borrower in connection with issuing the Series 2015 Bonds and, pending such application, shall
be subject to a lien and charge in favor of the holders of the Series 2015 Bonds for their security
until paid out.
After completion of payment of all costs of issuance of the Series 2015 Bonds, as certified
by a Written Request of the Borrower to the Bond Trustee, and in any event no later than
December 31, 2015, any surplus money in the Expense Fund shall be transferred to the Interest
Fund.
Payments from the Expense Fund shall be made in accordance with the provisions of
this paragraph. Before any such payment shall be made, there shall be filed with the Bond
Trustee a Written Request of the Borrower (which may be in the form of a closing
memorandum signed by the Borrower or in the form of Exhibit B attached hereto) stating (i) the
name of the person, firm or corporation to whom each such payment is due, (ii) the amount of
each payment, and (iii) the purpose by general classification for which each obligation to be
paid was incurred. Invoices for the matters referenced therein shall be on file with the Borrower
and available upon request of the Issuer or the Bond Trustee and if the purpose of the Written
Request is to reimburse the Borrower for prior expenditures, proof of prior payment by the
Borrower of such invoices shall be so filed and available. Upon receipt of each Written Request
the Bond Trustee shall pay the obligation set forth in such requisition out of money in the
Expense Fund, and each such obligation shall be paid by wire transfer or by check signed by
23
one or more officers or employees of the Bond Trustee designated for such purpose by the Bond
Trustee. In making such payments the Bond Trustee may rely upon such Written Requests.
SECTION 3.2.
PROJECT FUND. A special fund is hereby established with the
Bond Trustee and designated the "Series 2015 Bond Project Fund – The University of Tampa,
Incorporated" (hereinafter called the "Project Fund"), to the credit of which such deposits shall
be made as are required by the provisions of Section 3.3 of this Bond Indenture.
Monies in the Project Fund shall be held by the Bond Trustee in trust and shall be
applied to the payment of, and reimbursement to the Borrower for, costs and expenses in
connection with the 2015 Project, and, pending such application, shall be subject to a lien and
charge in favor of the holders of the Series 2015 Bonds for their security until paid out.
After completion of the 2015 Project, as certified in a Written Request of the Borrower to
the Bond Trustee, surplus money in the Project Fund shall be applied as directed in such
Written Request as follows (and in the following order): (a) to pay the costs of new
improvements or equipment for the Borrower, but only upon receipt by the Bond Trustee of an
Opinion of Bond Counsel that such payment will not adversely affect the validity of, or the
exclusion from gross income for federal income tax purposes of interest on, the Series 2015
Bonds, and (b) to the Redemption Fund and held as a segregated subaccount therein to be used
to purchase and retire Series 2015 Bonds at the Written Request of the Borrower or to redeem
Series 2015 Bonds on their first optional redemption date, and such surplus money shall not be
invested at a yield exceeding the yield on the Series 2015 Bonds.
Payments from the Project Fund shall be made in accordance with the following
provisions: Before any such payment shall be made, there shall be filed with the Bond Trustee a
Written Request of the Borrower stating:
(a)
The name of the person, firm or corporation to whom each such payment is due;
(b)
The respective amounts to be paid;
(c)
The purpose by general classification for which each obligation to be paid was
incurred; and
(d)
That obligations in the stated amounts have been incurred by the Borrower and
are presently due and payable and that each item thereof is a necessary cost of the 2015 Project
and is a proper charge against the Project Fund and has not been paid previously from the
Project Fund.
Upon receipt of each Written Request, the Bond Trustee shall pay the obligations set
forth in such Written Request out of moneys in the Project Fund, and each such obligation shall
be paid by check signed by the Bond Trustee or by wire transfer in accordance with the
24
instructions provided by the Borrower. In making such payments, the Bond Trustee may rely
upon such Written Request.
SECTION 3.3.
DEPOSIT OF BOND PROCEEDS. The Issuer, for and on behalf of
the Borrower, shall deposit or cause to be initially deposited with the Bond Trustee in the
Project Fund all of the Series 2015 Bond proceeds in the amount of $85,349,917.00 (par amount
of the Series 2015 Bonds of $76,690,000, plus original issue premium of $8,928,990.50, less
Underwriter's discount of $269,073.50) loaned to the Borrower from the sale of the Series 2015
Bonds and thereafter the Bond Trustee shall deposit such proceeds as follows:
(a)
Deposit $441,997.72 to the credit of the Expense Fund established pursuant to
Section 3.1 hereof;
(b)
Deposit $37,268,222.21 (which consists of proceeds of the Series 2015 Bonds and
does not include certain funds on deposit with the trustee for the Series 2006 Bonds) with the
Escrow Agent under the Escrow Deposit Agreement to advance refund the Series 2006 Bonds;
(c)
Deposit $12,639,697.07 with The Bank of Tampa to refund the 2013 Bank Loan;
(d)
Deposit $35,000,000.00 in the Project Fund established pursuant to Section 3.2
and
hereof.
ARTICLE IV.
REVENUES AND FUNDS
SECTION 4.1.
SOURCE OF PAYMENT OF SERIES 2015 BONDS. The Series 2015
Bonds herein authorized and all payments to be made by the Issuer thereon and into the
various Funds established under this Bond Indenture are not general obligations of the Issuer
but are special limited obligations payable solely from payments or prepayments upon
Obligation No. 6, other amounts payable under the Loan Agreement pledged hereunder (it
being understood that such pledged payments do not include the Issuer's expenses and
amounts payable to the Issuer as indemnification under certain circumstances), and amounts on
deposit in the Funds created hereunder (other than the Rebate Fund).
SECTION 4.2.
REVENUE PAYMENT FUND. The Issuer shall establish with the
Bond Trustee and maintain so long as any of the Series 2015 Bonds are outstanding a separate
account to be known as the "Revenue Payment Fund – The University of Tampa, Incorporated"
(hereinafter called the "Revenue Payment Fund"). The Revenue Payment Fund shall be held by
the Bond Trustee. All payments upon Obligation No. 6 and under the Loan Agreement, as and
when received by the Bond Trustee, shall be deposited in the Revenue Payment Fund and shall
be held therein until disbursed as herein provided. Pursuant to the assignment and pledge of
payments upon Obligation No. 6 and under the Loan Agreement set forth in the granting
25
clauses contained herein, the Issuer will direct the Borrower to make payments upon Obligation
No. 6 and under the Loan Agreement directly to the Bond Trustee when and as the same
become due and payable under the terms of Obligation No. 6 and the Loan Agreement.
SECTION 4.3.
INTEREST FUND.
(a)
The Issuer shall establish with the Bond Trustee and maintain so long as any of
the Series 2015 Bonds are outstanding a separate account to be known as the "Series 2015 Bond
Interest Fund - The University of Tampa, Incorporated" (hereinafter called the "Interest Fund").
The Interest Fund shall be held by the Bond Trustee.
(b)
Not later than the tenth (10th) day preceding each October 1 and April 1,
commencing with October 1, 2015, the Bond Trustee shall deposit in the Interest Fund from
moneys in the Revenue Payment Fund an amount which, together with any moneys already on
deposit in the Interest Fund and available to make such payment, will not be less than the
amount of interest to become due on the Series 2015 Bonds on the next succeeding Interest
Payment Date. No deposit pursuant to this paragraph need be made if and to the extent that
there is a sufficient amount already on deposit and available for such purpose in the Interest
Fund.
(c)
Except as provided in this paragraph, in Section 7.6 or Section 8.2 hereof and in
the Tax Regulatory Agreement, moneys in the Interest Fund shall be used solely to pay interest
on the Series 2015 Bonds when due. The Bond Trustee shall at all times maintain accurate
records of deposit into the Interest Fund and the sources and dates of such deposits.
(d)
If by the second Business Day preceding any Interest Payment Date, after the
transfer described in Section 4.3(b) hereof, there is not enough money in the Interest Fund to
make the payments of interest due on the Series 2015 Bonds, then the Bond Trustee agrees to
give notice of that fact to the Master Trustee, the Borrower and the Issuer.
SECTION 4.4.
BOND SINKING FUND.
(a)
Sinking Fund – The University of Tampa, Incorporated" (hereinafter called the "Bond Sinking
Fund"). The Bond Sinking Fund shall be held by the Bond Trustee.
(b)
Not later than the tenth (10th) day preceding each April 1, commencing with
April 1, 2016, after making the deposits required by Section 4.3 hereof, the Bond Trustee shall
deposit in the Bond Sinking Fund from moneys in the Revenue Payment Fund an amount
which will be not less than the amount of principal to become due on the Series 2015 Bonds on
the next succeeding Principal Payment Date, whether by maturity or by mandatory Bond
Sinking Fund redemption. No deposit pursuant to this paragraph need be made if and to the
26
extent that there is a sufficient amount already on deposit and available for such purpose in the
Bond Sinking Fund.
(c)
Except as provided in this paragraph, in Sections 7.6 or 8.2 hereof and in the Tax
Regulatory Agreement, moneys in the Bond Sinking Fund shall be used solely for the payment
of principal of the Series 2015 Bonds as the same shall become due and payable at maturity and
to redeem the Series 2015 Bonds in accordance with the mandatory Bond Sinking Fund
redemption schedule provided in Section 5.1 hereof. The Bond Trustee shall at all times
maintain accurate records of deposits into the Bond Sinking Fund, and the sources and dates of
such deposits.
(d)
In lieu of such mandatory Bond Sinking Fund redemption the Bond Trustee may,
at the written request of the Borrower, purchase an equal principal amount of Series 2015 Bonds
with the same Maturity Date in the open market at prices not exceeding the principal amount of
the Series 2015 Bonds being purchased plus accrued interest. In addition, the amount of Series
2015 Bonds to be redeemed on any date pursuant to the mandatory Bond Sinking Fund
redemption schedule shall be reduced by the principal amount of Series 2015 Bonds with the
same Maturity Date which are acquired by the Borrower and delivered to the Bond Trustee for
cancellation.
(e)
If by the second Business Day preceding any Bond Sinking Fund payment date
after the transfer described in Section 4.4(b) hereof there is not enough money in the Bond
Sinking Fund to make the payments of principal due on the Series 2015 Bonds then the Bond
Trustee agrees to give notice of that fact to the Borrower, the Master Trustee and the Issuer.
SECTION 4.5.
[RESERVED].
SECTION 4.6.
REDEMPTION FUND.
(a)
Redemption Fund – The University of Tampa, Inc." (the "Redemption Fund"). In the event of
(i) prepayment by or on behalf of the Borrower or any Member of amounts payable on
Obligation No. 6 or under the Loan Agreement, (ii) receipt by the Bond Trustee of
condemnation awards or insurance proceeds for purposes of redeeming Series 2015 Bonds or
(iii) deposit with the Bond Trustee by the Borrower or the Issuer of moneys from any other
source for redeeming Series 2015 Bonds, except as otherwise provided in Section 4.4 of this
Bond Indenture, such moneys shall be deposited in the Redemption Fund.
(b)
Moneys on deposit in the Redemption Fund shall be used first to make up any
deficiencies existing in the Interest Fund and the Bond Sinking Fund (in the order listed) and
second for the purchase or redemption of Series 2015 Bonds in accordance with the provisions
of Article V hereof.
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SECTION 4.7.
INVESTMENT OF FUNDS; INCOME.
(a)
Moneys in the Revenue Payment Fund, Interest Fund, Bond Sinking Fund,
Expense Fund, the Project Fund and Redemption Fund shall be invested in Qualified
Investments upon a Written Request of the Borrower filed with the Bond Trustee; provided,
however, that moneys held in the Redemption Fund shall only be invested in United States
Government Obligations with a term not exceeding the earlier of 30 days from the date of
investment of such moneys or the date such moneys are anticipated to be required. Absent a
written request regarding investment instructions, the Bond Trustee shall invest the subject
moneys in the investment vehicle in item D of the definition of the term "Qualified
Investments." Other than the monies in the Redemption Fund, such investments shall be made
so as to mature on or prior to the date or dates that moneys therefrom are anticipated to be
required. The Bond Trustee, when authorized by the Borrower, may trade with itself in the
purchase and sale of securities for such investments; provided, however, that in no case shall
any investment be otherwise than in accordance with the investment limitations contained
herein and in the Tax Regulatory Agreement. The Bond Trustee shall not be liable or
responsible for any loss resulting from any such investments. Any purchase or sale of securities
may be accomplished through the Bond Trustee's bond department.
(b)
All income derived from the investment of moneys on deposit in the following
funds shall be deposited as follows:
(i)
income derived from the investment of moneys on deposit in the Interest
Fund, Redemption Fund, Expense Fund and the Bond Sinking Fund shall be retained in
such Funds; and
(ii)
income derived from the investment of moneys on deposit in the Project
Fund (A) prior to the completion of the 2015 Project, shall be retained in the Project Fund
and (B) after completion of the 2015 Project, shall be applied in accordance with Section
3.2 hereof.
SECTION 4.8.
TRUST FUNDS; ELIGIBLE ACCOUNTS. All moneys required to be
deposited with or paid to the Bond Trustee for the account of any fund or account referred to in
any provision of this Bond Indenture or the Loan Agreement shall be held by the Trustee in
trust under the terms hereof for the benefit of the Bondholders, and shall, while held by the
Bond Trustee, constitute part of the trust estate and be subject to the lien and security interest
created hereby, and shall not be subject to lien or attachment of any creditor of the Issuer or the
Borrower; except as otherwise specifically provided herein. Furthermore, each such account is
designated an Eligible Account. In the event that an account required to be an Eligible Account
no longer constitutes an Eligible Account, the Bond Trustee shall promptly (and, in any case,
within not more than thirty (30) calendar days) move such account to another financial
institution such that the Eligible Account requirements will be again satisfied.
28
SECTION 4.9.
EXCLUDED FUNDS; TRANSFERS TO REBATE FUND. The
foregoing provisions of this Article IV notwithstanding, (i) the Rebate Fund shall not be
considered a part of the "trust estate" created by this Bond Indenture and (ii) the Bond Trustee
shall be permitted to transfer moneys on deposit in any of the trust funds established under this
Article IV to the Rebate Fund in accordance with the provisions of the Tax Regulatory
Agreement.
ARTICLE V.
REDEMPTION OF SERIES 2015 BONDS
SECTION 5.1.
MANDATORY SINKING FUND REDEMPTIONS.
(i)
The Series 2015 Bonds maturing on April 1, 2040, are required to be retired, in
accordance with the schedule set forth below, by redemption prior to maturity or at maturity
beginning on April 1, 2036, and annually on April 1 thereafter to and including April 1, 2040, by
operation of the Bond Sinking Fund as provided in this Bond Indenture at the principal
amounts set forth below (without premium) plus accrued interest to the redemption date. The
Series 2015 Bonds maturing on April 1, 2040 to be so redeemed shall be selected by the Bond
Trustee by lot in any customary manner of selection as determined by the Bond Trustee. If
Series 2015 Bonds are to be called for optional redemption on the same date as Series 2015
Bonds are to be redeemed by mandatory redemption, the Series 2015 Bonds shall be selected
first for optional redemption and then for mandatory redemption, but in accordance with
Section 5.5 hereof.
Redemption Date
(April 1)
2036
2037
2038
2039
2040*
Amount
$3,865,000
4,060,000
2,420,000
2,540,000
2,670,000
__________
*Maturity
(ii)
The Series 2015 Bonds maturing on April 1, 2045 are required to be retired, in
accordance with the schedule set forth below, by redemption prior to maturity or at maturity
beginning on April 1, 2041 and annually on April 1 thereafter to and including April 1, 2045, by
operation of the Bond Sinking Fund as provided in this Bond Indenture at the principal
amounts set forth below (without premium) plus accrued interest to the redemption date. The
Series 2015 Bonds maturing on April 1, 2045 to be so redeemed shall be selected by the Bond
Trustee by lot in any customary manner of selection as determined by the Bond Trustee. If
Series 2015 Bonds are to be called for optional redemption on the same date as Series 2015
29
Bonds are to be redeemed by mandatory redemption, the Series 2015 Bonds shall be selected
first for optional redemption and then for mandatory redemption, but in accordance with
Section 5.5 hereof.
Redemption Date
(April 1)
2041
2042
2043
2044
2045*
Amount
$2,800,000
2,945,000
7,135,000
7,495,000
7,870,000
__________
*Maturity
SECTION 5.2.
EXTRAORDINARY OPTIONAL REDEMPTION.
(a)
The Series 2015 Bonds are also subject to redemption prior to maturity by the
Issuer, to the extent of available Net Proceeds (as defined in the 2015 Supplement) of insurance
or condemnation, upon the direction of the Borrower in the event (i) the Project or any portion
thereof are damaged, destroyed or condemned, (ii) the Net Proceeds of insurance or
condemnation received in connection therewith exceed the greater of (a) five percent (5%) of
Property, Plant and Equipment of the Obligated Group (as defined in the Master Indenture) or
(b) $500,000 and (iii) the Borrower elects to have all or any part of such Net Proceeds applied to
the prepayment of Obligation No. 6. If called for redemption in any such event, the Series 2015
Bonds shall be subject to redemption in whole or in part at any time, and if in part, by
maturities designated by the Borrower (and, if less than all of a maturity is being redeemed, by
lot within a maturity) at a redemption price equal to the principal amount thereof plus accrued
interest to the redemption date, without premium.
(b)
The Series 2015 Bonds are also subject to redemption prior to their maturity, as a
whole or in part, at the direction of the Borrower on the earliest practicable date in the event
that (i) the Governing Body of the Borrower determines in good faith that continued operation
of the Project (or portions thereof) is not financially feasible or is otherwise disadvantageous to
the Borrower; (ii) as a result thereof, the Borrower sells, leases or otherwise disposes of all or a
portion of the Project to a Person or entity unrelated to the Borrower; and (iii) there is delivered
to the Bond Trustee a written statement of Bond Counsel to the effect that, unless the Series 2015
Bonds are redeemed or retired in the amount specified either prior to or concurrently with such
sale, lease or other disposition, or on a subsequent date prior to the first date on which the
Series 2015 Bonds are subject to redemption, at the option of the Borrower, such Bond Counsel
will be unable, absent payment of penalties by the Borrower or the Issuer to the Internal
Revenue Service, to render an unqualified opinion that such sale, lease or other disposition of
all or a portion of the Project will not adversely affect the validity of any Series 2015 Bonds or
any exemption from federal income taxation to which the interest on such Series 2015 Bonds
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would otherwise be entitled. Any redemption undertaken under this Section 5.2 shall be at a
redemption price (plus accrued interest to the redemption date) equal to the principal amount
thereof, without premium.
SECTION 5.3.
OPTIONAL REDEMPTION.
(a)
The Series 2015 Bonds maturing on or before April 1, 2025, shall not be subject to
optional redemption prior to maturity. Notwithstanding Section 5.2 herein, the Series 2015
Bonds maturing after April 1, 2025 shall be subject to redemption and payment prior to
maturity by the Issuer, upon written direction of the Borrower, on and after April 1, 2025, in
whole or in part at any time at a redemption price of par, plus accrued interest thereon to the
redemption date. A copy of such written direction of the Borrower shall be provided by the
Borrower to the Trustee.
(b)
Any Series 2015 Bonds which are Obligated Group Bonds are subject to
redemption in whole or in part (in an Authorized Denomination) prior to their Maturity Date at
the option of the Issuer upon direction of the Borrower out of amounts prepaid on Obligation
No. 6 and deposited in the Redemption Fund, in whole or in part (and if in part, in an
Authorized Denomination) on any Business Day while such Series 2015 Bonds are Obligated
Group Bonds at a redemption price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the redemption date.
SECTION 5.4.
NOTICE OF REDEMPTION.
(a)
Except as hereinafter provided, a copy of the notice of the call for any such
redemption identifying the Series 2015 Bonds to be redeemed shall be given by the Trustee by
first class mail, postage prepaid, to the registered owners of Series 2015 Bonds to be redeemed
at their addresses as shown on the Bond Register not less than thirty (30) days and not more
than sixty (60) days prior to the redemption date. Except for mandatory Bond Sinking Fund
redemptions, prior to the date that the redemption notice is first given as aforesaid, funds shall
be placed with the Bond Trustee or an escrow agent to pay the principal of such Series 2015
Bonds, any premium thereon and accrued interest thereon to the redemption date, or,
alternatively a provision in such notice of a statement that any redemption is conditional on
such funds being deposited with the Bond Trustee or an escrow agent on or before the
redemption date and that a failure to make such deposit shall not constitute a Default
hereunder.
(b)
Failure to give notice in the manner prescribed hereunder with respect to any
Bond, or any defect in such notice, shall not affect the validity of the proceedings for
redemption for any Bond with respect to which notice was properly given. Upon the
happening of the above conditions and if sufficient moneys are on deposit with the Bond
Trustee on the applicable redemption date to redeem the Series 2015 Bonds to be redeemed and
to pay interest due thereon and premium, if any, the Series 2015 Bonds thus called shall not
31
after the applicable redemption date bear interest, be protected by this Bond Indenture or be
deemed to be outstanding under the provisions of this Bond Indenture. The Bond Trustee shall
redeem, in the manner provided in this Article V, such an aggregate principal amount of such
Series 2015 Bonds at the principal amount thereof plus accrued interest to the redemption date
and unpaid thereon and premium, if any, as will exhaust as nearly as practicable such funds.
At the direction of the Borrower, such funds may be invested in United States Government
Obligations until needed for redemption payout in accordance with Section 4.7 herein.
(c)
Notwithstanding the foregoing, so long as Series 2015 Bonds are subject to the
book-entry only system of registration, such notice shall only be sent to the corresponding
securities depository (which shall initially be DTC) and such notice may be sent by means of
facsimile or any other means acceptable to the securities depository.
(d)
If any Bond is transferred or exchanged on the Bond Register by the Bond
Registrar after notice has been given calling such Bond for redemption, the Bond Registrar will
attach a copy of such notice to the Bond issued in connection with such transfer.
SECTION 5.5.
METHOD OF SELECTING SERIES 2015 BONDS IN CASE OF
PARTIAL REDEMPTION. In the event that less than all of the Outstanding Series 2015 Bonds
or portions thereof shall be optionally redeemed, the maturities of the Series 2015 Bonds to be
redeemed shall be designated by the Borrower and, if not so designated, the Series 2015 Bonds
to be redeemed shall be redeemed in inverse order of maturity. If less than all Series 2015
Bonds or portions thereof of a single maturity are to be optionally redeemed or if less than all of
a maturity of a Series 2015 Bond issued under Section 5.1 hereof with Bond Sinking Fund
redemptions are to be optionally redeemed, then the particular years of the sinking fund
redemptions for that maturity shall be designated by the Borrower.
In case a Bond is of an amount larger than $5,000, a portion of such Bond ($5,000 or any
integral multiple thereof) may be redeemed, but Series 2015 Bonds shall be redeemed only in
the principal amount of $5,000 each or any integral multiple thereof. Upon surrender of any
Bond for redemption in part only, the Issuer shall execute and the Bond Trustee shall
authenticate and deliver to the owner thereof, at the expense of the Borrower, a new Bond or
Series 2015 Bonds of the same maturity of Authorized Denominations in an aggregate principal
amount equal to the unredeemed portion of the Bond surrendered.
SECTION 5.6.
SERIES 2015 BONDS DUE AND PAYABLE ON REDEMPTION
DATE; INTEREST CEASES TO ACCRUE. Except as otherwise provided in Sections 5.1 and
5.4 hereof, on or before the Business Day prior to the redemption date specified in the notice of
redemption, an amount of money which together with all amounts then on deposit in the Bond
Sinking Fund or the Redemption Fund, as appropriate and available for redemption of the
Series 2015 Bonds shall be sufficient to redeem all Series 2015 Bonds called for redemption at the
appropriate redemption price, including accrued interest to the date fixed for redemption, shall
be paid to the Bond Trustee for deposit in the Bond Sinking Fund or the Redemption Fund, as
32
appropriate. On the redemption date the principal amount of each Bond to be redeemed,
together with the accrued interest thereon to such date and redemption premium, if any, shall
become due and payable; and from and after such date, notice having been given and the
deposit having been made in accordance with the provisions of this Article V, then,
notwithstanding that any Series 2015 Bonds called for redemption shall not have been
surrendered, no further interest shall accrue on any such Series 2015 Bonds. From and after
such date of redemption (such notice having been given and such deposit having been made),
the Series 2015 Bonds to be redeemed shall not be deemed to be Outstanding hereunder, and
the Issuer shall be under no further liability in respect thereof.
SECTION 5.7.
CANCELLATION. All Series 2015 Bonds which have been redeemed
shall be cancelled and cremated or otherwise destroyed by the Bond Trustee and shall not be
reissued and a counterpart of the certificate of cremation or other destruction evidencing such
cremation or other destruction shall be furnished by the Bond Trustee to the Issuer and the
Borrower; provided, however, that one or more new Series 2015 Bonds shall be issued for the
unredeemed portion of any Bond without charge to the holder thereof.
ARTICLE VI.
GENERAL COVENANTS
SECTION 6.1.
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
Subject to the limited source of payment hereinafter referred to, the Issuer covenants that it will
promptly pay the principal of, premium, if any, and interest on the Series 2015 Bonds issued
under this Bond Indenture at the place, on the dates and in the manner provided herein and in
said Bonds according to the true intent and meaning thereof. The principal of and interest and
premium, if any, on the Series 2015 Bonds are payable solely from payments or prepayments by
the Borrower upon Obligation No. 6 and otherwise as provided herein and in Obligation No. 6
and under the Loan Agreement, which Obligation No. 6 and payments thereon are hereby
specifically assigned and pledged to the payment of the Series 2015 Bonds in the manner and to
the extent herein specified, and nothing in the Series 2015 Bonds or in this Bond Indenture shall
be considered as assigning or pledging any other funds or assets of the Issuer (except the
moneys, Obligation No. 6 and the Loan Agreement pledged under this Bond Indenture).
SECTION 6.2.
PERFORMANCE OF COVENANTS; LEGAL AUTHORIZATION.
The Issuer covenants that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Bond Indenture, in any and every
Bond executed, authenticated and delivered hereunder and in all proceedings of its members
pertaining thereto. The Issuer shall not be required to perform any undertaking or to execute
any instrument pursuant to the provisions hereof until it shall have been requested to do so by
the Borrower or the Bond Trustee, or shall have received the instrument to be executed and, at
the option of the Issuer, shall have received from the party requesting such performance or
execution assurance satisfactory to the Issuer that the Issuer shall be reimbursed for its
reasonable expenses incurred or to be incurred in connection with such performance or
33
execution. The Issuer represents that it is duly authorized under the Constitution and laws of
the State to issue the Series 2015 Bonds authorized hereby, to execute this Bond Indenture, to
assign the Loan Agreement and to pledge and assign Obligation No. 6 and payments thereon
under this Bond Indenture in the manner and to the extent herein set forth; all action on its part
for the issuance of the Series 2015 Bonds and the execution and delivery of this Bond Indenture
has been taken; and the Series 2015 Bonds in the hands of the holders thereof as shown on the
Bond Register are and will be valid and enforceable obligations of the Issuer according to the
import thereof.
SECTION 6.3.
OWNERSHIP; INSTRUMENTS OF FURTHER ASSURANCE. The
Issuer represents that the pledge and assignment of Obligation No. 6 and the assignment of its
interest in the Loan Agreement (other than the Unassigned Rights) to the Bond Trustee hereby
made are valid. The Issuer covenants that it will defend, at the sole cost of the Borrower, its title
to Obligation No. 6 and its interest in the Loan Agreement and the assignment thereof to the
Bond Trustee, for the benefit of the holders of the Series 2015 Bonds against the claims and
demands of all Persons whomsoever. The Issuer covenants that, at the sole cost of the
Borrower, it will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such further acts,
instruments and transfers as may reasonably be required for the better assuring, transferring,
conveying, pledging, assigning and confirming unto the Bond Trustee, Obligation No. 6, the
Loan Agreement and all payments thereon and thereunder pledged hereby to the payment of
the principal of, premium, if any, and interest on the Series 2015 Bonds.
SECTION 6.4.
RECORDING AND FILING. The Issuer covenants that, solely from
additional amounts payable as provided in Section 4.8 of the Loan Agreement and upon the
written direction of the Borrower, it will cause, if necessary, this Bond Indenture and all
supplements hereto and the Loan Agreement and all supplements thereto, and all related
financing statements, to be kept, recorded and filed in such manner and in such places as may
be required by law in order to preserve and protect fully the security of the holders of the Series
2015 Bonds and the rights of the Bond Trustee hereunder.
SECTION 6.5.
BOOKS AND RECORDS. The Issuer covenants that so long as any
Series 2015 Bonds are outstanding and unpaid, to the extent of its financial dealings or
transactions in relation to the Borrower and the amounts derived from Obligation No. 6 or the
Loan Agreement pledged under this Bond Indenture, it will cause the Bond Trustee to keep, or
cause to be kept, proper records and accounts. Such records and accounts shall at all times be
open for any lawful purpose to the inspection of such accountants or other agencies as the
Issuer may from time to time designate.
SECTION 6.6.
LIST OF BONDHOLDERS. The Bond Registrar will keep on file at
its office the Bond Register, indicating the names and addresses of the holders of the Series 2015
Bonds and the serial numbers of such Series 2015 Bonds held by each of such holders. At
reasonable times and under reasonable regulations established by the Bond Registrar, the Bond
34
Register may be inspected and copied, or request may be made of DTC for its list of beneficial
owners, by the Borrower, the Issuer or by the authorized representative of any holder or holders
of ten percent (10%) or more in outstanding principal amount of the Series 2015 Bonds, such
ownership and the authority of any such designated representatives to be evidenced to the
satisfaction of the Bond Registrar.
SECTION 6.7.
RIGHTS UNDER THE LOAN AGREEMENT; BOND TRUSTEE AS
HOLDER OF OBLIGATION NO. 6. The Issuer agrees that the Bond Trustee in its own name
or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the
Borrower under and pursuant to the Loan Agreement for and on behalf of the Bondholders
(other than the Unassigned Rights), whether or not the Issuer is in default hereunder. The Bond
Trustee shall be considered the holder of Obligation No. 6.
SECTION 6.8.
DESIGNATION OF ADDITIONAL PAYING AGENTS. The Issuer
may, in its discretion, cause the necessary arrangements to be made through the Bond Trustee
and to be thereafter continued for the designation of alternate Paying Agents and for the
making available of funds hereunder for the payment of such of the Series 2015 Bonds as shall
be presented when due at the designated corporate trust office of the Bond Trustee, or its
successor in trust hereunder, or at the designated corporate trust office of said alternate Paying
Agents.
SECTION 6.9.
ARBITRAGE; COMPLIANCE WITH TAX REGULATORY
AGREEMENT. The Issuer covenants and agrees that it will not take any action or fail to take
any action with respect to the investment of the proceeds of any Series 2015 Bonds issued under
this Bond Indenture (regardless of the source thereof and whether or not held under this Bond
Indenture) or with respect to the payments derived from Obligation No. 6 pledged hereunder
or from the Loan Agreement or any other moneys regardless of source or where held which
may, notwithstanding compliance with the other provisions of this Bond Indenture, the Loan
Agreement and the Tax Regulatory Agreement, result in constituting the Series 2015 Bonds
"arbitrage bonds" within the meaning of such term as used in Section 148 of the Code.
ARTICLE VII.
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1.
EVENTS OF DEFAULT.
declared an "event of default:"
Each of the following events is hereby
(a)
payment of any installment of interest on any of the Series 2015 Bonds (other
than Obligated Group Bonds) shall not be made when the same shall become due and payable;
or
(b)
payment of the principal of or the redemption premiums, if any, on any of the
Series 2015 Bonds (other than Obligated Group Bonds) shall not be made when the same shall
35
become due and payable, either at maturity, by proceedings for redemption or through failure
to make any payment to any Bond Sinking Fund hereunder or under the Master Indenture or
otherwise; or
(c)
the Issuer shall for any reason be rendered incapable of fulfilling its obligations
hereunder; or
(d)
an order or decree shall be entered, appointing a receiver, receivers, custodian or
custodians for any of the revenues of the Issuer, or approving a petition filed against the Issuer
seeking reorganization of the Issuer under the federal bankruptcy laws or any other similar law
or statute of the United States of America or any state thereof, or if any such order or decree,
having been entered without the consent or acquiescence of the Issuer, shall not be vacated or
discharged or stayed on appeal within sixty (60) days after the entry thereof; or
(e)
any proceeding shall be instituted, with the consent or acquiescence of the Issuer,
or any plan shall be entered into by the Issuer, for the purpose of effecting a composition
between the Issuer and its creditors or for the purpose of adjusting the claims of such creditors
pursuant to any federal or State statute now or hereafter enacted, if the claims of such creditors
are under any circumstances payable from any part or all of the trust estate, including money
derived by the Issuer under Obligation No. 6 pledged under this Bond Indenture or the Loan
Agreement (other than Unassigned Rights); or
(f)
the Issuer (i) files a petition in bankruptcy under the applicable title of the United
States Code, as amended, (ii) makes an assignment for the benefit of its creditors, (iii) consents
to the appointment of a receiver, custodian or trustee for itself or for the whole or any part of
the trust estate or (iv) is generally not paying its debts as such debts become due; or
(g)
(i) the Issuer is adjudged insolvent by a court of competent jurisdiction, (ii) on a
petition in bankruptcy filed against the Issuer it is adjudged a bankrupt, or (iii) an order,
judgment or decree is entered by any court of competent jurisdiction appointing, without the
consent of the Issuer, a receiver, custodian or trustee of the Issuer or of the whole or any part of
its property and any of the aforesaid adjudications, orders, judgments or decrees shall not be
vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or
(h)
the Issuer shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state thereof; or
(i)
under the provisions of any other law for the relief or aid of debtors, any court of
competent jurisdiction shall assume custody or control of the Issuer or of the whole or any
substantial part of its property, and such custody or control shall not be terminated within
thirty (30) days from the date of assumption of such custody or control; or
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(j)
any event of default as defined in Section 6.1 of the Loan Agreement or in Section
4.1 of the Master Indenture shall occur and such event of default shall be continuing from and
after the date the Issuer is entitled under the Loan Agreement to request that the Master Trustee
declare Obligation No. 6 pledged and amounts due under the Loan Agreement pledged under
this Bond Indenture to be immediately due and payable, or such event of default shall be
continuing from and after the date on which the Master Trustee is entitled under the Master
Indenture to declare Obligation No. 6 immediately due and payable, or the Master Trustee shall
declare Obligation No. 6 immediately due and payable; or
(k)
the Issuer shall default in the due and punctual performance of any other of the
covenants, conditions, agreements and provisions contained in the Series 2015 Bonds or in this
Bond Indenture or in any indenture supplemental hereto on the part of the Issuer to be
performed, and such default shall continue for thirty (30) days after written notice specifying
such default and requiring the same to be remedied shall have been given to the Issuer and the
Borrower by the Bond Trustee, which notice the Bond Trustee may give in its discretion and
must give at the request of the owners of not less than twenty-five percent (25%) in aggregate
principal amount of the Series 2015 Bonds then Outstanding hereunder; provided, that, if such
default cannot with due diligence and dispatch be wholly cured within sixty (60) days but can
be wholly cured, the failure of the Issuer to remedy such default within such sixty (60) day
period shall not constitute a default hereunder if the Issuer shall immediately upon receipt of
such notice commence with due diligence and dispatch the curing of such default and, having
so commenced the curing of such default, shall thereafter prosecute and complete the same with
due diligence and dispatch.
SECTION 7.2.
ACCELERATION. Any provision in this Bond Indenture to the
contrary notwithstanding, upon the occurrence of an event of default specified in subsections
(c) through (k) of Section 7.1 hereof the Bond Trustee may, and upon the written request of the
owners of not less than a majority in principal amount of the Series 2015 Bonds then
outstanding hereunder (exclusive of Obligated Group Bonds and any Series 2015 Bonds the
registered owner of which is the Issuer) and upon being indemnified to its satisfaction as
provided in Section 8.1(l) hereof, the Bond Trustee shall, or upon the occurrence and
continuance of an event of default specified in subsection (a) or (b) of Section 7.1 hereof, the
Bond Trustee shall, by notice in writing delivered to the Issuer, the Master Trustee and the
Borrower, declare the entire principal amount of the Series 2015 Bonds then outstanding
hereunder and the interest accrued thereon immediately due and payable, and the entire
principal and interest shall thereupon become and be immediately due and payable, subject,
however, to the provisions of Section 7.10 hereof with respect to waivers of events of default.
The Bond Trustee shall give notice thereof by first class mail, postage prepaid, to all owners of
outstanding Series 2015 Bonds; provided, however, that the giving of such notice shall not be
considered a precondition to the Bond Trustee declaring the entire principal amount of the
Series 2015 Bonds then outstanding and the interest accrued thereon immediately due and
payable. The Series 2015 Bonds shall cease to accrue interest on the date of acceleration if they
are paid on such date.
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SECTION 7.3.
REMEDIES; RIGHTS OF SERIES 2015 BONDHOLDERS.
(a)
Upon the occurrence of any event of default the Bond Trustee may take whatever
action at law or in equity it deems necessary or desirable together, to the extent applicable, with
the Master Trustee (i) to collect any amounts then due under this Bond Indenture, the Series
2015 Bonds, the Loan Agreement, the Master Indenture or Obligation No. 6, (ii) to enforce
performance of any obligation, agreement or covenant of the Issuer under this Bond Indenture
or the Series 2015 Bonds, of the Borrower under the Loan Agreement, Obligation No. 6, or the
Master Indenture, of a guarantor under any guaranty given with respect to any Bond or
Obligation No. 6 or of the grantor of any other collateral given to secure the payment of the
Series 2015 Bonds or Obligation No. 6 or (iii) to otherwise enforce any of its rights or assist the
Master Trustee in enforcing its rights.
(b)
If an event of default shall have occurred, and if it shall have been requested to
do so by the holders of a majority in aggregate principal amount of the Series 2015 Bonds
outstanding and shall have been indemnified as provided in 8.1 hereof, the Bond Trustee shall
be obligated to exercise such one or more of the rights and powers conferred by this Section as
the Bond Trustee shall deem most expedient in the interests of the holders of the Series 2015
Bonds; provided, however, that the Bond Trustee shall have the right to decline to comply with
any such request if the Bond Trustee shall be advised by counsel (who may be its own
counsel) that the action so requested may not lawfully be taken or the Bond Trustee in good
faith shall determine that such action would be unjustly prejudicial to the holders of the Series
2015 Bonds not parties to such request or would subject the Bond Trustee to personal liability.
(c)
No remedy by the terms of this Bond Indenture conferred upon or reserved to
the Bond Trustee (or to the holders of the Series 2015 Bonds) is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and shall be in addition to
any other remedy given to the Bond Trustee or to the holders of the Series 2015 Bonds
hereunder now or hereafter existing at law or in equity or by statute.
(d)
No delay or omission to exercise any right or power accruing upon any default
or event of default shall impair any such right or power or shall be construed to be a waiver of
any such default or event of default, or acquiescence therein; and every such right and power
may be exercised from time to time and as often as may be deemed expedient.
(e)
No waiver of any default or event of default, hereunder, whether by the Bond
Trustee, the holders of the Series 2015 Bonds, shall extend to or shall affect any subsequent
default or event of default or shall impair any rights or remedies consequent thereon.
SECTION 7.4.
DIRECTION OF PROCEEDINGS BY HOLDERS. The holders of
not less than a majority in aggregate principal amount of the Series 2015 Bonds then
outstanding, shall have the right, at any time, by an instrument or instruments in writing
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executed and delivered to the Bond Trustee, to direct the method and place of conducting all
proceedings to be taken in connection with the enforcement of the terms and conditions of this
Bond Indenture, including enforcement of the rights of the Issuer under the Loan Agreement
(other than Unassigned Rights) or for the appointment of a receiver or any other proceedings
hereunder; provided that such direction shall be in accordance with the provisions of law and
of this Bond Indenture.
