HomeMy WebLinkAboutAgenda - 03-02-2006-8bDTCSHLF draft of February 21, 2006
Prepared by and re. turn after re. carding to:
Robert M. Jessup Jr.
Sanford Holshouser LLP
Post Office Box 2447
Raleigh, NC 27602
STATE OF NORTH CAROLINA }
ORANGE COUNTY )
The collateral is or includes fixtures.
This deed of trust secures future advances.
THIS DEED OF TRUST AND SECURITY AGREEMENT (this "Deed of
Tnist") is dated as of April 1, 2006, and is granted by ORANGE COUNTY,
NORTH CAROLINA, a political subdivision of the State of North Carolina {the
"County"}, to [Deed of Trust Trustee name/address] (the "Deed of Trust
Trustee"}, for the benefit of ORANGE COUNTY PUBLIC FACILITIES
COMPANY, a North Carolina nonprofit corporation (the "Company"}.
RECITALS:
Pursuant to an Installment Financing Contract dated as of April 1, 2006 (the
"Financing Contract"), between the County and the Company, the Company is
providing for an advance of [$24,000,000] for the benefit of the County. The
County will use these funds, together u~•ith other a~-railable funds, to provide for the
acquisition, construction and improvement of certain school facilities and to
prop-~ide for other public improvements.
As a condition to entering into the Financing Contract, the Company has
required the County to secure its obligations under the Financing Contract by this
conveyance of a portion of the school facilities that are to be so constructed (the
"Pledged Facility," as more particularly defined below}, the real property
associated with the Pledged Facility and the other ``Mortgaged Property," as
9336Uv3 j
defined below. The County will construct the Pledged Facility on the real property
described in Exhibit A. The County is the record owner of that real property.
Tlus Deed of Trust is given to secure current advances under the Financing
Contract of [$24,000,000], as well as potential future ads-rances in the total
maximum principal amount of [$75,000,000]. The time during which such future
advances may be made is 15 years from April 1, 2006. The current scheduled date
for final repayment is on or about April 1, 2026.
NOW, THEREFORE,
(1) in consideration of the execution and delivery of the Financing
Contract and other good and valuable consideration, the receipt and sufficiency of
~vluch are acknowledged,
(2) to secure the County's performance of all its covenants under this
Deed of Trust and under the Financing Contract, including the repayment of
amounts advanced pursuant to the Financing Contract, and
(3) to charge the Mortgaged Property, as defined below, with such
payment and performance,
the County sells, grants and conveys to the Deed of Trust Trustee,
successors and assigns forever, in trust, with power of sale, the follouTing
{collectively, the "Mortgaged Property"):
(a} the property described in Exhibit A, and all real property hereafter
acquired by the County in replacement of, or in substitution for, all or any part of
such premises, together with all easements, rights, rights-of-v~Tay and
appurtenances belonging to any such property (the "Pledged Site"); and
(b) the improvements described in Exhibit S and all other improvements
and fixtures no~T or hereafter attached to or used in or on those improvements or
the Pledged Site, including {i) all renewals and replacements thereof and all
additions thereto, (ii) all articles in substitution thereof, and {iii} all building
materials for construction or repair of such impro~Tements upon their delivery to
the Pledged Site {collectively, the "Pledged Facility");
TO HAVE AND TO HOLD the Mortgaged Property with all privileges
and appurtenances thereunto belonging, to the Deed of Tnist Trustee,
9336Uv3 2
successors and assigns forever, upon the trusts, terms and conditions and for the
purposes set out below, in fee simple in trust;
SUBJECT, HOWEVER, to the encumbrances described in Exhibit C (the
"Existing Encumbrances"};
BUT THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST:
if the County pays its "Obligations," as defined below, in full in accordance with
the Financing Contract and this Deed of Trust, and the County complies with all of
the terms, covenants and conditions of the Financing Contract and this Deed of
Trust, this conveyance will be null and void and will be canceled of record at the
County's request and cost, and title will revest as provided by law;
BUT IF, HOWEVER, THERE OCCURS AN EVENT OF DEFAULT
UNDER THE FINANCING CONTRACT, then the Company will have the
remedies provided for in this Deed of Trust, including directing the Deed of Trust.
Trustee to sell the Mortgaged Property under power of sale.
THE COUNTY COVENANTS AND AGREES with the Deed of Trust
Trustee and the Company (and their respective heirs, successors and assigns), in
consideration of the foregoing, as follows:
1. Security Provided By This Deed of Trust
1-1 Security for Payment and Performance. Tlus Deed of Trust
secures the County's payment, as and when the same become due and pa5~~able, of
all amounts payable by the County under the Financing Contract and this Deed of
Trust (the "Obligations"} and the County's timely compliance with all terms,
covenants and conditions of (a) the Financing Contract, {b} this Deed of Trust, (c)
the Trust Agreement dated as of April 1, 2006 {the "Trust Agreement"), beri~Teen
the Company and the Trustee named therein, {d} the [$24,000,000] Certificates of
Participation {Orange County Public Improvement Projects), Series 2006A (the
"Certificates"), executed and delivered pursuant to the Trust Agreement, and (e)
any Additional Certificates, as defined in the Trust Agreement, as may be executed
and deli~Tered pursuant to the Trust Agreement.
1-2 Present and Future Advances. This Deed of Trust is executed to
secure all the County's present and future obligations to the Company related to the
Mortgaged Property. The making of future advances is subject to the terms and
conditions of the Financing Contract, the Trust Agreement and this Deed of Trust.
9336w3 3
The amount of the present obligations secured by this Agreement is [Twenty-four
Million Dollars {$24,000,000)] and the total amount, including present and future
obligations, that may be secured by this Agreement at any one time is Seventy-five
Million Dollars {$75,000,000). The period within ~vluch future obligations may be
incurred is 15 years from April 1, 2006.
1-3 Security Interest in Fixtures. This Deed of Trust is intended to be a
security agreement pursuant to the North Carolina Uniform Commercial Code for
the "Fixtures," as defined below. The County grants to the Company and the Deed
of Trust Trustee a security interest in the Fixtures. The County agrees that the
security interest in the Fixtures granted in this Section 1- ~ will be in addition to,
and not in lieu of, any security interest in the Fixtures acquired by real property
law.
The County agrees to execute, deliver and file, or cause to be filed, in such
place or places as may be required by law, financing statements (including any
continuation statements required by the North Carolina Unform Commercial
Code) in such form as the Company may require to evidence the security interest
in the Fixtures. Upon the occurrence of an Event of Default under this Deed of
Trust, the Company or Deed of Trust Trustee is entitled to exercise all rights and
remedies of a secured party under the North Carolina Uniform Commercial Cade
and may proceed as to the Fixtures in the same manner as provided herein for the
real property.
The "Fixtures" are all articles of personal property attached or affixed to the
Pledged Facility, including but not limited to all apparatus, maclunery, motors,
elevators, fittings and all plumbing, heating, lighting, electrical, laundry,
ventilating, refrigerating, incinerating, air-conditioning, fire and theft protection
and sprinkler equipment, including all renev~Tals and replacements thereof and all
additions thereto, and all articles in substitution thereof, and all proceeds of all the
foregoing in whatever form.
The County is not obliged to renew, repair or replace any inadequate,
obsolete, wonl-out, unsuitable, undesirable or unnecessary Fixture. If the County
determines that any Fixture has become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary, the County may remo~Te such Fixture from the Pledged
Facility and sell, trade-in, exchange or otherwise dispose of it {as a whole or in
part), with an amount equivalent to the fair market value of the Fixture as removed
deemed to be Net Proceeds and subject to the provisions of Section 6.2 of the
Financing Contract.
9336w3 4
1-4 County's Obligation Limited. Notwithstanding any other provision
of this Deed of Trust, the parties intend that this transaction comply ujith North
Carolina General Statutes Section l~U-20. No deficiency judgment may be entered
against the County in violation of such Section 16UA-20.