SECTION 7.5.
APPOINTMENT OF RECEIVERS. Upon the occurrence of an event
of default, and upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Bond Trustee and the holders of Series 2015 Bonds under this Bond
Indenture, the Bond Trustee shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the properties pledged hereunder and of the revenues, issues, payments
and profits thereof, pending such proceedings, with such powers as the court making such
appointment shall confer.
SECTION 7.6.
APPLICATION OF MONEYS.
(a)
Subject to the provisions of Section 4.1 hereof and the Tax Regulatory
Agreement, all moneys received by the Bond Trustee, by any receiver or by any Bondholder
pursuant to any right given or action taken under the provisions of this Article VII shall, after
payment of the costs and expenses of the proceedings resulting in the collection of such moneys
and of the expenses, including legal fees and expenses, liabilities and advances incurred or
made by the Bond Trustee, be deposited in the Bond Sinking Fund, and all moneys so deposited
during the continuance of an event of default (other than moneys for the payment of Series 2015
Bonds which have previously matured or otherwise become payable prior to such event of
default or for the payment of interest due prior to such event of default), together with all
moneys in the Funds maintained by the Bond Trustee under Articles III and IV hereof, shall be
applied as follows:
(i)
Unless the principal of all the Series 2015 Bonds shall have become or
shall have been declared due and payable, all such moneys shall be applied:
First: To the payment of amounts, if any, payable pursuant to the Tax
Regulatory Agreement;
Second: To the payment to the Persons entitled thereto of all installments
of interest then due on the Series 2015 Bonds, in the order of the maturity of the
installments of such interest, and, if the amount available shall not be sufficient
to pay in full any particular installment, then to the payment ratably, according
to the amounts due on such installment, to the Persons entitled thereto, without
any discrimination or privilege; and
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Third: To the payment to the Persons entitled thereto of the unpaid
principal of any of the Series 2015 Bonds which shall have become due (other
than the Series 2015 Bonds called for redemption for the payment of which
moneys are held pursuant to the provisions of this Bond Indenture), and, if the
amount available shall not be sufficient to pay in full the Series 2015 Bonds, then
to the payment ratably, according to the amount of principal due to the Persons
entitled thereto, without any discrimination or privilege.
(ii)
If the principal of all the Series 2015 Bonds shall have become due or shall
have been declared due and payable, all such moneys shall be applied:
First: To the payment of amounts, if any, payable pursuant to the Tax
Regulatory Agreement; and
Second: To the payment of the principal and interest then due and
unpaid upon the Series 2015 Bonds, without preference or priority of principal
over interest or of interest over any other installment of interest, or of any Bond
over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Persons entitled thereto without any discrimination
or privilege.
(iii)
If the principal of all the Series 2015 Bonds shall have been declared due
and payable, and if such declaration shall thereafter have been rescinded and annulled
under the provisions of this Article, then, subject to the provisions of paragraph (b) of
this Section in the event that the principal of all the Series 2015 Bonds shall later become
due or be declared due and payable, the moneys shall be applied in accordance with the
provisions of paragraph (a) of this Section.
(b)
Whenever moneys are to be applied by the Bond Trustee pursuant to the
provisions of this Section, such moneys shall be applied by it at such times, and from time to
time, as the Bond Trustee shall determine, having due regard for the amount of such moneys
available for application and the likelihood of additional moneys becoming available for such
application in the future. Whenever the Bond Trustee shall apply such moneys, it shall fix the
date (which shall be an Interest Payment Date unless it shall deem another date more
suitable) upon which such application is to be made and upon such date interest on the
amounts of principal to be paid on such date shall cease to accrue. The Bond Trustee shall give
notice of the deposit with it of any such moneys and of the fixing of any such date and of the
Special Record Date in accordance with Section 2.2(f) hereof 10 days prior to the Special Record
Date. The Bond Trustee shall not be required to make payment to the holder of any unpaid
Bond until such Bond shall be presented to the Bond Trustee for appropriate endorsement or for
cancellation if fully paid.
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(c)
Whenever all Series 2015 Bonds and interest thereon have been paid under the
provisions of this Section 7.6 and all expenses and charges of the Bond Trustee have been paid,
any balance remaining shall be paid to the Persons entitled to receive the same and then to the
Borrower.
SECTION 7.7.
REMEDIES VESTED IN BOND TRUSTEE. All rights of action
including the right to file proof of claims under this Bond Indenture or under any of the Series
2015 Bonds may be enforced by the Bond Trustee without the possession of any of the Series
2015 Bonds or the production thereof in any trial or other proceedings relating thereto and any
such suit or proceeding instituted by the Bond Trustee shall be brought in its name as Bond
Trustee without the necessity of joining as plaintiffs or defendants any holders of the Series 2015
Bonds, and any recovery of judgment shall be for the equal benefit of the holders of the
Outstanding Series 2015 Bonds.
SECTION 7.8.
RIGHTS AND REMEDIES OF BONDHOLDERS. No holder of any
Bond shall have any right to institute any suit, action or proceedings in equity or at law for the
enforcement of this Bond Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless the holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Series 2015 Bonds then
outstanding shall have made written request to the Bond Trustee and shall have offered it
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, and unless also they have offered to
the Bond Trustee indemnity as provided in Section 8.1, and unless the Bond Trustee shall
thereafter fail or refuse to exercise the power hereinbefore granted, or to institute such action,
suit or proceeding in its own name; and such notification, request and offer of indemnity are
hereby declared in every case at the option of the Bond Trustee to be conditions precedent to the
execution of the powers and trusts of this Bond Indenture and to any action or cause of action
for the enforcement of this Bond Indenture, or for the appointment of a receiver or for any other
remedy hereunder; it being understood and intended that no one or more holders of the Series
2015 Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the
lien of this Bond Indenture by its, his, her or their action or to enforce any right hereunder
except in the manner herein provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the equal benefit of the
holders of all Series 2015 Bonds outstanding. Nothing in this Bond Indenture contained shall,
however, affect or impair the right of any Bondholder to enforce the payment of the principal of
and interest on any Bond at and after the maturity thereof, or the obligation of the Issuer to pay
the principal of and interest on each of the Series 2015 Bonds issued hereunder to the respective
holders thereof at the time and place, from the source and in the manner in said Series 2015
Bonds expressed.
SECTION 7.9.
TERMINATION OF PROCEEDINGS. In case the Bond Trustee
shall have proceeded to enforce any right under this Bond Indenture by the appointment of a
receiver, or otherwise, and such proceedings shall have been discontinued or abandoned for
41
any reason, or shall have been determined adversely to the Bond Trustee, then and in every case
the Issuer and the Bond Trustee shall, subject to any determination in such proceeding, be
restored to their former positions and rights hereunder with respect to the property pledged
and assigned hereunder, and all rights, remedies and powers of the Bond Trustee shall continue
as if no such proceedings had been taken.
SECTION 7.10. WAIVER OF EVENTS OF DEFAULT. The Bond Trustee may,
except with respect to defaults described in (1) below, waive any event of default hereunder
and its consequences and rescind any declaration of maturity of principal, and shall do so,
(1) upon written request of the owners of at least a majority in aggregate principal amount of all
the Series 2015 Bonds outstanding in respect of which default in the payment of principal when
due (whether by mandatory redemption through the Bond Sinking Fund or at the dates of
maturity specified therein) and/or interest when due exists, or (2) upon written request of the
owners of at least a majority in aggregate principal amount of all the Series 2015 Bonds
outstanding in the case of any other event of default. The foregoing notwithstanding, in no
event shall there be waived (a) any event of default in the payment of the principal of any
Outstanding Series 2015 Bonds when due whether by mandatory redemption through the Bond
Sinking Fund or at the dates of maturity specified therein, or (b) any default in the payment
when due of the interest on any such Series 2015 Bonds unless prior to such waiver or rescission
all arrears of interest, with interest thereon (to the extent permitted by law) at the rate borne by
the Series 2015 Bonds in respect of which such default shall have occurred on overdue
installments of interest or all arrears of payments of principal when due (other than as a result
of acceleration), as the case may be, and all expenses of the Bond Trustee and any Paying Agent
in connection with such default shall have been paid or provided for and in case of any such
waiver or rescission or in case any proceeding taken by the Bond Trustee on account of any
such default shall have been discontinued or abandoned or determined adversely, then and in
every such case the Issuer, the Bond Trustee and the Bondholders shall, subject to any
determination in such proceeding, be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to any subsequent or other default, or
impair any right consequent thereon.
SECTION 7.11.
BORROWER'S RIGHTS OF POSSESSION AND USE OF
PROPERTY. So long as the Borrower is in full compliance with the terms and provisions of the
Loan Agreement, it shall be suffered and permitted to possess, use and enjoy its property and
appurtenances thereto free of claims hereunder of the Issuer or the Bond Trustee.
SECTION 7.12. WAIVER OF REDEMPTION; EFFECT OF SALE OF TRUST
ESTATE. The Issuer, to the extent permitted by law, shall not claim any rights under any stay,
valuation, exemption or extension law, and hereby waives any right of redemption which it
may have in respect of the Property (as defined in the Master Indenture) of the Borrower. Upon
the institution of any foreclosure proceedings or upon any sale of the property of the Borrower
to satisfy amounts owing under the Loan Agreement, or any acceleration of the maturity of
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Obligation No. 6, the principal of all Series 2015 Bonds then outstanding hereunder, if not
previously due and payable, shall without more become immediately due and payable.
SECTION 7.13. NOTICE OF DEFAULT; ENDORSEMENT OF OBLIGATION
NO. 6. In the event of any default hereunder, the Bond Trustee will promptly give written
notice thereof to the Issuer, the Borrower and the Master Trustee setting forth the nature of such
default. In the event of a default hereunder and in the event the Issuer is requested by the Bond
Trustee to endorse Obligation No. 6, as permitted under the Florida Uniform Commercial Code,
such endorsement may, in the discretion of the Issuer, be without recourse.
ARTICLE VIII.
THE BOND TRUSTEE
SECTION 8.1.
ACCEPTANCE OF THE TRUSTS. The Bond Trustee accepts and
agrees to execute the trusts imposed upon it by this Bond Indenture, but only upon the terms
and conditions set forth herein. The Bond Trustee, prior to the occurrence of an event of default
and after the curing of all events of default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Bond Indenture and no
implied covenants or obligations should be read into this Bond Indenture against the Bond
Trustee. In case an event of default hereunder has occurred and is continuing, the Bond Trustee
shall exercise such of the rights and powers vested in it by this Bond Indenture and shall use the
same degree of care as a prudent person would exercise or use in the circumstances in the
conduct of such person's own affairs. The Bond Trustee agrees to perform such trusts only
upon and subject to the following expressed terms and conditions:
(a)
The Bond Trustee may execute any of the trusts or powers hereof and perform
any of its duties by or through attorneys, agents, receivers or employees and shall not be
responsible for the misconduct or negligence of the same appointed in accordance with the
standard specified above, and shall be entitled to advice of counsel concerning all matters of
trusts hereof and duties hereunder, and may in all cases pay such reasonable compensation to
any attorney, agent, receiver or employee retained or employed by it in connection herewith.
The Bond Trustee may act upon the opinion or advice of an attorney, surveyor, engineer or
accountant selected by it in the exercise of reasonable care or, if selected or retained by the
Issuer, approved by the Bond Trustee in the exercise of such care. The Bond Trustee shall not
be responsible for any loss or damage resulting from any action or inaction based on its good
faith reliance upon such opinion or advice.
(b)
The Bond Trustee shall not be responsible for any recital herein, or in the Series
2015 Bonds (except with respect to the certificate of the Bond Trustee endorsed on the Series
2015 Bonds), or for the investment of moneys as herein provided (except that no investment
shall be made except in accordance with Sections 4.7 and 5.4(b) hereof), or for the recording or
rerecording, filing or re-filing of this Bond Indenture, or any supplement or amendment thereto,
or the filing of financing statements, or for the validity of the execution by the Issuer of this
43
Bond Indenture, or of any supplemental indentures or instruments of further assurance, or for
the sufficiency of the security for the Series 2015 Bonds issued hereunder or intended to be
secured hereby, or for the value or title of the property herein conveyed or otherwise as to the
maintenance of the security hereof. The Bond Trustee may (but shall be under no duty
to) require of the Issuer and the Borrower full information and advice as to the performance of
the covenants, conditions and agreements in the Loan Agreement and shall make its best
efforts, but without any obligation, to advise the Issuer and the Borrower of any default known
to the Bond Trustee. Except as otherwise provided in Section 8.4 hereof, the Bond Trustee shall
have no obligation to perform any of the duties of the Issuer under the Loan Agreement.
(c)
The Bond Trustee shall not be accountable for the use or application by the Issuer
or the Borrower of any of the Series 2015 Bonds or the proceeds thereof or for the use or
application of any money paid over by the Bond Trustee in accordance with the provisions of
this Bond Indenture or for the use and application of money received by any Paying Agent
(except when the Bond Trustee acts as Paying Agent). The Bond Trustee may become the
owner of Series 2015 Bonds secured hereby with the same rights it would have if not Bond
Trustee.
(d)
The Bond Trustee shall be protected in acting upon any notice, order, requisition,
request, consent, certificate, order, opinion (including an opinion of Independent Counsel),
affidavit, letter, telegram or other paper or document in good faith deemed by it to be genuine
and correct and to have been signed or sent by the proper person or persons. The Bond Trustee
shall be protected in relying upon any telephonic or other electronic communication deemed by
it in good faith to be genuine and correct and to be from the proper person or persons whenever
this Bond Indenture permits such telephonic or other electronic communication. Any action
taken by the Bond Trustee pursuant to this Bond Indenture upon the request or authority or
consent of any person who at the time of making such request or giving such authority or
consent is the owner of any Bond, shall be conclusive and binding upon all future owners of the
same Bond and upon Series 2015 Bonds issued in exchange therefor or in place thereof.
(e)
As to the existence or non-existence of any fact or as to the sufficiency of validity
of any instrument, paper or proceedings, the Bond Trustee shall be entitled to rely upon a
certificate signed on behalf of the Issuer by its Mayor or Vice Mayor or its City Clerk or Chief
Financial Officer as sufficient evidence of the facts therein contained and prior to the occurrence
of a default of which the Bond Trustee has been notified as provided in subsection (g) of this
Section, or of which by said subsection it is deemed to have notice, shall also be at liberty to
accept a similar certificate to the effect that any particular dealing, transaction or action is
necessary or expedient, but may at its discretion secure such further evidence deemed necessary
or advisable, but shall in no case be bound to secure the same. The Bond Trustee may accept a
certificate of the City Clerk of the Issuer under its seal to the effect that a resolution in the form
therein set forth has been adopted by the Issuer as conclusive evidence that such resolution has
been duly adopted, and is in full force and effect.
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(f)
The permissive right of the Bond Trustee to do things enumerated in this Bond
Indenture shall not be construed as a duty and the Bond Trustee shall not be answerable for
other than its negligence or willful default.
(g)
Other than having actual notice, the Bond Trustee shall not be deemed to have
notice of any default hereunder except failure by the Issuer to cause to be made any of the
payments to the Bond Trustee required to be made by Article IV unless the Bond Trustee shall
be specifically notified in writing of such default by the Issuer, or by the holders of at least
twenty-five percent (25%) in aggregate principal amount of all Series 2015 Bonds Outstanding,
and all notices or other instruments required by this Bond Indenture to be delivered to the Bond
Trustee must, in order to be effective, be delivered at the designated corporate trust office of the
Bond Trustee, and in the absence of such notice so delivered, the Bond Trustee may not been
deemed to have notice of a default.
(h)
The Bond Trustee shall not be personally liable for any debts contracted or for
damages to persons or to personal property injured or damaged, or for salaries or
nonfulfillment of contracts during any period in which it may be in possession of or managing
any property.
(i)
At any and all reasonable times, and upon reasonable prior notice, the Bond
Trustee, and the duly authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right fully to inspect any and all of the property pledged
hereunder, including all books, papers and records of the Issuer pertaining to the property
pledged hereunder and the Series 2015 Bonds, and to take such memoranda from and in regard
thereto as may be desired.
(j)
The Bond Trustee shall not be required to give any bond or surety in respect of
the execution of the said trusts and powers or otherwise in respect of the premises.
(k)
Notwithstanding anything elsewhere in this Bond Indenture contained, the Bond
Trustee shall have the right, but shall not be required, to demand, in respect of the
authentication of any Series 2015 Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this Bond Indenture, any showings,
certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of such action by the Bond Trustee
deemed desirable for the purpose of establishing the right of the Issuer to the authentication of
any Series 2015 Bonds, the withdrawal of any cash, the release of any property or the taking of
any other action by the Bond Trustee.
(l)
Before taking any action under Article VII other than making payments of
principal, interest and purchase price on the Series 2015 Bonds as they become due, or
redeeming Series 2015 Bonds pursuant to Section 5.1, the Bond Trustee may require that a
satisfactory indemnity bond be furnished for the reimbursement of all expenses (including
45
reasonable attorneys fees) to which it may be put and to protect it against all liability, except
liability which is adjudicated to have resulted from its negligence or willful default in
connection with any action so taken.
(m)
All moneys received by the Bond Trustee or any Paying Agent shall, until used
or applied or invested as provided in this Bond Indenture or in the Tax Regulatory Agreement,
be held in trust for the purposes for which they were received but need not be segregated from
other funds except to the extent required by law or by this Bond Indenture or the Tax
Regulatory Agreement. Neither the Bond Trustee nor any Paying Agent shall be under any
liability for interest on any moneys received hereunder except as provided under the Tax
Regulatory Agreement or as may be otherwise agreed upon.
(n)
Any payments required to be made by the Bond Trustee shall be limited to
amounts deposited with, or otherwise made available to the Bond Trustee under the Trust
Estate.
SECTION 8.2.
FEES, CHARGES AND EXPENSES OF BOND TRUSTEE AND
ANY ADDITIONAL PAYING AGENT. The Bond Trustee shall be entitled to payment and/or
reimbursement for reasonable fees and for its services, including its services as Paying Agent
and Bond Registrar, and all advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Bond Trustee in connection with such services. Any
additional Paying Agent shall be entitled to payment and reimbursement for its reasonable fees
and charges as additional Paying Agent for the Series 2015 Bonds. Upon an event of default,
but only upon an event of default, the Bond Trustee and any additional Paying Agent shall have
a right of payment prior to payment on account of interest or principal of or premium, if any, on
any Bond for the foregoing advances, fees, costs, and expenses incurred; provided that the Bond
Trustee and any such Paying Agent shall not have a prior right to payment or claim therefor
against (a) moneys held to pay the redemption price, including premium, of the Series 2015
Bonds previously called for redemption or (b) moneys or obligations deposited with or paid to
the Bond Trustee for the redemption or payment of Series 2015 Bonds which are deemed to
have been paid in accordance with Article XI hereof.
The Issuer shall require the Borrower, pursuant to the Loan Agreement, and the
Borrower shall, indemnify and hold harmless the Bond Trustee against any liabilities which the
Bond Trustee may incur in the exercise and performance of its powers and duties hereunder
and under any other agreement referred to herein which are not due to the Bond Trustee's
negligence or willful misconduct, and for any reasonable fees and expenses of the Bond Trustee
to the extent funds are not available under this Bond Indenture for the payment thereof. The
rights of the Bond Trustee under this Section 8.2 shall survive the payment in full of the Series
2015 Bonds and the discharge of this Bond Indenture.
When the Bond Trustee incurs expenses or renders services after an event of default
specified in Section 7.1 occurs, the reasonable expenses and the compensation for services
46
(including the reasonable fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under applicable bankruptcy law.
SECTION 8.3.
NOTICE TO THE ISSUER, THE MASTER TRUSTEE AND
BONDHOLDERS IF DEFAULT OCCURS. If a default occurs of which the Bond Trustee is by
subsection (g) of Section 8.1 hereof required to take notice or if notice of default be given as in
said subsection (g) provided, then the Bond Trustee shall give written notice thereof by mail to
the Issuer, the Master Trustee and the registered owners of all Series 2015 Bonds then
outstanding as shown on the Bond Register.
SECTION 8.4.
INTERVENTION BY BOND TRUSTEE. In any judicial proceeding
to which the Issuer or the Borrower is a party and which in the opinion of the Bond Trustee and
its counsel has a substantial bearing on the interests of the registered owners of the Series 2015
Bonds, the Bond Trustee may intervene on behalf of the Bondholders and, subject to the
provisions of Section 8.1(l), shall do so if requested in writing by the registered owners of at
least twenty-five percent (25%) in aggregate principal amount of all Series 2015 Bonds then
outstanding. The rights and obligations of the Bond Trustee under this Section are subject to
the approval of a court of competent jurisdiction.
SECTION 8.5.
SUCCESSOR BOND TRUSTEE. Any corporation or association into
which the Bond Trustee may be converted or merged, or with which it may be consolidated, or
to which it may sell or transfer its corporate trust business and assets as a whole or substantially
as a whole, or any corporation or association resulting from any such conversion, sale, merger,
consolidation or transfer to which it is a party, provided such corporation or association is
otherwise eligible under Section 8.6 hereof, shall be and become the successor Bond Trustee
hereunder and vested with all of the title to the whole property of the trust estate and all the
trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor,
without the execution or filing of any instrument or any further act, deed or conveyance on the
part of any of the parties hereto, anything herein to the contrary notwithstanding; provided,
however, that notice of such successor and the contact information therefor shall be provided to
the Bondholders, the Borrower and the Issuer thirty (30) days prior to such sale or transfer.
SECTION 8.6.
BOND TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Bond Trustee hereunder which shall be a commercial bank or trust company
operating within the State organized under the laws of the United States of America or the State
or another state, authorized to exercise corporate trust powers, subject to supervision or
examination by federal or state authorities, and having a reported combined capital and surplus
of not less than $50,000,000 or assets under administration of not less than $200,000,000. If at
any time the Bond Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner provided in Section 8.7 hereof. No
resignation or removal of the Bond Trustee and no appointment of a successor Bond Trustee
shall become effective until the successor Bond Trustee has accepted its appointment under
Section 8.10 hereof.
47
SECTION 8.7.
RESIGNATION BY THE BOND TRUSTEE. The Bond Trustee and
any successor Bond Trustee may at any time resign from the trusts hereby created by giving
written notice to the Issuer and the Borrower and by registered or certified mail to each
registered owner of the Series 2015 Bonds then outstanding, as shown by the Bond Register.
Such notice to the Issuer and the Borrower may be served personally or sent by registered or
certified mail or overnight delivery service.
SECTION 8.8.
REMOVAL OF THE BOND TRUSTEE. The Bond Trustee may be
removed, by an instrument or concurrent instruments in writing delivered to the Bond Trustee
and the Issuer, and signed by the registered owners of not less than a majority in aggregate
principal amount of the Series 2015 Bonds then outstanding. So long as no event of default has
occurred and is continuing under this Bond Indenture or the Loan Agreement and no event
shall have occurred which with the passage of time or the giving of notice or both would
become such an event of default under this Bond Indenture or the Loan Agreement, the Bond
Trustee may also be removed at any time by an instrument in writing by the Borrower, with
notice to the Issuer and delivered to the Bond Trustee. The Bond Trustee shall not be entitled to
a fee in conjunction with such removal, but shall be entitled to be reimbursed for reasonable
expenses. The Bond Trustee may also be removed by the Borrower upon written notice signed
by the Borrower which is mailed to the owners of all Series 2015 Bonds outstanding under this
Bond Indenture, which notice indicates the Bond Trustee will be removed for cause (including
maintaining non-competitive fees) and replaced by the successor trustee named in such notice,
such removal and replacement to become effective on the sixtieth (60th) day next succeeding the
date of such notice. Such notice shall be mailed by first class mail, postage prepaid, to the
owners of all such Series 2015 Bonds then outstanding at the address of such owners then
shown on the Bond Register.
SECTION 8.9.
APPOINTMENT OF SUCCESSOR BOND TRUSTEE BY THE
BONDHOLDERS; TEMPORARY BOND TRUSTEE. In case the Bond Trustee hereunder shall
resign or be removed, or be dissolved, or shall be in the process of dissolution or liquidation, or
otherwise becomes incapable of acting hereunder, or in case it shall be taken under the control
of any public officer or officers, or of a receiver appointed by the Borrower; provided,
nevertheless, that in case of such vacancy the Issuer by an instrument executed and signed by
its City Clerk, or other designated officer of the Issuer under its seal, may, appoint a temporary
Bond Trustee to fill such vacancy until a successor Bond Trustee shall be appointed by the
Bondholders in the manner above provided; and any such temporary Bond Trustee so
appointed by the Issuer shall immediately and without further action be superseded by the
successor Bond Trustee so appointed by the Borrower. The Issuer agrees to follow the direction
of the Borrower in appointing a temporary Bond Trustee unless the Issuer shall have a
reasonable objection to the entity selected by the Borrower. If a successor Bond Trustee has not
been appointed or has not accepted such appointment within thirty days of notice of
resignation or removal of the Bond Trustee, the Bond Trustee may apply to a court of competent
jurisdiction for the appointment of a successor Bond Trustee and the costs, expenses and
48
attorney's fees which are incurred in connection with such proceeding shall be paid as provided
in Section 8.2 hereof.
SECTION 8.10. CONCERNING ANY SUCCESSOR BOND TRUSTEES. Every
successor Bond Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or conveyance, shall
become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations
of its predecessor; but such predecessor shall, nevertheless, on the Written Request of the Issuer,
or of its successor, execute and deliver an instrument transferring to such successor Bond
Trustee all the estates, properties, rights, powers and trusts of such predecessor hereunder and
under the Tax Regulatory Agreement; and every predecessor Bond Trustee shall deliver all
securities and moneys held by it as Bond Trustee hereunder to its successor. Should any
instrument in writing from the Issuer be required by any successor Bond Trustee for more fully
and certainly vesting in such successor the estate, rights, powers and duties hereby vested or
intended to be vested in the predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. The resignation of any Bond
Trustee and the instrument or instruments removing any Bond Trustee and appointing a
successor hereunder, together with all other instruments provided for in this Article shall be
filed and/or recorded by the successor Bond Trustee in each recording office, if any, where this
Bond Indenture shall have been filed and/or recorded.
Notice of the appointment of any successor Bond Trustee hereunder shall be given by
such successor Bond Trustee to each Rating Agency at such time maintaining a rating with
respect to the Series 2015 Bonds pursuant to Section 13.5 hereof.
SECTION 8.11. BOND
TRUSTEE
PROTECTED
IN
RELYING
UPON
RESOLUTION, ETC. The resolutions, opinions, certificates and other instruments provided for
in this Bond Indenture may be accepted by the Bond Trustee as conclusive evidence of the facts
and conclusions stated therein and shall be full warrant, protection and authority to the Bond
Trustee for the release of property and the withdrawal of cash hereunder.
SECTION 8.12. SUCCESSOR BOND TRUSTEE AS BOND TRUSTEE OF FUNDS,
PAYING AGENT AND BOND REGISTRAR. In the event of a change in the office of the Bond
Trustee, the predecessor Bond Trustee which has resigned or been removed shall cease to be
Bond Trustee of the Revenue Payment Fund, Interest Fund, Bond Sinking Fund, Project Fund,
Redemption Fund, Expense Fund and any other trust funds provided hereunder and shall cease
to be the Bond Registrar and Paying Agent for the principal of, premium, if any, and interest on
the Series 2015 Bonds, and the successor Bond Trustee shall become such Bond Trustee, Bond
Registrar and Paying Agent unless a separate Paying Agent or Agents are appointed by the
Issuer in connection with the appointment of any successor Bond Trustee.
49
SECTION 8.13.
DUTIES; REMOVAL.
PAYING AGENTS; APPOINTMENT AND ACCEPTANCE OF
(a)
The Bond Trustee is hereby designated and agrees to act as principal Paying
Agent and as Bond Registrar for and in respect of the Series 2015 Bonds.
(b)
The Issuer may appoint one or more additional Paying Agents for the Series 2015
Bonds. Any such Paying Agent shall be a commercial bank with trust powers or trust company
organized under the laws of the United States of America or one of the states thereof. Each
Paying Agent other than the Bond Trustee shall signify its acceptance of the duties and
obligations imposed upon it by this Bond Indenture by executing and delivering to the Issuer
and the Bond Trustee a written acceptance thereof. The Issuer may remove any Paying Agent
other than the Bond Trustee and any successors thereto, and appoint a successor or successors
thereto; provided that any such Paying Agent designated by the Issuer shall continue to be a
Paying Agent of the Issuer for the purpose of paying the principal of premium, if any, and
interest on the Series 2015 Bonds until the designation of a successor as such Paying Agent.
Each Paying Agent is hereby authorized to pay or redeem Series 2015 Bonds when duly
presented to it for payment or redemption, which Series 2015 Bonds shall thereafter be
delivered to the Bond Trustee for cancellation.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1.
SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT
OF BONDHOLDERS; RELEASE AND SUBSTITUTION OF OBLIGATIONS. The Issuer and
the Bond Trustee may, without the consent of, or notice to, any of the Bondholders, enter into
an indenture or indentures supplemental to this Bond Indenture, as shall not be inconsistent
with the terms and provisions hereof, for any one or more of the following purposes:
(a)
to cure any ambiguity or formal defect or omission in this Bond Indenture;
(b)
to grant to or confer upon the Bond Trustee for the benefit of the Bondholders
any additional rights, remedies, powers or authority that may lawfully be granted to or
conferred upon the Bondholders and the Bond Trustee, or either of them;
(c)
or collateral;
to assign and pledge under this Bond Indenture additional revenues, properties
(d)
to evidence the appointment of a separate bond trustee or the succession of a
new bond trustee hereunder;
(e)
to modify, amend or supplement this Bond Indenture or any indenture
supplemental hereto in such manner as to permit the qualification of this Bond Indenture under
50
the Trust Indenture Act of 1939, as then amended, or any similar federal statute hereafter in
effect or to permit the qualification of the Series 2015 Bonds for sale under the securities laws of
any state of the United States of America;
(f)
supplemental hereto in such manner as to permit the issuance of coupon Series 2015 Bonds of
any Series hereunder and to permit the exchange of Series 2015 Bonds from fully registered
form to coupon form and vice versa;
(g)
to provide for the refunding or advance refunding of the Series 2015 Bonds,
including the right to establish and administer an escrow fund and to take related action in
connection therewith;
(h)
supplemental hereto in such manner as to permit certificated Series 2015 Bonds; or
(i)
supplemental hereto in such manner as to permit continued compliance with the Tax
Regulatory Agreement; or
(j)
to modify, amend or supplement the provisions hereof in any other way which
the Bond Trustee has determined (which determination may be based on such opinions of
Independent Counsel and factual certificates as the Bond Trustee reasonably deems necessary)
does not materially adversely affect the rights or interests of any Bondholder. The Bond Trustee
shall be entitled to rely upon an opinion of Bond Counsel or other certifications as appropriate
as to factual matters in reaching the determination pursuant to this paragraph (j).
The Issuer and the Bond Trustee may not enter into an indenture or indentures
supplemental to this Bond Indenture pursuant to paragraph (f) of this Section 9.1 unless the
Issuer and the Bond Trustee shall have received an Opinion of Bond Counsel to the effect that
the issuance of coupon Series 2015 Bonds will not adversely affect the validity of such Series
2015 Bonds or any exemption from federal income tax to which the interest on the Series 2015
Bonds would otherwise be entitled.
If at any time the Borrower shall request the Issuer and the Bond Trustee to consent to
any amendment pursuant to subsection (j) above, the Bond Trustee shall cause notice of the
proposed execution of such amendment, change or modification to the Bond Indenture to be
given to each Rating Agency then maintaining a rating on the Series 2015 Bonds by first class
mail, postage prepaid, at least five (5) days prior to the execution of such amendment, change or
modification to the Bond Indenture, which notice shall include a copy of the proposed
amendment, change or modification. In addition, if at any time the Borrower shall request the
Issuer and the Bond Trustee to consent to any amendment pursuant to this Section, the Bond
Trustee shall cause a copy of such amendment, change or modification to be mailed to each
51
Rating Agency then maintaining a rating on the Series 2015 Bonds upon the execution and
delivery of such amendment, change or modification.
The Bond Trustee shall surrender for substitution any master note pledged hereunder to
the Master Trustee in the event of the withdrawal of the Obligated Issuer which issued such
Obligation as provided in Section 3.12 of the Master Indenture, upon presentation to the Bond
Trustee prior to such surrender of the following:
(A)
an original executed counterpart of a supplemental Master Indenture providing
for the issuance of the substitute Obligation by an Obligated Issuer;
(B)
an original substitute Obligation issued by an Obligated Issuer duly
authenticated by the Master Trustee (the "Substitute Obligation");
(C)
an Opinion of Counsel addressed to the Bond Trustee and the Issuer (in form
and substance acceptable to the Issuer and not unacceptable to the Bond Trustee) to the effect
that: (1) the supplemental Master Indenture has been duly authorized, executed and delivered
by each Obligated Issuer, the Substitute Obligation has been duly authorized, executed and
delivered by an Obligated Issuer and the supplemental Master Indenture and the Substitute
Obligation are legal, valid and binding obligations of the Obligated Group, subject in each case
to customary exceptions for bankruptcy, insolvency and other laws generally affecting
enforcement of creditors' rights and application of general principles of equity; (2) all
requirements and conditions to the issuance of the Substitute Obligation set forth in the
supplemental Master Indenture have been complied with and satisfied; and (3) registration of
the Substitute Obligation under the Securities Act of 1933, as amended, is not required or, if
registration is required, the Substitute Obligation has been so registered;
(D)
an Opinion of Bond Counsel that the relevant supplemental Master Indenture
and the surrender of the Obligation pledged hereunder and the acceptance by the Bond Trustee
of the Substitute Obligation will not adversely affect the validity of the Series 2015 Bonds or any
exemption for the purposes of federal income taxation to which interest on the Series 2015
Bonds would otherwise be entitled; and
(E)
such other opinions and certificates as the Bond Trustee may reasonably require,
together with such reasonable indemnities as the Bond Trustee may request, in order to
properly provide for the release and discharge of the prior Obligation previously pledged and
to put in place the Substitute Obligation.
The Bond Trustee shall give immediate written notice to the Issuer of any request to
surrender an Obligation pursuant hereto.
SECTION 9.2.
SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF
BONDHOLDERS. In addition to supplemental indentures covered by Section 9.1 hereof and
52
subject to the terms and provisions contained in this Section, and not otherwise, holders of not
less than a majority in aggregate principal amount of the Series 2015 Bonds which are
outstanding hereunder at the time of the execution of such indenture or supplemental
indenture shall have the right, from time to time, anything contained in this Bond Indenture to
the contrary notwithstanding, to consent to and approve the execution by the Issuer and the
Bond Trustee of such other indenture or indentures supplemental hereto as shall be deemed
necessary and desirable by the Issuer for the purpose of modifying, altering, amending, adding
to or rescinding, in any particular, any of the terms or provisions contained in this Bond
Indenture or if any supplemental indenture; provided, however, that nothing in this Section or
in Section 9.1 hereof contained shall permit, or be construed as permitting, (a) an extension of
the stated maturity or reduction in the principal amount of, or reduction in the rate or extension
of the time of paying of interest on, or reduction of any premium payable on the redemption of,
any Series 2015 Bonds, without the consent of holders of such Series 2015 Bonds, (b) a reduction
in the amount or extension of the time of any payment required to be made to or from the
Interest Fund or the Bond Sinking Fund provided herein, without the consent of holders of all
the Series 2015 Bonds at the time outstanding, (c) the creation of any lien prior to or on a parity
with the lien of this Bond Indenture, without the consent of the holders of all the Series 2015
Bonds at the time outstanding, (d) a reduction in the aggregate principal amount of Series 2015
Bonds the holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of all the Series 2015 Bonds at the time outstanding, or (e) the
modification of the rights, duties or immunities of the Bond Trustee without the written consent
of the Bond Trustee.
If at any time the Issuer shall request the Bond Trustee to enter into any such
supplemental indenture for any of the purposes of this Section, the Bond Trustee shall, upon
being satisfactorily indemnified with respect to expenses, cause notice of the proposed
execution of such supplemental indenture to be mailed by first class mail to the registered
owners of the Series 2015 Bonds at their addresses as the same shall appear on the Bond
Register. Such notice shall briefly set forth the nature of the proposed supplemental indenture
and shall state that copies thereof are on file at the designated corporate trust office of the Bond
Trustee for inspection by all Bondholders. The Bond Trustee shall not, however, be subject to
any liability to any Bondholder by reason of its failure to mail such notice, and any such failure
shall not affect the validity of such supplemental indenture when consented to and approved as
provided in this Section. If the holders of not less than a majority in aggregate principal amount
of the Series 2015 Bonds which are outstanding hereunder at the time of the execution of any
such supplemental indenture shall have consented to and approved the execution thereof as
herein provided, no holder of any Bond shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to question the
propriety of the execution thereof, or to enjoin or restrain the Bond Trustee or the Issuer from
executing the same or from taking any action pursuant to the provisions thereof. Upon the
execution of any such supplemental indenture as in this Section permitted and provided, this
Bond Indenture shall be and be deemed to be modified and amended in accordance therewith.
53
Anything herein to the contrary notwithstanding, so long as the Obligated Group is not
in default under the Master Indenture and the Loan Agreement, a supplemental indenture
under this Article IX which adversely affects the rights of the Obligated Group under the
Master Indenture shall not become effective unless and until the Obligated Group
Representative, shall have consented in writing to the execution and delivery of such
supplemental indenture. In this regard, the Bond Trustee shall cause notice of the proposed
execution and delivery of any such supplemental indenture to which the Obligated Group has
not already consented, together with a copy of the proposed supplemental indenture and a
written consent form to be signed by the Obligated Group Agent, to be mailed by certified or
registered mail to the Obligated Group Representative, at least thirty (30) days prior to the
proposed date of execution and delivery of any such supplemental indenture.
any amendment, change or modification of this Bond Indenture pursuant to this Section 9.2, the
Bond Trustee shall cause notice of the proposed execution of such amendment, change or
modification to this Bond Indenture to be given to each Rating Agency maintaining a rating on
the Series 2015 Bonds in the manner provided in Section 13.4 hereof at least five (5) days prior to
the execution of such amendment, change or modification to this Bond Indenture which notice
shall include a copy of the proposed amendment, change or modification to this Bond
Indenture.
ARTICLE X.
AMENDMENTS, ETC. TO LOAN AGREEMENT
SECTION 10.1. AMENDMENTS
TO
THE
LOAN
AGREEMENT
AND
OBLIGATION NO. 6 NOT REQUIRING CONSENT. The Issuer, the Borrower and the Bond
Trustee may, pursuant to the other clauses below, but without the consent of or notice to the
holders of the Series 2015 Bonds, consent to any amendment, change or modification of the
Loan Agreement and Obligation No. 6 as may be required (i) by the provisions of the Loan
Agreement and this Bond Indenture, (ii) for the purpose of curing any ambiguity or formal
defect or omission, (iii) for the purpose of complying with the provisions of the Tax Regulatory
Agreement, or (iv) in connection with any other change therein which, in the judgment of the
Bond Trustee (which judgment may be based on such opinions of Independent Counsel and
factual certificates as the Bond Trustee deems necessary), does not materially adversely affect
the rights of the Bond Trustee or the owners of the Series 2015 Bonds; provided, however, that
nothing in this Section 10.1 shall permit, or be construed as permitting, any amendment, change
or modification of the Loan Agreement or Obligation No. 6 that may result in anything
described in the lettered clauses of Section 9.2 hereof without the consent of each Bondholder
affected.