No provision of this Deed of Trust shall be construed or interpreted as
creating a pledge of the County's faith and credit within the meaning of any
constitutional debt limitation. No provision of this Deed of Trust should be
construed or interpreted as an illegal delegation of go~Ternmental powers, nor as an
improper donation or lending of the County's credit within the meaning of the
North Carolina constitution. The County's taxing power is not and may not be
pledged, directly or indirectly contingently, to secure any moneys due under this
Deed of Trust.
No pro~Tision of this Deed of Trust restricts the County's future issuance of
any of its bonds or other obligations payable from any class or source of the
County's moneys {except to the extent the "Documents," as defined below, restrict
the incurrence of additional obligations secured by the Mortgaged Property).
To the extent of any conflict beh~jeen this Section and any other provision of
this Deed of Trust, this Section takes priority.
1-5 County's Continuing Obligations. The County remains liable for
full performance of all its covenants under this Deed of Trust (subject to the
limitations described in Section 1-4), notwithstanding the occurrence of any event or
circumstances whatsoever, including any of the following:
{a) Any act or omission by the Company, or the Company's waiver of any
right granted or remedy available to it;
(b) The forbearance or extension of time for payment or performance of
any obligation under this Deed of Trust, whether granted to the County or any other
person;
(c) The sale or release of all or part of the Mortgaged Property or the
release of any party who assumes all or any part of such performance; or
(d} Another party's assumption of any of the County's obligations under
this Deed of Trust.
1-6 Releases; Grants of Easements.
9336Uv3 5
(a) So long as no Event of Default is continuing, the Company and the
Deed of Trust Trustee uTill, upon the County's request and at any time, execute and
deliver all documents necessary to effect the release of Mortgaged Property from
the lien of this Deed of Trust upon the County's compliance with the requirements
of this Section.
(b} In connection with the release of a portion (but less than all) of the
Mortgaged Property, the Coulzty must file wTith the Company and the Deed of Trust
Trustee either (i) an appraisal prepared by an Appropriate Consultant, or (ii)
evidence of listed tax value or insured value, in any case showing that the
appraised value of that portion of the Mortgaged Property that is proposed as the
portion that is to remain subject to the lien of the Deed of Trust is not less than
85% of the aggregate outstanding principal component of the Installment
Payments.
(c) In the case of a proposed release of all the Mortgaged Property, the
County must pay to the Trustee (or other fiduciary) an amount (i) which is
sufficient to provide for the payment in full of all Outstanding Certificates in
accordance with [Article III and Article VII] (if applicable) of the Trust Agreement
and {ii) which is required to be used for such paymel~t.
(d) In any event, the County must file with the Company and the Deed
of Trust Trustee (i) a certified copy of a County Board resolution stating the
purpose for ~~jluch the County desires such release, giving an adequate legal
description of the portion of the Mortgaged Property to be released and requesting
such release, (11) a copy of the proposed instnunent of grant or release, (111} a
written application signed by a County Representative requesting such instrument,
and (iv} a certificate executed by a County Representative that no Event of Default
is continuing and that the grant or release will not materially impair the intended
use of the Pledged Facility.
(e) In addition to the provisions for release described above,
(i) The Count~J may from time to time grant easements, licenses,
rights-of--way and other similar rights with respect to any part of the
Mortgaged Property, and the County may release such interests, with or
without consideration. The County must send notice of any such grant or
release to the Company, along with a certificate that such grant or release
will not materially impair the intended use of the Pledged Facility.
93 361)v3 6
(ii) The County may dispose of any inadequate, obsolete, worn out,
undesirable or unnecessary Fixture in accordance with Section 1-3.
2. County's Payment ObliQatian; Company's Advances
2-1 Payment of Obligations; Compliance with Covenants. The County
must pay the Obligations as and when the same became due and payable in the
manner set forth in this Deed of Trust and in the Financing Contract, and must
comply in all respects with all of the terms, covenants, and conditions contained in
this Deed of Trust, in the Financing Contract, in the Trust Agreement and in the
Certificates (together, the "DocLUnents").
2-2 Taxes and Other Governmental Charges. The County must pay, or
cause to be paid, all taxes, assessments and other governmental charges related to
the Pledged Facility as provided in the Financing Contract.
2-3 Insurance. The County must obtain and continually maintain the
insurance coverages (or alternative risk coverages) required by the Financing
Contract.
2-4 Net Proceeds. The Net Proceeds (a) of any payments on
insurance policies arising from any damage to the Mortgaged Property or (b) of
any action or proceeding in condemnation or related to condemnation, as provided
far in the Financing Contract, in any case will be payable and applied as provided
in the Financing Contract.
~-5 Payment of Casts and Attorney's Fees. If the Deed of Trust
Trustee or the Company employs an attorney to assist in the enforcement or
collection of any Obligations, or if the Deed of Trust Trustee or the Company
voluntarily or otherwise becomes a party or parties to any suit or legal proceeding
(including a proceeding conducted under any state ar federal bankruptcy or
insolvency statute) to protect the Mortgaged Property, to protect the lien of this
Deed of Trust, to enforce collection of the Obligations or to enforce compliance by
the County with any of the provisions of the Documents, the County will pay
reasonable attorneys' fees and all of the costs that may reasonably be incurred
{whether or not any suit or proceeding is commenced), and such fees and costs
{together ujith interest at the rate of 8.U0% per year) are secured as Obligations
under this Deed of Trust {but if any such proceeding is adverse to the County, then
only if the Deed of Tnist Trustee or the Company, as the case may be, is a
prevailing party in such action).
9336Uv3 ']
2-6 Advances for Performance of County's Obligations. If the County
fails to perform any of its obligations under the Documents, the Deed of Trust
Trustee and the Company are authorized, but not obligated, to perform or cause to
be performed such obligation. All such expenditL~res, together with interest thereon
at the rate of 8.00°lo per year, are secured as Obligations under this Deed of Trust.
3. County's Other Covenants
3-1 Title Covenants. The County co~Tenants with the Deed of Trust
Trustee and the Company that the County is seized of and has the right to convey
the Mortgaged Property in fee simple, that the Mortgaged Property is free and clear
of all liens and encumbrances other than Existing Encumbrances, that title to the
Mortgaged Property is marketable, and that the County u~•ill forever warrant and
defend title to the Mortgaged Property (subject to the Permitted Encumbrances, as
defined in the Financing Contract} against the claims of all persons.
3-2 Maintenance and Repairs; Additions and Demolition.
(a) The County uTill keep the Mortgaged Property in good order and
repair (reasonable wear and tear excepted) and in good operating condition, will
not commit or permit any waste or any other thing to occur whereby the value or
usefulness of the Mortgaged Property might be impaired, and will make from time
to time all necessary or appropriate repairs.
(b} The County from time to time may make any additions, modifications
or improvements to the Mortgaged Property that it may deem desirable and that do
not materially decrease the value of the Mortgaged Property. All such additions,
modifications and improvements within the boundaries of the Pledged Site will
become a part of the Mortgaged Property. The County v~Till do, or cause to be done,
all such things as may be required by lauT in order fully to protect the Company's
SCCllrlty.
3-3 Environmental Representations, Warranties, Covenants and
Indemnification.
(a} The County warrants and represents as folloti~Ts:
(i) The County has no knou~•ledge and, after reasonable inquiry, no
reason to believe (A) that any industrial use has been made of the Mortgaged
Property, (B) that the Mortgaged Property has been used for the storage,
treatment or disposal of chemicals or any wastes or materials that are
9336Uv3 g
classified by federal, State or local laws as hazardous or toxic substances,
(C) that any manufacturing, landfilling or chemical production has occurred
on the Mortgaged Property, or (D) that there is any asbestos or other
contaminant on, in or ulzder the Mortgaged Property.
{ll) To the County's knowledge, the Mortgaged Property is in
compliance with all federal, State and local environmental laws and
regulations. The County will keep the Mortgaged Property, and the activities
at the Mortgaged Property, in compliance ti~Tith all such en~Tironlnental la«rs
and regulations. The County will, in a timely manner, take all lau~~ful action
necessary to maintain such compliance or to remedy any lack of such
compliance. Any hazardous materials or substances kept on the Mortgaged
Property uTill be used in the routine maintenance and operation of the
Pledged Facility and the Pledged Site and will be used in accordance with
label instructions.