SECTION 10.2. AMENDMENTS
TO
THE
LOAN
AGREEMENT
AND
OBLIGATION NO. 6 REQUIRING CONSENT OF BONDHOLDERS. Except for the
amendments, changes or modifications as provided in Section 10.1 hereof, neither the Issuer nor
54
the Bond Trustee shall consent to any other amendment, change or modification of the Loan
Agreement or Obligation No. 6 without the written approval or consent of the holders of not
less than a majority in aggregate principal amount of the Series 2015 Bonds which are
outstanding hereunder at the time of execution of any such amendment, change or
modification; provided, however, that no such amendment, change or modification shall ever
affect the obligation of the Borrower to make payments on Obligation No. 6 as they become due
and payable without the consent of 100% of holders of the Series 2015 Bonds. If at any time the
Issuer or the Borrower shall request the consent of the Bond Trustee to any such proposed
amendment, change or modification of the Loan Agreement, the Bond Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause notice of such proposed amendment,
change or modification to be mailed in the same manner as provided by Section 9.2 hereof with
respect to supplemental indentures. Such notice shall briefly set forth the nature of such
proposed amendment, change or modification and shall state that copies of the instrument
embodying the same are on file at the designated corporate trust office of the Bond Trustee for
inspection by all Bondholders. The Bond Trustee shall not, however, be subject to any liability
to any Bondholder by reason of its failure to mail such notice, and any such failure shall not
affect the validity of such amendment, change or modification when consented to and approved
as provided in this Section. If the holders of not less than a majority in aggregate principal
amount of the Series 2015 Bonds outstanding hereunder at the time of the execution of any such
amendment, change or modification shall have consented to and approved the execution
thereof as herein provided, no holder of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof, or in any manner to question
the propriety of the execution thereof, or to enjoin or restrain the Bond Trustee or the Issuer
from executing the same or from taking any action pursuant to the provisions thereof.
any amendment, change or modification of the Loan Agreement pursuant to this Section 10.2,
the Bond Trustee shall cause notice of the proposed execution of such amendment, change or
modification to the Loan Agreement to be given to each Rating Agency maintaining a rating on
the Series 2015 Bonds, in the manner provided in Section 13.4 hereof at least five (5) days prior
to the execution of such amendment, change or modification to the Loan Agreement, which
notice shall include a copy of the proposed amendment, change or modification to the Loan
Agreement.
SECTION 10.3. NO AMENDMENT MAY ALTER OBLIGATION NO. 6. Except as
provided in Section 9.1 hereof, under no circumstances shall any amendment to the Loan
Agreement alter Obligation No. 6 or the payments of principal and interest thereon, without the
consent of the owners of all the Series 2015 Bonds outstanding.
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ARTICLE XI.
SATISFACTION OF THIS BOND INDENTURE
SECTION 11.1. DEFEASANCE. If the Issuer shall pay or provide for the payment of
the entire indebtedness on all Series 2015 Bonds outstanding (including, for the purpose of this
Article, any Series 2015 Bonds held by the Borrower) in any one or more of the following ways:
(a)
by paying or causing to be paid the principal of (including redemption premium,
if any) and interest on all Series 2015 Bonds outstanding, as and when the same become due
and payable;
(b)
by depositing with the Bond Trustee, in trust, at or before maturity, moneys, in
an amount sufficient to pay or redeem (when redeemable) all Series 2015 Bonds outstanding
(including the payment of premium, if any, and interest payable on such Series 2015 Bonds to
the maturity or redemption date thereof), provided that such moneys, if invested, shall be
invested in Government Obligations which are not prepayable or callable prior to the date the
moneys therefrom are anticipated to be required in an amount, sufficient to pay or redeem
(when redeemable) and discharge the indebtedness on all Series 2015 Bonds outstanding at or
before their respective maturity dates (it being understood that the investment income on such
Government Obligations may be used for any other purpose under the Act);
(c)
by delivering to the Bond Trustee, for cancellation by it, all Series 2015 Bonds
outstanding; or
(d)
by depositing with the Bond Trustee, in trust, cash and/or Government
Obligations which are not prepayable or callable prior to the date the moneys therefrom are
anticipated to be required in such amount as the Bond Trustee shall determine, in sole reliance
on a certificate, opinion or report of a nationally recognized firm of certified public accounts,
will, together with the income or increment to accrue thereon, without consideration of any
reinvestment thereof and any uninvested cash, be fully sufficient to pay or redeem (when
redeemable) and discharge the indebtedness on all Series 2015 Bonds at or before their
respective maturity dates; and if the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer;
then and in that case this Bond Indenture and the estate and rights granted hereunder shall
cease, determine and become null and void, and thereupon the Bond Trustee shall, upon
Written Request of the Issuer, and upon receipt by the Bond Trustee of an Officer's Certificate of
the Borrower and an opinion of Independent Counsel, each stating that in the opinion of the
signers all conditions precedent to the satisfaction and discharge of this Bond Indenture have
been complied with, forthwith execute proper instruments acknowledging satisfaction of and
discharging this Bond Indenture and the lien hereof. The satisfaction and discharge of this
Bond Indenture shall be without prejudice to the rights of the Bond Trustee to charge and be
56
reimbursed by the Issuer, the Borrower for any expenditures which it may thereafter incur in
connection herewith.
All moneys, funds, securities, or other property remaining on deposit in the Expense
Fund, Revenue Payment Fund, Interest Fund, Bond Sinking Fund, Project Fund or Redemption
Fund or in any other fund or investment under this Bond Indenture (other than said
Government Obligations or other moneys deposited in trust as above provided and amounts
held pursuant to Section 13.2 hereof) shall, upon the full satisfaction of this Bond Indenture,
forthwith be transferred, paid over and distributed to the Issuer and the Borrower, as their
respective interests may appear.
The Issuer, the Borrower may at any time surrender to the Bond Trustee for cancellation
by it any Series 2015 Bonds previously authenticated and delivered which the Issuer, the
Borrower may have acquired in any manner whatsoever, and such Series 2015 Bonds, upon
such surrender and cancellation, shall be deemed to be paid and retired.
As a condition precedent to the payment of the entire indebtedness on the Series 2015
Bonds pursuant to Section 11.1(b) or (d) hereof, the following shall be delivered to the Bond
Trustee: (i) a report of an independent firm of nationally recognized certified public
accountants or such other verification agent acceptable to Bond Counsel ("Verification Agent"),
verifying the sufficiency of the escrow established to pay the Series 2015 Bonds in full on the
maturity or redemption date ("Verification"), (ii) an escrow deposit agreement, (iii) an opinion
of nationally recognized Bond Counsel to the effect that the Series 2015 Bonds are no longer
Outstanding under this Bond Indenture and (iv) a certificate of discharge of the Bond Trustee
with respect to the Series 2015 Bonds; each Verification and defeasance opinion shall be
acceptable in form and substance, and addressed, to the Bond Trustee.
In lieu of the use of Government Obligations for the escrow, the escrow may also be
funded with (a) evidences of ownership of proportionate interests in future interest and
principal payments on U.S. Treasury securities held by a bank or trust company as custodian,
under which the owner of the investment is the real party in interest and has the right to
proceed directly and individually against the obligor and the underlying U.S. Treasury
securities are not available to any person claiming through the custodian or to whom the
custodian may be obligated, (b) pre-refunded municipal obligations rated "AAA" and "Aaa" by
Standard and Poor's and Moody's, respectively, or (c) securities eligible for "AAA" defeasance
under then existing criteria of Standard and Poor's or any combination thereof, shall be used to
effect defeasance of the outstanding Series 2015 Bonds.
SECTION 11.2. LIABILITY OF THE ISSUER NOT DISCHARGED. Upon the
deposit with the Bond Trustee, in trust, at or before maturity, of money or Government
Obligations in the necessary amount to pay or redeem all outstanding Series 2015 Bonds
(whether upon or prior to maturity or the redemption date of such Series 2015 Bonds), provided
that if such Series 2015 Bonds are to be redeemed prior to the maturity thereof, notice of such
57
redemption shall have been given as in Article V herein provided, or provisions satisfactory to
the Bond Trustee shall have been made for the giving of such notice, and compliance with the
other payment requirements of Section 11.1, and subject to the provisions of Section 11.3, the
Bond Indenture may be discharged in accordance with the provisions hereof, but the liability of
the Issuer in respect of such Series 2015 Bonds shall continue provided that the holders thereof
shall thereafter be entitled to payment only out of the moneys or Government Obligations
deposited with the Bond Trustee as aforesaid.
SECTION 11.3. PROVISION FOR PAYMENT OF A PORTION OF THE SERIES
2015 BONDS. If the Issuer shall pay or provide for the payment of the entire indebtedness of
any portion of the Series 2015 Bonds in one or more of the following ways:
(a)
by paying or causing to be paid the principal of (including redemption premium,
if any) and interest on all of such portion of the Series 2015 Bonds, as and when the same shall
become due and payable;
(b)
by depositing with the Bond Trustee, in trust, at or before maturity, moneys in an
amount determined by the Bond Trustee, and verified by a firm of certified public accountants,
to be sufficient to pay or redeem (when redeemable) all of such portion of the Series 2015 Bonds
(including the payment of premium, if any, and interest payable on such portion of the Series
2015 Bonds to the maturity or redemption date thereof), provided that such moneys, if invested,
shall be invested in Government Obligations which are not prepayable or callable prior to the
date the moneys therefrom are anticipated to be required in an amount, without consideration
of any income or increment to accrue thereon, sufficient to pay or redeem (when
redeemable) and discharge the indebtedness on such portion of the Series 2015 Bonds at or
before their maturity date; it being understood that the investment income on such Government
Obligations may be used for any other purpose under the Act;
(c)
by delivering to the Bond Trustee, for cancellation by it, all of such portion of the
Series 2015 Bonds; or
(d)
by depositing with the Bond Trustee, in trust, Government Obligations which are
not prepayable or callable prior to the date the moneys therefrom are anticipated to be required
in such amount determined by the Bond Trustee to be, together with the income or increment to
accrue thereon without consideration of any reinvestment thereof and uninvested cash, fully
sufficient to pay or redeem (when redeemable) and discharge the indebtedness on all of such
portion of the Series 2015 Bonds at or before their maturity date; and if the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer with respect to such portion
of the Series 2015 Bonds, and, if such portion of the Series 2015 Bonds are to be redeemed prior
to the maturity thereof;
notice of such redemption shall have been given as in Article V herein provided or provisions
satisfactory to the Bond Trustee shall have been made for the giving of such notice, such portion
58
of the Series 2015 Bonds shall cease to be entitled to any lien, benefit or security under the Bond
Indenture. The liability of the Issuer in respect of such portion of the Series 2015 Bonds shall
continue, but the holders thereof shall thereafter be entitled to payment (to the exclusion of all
other Bondholders) only out of the moneys or Government Obligations deposited with the
Bond Trustee as aforesaid.
As a condition precedent to the payment of the entire indebtedness on the Series 2015
Bonds pursuant to Section 11.3(b) or (d) hereof, the following shall be delivered to the Bond
Trustee: (i) a Verification by a Verification Agent, (ii) an escrow deposit agreement, (iii) an
opinion of nationally recognized Bond Counsel to the effect that the Series 2015 Bonds are no
longer Outstanding under this Bond Indenture and (iv) a certificate of discharge of the Bond
Trustee with respect to the Series 2015 Bonds; each Verification and defeasance opinion shall be
acceptable in form and substance, and addressed, to the Bond Trustee.
SECTION 11.4. WHEN REFUNDING IS NOT PERMITTED. None of the Series
2015 Bonds outstanding hereunder may be refunded as aforesaid nor may this Bond Indenture
be discharged if under any circumstances such refunding would result in the loss of any
exemption for purposes of federal income taxation to which interest on such Series 2015 Bonds
would otherwise be entitled. As a condition precedent to the refunding of any Series 2015
Bonds outstanding hereunder, the Bond Trustee shall receive an Opinion of Bond Counsel to
the effect that such Series 2015 Bonds would not, by reason of such refunding, be made subject
to any loss of an exemption from federal income taxation to which such interest would not
otherwise be subject.
ARTICLE XII.
MANNER OF EVIDENCING OWNERSHIP OF SERIES 2015 BONDS
SECTION 12.1. PROOF OF OWNERSHIP. Any request, direction, consent or other
instrument provided by this Bond Indenture to be signed and executed by the Bondholders
may be in any number of concurrent writings of similar tenor and may be signed or executed by
such Bondholders in person or by any agent appointed in writing. Proof of the execution of any
such request, direction or other instrument or of the writing appointing any such agent and of
the ownership of Series 2015 Bonds, if made in the following manner, shall be sufficient for any
of the purposes of this Bond Indenture and shall be conclusive in favor of the Bond Trustee and
the Issuer, with regard to any action taken by them, or either of them, under such request or
other instrument, namely:
(a)
The fact and date of the execution by any person of any such writing may be
proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments in such jurisdiction, that the person signing such writing acknowledged
before him the execution thereof, or by the affidavit of a witness of such execution; and
59
(b)
The ownership of Series 2015 Bonds and the amounts and numbers of such Series
2015 Bonds and the date of holding the same shall be proved by the Bond Register.
Any action taken or suffered by the Bond Trustee pursuant to any provision of this Bond
Indenture, upon the request or with the assent of any Person who at the time is the registered
owner of any Bond or Series 2015 Bonds shall be conclusive and binding upon all future owners
of the same Bond or Series 2015 Bonds. In determining whether the owners of the required
principal amount of Series 2015 Bonds outstanding have taken any action under this Bond
Indenture, Obligated Group Bonds (unless all Series 2015 Bonds which are then outstanding,
determined without regard to this Section 12.1, are Obligated Group Bonds) shall be
disregarded and deemed not to be outstanding, except that for the purpose of determining
whether the Bond Trustee shall be protected in relying on any such action, only such Series 2015
Bonds which the Bond Trustee knows are so owned shall be so disregarded. Series 2015 Bonds
so owned which have been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Bond Trustee the pledgee's right so to act with respect to
such Series 2015 Bonds and that the pledgee is not any Member or any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Borrower or any other Member. In case of a dispute as to such right, any decision by the Bond
Trustee taken upon the advice of counsel shall be full protection to the Bond Trustee.
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.1. LIMITATION OF RIGHTS. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this Bond
Indenture or the Series 2015 Bonds is intended or shall be construed to give to any person or
company other than the parties hereto, the holders of the Series 2015 Bonds, any legal or
equitable right, remedy or claim under or in respect to this Bond Indenture or any covenants,
conditions and provisions herein contained; this Bond Indenture and all of the covenants,
conditions and provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto, the holders of the Series 2015 Bonds as herein provided.
SECTION 13.2. UNCLAIMED MONEYS. Any moneys deposited with the Bond
Trustee by the Issuer in accordance with the terms and covenants of this Bond Indenture, in
order to redeem or pay any Bond in accordance with the provisions of this Bond Indenture, and
remaining unclaimed by the registered owner of the Bond for six (6) years after the date fixed
for redemption or of maturity, as the case may be, shall, if the Issuer is not at the time to the
knowledge of the Bond Trustee in default with respect to any of the terms and conditions of this
Bond Indenture, or in the Series 2015 Bonds contained, be repaid by the Bond Trustee to the
Borrower; and thereafter the registered owner of the Bond shall be entitled to look only to the
Borrower for payment thereof; provided, however, that the Bond Trustee, before being required
to make any such repayment, shall, at the expense of the Borrower, mail to the registered owner
thereof at its address, as the same shall last appear on the Bond Register, a notice to the effect
60
that said moneys have not been so applied and that after the date named in said notice any
unclaimed balance of said moneys then remaining shall be returned to the Borrower. If the
Borrower make arrangements satisfactory to the Issuer and the Bond Trustee to indemnify the
Issuer and the Bond Trustee for any costs which they may incur due to the unavailability of
moneys due to such investment, such moneys may be invested in accordance with Section 4.7
hereof. Investment income on any such unclaimed moneys received by the Bond Trustee shall
be deposited as provided in Section 4.7 hereof until the final maturity or redemption date of the
Series 2015 Bonds. Any such income generated after such date shall be deemed to be unclaimed
moneys of the type referred to in the first sentence of this Section and shall be disposed of in
accordance with such sentence. The Borrower, by approval of this Bond Indenture as evidenced
by the Loan Agreement, covenants and agrees to indemnify and save the Issuer and the Bond
Trustee harmless from any and all loss, costs, liability and expense suffered or incurred by the
Issuer and the Bond Trustee by reason of having returned any such moneys to the Borrower as
herein provided.
SECTION 13.3. SEVERABILITY. If any provision of this Bond Indenture shall be
held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it
conflicts with any other provision or provisions or any constitution or statute or rule of public
policy, or for any other reason, such circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision or provisions herein contained invalid, inoperative, or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or Sections in this Bond
Indenture contained, shall not affect the remaining portions of this Bond Indenture, or any part
thereof.
SECTION 13.4. NOTICES. Except as otherwise provided in this Bond Indenture, all
notices, certificates or other communications hereunder shall be sufficiently given and shall be
deemed given when in writing and mailed by first class mail, postage prepaid, with proper
address as indicated below. Any of such parties may, by written notice given by such party to
the others, designate any address or addresses to which notices, certificates or other
communications to them shall be sent when required as contemplated by this Bond Indenture.
Until otherwise provided by the respective parties, all notices, certificates and communications
to each of them shall be addressed as follows:
To the Issuer:
315 East Kennedy Boulevard
Tampa, FL 33602
Attention: Chief Financial Officer
Facsimile: (813) 274-8127
61
To the Borrower:
The University of Tampa, Incorporated
401 West Kennedy Boulevard, Box 96F
Tampa, FL 33606-1490
Attention: Vice President for Administration and Finance
Facsimile: (813) 258-7447
With a copy to:
Holland & Knight LLP
2115 Harden Boulevard
Lakeland, FL 33803-5918
Attention: Public Finance
To the Bond Trustee:
Regions Bank
10245 Centurion Parkway, 2nd Floor
Jacksonville, FL 32256
Attention: Corporate Trust Services
Facsimile: (205) 261-7940
To Moody's:
Moody's Investor Service
7 World Trade Center at 250
Public Finance Group, 23rd Floor
New York, NY 10007
To Fitch:
Fitch Ratings
One State Street Plaza
New York, NY 10004
To S&P:
Standard & Poor's Rating Services
55 Water Street, 38th Floor
New York, NY 10041
To the Master Trustee:
Regions Bank
10245 Centurion Parkway, 2nd Floor
Jacksonville, FL 32256
Attention: Corporate Trust Services
Facsimile: (205) 261-7940
In each case in which notice or other communication refers to a Default, then a copy of
such notice or other communication shall also be sent to the attention of the General Counsel
and shall be marked to indicate "URGENT MATERIAL ENCLOSED."
The Bond Trustee shall give Immediate Notice to each owner of Series 2015 Bonds of any
change in the addresses of the Bond Trustee.
62
SECTION 13.5. ADDITIONAL NOTICES TO RATING AGENCY. The Bond
Trustee hereby agrees that if at any time (i) payment of principal and interest on the Series 2015
Bonds is accelerated pursuant to the provisions of Section 7.2 hereof or (ii) the Bondholders
shall consent to any amendment to this Bond Indenture, the Loan Agreement or shall waive any
provision of this Bond Indenture or the Loan Agreement, then, in each case, the Bond Trustee
will promptly give notice of the occurrence of such event to each Rating Agency then
maintaining a rating on the Series 2015 Bonds, which notice in the case of an event referred to in
clause (ii) hereof shall include a copy of any such amendment or waiver.
SECTION 13.6. COUNTERPARTS. This Bond Indenture may be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 13.7. APPLICABLE LAW.
exclusively by the applicable laws of the State.
This Bond Indenture shall be governed
SECTION 13.8. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS OF
THE ISSUER. No recourse shall be had for the payment of the principal of or premium, if any,
or interest on any of the Series 2015 Bonds or for any claim based thereon or upon any
obligation, covenant or agreement in this Bond Indenture contained against any past, present or
future officer, director, member, employee, attorney or agent of the Issuer, or any successor
body politic or agent of any successor corporation or body politic or of the State or any agency
or political subdivision thereof, as such, either directly or through the Issuer or any successor
corporation or body politic or of the State or any agency or political subdivision thereof, under
any rule of law or equity, statute or constitution, or by the enforcement of any assessment or
penalty or otherwise, and all such liability of any such incorporators, officers, directors, trustees,
members, employees or agents as such is hereby expressly waived and released as a condition
of and consideration for the execution of this Bond Indenture and the issuance of such Series
2015 Bonds.
[Signatures to Follow]
63
IN WITNESS WHEREOF, the Issuer has caused this Bond Indenture to be signed in its
name and on its behalf by its Mayor and attested by its City Clerk and Regions Bank, to
evidence its acceptance of the trusts, created by this Bond Indenture has caused these presents
to be signed in its name and on its behalf by one of its authorized signatories all as of the day
and year first above written.
(SEAL)
By:
Name: Bob Buckhorn
Title: Mayor
Attest:
By:
Title: City Clerk
REGIONS BANK
(SEAL)
By:
Authorized Signatory
[Signature Page | Bond Trust Indenture]
64
EXHIBIT A
FORM OF BOND
UNITED STATES OF AMERICA
STATE OF FLORIDA
(THE UNIVERSITY OF TAMPA PROJECT), SERIES 2015
R-___
INTEREST RATE
$____________
MATURITY DATE
DATE OF ISSUANCE
April 1, 20___
April 23, 2015
CUSIP
REGISTERED OWNER:
Cede & Co.
PRINCIPAL AMOUNT:
_________________________________ AND NO/100 DOLLARS
The City of Tampa, Florida (the "Issuer"), a municipal corporation organized and
existing under the Constitution and laws of the State of Florida, for value received, hereby
promises to pay in lawful money of the United States of America to the registered owner set
forth above, or registered assigns, on the Maturity Date (as identified above), unless this Bond
shall be redeemable and shall have previously been called for redemption and payment of the
redemption price made or provided for, but solely from amounts available under the Bond
Indenture (hereinafter referred to) and certain amounts payable under the Loan Agreement
(hereinafter referred to) and payments on Obligation No. 6 (hereinafter referred to), which
amounts and payments are pledged and assigned for the benefit and payment hereof pursuant
to the Bond Indenture and not otherwise, upon surrender hereof, the principal amount set forth
above upon presentation and surrender thereof at the designated corporate trust office of
Regions Bank, as Bond Trustee, or its successor in trust under the Bond Indenture (as
hereinafter defined) and to pay interest (computed as described herein and in the Bond
Indenture) on such principal amount, but solely from said amounts available under the Bond
Indenture and payable under the Loan Agreement and upon Obligation No. 6, payable on each
Interest Payment Date (as hereinafter defined) until payment of such principal amount, or
provision therefor, shall have been made upon redemption or at maturity.
A-1
Interest payments on a Bond (other than with respect to Defaulted Interest) shall be
made to the registered owner thereof appearing on the Bond Register as of the close of business
of the Bond Registrar on the Record Date. Interest on the Series 2015 Bonds shall, except as
hereinafter provided, be paid by check or draft of the Bond Trustee mailed on the Interest
Payment Date to such registered owner at the address of such owner as it appears on the Bond
Register or at such other address furnished in writing by such registered owner to the Bond
Trustee or to any owner of $1,000,000 or more in aggregate principal amount of Series 2015
Bonds as of the close of business of the Bond Trustee on the Record Date for a particular Interest
Payment Date, by wire transfer sent on the Interest Payment Date, to such owner. The
foregoing notwithstanding, Defaulted Interest shall be payable as provided in the Bond
Indenture.
This Bond is one of an authorized Series of Series 2015 Bonds issued under the
hereinafter described Bond Indenture in the aggregate original principal amount of $76,690,000
(the "Series 2015 Bonds") for the purpose of loaning funds to The University of Tampa,
Incorporated, a Florida not-for-profit corporation (the "Borrower"), which will be used, together
with other available money of the Borrower, to: (i) finance and refinance the acquisition,
construction, equipping and installation of student housing facilities (the "New Dormitory") and
the construction, equipping and installation of a mixed use facility, including additions and
improvements to an existing parking garage, offices, classrooms and other facilities (the "Mixed
Use Facility" and together with the New Dormitory, the "2015 Project"), each located or to be
located on the Borrower's campus that is located within the corporate limits of the City of
Tampa, Florida; (ii) advance refund all of the outstanding City of Tampa, Florida Revenue
Bonds (University of Tampa Project), Series 2006, maturing on and after April 1, 2016 (the
"Refunded Bonds"), the proceeds of which were used to finance the construction, equipping and
furnishing of a 7-story, approximately 448-bed dormitory residence owned by the Borrower (the
"2006 Dormitory") and the second phase of a parking structure to provide approximately 700
additional parking spaces (the "2006 Parking Garage," together with the 2006 Dormitory, the
"2006 Project"); (iii) refinance a bank loan, the proceeds of which were used to finance a portion
of the initial costs of the Mixed Use Facility (the "2013 Project," together with the 2015 Project
and the 2006 Project, the "Project"); and (iv) pay certain bond issuance costs, all as permitted
pursuant to Constitution and laws of the State of Florida, particularly Chapter 166, Florida
Statutes, Chapter 159, Part II, Florida Statutes, the Charter of the Issuer, the Issuer's home rule
powers, Ordinance No. 2002-53, enacted by the City Council of the Issuer on February 21, 2002,
and other applicable provisions of law (collectively the "Act").
The proceeds derived from the sale of the Series 2015 Bonds will be loaned to the
Borrower pursuant to a Loan Agreement dated as of April 1, 2015 (the "Loan Agreement
Amendment") between the Borrower and the Issuer (as amended from time to time, the "Loan
Agreement"). To evidence its obligation to repay the loan, the Borrower will cause to be issued
The University of Tampa Obligation No. 6 (2015 Financing) dated April 23, 2015 ("Obligation
No. 6"). Obligation No. 6 is being issued under and pursuant to the Master Trust Indenture
(Security Agreement) dated as of April 1, 2012 (the "Original Master Indenture"), between the
A-2
Borrower, as the initial Obligated Group Member (as defined in the Original Master Indenture)
and Regions Bank, as master trustee (the "Master Trustee"), as supplemented from time-to-time,
and particularly as supplemented by a Supplemental Indenture for Obligation No. 6 dated as of
April 1, 2015 (collectively, the "Master Indenture"). The Master Indenture provides for a pledge
of and lien on the Pledged Revenues (as defined in the Master Indenture) to secure the payment
of all Obligations issued thereunder.
The Series 2015 Bonds are issued under and ratably secured by and entitled to the
security of a Bond Trust Indenture dated as of April 1, 2015 (the "Bond Indenture") between the
Issuer and Regions Bank as bond trustee (the "Bond Trustee"), pursuant to which Bond
Indenture, Obligation No. 6 is pledged and assigned and all of the right, title and interest of the
Issuer in and to the Loan Agreement (excluding Unassigned Rights, as defined in the Bond
Indenture) are assigned by the Issuer to the Bond Trustee as security for the Series 2015 Bonds.
Under the terms of the Bond Indenture, all or any portion of the Series 2015 Bonds may be
refunded through a deposit in escrow for the benefit of such refunded Series 2015 Bonds of cash
or Government Obligations (as defined in the Bond Indenture) and become payable solely from
such cash and Government Obligations. Pursuant to the terms and conditions contained in the
Master Indenture, the Borrower may also issue Additional Indebtedness (as defined in the
Master Indenture) to the Issuer or to parties other than the Issuer, which need not be pledged
under the Bond Indenture but which may be equally and ratably secured with Obligation No. 6
or which may be entitled to Liens upon the Property of the Obligated Group (as such terms are
defined in the Master Indenture) or by other security in addition to any Liens or other security
which secures all Obligations. Reference is made to the Bond Indenture, to all indentures
supplemental thereto, to the Master Indenture, to all indentures supplemental thereto, and to
the Loan Agreement and to all amendments thereto for the provisions, among others, with
respect to the nature and extent of the security, the rights, duties and obligations of the Issuer,
the Bond Trustee and the Master Trustee and the rights of the owners of the Series 2015 Bonds,
and the issuance of Additional Indebtedness and the terms on which Additional Indebtedness
may be issued and secured, and to all the provisions of which the owner hereof by the
acceptance of this Bond assents.
NOTICE OF LIMITED OBLIGATION
THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THIS SERIES 2015
BOND AND SUCH OTHER SERIES 2015 BONDS OF WHICH IT FORMS A PART, DO NOT
CONSTITUTE A DEBT OR LIABILITY OF THE STATE OF FLORIDA (THE "STATE") OR OF
ANY AGENCY OR POLITICAL SUBDIVISION THEREOF, OR A PLEDGE OF THE FAITH
AND CREDIT OF THE ISSUER, THE STATE OR OF ANY POLITICAL SUBDIVISION OR
AGENCY THEREOF, BUT SHALL BE PAYABLE SOLELY FROM THE FUNDS PLEDGED
THEREFOR IN ACCORDANCE WITH THE BOND INDENTURE AND OBLIGATION NO. 6.
THE ISSUANCE OF THE SERIES 2015 BONDS UNDER THE PROVISIONS OF THE ACT
DOES NOT, DIRECTLY, INDIRECTLY OR CONTINGENTLY, OBLIGATE THE ISSUER, THE
STATE OR ANY AGENCY OR POLITICAL SUBDIVISION THEREOF TO LEVY ANY FORM
A-3
OF TAXATION FOR THE PAYMENT THEREOF OR TO MAKE ANY APPROPRIATION FOR
THEIR PAYMENT AND THE SERIES 2015 BONDS AND THE INTEREST PAYABLE
THEREON DO NOT NOW AND SHALL NEVER CONSTITUTE A DEBT OF THE ISSUER,
THE STATE OR ANY AGENCY OR POLITICAL SUBDIVISION THEREOF WITHIN THE
MEANING OF THE CONSTITUTION OR THE STATUTES OF THE STATE AND DO NOT
NOW AND SHALL NEVER CONSTITUTE A CHARGE AGAINST THE CREDIT OR TAXING
POWER OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION OR AGENCY
THEREOF. NEITHER THE STATE NOR ANY POLITICAL SUBDIVISION OR AGENCY
THEREOF SHALL IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF,
REDEMPTION PREMIUM, IF ANY, OR INTEREST ON THE SERIES 2015 BONDS OR FOR
THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND
WHATSOEVER WHICH MAY BE UNDERTAKEN BY THE ISSUER. NO BREACH BY THE
ISSUER OF ANY SUCH PLEDGE, OBLIGATION OR AGREEMENT MAY IMPOSE ANY
LIABILITY, PECUNIARY OR OTHERWISE, UPON THE ISSUER, THE STATE OR ANY
POLITICAL SUBDIVISION OR AGENCY THEREOF OR ANY CHARGE UPON ITS OR THEIR
GENERAL CREDIT OR AGAINST ITS OR THEIR TAXING POWER.
THIS SERIES 2015 BOND AND THE OTHER SERIES 2015 BONDS, AND THE
INTEREST AND PREMIUM, IF ANY, PAYABLE HEREON AND THEREON, ARE LIMITED
OBLIGATIONS OF THE ISSUER AND ARE PAYABLE SOLELY (i) FROM PAYMENTS OR
PREPAYMENTS TO BE MADE UNDER THE LOAN AGREEMENT, (ii) FROM PAYMENTS
OR PREPAYMENTS TO BE MADE BY OBLIGATION NO. 6, (iii) FROM CERTAIN MONEYS
HELD BY THE BOND TRUSTEE UNDER THE BOND INDENTURE, AND (iv) FROM THE
INCOME FROM THE TEMPORARY INVESTMENT OF ANY OF THE FOREGOING.
This Series 2015 Bond is registered on the Bond Register and may be transferred by the
registered owner hereof at the written request of such registered owner in person or by his duly
authorized attorney, but only in the manner, subject to the limitations and upon the payment of
the charges provided in the Bond Indenture and upon surrender and cancellation of this Series
2015 Bond. Upon such transfer, a new fully registered bond or bonds of the same series and
maturity and of authorized denominations for the same aggregate principal amount shall be
issued to the transferee in exchange therefor. The person in whose name this Series 2015 Bond
is registered shall be deemed and regarded as the absolute owner hereof for the purpose of
receiving payment of, or on account of, the principal, premium, if any, and interest due hereon
and for all other purposes, and neither the Issuer, nor the Bond Trustee shall be affected by any
notice to the contrary. If any Series 2015 Bond is transferred or exchanged on the Bond Register
by the Bond Trustee after notice of the optional redemption of such Series 2015 Bond has been
given, the Bond Trustee shall attach a copy of such notice to the Series 2015 Bond issued in
connection with such transfer or exchange.
The Series 2015 Bonds are issuable only as registered Series 2015 Bonds in Authorized
Denominations.
A-4
Definitions. To the extent not defined herein, the terms used in this Series 2015 Bond
shall have the meanings as set forth in the Bond Indenture:
"Authorized Denomination" means $5,000 and any integral multiples thereof.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on
which banking institutions in the State of Florida or the State of New York are authorized by
law to close or (b) a day on which the New York Stock Exchange is closed.
"Defaulted Interest" means interest on any Series 2015 Bond, which is payable but not
duly paid on the date due.
"Interest Payment Date" means each October 1 and April 1, commencing October 1, 2015.
"Maturity Date" means the maturity date for each Series 2015 Bond assigned a specific
serial or different term maturity date pursuant to the Bond Indenture.
"Maximum Interest Rate" means maximum rate permitted by law.
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) next
preceding an Interest Payment Date therefor.
Redemption
Mandatory Sinking Fund Redemptions Without Premium. The Series 2015 Bonds maturing
April 1, 2040 are subject to mandatory sinking fund redemption and payment prior to maturity
on April 1 in the principal amounts in each of the years set forth below, at 100% of the principal
amount thereof plus accrued interest to the redemption date, without premium:
Redemption Date
(April 1)
2036
2037
2038
2039
2040*
Amount
$3,865,000
4,060,000
2,420,000
2,540,000
2,670,000
__________
*Maturity
A-5
The Series 2015 Bonds maturing April 1, 2045 are subject to mandatory sinking fund
redemption and payment prior to maturity on April 1 in the principal amounts in each of the
years set forth below, at 100% of the principal amount thereof plus accrued interest to the
redemption date, without premium:
Redemption Date
(April 1)
2041
2042
2043
2044
2045*
Amount
$2,800,000
2,945,000
7,135,000
7,495,000
7,870,000
__________
*Maturity
A complete statement and description of all redemption provisions applicable to the
Series 2015 Bonds is contained in the Bond Indenture, to which reference is hereby made.
Extraordinary Optional Redemption. The Series 2015 Bonds are also subject to redemption
prior to maturity by the Issuer, to the extent of available Net Proceeds (as defined in the Master
Indenture) of insurance or condemnation, upon the direction of the Borrower in the event (i) the
Project or any portion thereof are damaged, destroyed or condemned, (ii) the Net proceeds of
insurance or condemnation received in connection therewith exceed the greater of (a) five
percent (5%) of Property, Plant and Equipment of the Obligated Group (as defined in the
Master Indenture) or (b) $500,000 and (iii) the Borrower elects to have all or any part of such Net
Proceeds applied to the prepayment of Obligation No. 6. If called for redemption in any such
event, the Series 2015 Bonds shall be subject to redemption in whole at any time, or in part on
any interest payment date, and if in part, by maturities designated by the Borrower (and, if less
than all of a maturity is being redeemed, by lot within a maturity) at a redemption price equal
to the principal amount thereof plus accrued interest to the redemption date, without premium.
The Series 2015 Bonds are also subject to redemption prior to their maturity, as a whole
or in part, at the direction of the Borrower on the earliest practicable date in the event that (i) the
Governing Body of the Borrower determines in good faith that continued operation of the
Project (or portions thereof) is not financially feasible or is otherwise disadvantageous to the
Borrower; (ii) as a result thereof, the Borrower sells, leases or otherwise disposes of all or a
portion of the Project to a Person or entity unrelated to the Borrower; and (iii) there is delivered
to the Bond Trustee a written statement of Bond Counsel to the effect that, unless the Series 2015
Bonds are redeemed or retired in the amount specified either prior to or concurrently with such
sale, lease or other disposition, or on a subsequent date prior to the first date on which the
Series 2015 Bonds are subject to redemption, at the option of the Borrower, such Bond Counsel
will be unable, absent payment of penalties by the Borrower or the Issuer to the Internal
Revenue Service, to render an unqualified opinion that such sale, lease or other disposition of
A-6
all or a portion of the Project will not adversely affect the validity of any Series 2015 Bonds or
any exemption from federal income taxation to which the interest on such Series 2015 Bonds
would otherwise be entitled. Any such redemption shall be at a redemption price (plus accrued
interest to the redemption date) equal to the principal amount thereof, without premium.
Optional Redemption. The Series 2015 Bonds maturing on or before April 1, 2025, shall
not be subject to optional redemption prior to maturity. Notwithstanding Section 5.2 of the
Bond Indenture, the Series 2015 Bonds maturing after April 1, 2025 shall be subject to
redemption and payment prior to maturity by the Issuer, upon written direction of the
Borrower, on and after April 1, 2025, in whole or in part at any time at a redemption price of
par, plus accrued interest thereon to the redemption date. A copy of such written direction of
the Borrower shall be provided by the Borrower to the Trustee.
Any Series 2015 Bonds which are Obligated Group Bonds are subject to redemption in
whole or in part (in an Authorized Denomination) prior to their Maturity Date at the option of
the Issuer upon direction of the Borrower out of amounts prepaid on Obligation No. 6 and
deposited in the Redemption Fund, in whole or in part (and if in part, in an Authorized
Denomination) on any Business Day while such Series 2015 Bonds are Obligated Group Bonds
at a redemption price equal to 100% of the principal amount thereof plus accrued interest, if
any, to the redemption date.
Notice of Redemption. Except as hereinafter provided, a copy of the notice of the call for
any such redemption identifying the Series 2015 Bonds to be redeemed shall be given by first
class mail, postage prepaid, to the registered owners of Series 2015 Bonds to be redeemed at
their addresses as shown on the Bond Register not less than thirty (30) days prior to the
redemption date. Except for mandatory Bond Sinking Fund redemptions, prior to the date that
the redemption notice is first given as aforesaid, funds shall be placed with the Bond Trustee to
pay such Series 2015 Bonds, any premium thereon and accrued interest thereon to the
redemption date, or, if applicable, such notice shall state that any redemption is conditional on
such funds being deposited with the Bond Trustee on the redemption date and that a failure to
make such deposit shall not constitute a Default under the Bond Indenture.
Failure to give notice in the manner prescribed hereunder with respect to any Bond, or
any defect in such notice, shall not affect the validity of the proceedings for redemption for any
Series 2015 Bond with respect to which notice was properly given. Upon the happening of the
above conditions and if sufficient moneys are on deposit with the Bond Trustee on the
applicable redemption date to redeem the Series 2015 Bonds to be redeemed and to pay interest
due thereon and premium, if any, the Series 2015 Bonds thus called shall not after the applicable
redemption date bear interest, be protected by the Bond Indenture or be deemed to be
outstanding under the provisions of the Bond Indenture. The Bond Trustee shall redeem, in the
manner provided in the Bond Indenture, such an aggregate principal amount of such Series
2015 Bonds at the principal amount thereof plus accrued interest to the redemption date and
unpaid thereon and premium, if any, as will exhaust as nearly as practicable such funds. At the
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direction of the Borrower, such funds may be invested in United States Government Obligations
until needed for redemption payout.
If any Series 2015 Bond is transferred or exchanged on the Bond Register by the Bond
Registrar after notice has been given calling such Series 2015 Bond for redemption, the Bond
Registrar will attach a copy of such notice to the Series 2015 Bond issued in connection with
such transfer.
In the event that less than all of the Outstanding Series 2015 Bonds or portions thereof
shall be optionally redeemed, the maturities of the Series 2015 Bonds to be redeemed shall be
designated by the Borrower and, if not so designated, the Series 2015 Bonds to be redeemed
shall be redeemed in inverse order of maturity. If less than all Series 2015 Bonds or portions
thereof of a single maturity are to be optionally redeemed or if less than all of a maturity of a
Series 2015 Bond with Bond Sinking Fund redemptions are to be optionally redeemed, then the
particular years of the sinking fund redemptions for that maturity shall be designated by the
Borrower.
In case a Series 2015 Bond is of a denomination larger than $5,000, a portion of such
Series 2015 Bond ($5,000 or any integral multiple thereof) may be redeemed, but Series 2015
Bonds shall be redeemed only in the principal amount of $5,000 each or any integral multiple
thereof. Upon surrender of any Series 2015 Bond for redemption in part only, the Issuer shall
execute and the Bond Trustee shall authenticate and deliver to the owner thereof, at the expense
of the Issuer, a new Series 2015 Bond or Series 2015 Bonds of the same maturity of Authorized
Denominations in an aggregate principal amount equal to the unredeemed portion of the Series
2015 Bond surrendered.
Except as otherwise provided in the Bond Indenture, on or before the Business Day prior
to the redemption date specified in the notice of redemption, an amount of money which
together with all amounts then on deposit in the Bond Sinking Fund or Redemption Fund, as
appropriate and available for redemption of the Series 2015 Bonds shall be sufficient to redeem
all Series 2015 Bonds called for redemption at the appropriate redemption price, including
accrued interest to the date fixed for redemption, shall be paid to the Bond Trustee for deposit
in the Bond Sinking Fund or Redemption Fund, as appropriate. On the redemption date the
principal amount of each Series 2015 Bond to be redeemed, together with the accrued interest
thereon to such date and redemption premium, if any, shall become due and payable; and from
and after such date, notice having been given and the deposit having been made in accordance
with the provisions of Article V of the Bond Indenture, then, notwithstanding that any Series
2015 Bonds called for redemption shall not have been surrendered, no further interest shall
accrue on any such Series 2015 Bonds. From and after such date of redemption (such notice
having been given and such deposit having been made), the Series 2015 Bonds to be redeemed
shall not be deemed to be Outstanding, and the Issuer shall be under no further liability in
respect thereof.
A-8
All or a portion of the Series 2015 Bonds are subject to defeasance by depositing with the
Bond Trustee Government Obligations in an amount, together with the income or increment to
accrue thereon, without consideration of any reinvestment thereof, and any uninvested cash,
sufficient to pay or redeem (when redeemable) and discharge the indebtedness on all or a
portion of the Series 2015 Bonds, as applicable, outstanding under the Bond Indenture at or
before their respective maturity dates. All or a portion of the Series 2015 Bonds are also subject
to defeasance of the Bond Indenture by depositing with the Bond Trustee cash and/or
Government Obligations in an amount, without consideration of any income or increment to
accrue thereon, sufficient to pay or redeem (when redeemable) and discharge the indebtedness
on all or a portion of the Series 2015 Bonds, as applicable, outstanding under the Bond
Indenture at or before their respective maturity dates, it being understood that the investment
income on such Government Obligations may be used for any other purpose under the Act.
Upon such payment or provision therefor, together with all other payments required under the
Bond Indenture, the Bond Indenture may be discharged in accordance with the provisions
thereof, but the Issuer shall remain the obligor on all Series 2015 Bonds, although the owners
thereof and the owner hereof shall be entitled to payment solely out of such cash and funds
received from such Government Obligations deposited with the Bond Trustee.
The Issuer may pay or provide for the payment of the entire indebtedness on any
portion of the Series 2015 Bonds by depositing with the Bond Trustee Government Obligations
in an amount, without consideration of any income or increment to accrue thereon, sufficient to
pay or redeem (when redeemable) and discharge the indebtedness on such portion of the Series
2015 Bonds at or before their Maturity Date. The Issuer may also pay or provide for the
payment of the entire indebtedness on any portion of the Series 2015 Bonds by depositing with
the Bond Trustee Government Obligations in an amount, together with the income or increment
to accrue thereon, but without consideration of any reinvestment thereof, and any uninvested
cash, sufficient to pay or redeem (when redeemable) and discharge the indebtedness on any
portion of the Series 2015 Bonds at or before their respective maturity dates, it being understood
that the investment income on such Government Obligations may be used for any other
purpose under the Act. Upon such deposit in accordance with the provisions of the Bond
Indenture, such Series 2015 Bonds shall cease to be entitled to any lien, benefit or security under
the Bond Indenture. The Issuer shall remain the obligor on such Series 2015 Bonds but the
owners thereof shall be entitled to payment (to the exclusion of all other Bondholders) solely
out of such cash and funds received from such Government Obligations deposited with the
Bond Trustee.
None of the Series 2015 Bonds outstanding under the Bond Indenture may be refunded
as aforesaid nor may the Bond Indenture be discharged if under any circumstances such
refunding would result in the loss of any exemption for purposes of federal income taxation to
which interest on such Series 2015 Bonds would otherwise be entitled. As a condition
precedent to the advance refunding of any Series 2015 Bonds outstanding hereunder, the Bond
Trustee shall receive an Opinion of Bond Counsel to the effect that such Series 2015 Bonds
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would not, by reason of such refunding, be made subject to additional federal income taxation
to which such interest would not otherwise be subject.
The owner of this Series 2015 Bond shall have no right to enforce the provisions of the
Bond Indenture or to institute action to enforce the covenants therein, or to take any action with
respect to any event of default under the Bond Indenture, or to institute, appear in or defend
any suit or other proceedings with respect thereto, except as provided in the Bond Indenture.
In certain events, on the conditions, in the manner and with the effect set forth in the Bond
Indenture, the principal of all Series 2015 Bonds of all Series issued under the Bond Indenture
and then outstanding may become or may be declared due and payable before the stated
maturity thereof, together with interest accrued thereon. Modifications or alterations of the
Bond Indenture, or of any supplements thereto, may be made only to the extent and in the
circumstances permitted by the Bond Indenture.
No recourse shall be had for the payment of the principal of or premium or interest on
any of the Series 2015 Bonds or for any claim based thereon or upon any obligation, covenant or
agreement in the Bond Indenture contained, against any past, present or future officer, director,
member, employee, attorney or agent of the Issuer, or any incorporator, officer, director,
member, trustee, employee or agent of any successor or body politic, as such, either directly or
through the Issuer or any successor body politic, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise, and all such
liability of any such incorporators, officers, directors, trustees, members, employees or agents,
as such, is hereby expressly waived and released as a condition of and consideration for the
execution of the Bond Indenture and the issuance of the Series 2015 Bonds.
It is hereby certified that all conditions, acts and things required to exist, happen and be
performed under the Act and under the Bond Indenture precedent to and in the issuance of this
Bond, exist, have happened and have been performed, and that the issuance, authentication and
delivery of this Series 2015 Bond have been duly authorized by a resolution of the Issuer duly
adopted.
This Series 2015 Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Bond Indenture until the certificate of
authentication hereon shall have been duly executed by the Bond Trustee.
[Signatures to Follow]
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IN WITNESS WHEREOF, as provided by the Act, the City of Tampa, Florida, has
caused this Series 2015 Bond to be executed in its name and on its behalf by the manual or
facsimile signature of its Mayor and by the manual or facsimile signature of its City Clerk and
its facsimile seal to be hereunto affixed, all as of __________, 2015.
(SEAL)
By:
Name: Bob Buckhorn
Title: Mayor
ATTEST:
By:
Title: City Clerk
CERTIFICATE OF AUTHENTICATION
This Series 2015 Bond is one of the Series 2015 Bonds described in the within-mentioned
Bond Indenture.
Authentication Date: ____________, 2015
REGIONS BANK,
as Bond Trustee
By:
Title:
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Unless this certificate is presented by an authorized representative of The Depository Trust
Company to the Issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as requested by the
authorized representative of The Depository Trust Company and any payment is made to Cede
& Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the
within
bond
and
does
hereby
irrevocably
constitute
and
appoint
________________________, as attorneys to register the transfer of the said bond on the books
kept for registration thereof with full power of substitution in the premises.
Dated:
Signature guaranteed:
NOTICE:
Signature
must
be
guaranteed by an institution which is a
participant in the Securities Transfer Agent
Medallion Program (STAMP) or similar
program.
NOTICE: The signature to this assignment
must correspond with the name of the
Registered Owner as it appears upon the
face of the within bond in every particular,
without alteration or enlargement or any
change whatever and the Social Security or
other identifying number of such assignee
must be supplied.
A-12
EXHIBIT B
FORM OF REQUISITION
REQUISITION NO. ___
Pursuant to Section [3.1][3.2] of the Bond Indenture dated as of April 1, 2015, by and
between the City of Tampa, Florida, as issuer (the "Issuer"), and Regions Bank, as bond trustee
(the "Bond Trustee"), the undersigned authorized officer of The University of Tampa,
Incorporated (the "Borrower") hereby requests and authorizes the Bond Trustee to pay to the
Borrower or to the person(s) listed on the Disbursement Schedule hereto, from the moneys
deposited in the [Expense Fund/Project Fund], the aggregate sum of $____________ to pay such
person(s) or to reimburse the Borrower for the advances, payments and expenditures made by
it in connection with the items listed on the Disbursement Schedule.
[WITH RESPECT TO REQUISITIONS FROM THE PROJECT FUND INSERT INFORMATION
LISTED IN SECTION 3.2 OR ATTACH]:
In connection with the foregoing request and authorization, the undersigned hereby
certifies that the obligations on the attached Disbursement Schedule have been incurred by the
Borrower and are presently due and payable and that each item thereof is a necessary [costs of
issuance, cost of the 2015 Project] and is a proper charge against the [Expense Fund/Project
Fund] and has not been paid previously from the [Expense Fund/Project Fund].
This statement and all exhibits hereto, including the Disbursement Schedule, shall be
conclusive evidence of the facts and statements set forth herein and shall constitute full warrant,
protection and authority to the Bond Trustee for its actions taken pursuant hereto.
Dated: _______________, 20__.
By:
Name: _______________________________________
Title: Authorized Officer
B-1
DISBURSEMENT SCHEDULE
Payee
Amount
Purpose
APPENDIX F
FORM OF MASTER TRUST INDENTURE AND SUPPLEMENT NO. 6
MASTER TRUST INDENTURE
(Security Agreement)
by and among
and
REGIONS BANK,
as Master Trustee
Dated as of April 1, 2012
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS CONCERNING
INTERPRETATION .................................................................................................... 3
SECTION 1.1
SECTION 1.2
DEFINITIONS ................................................................................................ 3
INTERPRETATION..................................................................................... 18
ARTICLE II - INDEBTEDNESS, AUTHORIZATION, ISSUANCE AND TERMS OF
OBLIGATIONS ......................................................................................................... 19
SECTION 2.1
SECTION 2.2
SECTION 2.3
SECTION 2.4
SECTION 2.5
SECTION 2.6
AMOUNT OF INDEBTEDNESS ............................................................... 19
DESIGNATION OF OBLIGATIONS ........................................................ 20
APPOINTMENT OF OBLIGATED GROUP
REPRESENTATIVE ..................................................................................... 20
EXECUTION AND AUTHENTICATION OF OBLIGATIONS ............ 20
SUPPLEMENT CREATING INDEBTEDNESS........................................ 21
CONDITIONS TO ISSUANCE OF OBLIGATIONS
HEREUNDER ............................................................................................... 21
ARTICLE III - PARTICULAR COVENANTS OF THE OBLIGATED GROUP ............................... 22
SECTION 3.1
SECTION 3.2
SECTION 3.3
SECTION 3.4
SECTION 3.5
SECTION 3.6
SECTION 3.7
SECTION 3.8
SECTION 3.9
SECTION 3.10
SECTION 3.11
SECTION 3.12
SECTION 3.13
SECURITY; PAYMENT OF PRINCIPAL AND INTEREST................... 22
COVENANTS AS TO CORPORATE EXISTENCE,
MAINTENANCE OF PROPERTIES, ETC ................................................ 23
INSURANCE ................................................................................................ 24
NEGATIVE PLEDGE; RESERVE FUND .................................................. 24
LIMITATIONS ON CREATION OF LIENS; PERMITTED
LIENS ............................................................................................................ 26
LIMITATIONS ON INDEBTEDNESS ...................................................... 29
RATE COVENANT ..................................................................................... 31
SALE, LEASE OR OTHER DISPOSITION OF PROPERTY,
CASH, ASSETS, ETC. .................................................................................. 32
CONSOLIDATION, MERGER, SALE OR CONVEYANCE .................. 34
FILING OF FINANCIAL STATEMENTS, CERTIFICATE OF
NO DEFAULT, OTHER INFORMATION ............................................... 35
PARTIES BECOMING MEMBERS OF THE OBLIGATED
GROUP .......................................................................................................... 36
WITHDRAWAL FROM THE OBLIGATED GROUP ............................. 37
REVENUE FUND ........................................................................................ 38
ARTICLE IV - DEFAULT AND REMEDIES ........................................................................................ 39
SECTION 4.1
SECTION 4.2
EVENTS OF DEFAULT .............................................................................. 39
ACCELERATION ........................................................................................ 40
i
SECTION 4.3
SECTION 4.4
SECTION 4.5
SECTION 4.6
SECTION 4.7
SECTION 4.8
SECTION 4.9
SECTION 4.10
SECTION 4.11
SECTION 4.12
ADDITIONAL REMEDIES AND ENFORCEMENT OF
REMEDIES .................................................................................................... 41
APPLICATION OF MONEYS AFTER DEFAULT .................................. 42
REMEDIES NOT EXCLUSIVE ................................................................... 43
REMEDIES VESTED IN THE MASTER TRUSTEE................................. 43
HOLDERS' CONTROL OF PROCEEDINGS ........................................... 43
TERMINATION OF PROCEEDINGS ....................................................... 44
WAIVER OF EVENT OF DEFAULT ......................................................... 44
APPOINTMENT OF RECEIVER ............................................................... 45
REMEDIES SUBJECT TO PROVISIONS OF LAW ................................. 45
NOTICE OF DEFAULT .............................................................................. 45
ARTICLE V - THE MASTER TRUSTEE ................................................................................................ 46
SECTION 5.1
SECTION 5.2
SECTION 5.3
SECTION 5.4
SECTION 5.5
SECTION 5.6
SECTION 5.7
SECTION 5.8
CERTAIN DUTIES AND RESPONSIBILITIES........................................ 46
CERTAIN RIGHTS OF MASTER TRUSTEE............................................ 47
RIGHT TO DEAL IN OBLIGATIONS AND RELATED BONDS
AND WITH MEMBERS OF THE OBLIGATED GROUP....................... 48
REMOVAL AND RESIGNATION OF THE MASTER TRUSTEE ........ 48
COMPENSATION AND REIMBURSEMENT ........................................ 50
RECITALS AND REPRESENTATIONS ................................................... 50
SEPARATE OR CO-MASTER TRUSTEE ................................................. 51
DISCLOSURE ............................................................................................... 52
ARTICLE VI - SUPPLEMENTS AND AMENDMENTS .................................................................... 53
SECTION 6.1
SECTION 6.2
SECTION 6.3
SUPPLEMENTS NOT REQUIRING CONSENT OF HOLDERS .......... 53
SUPPLEMENTS REQUIRING CONSENT OF HOLDERS .................... 55
EXECUTION AND EFFECT OF SUPPLEMENTS .................................. 56
ARTICLE VII - SATISFACTION AND DISCHARGE OF INDENTURE ......................................... 57
SECTION 7.1
SECTION 7.2
SATISFACTION AND DISCHARGE OF INDENTURE ........................ 57
PAYMENT OF OBLIGATIONS AFTER DISCHARGE OF LIEN ......... 57
ARTICLE VIII - CONCERNING THE HOLDERS .............................................................................. 58
SECTION 8.1
SECTION 8.2
SECTION 8.3
SECTION 8.4
EVIDENCE OF ACTS OF HOLDERS ....................................................... 58
OBLIGATIONS OR RELATED BONDS OWNED BY
MEMBERS OF OBLIGATED GROUP ...................................................... 59
INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE
HOLDER ....................................................................................................... 59
RIGHTS OF CREDIT FACILITY PROVIDERS ........................................ 60
ARTICLE IX - MISCELLANEOUS PROVISIONS ............................................................................... 60
SECTION 9.1
SECTION 9.2
SECTION 9.3
LIMITATION OF RIGHTS ......................................................................... 60
SEVERABILITY ............................................................................................ 61
HOLIDAYS ................................................................................................... 61
ii
SECTION 9.4
SECTION 9.5
SECTION 9.6
SECTION 9.7
SECTION 9.8
GOVERNING LAW .................................................................................... 61
COUNTERPARTS ....................................................................................... 61
IMMUNITY OF INDIVIDUALS ................................................................ 61
BINDING EFFECT ....................................................................................... 61
NOTICES ...................................................................................................... 61
iii
MASTER TRUST INDENTURE
(Security Agreement)
THIS MASTER TRUST INDENTURE (Security Agreement) (the "Master Indenture"),
dated as of the 1st day of April, 2012, by and between The University of Tampa, Incorporated
(the "University"), a Florida not-for-profit corporation and Regions Bank, an Alabama banking
corporation, and being duly qualified to accept and administer the trusts created hereby (the
"Master Trustee"),
RECITALS:
The University (herein the "Initial Obligated Group" or may also be referred to herein as
the "Initial Obligated Group Member") is authorized by law, and deems it necessary and
desirable that it and any other Members of the Obligated Group (hereinafter referred to) be able
to issue promissory notes, bonds, guarantees and other evidences of indebtedness (collectively,
the "Obligations") of several series in order to secure the financing or refinancing of educational
and related facilities and for other lawful and proper corporate purposes of the Initial Obligated
Group and any other Members of the Obligated Group.
The University desires to provide in this Master Indenture for other entities in the future
to become jointly and severally liable with the Initial Obligated Group Member and all other
Members of the Obligated Group for the payment of the Obligations and the performance of all
covenants contained herein and in such Obligations. The Initial Obligated Group Member and
each entity incurring such joint and several liability in accordance with the terms hereof are
herein referred to individually as a "Member" and collectively as the "Members" or the
"Obligated Group."
On the date of the execution and delivery of this Master Indenture, (i) the University will
become the sole Member of the Obligated Group; and (ii) the Initial Obligated Group will issue
four "Obligations" in the principal amounts of $74,795,000, $7,300,000, $20,000,000 and
$41,120,000, pursuant to the provisions hereof.
In connection with the issuance by the Higher Educational Facilities Financing
Authority (the "Authority") of its $74,795,000 Revenue and Revenue Refunding Bonds (The
University of Tampa Project), Series 2012A (the "Series 2012A Bonds"), the University and the
Master Trustee will enter into this Master Indenture and a Supplement, pursuant to which the
University will issue an "Obligation" in the initial principal amount of $74,795,000 ("Obligation
No. 1") to evidence the University's obligation to repay a loan of the proceeds derived from the
sale of the Series 2012A Bonds to the University.
In connection with the issuance by the Authority of its $7,300,000 Revenue and Revenue
Refunding Bond (The University of Tampa Project), Series 2012B (the "Series 2012B Bonds"), the
University and the Master Trustee will enter into this Master Indenture and a Supplement,
pursuant to which the University will issue an "Obligation" in the initial principal amount of
$7,300,000 ("Obligation No. 2") to evidence the University's obligation to repay a loan of the
proceeds derived from the sale of the Series 2012B Bonds to the University.
In connection with the issuance by the Authority of its $20,000,000 Revenue Bond (The
University of Tampa Project), Series 2012C (the "Series 2012C Bonds"), the University and the
Master Trustee will enter into this Master Indenture and a Supplement, pursuant to which the
University will issue an "Obligation" in the initial principal amount of $20,000,000 ("Obligation
No. 3") to evidence the University's obligation to repay a loan of the proceeds derived from the
sale of the Series 2012C Bonds to the University.
In connection with securing the City of Tampa, Florida (the "City") Revenue Bonds
(University of Tampa Project), Series 2006 (the "Series 2006 Bonds"), the University and the
Master Trustee will enter into a Supplement, pursuant to which the University will issue an
"Obligation" in the initial principal amount of $41,120,000 ("Obligation No. 4") to evidence the
University's obligation to secure certain obligations regarding the Series 2006 Bonds.
The University has previously caused the Series 2006 Bonds to be issued by the City of
Tampa, Florida on behalf of the University and used the proceeds thereof for the purpose of
paying all or part of the cost of the "Project" as defined in a Trust Indenture dated as of June 1,
2006 (the "2006 Indenture"), between the City and SunTrust Bank (succeeded in interest by U.S.
Bank National Association) (the "2006 Bond Trustee").
The University is concurrently herewith causing to be issued by the Authority its
Revenue and Revenue Refunding Bonds (The University of Tampa Project), Series 2012A, Series
2012B and Series 2012C (collectively, the "Series 2012 Bonds") on behalf of the University the
proceeds of which shall be applied for the purpose of refunding certain bonds and paying all or
part of the cost of the "2012 Project" as defined in a Trust Indenture dated as of April 1, 2012 (the
"2012A Indenture"), between the Authority and Regions Bank, as the Bond Trustee.
The University has now requested the Master Trustee authenticate Obligation No. 1,
Obligation No. 2, Obligation No. 3 and Obligation No. 4 hereunder as the initial Obligations
each issued pursuant to a Supplement of even date herewith to be provided, respectively,
(i) with respect to Obligation No. 4, to the 2006 Bond Trustee, as assignee to the City, to secure
the Series 2006 Bonds as Related Bonds, (ii) with respect to Obligation No. 1, to Regions Bank to
secure the Series 2012A Bonds as Related Bonds, (iii) with respect to Obligation No. 2, to PNC
Bank, National Association to secure the Series 2012B Bonds as Related Bonds, and (iv) with
respect to Obligation No. 3, to Specialized Lending, LLC, an indirect wholly owned subsidiary
of Bank of America, N.A., to secure the Series 2012C Bonds as Related Bonds.
All acts, consents and things necessary to constitute these presents a valid indenture and
agreement according to its terms, have been done and performed, and the execution of this
Master Indenture has in all respects been duly authorized, and the Initial Obligated Group
2
Member, in the exercise of the legal right and power vested in it, executes this Master Indenture
and the Initial Obligated Group Member or any future Member may make, execute, issue and
deliver one or more additional Obligations as provided herein.
In order to declare the terms and conditions upon which Obligations of each series are
authenticated, issued and delivered, and in consideration of the premises, of the purchase and
acceptance of Obligations of each series by the holders thereof and of the sum of One Dollar to it
duly paid by the Master Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Initial Obligated Group Member and each future Member covenant and
agree with the Master Trustee, for the equal and proportionate benefit of the respective holders
from time to time of Obligations, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
CONCERNING INTERPRETATION
SECTION 1.1 DEFINITIONS. For the purposes hereof unless the context otherwise
indicates, the following words and phrases shall have the following meanings:
"Accelerable Obligation" shall mean an Obligation described in Section 4.2 hereof.
"Additional Indebtedness" means any indebtedness incurred by any Member of the
Obligated Group subsequent to the issuance of the Initial Obligations under this Master
Indenture or incurred by any other Member of the Obligated Group subsequent to or
contemporaneously with its becoming a Member of the Obligated Group.
"Affiliate" means a corporation, partnership, joint venture, association, business trust or
similar entity organized under the laws of the United States of America or any state thereof
which is directly or indirectly controlled by a Person, by any other Affiliate or by any Person
which directly or indirectly controls such Person or which directly or indirectly controls any
other Affiliate. For purposes of this definition, control means the power to direct the
management and policies of a Person through the ownership of not less than a majority of its
voting securities or the right to designate or elect not less than a majority of the members of its
board of directors or other governing board or body, by contract or otherwise.
"Audited Financial Statements" means, as to the Obligated Group or any Member of the
Obligated Group, financial statements for a twelve-month period, or for such other period for
which an audit has been performed, prepared in accordance with Generally Accepted
Accounting Principles, which have been audited and reported upon by independent certified
public accountants.
3
"Authorized Representative" shall mean, with respect to any Member of the Obligated
Group, the Chairperson of its Governing Body or its chief executive officer, its chief operating
officer or chief financial officer or any other person or persons designated an Authorized
Representative of a Member of the Obligated Group by an Officer's Certificate of such Member
of the Obligated Group signed by the Chairperson of its Governing Body or its chief executive
officer or chief financial officer and filed with the Master Trustee.
"Balloon Long-Term Indebtedness" means Long-Term Indebtedness 20% or more of the
principal payments of which are due in a single year, which portion of the principal is not
required by the documents pursuant to which such Long-Term Indebtedness is issued to be
amortized by redemption prior to such date.
"Book Value" when used in connection with Property, Plant and Equipment or other
Property of any Person, means the value of such property, net of accumulated depreciation, as it
is carried on the books of such Person in conformity with Generally Accepted Accounting
Principles, and when used in connection with Property, Plant and Equipment or other Property
of the Obligated Group, means the aggregate of the values so determined with respect to such
Property, Plant and Equipment or other Property of the Obligated Group determined in such a
manner that no portion of such value of Property, Plant and Equipment or other Property is
included more than once.
"Code" means the Internal Revenue Code of 1986, as amended, and all rules and
regulations promulgated thereunder.
"Completion Indebtedness" means any Long-Term Indebtedness incurred by any
Member of the Obligated Group for the purpose of financing the completion of facilities the
acquisition, construction or equipping of which has theretofore been financed through the
incurrence of Long-Term Indebtedness issued in accordance with the provisions of this Master
Indenture, to the extent necessary to provide a completed and equipped facility of the type and
scope contemplated at the time that such Long-Term Indebtedness theretofore incurred was
originally incurred, and, to the extent the same shall be applicable, in accordance with the
general plans and specifications for such facility as originally prepared with only such changes
as have been made in conformance with the documents pursuant to which such Long-Term
Indebtedness theretofore incurred was originally incurred.
"Consultant" means a firm or firms which is not, and no member, stockholder, director,
officer, trustee or employee of which is, an officer, director, trustee or employee of any Member
of the Obligated Group or any Affiliate of any Member or Members of the Obligated Group,
and which is a professional consultant of national repute for having the skill and experience
necessary to render the particular report, advice, or documentation required by the provision
hereof in which such requirement appears.
4
"Corporate Trust Office" means the office of the Master Trustee or its agent designated
by the Master Trustee from time to time, which, until designated otherwise, shall be at the
address set forth in Section 9.8 hereof.
"Credit Facility" means a municipal bond insurance policy, line of credit, letter of credit,
standby bond purchase agreement or similar credit enhancement or liquidity facility provided
by an insurer, bank or other financial institution and established in connection with the issuance
of Indebtedness secured by an Obligation issued hereunder to provide credit or liquidity
support for such Indebtedness, or to serve as a surety in lieu of a debt service reserve fund
under any Related Bond Indenture and shall initially include the bond insurance policy
originally issued by CIFG Assurance North America and novated to Assured Guaranty Corp.
securing the Series 2006 Bonds and the Insurance Policy as defined in the 2012A Indenture
securing a portion of the Series 2012A Bonds, which Series 2012A Bonds are Related Bonds
hereunder.
"Credit Facility Provider" means the provider of any Credit Facility.
"Debt Service Reserve Fund Requirement" means, for purposes hereof $5,502,875.
Additionally for any other Obligation which is stated in the Supplement related thereto to be
entitled to the benefits and security of the Reserve Fund or an account therein the amount shall
be set forth in the Supplement related thereto.
"Defeasance Obligations" means, unless modified by the terms of a particular
Supplement, (i) noncallable, nonprepayable Government Obligations, (ii) evidences of
ownership of a proportionate interest in specified noncallable, nonprepayable Government
Obligations, which Government Obligations are held by a bank or trust company organized and
existing under the laws of the United States of America or any state thereof in the capacity of
custodian, (iii) Defeased Municipal Obligations, (iv) evidences of ownership of a proportionate
interest in specified Defeased Municipal Obligations, which Defeased Municipal Obligations are
held by a bank or trust company organized and existing under the laws of the United States of
America or any state thereof in the capacity as custodian, (v) the non-callable senior debt
obligations of (A) Freddie Mac, (B) Farm Credit System, (C) Federal Home Loan Banks,
(D) Fannie Mae, (E) Student Loan Marketing Association, (F) Resolution Funding Corp., and
(G) U.S. Agency for International Development, and (H) stripped securities where the
principal-only and interest-only strips of noncallable obligations are issued by the U.S. Treasury
or Resolution Funding Corp. securities stripped by the Federal Reserve Bank of New York.
"Defeased Municipal Obligations" means obligations of state or local government
municipal bond issuers rated the highest rating by Standard & Poor's, Moody's or Fitch,
provision for the payment of the principal of and interest on which shall have been made by
irrevocable deposit with a trustee or escrow agent of (i) noncallable, nonprepayable
Government Obligations or (ii) evidences of ownership of a proportionate interest in specified
noncallable, nonprepayable Government Obligations, which Government Obligations are held
5
by a bank or trust company organized and existing under the laws of the United States of
America or any state thereof in the capacity as custodian, the maturing principal of and interest
on such Government Obligations or evidences of ownership, when due and payable, shall
provide sufficient money to pay the principal of, redemption premium, if any, and interest on
such obligations of state or local government municipal bond issuers.
"Defeased Obligations" means Obligations issued under a Supplement that have been
discharged in accordance with Article VII of this Master Indenture, or provision for the
discharge of which has been so made, pursuant to the terms of such Supplement.
"Derivative Agreement" means, without limitation, (i) any contract known as or
referred to or which performs the function of an interest rate swap or exchange agreement,
currency swap agreement, forward payment conversion agreement or futures contract; (ii) any
contract providing for payments based on levels of, or charges or differences in, interest rates,
currency exchange rates, or stock or other indices; (iii) any contract to exchange cash flows or
payments or series of payments; (iv) any type of contract called, or designed to perform the
function of, interest rate floors or caps, options, puts or calls, to hedge or minimize any type of
financial risk, including, without limitation, payment, currency, rate or other financial risk; and
(v) any other type of contract or arrangement that the Member of the Obligated Group entering
into such contract or arrangement determines is to be used, or is intended to be used, to manage
or reduce the cost of indebtedness, to convert any element of indebtedness from one form to
another, to maximize or increase investment return, to minimize investment return risk or to
protect against any type of financial risk or uncertainty.
"Derivative Indebtedness" means payments for which a Member of the Obligated
Group shall have become obligated under a Derivative Agreement, excluding any termination
payments under such Derivative Agreement.
"Escrowed Interest" means amounts of interest on Long-Term Indebtedness for which
moneys or Defeasance Obligations have been deposited in escrow, which deposit has been
determined to be sufficient to pay such Escrowed Interest.
"Escrowed Principal" means amounts of principal on Long-Term Indebtedness for
which moneys or Defeasance Obligations have been deposited in escrow, which deposit has
been determined to be sufficient to pay such Escrowed Principal.
"Event of Default" means any one or more of those events set forth in Section 4.1 of this
Master Indenture.
"Expenses" means the expenses of operating any Member or all Members, as the case
may be, of the Obligated Group excluding depreciation, amortization, provisions for bad debt
and interest expenses, as determined in accordance with Generally Accepted Accounting
Principles consistently applied.
6
"Exposure to Guaranteed Debt" means, with respect to the period of time for which
calculated, an amount equal to the sum of one hundred percent (100%) of the amount which
would be payable as principal and interest on the indebtedness for which a Guaranty has been
issued (calculated in the same manner as the Long-Term Debt Service Coverage Ratio);
provided, however, that so long as (a) such Guaranty constitutes a contingent liability under
Generally Accepted Accounting Principles; and (b) the guarantor has not been required, by
reason of its Guaranty, to make any payment in respect of the guaranteed indebtedness within
the immediately preceding twelve (12) months, only that percentage of the guaranteed
indebtedness specified opposite the Long-Term Debt Service Coverage Ratios of the Person on
whose behalf the Guaranty has been issued ("Guaranty Debtor") (or, in the case of a Guaranty
Debtor whose operations and debt are not susceptible to the calculation of the Long-Term Debt
Service Coverage Ratio as defined herein, a coverage ratio of income to Long-Term
Indebtedness as close as possible to the Long-Term Debt Service Coverage Ratio) for the
immediately preceding Fiscal Year, or for any other twelve (12) month period ending within 180
days prior to the date of calculation, as certified by the Guaranty Debtor shall constitute the
Exposure to Guaranteed Debt:
Long-Term
Debt Service Coverage
Ratio of Guaranty Debtor
Percentage of Guaranteed
Indebtedness of
Guaranty Debtor
2.0:1 or above
Greater than or equal to 1.5:1 but less than 2.0:1
Less than 1.10:1
0%
20%
50%
75%
100%
"Fiscal Year" means the fiscal year of each Member of the Obligated Group, which shall
be the period commencing on June 1 of any year and ending on May 31 of the subsequent year
unless the Master Trustee is notified in writing by the Obligated Group Representative of a
change in such period, in which case the Fiscal Year shall be the period set forth in such notice.
"Fitch" means Fitch Ratings, its successors and their assigns, and, if such entity shall be
"Fitch" shall be deemed to refer to any other nationally recognized securities rating agency
designated by the Obligated Group Representative by notice to the Master Trustee.
"Generally Accepted Accounting Principles" means those accounting principles
applicable in the preparation of financial statements of the University, as promulgated by the
Financial Accounting Standards Board or such other body recognized as authoritative by the
American Institute of Certified Public Accountants.
7
"Governing Body" means, when used with respect to any Member of the Obligated
Group, its board of directors, board of trustees, or other board or group of individuals by, or
under the authority of which, corporate powers of such Member of the Obligated Group are
exercised.
"Government Obligations" means direct obligations of, or obligations the payment of
the principal of and interest on which are fully and unconditionally guaranteed by, the United
States of America, including interest strips of obligations issued by the Resolution Funding
Corporation, but excluding unit investment trusts and mutual funds.
"Governmental Restrictions" means federal, state or other applicable governmental
laws or regulations affecting any Member of the Obligated Group and its educational facilities
placing restrictions and limitations on the (i) fees and charges to be fixed, charged and collected
by any Member of the Obligated Group or (ii) the amount or timing of the receipt of such
revenues.
"Guaranty" means any obligation of any Member of the Obligated Group guaranteeing
in any manner, directly or indirectly, any obligation of any Person that is not a Member of the
Obligated Group which obligation of such other Person would, if such obligation were the
obligation of a Member of the Obligated Group, constitute Indebtedness hereunder. For the
purposes of this Master Indenture, the aggregate annual principal and interest payments on any
indebtedness in respect of which any Member of the Obligated Group shall have executed and
delivered its Guaranty shall be determined in accordance with the Obligated Group's Exposure
to Guaranteed Debt.
"Holder" means an owner of any Obligation.
"Income Available for Debt Service" means, with respect to the Obligated Group, as to
any period of 12 consecutive calendar months, its excess of Revenues over Expenses.
"Indebtedness" means, for any Person, (a) all Guaranties by such Person, (b) all
liabilities (exclusive of reserves such as those established for deferred taxes or litigation)
recorded or required to be recorded as such on the audited financial statements of such Person
in accordance with Generally Accepted Accounting Principles, (c) all obligations for the
payment of money incurred or assumed by such Person (i) due and payable in all events or
(ii) if incurred or assumed primarily to assure the repayment of money borrowed or credit
extended, due and payable upon the occurrence of a condition precedent or upon the
performance of work, possession of Property as lessee, rendering of services by others or
otherwise, (d) all Long-Term Indebtedness, and (e) all Short-Term Indebtedness; provided that
Indebtedness shall not include (i) Indebtedness of one Member to another Member, (ii) any
Guaranty by any Member of Indebtedness of any other Member, (iii) the joint and several
liability of any Member on Indebtedness issued by another Member, (iv) any Derivative
Indebtedness or (v) liabilities of the University to the Student Loan Marketing Association
8
arising in connection with the Sallie Mae Program. Nothing in this definition or otherwise shall
be construed to count Indebtedness more than once.
"Initial Obligated Group" means The University of Tampa, Incorporated.
"Initial Obligations" means collectively Obligation No. 1, Obligation No. 2, Obligation
No. 3 and Obligation No. 4.
"Lien" means any pledge of, security interest in, mortgage, or encumbrance on any
Property of any Member of the Obligated Group which secures any indebtedness or any other
obligation of any Member of the Obligated Group or which secures any obligation of any
Person, other than an obligation to any Member of the Obligated Group.
"Long-Term Debt Service Coverage Ratio" means for any period of time the ratio
determined by dividing (i) the Income Available for Debt Service by (ii) Maximum Annual Debt
Service.
"Long-Term Debt Service Requirement" means, for any period of 12 consecutive
calendar months for which such determination is made, the aggregate of the payments to be
made in respect of principal and interest (whether or not separately stated) on Outstanding
Long-Term Indebtedness of the Obligated Group during such period, also taking into account:
(i)
with respect to Balloon Long-Term Indebtedness which is not amortized
by the terms thereof (a) the amount of principal which would be payable in such period
if such principal were amortized from the date of incurrence thereof over a period of not
to exceed thirty (30) years as determined by the Obligated Group Representative in an
Officer's Certificate on a level debt service basis at an interest rate equal to the rate borne
by such Indebtedness on the date calculated, except that if the date of calculation is
within twelve (12) months of the actual maturity of such Indebtedness, the full amount
of principal payable at maturity shall be included in such calculation or (b) principal
payments or deposits with respect to Indebtedness secured by an irrevocable letter of
credit issued by, or an irrevocable line of credit with, a bank rated in any of the three
highest long-term rating categories or the two highest short-term rating categories, in
each case without regard to gradations within such categories, from Moody's, S&P or
Fitch, or insured by an insurance policy issued by any insurance company rated at least
"A" by Alfred M. Best Company or its successors in Best's Insurance Reports or its
successor publication, nominally due in the last Fiscal Year in which such Indebtedness
matures may, at the option of the Member of the Obligated Group which issued such
Indebtedness, be treated as if such principal payments or deposits were due as specified
in any loan agreement or reimbursement agreement entered into in connection with
such letter of credit, line of credit or insurance policy or pursuant to the repayment
provisions of such letter of credit, line of credit or insurance policy, and interest on such
9
Indebtedness after such Fiscal Year shall be assumed to be payable pursuant to the terms
of such loan agreement, reimbursement agreement or repayment provisions;
(ii)
with respect to Long-Term Indebtedness which is Variable Rate
Indebtedness the interest on such Indebtedness shall be calculated at the rate which is
equal to the average of the actual interest rates which were in effect (weighted according
to the length of the period during which each such interest rate was in effect) for the
most recent twelve-month period immediately preceding the date of calculation for
which such information is available (or shorter period if such information is not
available for a twelve-month period), except that with respect to new Variable Rate
Indebtedness (and the incurrence thereof) the interest rate for such Indebtedness for the
initial interest rate period shall be the initial rate at which such Indebtedness is issued
and thereafter shall be calculated as set forth above;
(iii)
with respect to any Credit Facility, to the extent that such Credit Facility
has not been used or drawn upon, the principal and interest relating to such Credit
Facility shall not be included in the calculation of the Long-Term Debt Service
Requirement;
(iv)
with respect to any Long-Term Indebtedness undertaken in connection
with a Derivative Agreement, the interest on such Indebtedness during any Derivative
Period, and for so long as such Derivative Agreement has not been terminated, shall be
calculated by adding the amount of interest payable by a Member of the Obligated
Group pursuant to such Derivative Agreement under its terms, and subtracting the
amount of interest payable by the provider of the Derivative Agreement at the rate
specified in the Derivative Agreement; provided, however, that from and after the
termination of any Derivative Agreement, the amount of interest payable by the
Member of the Obligated Group shall be the interest calculated as if such Derivative
Agreement had not been executed;
provided, however, that Escrowed Interest and Escrowed Principal shall be excluded from the
determination of Long-Term Debt Service Requirement.