{111} The County will promptly notify the Company of any change in
the nature or extent of any hazardous materials, substances or wastes
maintained on, in or under the Mortgaged Propert~r or used in connection
therewith, and will promptly send to the Company copies of any citations,
orders, notices or other material governmental or other communication
received with respect to any other hazardous materials, substances, wastes or
other environmentally regulated substances affecting the Mortgaged
Property.
(b) To the extent permitted b5' law, the County will indemlufy and hold
the Company and the Deed of Tn~st Trustee harmless from and against (i} any and
all damages, penalties, fines, claims, liens, suits, liabilities, costs (including clean-
up costs), judgments and expenses {including attorneys', consultants' or experts'
fees and expenses) of every kind and nature suffered by or asserted against the
Company or the Deed of Trust Trustee as a direct or indirect result of an~j warranty
or representation made by the County in subsection {a) being false or untrue in any
material respect, or (ii) any requirement under any lau~• or regulation which requires
the elimination or removal of any hazardous materials, substances, ti~Tastes or other
environmentally regulated substances by the Company, the County or any
transferee or assignee of the County of the Company.
{c) The County's obligations under this Section will continue in effect
nohvithstanding satisfaction of the Obligations or foreclosure under this Deed of
Trust or delivery of a deed in lieu of foreclosure.
9336Ud' ~)
4. The Deed of Trust Trustee
4-1 Deed of Trust Trustee's Liability. The Deed of Trust Trustee ~~Till
suffer no liability by virtue of acceptance of this trust except such as may be
incurred as a result of the Deed of Trust Trustee's failL~re to account for the
proceeds of any sale under this Deed of Trust.
4-2 Substitute Trustees. If the Deed of Trust Trustee dies, becomes
incapable of acting or renounces trust, or if for any reason the Company
desires to replace the Deed of Tnist Trustee, then the Compan}r has the unqualified
right to appoint one or more substitute or successor Deed of Trust Trustees by
instruments filed for registration in the office of the Register of Deeds where this
Deed of Trust is recorded. Any such removal or appointment may be made at any
time ~~jithout notice, ~~jithout specifying any reason therefor and without any court
approval. Any such appointee becomes vested with title to the Mortgaged Property
and with all rights, powers and duties conferred upon the Deed of Trilst Trustee by
this Deed of Trust in the same manner and to the same effect as though such Deed
of Trust Trustee were named as the original Deed of Trust Trustee.
5. Defaults and Remedies; Foreclosure
5-1 Defaults and Remedies. Upon the occurrence and continuation
of an Event of Default, the Company may pursue its rights and remedies as
pro~Tided under the Financing Contract and this Deed of Trust.
5-2 Foreclosure; Sale under Po~yer of Sale.
{a) ~Zight to foreclosure or sale. Upon the continuation of an Event of
Default, at the Company's request, the Deed of Trust Trustee must foreclose this
Deed of Trust byT judicial proceedings or, at the Company's option, the Deed of
Trust Trustee must sell {and is empo~Tered to sell) all or any part of the Mortgaged
Property {and if in part, any such sale in no way adversely affects the lien created
by this Deed of Trust against t11e remainder) at public sale to the last and highest
bidder for cash {free of any equity of redemption, homestead, dower, curtest' or
other exemption, all of wluch the County expressly waives to the extent permitted
by law) after compliance with applicable State lauJs relating to foreclosure sales
under pou~•er of sale. The Deed of Trust Trustee ~~•ill execute and deliver a proper
deed or deeds to the successful purchaser at such sale.
J3 860v2 10
(b) Company's Bid. The Company may bid and become the purchaser
at any sale under this Deed of Trust. In lieu of paying cash therefor, the Company
may make settlement far the purchase price by crediting against the Obligations
the proceeds of sale net of sale expenses, including the Deed of Tnist Trustee's
commission, and after payment of such taxes and assessments as may be a lien on
the Mortgaged Property superior to the lien of this Deed of Trust (unless the
Mortgaged Property is sold subject to such liens and assessments, as provided by
law).