"Long-Term Indebtedness" means all Indebtedness having a maturity longer than one
year incurred or assumed by any Member or Members of the Obligated Group, including,
without limitation:
(i)
money borrowed for an original term, or renewable at the option of the
borrower for a period from the date originally incurred, longer than one year;
(ii)
leases which are required to be capitalized in accordance with Generally
Accepted Accounting Principles having an original term, or renewable at the option of
the lessee for a period from the date originally incurred, longer than one year;
10
(iii)
installment sale or conditional sale contracts having an original term in
excess of one year;
(iv)
Short-Term Indebtedness if a commitment by a financial lender exists to
provide financing to retire such Short-Term Indebtedness, such commitment provides
for the repayment of principal on terms which would, if such commitment were
implemented, constitute Long-Term Indebtedness and the Obligated Group shall have
approved the Short-Term Indebtedness to be retired through a borrowing under such
commitment; and
(v)
the current portion of Long-Term Indebtedness.
"Master Indenture" means this Master Trust Indenture, including any amendments or
supplements hereto.
"Master Trustee" means Regions Bank, an Alabama banking corporation duly
organized, validly existing, and in good standing under the laws of the United States and is
duly authorized to exercise trust powers in the State of Florida and authorized to accept and
administer the trusts created hereby, and its successors in the trusts created under this Master
Indenture.
"Maximum Annual Debt Service" means, as of any particular time, the highest LongTerm Debt Service Requirement for any succeeding Fiscal Year.
"Member of the Obligated Group" means the Initial Obligated Group Member and any
other Person becoming a Member of the Obligated Group pursuant to Section 3.11 hereof, but
excluding any Person that has withdrawn from the Obligated Group pursuant to Section 3.12
hereof.
"Moody's" means Moody's Investors Service, Inc., its successors and their assigns, and, if
such corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Obligated Group Representative by notice to the
Master Trustee.
"Non-Recourse Indebtedness" means any Indebtedness incurred to finance the
purchase or improvement of Property secured exclusively by a Lien on or pledge of such
Property or the revenues or net revenues produced by such Property or both, the liability for
which is effectively limited to such Property or revenues subject to such Lien with no recourse,
directly or indirectly, to any other Property or revenues of any Member of the Obligated Group.
"Obligated Group" means, collectively, the Members of the Obligated Group.
11
"Obligated Group Representative" means, initially, the University, and thereafter any
Person as may be designated pursuant to written notice to the Master Trustee executed by all of
the Members of the Obligated Group.
"Obligation" means the evidence of particular indebtedness issued under this Master
Indenture as a joint and several obligation of each Member of the Obligated Group.
"Officer's Certificate" means a certificate signed by the Authorized Representative of
such Member of the Obligated Group as the context requires.
Each Officer's Certificate presented pursuant to this Master Indenture shall state that it is
being delivered pursuant to (and shall identify the section or subsection of), and shall
incorporate by reference and use in all appropriate instances all terms defined in, this Master
Indenture. Each Officer's Certificate shall state (i) that the terms thereof are in compliance with
the requirements of the section or subsection pursuant to which such Officer's Certificate is
delivered or shall state in reasonable detail the nature of any non-compliance and the steps
being taken to remedy such non-compliance and (ii) that it is being delivered together with any
opinions, schedules, statements or other documents required in connection therewith.
"Operating Assets" means any or all land, leasehold interests, buildings, machinery,
equipment, hardware, and inventory owned or operated by each Member of the Obligated
Group and used in its respective trade or business, whether separately or together with other
such assets, but not including cash, investment securities and other Property held for
investment purposes.
"Opinion of Bond Counsel" means an opinion in writing signed by an attorney or firm
of attorneys acceptable to the Obligated Group Representative and experienced in the field of
municipal bonds whose opinions are generally accepted by purchasers of municipal bonds.
"Opinion of Counsel" means an opinion in writing signed by an attorney or firm of
attorneys, acceptable to the Obligated Group Representative, who may be counsel for any
Member of the Obligated Group.
"Outstanding" when used with reference to Indebtedness or Obligations, means, as of
any date of determination, all Indebtedness or Obligations theretofore issued or incurred and
not paid and discharged other than (i) Obligations theretofore cancelled by the Master Trustee
or delivered to the Master Trustee for cancellation, (ii) Indebtedness deemed paid and no longer
Outstanding under the documents pursuant to which such indebtedness was incurred, (iii)
Defeased Obligations and (iv) Obligations in lieu of which other Obligations have been
authenticated and delivered or have been paid pursuant to the provisions of the applicable
Supplement regarding mutilated, destroyed, lost or stolen Obligations unless proof satisfactory
to the Master Trustee has been received that any such Obligation is held by a bona fide
12
purchaser; provided, however, that for purposes of determining whether the Holders of the
requisite principal amount of Obligations have concurred in any demands, direction, request,
notice, consent, waiver or other action under this Master Indenture, Obligations or Related
Bonds that are owned by any Member of the Obligated Group or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
Member shall be deemed not to be Outstanding, provided further, however, that for the
purposes of determining whether the Master Trustee shall be protected in relying on any such
direction, consent, or waiver, only such Obligations or Related Bonds which the Master Trustee
has actual notice or knowledge are so owned shall be deemed to be not Outstanding.
"Permitted Liens" shall have the meaning given in Section 3.5 hereof.
"Person" includes an individual, association, unincorporated organization, corporation,
partnership, joint venture, business trust or a government or an agency or a political
subdivision thereof, or any other entity.
"Pledged Revenues" means all (a) revenues, receipts and money from tuition, fees, room
and board and auxiliary services and programs, (b) all gifts, grants, bequests, contributions and
donations unrestricted as to their use for the payment of Obligations, (c) rent received from the
leasing of real or tangible personal property and (d) proceeds derived from (i) insurance or
condemnation awards relating to Property, except to the extent otherwise required by this
Master Indenture, (ii) accounts (as defined in Section 679.1021(b), Florida Statutes) and accounts
receivable for any of the items described in clauses (a) - (c). Pledged Revenues shall be
deposited and held in accordance with Section 3.13 hereof.
"Property" means any and all rights, titles and interests in and to any and all property
whether real or personal, tangible or intangible and wherever situated.
"Property, Plant and Equipment" means all Property of the Members of the Obligated
Group which is property, plant and equipment under Generally Accepted Accounting
Principles.
"Qualified Investments" means:
(i)
Direct obligations of, or obligations guaranteed by, the United States of America
("Treasuries")
(ii)
Senior debt obligations and participation certificates issued by an agency or
instrumentality established by an act of Congress, including but not limited to
the Fannie Mae, Federal Home Loan Bank, Freddie Mac, and Federal Farm
Credit Bank System ("Federal Agency Securities"), in each case rated not lower
than the second highest category (without regard to gradations within such
13
category), at the time of acquisition thereof, by at least two nationally recognized
rating agencies;
(iii)
Obligations of any state or political subdivision thereof rated at least "AA-" and
"Aa3" by S&P and Moody’s, respectively, at the time of acquisition thereof;
(iv)
Negotiable certificates of deposit maturing not more than two years after the
date of purchase, and interest-bearing deposit accounts of a national association
or state-chartered bank or a state or federal savings and loan association or by a
state-licensed branch of a foreign bank, which (i) has assets of not less than
$1,000,000,000, provided that the senior debt obligations of the issuing institution
are rated in the highest long-term category by Moody’s or S&P at the time of
acquisition thereof, or (ii) funds are guaranteed by the Federal Deposit Insurance
Corporation, or (iii) funds are fully collateralized by Treasuries or Federal
Agency Securities
(v)
Bills of exchange or time drafts drawn on and accepted by a commercial bank
(otherwise known as bankers acceptances), provided that such bankers
acceptances may not exceed 180 days maturity, and provided further that the
accepting bank has the highest short-term letter and numerical rating as
provided by Moody’s or S&P at the time of acquisition thereof;
(vi)
Money market funds which have a rating of "AAAm-G," "AAAm" or "AAAm" by
S&P at the time of acquisition thereof, provided that the fund is registered under
the Federal Investment Company Act of 1940 and whose shares are registered
under the Federal Securities Act of 1933;
(vii)
Investment agreements with providers rated not lower than the second highest
category (without regard to gradations within such category), at the time of
acquisition thereof, by at least two nationally recognized rating agencies,
provided that if the investment agreement is guaranteed by a third party, then
such rating requirement shall apply to the guarantor only, and provided further
that if the credit rating of the provider (or guarantor, as the case may be) is
downgraded by one or more nationally recognized rating agency to below the
second highest category, the agreement shall (i) be fully collateralized at 104% by
Treasuries or 105% by Federal Agency Securities or (ii) terminate;
(viii)
Collateralized investment agreements with providers rated not lower than the
third highest category (without regard to gradations within such category), at the
time of acquisition thereof, by at least two nationally recognized rating agencies,
14
that in all cases such rating requirements shall apply only at the time the
investment agreement is executed;
(ix)
Forward purchase and sale agreements with providers rated not lower than the
third highest category (without regard to gradations within such category), at the
time of acquisition thereof, by at least two nationally recognized rating agencies,
that in all cases such rating requirements shall apply only at the time the
investment agreement is executed;
(x)
Commercial paper which is rated at the time of acquisition thereof at least "A-1"
by S&P or "P-1" by Moody’s and which matures not more than 270 days after the
date of purchase;
(xi)
Notes issued by corporate entities rated at least "AA-" and "Aa3" by S&P and
Moody’s, respectively, at the time of acquisition thereof;
(xii)
The amended and restated Forward Delivery Agreements as defined in the
2012A Indenture with Bank of America, N.A. and any securities delivered
thereunder;
(xiii)
Other obligations or securities that either (i) under the applicable standards and
guidelines of each Rating Agency are investments in which money in a particular
fund or account held hereunder may be invested by the Obligated Group, or
(ii) as to the investment therein for any fund or account the Obligated Group has
received rating confirmation.
"Rating Agency" shall mean Moody's or S&P or Fitch or any other Rating Agency that
has been requested by the University of the Obligated Group to assign a rating to particular
Related Bonds.
"Related Bond Indenture" means initially the Series 2006 Indenture, the 2012A
Indenture, the Series 2012B Financing Agreement, the Series 2012C Financing Agreement and
any indenture, bond resolution or other comparable instrument pursuant to which a series of
Related Bonds is issued.
"Related Bond Issuer" means initially the Authority and shall also include the issuer of
any issue of Related Bonds.
"Related Bonds" means initially the Series 2006 Bonds, the Series 2012A Bonds, the
Series 2012B Bonds and the Series 2012C Bonds and shall also mean any revenue bonds or other
obligations issued by any state, territory or possession of the United States or any municipal
15
corporation or political subdivision formed under the laws thereof or any constituted authority
or agency or instrumentality of any of the foregoing empowered to issue obligations on behalf
thereof ("governmental issuer"), pursuant to a Related Bond Indenture, the proceeds of which
are loaned or otherwise made available to (i) a Member of the Obligated Group in consideration
of the execution, authentication and delivery of an Obligation to or for the order of such
governmental issuer, or (ii) any Person other than a Member of the Obligated Group in
consideration of the issuance to such governmental issuer (A) by such Person of any
indebtedness or other obligation of such Person, and (B) by a Member of the Obligated Group
of a guaranty in respect of such indebtedness or other obligation, which guaranty is represented
by an Obligation.
"Related Bond Trustee" means initially Regions Bank and the 2006 Bond Trustee, and
thereafter any trustee and its successors in the trusts created under any Related Bond Indenture,
or any other authorized agent for Related Bonds acting in a capacity similar to a trustee such as
an escrow agent, paying agent or fiduciary agent.
"Reserve Fund" shall mean the Reserve Fund created pursuant to Section 3.4 hereof.
"Reserve Fund Credit Facility" shall mean a credit facility (including a reserve fund
insurance policy) issued by any bank or national banking association, insurance company or
other financial institution and then on deposit in the Reserve Fund in lieu of or in partial
substitution for cash on deposit therein pursuant to the terms hereof which Reserve Fund
Credit Facility shall be rated at the time of deposit into the Reserve Fund at least "A" by S&P,
Moody's or Fitch.
"Revenue Fund Control Agreement" shall mean the agreement(s) governing and
evidencing the Master Trustee's possession of the Revenue Fund by and among the Master
Trustee, the University and the depository or depositories holding the Revenue Fund and shall
be legally sufficient to establish "control" (within the meaning of Chapter 679, Florida Statutes)
over the Revenue Fund with the Master Trustee.
"Revenue Fund" means the Revenue Fund described in Section 3.13 hereof.
"Revenues" means, for any period, the Pledged Revenues for such period, but in
calculating the same, rather than using the gifts, grants, bequests, contributions and donations
unrestricted as to their use for the payment of Obligations received in such period, the average
amount of such gifts, grants, bequests and contributions for such period of and the two
preceding periods of equal length shall be used, and there shall be included all investment
income (excluding investment gains or losses) which investment income is unrestricted as to its
use for the payment of Obligations.
"S&P" or "Standard & Poor's" means Standard & Poor's Ratings Services, a unit of The
McGraw Hill Companies, its successors and their assigns, and, if such corporation shall be
16
"S&P" shall be deemed to refer to any other nationally recognized securities rating agency
designated by the Obligated Group Representative by notice to the Master Trustee.
"Series 2012B Financing Agreement" shall mean the Financing Agreement by and
among PNC Bank, National Association, as Bondholder, the Authority and the University dated
as of April 1, 2012.
"Series 2012C Financing Agreement" shall mean the Financing Agreement by and
among Specialized Lending, LLC, as Bondholder, the Authority and the University dated as of
April 1, 2012.
"Short-Term Indebtedness" means all Indebtedness having a maturity of one year or
less, other than the current portion of Long-Term Indebtedness, incurred or assumed by any
Member of the Obligated Group, including, without limitation:
(i)
money borrowed for an original term, or renewable at the option of the
borrower for a period from the date originally incurred, of one year or less;
(ii)
leases which are capitalized in accordance with Generally Accepted
Accounting Principles having an original term, or renewable at the option of the lessee
for a period from the date originally incurred, of one year or less; and
(iii)
installment purchase or conditional sale contracts having an original term
of one year or less.
"Subordinated Debt" means Indebtedness the payment of which is specifically
subordinated to the payment of principal and interest on Obligations.
"Supplement" means an indenture supplemental to, and authorized and executed
pursuant to the terms of, this Master Indenture.
"Tax-Exempt Organization" means a Person organized under the laws of the United
States of America or any state thereof which is a governmental unit or (i) an organization
described in Section 501(c)(3) of the Code or is treated as an organization described in Section
501(c)(3) of the Code and (ii) exempt from federal income taxes under Section 501(a) of the
Code, or corresponding provisions of federal income tax laws from time to time in effect.
"Transaction Test" means, for purposes of any consolidation, merger, sale or
conveyance under Section 3.9 hereof (a "Merger"), a party becoming a Member of the Obligated
Group under Section 3.11 hereof (an "Admission"), and a withdrawal from the Obligated Group
under Section 3.12 hereof (a "Withdrawal"), any of the following: (A) an Officer's Certificate of
the Obligated Group Representative demonstrating that either of the conditions described in
17
Section 3.6(a)(i) and (ii) hereof have been satisfied for the issuance of an additional one dollar
($1.00) of Additional Indebtedness, assuming such Merger, Admission, or Withdrawal, as
applicable had occurred at the beginning of the most recent period of 12 full consecutive
calendar months for which Audited Financial Statements are available, (B) an Officer's
Certificate of the Obligated Group Representative demonstrating that the Unrestricted Net
Assets (or excess of assets over liabilities, as the case may be) of the Obligated Group after
giving effect to said Merger, Admission, or Withdrawal, as applicable is not less than 90% of the
Unrestricted Net Assets (or excess of assets over liabilities, as the case may be) of the Obligated
Group prior to such Merger, Admission, or Withdrawal, as applicable, as reflected in the most
recent Audited Financial Statements, or (C) an Officer's Certificate of the Obligated Group
Representative demonstrating that the Obligated Group shall be in compliance with Section
3.7(a) hereof at a ratio equal to at least 1.15 for the test therein set forth after giving effect to said
Merger, Admission, or Withdrawal.
"Transfer" means any act or occurrence the result of which is to dispossess any Person of
any asset or interest therein, including specifically, but without limitation, the forgiveness of
any debt.
"University" means The University of Tampa, Incorporated, which shall include any
organization of which the University is the sole member.
"Unrestricted Net Assets" means the Obligated Group's aggregate "Unrestricted Net
Assets" as such is set forth and is carried on the books of the Obligated Group which are used in
the preparation of its Audited Financial Statements.
"Variable Rate Indebtedness" means any Indebtedness or any portion of Indebtedness
the interest rate on which has not been established at a fixed or constant rate to maturity.
SECTION 1.2 INTERPRETATION.
(a)
To the extent that this Master Indenture permits any Member of the Obligated
Group to do any act or thing that is inconsistent with or prohibited by law, to the extent that the
same applies to such Member, the permission granted herein shall be inchoate and ineffective
unless and until such time as the law shall be amended to permit such act or thing; provided,
however, that to the extent that any act or thing permitted by this Master Indenture shall be
inconsistent with or prohibited by law shall not be interpreted as a repealer of the permission
granted herein.
(b)
Any reference herein to any officer or member of the Governing Body of a
Member of the Obligated Group shall include those succeeding to their functions, duties or
responsibilities pursuant to or by operation of law or who are lawfully performing their
functions.
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(c)
Unless the context otherwise indicates, words importing the singular shall
include the plural and vice versa, and the use of the neuter, masculine, or feminine gender is for
convenience only and shall be deemed to mean and include the neuter, masculine or feminine
gender.
(d)
Where (i) the character or amount of any asset, liability or item of income or
expense is required to be determined, (ii) any consolidation, combination or other accounting
computation is required to be made for the purposes hereof or of any agreement, document or
certificate executed and delivered in connection with or pursuant to this Master Indenture, or
(iii) an accounting or financial term is used herein and not otherwise defined the same shall be
done or deemed defined in accordance with Generally Accepted Accounting Principles.
(e)
Headings of articles and sections herein and in the table of contents hereof are
solely for convenience of reference, do not constitute a part hereof and shall not affect the
meaning, construction or effect hereof.
(f)
Provisions calling for the redemption of Obligations or the calling of Obligations
for redemption do not mean or include the payment of Obligations at their stated maturity or
maturities.
(g)
Provisions calling for or referring to the delivery by each Member of the
Obligated Group of financial statements for any given period shall be deemed satisfied if the
combined, consolidating, or consolidated financial statements for such period, prepared in
accordance with Generally Accepted Accounting Principles, of such entities are so delivered.
(h)
Provisions calling for or referring to a calculation, with respect to the Obligated
Group in accordance with Generally Accepted Accounting Principles shall be deemed not to
require the consolidation of accounts of entities that are not Members of the Obligated Group,
even if Generally Accepted Accounting Principles would require such consolidation.
(i)
Provisions calling for a forecast shall be deemed satisfied by a forecast which
shall be compiled or examined based upon the most likely outcome of a stated set of
assumptions that, in the opinion of the Obligated Group Representative, are reasonable.
ARTICLE II
INDEBTEDNESS, AUTHORIZATION, ISSUANCE
AND TERMS OF OBLIGATIONS
SECTION 2.1 AMOUNT OF INDEBTEDNESS. Subject to the terms, limitations and
conditions established in this Master Indenture, each Member of the Obligated Group may
incur Indebtedness by issuing Obligations hereunder or by creating Indebtedness under any
19
other document. The principal amount of Indebtedness created under other documents and the
principal amount of Obligations evidencing Indebtedness that may be created hereunder may
be limited by the provisions hereof, including Section 3.6, or of any applicable Supplement.
SECTION 2.2 DESIGNATION OF OBLIGATIONS. Obligations shall be issued in
such forms, tenor and contain such terms as may from time to time be created by Supplements
permitted hereunder. Each Obligation or Series of Obligations shall be created either hereunder
or by a Supplement and shall be designated in such a manner as will differentiate such
Obligation from any other Obligation. Guaranties issued, incurred or executed by any Member
of the Obligated Group may be represented by Obligations issued under this Master Indenture.
SECTION 2.3 APPOINTMENT OF OBLIGATED GROUP REPRESENTATIVE. Each
Member of the Obligated Group, by becoming a Member of the Obligated Group, irrevocably
appoints the Obligated Group Representative as its agent and true and lawful attorney in fact
and grants to the Obligated Group Representative (a) full and exclusive power to execute
Supplements authorizing the issuance of Obligations or Series of Obligations, (b) full power to
execute Obligations for and on behalf of the Obligated Group and each Member of the
Obligated Group, (c) full power to execute Supplements on behalf of the Obligated Group
pursuant to Sections 6.1 and 6.2 hereof and (d) full power to prepare, or authorize the
preparation of, any and all documents, certificates or disclosure materials reasonably and
ordinarily prepared in connection with the issuance of Obligations hereunder, or Related Bonds
associated therewith, and to execute and deliver such items to the appropriate parties in
connection therewith.
SECTION 2.4 EXECUTION AND AUTHENTICATION OF OBLIGATIONS. All
Obligations shall be executed for and on behalf of the Obligated Group by an Authorized
Representative of the Obligated Group Representative, by an Authorized Representative of the
University, if acting in its individual capacity, by an Authorized Representative of any other
Member of the Obligated Group or by any combination thereof. It shall not be required that an
Authorized Representative of each Member of the Obligated Group execute each Obligation.
The signatures of any such Authorized Representative may be mechanically or
photographically reproduced on the Obligation. If any Authorized Representative whose
signature appears on any Obligation ceases to be such Authorized Representative before
delivery thereof, such signature shall remain valid and sufficient for all purposes as if such
Authorized Representative had remained in office until such delivery. Each Obligation shall be
manually authenticated by an authorized officer of the Master Trustee or its agent, without
which authentication no Obligation shall be entitled to the benefits hereof.
The Master Trustee's authentication certificate shall be substantially in the following
form:
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MASTER TRUSTEE'S AUTHENTICATION CERTIFICATE
The undersigned Master Trustee hereby certifies that this Obligation No. __ is one of the
Obligations described in the within-mentioned Indenture.
____________________________,
as Master Trustee
By: _______________________________________
SECTION 2.5 SUPPLEMENT CREATING INDEBTEDNESS. The Obligated Group
Representative and the Master Trustee may from time to time enter into a Supplement in order
to create Indebtedness hereunder. Such Supplement shall, with respect to an Obligation
evidencing indebtedness created thereby, set forth the date thereof, and the date or dates on
which the principal of and premium, if any, and interest on such Obligation shall be payable,
the provisions regarding discharge thereof, and the form of such Obligation and such other
terms and provisions as shall conform with the provisions hereof.
SECTION 2.6 CONDITIONS TO ISSUANCE OF OBLIGATIONS HEREUNDER.
With respect to indebtedness created hereunder, simultaneously with or prior to the execution,
authentication and delivery of Obligations evidencing such indebtedness pursuant to this
Master Indenture:
(a)
All requirements and conditions to the issuance of such Obligations, if any, set
forth in the Supplement or in this Master Indenture shall have been complied with and
satisfied, as provided in an Officer's Certificate of the Obligated Group Representative, which
shall be delivered to the Master Trustee;
(b)
The issuer of such Obligations shall have delivered to the Master Trustee an
Opinion of Counsel to the effect that (1) registration of such Obligations under the Securities
Act of 1933, as amended, and qualification of this Master Indenture or the Supplement under
the Trust Indenture Act of 1939, as amended, is not required, or, if such registration or
qualification is required, that all applicable registration and qualification provisions of said acts
have been complied with, and (2) the Master Indenture and the Obligations are valid, binding
and enforceable obligations of the Members of the Obligated Group in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance and other laws affecting creditors' rights generally and usual equity principles.
21
ARTICLE III
PARTICULAR COVENANTS OF THE OBLIGATED GROUP
SECTION 3.1 SECURITY; PAYMENT OF PRINCIPAL AND INTEREST.
(a)
All Obligations issued pursuant to this Master Indenture shall be a general, joint
and several obligation of the Obligated Group.
To secure the prompt payment of the principal of, redemption premium, if any, and the
interest on the Obligations and the performance by each Member of the Obligated Group of its
other obligations hereunder, each Member of the Obligated Group hereby pledges, assigns and
grants to the Master Trustee a security interest in its Pledged Revenues.
Each Member of the Obligated Group shall also execute and deliver to the Master
Trustee from time to time such amendments or supplements to this Master Indenture as may be
necessary or appropriate to include as security hereunder the Pledged Revenues, in addition to
the requirements of Sections 3.11 and 3.13 of this Master Indenture. In addition, each Member
of the Obligated Group covenants that it will prepare and file such financing statements or
amendments to or terminations of existing financing statements which shall, in the Opinion of
Counsel, be necessary to perfect the security interest (to the extent perfection is effected by
filing) in Pledged Revenues created hereunder or as required due to changes in the Obligated
Group, including, without limitation, (i) any Person becoming a Member of the Obligated
Group pursuant to Section 3.11 of this Master Indenture, or (ii) any Member of the Obligated
Group ceasing to be a Member of the Obligated Group pursuant to Section 3.12 of this Master
Indenture. In particular, each Member of the Obligated Group covenants that it will, at least
ninety (90) days prior to the expiration of any financing statement, prepare and file such
continuation statements of existing financing statements as shall, in the Opinion of Counsel or
otherwise, be necessary to continue the perfection of the security interests granted and created
hereunder (to the extent perfection is effected by filing) and shall provide to the Master Trustee
written notice of such filing. If the Master Trustee shall not have received such notice at least
ninety (90) days prior to the expiration date of any such financing statement, the Master Trustee
shall send written notice to the Obligated Group Representative requesting that if such
continuation statements are not received within 60 days then the Master Trustee shall, with the
cost borne by the Obligated Group, prepare and file or cause each Member of the Obligated
Group to prepare and file such continuation statements in a timely manner to assure that the
security interest in Pledged Revenues shall remain perfected (to the extent perfection is effected
by filing).
(b)
Each Member of the Obligated Group covenants that it will not pledge or grant a
security interest in any of its Property, except as may be otherwise provided in this Master
Indenture or any Supplement. Each Obligation shall be a joint and several obligation of each
Member of the Obligated Group. Each Member of the Obligated Group covenants to promptly
22
pay or cause to be paid the principal of, premium, if any, and interest on each Obligation issued
pursuant to this Master Indenture at the place, on the dates and in the manner provided in this
Master Indenture and in said Obligation according to the terms thereof whether at maturity,
upon proceedings for redemption, by acceleration or otherwise.
SECTION 3.2 COVENANTS AS TO CORPORATE EXISTENCE, MAINTENANCE
OF PROPERTIES, ETC. Each Member of the Obligated Group hereby covenants:
(a)
Except as otherwise expressly provided herein, to preserve its corporate or other
legal existence (and in the case of the University to deliver educational services as an institution
of higher learning), and preserve all its rights and licenses to the extent necessary or desirable in
the operation of its business and affairs and be qualified to do business in each jurisdiction
where its ownership of Property or the conduct of its business requires such qualifications;
provided, however, that nothing herein contained shall be construed to obligate it to retain or
preserve any of its rights or licenses, no longer used or, in the judgment of its Governing Body,
no longer useful in the conduct of its business.
(b)
At all times to cause its Property to be maintained, preserved and kept in good
repair, working order and condition and all needed and proper repairs, renewals and
replacements thereof to be made; provided, however, that nothing contained in this subsection
shall be construed to (i) prevent it from ceasing to operate any portion of its Property, if in its
judgment it is advisable not to operate the same, or if it intends to sell or otherwise dispose of
the same and within a reasonable time endeavors to effect such sale or other disposition, or (ii)
to obligate it to retain, preserve, repair, renew or replace any Property, leases, rights, privileges
or licenses no longer used or, in the judgment of its Governing Body, useful in the conduct of its
business.
(c)
To do all things reasonably necessary to conduct its affairs and carry on its
business and operations in such manner as to comply with any and all applicable laws of the
United States and the several states thereof and duly observe and conform to all valid orders,
regulations or requirements of any governmental authority relative to the conduct of its
business and the ownership of its Properties; provided, nevertheless, that nothing herein
contained shall require it to comply with, observe and conform to any such law, order,
regulation or requirement of any governmental authority so long as the validity thereof or the
applicability thereof to it shall be contested in good faith.
(d)
To pay promptly when due all lawful taxes, governmental charges and
assessments at any time levied or assessed upon or against it or its Property; provided,
however, that it shall have the right to contest in good faith any such taxes, charges or
assessments or the collection of any such sums and pending such contest may delay or defer
payment thereof.
23
(e)
To pay promptly or otherwise satisfy and discharge all of its Indebtedness and
all demands and claims against it as and when the same become due and payable, other than
any thereof (exclusive of the Obligations created and Outstanding hereunder) whose validity,
amount or collectability is being contested in good faith.
(f)
At all times to comply with all terms, covenants and provisions of any Liens at
such time existing upon its Property or any part thereof or securing any of its Indebtedness.
(g)
To procure and maintain all necessary licenses and permits and, with respect to
the Initial Obligated Group Member, maintain accreditation of its educational facilities by the
Southern Association of Colleges and Schools Commission on Colleges (SACSCOC), or other
applicable recognized accrediting body; provided, however, that it need not comply with this
Section 3.2(g) if and to the extent that its Governing Body shall have determined in good faith,
evidenced by a resolution of the Governing Body, that such compliance is not in its best
interests and that lack of such compliance would not materially impair its ability to pay its
indebtedness when due or to comply with its Related Bond covenants.
(h)
So long as this Master Indenture shall remain in force and effect, each Member of
the Obligated Group which is a Tax-Exempt Organization at the time it becomes a Member of
the Obligated Group agrees that, so long as all amounts due or to become due on any Related
Bond have not been fully paid to the holder thereof, it agrees not to take any action or suffer any
action to be taken by others, including any action which would result in the alteration or loss of
its status as a Tax-Exempt Organization, which, or fail to take any action which failure, in the
Opinion of Bond Counsel, would result in the interest on any Related Bond the interest on
which was previously excluded from gross income of the holder thereof for federal income tax
purposes then becoming included in the gross income of the holder thereof for federal income
tax purposes.
(i)
The Obligated Group Representative will forthwith upon the occurrence of any
Event of Default, provide a certificate to the Master Trustee of an Authorized Representative of
the Obligated Group setting forth the details thereof and the action which the Obligated Group
is taking or proposes to take with respect thereto.
SECTION 3.3 INSURANCE. Each Member of the Obligated Group agrees that it will
maintain, or cause to be maintained, insurance (including one or more self-insurance programs
considered under customary standards for similar universities or colleges to be adequate)
covering such risks, in such amounts and with such deductibles and co-insurance provisions as,
in the judgment of the Obligated Group Representative are adequate to protect it and its
Property and operations.
SECTION 3.4 NEGATIVE PLEDGE; RESERVE FUND. (a) University covenants that
it shall not pledge any portion or all of the real property on its approximately 100-acre campus
with an address of 401 W. Kennedy Boulevard or any real property acquired by the University
24
on or after the effective date hereof, to secure any indebtedness, whether by means of mortgage,
deed of trust, or security agreement or otherwise, unless either (i) all of the Obligations and the
Obligated Group's obligations to the Master Trustee under this Master Indenture shall have
been paid in full, or sufficient funds therefor (including investment obligations and investment
income) are held in trust for such payment or (ii) such security interest or pledge is granted to
the Holders of all Obligations (unless waived by such Holder). Notwithstanding the provisions
of this Section 3.4(a) all Permitted Liens are allowable as set forth in Section 3.5 hereof.
(b) The Master Trustee shall establish and maintain so long as any Obligations entitled
to the benefit thereof are outstanding a separate fund to be known as the "Reserve FundUniversity of Tampa" (the "Debt Service Reserve Fund" or "Reserve Fund"). An initial deposit
to the credit of an account in the Debt Service Reserve Fund will be made from the proceeds of
the Series 2012A Bonds and from other sources in an amount equal to the Debt Service Reserve
Fund Requirement for Obligation No. 1 and only Obligation No. 1 shall be secured by amounts
in such account. The Master Trustee shall hereinafter be entitled to establish and maintain any
separate accounts in the Reserve Fund as may be set forth in a Supplement, which accounts may
be for the benefit of one or more Obligations, as provided in the applicable Supplement(s). If,
on any date on which principal of or interest on an Obligation entitled to the benefits of the
Debt Service Reserve Fund or account therein is to be paid to the Holder thereof, the moneys on
deposit under the Related Bond Indenture are insufficient to pay the principal of or interest on
such Related Bonds, then the Master Trustee shall proceed to use moneys on deposit in the
applicable Reserve Fund (or applicable account therein) to make up any deficiencies by paying
money on deposit in the Debt Service Reserve Fund (or applicable account therein) to the
Holder of the applicable Obligation(s) to make up any deficiencies. In the event that moneys
are withdrawn from the Debt Service Reserve Fund to make up any such deficiencies, the
Master Trustee shall notify the Obligated Group of the amount so withdrawn. In the case of
any such withdrawal, the Obligated Group agrees to restore the amount on deposit in the Debt
Service Reserve Fund or account therein to an amount equal to the Debt Service Reserve Fund
Requirement as soon as reasonably practicable and in any event in not more than 12
substantially equal consecutive monthly installments beginning with the first day of the first
month after the month in which the withdrawal was made.
Any future Supplement to this Master Indenture creating an Obligation shall provide
whether such Obligation will be entitled to the benefit of the Debt Service Reserve Fund or to
any separate account therein (if any). If so entitled, such Supplement shall provide for the
deposit of such amount of the proceeds from the sale thereof as may be necessary to cause the
amount on deposit in the Debt Service Reserve Fund or the separate account therein to equal
the Debt Service Reserve Fund Requirement on all Obligations outstanding and specified to be
so entitled to the benefit of such Fund or account.
Investments in the Debt Service Reserve Fund or account therein shall be valued by the
Master Trustee as of the last Business Day of each March and September on the basis of fair
market value (which valuation shall take into account any accrued and unpaid interest). The
25
funds in the Debt Service Reserve Fund may be invested in Qualified Investments as directed
by the Obligated Group. Reserve Fund Credit Facilities, surety bonds, guaranteed investment
contracts and other investment agreements constituting "Qualified Investments" in the Debt
Service Reserve Fund shall be valued at the amount which is available to be drawn or paid
thereunder. If on any valuation date the amount on deposit in the Debt Service Reserve Fund is
less than 100% of the Debt Service Reserve Fund Requirement as a result of a decline in the
market value of investments in the Debt Service Reserve Fund, the Obligated Group shall
deposit in the Debt Service Reserve Fund the amount necessary to restore the amount on
deposit in the Debt Service Reserve Fund to the Debt Service Reserve Fund Requirement within
not more than 60 days following the date on which it receives notice of such deficiency from the
Master Trustee. If the amount on deposit in the Debt Service Reserve Fund is more than the
Debt Service Reserve Fund Requirement, the amount of such excess shall, if the Obligated
Group so directs, (i) be transferred to the Related Bond Trustee to the extent of the amount
required to be deposited for debt service for the next required principal payment date on the
Related Bonds occurring within 13 months of such transfer and any excess shall be deposited in
the interest fund and used to pay interest on Related Bonds or (ii) used for any other corporate
purpose, provided, however, the Master Trustee shall have received an Opinion of Bond
Counsel (which Opinion, including the scope, form, substance and other aspects thereof are
acceptable to the Master Trustee) to the effect that the foregoing use in (ii) will not adversely
affect the validity or enforceability in accordance with their terms of the Related Bonds or any
exception for the purposes of federal income taxation to which interest on the Related Bonds are
otherwise entitled.
SECTION 3.5 LIMITATIONS ON CREATION OF LIENS; PERMITTED LIENS.
(a)
Each Member of the Obligated Group agrees that it will not create or suffer to be
created or permit the existence of any Lien on Property now owned or hereafter acquired by it,
other than Permitted Liens.
(b)
Permitted Liens shall consist of the following:
(i)
Liens arising by reason of good faith deposits with a Member of the
Obligated Group in connection with tenders, leases of real estate, bids or contracts (other than
contracts for the payment of money), deposits by any Member of the Obligated Group to secure
public or statutory obligations, or to secure, or in lieu of, surety, stay or appeal bonds, and
deposits as security for the payment of taxes or assessments or other similar charges; any Lien
arising by reason of deposits with, or the giving of any form of security to, any governmental
agency or any body created or approved by law or governmental regulation for any purpose at
any time as required by law or governmental regulation as a condition to the transaction of any
business or the exercise of any privilege or license, or to enable any Member of the Obligated
Group to maintain self-insurance or to participate in any funds established to cover any
insurance risks or in connection with worker's compensation, unemployment insurance,
26
pensions or profit sharing plans or other social security plans or programs, or to share in the
privileges or benefits required for corporations participating in such arrangements;
(ii)
any Lien on Property acquired by a Member of the Obligated Group,
which Lien secures Indebtedness which is Non-Recourse Indebtedness and where if the
aggregate principal amount of such Indebtedness does not exceed the fair market value of the
Property subject to such Lien as determined in good faith by the Governing Body of the
applicable Member of the Obligated Group;
(iii) Liens on accounts receivable arising as a result of the sale of such accounts
receivable with or without recourse, provided that the principal amount of Indebtedness
secured by any such Lien does not exceed the aggregate sales price of such accounts
receivable received by the Member selling the same by more than 15%;
(iv)
any Lien on the Property of any Member of the Obligated Group
granted in favor of or securing Indebtedness to any other Member;
(v)
any Lien for any leases which relate to Property of the Obligated Group
which is of a type that is customarily the subject of such leases, such as office space for
educational institutions and food service facilities; leases entered into in accordance with the
disposition of Property; leases, licenses or similar rights to use Property to which the member
of the Obligated Group is a party existing as of the date hereof and any renewals and
extensions thereof; and any leases, licenses or similar rights to use Property whereunder a
Member of the Obligated Group is lessee, licensee or the equivalent thereof upon fair and
reasonable terms no less favorable to the lessee or licensee than would obtain in a comparable
arm's-length transaction;
(vi)
Liens for taxes and special assessments which are not then delinquent,
or if then delinquent are being contested in accordance with provisions of this Master
Indenture;
(vii) utility, access and other easements and rights-of-way, restrictions,
encumbrances and exceptions which do not materially interfere with or materially impair the
operation of the Property affected thereby (or, if such Property is not being then operated, the
operation for which it was designed or last modified);
(viii) any mechanic's, laborer's, materialman's, supplier's or vendor's Lien or
right in respect thereof if payment is not yet due under the contract in question or if such Lien
is being contested in accordance with the provisions of this Master Indenture;
(ix)
such Liens, defects, irregularities of title and encroachments on
adjoining property as normally exist with respect to property similar in character to the
Property involved and which do not materially adversely affect the value of, or materially
27
impair, the Property affected thereby for the purpose for which it was acquired or is held by
the owner thereof, including without limitation statutory liens granted to banks or other
financial institutions, which liens have not been specifically granted to secure Indebtedness
and which do not apply to Property which has been deposited as part of a plan to secure
Indebtedness;
(x)
any Lien on Property in an aggregate amount not exceeding 15% of the
Book Value of all Property of the Obligated Group;
(xi)
zoning laws and similar restrictions which are not violated by the
Property affected thereby;
(xii)
all right, title and interest of the state where the Property involved is
located, municipalities and the public in and to tunnels, bridges and passageways over, under
or upon a public way;
(xiii) Liens on or in Property given, granted, bequeathed or devised by the
owner thereof existing at the time of such gift, grant, bequest or devise, provided that (i) such
Liens consist solely of restrictions on the use thereof or the income therefrom, or (ii) such
Liens secure Indebtedness which is not assumed by any Member of the Obligated Group and
such Liens attach solely to the Property (including the income therefrom) which is the subject
of such gift, grant, bequest or devise;
(xiv) Liens of or resulting from any judgment or award, the time for the
appeal or petition for rehearing of which shall not have expired, or in respect of which any
Member of the Obligated Group shall at any time in good faith be prosecuting an appeal or
proceeding for a review and in respect of which a stay of execution pending such appeal or
proceeding for review shall be in existence;
(xv)
any security interest in a rebate fund, any depreciation reserve, debt
service or interest reserve, debt service fund or any similar fund established pursuant to the
terms of any Supplement, Related Bond Indenture in favor of the Master Trustee, a Related
Bond Trustee, a Related Bond Issuer or the holder of the Indebtedness issued pursuant to
such Supplemental Master Indenture, or Related Bond Indenture;
(xvi) the lien on certain property of the University securing the Series 2006
Bonds under the Mortgage and Security Agreement dated as of June 1, 2006 granted by the
University and the lien on certain property of the University securing the Series 2012A Bonds
under the Mortgage and Security Agreement dated as of April 1, 2012 granted by the
University;
(xvii) such Liens, covenants, conditions and restrictions, if any, which do not
secure Indebtedness and which are other than those of the type referred to above, as are set
28
forth in Exhibit A to this Master Indenture, and which (i) in the case of Property owned by the
Initial Obligated Group on the date of execution of the Master Indenture, do not and will not,
so far as can reasonably be foreseen, materially adversely affect the value of the Property
currently affected thereby or materially impair the same, and (ii) in the case of any other
Property, do not materially impair or materially interfere with the operation or usefulness
thereof for the purpose for which such Property was acquired or is held by a Member of the
Obligated Group; and
(xviii) any Lien on Property as long as such Lien is granted pari passu to all
Holders of Obligations outstanding at the time such Lien is placed upon the Property (unless
the right to be secured by such Lien is waived by such Holder).