(c} County's Bid. The County may bid for all or any part or parts of
the Mortgaged Property at any foreclosure sale, but the County may not bid less
than an amount sufficient to provide for full payment of the Obligations unless the
Company otherwise consents in writing.
(d) Successful bidder's deposit. At any sale the Deed of Tnist Trustee
may, at its option, require any successful bidder (other than the Company)
immediately to make a deposit with the Deed of Trust Trustee against the
successful bid in the form of cash or a certified check in an amount of up to 5% of
the sale price. Notice of any such requirement need not be included in the
advertisement of the notice of such sale.
(e) Application of sale proceeds. The Deed of Trust Trustee will apply
the proceeds of any foreclosure sale in the manner and in the order prescribed by
State la~v, it being agreed (i} that the expenses of any such sale will include a
commission to the Deed of Tnist Tnistee equal to one-half of one percent of the
gross sales price (but not exceeding a total of $25,000 for all ser~Tices performed
by the Deed of Trust Trustee under this Deed of Tnist, and (ii) that any proceeds of
any such sale remaining after the payment of all obligations and the prior
application thereof in accordance with State law will be paid to the County.
5-3 Possession of Mortgaged Property. Upon the continuation of any
E~Tent of Default, the Company, to the extent permitted by la~v, is authorized to (a)
take possession of the Mortgaged Property, with or without legal action, (b) lease
the Mortgaged Property, (c} collect all rents and profits therefrom, with or without
taking possession of the Mortgaged Property, and (d} after deducting all costs of
collection and administration expenses, apply the net rents and profits to the
payment of necessary maintenance and insurance costs, and then apply such
amounts to the County's account and in reduction of the Obligations in accordance
with the protrisions of [Section 8.11] of the Tnist Agreement. The Company ti~rill
be liable to account only for rents and profits it actually recei~res.
93 360v2 11
6. Miscellaneous
6-1 Notices.
(a} Any communication provided for in this Deed of Trust must be in
writing.
(b) Any communication under this Deed of Trust will be sufficiently
given and deemed given when delivered by hand or on the date sho~~Tn as the date
of delivery on a United States Postal Service return receipt, if addressed as follou~•s:
{i) if to the County, to Orange County Manager, Attention:
Notice under 2006A COPS Financing Deed of Trust, Post Office Box
8181, Hillsborough, North Carolina 27278;
(ii) if to the Deed of Trust Trustee, to ,
Attention: Notice under Financing Deed of Trust for Orange County,
2006A COPS Financing, ;
(iii} if to the Company, to Orange County Public Facilities
Company, Attention: Notice under Financing Deed of Trust for 2006A
Orange County COPS Financing, ;and
(iv} if to the Trustee, to The Bank of New York, Attention:
Corporate Trust Department, Regarding: Notice under Financing Deed of
Trust for 2006A Orange County (North Carolina) COPS Project, 10161
Centurion Parkwa~~~, Jackson-rille, FL 32256.
(c) Any communication sent under this Deed of Trust must be sent to the
County and the Trustee along with any other parties to which the communication
may be addressed.
(d} Any addressee may designate additional or different addresses for
commu~ucations by notice given under this Section to each of the others.
6-2 Successors; Assignments.
(a} This Deed of Trust is binding upon, u~•ill inure to the benefit of, and is
enforceable by the County, the Deed of Trust Trustee, the Company and any
registered owner of Certificates, and their respective successors and assigns.
93 360v2 1
{b) Except as otherwise provided in this Deed of Trust or in the Financing
Contract, the County may not sell, lease, transfer or otherwise dispose of all or any
part of the Mortgaged Property or any interest therein without the Company's prior
uTritten consent. The Compan~j must not unreasonably withhold its consent.
(c) The Company is assigning substantially all of its rights under this
Deed of Trust and under the Financing Contract to the Trustee pursuant to
the Trust Agreement, ~~~ithaut recourse against the Company. The Trustee is
entitled to all the rights provided to the Company under this Deed of Trust,
except for those rights not assigned to the Trustee under the Trust Agreement.