SECTION 3.6 LIMITATIONS ON INDEBTEDNESS. Each Member of the Obligated
Group covenants and agrees that it will not incur any Additional Indebtedness if, after giving
effect to all other Indebtedness previously incurred by the Obligated Group or any Member
thereof on behalf of the Obligated Group, such Indebtedness could not be incurred pursuant to
one of subsections (a) to (i), inclusive, of this Section 3.6. Any Indebtedness may be incurred
only in the manner and pursuant to the terms set forth in such subsections. Each Member of the
Obligated Group further covenants and agrees that it will not incur any Additional
Indebtedness (x) without the written consent of the Obligated Group Representative, or
(y) during any period which an Event of Default exists and has not been cured, unless the Event
of Default will be cured by the incurrence of the Additional Indebtedness.
(a)
Long-Term Indebtedness may be incurred if prior to incurrence of the LongTerm Indebtedness there is delivered to the Master Trustee:
(i)
An Officer's Certificate of the Obligated Group Representative certifying
that the Long-Term Debt Service Coverage Ratio for the most recent period of 12 full
consecutive calendar months preceding the date of delivery of the certificate of the
Obligated Group Representative for which there are Audited Financial Statements
available, in compliance with Section 3.10(a) hereof taking all Long-Term Indebtedness
incurred after such period and the proposed Long-Term Indebtedness into account as if
such Long-Term Indebtedness had been incurred at the beginning of such period, is not
less than 1.10; or
(ii)
(A) an Officer's Certificate of the Obligated Group Representative
demonstrating that the Long-Term Debt Service Coverage Ratio for the period
mentioned in subsection (a)(i) of this Section 3.6, excluding the proposed Long-Term
Indebtedness, is at least 1.10 and (B) a certificate of a Consultant (or, in the case of a
Long-Term Debt Service Coverage Ratio greater than 1.50, a certificate of the Obligated
Group Representative) demonstrating that the forecasted Long-Term Debt Service
Coverage Ratio is not less than 1.20 for (x) in the case of Long-Term Indebtedness (other
than a Guaranty) to finance capital improvements, each of the two full Fiscal Years
29
succeeding the date on which such capital improvements are forecasted to be in
operation or (y) in the case of Long-Term Indebtedness not financing capital
improvements or in the case of a Guaranty, each of the two full Fiscal Years succeeding
the date on which the Indebtedness is incurred, as shown by pro forma financial
statements for the Obligated Group for each such period, accompanied by a statement of
the relevant assumptions upon which such pro forma financial statements for the
Obligated Group are based; provided, however, that if a report of a Consultant states
that Governmental Restrictions have been imposed which make it impossible for the
coverage requirements of this subsection to be met, then such coverage requirements
shall be reduced to the maximum coverage permitted by such Governmental
Restrictions but in no event less than 1.00.
(b)
[Reserved.]
(c)
Long-Term Indebtedness incurred for the purpose of refunding any Outstanding
Long-Term Indebtedness if, prior to the incurrence of such Long-Term Indebtedness, there is
delivered to the Master Trustee (A) an Officer's Certificate of the Obligated Group
Representative demonstrating that Maximum Annual Debt Service will not increase by more
than 10% after the incurrence of such proposed refunding Long-Term Indebtedness and after
giving effect to the disposition of the proceeds thereof and (B) an Opinion of Counsel stating
that upon the incurrence of such Proposed Long-Term Indebtedness and application of the
proceeds thereof, the Outstanding Long-Term Indebtedness to be refunded thereby will no
longer be Outstanding.
(d)
(i)
Short-Term Indebtedness may be incurred subject to the limitation that
the aggregate of all Short-Term Indebtedness shall not at any time exceed 20% of Revenues at
the time of incurrence of such Short-Term Indebtedness calculated for the most recently
completed Fiscal Year for which audited financial statements are available.
(ii)
Short-Term Indebtedness may also be incurred if the tests set forth in
Sections 3.6(a)(i) or 3.6(a)(ii) are met with respect to the incurrence of such Short-Term
Indebtedness. For the purpose of calculating compliance with the tests set forth in Sections
3.6(a)(i) or 3.6(a)(ii), the Short-Term Indebtedness to be incurred pursuant to this Section
3.6(d)(ii) shall be treated as Long-Term Indebtedness. For purposes of this Section 3.6(d)(ii) a
Guaranty of Short-Term Indebtedness shall be treated in the manner described in the definitions
of "Guaranty" and "Exposure to Guaranteed Debt" herein.
(iii)
Short-Term Indebtedness incurred under this subsection (d) shall be (i)
reduced to zero for a period of 10 consecutive days, or (ii) reduced to an amount equal to no
more than 5% of Revenues of the prior Fiscal Year, for period of 10 consecutive days, each
Fiscal Year.
(e)
Non-Recourse Indebtedness may be incurred without limit.
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(f)
Completion Indebtedness may be incurred without limit; provided, however,
that prior to the incurrence of Completion Indebtedness, the Obligated Group Representative
shall furnish to the Master Trustee and the Credit Facility Provider, if any: a certificate of an
architect estimating the costs of completing the facilities for which Completion Indebtedness is
to be incurred; an Officer's Certificate of the Chief Financial Officer of the Member of the
Obligated Group for which Completion Indebtedness is to be incurred certifying that the
amount of Completion Indebtedness to be incurred will be sufficient, together with other funds,
if applicable, to complete construction of the facilities in respect of which Completion
Indebtedness is to be incurred; and a certificate from a Consultant to the effect that the LongTerm Indebtedness originally incurred to finance the costs of the construction of the facilities in
respect of which Completion Indebtedness is to be incurred was estimated prior to the date of
incurrence of the original Long-Term Indebtedness to be sufficient, together with other funds, if
applicable, to complete the construction of such facilities, but due to certain factors enumerated
in the certificate the costs of constructing such facilities exceeded the amount of the original
Indebtedness plus other funds, if applicable. The Master Trustee shall be entitled to rely on
such certificates without further investigation or inquiry pursuant to Section 5.1(ii) hereof.
(g)
Subordinated Debt may be incurred without limit.
(h)
Indebtedness under a Credit Facility (including a Guaranty of Indebtedness
under a Credit Facility) may be incurred without limit.
(i)
Derivative Indebtedness may be incurred without limit.
Indebtedness incurred pursuant to any one of subsections, (d)(i) or (d)(ii) of this Section
3.6 may be reclassified as indebtedness incurred pursuant to any other of such subsections if the
tests set forth in the subsection to which such Indebtedness is to be reclassified are met at the
time of such reclassification.
Indebtedness containing a "put" or "tender" provision pursuant to which the holder of
such Indebtedness may require that such Indebtedness be purchased prior to its maturity shall
not be considered Balloon Long-Term Indebtedness, solely by reason of such "put" or "tender"
provision, and the put or tender provision shall not be taken into account in testing compliance
with any debt incurrence test pursuant to this Section 3.6.
SECTION 3.7 RATE COVENANT.
(a)
Each Member of the Obligated Group covenants to set rates and charges for its
facilities, services and products such that the ratio determined by dividing (i) the Income
Available for Debt Service by (ii) the Long-Term Debt Service Requirement, calculated at the
end of each Fiscal Year calculated from the audited financial statements, will not be less than
1.00; provided, however, that in any case where Long-Term Indebtedness has been incurred to
31
acquire or construct capital improvements, the Long-Term Debt Service Requirement with
respect thereto shall not be taken into account in making the foregoing calculation until the first
Fiscal Year commencing after the occupation or utilization of such capital improvements unless
the Long-Term Debt Service Requirement with respect thereto is required to be paid from
sources other than the proceeds of such Long-Term Indebtedness prior to such Fiscal Year.
(b)
If at any time the ratio determined as required by clause (a) hereof, as derived
from the most recent Audited Financial Statements for the most recent Fiscal Year, is not met,
the University covenants to retain a Consultant within 30 days after the date the Audited
Financial Statements become available, to make recommendations to increase such ratio in the
following Fiscal Year to the level required or, if in the opinion of the Consultant the attainment
of such level is impracticable, to the highest level attainable. Any Consultant so retained shall
be required to submit such recommendations to the Master Trustee, any Credit Facility
Providers and the University within 45 days after being so retained. Each Member of the
Obligated Group agrees that it will, to the extent permitted by law, follow the recommendations
of the Consultant. So long as a Consultant shall be retained and each Member of the Obligated
Group shall follow such Consultant's recommendations to the extent permitted by law, this
Section shall be deemed to have been complied with even if the ratio for the following Fiscal
Year is below the required level, but in no event less than 1.00; provided, however, that the
revenues and unrestricted cash and investments on hand of the Obligated Group shall not be
less than the amount required to pay when due the total Expenses of the Obligated Group and
to pay when due the debt service on all Indebtedness of the Obligated Group for such Fiscal
Year and further provided, however, that the Obligated Group shall not be required to retain a
Consultant to make recommendations pursuant to this Subsection (b) more frequently than
biennially.
(c)
If a report of a Consultant is delivered to the Master Trustee, which report shall
state that Governmental Restrictions have been imposed which make it impossible for the
coverage requirement in clause (a) hereof to be met, then such coverage requirement shall be
reduced to the maximum coverage permitted by such Governmental Restrictions, for so long as
such Governmental Restrictions are in effect, a report of a Consultant stating that Governmental
Restrictions which make it impossible for the coverage requirement in clause (a) hereof to be
met are still in effect shall be delivered to the Master Trustee biennially.
SECTION 3.8 SALE, LEASE OR OTHER DISPOSITION OF PROPERTY, CASH,
ASSETS, ETC.
(a)
Each Member of the Obligated Group agrees that it will not Transfer operating
assets in any Fiscal Year except for Transfers of Property:
(i)
To any Person that the Obligated Group has ceased to operate pursuant
to Section 3.2(b) of this Master Indenture.
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(ii)
To any Person if prior to the sale, lease or other disposition there is
delivered to the Master Trustee an Officer's Certificate of the Obligated Group
Representative stating that such Property has or will within the next 24 months become
inadequate, obsolete, worn out, unsuitable or unnecessary and the sale, lease, removal or
other disposition thereof will not impair the structural soundness, efficiency or
economic value of the remaining Property, provided, however, that an Officer's
Certificate of the Obligated Group Representative shall not be required to be delivered
to the Master Trustee with respect to the Transfer of any such Property in any one Fiscal
Year having an aggregate Book Value of less than ten percent (10%) of the Unrestricted
Net Assets of the Obligated Group for the most recent period of twelve (12) full
consecutive calendar months for which Audited Financial Statements are available.
(iii)
To another Member of the Obligated Group without limit.
(iv)
To any Person provided that the Member of the Obligated Group
proposing to make such Transfer shall receive, as consideration for such Transfer, cash,
services or Property, the value of such consideration to be determined by the
management of the Member of the Obligated Group making such transfer, equal to the
fair market value of the asset so transferred. Each Member of the Obligated Group
covenants to maintain records adequate to enable the Master Trustee to ascertain that
the provisions of this paragraph have been complied with and to make such records
available to the Master Trustee upon written request.
(v)
To any Person if the aggregate Book Value of the operating assets
Transferred pursuant to this subsection (v) in the current Fiscal Year does not exceed
20% of the Book Value of all Property of the Obligated Group as shown in the financial
statements for the most recent Fiscal Year.
(vi)
To any Person any operating assets restricted by donor to a particular
use.
Notwithstanding the other provision of this Section 3.8(a), no Transfers shall occur if an
Event of Default has occurred, or will result from such Transfer, under Section 4.1 hereof.
(b)
In addition to other Transfers permitted hereunder, any Member of the
Obligated Group may Transfer cash or cash equivalents to:
(i)
another Member of the Obligated Group without limit,
(ii)
any Person, if prior to such Transfer, an Officer's Certificate is delivered
to the Master Trustee stating that either (a)(1) such Transfer will be a loan evidenced in
writing, (2) such loan is for a reasonable term and bears a reasonable interest rate, and
(3) such loan is reasonably expected to be repaid in accordance with its terms or (b)
33
taking such Transfer into account as if such Transfer had occurred at the beginning of
the most recent period of twelve (12) full consecutive months for which the Audited
Financial Statements have been reported upon by an independent certified public
accountant, compliance with the provisions of Section 3.7(a) shall be effected, or
(iii)
to any Person so long as that the Member of the Obligated Group shall
receive as consideration for such Transfer services or Property the fair market value of
which is at least equal to the amount of the cash or cash equivalents so transferred such
fair market value to be determined by management of the Member of the Obligated
Group making such Transfer.
SECTION 3.9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
(a)
Each Member of the Obligated Group covenants that it will not merge or
consolidate with, or sell or convey all or substantially all of its assets to any Person that is not a
Member of the Obligated Group unless:
(i)
Either a Member of the Obligated Group will become the successor
corporation, or if the successor corporation is not a Member of the Obligated Group,
such successor corporation shall execute and deliver to the Master Trustee an
appropriate instrument containing the agreement of such successor corporation to
assume the due and punctual payment of the principal of, premium, if any, and interest
on all Outstanding Obligations issued and outstanding under this Master Indenture
according to their tenor and the due and punctual performance and observance of all the
covenants and conditions of this Master Indenture and any Supplement hereto; and
(ii)
There is delivered to the Master Trustee an Officer's Certificate of the
Obligated Group Representative indicating that no Member of the Obligated Group
immediately after such merger or consolidation, or such sale or conveyance, would be in
default in the performance or observance of any covenant or condition of this Master
Indenture; and
(iii)
If all amounts due or to become due on any Related Bond which bears
interest which is not includable in the gross income of the recipient thereof under the
Code have not been fully paid to the holder thereof, there shall have been delivered to
the Master Trustee an Opinion of Bond Counsel, in form and substance reasonably
satisfactory to the Master Trustee, to the effect that under then existing law the
consummation of such merger, consolidation, sale or conveyance, whether or not
contemplated on any date of the delivery of such Related Bond, would not adversely
affect the exclusion of interest payable on such Related Bond from the gross income of
the holder thereof for purposes of federal income taxation; and
34
(iv)
There is delivered to the Master Trustee an Officer's Certificate of the
Obligated Group Representative demonstrating compliance with the Transaction Test.
Notwithstanding the other provisions of this Section 3.9(a) no such merger or
consolidation shall occur with any Person that has a negative operating margin, or that has
operated for less than two years.
(b)
In case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall succeed to and be
substituted for its predecessor, with the same effect as if it had been named herein as such
predecessor or had become a Member of the Obligated Group pursuant to Section 3.11 hereof,
as the case may be. Such successor corporation thereupon may cause to be signed, and may
issue in its own name Obligations issuable hereunder; and upon the order of such successor
corporation and subject to all the terms, conditions and limitations in this Master Indenture
prescribed, the Master Trustee shall authenticate and shall deliver Obligations that such
successor corporation shall have caused to be signed and delivered to the Master Trustee. All
Outstanding Obligations so issued by such successor corporation hereunder shall in all respects
have the same security position and benefit under this Master Indenture as Outstanding
Obligations theretofore or thereafter issued in accordance with the terms of this Master
Indenture as though all of such Obligations had been issued hereunder without any such
consolidation, merger, sale or conveyance having occurred.
(c)
In case of any such consolidation, merger, sale or conveyance such changes in
phraseology and form (but not in substance) may be made in Obligations thereafter to be issued
under this Master Indenture as may be appropriate.
(d)
The Master Trustee may accept an Opinion of Counsel (not an employee of a
Member of the Obligated Group or an Affiliate in this case) as conclusive evidence that any
such consolidation, merger, sale or conveyance, and any such assumption, complies with the
provisions of this Section and that it is proper for the Master Trustee under the provisions of
Article VI and of this Section to join in the execution of any instrument required to be executed
and delivered by this Section.
SECTION 3.10
FILING OF FINANCIAL STATEMENTS, CERTIFICATE OF
NO DEFAULT, OTHER INFORMATION. The Obligated Group covenants that it will:
(a)
No later than 180 days after the end of each Fiscal Year for which the Audited
Financial Statements are reported upon by independent certified public accountants, file with
the Master Trustee, and with any Credit Facility Provider, and with each Holder who may have
so requested in writing or on whose behalf the Master Trustee may have so requested, a copy of
the Audited Financial Statements as of the end of such fiscal reporting period accompanied by
the opinion of independent certified public accountants. Such Audited Financial Statements
shall be prepared in accordance with Generally Accepted Accounting Principles and shall
35
include such statements necessary for a fair presentation of financial position, results of
operations and changes in net assets and cash flows as of the end of such fiscal reporting period.
(b)
Such Audited Financial Statements shall be provided together with a separate
written statement (with the format of such statement to be as provided for in accordance with
the then current accounting standards) of the accountants preparing such report that nothing
has come to the attention of such accountants to cause the accountants to believe that any
continuing default by the Obligated Group in the fulfillment of any of the terms, covenants,
provisions or conditions of this Master Indenture insofar as they relate to financial and
accounting matters, or if such accountants shall have obtained knowledge of any such default or
defaults, they shall disclose in such statement the default or defaults and the nature thereof.
Such accountants shall not be liable directly or indirectly for failure to obtain knowledge of any
default.
(c)
If an Event of Default shall have occurred and be continuing, (i) file with the
Master Trustee such other financial statements and information concerning its operations and
financial affairs (or of any consolidated or combined group of companies, including its
consolidated or combined Affiliates, including any Member of the Obligated Group) as the
Master Trustee may from time to time reasonably request, excluding student records and
personnel records and (ii) upon reasonable notice, provide access to its facilities for the purpose
of inspection by the Master Trustee during regular business hours or at such other times as the
Master Trustee may reasonably request.
(d)
Within 30 days after its receipt thereof, file with the Master Trustee and any
Credit Facility Provider a copy of each report which any provision of this Master Indenture
requires to be prepared by a Consultant.
SECTION 3.11
PARTIES BECOMING MEMBERS OF THE OBLIGATED
GROUP. Persons which are not Members of the Obligated Group and corporations which are
successor corporations to any Member of the Obligated Group through a merger or
consolidation permitted by Section 3.9 hereof may, with the prior written consent of the
Obligated Group Representative, become Members of the Obligated Group, if:
(a)
The Person or successor corporation which is becoming a Member of the
Obligated Group shall execute and deliver to the Master Trustee an appropriate instrument,
satisfactory to the Master Trustee, who may rely on an Opinion of Counsel for such satisfaction,
containing the agreement of such Person or successor corporation (i) to become a Member of the
Obligated Group under this Master Indenture and any Supplements and thereby become
subject to compliance with all provisions of this Master Indenture and any Supplements
pertaining to a Member of the Obligated Group, and the performance and observance of all
covenants and obligations of a Member of the Obligated Group hereunder, and (ii)
unconditionally and irrevocably guarantee to the Master Trustee and each other Member of the
Obligated Group that all Obligations issued and then Outstanding or to be issued and
36
Outstanding hereunder will be paid in accordance with the terms thereof and of this Master
Indenture when due.
(b)
Each instrument executed and delivered to the Master Trustee in accordance
with subsection (a) of this Section, shall be accompanied by an Opinion of Counsel, addressed
to all Credit Facility Providers and the Master Trustee, and satisfactory to the Master Trustee, to
the effect that such instrument has been duly authorized, executed and delivered by such
Person or successor corporation and constitutes a valid and binding obligation enforceable in
accordance with its terms, except as enforceability may be limited by bankruptcy laws,
insolvency laws, other laws affecting creditors' rights generally, equity principles and laws
dealing with fraudulent conveyances.
(c)
There shall be filed with the Master Trustee an Officer's Certificate of the
Obligated Group Representative demonstrating compliance with the Transaction Test.
(d)
If all amounts due or to become due on any Related Bond which bears interest
which is not includable in the gross income of the recipient thereof under the Code have not
been paid to the Holders thereof, there shall be filed with the Master Trustee and all Credit
Facility Providers, (i) an Opinion of Bond Counsel, in form and substance reasonably
satisfactory to the Master Trustee, to the effect that the consummation of such transaction
would not adversely affect the exclusion of the interest on any such Related Bond from the
gross income of the holder thereof for purposes of federal income taxation and (ii) an Opinion
of Counsel, in form and substance satisfactory to the Master Trustee, to the effect that the
consummation of such transaction would not require the registration of the Obligations under
the Securities Act of 1933, as amended or the Supplements under the Trust Indenture Act of
1939, as amended, or if such registration is required, that all applicable registration and
qualification provisions of said acts have been complied with.
(e)
There shall be delivered to the Master Trustee and any Credit Facility Provider
an Officer's Certificate certifying that the admission of such Person as a Member of the
Obligated Group will not give rise to an Event of Default under this Master Indenture.
SECTION 3.12
WITHDRAWAL FROM THE OBLIGATED GROUP.
(a)
No Member of the Obligated Group may withdraw from the Obligated Group
without the prior written consent of the Obligated Group Representative and unless, prior to
the taking of such action, there is delivered to the Master Trustee:
(i)
If all amounts due on any Related Bonds which bear interest which is not
includable in the gross income of the recipient thereof under the Code have not been
paid to the holders thereof, there shall be delivered to the Master Trustee and any Credit
Facility Providers an Opinion of Bond Counsel, in form and substance satisfactory to
the Master Trustee, to the effect that under then existing law such Member's withdrawal
37
from the Obligated Group, whether or not contemplated on any date of delivery of any
Related Bond, would not cause the interest payable on such Related Bond to become
includable in the gross income of the recipient thereof under the Code; and
(ii)
An Officer's Certificate of the Obligated Group Representative
demonstrating compliance with the Transaction Test.
(b)
Upon the withdrawal of any Member from the Obligated Group pursuant to
subsection (a) of this Section, (i) any Guaranty by such Member pursuant to Section 3.11 hereof
shall be released and discharged in full and all liability of such Member of the Obligated Group
with respect to all Obligations Outstanding under this Master Indenture shall cease, and (ii)
notification by the Obligated Group Representative shall be provided to any Credit Facility
Provider.
(c)
Notwithstanding anything in this Section 3.12 or any other provisions of this
Master Indenture to the contrary, the University shall not at any time withdraw from the
Obligated Group.
(d)
With respect to the withdrawal by any Member of the Obligated Group
hereunder, the Master Trustee is entitled to rely on, as conclusive evidence, the certificates in
Section 3.11(c) and 3.12(a)(ii) hereof and may also request an opinion be provided for as set
forth in Section 3.9(d) hereof.
SECTION 3.13
REVENUE FUND
(a)
As additional security for its obligation to pay amounts due on Obligations, the
University agrees to maintain in accordance with subsection (b) hereof for the benefit of the
holders of Obligations, a fund or funds hereunder known as the "University of Tampa Revenue
Fund" or as the "Revenue Fund." The University agrees to make deposits of the Pledged
Revenues directly into the Revenue Fund promptly following receipt of such moneys by the
University. Pursuant to the pledge contained in Section 3.1(a) of this Master Indenture, the
University hereby grants to the Master Trustee on behalf of the holders of the Obligations a lien
on and security interest in all moneys deposited in the Revenue Fund to secure its obligations
hereunder, including but not limited to the obligations to make payments pursuant to the
Obligations issued hereunder. The University shall at all times maintain accounting records
reflecting the source of Pledged Revenues for all amounts deposited into the Revenue Fund
from time to time. Provided no Event of Default shall have occurred and be continuing
hereunder, the University shall have authority to draw upon moneys in the Revenue Fund for
use for any lawful purpose. If an Event of Default has occurred and is continuing under this
Master Indenture, the University shall not be permitted to draw upon moneys in the Revenue
Fund for any purpose (other than for ongoing operation and maintenance of the University).
38
(b)
The accounts or funds comprising the Revenue Fund (which may consist of one
or more accounts), into which the University deposits the Pledged Revenues, shall be set up and
administered in accordance herewith. Any financial institution or depository holding a
depository account comprising all or a part of the Revenue Fund shall expressly waive any right
to set off against any amounts on deposit as a consequence of any default or dispute between
the depository and the University and shall not be entitled to such remedy of set off. Such
depository shall execute a written voluntary and intentional waiver of any and all rights to set
off as a remedy for any action or omission by the University prior to the deposit of Pledged
Revenues. The accounts or funds comprising the Revenue Fund shall all be governed by one or
more Revenue Fund Control Agreements.
ARTICLE IV
DEFAULT AND REMEDIES
SECTION 4.1 EVENTS OF DEFAULT. Event of Default, as used herein, shall mean
any of the following events:
(a)
The Members of the Obligated Group shall fail to make any payment of the
principal of, the premium, if any, or interest on any Obligations issued and Outstanding
hereunder when and as the same shall become due and payable, whether at maturity, by
proceedings for redemption, by acceleration or otherwise, in accordance with the terms thereof,
of this Master Indenture or of any Supplement;
(b)
Any Member of the Obligated Group shall fail duly to perform, observe or
comply with any covenant or agreement on its part under this Master Indenture for a period of
45 days after the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Obligated Group Representative by the Master Trustee,
or to the Obligated Group Representative and the Master Trustee by the Holders of at least 25%
in aggregate principal amount of Obligations then Outstanding; provided, however, that if said
covenant failure be such that it cannot be corrected within forty-five (45) days after the receipt
of such notice, it shall not constitute an Event of Default if corrective action is instituted within
such 45-day period and diligently pursued until the Event of Default is corrected;
(c)
An event of default shall occur under a Related Bond Indenture or upon a
Related Bond;
(d)
(i) Any Member of the Obligated Group shall fail to make any required payment
with respect to any Indebtedness (other than Obligations issued and Outstanding hereunder),
which indebtedness is in an aggregate principal amount greater than one percent (1%) of
Revenues calculated for the most recent Fiscal Year whether such Indebtedness now exists or
shall hereafter be created, and any period of grace with respect thereto shall have expired, or
39
(ii) there shall occur an event of default or default as defined in any indenture or instrument
under which there may be issued, or by which there may be secured or evidenced, any
Indebtedness, which Indebtedness is in an aggregate principal amount greater than one percent
(1%) of Revenues calculated for the most recent Fiscal Year whether such Indebtedness now
exists or shall hereafter be created, which event of default shall not have been waived by the
holder of such indenture or instrument, and as a result of such failure to pay or other event of
default such Indebtedness shall have been accelerated; provided, however, that such default
shall not constitute an Event of Default within the meaning of this Section if within 30 days
(i) written notice is delivered to the Master Trustee, signed by the Obligated Group
Representative, that such Member of the Obligated Group is contesting the payment of such
Indebtedness or such default and within the time allowed for service of a responsive pleading if
any proceeding to enforce payment of the Indebtedness is commenced, any Member of the
Obligated Group in good faith shall commence proceedings to contest the obligation to pay
such Indebtedness or such other default and if a judgment relating to such Indebtedness has
been entered against such Member of the Obligated Group (A) the execution of such judgment
has been stayed or (B) sufficient moneys are escrowed with a bank or trust company for the
payment of such Indebtedness;
(e)
The entry of a decree or order by a court having jurisdiction in the premises for
an order for relief against any Member of the Obligated Group, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in respect of
such Member under the United States Bankruptcy Code or any other applicable federal or state
law, or appointing a receiver, liquidator, custodian, assignee, or sequestrator (or other similar
official) of such Member or of any substantial part of its Property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days;
(f)
The institution by any Member of the Obligated Group of proceedings for an
order for relief, or the consent by it to an order for relief against it, or the filing by it of a petition
or answer or consent seeking reorganization, arrangement, adjustment, composition or relief
under the United States Bankruptcy Code or any other similar applicable federal or state law, or
the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator,
custodian, assignee, trustee or sequestrator (or other similar official) of such Member of the
Obligated Group or of any substantial part of its Property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due; and
(g)
Any Event of Default shall occur under any security document, instrument or
agreement of any kind relating to the Obligations to which a Member of the Obligated Group is
a party, other than as the secured party thereunder.
SECTION 4.2 ACCELERATION. Obligations issued under this Master Indenture shall
only be deemed to be Accelerable Obligations solely to the extent provided by the provisions of
40
the Supplement related to such Obligations and any Related Bonds issued under a Related
Bond Indenture shall be subject to acceleration on account of any Event of Default only in
accordance with the terms of their Related Bond Indenture and shall be permitted only if the
Obligation related to such Related Bonds may be accelerated.
SECTION 4.3 ADDITIONAL REMEDIES AND ENFORCEMENT OF REMEDIES.
(a)
Subject to the provisions of Section 8.4 hereof, upon the occurrence and
continuance of any Event of Default, the Master Trustee may, and upon the written request of
either the Holders of not less than a majority in aggregate principal amount of the Obligations
Outstanding or the Holder of an Accelerable Obligation, together with indemnification of the
Master Trustee to its satisfaction therefor, shall, proceed forthwith to protect and enforce its
rights and the rights of the Holders hereunder by such suits, actions or proceedings as the
Master Trustee, being advised by counsel, shall deem expedient, including but not limited to:
(i)
Enforcement of the right of the Holders to collect and enforce the
payment of amounts due or becoming due under the Obligations;
(ii)
Suit upon all or any part of the Obligations;
(iii)
Civil action to require any Person holding moneys, documents or other
property pledged to secure payment of amounts due or to become due on the
Obligations to account as if it were the trustee of an express trust for the Holders;
(iv)
Civil action to enjoin any acts or things, which may be unlawful or in
violation of the rights of the Holders;
(v)
Enforcement of rights as a secured party under the Uniform Commercial
Code of the State of Florida, if applicable;
(vi)
hereby; and
Enforcement of any other right of the Holders conferred by law or
(vii) Foreclosure under any mortgage or liens on Property granted to the
Master Trustee to secure an Obligation.
(b)
Regardless of the happening of an Event of Default, the Master Trustee, if
requested in writing by the Holders of not less than a majority in aggregate principal amount of
the Obligations then Outstanding, shall, upon being indemnified to its satisfaction therefor,
institute and maintain such suits and proceedings as it may be advised shall be necessary or
expedient (i) to prevent any impairment of the security hereunder by any acts which may be
unlawful or in violation hereof, or (ii) to preserve or protect the interests of the Holders,
provided that such request and the action to be taken by the Master Trustee are not in conflict
41
with any applicable law or the provisions hereof and, in the sole judgment of the Master
Trustee, are not unduly prejudicial to the interest of the Holders not making such request.
SECTION 4.4 APPLICATION OF MONEYS AFTER DEFAULT.
During the
continuance of an Event of Default, subject to the expenditure of moneys to make any payments
required to permit any Member of the Obligated Group to comply with any requirement or
covenant in any Related Bond Indenture to cause Related Bonds the interest on which,
immediately prior to such Event of Default, is excludable from the gross income of the
recipients thereof for federal income tax purposes under the Code to retain such status under
the Code, all moneys received by the Master Trustee pursuant to any right given or action taken
under the provisions of this Article shall be applied, after the payment of any compensation,
expenses, disbursements and advances then owing to the Master Trustee (including reasonable
attorney fees and expenses) pursuant to Section 5.5 hereof, as follows:
(a)
Unless the principal of all Outstanding Obligations shall have become or have
been declared due and payable:
First: To the payment to the Persons entitled thereto of all installments of interest
then due on Obligations in the order of the maturity of such installments, and, if the
amount available shall not be sufficient to pay in full any installment or installments
maturing on the same date, then to the payment thereof ratably, according to the
amounts due thereon to the Persons entitled thereto, without any discrimination or
preference; and
Second: To the payment to the Persons entitled thereto of the unpaid principal
installments of any Obligations which shall have become due, whether at maturity,
acceleration, or by call for redemption, in the order of their due dates, and if the
amounts available shall not be sufficient to pay in full all Obligations due on any date,
then to the payment thereof ratably, according to the amounts of principal installments
due on such date, to the Persons entitled thereto, without any discrimination or
preference.
(b)
If the principal of all Outstanding Obligations shall have become or have been
declared due and payable (which shall only be permitted as set forth in Section 4.2 hereof), to
the payment of the principal and interest then due and unpaid upon Obligations without
preference or priority of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of any Obligation over any other
Obligation, ratably, according to the amounts due respectively for principal and interest, to the
Persons entitled thereto without any discrimination or preference.
(c)
If the principal of all Outstanding Obligations shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and annulled under the
provisions of this Article or the respective Supplement, then, subject to the provisions of
42
paragraph (b) of this Section in the event that the principal of all Outstanding Obligations shall
later become due or be declared due and payable, the moneys shall be applied in accordance
with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Master Trustee pursuant to the provisions of
this Section, such moneys shall be applied by it at such times, and from time to time, as the
Master Trustee shall determine, having due regard for the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such application in
the future, and as may be directed pursuant to Section 4.7 hereof. Whenever the Master Trustee
shall apply such moneys, it shall fix the date upon which such application is to be made and
upon such date interest on the amounts of principal to be paid on such dates shall cease to
accrue. The Master Trustee shall give such notice as it may deem appropriate of the deposit
with it of any such moneys and of the fixing of any such date, and shall not be required to make
payment to the Holder of any unpaid Obligation until such Obligation shall be presented to the
Master Trustee for appropriate endorsement of any partial payment or for cancellation if fully
paid.
Whenever all Obligations and interest thereon have been paid under the provisions of
this Section and all expenses and charges of the Master Trustee have been paid and all amounts
due and owing a Credit Facility Provider have been paid in full, any balance remaining shall be
paid to the Person entitled to receive the same; if no other Person shall be entitled thereto, then
the balance shall be paid to the Members of the Obligated Group, their respective successors, or
as a court of competent jurisdiction may direct.
SECTION 4.5 REMEDIES NOT EXCLUSIVE. No remedy by the terms hereof
conferred upon or reserved to the Master Trustee or the Holders is intended to be exclusive of
any other remedy, but each and every such remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or existing at law or in equity or by statute on or after
the date hereof.
SECTION 4.6 REMEDIES VESTED IN THE MASTER TRUSTEE. All rights of action
(including the right to file proof of claims) hereunder or under any of the Obligations may be
enforced by the Master Trustee without the possession of any of the Obligations or the
production thereof in any trial or other proceedings relating thereto. Any such suit or
proceeding instituted by the Master Trustee may be brought in its name as the Master Trustee
without the necessity of joining as plaintiffs or defendants any Holders. Subject to the
provisions of Section 4.4 hereof, any recovery or judgment shall be for the equal benefit of the
Holders.
SECTION 4.7 HOLDERS' CONTROL OF PROCEEDINGS. Subject to the provisions
of Section 8.4 hereof, if an Event of Default shall have occurred and be continuing,
notwithstanding anything herein to the contrary, the Holders of not less than a majority in
aggregate principal amount of Obligations then Outstanding shall have the right, at any time,
43
by an instrument in writing executed and delivered to the Master Trustee and accompanied by
indemnity satisfactory to the Master Trustee, to direct the method and place of conducting any
proceeding to be taken in connection with the enforcement of the terms and conditions hereof,
to direct the application of moneys as set forth in Section 4.4 hereof or for the appointment of a
receiver or any other proceedings hereunder, provided that such direction is not in conflict with
any applicable law or the provisions hereof, and is not unduly prejudicial to the interest of any
Holders not joining in such direction, and provided further, that the Master Trustee shall have
the right to decline to follow any such direction if the Master Trustee in good faith shall
determine that the proceeding so directed would subject it to liability for which it has not
received indemnification reasonably satisfactory to it, and provided further that nothing in this
Section shall impair the right of the Master Trustee in its discretion to take any other action
hereunder which it may deem proper and which is not inconsistent with such direction by the
Holders.
SECTION 4.8 TERMINATION OF PROCEEDINGS. In case any proceeding taken by
the Master Trustee on account of an Event of Default shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Master Trustee or to
the Holders, then the Members of the Obligated Group, the Master Trustee and the Holders
shall be restored to their former positions and rights hereunder, and all rights, remedies and
powers of the Master Trustee and the Holders shall continue as if no such proceeding had been
taken.
SECTION 4.9 WAIVER OF EVENT OF DEFAULT.
(a)
No delay or omission of the Master Trustee or of any Holder to exercise any right
or power accruing upon any Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence therein. Every power
and remedy given by this Article to the Master Trustee and the Holders, respectively, may be
exercised from time to time and as often as may be deemed expedient by them.
(b)
The Master Trustee may waive any Event of Default which in its opinion shall
have been remedied before the entry of final judgment or decree in any suit, action or
proceeding instituted by it under the provisions hereof, or before the completion of the
enforcement of any other remedy hereunder, provided however that in the occurrence of an
Event of Default under Section 4.1(a) or in the occurrence of an Event of Default which has
resulted in the exercise of the right to accelerate on behalf of an Accelerable Obligation such
waiver shall be permitted only if all amounts due have been paid in full.
(c)
Notwithstanding anything contained herein to the contrary, the Master Trustee,
upon the written request of the Holders of not less than a majority of the aggregate principal
amount of Obligations then Outstanding, shall waive any Event of Default hereunder and its
consequences; provided, however, that, except under the circumstances set forth in subsection
(b) of Section 4.3 hereof, a default in the payment of the principal of, premium, if any, or interest
44
on any Obligation, when the same shall become due and payable by the terms thereof or upon
call for redemption, may not be waived without the written consent of the Holders of all the
Obligations with respect to which such payment default exists at the time Outstanding.
(d)
In case of any waiver by the Master Trustee of an Event of Default hereunder, the
Members of the Obligated Group, the Master Trustee and the Holders shall be restored to their
former positions and rights hereunder, respectively, but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
SECTION 4.10
APPOINTMENT OF RECEIVER. Upon the occurrence of any
Event of Default unless the same shall have been waived as herein provided, the Master
Trustee shall be entitled as a matter of right if it shall so elect and if permitted to do so by this
Master Indenture and as set forth in the applicable Supplement, (i) forthwith and without
declaring the Obligations to be due and payable, (ii) after declaring the same to be due and
payable, if permitted or (iii) upon the commencement of an action to enforce the specific
performance hereof or in aid thereof or upon the commencement of any other judicial
proceeding to enforce any right of the Master Trustee or the Holders, to the appointment of a
receiver or receivers of any or all of the Property of the Obligated Group with such powers as
the court making such appointment shall confer. Each Member of the Obligated Group,
respectively, hereby consents and agrees, and will if requested by the Master Trustee consent
and agree at the time of application by the Trustee for appointment of a receiver of its Property,
to the appointment of such receiver of its Property and that such receiver may be given the
right, power and authority, to the extent the same may lawfully be given, to take possession of
and operate and deal with such Property and the revenues, profits and proceeds therefrom,
with like effect as the Member of the Obligated Group could do so, and to borrow money and
issue evidences of indebtedness as such receiver.
SECTION 4.11
REMEDIES SUBJECT TO PROVISIONS OF LAW. All rights,
remedies and powers provided by this Article may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law, and all the provisions of this
Article are intended to be subject to all applicable mandatory provisions of law which may be
controlling and to be limited to the extent necessary so that they will not render this instrument
or the provisions hereof invalid or unenforceable under the provisions of any applicable law.
SECTION 4.12
NOTICE OF DEFAULT. The Master Trustee shall, within 10 days
after it has actual knowledge of the occurrence of an Event of Default, mail, by first class mail,
to all Holders as the names and addresses of such Holders appear upon the books of the Master
Trustee, notice of such Event of Default known to the Master Trustee, unless such Event of
Default shall have been cured before the giving of such notice; provided that, except in the case
of default in the payment of the principal of or premium, if any, or interest on any of the
Obligations and the Events of Default specified in subsections (e) and (f) of Section 4.1, the
Master Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or any responsible officer of
45
the Master Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
ARTICLE V
THE MASTER TRUSTEE
SECTION 5.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a)
Except during the continuance of an Event of Default:
(i)
The Master Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Master Indenture, and no implied covenants or
obligations shall be read into this Master Indenture against the Master Trustee; and
(ii)
In the absence of bad faith on its part, the Master Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Master Trustee and
conforming to the requirements of this Master Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required to be
furnished to the Master Trustee, the Master Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this Master
Indenture.
(b)
In case an Event of Default has occurred and is continuing, the Master Trustee
shall exercise such of the rights and powers vested in it by this Master Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.
(c)
No provision of this Master Indenture shall be construed to relieve the Master
Trustee from liability for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i)
this subsection (c) shall not be construed to limit the effect of subsection
(a) of this Section;
(ii)
the Master Trustee shall not be liable for any error of judgment made in
good faith by a chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the president, any
vice president (however designated), the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller and any assistant controller or any other officer or employee
46
of the Master Trustee or its designated agent customarily performing functions similar
to those performed by any of the above designated officers or with respect to a
particular matter, any other officer or employee to whom such matter is referred because
of his knowledge of and familiarity with the particular subject, unless it shall be proved
that the Master Trustee was negligent in ascertaining the pertinent facts;
(iii)
the Master Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Obligations relating to the time,
method and place of conducting any proceeding for any remedy available to the Master
Trustee, or exercising any trust or power conferred upon the Master Trustee, under this
Master Indenture, except under the circumstances set forth in Subsection (c) of Section
4.9 hereof requiring the consent of the Holders of all the Obligations at the time
Outstanding; and
(iv)
no provision of this Master Indenture shall require the Master Trustee to
expend or risk its own funds or otherwise incur any financial or other liability, directly
or indirectly, in the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d)
Whether or not therein expressly so provided, every provision of this Master
Indenture relating to the conduct or affecting the liability of or affording protection to the
Master Trustee shall be subject to the provisions of this Section.
SECTION 5.2 CERTAIN RIGHTS OF MASTER TRUSTEE.
provided in Section 5.1:
Except as otherwise
(a)
The Master Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b)
Any request, direction or statement of any Member of the Obligated Group
mentioned herein shall be sufficiently evidenced by an Officer's Certificate and any action of the
Governing Body may be sufficiently evidenced by a copy of a resolution certified by the
secretary or an assistant secretary of the Member of the Obligated Group to have been duly
adopted by the Governing Body and to be in full force and effect on the date of such
certification and delivered to the Master Trustee.
(c)
Whenever in the administration of this Master Indenture the Master Trustee shall
deem it desirable that a matter be proved or established prior to taking, suffering or omitting
47
any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's Certificate.
(d)
The Master Trustee may consult with counsel or an independent auditor and the
written advice of such counsel or independent auditor or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(e)
The Master Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Master Indenture whether on its own motion or at the request or
direction of any of the Holders pursuant to this Master Indenture which shall be in the opinion
of the Master Trustee likely to involve expense or liability not otherwise provided for herein,
unless one or more Holders or such Holders making such request shall have offered and
furnished to the Master Trustee reasonable security or indemnity satisfactory to the Master
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction or otherwise in connection herewith.
(f)
The Master Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document, but the Master
Trustee, in its discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Master Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and premises of any Member
of the Obligated Group, personally or by agent or attorney.
(g)
The Master Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or attorneys and the
Master Trustee shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 5.3 RIGHT TO DEAL IN OBLIGATIONS AND RELATED BONDS AND
WITH MEMBERS OF THE OBLIGATED GROUP. The Master Trustee may in good faith buy,
sell or hold and deal in any Obligations and Related Bonds with like effect as if it were not such
Master Trustee and may commence or join in any action which a Holder or holder of a Related
Bond is entitled to take and may otherwise deal with Members of the Obligated Group with like
effect as if the Master Trustee were not the Master Trustee; provided, however, that if the
Master Trustee has or shall acquire any conflicting interest, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such conflicting interest or
resign as Master Trustee.
SECTION 5.4 REMOVAL AND RESIGNATION OF THE MASTER TRUSTEE. The
Master Trustee may resign on its motion or may be removed at any time by an instrument or
instruments in writing signed by the Holders of not less than a majority of the principal amount
48
of Obligations then Outstanding or, if no Event of Default shall have occurred and be
continuing, by an instrument in writing signed by the Obligated Group Representative. No
such resignation or removal shall become effective unless and until a successor Master Trustee
(or temporary successor trustee as provided below) has been appointed and has assumed the
trusts created hereby. The Master Trustee shall continue to be indemnified for any act
performed in such role of Master Trustee to the extent any such act was indemnified, even if
Master Trustee resigns or is removed, and then a claim later arises after such resignation or
removal but the basis for such claim occurred prior to such resignation or removal. Written
notice of such resignation or removal shall be given to the Members of the Obligated Group and
to each Holder by first class mail at the address then reflected on the books of the Master
Trustee and such resignation or removal shall take effect upon the appointment and
qualification of a successor Master Trustee. A successor Master Trustee may be appointed by
the Obligated Group Representative or, if no such appointment is made by the Obligated Group
Representative within thirty (30) days of the date notice of resignation or removal is given, the
Holders of not less than a majority in aggregate principal amount of Obligations Outstanding.
In the event a successor Master Trustee has not been appointed and qualified within sixty (60)
days of the date notice of resignation is given, the Master Trustee, any Member of the Obligated
Group or any Holder may apply to any court of competent jurisdiction for the appointment of a
temporary successor Master Trustee to act until such time as a successor is appointed as above
provided.
Unless otherwise ordered by a court or regulatory body having competent jurisdiction,
or unless required by law, any successor Master Trustee shall be a trust company or bank
having the powers of a trust company as to trusts, qualified to do and doing trust business in
one or more states of the United States of America and having an officially reported combined
capital, surplus, undivided profits and reserves aggregating at least $50,000,000, if there is such
an institution willing, qualified and able to accept the trust upon reasonable or customary
terms.
Every successor Master Trustee however appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to each Member of the Obligated Group an
instrument in writing, accepting such appointment hereunder, and thereupon such successor
Master Trustee, without further action, shall become fully vested with all the rights, immunities,
powers, trusts, duties and obligations of its predecessor, and such predecessor shall execute and
deliver an instrument transferring to such successor Master Trustee all the rights, powers and
trusts of such predecessor. The predecessor Master Trustee shall execute any and all documents
necessary or appropriate to convey all interest it may have to the successor Master Trustee. The
predecessor Master Trustee shall promptly deliver all material records relating to the trust or
copies thereof and, on request, communicate all material information it may have obtained
concerning the trust to the successor Master Trustee.
Each successor Master Trustee, not later than ten (10) days after its assumption of the
duties hereunder, shall mail a notice of such assumption to each registered Holder.
49
SECTION 5.5 COMPENSATION AND REIMBURSEMENT.
Obligated Group, respectively, agrees:
Each Member of the
(a)
To pay the Master Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall be agreed to in writing between
the Obligated Group Representative and the Master Trustee, but, to the extent permitted by
applicable law, shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust).
(b)
Except as otherwise expressly provided herein, to reimburse the Master Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by
the Master Trustee, including fees on collection and enforcement, in accordance with any
provision of this Master Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and its agents, including amounts incurred in any bankruptcy
proceeding), except any such expense, disbursement or advance as may be attributable to its
negligence or willful misconduct.
(c)
To indemnify the Master Trustee for, and to hold it harmless against, any loss,
liability, cost or expense incurred without negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of this trust or its duties
hereunder, including the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the Members of the Obligated Group under this
Section, the Master Trustee shall have a lien prior to any Obligations upon all property and
funds held or collected by the Master Trustee as such, except funds held in trust for the
payment of principal of or interest or premiums on Obligations.
SECTION 5.6 RECITALS AND REPRESENTATIONS. The recitals, statements and
representations contained herein, or in any Obligation (excluding the Master Trustee's
authentication on the Obligations) shall be taken and construed as made by and on the part of
the Members of the Obligated Group, respectively, and not by the Master Trustee, and the
Master Trustee neither assumes nor shall be under any responsibility for the correctness of the
same.
The Master Trustee makes no representation as to, and is not responsible for, the validity
or sufficiency hereof, of the Obligations, or the validity or sufficiency of insurance to be
provided. The Master Trustee shall be deemed not to have made representations as to the
security afforded hereby or hereunder or as to the validity or sufficiency of such document.
The Master Trustee shall not be concerned with or accountable to anyone for the use or
application of any moneys which shall be released or withdrawn in accordance with the
provisions hereof. The Master Trustee shall have no duty of inquiry with respect to any default
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or Events of Default described herein without actual knowledge of or receipt by the Master
Trustee of written notice of a default or an Event of Default from a Member of the Obligated
Group or any Holder.
SECTION 5.7 SEPARATE OR CO-MASTER TRUSTEE. At any time or times, for the
purpose of meeting any legal requirements of any jurisdiction, the Master Trustee shall have
power to appoint, and, upon the request of the Holders of at least 25% in aggregate principal
amount of Obligations Outstanding, shall appoint, one or more Persons approved by the Master
Trustee and any Credit Facility Providers (which approval cannot be unreasonably withheld)
either to act as co-trustee or co-trustees, jointly with the Master Trustee, or to act as separate
trustee or separate trustees, and to vest in such person or persons, in such capacity, such rights,
powers, duties, trusts or obligations as the Master Trustee may consider necessary or desirable,
subject to the remaining provisions of this Section.
Every co-trustee or separate trustee shall, to the extent permitted by law but to such
extent only, be appointed subject to the following terms, namely:
(a)
Trustee.
The Obligations shall be authenticated and delivered solely by the Master
(b)
All rights, powers, trusts, duties and obligations conferred or imposed upon the
trustees shall be conferred or imposed upon and exercised or performed by the Master Trustee,
or separate trustee or separate trustees jointly, as shall be provided in the instrument appointing
such co-trustee or co-trustees or separate trustee or separate trustees, except to the extent that,
under the law of any jurisdiction in which any particular act or acts are to be performed, the
Master Trustee shall be incompetent or unqualified to perform such act or acts, in which event
such act or acts shall be performed by such co-trustee or co-trustees or separate trustee or
separate trustees.
(c)
Any request in writing by the Master Trustee to any co- trustee or separate
trustee to take or to refrain from taking any action hereunder shall be sufficient warrant for the
taking, or the refraining from taking, of such action by such co-trustee or separate trustee.
(d)
Any co-trustee or separate trustee may, to the extent permitted by law, delegate
to the Master Trustee the exercise of any right, power, trust, duty or obligation, discretionary or
otherwise.
(e)
The Master Trustee at any time, by any instrument in writing, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this Section. Upon
the request of the Master Trustee, the Members of the Obligated Group shall join with the
Master Trustee in the execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal.
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(f)
No trustee or any paying agent hereunder shall be personally liable by reason of
any act or omission of any other trustee or paying agent hereunder, nor will the act or omission
of any trustee or paying agent hereunder be imputed to any other trustee or paying agent.
(g)
Any demand, request, direction, appointment, removal, notice, consent, waiver
or other action in writing delivered to the Master Trustee shall be deemed to have been
delivered to each such co-trustee or separate trustee.
(h)
Any moneys, papers, securities or other items of personal property received by
any such co-trustee or separate trustee hereunder shall forthwith, so far as may be permitted by
law, be turned over to the Master Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee or separate
trustee, it or he shall be vested with such rights, powers, duties or obligations, as shall be
specified in the instrument of appointment jointly with the Master Trustee (except insofar as
local law makes it necessary for any such co-trustee or separate trustee to act alone) subject to
all the terms hereof. Every such acceptance shall be filed with the Master Trustee. To the extent
permitted by law, any co-trustee or separate trustee may, at any time by an instrument in
writing, constitute the Master Trustee its or his attorney-in-fact and agent, with full power and
authority to perform all acts and things and to exercise all discretion on its or his behalf and in
its or his name.
In case any co-trustee or separate trustee shall die, become incapable of acting, resign or
be removed, all rights, powers, trusts, duties and obligations of said co-trustee or separate
trustee shall, so far as permitted by law, vest in and be exercised by the Master Trustee unless
and until a successor co-trustee or separate trustee shall be appointed in the manner herein
provided.
SECTION 5.8 DISCLOSURE. At the direction of the Obligated Group Representative,
the Master Trustee is authorized to disclose to a central repository of information and data
regarding municipal bond issues such material as shall be required to be disclosed in
accordance with applicable regulations and guidelines regarding such disclosure, including
without limitation those from Electronic Municipal Market Access system operated by the
Municipal Securities Rulemaking Board, or the American Bankers Association Corporate Trust
Disclosure Guidelines for Trustees, and the Members of the Obligated Group shall in
connection with directing any such disclosure pay the reasonable agreed-upon compensation
and expenses of the Master Trustee incurred in connection with such disclosure and shall
provide the Master Trustee with such indemnification as shall be reasonably satisfactory to the
Master Trustee.
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ARTICLE VI
SUPPLEMENTS AND AMENDMENTS
SECTION 6.1 SUPPLEMENTS NOT REQUIRING CONSENT OF HOLDERS. Each
Member of the Obligated Group, when authorized by resolution or other action of equal
formality by its Governing Body, and the Master Trustee may, without the consent of or notice
to any of the Holders, enter into one or more Supplements for one or more of the following
purposes:
(a)
To cure any ambiguity or formal defect or omission herein.
(b)
To correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to matters or questions
arising hereunder and which shall not materially and adversely affect the interests of the
Holders.
(c)
To grant or confer ratably upon all of the Holders any additional rights,
remedies, powers or authority that may lawfully be granted or conferred upon them subject to
the provisions of Section 6.2(a).
(d)
To qualify this Master Indenture under the Trust Indenture Act of 1939, as
amended, or corresponding provisions of federal laws from time to time in effect.
(e)
To create and provide for the issuance of Indebtedness as permitted hereunder.
(f)
To obligate a successor to any Member of the Obligated Group or any additional
Member of the Obligated Group as provided in Section 3.11.
(g)
To comply with the provisions of any federal or state securities law.
(h)
So long as no Event of Default has occurred and is continuing under this Master
Indenture and so long as no event which with notice or the passage of time or both would
become an Event of Default under this Master Indenture has occurred and is continuing, to
make any change to the provisions of this Master Indenture (except as set forth below) if the
following conditions are met:
(i)
the Obligated Group Representative delivers to the Master Trustee prior
to the date such amendment is to take effect either (A)(1) a Consultant's report to the
effect that the proposed amendment is consistent with then current industry standards
for comparable institutions and (2) an Officer's Certificate of the Obligated Group
Representative demonstrating that the provisions of Section 3.7(a) have been complied
with for the most recent period of 12 consecutive calendar months preceding the date of
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delivery of the report for which there are Audited Financial Statements available at a
ratio of at least 1.20 rather than 1.00; or (B) evidence satisfactory to the Master Trustee to
the effect that the Obligated Group has delivered, respectively, to each Related Bond
Trustee for each outstanding Related Bond, each trustee for any outstanding Obligation
which is not pledged to secure Related Bonds and each holder of an outstanding
Obligation with respect to which there is no trustee (in each case which Related Bond or
Obligation is not already entitled to the benefit of credit enhancement of the types
hereinafter described), a surety bond insurance policy, letter of credit or other form of
credit enhancement from a financial institution generally regarded as responsible (in
each case which is irrevocable and will remain in full force and effect for the entire
period of time each such Related Bond or Obligation, as the case may be, remains
outstanding or remains in place before a mandatory tender of the Related Bond and
provides for payment in full of principal and interest on such Related Bond or
Obligation when due) and with evidence satisfactory to the Master Trustee from each
rating agency then rating each such Related Bond and Obligation that, on the date the
proposed change is to take effect, each such Related Bond and Obligation rated by such
rating agency will be rated based on such credit enhancement not lower than the rating
applicable to such Related Bond or Obligation on the day prior to the effective date of
such change;
(ii)
if any Series of Obligations or Related Bonds or portion thereof are rated
based on credit enhancement of such Obligations or Related Bonds (whether in the form
of a Credit Facility or otherwise) and not on the underlying credit of the Obligated
Group, the Obligated Group Representative delivers to the Master Trustee prior to the
date such amendment is to take effect the written consent of the issuer of such Credit
Facility or other credit enhancement to such amendment of modification; and
(iii)
with respect to each outstanding Related Bond, an Opinion of Bond
Counsel (which counsel and opinion, including without limitation the scope, form,
substance and other aspects thereof, are not unacceptable to the Master Trustee) to the
effect that the proposed change will not adversely affect the validity of any Related
Bond or any exclusion from gross income for federal income taxation purposes of
interest payable thereon to which such Related Bond would otherwise be entitled;
provided, however, that no amendment shall be made pursuant to this clause (h) which would
have the effect, directly or indirectly, of changing or providing an alternative to the amount of
Long-Term Indebtedness or Short-Term Indebtedness, or the definitions of Affiliate, Audited
Financial Statements, Book Value, Property, Plant and Equipment or (3) Sections 3.1, 3.2(a), 3.4,
or 3.6(a) of this Master Indenture, unless required in order to be in compliance with Generally
Accepted Accounting Principles.
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SECTION 6.2 SUPPLEMENTS REQUIRING CONSENT OF HOLDERS.
(a)
Other than Supplements referred to in Section 6.1 hereof and subject to the terms
and provisions and limitations contained in this Article, Section 8.4 hereof and not otherwise,
the Holders of not less than a majority in aggregate principal amount of Obligations then
Outstanding shall have the right, from time to time, anything contained herein to the contrary
notwithstanding, to consent to and approve the execution by each Member of the Obligated
Group, when authorized by resolution or other action of equal formality by its Governing Body,
and the Trustee of such Supplements as shall be deemed necessary and desirable for the
purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the
terms or provisions contained herein; provided, however, nothing in this Section shall permit or
be construed as permitting a Supplement which would:
(i)
Effect a change in the times, amounts or currency of payment of the
principal of, premium, if any, and interest on any Obligation or a reduction in the
principal amount or redemption price of any Obligation or the rate of interest thereon,
without the consent of the Holder of such Obligation;
(ii)
Permit the preference or priority of any Obligation over any other
Obligation, without the consent of the Holders of all Obligations then Outstanding;
(iii)
Reduce the aggregate principal amount of Obligations then Outstanding
the consent of the Holders of which is required to authorize such Supplement without
the consent of the Holders of all Obligations then Outstanding; or
(iv)
create a Lien senior to or terminate the Lien of the Obligations granted in
Section 3.1(a) hereof.
(b)
If at any time each Member of the Obligated Group shall request the Master
Trustee to enter into a Supplement pursuant to this Section, which request is accompanied by a
copy of the resolution or other action of its Governing Body certified by its secretary or if it has
no secretary, its comparable officer, and the proposed Supplement and if within such period,
not exceeding three years, as shall be prescribed by each Member of the Obligated Group
following the request, the Master Trustee shall receive an instrument or instruments purporting
to be executed by the Holders of not less than the aggregate principal amount or number of
Obligations specified in subsection 6.2(a) for the Supplement in question which instrument or
instruments shall refer to the proposed Supplement and shall specifically consent to and
approve the execution thereof in substantially the form of the copy thereof as on file with the
Master Trustee, thereupon, but not otherwise, the Master Trustee may execute such Supplement
in substantially such form, without liability or responsibility to any Holder, whether or not such
Holder shall have consented thereto.
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(c)
Any such consent shall be binding upon the Holder giving such consent and
upon any subsequent Holder of such Obligation and of any Obligation issued in exchange
therefor (whether or not such subsequent Holder thereof has notice thereof), unless such
consent is revoked in writing by the Holder of such Obligation giving such consent or by a
subsequent Holder thereof by filing with the Master Trustee, prior to the execution by the
Master Trustee of such Supplement, such revocation and, if such Obligation is transferable by
delivery, proof that such Obligation is held by the signer of such revocation in the manner
permitted by Section 8.1 of this Master Indenture. At any time after the Holders of the required
principal amount or number of Obligations shall have filed their consents to the Supplement,
the Master Trustee shall make and file with each Member of the Obligated Group a written
statement to that effect. Such written statement shall be conclusive that such consents have been
so filed.
(d)
If the Holders of the required principal amount of the Obligations Outstanding
shall have consented to and approved the execution of such Supplement as herein provided, no
Holder shall have any right to object to the execution thereof, or to object to any of the terms
and provisions contained therein or the operation thereof, or in any manner to question the
propriety of the execution thereof, or to enjoin or restrain the Master Trustee or any Member of
the Obligated Group from executing the same or from taking any action pursuant to the
provisions thereof.
SECTION 6.3 EXECUTION AND EFFECT OF SUPPLEMENTS.
(a)
In executing any Supplement permitted by this Article, the Master Trustee shall
be entitled to receive and to rely upon an Opinion of Counsel stating that the execution of such
Supplement is authorized or permitted hereby, complies with the terms hereof and will not
adversely affect the exclusion from gross income for federal income tax purposes of interest
payable on any Related Bonds, the interest on which is not includable in gross income for
federal income tax purposes. The Master Trustee may but shall not be obligated to enter into
any such Supplement which affects the Master Trustee's own rights, duties or immunities.
(b)
Upon the execution and delivery of any Supplement in accordance with this
Article, the provisions hereof shall be modified in accordance therewith and such Supplement
shall form a part hereof for any purpose set forth therein and every Holder of an Obligation
theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
(c)
Any Obligation authenticated and delivered after the execution and delivery of
any Supplement in accordance with this Article may, and if required by the issuer of such
Obligation or the Master Trustee shall, bear a notation in form approved by the Master Trustee
as to any matter provided for in such Supplement. If the issuer of any Series of Obligations then
Outstanding or the Master Trustee shall so determine, new Obligations so modified as to
conform in the opinion of the Master Trustee and the Governing Body of such issuer to any
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such Supplement may be prepared and executed by the issuer and authenticated and delivered
by the Master Trustee in exchange for and upon surrender of Obligations then Outstanding.
ARTICLE VII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 7.1 SATISFACTION AND DISCHARGE OF INDENTURE. If (i) the
Obligated Group Representative shall deliver to the Master Trustee for cancellation all
Obligations theretofore authenticated (other than any Obligations which shall have been
mutilated, destroyed, lost or stolen and which shall have been replaced or paid as provided in
the Supplement) and not theretofore cancelled, or (ii) all Obligations not theretofore cancelled
or delivered to the Master Trustee for cancellation shall have become due and payable and
money sufficient to pay the same shall have been deposited with the Master Trustee, or (iii) all
Obligations that have not become due and payable and have not been cancelled or delivered to
the Master Trustee for cancellation shall be Defeased Obligations, and if in all cases the
Members of the Obligated Group shall also pay or cause to be paid all other sums payable
hereunder by the Members of the Obligated Group or any thereof, then this Master Indenture
shall cease to be of further effect, and the Master Trustee, on demand of the Members of the
Obligated Group and at the cost and expense of the Members of the Obligated Group, shall
execute proper instruments acknowledging satisfaction of and discharging this Master
Indenture. Each Member of the Obligated Group, respectively, hereby agrees to reimburse the
Master Trustee for any costs or expenses theretofore and thereafter reasonably and properly
incurred by the Master Trustee in connection with this Master Indenture or such Obligations.
SECTION 7.2 PAYMENT OF OBLIGATIONS AFTER DISCHARGE OF LIEN.
Notwithstanding the discharge of the lien hereof as in this Article provided, the Master Trustee
shall nevertheless retain such rights, powers and duties hereunder as may be necessary and
convenient for the payment of amounts due or to become due on the Obligations and the
registration, transfer, exchange and replacement of Obligations as provided herein.
Nevertheless, any moneys held by the Master Trustee or any paying agent for the
payment of the principal of, premium, if any, or interest on any Obligation remaining
unclaimed for five years after the principal of all Obligations has become due and payable,
whether at maturity or upon proceedings for redemption or by declaration as provided herein,
shall then be paid to the Members of the Obligated Group, as their interests may appear, and
the Holders of any Obligations not theretofore presented for payment shall thereafter be
entitled to look only to the Members of the Obligated Group for payment thereof as unsecured
creditors and all liability of the Master Trustee with respect to such moneys shall thereupon
cease.
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ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 8.1 EVIDENCE OF ACTS OF HOLDERS.
(a)
In the event that any request, direction or consent is requested or permitted
hereunder of the Holders of any Obligation securing an issue of Related Bonds, the registered
owners of such Related Bonds then outstanding shall be deemed to be such Holders for the
purpose of any such request, direction or consent in the proportion that the aggregate principal
amount of Related Bonds then outstanding held by each such owner of Related Bonds bears to
the aggregate principal amount of all Related Bonds then outstanding; provided however that if
any portion of such Related Bonds is secured by a Credit Facility that is also secured by a
separate Obligation issued hereunder, the principal amount of the Obligation that secures the
Related Bonds deemed outstanding for purposes of any such request, direction or consent shall
be reduced by the amount of Related Bonds that are secured by such Credit Facility for the
purpose of any such request, direction or consent and the Holders of the Related Bonds that are
secured by such Credit Facility shall not be consulted or counted.
(b)
As to any request, direction, consent or other instrument provided hereby to be
signed and executed by the Holders, such action may be in any number of concurrent writings,
shall be of similar tenor, and may be signed or executed by such Holders in person or by agent
appointed in writing.
(c)
Proof of the execution of any such request, direction, consent or other instrument
or of the writing appointing any such agent and of the ownership of Obligations, if made in the
following manner, shall be sufficient for any of the purposes hereof and shall be conclusive in
favor of the Master Trustee and the Members of the Obligated Group, with regard to any action
taken by them, or either of them, under such request, direction or consent or other instrument,
namely:
(i)
The fact and date of the execution by any person of any such writing may
be proved by the certificate of any officer in any jurisdiction who by law has power to
take acknowledgments in such jurisdiction, that the person signing such writing
acknowledged before him the execution thereof, or by the affidavit of a witness of such
execution; and
(ii)
The ownership of Related Bonds may be proved by the registration books
for such Related Bonds maintained pursuant to the Related Bond Indenture.
(d)
Nothing in this Section shall be construed as limiting the Master Trustee to the
proof herein specified, it being intended that the Master Trustee may accept any other evidence
of the matters herein stated which it may deem sufficient.
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(e)
Any action taken or suffered by the Master Trustee pursuant to any provision
hereof upon the request or with the assent of any person who at the time is the Holder of any
Obligation, shall be conclusive and binding upon all future Holders of the same Obligation.
(f)
In the event that any request, direction or consent is requested or permitted
hereunder of the Holders of an Obligation that constitutes a Guaranty, for purposes of any such
request, direction or consent, the principal amount of such Obligation shall be deemed to be the
stated principal amount of such Obligation.
SECTION 8.2 OBLIGATIONS OR RELATED BONDS OWNED BY MEMBERS OF
OBLIGATED GROUP. In determining whether the Holders of the requisite aggregate
principal amount of Obligations have concurred in any demand direction, request, notice,
consent, waiver or other action under this Master Indenture, Obligations or Related Bonds that
are owned by any Member of the Obligated Group or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with such Member shall
be disregarded and deemed not to be Outstanding or outstanding under the Related Bond
Indenture, as the case may be, for the purpose of any such determination, provided that for the
purposes of determining whether the Master Trustee shall be protected in relying on any such
direction, consent or waiver, only such Obligations or Related Bonds which the Master Trustee
has actual notice or knowledge are so owned shall be so disregarded and deemed not to be
outstanding. Obligations or Related Bonds so owned that have been pledged in good faith may
be regarded as Outstanding or outstanding under the Related Bond Indenture, as the case may
be, for purposes of this Section, if the pledgee shall establish to the satisfaction of the Master
Trustee the pledgee's right to vote such Obligations or Related Bonds and that the pledgee is not
a person directly or indirectly controlling or controlled by or under direct or indirect common
control with any Member of the Obligated Group. In case of a dispute as to such right, any
decision by the Master Trustee taken upon the advice of counsel shall be full protection to the
Master Trustee.
SECTION 8.3 INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE HOLDER.
At any time prior to (but not after) the Master Trustee takes action in reliance upon evidence, as
provided in Section 8.1 hereof, of the taking of any action by the Holders of the percentage in
aggregate principal amount of Obligations specified herein in connection with such action, any
Holder of such an Obligation or Related Bond that is shown by such evidence to be included in
Obligations the Holders of which have consented to such action may, by filing written notice
with the Master Trustee and upon proof of holding as provided in Section 8.1, revoke such
action so far as concerns such Obligation or Related Bond. Except upon such revocation any
such action taken by the Holder of an Obligation or Related Bond in any direction, demand,
request, waiver, consent, vote or other action of the Holder of such Obligation or Related Bond
which by any provision hereof is required or permitted to be given shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Obligation or
Related Bond, and of any Obligation or Related Bond issued in lieu thereof, whether or not any
59
notation in regard thereto is made upon such Obligation or Related Bond. Any action taken by
the Holders of the percentage in aggregate principal amount of Obligations specified herein in
connection with such action shall be conclusively binding upon each Member of the Obligated
Group, the Master Trustee and the Holders of all of such Obligations or Related Bonds.
SECTION 8.4 RIGHTS OF CREDIT FACILITY PROVIDERS.
Notwithstanding
anything in this Master Indenture to the contrary, but subject to the terms of any Supplement, in
the event that a Credit Facility is in full force and effect as to any Series of Related Bonds, the
Credit Facility Provider is not insolvent and no default of the Credit Facility exists on the part of
the Credit Facility Provider, then said Credit Facility Provider(s), in place of the owner of the
Obligations to which such Related Bonds relate shall have the power and authority to give any
written consents and exercise any and all other rights which the owner of that Obligation would
otherwise have the power and authority to make, give or exercise, including, but not limited to,
the exercise of remedies provided in Article IV and the giving of written consents to
Supplements when required by Section 6.2, and such consent shall be deemed to also constitute
the consent of the owners of all of those Related Bonds which are secured by such Credit
Facility.
Notwithstanding anything herein to the contrary, all beneficial owners of Related Bonds
not secured by such Credit Facility which are adversely affected by any amendments or
supplements under Section 6.2 of this Master Indenture shall be required to join with the Credit
Facility Provider in consent to such amendments or supplements, unless the consent of such
beneficial owners has been waived or otherwise not required for the specific purpose of such
amendment or supplement.
The Authorized Representative or the Obligated Group Representative may execute and
deliver any contracts or agreements with Credit Facility Providers to carry out the provisions
hereof or to clarify the rights of such Credit Facility Provider with respect to any Related Bonds.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 LIMITATION OF RIGHTS. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this Master
Indenture or the Obligations issued hereunder is intended or shall be construed to give to any
Person other than each Member of the Obligated Group, the Master Trustee, any Credit Facility
Provider, and the Holders hereunder any legal or equitable right, remedy or claim under or in
respect to this Master Indenture or any covenants, conditions and provisions herein contained;
this Master Indenture and all of the covenants, conditions and provisions hereof being intended
to be and being for the sole and exclusive benefit of the parties mentioned in this Section.
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SECTION 9.2 SEVERABILITY. If any one or more sections, clauses, sentences or parts
hereof shall for any reason be questioned in any court of competent jurisdiction and shall be
adjudged invalid or unenforceable, such judgment shall not affect, impair or invalidate the
remaining provisions hereof, or the Obligations issued pursuant hereto, but shall be confined to
the specific sections, clauses, sentences and parts so adjudged.
SECTION 9.3 HOLIDAYS.
provides otherwise:
Except to the extent a Supplement or an Obligation
(a)
Subject to subsection (b) of this Section 9.3, when any action is provided herein to
be done on a day or within a time period named, and the day or the last day of the period falls
on a Saturday or Sunday or a day on which the Corporate Trust Office is lawfully closed, the
action may be done on the next ensuing day which is not such a day.
(b)
When the date on which principal of or interest or premium on any Obligation is
due and payable is a Saturday or Sunday or a day on which banking institutions at the place of
payment are authorized by law to remain closed, payment may be made on the next ensuing
day which is not such a day with the same effect as though payment were made on the due
date, and, if such payment is made, no interest shall accrue from and after such due date.
SECTION 9.4 GOVERNING LAW. This Master Indenture and any Obligations issued
hereunder are contracts made under the laws of the State of Florida and shall be governed by
and construed in accordance with such laws.
SECTION 9.5 COUNTERPARTS. This Master Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one instrument.
SECTION 9.6 IMMUNITY OF INDIVIDUALS. No recourse shall be had for the
payment of the principal of, premium, if any, or interest on any Obligations issued hereunder or
for any claim based thereon or upon any obligation, covenant or agreement herein against any
past, present or future officer, member, employee or agent of any Member of the Obligated
Group, and all such liability of any such individual as such is hereby expressly waived and
released as a condition of and in consideration for the execution hereof and the issuance of
Obligations issued hereunder.
SECTION 9.7 BINDING EFFECT. This instrument shall inure to the benefit of and
shall be binding upon each Member of the Obligated Group, the Master Trustee and their
respective successors and assigns subject to the limitations contained herein.
SECTION 9.8 NOTICES.
(a)
Unless otherwise expressly specified or permitted by the terms hereof, all
notices, consents or other communications required or permitted hereunder shall be deemed
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sufficiently given or served if given in writing, mailed by first class mail, postage prepaid and
addressed as follows:
(i)
If to any Member of the Obligated Group, addressed to The University of
Tampa, Incorporated at its principal place of business, which on the date hereof is 401
West Kennedy Boulevard, Box 96F, Tampa, Florida 33606, Attention: Vice President for
Administration and Finance;
(ii)
If to the Master Trustee, addressed to Regions Bank, 111 North Orange
Avenue, Suite 1525, Orlando, Florida 32801, Attention: Corporate Trust Department;
(iii)
If to any registered Holder, addressed to such Holder at the address
shown on the books of the Master Trustee kept pursuant hereto; or
(iv)
If to any Credit Facility Provider, to the address specified in a
Supplement.
(b)
Any Member of the Obligated Group, or the Master Trustee may from time to
time by notice in writing to the other and to the registered Holders designate a different address
or addresses for notice hereunder.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the University has caused these presents to be signed in its
name and on its behalf and attested by duly authorized officers and to evidence its acceptance of
the trusts hereby created, Regions Bank has caused these presents to be signed in its name and on
its behalf by its duly authorized officer, all of as of the day and year first above written.
(SEAL)
By:
Title: Vice President for Administration and Finance
ATTEST:
By:
Title: Secretary
REGIONS BANK,
as Master Trustee
By:
Title:
SUPPLEMENTAL INDENTURE FOR OBLIGATION NO. 6
between
AS OBLIGATED GROUP REPRESENTATIVE
and
REGIONS BANK,
AS MASTER TRUSTEE
Dated as of April 1, 2015
Supplementing the Master Trust Indenture
dated as of April 1, 2012
SUPPLEMENTAL INDENTURE FOR OBLIGATION NO. 6
THIS SUPPLEMENTAL INDENTURE FOR OBLIGATION NO. 6, made and entered
into as of the 1st day of April, 2015 ("Supplement No. 6"), between THE UNIVERSITY OF
TAMPA, INCORPORATED (the "University"), a Florida not-for-profit corporation and as the
Obligated Group Representative, and REGIONS BANK, an Alabama banking corporation, as
master trustee (the "Master Trustee") under the Master Trust Indenture (Security Agreement),
dated as of April 1, 2012, as supplemented from time-to-time (collectively, the "Master
Indenture") between the Master Trustee and the University, as the Initial Obligated Group
Member.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into the Master Indenture which provides
for the issuance, by any or all of the Members of the Obligated Group, of Obligation No. 6
thereunder, upon such Members of the Obligated Group and the Master Trustee entering into
an indenture supplemental to the Master Indenture to create Indebtedness; and
WHEREAS, the University, as Obligated Group Representative, desires to issue
Obligation No. 6 hereunder to evidence the University's obligations arising from the issuance
by the City of Tampa, Florida (the "Issuer") of its Revenue and Revenue Refunding Bonds (The
University of Tampa Project), Series 2015 (the "Series 2015 Bonds") in the original aggregate
principal amount of $76,690,000 and the loan of the proceeds of such Series 2015 Bonds to the
University for the benefit of the University; and
WHEREAS, all acts and things necessary to constitute this Supplement No. 6 a valid
indenture and agreement according to its terms have been done and performed, and the
University has duly authorized the execution and delivery hereof and of Obligation No. 6 (as
hereinafter defined);
NOW, THEREFORE, in consideration of the premises, of the acceptance by the Master
Trustee of the trusts hereby created, and of the giving of consideration for and acceptance of
Obligation No. 6, the University covenants and agrees with the Master Trustee as follows:
SECTION 1.
DEFINITIONS. For the purposes hereof unless the context otherwise
indicates the following words and phrases shall have the following meanings:
All terms used herein including in the preamble hereto which are defined in the Master
Indenture shall have the meanings assigned to them therein.
"Bond Indenture" means the Bond Trust Indenture dated as of April 1, 2015 between the
Issuer and the Related Bond Trustee, pursuant to which the Series 2015 Bonds are being issued.
"Net Proceeds" means, when used with respect to any insurance or condemnation
award or sale consummated under threat of condemnation, the gross proceeds from the
insurance or condemnation award or sale with respect to which that term is used less all
expenses (including without limitation, reasonable attorney's fees, adjuster's fees and any
expenses of the Master Trustee) incurred in the collection of such gross proceeds.
"Obligation No. 6" means the Obligation issued pursuant to Section 2 hereof.
"Related Bond Trustee" means Regions Bank, an Alabama banking association
organized and existing under the laws of the United States of America, as bond trustee for the
Series 2015 Bonds.
SECTION 2.
ISSUANCE OF OBLIGATION NO. 6. There is hereby created and
authorized to be issued Obligation No. 6 in the principal amount of Seventy-Six Million Six
Hundred Ninety Thousand and No/100 Dollars ($76,690,000) designated "The University of
Tampa-Obligation No. 6 (2015 Financing)." Obligation No. 6 shall be dated April 23, 2015, and
shall be payable in such amounts, at such times and in such manner and shall have such other
terms and provisions as are set forth in the form of Obligation No. 6 attached hereto as
Appendix A. The principal amount of Obligation No. 6 is limited to the amount stated in this
section.
SECTION 3.