6-3 No Marshalling. The County waives any and all rights to require
marshalling of assets in connection with the exercise of any remedies provided in
this Deed of Trust or as permitted by law.
6-4 Definitions. All capitalized terms used in this Deed of Trust.
and not otherwise defined have the meanings ascribed to them in the Financing
Contract or the Trust Agreement.
6-5 Governing La~`~; Forum. The County, the Company and the
Deed of Trust Trustee intend that North Carolina lau~• will govern this Deed of
Trust. To the extent permitted by law, the County, the Company and the Deed of
Trust Trustee agree that any action brought with respect to this Deed of Trust must
be brought in the North Carolina General Court of Justice in Orange County, North
Carolina.
6-6 Limitation of Liability of Officers and Agents. No officer, agent
or employee of the County will be subject to any personal liability or
accountability by reason of the execution of this Deed of Trust or any other
documents related to the transactions contemplated by this Deed of Trust. Such
officers or agents are deemed to execute such documents in their official capacities
only, and not in their individual capacities. This Section does not relieve an officer,
agent or employee of the County from the performance of any official duty
provided by law.
6-7 Covenants Running with the Land. All covenants contained in this
Deed of Trust or in the Financing Contract run with the real estate encumbered by
this Deed of Trust.
6-8 Further Instruments. Upon the request of the Company or the Deed
of Trust Trustee, the County will execute, acknowledge and deliver such further
93 360v2 13
instruments reasonably necessary or desired by the Company or the Deed of Trust
Trustee to carry out more effectively the purposes of this Deed of Trust or any other
document related to the transactions contemplated by this Deed of Trust, and to
subject to the liens and security interests hereof and thereof all or any part of the
Mortgaged Property intended to be given or conveyed hereunder or thereunder,
whether now given or conveyed or acquired and conveyed subsequent to the date of
this Deed of Trust.
6-9 Severability. If any provision of this Deed of Tnist is
determined to be unenforceable, that will not affect any other provision of this
Deed of Trust.
6-1Q Non-Business Days. If the date for making any payment or the
last day for performance of any act or the exercising of any right is not a Business
Day, such payment may be made or act performed or right exercised on or before
the next succeeding Business Day.
6-11 Entire Agreement; Amendments. This Deed of Trust, together
with the other Documents, constitutes the County's entire agreement uTith the
Company, the Trustee and the Deed of Trust Trustee with respect to its general
subject matter. This Deed of Trust may not be changed except in accordance with
[Article X] of the Trust Agreement.
(The ~~emciinder of this ~~rge lies been left bltink intentionully.J
93 360v2 j 4
IN WITNESS WHEREOF, the County has caused this instrument to be
signed, sealed and delivered as of the day and year first above written by duly
authorized officers.
ATTEST: (SEAL)
ORANGE COUNTY,
NORTH CAROLINA
Donna S. Baker Barry Jacobs
Clerk, Board of Commissioners Chair, Board of Commissioners
STATE OF NORTH CAROLINA;
ORANGE COUNTY
I, a Notary Public of such County and State, certify that Barry Jacobs and
Donna S. Baker personally came before me this day and acknowledged that they
are the Chair and Clerk, respectively, of the govenung Board of Commissioners of
Orange County, North Carolina, and that by authority duly given and as the act of
such County, the foregoing instrument was signed in the County's name by such
Chair, sealed with its corporate seal and attested by such Clerk.
WITNESS my hand and official stamp or seal, this day of April, 2000.
[SEAL]
My commission expires:
[Deed of Trust and Security Agreement
for the benefit of Orange County Public
Facilities Company, dated as of April 1, 2006]
Notary Public
93 360v2 15
EXHIBIT A -- Real Property Description
[Gravelly Hill Middle School site description to came]
EXHIBIT B -- Pledged Facility Description
[Gravelly Hill Middle School description, to come]
EXHIBIT C -- Existing Encumbrances
[to come]
93 360v2 1 ~