PAYMENTS ON OBLIGATIONS; CREDITS. (a) Principal of, interest
and any applicable redemption premium on, and other payments with respect to, Obligation
No. 6 are payable in any coin or currency of the United States of America which on the payment
date is legal tender for the payment of public and private debts. Except as provided in
subsection (b) of this Section with respect to credits, and Section 4 hereof regarding
prepayment, payments on Obligation No. 6 shall be made at the times and in the amounts
specified in Obligation No. 6 in immediately available funds by the Obligated Group
Representative depositing the same with or to the account of the Related Bond Trustee on the
day deposits are required to be so deposited with the Related Bond Trustee (or the next
preceding business day if such date is a Saturday, Sunday or a legal holiday or a day upon
which banking institutions are authorized by law to close), and giving notice to the Master
Trustee of each payment on Obligation No. 6, specifying the amount paid and identifying such
payment as a payment on Obligation No. 6.
(b)
The Obligated Group shall receive credit for payment on Obligation No. 6, in
addition to any credits resulting from payment or prepayment from other sources, as follows:
(i)
On installments of interest on Obligation No. 6 in an amount equal to
moneys deposited in the Interest Fund created under the Bond Indenture which
amounts are available to pay interest on the Series 2015 Bonds and to the extent such
amounts have not previously been credited against payments on Obligation No. 6.
2
(ii)
On installments of principal on Obligation No. 6 in an amount equal to
moneys deposited in the Bond Sinking Fund created under the Bond Indenture which
amounts are available to pay principal of the Series 2015 Bonds and to the extent such
amounts have not previously been credited against payments on Obligation No. 6.
(iii)
On installments of principal of and interest on Obligation No. 6 in an
amount equal to the principal of and interest on Series 2015 Bonds which have been
called by the Related Bond Trustee for redemption prior to maturity and for the
redemption of which sufficient amounts of cash are on deposit with the Related Bond
Trustee in the Redemption Fund created under the Bond Indenture for such purpose
and to the extent such amounts have not been previously credited against payments on
Obligation No. 6. Such credits shall be made against the installments of principal of and
interest on Obligation No. 6 which would be due, but for such call for redemption, to
pay principal of and interest on such Series 2015 Bonds when due at maturity.
(iv)
On installments of principal of and interest on Obligation No. 6 in an
amount equal to the principal amount of Series 2015 Bonds acquired by any Member of
the Obligated Group and delivered to the Related Bond Trustee and cancelled. Such
credits shall be made against the installments of principal of and interest on Obligation
No. 6 which would be due, but for such cancellation, to pay principal of and interest on
Series 2015 Bonds when due at maturity.
SECTION 4.
PREPAYMENT OF OBLIGATION NO. 6. (a) So long as all amounts
which have become due under Obligation No. 6 have been paid, the Obligated Group
Representative may at any time and from time to time pay in advance and in any order of due
dates all or part of the amounts to become due under Obligation No. 6. Prepayment may be
made by payments of cash and/or surrender of Series 2015 Bonds, as contemplated by Section 3
hereof. All such prepayments (and the additional payment of any amount necessary to pay the
applicable premium, if any, payable upon the redemption of Series 2015 Bonds) shall be
deposited upon receipt in the Redemption Fund (as defined in the Bond Indenture) and, at the
request of and as determined by the Obligated Group Representative used for the redemption
or purchase of Outstanding Series 2015 Bonds in the manner and subject to the terms and
conditions set forth in the Bond Indenture. Notwithstanding any such prepayment or surrender
of Series 2015 Bonds, as long as any Series 2015 Bonds remain Outstanding or any additional
payments required to be made hereunder remain unpaid, the Obligated Group shall not be
relieved of its obligations hereunder.
(b)
Prepayments made under subsection (a) of this Section shall be credited against
amounts to become due on Obligation No. 6 as provided in Section 3 hereof.
(c)
The Obligated Group Representative may also prepay all of the Indebtedness
under Obligation No. 6 by providing for the payment of Series 2015 Bonds in accordance with
Article V and/or XI of the Bond Indenture.
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SECTION 5.
REGISTRATION NUMBERS, NEGOTIABILITY AND TRANSFER
OF OBLIGATION NO. 6.
(a)
Obligation No. 6 shall be registered on the register to be maintained by the
Obligated Group Representative for that purpose at the Corporate Trust Office of the Master
Trustee. Except as provided in subsection (b) of this Section, so long as any Series 2015 Bond
remains Outstanding (within the meaning of that term as used in the Bond Indenture),
Obligation No. 6 shall consist of a single Obligation registered as to principal and interest in the
name of the Related Bond Trustee and no transfer of Obligation No. 6 shall be registered under
this Supplement No. 6 except for transfers to a successor Related Bond Trustee.
(b)
Upon the principal of all Obligations Outstanding being declared immediately
due and payable upon and during the continuance of an Event of Default, Obligation No. 6 may
be transferred and such transfer registered, if and to the extent the Related Bond Trustee
requests that the restrictions of subsection (a) of this Section on transfers of Obligation No. 6 be
terminated.
(c)
Obligation No. 6 shall be transferable only upon presentation of Obligation No. 6
at the Corporate Trust Office of the Master Trustee by the registered owner or by its duly
authorized attorney. Such transfer shall be without charge to the owner thereof, but any taxes or
other governmental charges required to be paid with respect to the same shall be paid by the
owner requesting such transfer as a condition precedent to the exercise of such privilege. Upon
any such transfer, the Obligated Group Representative shall execute and the Master Trustee
shall authenticate and deliver in exchange for Obligation No. 6 a new registered Obligation,
registered in the name of the transferee.
(d)
Prior to due presentment by the owner for registration of transfer, the Obligated
Group Representative and the Master Trustee may deem and treat the person in whose name
Obligation No. 6 is registered as the absolute owner for all purposes; and neither the Obligated
Group Representative nor the Master Trustee shall be affected by any notice to the contrary. All
payments made to the registered owner shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable on Obligation No. 6.
SECTION 6.
MUTILATION, DESTRUCTION, LOSS AND THEFT OF
OBLIGATIONS. If (i) Obligation No. 6 is surrendered to the Master Trustee in a mutilated
condition, or the Obligated Group Representative and the Master Trustee receive evidence to
their satisfaction of the destruction, loss or theft of Obligation No. 6 and (ii) there is delivered to
the Obligated Group Representative and the Master Trustee such security or indemnity as may
be required by them to hold them harmless, then, in the absence of proof satisfactory to the
Obligated Group Representative and the Master Trustee that Obligation No. 6 has been
acquired by a bona fide purchaser and upon the Holder paying the reasonable expenses of the
Obligated Group Representative and the Master Trustee, the Obligated Group Representative
4
shall cause to be executed and the Master Trustee shall authenticate and deliver, in exchange for
such mutilated Obligation, a new Obligation of like principal amount, date and tenor. Every
mutilated Obligation No. 6 so surrendered to the Master Trustee shall be cancelled by it and
delivered to, or upon the order of, the Obligated Group Representative. If any such mutilated,
destroyed, lost or stolen Obligation No. 6 has become or is about to become due and payable,
Obligation No. 6 may be paid when due instead of delivering a new Obligation No. 6.
SECTION 7.
EXECUTION AND AUTHENTICATION OF OBLIGATION NO. 6.
Obligation No. 6 shall be manually executed for and on behalf of the Obligated Group by an
Authorized Representative of the Obligated Group Representative and attested by the Secretary
or any Assistant Secretary of the Obligated Group Representative. If any officer whose
signature appears on Obligation No. 6 ceases to be such officer before delivery thereof, such
signature shall remain valid and sufficient for all purposes as if such officer had remained in
office until such delivery. Obligation No. 6 shall be manually authenticated by an authorized
officer of the Master Trustee, without which authentication Obligation No. 6 shall not be
entitled to the benefits hereof.
SECTION 8.
RIGHT TO REDEEM OBLIGATION NO. 6. Obligation No. 6 shall be
subject to redemption, in whole or in part, prior to the maturity, in an amount equal to the
principal amount of any Series 2015 Bond(s) (i) called for redemption pursuant to the Bond
Indenture, or (ii) purchased for cancellation by the Related Bond Trustee. Obligation No. 6 shall
be subject to redemption on the date any Series 2015 Bond(s) shall be so redeemed or
purchased, and in the manner provided herein.
SECTION 9.
PARTIAL REDEMPTION OF OBLIGATION NO. 6. Upon the call for
redemption, and the surrender of, Obligation No. 6 for redemption in part only, the Obligated
Group Representative shall cause to be executed and the Master Trustee shall authenticate and
deliver to or upon the written order of the Holder thereof, at the expense of the Obligated
Group Representative, a new Obligation No. 6 in principal amount equal to the unredeemed
portion of Obligation No. 6, which old Obligation No. 6 so surrendered to the Master Trustee
pursuant to this Section 9 shall be cancelled by it and delivered to, or upon the order of the
Holder thereof.
The Obligated Group Representative may agree with the Holder of Obligation No. 6 that
such Holder may, in lieu of surrendering Obligation No. 6 for a new fully registered Obligation
No. 6, endorse on Obligation No. 6 a notice of such Partial redemption, which notice shall set
forth, over the signature of such Holder, the payment date, the principal amount redeemed and
the principal amount remaining unpaid. Such partial redemption shall be valid upon payment
of the amount thereof to the registered owner of Obligation No. 6 and the Obligated Group and
the Master Trustee shall be fully released and discharged from all liability to the extent of such
payment irrespective of whether such endorsement shall or shall not have been made upon the
reverse of Obligation No. 6 by the owner thereof and irrespective of any error or omission in
such endorsement.
5
SECTION 10. EFFECT OF CALL FOR REDEMPTION. On the date designated for
redemption of the Series 2015 Bonds, Obligation No. 6 shall become and be due and payable in
an amount equal to the redemption or purchase price to be paid on the Series 2015 Bonds being
called on such date. If on the date fixed for redemption of Obligation No. 6 moneys for payment
of the redemption or purchase price and accrued interest on the Series 2015 Bonds are held by
the Related Bond Trustee, interest on Obligation No. 6 shall cease to accrue and said Obligation
No. 6 shall cease to be entitled to any benefit or security under the Master Indenture to the
extent of said redemption and the amount of Obligation No. 6 so called for redemption shall be
deemed paid and no longer Outstanding.
SECTION 11. DISCHARGE OF SUPPLEMENT. Upon payment of a sum, in cash or
Defeasance Obligations (as defined in the Master Indenture), or both, sufficient, together with
any other cash and United States Treasury Obligations held by the Related Bond Trustee and
available for such purpose, to cause all Outstanding Series 2015 Bonds to be deemed to have
been paid within the meaning of Article XI of the Bond Indenture and to pay all other amounts
(i) referred to in Article XI of the Bond Indenture and (ii) and any amounts accrued and to be
accrued to the date of discharge of the Bond Indenture, Obligation No. 6 shall be deemed to
have been paid and to be no longer Outstanding under the Master Indenture and this
Supplement No. 6 shall be discharged.
SECTION 12. ACCELERABLE OBLIGATION. Obligation No. 6 is deemed an
Accelerable Obligation under the Master Indenture. The Master Trustee shall only be entitled to
accelerate Obligation No. 6 upon the prior written direction of the Related Bond Trustee acting
in accordance with Section 7.7 of the Bond Indenture.
SECTION 13. TAX EXEMPT STATUS. The University hereby covenants that so long
as all amounts due or to become due on any Series 2015 Bond have not been fully paid to the
holder thereof, it will not take any action or suffer any action to be taken by others, including
the alteration or loss of its status as a Tax-Exempt Organization, which would result in the
interest payable on any Series 2015 Bond becoming includable in gross income of the holder
thereof for purposes of federal income taxation under the Internal Revenue Code of 1986, as
amended.
SECTION 14. RATIFICATION OF MASTER INDENTURE. As supplemented
hereby, the Master Indenture is in all respects ratified and confirmed and the Master Indenture
as so supplemented hereby shall be read, taken and construed as one and the same instrument.
SECTION 15. SEVERABILITY. If any provision of this Supplement No. 6 shall be
held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any
particular case and any jurisdiction or jurisdictions or in all jurisdictions, or in all cases, because
it conflicts with any other provision or provisions hereof or any constitution, statute, rule or
public policy, or for any other reason, such circumstances shall not have the effect of rendering
6
the provision in question inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses, sections or subsections
contained in this Supplement No. 6 shall not affect the remaining portions of this Supplement
No. 6 or any part thereto.
SECTION 16. COUNTERPARTS. This Supplement No. 6 may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one instrument.
SECTION 17. GOVERNING LAW. This Supplement No. 6 shall be governed by and
construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the University, as Obligated Group Representative, has
caused these presents to be signed in its name and its behalf and attested by its duly authorized
officers and to evidence its acceptance of the trusts hereby created and the Master Trustee has
caused these presents to be signed in its name and on its behalf by its duly authorized
signatory, all as of the day and year first above written.
as Obligated Group Representative
By:
Title: Vice President for Administration and
Finance
ATTEST:
By:
Name: Donna Popovich
Title: Secretary
REGIONS BANK, as Master Trustee
By:
[Signature Page | Supplemental Indenture for Obligation No. 6]
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APPENDIX A
[FORM OF OBLIGATION NO. 6]
THE UNIVERSITY OF TAMPA -OBLIGATION NO. 6
(2015 Financing)
KNOW ALL PERSONS BY THESE PRESENTS that The University of Tampa,
Incorporated (the "University"), a Florida not-for-profit corporation, as Obligated Group
Representative and a current Member of an Obligated Group, on behalf of itself and the other
Members of the Obligated Group (collectively, the "Obligated Group") for value received
hereby acknowledges the Members of the Obligated Group are obligated to, and promises to
pay to Regions Bank, as bond trustee under that certain Bond Indenture (hereinafter described),
or registered assigns, (i) the principal sum of Seventy-Six Million Six Hundred Ninety
Thousand and No/100 Dollars ($76,690,000) payable in installments on the dates and in the
amounts that payments are required to be deposited by the University pursuant to the Bond
Indenture, and (ii) to pay interest thereon from the date hereof on the dates and in the amounts
that payments are required to be deposited by the University pursuant to the Bond Indenture.
This Obligation No. 6 is a single Obligation of the Obligated Group designated as "The
University of Tampa–Obligation No. 6 (2015 Financing)" ("Obligation No. 6," and together with
all other Obligations issued under the Master Trust Indenture hereinafter identified, the
"Obligations") issued under and pursuant to Supplemental Indenture for Obligation No. 6,
dated as of April 1, 2015 ("Supplement No. 6"), supplementing the Master Trust Indenture
(Security Agreement), dated as of April 1, 2012, between the University, as the Initial Obligated
Group Member, and Regions Bank, as master trustee (in such capacity, the "Master Trustee").
The Master Trust Indenture, as so supplemented and amended, is hereinafter called the "Master
Indenture". Capitalized terms used but not defined herein shall have the respective meanings
assigned to such terms in the Master Indenture. This Obligation No. 6, together with all other
Obligations Outstanding under the Master Indenture, is equally and ratably secured by the
provisions of the Master Indenture. As provided by Section 3.1 of the Master Indenture, each
Member of the Obligated Group is jointly and severally liable for this Obligation No. 6.
Principal hereof, interest hereon, any applicable redemption premium, and other
payments hereunder are payable in any coin or currency of the United States of America which
on the payment date is legal tender for the payment of public and private debts. The principal
hereof, premium, if any, interest hereon and other payments hereunder shall be payable in
immediately available funds by depositing the same with or to the account of the Related Bond
Trustee (as hereinafter defined) on the day such payments shall become due and payable (or the
next preceding business day if such date is a Saturday, Sunday or a legal holiday or a day upon
which banking institutions are authorized by law to close) in accordance with Schedule A
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attached hereto, and giving notice of payment to the Master Trustee as provided in the
Supplement No. 6.
This Obligation No. 6 is issued for the purpose of evidencing and securing the
indebtedness of the University resulting from the issuance and sale of revenue bonds of the City
of Tampa Florida (the "Issuer"), in the aggregate principal amount of $76,690,000, designated
"Revenue and Revenue Refunding Bonds (The University of Tampa Project), Series 2015" (the
"Series 2015 Bonds"), and issued under and pursuant to the Constitution and laws of the State of
Florida, particularly Chapter 166, Florida Statutes, Chapter 159, Part II, Florida Statutes, the
Charter of the Issuer, the Issuer's home rule powers and other applicable provisions of law, and
a Bond Trust Indenture (the "Bond Indenture"), dated as of April 1, 2015, between the Issuer
and Regions Bank, as bond trustee (in such capacity, the "Related Bond Trustee").
The Obligated Group shall receive credit for payment on Obligation No. 6, in addition to
any credits resulting from payment or prepayment from other sources, as follows: (i) on
installments of interest on Obligation No. 6 in an amount equal to moneys deposited in the
Interest Fund created under the Bond Indenture which amounts are available to pay interest on
the Series 2015 Bonds and to the extent such amounts have not previously been credited against
payments on Obligation No. 6; (ii) on installments of principal on Obligation No. 6 in an
amount equal to moneys deposited in the Bond Sinking Fund created under the Bond Indenture
which amounts are available to pay principal of the Series 2015 Bonds and to the extent such
amounts have not previously been credited on Obligation No. 6; (iii) on installments of
principal and interest on Obligation No. 6 in an amount equal to the principal of and interest on
Series 2015 Bonds which have been called by the Related Bond Trustee for redemption prior to
maturity to the extent that there are sufficient amounts for the redemption of such Series 2015
Bonds in cash on deposit with the Related Bond Trustee and available for such purpose in
accordance with the Bond Indenture and to the extent that such amounts have not previously
been credited on Obligation No. 6; provided that such credits shall be made against the
installments of principal and interest on Obligation No. 6 which would be due, but for such call
for redemption, to pay principal and interest of such Series 2015 Bonds when due at maturity;
and (iv) on installments of principal and interest on Obligation No. 6 in an amount equal to the
principal amount of and interest on Series 2015 Bonds acquired by any Member of the
Obligated Group and delivered to the Related Bond Trustee for cancellation or purchased by
the Related Bond Trustee and cancelled; provided that such credits shall be made against the
installments of principal and interest on Obligation No. 6 which would be due, but for the
cancellation of such Series 2015 Bond, to pay principal and interest of such Series 2015 Bonds
when due at maturity.
Upon payment of a sum, in cash or obligations, or both, sufficient, together with any
other cash and obligations held by the Related Bond Trustee and available for such purpose, to
cause all Outstanding Series 2015 Bonds to be deemed to have been paid within the meaning of
Article XI of the Bond Indenture and to pay all other amounts referred to in Article XI of the
Bond Indenture, accrued and to be accrued to the date of discharge of the Bond Indenture,
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Obligation No. 6 shall be deemed to have been paid and to be no longer Outstanding under the
Master Indenture.
Copies of the Master Indenture are on file at the Corporate Trust Office of the Master
Trustee and reference is hereby made to the Master Indenture for the provisions, among others,
with respect to the nature and extent of the rights of the owners of Obligations issued under the
Master Indenture the terms and conditions on which, and the purpose for which, Obligations
are to be issued and the rights, duties and obligations of the Members of the Obligated Group
and the Master Trustee under the Master Indenture, to all of which the registered owner hereof,
by acceptance of this Obligation No. 6, assents.
The Master Indenture permits the issuance of additional Obligations under the Master
Indenture to be secured by the covenants made therein, all of which, regardless of the times of
issue or maturity, are to be of equal rank without preference, priority or distinction of any
Obligation issued under the Master Indenture over any other such Obligation except as
expressly provided or permitted in the Master Indenture.
To the extent permitted by and as provided in the Master Indenture, modifications or
changes of the Master Indenture, of any indenture supplemental thereto, and of the rights and
obligations of the Members of the Obligated Group and of the owners of Obligations in any
particular may be made by the execution and delivery of an indenture or indentures
supplemental to the Master Indenture or any Supplemental Indenture. Certain modifications or
changes which would affect the rights of the owners of this Obligation No. 6 may be made only
with the consent of the owners of not less than a majority in aggregate principal amount of the
Obligations then Outstanding under the Master Indenture. No such modification or change
shall be made which will (i) effect a change in the times, amounts or currency of payment of the
principal of, and premium, if any, or interest on any Obligation without the consent of the
registered owner of such Obligation; (ii) permit the preference or priority of any Obligation over
any other Obligation without the consent of the registered owners of all Obligations then
Outstanding; or (iii) reduce the aggregate principal amount of Obligations then Outstanding,
the consent of the registered owners of which is required to authorize such supplement without
the consent of the registered owners of all Obligations then Outstanding. Any such consent by
the registered owners of this Obligation No. 6 shall be conclusive and binding upon such
registered owner and all future owners hereof irrespective of whether or not any notation of
such consent is made upon this Obligation No. 6.
In the manner and with the effect provided in Supplement No. 6, Obligation No. 6 will
be subject to redemption in whole or in part prior to maturity, in an amount equal to the
principal amount of any Series 2015 Bond (i) called for redemption pursuant to the Bond
Indenture, or (ii) purchased for cancellation by the Related Bond Trustee. Obligation No. 6 shall
be subject to redemption on the date any Series 2015 Bond shall be so redeemed or purchased,
and in the manner provided herein.
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Any redemption, either in whole or in part, shall be made upon notice thereof in the
manner and upon the terms and conditions provided in the Bond Indenture. If this Obligation
No. 6 shall have been duly called for redemption and payment of the redemption price,
together with interest accrued thereon to the date fixed for redemption, shall have been made or
provided for, as more fully set forth in Supplement No. 6 and the Bond Indenture, interest on
this Obligation No. 6 shall cease to accrue from the date fixed for redemption, and from and
after such date this Obligation No. 6 shall be deemed not to be Outstanding, as defined in the
Master Indenture, and shall no longer be entitled to the benefits of the Master Indenture, and
the registered owner hereof shall have no rights in respect of this Obligation No. 6 other than
payment of the redemption price, together with accrued interest to the date fixed for
redemption.
The registered owner of this Obligation No. 6 shall have no right to enforce the
provisions of the Master Indenture, or to institute any action to enforce the covenants therein, or
to take any action with respect to any default under the Master Indenture, or to institute, appear
in or defend any suit or other proceeding with respect thereto, except as provided in the Master
Indenture.
This Obligation No. 6 is issuable only as a fully registered Obligation. This Obligation
No. 6 shall be registered on the registration books to be maintained by the Obligated Group
Representative for that purpose at the Corporate Trust Office of the Master Trustee and the
transfer of this Obligation No. 6 shall be registrable only upon presentation of this Obligation
No. 6 at said office by the registered owner or by its duly authorized attorney and subject to the
limitations, if any, set forth in Supplement No. 6. Such registration of transfer shall be without
charge to the registered owner hereof, but any taxes or other governmental charges required to
be paid with respect to the same shall be paid by the registered owner requesting such
registration of transfer as a condition precedent to the exercise of such privilege. Upon any such
registration of transfer, the Obligated Group Representative shall execute and the Master
Trustee shall authenticate and deliver in exchange for this Obligation No. 6 a new Obligation,
registered in the name of the transferee.
Prior to due presentment hereof for registration of transfer, the Obligated Group
Representative and the Master Trustee may deem and treat the person in whose name this
Obligation No. 6 is registered as the absolute owner hereof for all purposes; and neither the
Obligated Group Representative nor the Master Trustee shall be affected by any notice to the
contrary. All payments made to the registered owner hereof shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable on
this Obligation No. 6.
No covenant or agreement contained in this Obligation No. 6 or the Master Indenture
shall be deemed to be a covenant or agreement of any director, officer, agent or employee of any
Member of the Obligated Group or of the Master Trustee in his individual capacity, and no
incorporator, member, officer or member of any Member of the Obligated Group shall be liable
A-4
personally on this Obligation No. 6 or be subject to any personal liability or accountability by
reason of the issuance of this Obligation No. 6.
This Obligation No. 6 shall not be entitled to any benefit under the Master Indenture, or
be valid or become obligatory for any purpose, until this Obligation No. 6 shall have been
authenticated by execution by the Master Trustee, or its successor as Master Trustee, of the
Certificate of Authentication inscribed hereon.
WITNESS WHEREOF, the University, as Obligated Group Representative, has caused
this Obligation No. 6 to be executed in its name and on its behalf by its President and attested
by its Vice President of Administration and Finance all on the ____ day of __________, 2015.
as Obligated Group Representative
(SEAL)
By:
Name:
Title:
Richard Ogorek
Vice President for Administration and
Finance
ATTEST:
By:
Title:
Secretary
MASTER TRUSTEE'S AUTHENTICATION CERTIFICATE
The undersigned Master Trustee hereby certifies that this Obligation No. 6 is one of the
obligations described in the within-mentioned Master Indenture.
Date of Authentication:
REGIONS BANK, as Master Trustee
__________, 2015
By:
A-5
SCHEDULE A TO OBLIGATION NO. 6
Repayment Schedule
Payment
Date
5/31/2016
5/31/2017
5/31/2018
5/31/2019
5/31/2020
5/31/2021
5/31/2022
5/31/2023
5/31/2024
5/31/2025
5/31/2026
5/31/2027
5/31/2028
5/31/2029
5/31/2030
5/31/2031
5/31/2032
5/31/2033
5/31/2034
5/31/2035
5/31/2036
5/31/2037
5/31/2038
5/31/2039
5/31/2040
5/31/2041
5/31/2042
5/31/2043
5/31/2044
5/31/2045
Principal
Interest
Debt Service
$980,000 $3,573,317.23
$4,553,317.23
920,000
3,766,700.00
4,686,700.00
960,000
3,729,900.00
4,689,900.00
995,000
3,691,500.00
4,686,500.00
1,045,000
3,641,750.00
4,686,750.00
1,095,000
3,589,500.00
4,684,500.00
1,150,000
3,534,750.00
4,684,750.00
1,210,000
3,477,250.00
4,687,250.00
1,270,000
3,416,750.00
4,686,750.00
1,335,000
3,353,250.00
4,688,250.00
1,400,000
3,286,500.00
4,686,500.00
1,470,000
3,216,500.00
4,686,500.00
1,545,000
3,143,000.00
4,688,000.00
1,625,000
3,065,750.00
4,690,750.00
1,700,000
2,984,500.00
4,684,500.00
1,785,000
2,899,500.00
4,684,500.00
1,880,000
2,810,250.00
4,690,250.00
3,340,000
2,716,250.00
6,056,250.00
3,505,000
2,549,250.00
6,054,250.00
3,680,000
2,374,000.00
6,054,000.00
3,865,000
2,190,000.00
6,055,000.00
4,060,000
1,996,750.00
6,056,750.00
2,420,000
1,793,750.00
4,213,750.00
2,540,000
1,672,750.00
4,212,750.00
2,670,000
1,545,750.00
4,215,750.00
2,800,000
1,412,250.00
4,212,250.00
2,945,000
1,272,250.00
4,217,250.00
7,135,000
1,125,000.00
8,260,000.00
7,495,000
768,250.00
8,263,250.00
7,870,000
393,500.00
8,263,500.00
$76,690,000 $78,990,417.23 $155,680,417.23
A-6
APPENDIX G
FORM OF CONTINUING DISCLOSURE AGREEMENT
CONTINUING DISCLOSURE AGREEMENT
This Continuing Disclosure Agreement (the "Disclosure Agreement") is executed and delivered
by The University of Tampa, Inc. (the "Obligor"), a Florida non-profit corporation and Digital Assurance
Certification, L.L.C., in its capacity as Dissemination Agent hereunder ("DAC"), for the benefit of the
Holders (hereinafter defined) of the City of Tampa, Florida Revenue and Revenue Refunding Bonds (The
University of Tampa Project), Series 2015 (the "2015 Bonds"). Subject to the provisions set forth below,
the Obligor covenants and agrees as follows:
The 2015 Bonds are being issued pursuant to a Bond Trust Indenture dated as of April 1, 2015
(the "Indenture"), between the City of Tampa (the "City") and Regions Bank, as bond trustee and loaned
to the Borrower pursuant to a Loan Agreement dated as of April 1, 2015 (the "Loan Agreement") between
the Borrower and the City.
SECTION 1. PURPOSE OF DISCLOSURE AGREEMENT. This Disclosure Agreement is
being executed and delivered by the Obligor for the benefit of the Holders and in order to assist the
underwriter of the 2015 Bonds in complying with the continuing disclosure requirements of Rule 15c2-12
promulgated by the Securities and Exchange Commission ("SEC") pursuant to the Securities Exchange
Act of 1934, as amended (the "Rule").
SECTION 2. DEFINITIONS. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Indenture, the Loan Agreement or in the Rule.
"Event of Bankruptcy" shall be considered to have occurred when any of the following occur: the
appointment of a receiver, fiscal agent or similar officer for an Obligated Person (as defined in the Rule)
in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in
which a court or governmental authority has assumed jurisdiction over substantially all of the assets or
business of the Obligated Person, or if such jurisdiction has been assumed by leaving the existing
governmental body and officials or officers in possession but subject to the supervision and orders of a
court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement
or liquidation by a court or governmental authority having supervision or jurisdiction over substantially
all of the assets or business of the Obligated Person.
"Holder" means any person (i) having the power, directly or indirectly, to vote or consent with
respect to, or to dispose of ownership of, any 2015 Bonds (including persons holding 2015 Bonds through
nominees, depositories or other intermediaries) or (ii) treated as the owner of any 2015 Bonds for federal
income tax purposes.
SECTION 3. ANNUAL INFORMATION. In accordance with the provisions of the Rule, the
Obligor shall provide or cause to be provided, to the Electronic Municipal Market Access System
operated by the Municipal Securities Rulemaking Board (the "MSRB"), or such other system as permitted
under the Rule (the "EMMA System"), if any, on or before November 1 of each year, commencing
November 1, 2015 (A) the following information with respect to the prior fiscal year, an update of the
annual financial information and operating data of the Obligor, consistent with the type of financial
information and data included in Appendix A to the Official Statement prepared for the 2015 Bonds (the
"Official Statement") under the following captions or table headings: (i) Enrollment (Fall Semester), (ii)
Tuition (full-time undergraduate and full-time graduate only), (iii) Student Fees, (iv) Comparative
Summary of Total Revenues and Expenses (Restricted and Unrestricted), and (v) Comparative Summary
of Total Revenues and Expenses (Restricted and Unrestricted Only) and (B) annual audited financial
statements with respect to the prior fiscal year prepared in accordance with generally accepted accounting
principles. If audited financial statements are not available at the time of required filings as set forth
G-1
above, unaudited financial statements shall be filed pending the availability of audited financial
statements. (The information required to be disclosed in this Section 3 shall be referred to herein as the
"Annual Disclosure Filing").
The Obligor reserves the right to modify from time to time the specific types of information
provided or the format of the presentation of such information, to the extent necessary or appropriate in
the judgment of the Obligor; provided that the Obligor agrees that any such modification will be done in a
manner consistent with the Rule.
SECTION 4. SPECIFIED EVENTS. The Obligor agrees to provide or cause to be provided
to the EMMA System, in a timely manner not in excess of ten (10) business days after the occurrence of
the event:
(1)
principal and interest payment delinquencies on the 2015 Bonds;
(2)
non-payment related defaults, if material;
(3)
unscheduled draws on debt service reserves reflecting financial difficulties;
(4)
unscheduled draws on credit enhancements reflecting financial difficulties;
(5)
substitution of credit or liquidity providers, or their failure to perform;
(6)
adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final
determinations of taxability, Notices of Proposed Issue (IRS Form 5701 TEB) or other
material notices or determinations with respect to the tax status of the 2015 Bonds, or
other material events affecting the tax status of the 2015 Bonds;
(7)
modifications to rights of the Holders of the 2015 Bonds, if material;
(8)
2015 Bond calls, if material (other than scheduled mandatory redemptions), and tender
offers;
(9)
2015 Bond defeasances;
(10)
release, substitution, or sale of property securing repayment of the 2015 Bonds, if
material;
(11)
rating changes;
(12)
an Event of Bankruptcy or similar event of an Obligated Person;
(13)
the consummation of a merger, consolidation, or acquisition involving an Obligated
Person or the sale of all or substantially all of the assets of the Obligated Person, other
than in the ordinary course of business, the entry into a definitive agreement to undertake
such an action or the termination of a definitive agreement relating to any such actions,
other than pursuant to its terms, if material; and
(14)
appointment of a successor or additional trustee or the change of name of a trustee, if
material.
G-2
SECTION 5. NOTICE OF FAILURE TO PROVIDE ANNUAL DISCLOSURE
FILING. The Obligor agrees to provide or cause to be provided, in a timely manner, to the EMMA
System, notice of a failure by the Obligor to provide the Annual Disclosure Filing described in Section 3
above on or prior to the date set forth therein.
SECTION 6. REPOSITORIES. As of the date of issuance of the 2015 Bonds, the Obligor
shall provide the information described in Sections 3, 4 and 5 above, to the extent required, to the EMMA
System in an electronic format prescribed by the MSRB at the following Internet address:
http://emma.msrb.org/ or such other address or system as designated by the MSRB in compliance with the
Rule.
SECTION 7. REMEDIES; NO EVENT OF DEFAULT. The Obligor agrees that its
undertaking pursuant to the Rule set forth above is intended to be for the benefit of the Holders of the
2015 Bonds and shall be enforceable by any such Holder; provided that the right to enforce the provisions
of this undertaking shall be limited to a right to obtain specific performance of the Obligor's obligations
hereunder and any failure by the Obligor to comply with the provisions of this undertaking shall not be an
event of default with respect to the 2015 Bonds under the Indenture or any other related financing
document. The covenants contained herein are solely for the benefit of the Holders of the 2015 Bonds
and shall not create any rights in any other parties.
SECTION 8. SEPARATE BOND REPORT NOT REQUIRED; INCORPORATION BY
REFERENCE; FORMAT OF FILING. The requirements of this Disclosure Agreement do not
necessitate the preparation of any separate report addressing only the 2015 Bonds. These requirements
may be met by the filing of a combined bond report; provided, such report includes all of the required
information and is available by November 1. Additionally, the Obligor may incorporate any information
provided in any prior filing with the EMMA System or other information filed with the SEC or included
in any final official statement of the Obligor; provided, such final official statement is filed with the
EMMA System. Any voluntary inclusion by the Obligor of information in its Annual Disclosure Filing
of supplemental information that is not required hereunder shall not expand the obligations of the Obligor
hereunder and the Obligor shall have no obligation to update such supplemental information or include it
in any subsequent report.
Any report or filing with the EMMA System pursuant to this Disclosure Agreement must be
accompanied by such identifying information as is prescribed by the MSRB. Such information may
include, but not be limited to: (a) the category of information being provided; (b) the period covered by
any annual financial information, financial statement or other financial information or operation data; (c)
the issues or specific securities to which such documents are related (including CUSIPs, Obligor name,
state, issue description/securities name, dated date, maturity date, and/or coupon rate); (d) the name of
any Obligated Person other than the Obligor; (e) the name and date of the document being submitted; and
(f) contact information for the submitter of such filing.
SECTION 9. DISSEMINATION AGENTS. The Obligor may, from time to time, appoint or
engage a dissemination agent to assist it in carrying out its obligations under this Disclosure Agreement,
and may discharge any such agent, with or without appointing a successor dissemination agent. If at any
time, the Dissemination Agent shall resign or be removed and a successor shall not be appointed, the
Obligor shall perform all obligations and responsibilities related thereto and described herein. The
Obligor hereby appoints DAC as the Dissemination Agent hereunder. DAC hereby accepts such
appointment and all of the obligations and responsibilities related thereto and described herein.
(a)
The Dissemination Agent shall have only such duties as are specifically set forth in this
Disclosure Agreement. The Dissemination Agent’s obligation to deliver the information at the times and
G-3
with the contents described herein shall be limited to the extent the Issuer has provided such information
to the Dissemination Agent as required by this Disclosure Agreement. The Dissemination Agent shall
have no duty with respect to the content of any disclosures or notice made pursuant to the terms hereof.
The Dissemination Agent shall have no duty or obligation to review or verify any Information or any
other information, disclosures or notices provided to it by the Issuer and shall not be deemed to be acting
in any fiduciary capacity for the Issuer, the Holders of the 2015 Bonds or any other party. The
Dissemination Agent shall have no responsibility for the Issuer’s failure to report to the Dissemination
Agent a Notice Event or a duty to determine the materiality thereof. The Dissemination Agent shall have
no duty to determine, or liability for failing to determine, whether the Issuer has complied with this
Disclosure Agreement. The Dissemination Agent may conclusively rely upon Certifications of the Issuer
at all times.
The obligations of the Issuer under this Section shall survive resignation or removal of the
Dissemination Agent and defeasance, redemption or payment of the 2015 Bonds.
(b)
The Dissemination Agent may, from time to time, consult with legal counsel (either inhouse or external) of its own choosing in the event of any disagreement or controversy, or question or
doubt as to the construction of any of the provisions hereof or its respective duties hereunder, and shall
not incur any liability and shall be fully protected in acting in good faith upon the advice of such legal
counsel. The reasonable fees and expenses of such counsel shall be payable by the Issuer.
SECTION 10. TERMINATION. The Obligor's obligations under this Disclosure Agreement
shall cease (A) upon the legal defeasance, prior redemption, or payment in full of all of the 2015 Bonds,
or (B) when the Obligor no longer remains an Obligated Person with respect to the 2015 Bonds within the
meaning of the Rule, or (C) upon the termination of the continuing disclosure requirements of the Rule by
legislative, judicial or administrative action.
SECTION 11. AMENDMENTS. The Obligor reserves the right to amend the provisions of
this Disclosure Agreement as may be necessary or appropriate to achieve its compliance with any
applicable federal securities law or rule, to cure any ambiguity, inconsistency or formal defect or
omission, and to address any change in circumstances arising from a change in legal requirements, change
in law, or change in the identity, nature, or status of the Obligor, or type of business conducted by the
Obligor. Any such amendment shall be made only in a manner consistent with the Rule and any
amendments and interpretations thereof by the SEC. Additionally, compliance with any provision of this
Disclosure Agreement may be waived. Any such amendment or waiver will not be effective unless this
Disclosure Agreement (as amended or taking into account such waiver) would have complied with the
requirements of the Rule at the time of the primary offering of the 2015 Bonds, after taking into account
any applicable amendments to or official interpretations of the Rule, as well as any change in
circumstances, and until the Obligor shall have received either (i) a written opinion of bond counsel or
other qualified independent special counsel selected by the Obligor that is nationally recognized in the
area of Federal Securities laws that the amendment or waiver would not materially impair the interests of
Holders of the 2015 Bonds, or (ii) the written consent to the amendment or waiver of the Holders of at
least a majority of the principal amount of the 2015 Bonds then outstanding. Annual Information
containing any amended operating data or financial information shall explain, in narrative form, the
reasons for any such amendment and the impact of the change on the type of operating data or financial
information being provided. Additionally, in the year in which any change in accounting principles is
made, the Obligor shall present a comparison (in narrative form and also, if feasible, in quantitative form)
between the financial statements as prepared on the basis of the new accounting principles and those
prepared on the basis of the former accounting principles.
G-4
SECTION 12. OBLIGATED PERSONS. If any person other than the Obligor becomes an
Obligated Person relating to the 2015 Bonds, the Obligor shall use its best efforts to require such
Obligated Person to comply with all provisions of the Rule applicable to such Obligated Person.
DATED this _____ day of ___________, 2015.
By:
Vice President for Administration and Finance
DIGITAL ASSURANCE CERTIFICATION, L.L.C.,
as Dissemination Agent
By:
Title:
G-5
CITY OF TAMPA, FLORIDA • REVENUE AND REVENUE REFUNDING BONDS (THE UNIVERSITY OF TAMPA PROJECT), SERIES 2015

City of Tampa, Florida

Transcription

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