HomeMy WebLinkAboutAgenda 05-03-22; 8-j - Adoption of the Final Financing Resolution Authorizing the Issuance of Installment Purchase Financing for Various Capital Investment Plan Projects 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: May 3, 2022
Action Agenda
Item No. 8-j
SUBJECT: Adoption of the Final Financing Resolution Authorizing the Issuance of
Installment Purchase Financing for Various Capital Investment Plan Projects
DEPARTMENT: Finance and Administrative
Services
ATTACHMENT(S): INFORMATION CONTACT:
Attachment 1 . Resolution Approving Gary Donaldson, (919) 245-2453
Financing Terms and Rebecca Crawford, (919) 245-2152
Documents for 2022 Robert Jessup, (919) 933-9891
Installment Financing
Attachment 2. Deed of Trust
Attachment 3. Trust Agreement
PURPOSE: To adopt the final financing resolution authorizing the issuance of up to $43,000,000
in installment financing to finance capital investment projects and equipment for the fiscal year.
The financing will also include amounts to pay transaction costs.
BACKGROUND: At the April 5, 2022 Business meeting, the Board of County Commissioners
conducted a public hearing and was provided preliminary information of capital projects and
equipment financing and refinancing existing debt obligations. The Board made a preliminary
determination to finance costs of these projects and equipment, and financing costs by the use of
an installment financing, as authorized under Section 160A-20 of the North Carolina General
Statutes.
With the resolution, the Board will be giving final approval for the financing. It substantially
approves the final financing documents, and authorizes staff to complete the closing. Staff
anticipates receiving the required approval of the Local Government Commission on the afternoon
of May 3, and then closing the financing by mid-May. Between now and then, staff will work with
the lender and other financing team members to confirm final details of the funding and County
payment arrangements so staff can address the remaining blanks in the documents. This process
is consistent with past practice.
FINANCIAL IMPACT: A preliminary estimate of maximum debt service applicable to the capital
investment projects and equipment financing would require the highest debt service payment of
$4.14 million in FY 2024 (based on current market interest rates). The tax rate equivalent for the
estimated highest debt service payment is approximately $0.0193 (1.93 cents).
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SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goals are applicable
to this item:
• GOAL: FOSTER A COMMUNITY CULTURE THAT REJECTS OPPRESSION AND
INEQUITY
The fair treatment and meaningful involvement of all people regardless of race or color;
religious or philosophical beliefs; sex, gender or sexual orientation; national origin or ethnic
background; age; military service; disability; and familial, residential or economic status.
• GOAL: CREATE A SAFE COMMUNITY
The reduction of risks from vehicle/traffic accidents, childhood and senior injuries, gang
activity, substance abuse and domestic violence.
• GOAL: ENABLE FULL CIVIC PARTICIPATION
Ensure that Orange County residents are able to engage government through voting and
volunteering by eliminating disparities in participation and barriers to participation.
ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal
impacts are applicable to this agenda item:
• ENERGY EFFICIENCY AND WASTE REDUCTION
Initiate policies and programs that: 1) conserve energy; 2) reduce resource consumption;
3) increase the use of recycled and renewable resources; and 4) minimize waste stream
impacts on the environment.
• RESULTANT IMPACT ON NATURAL RESOURCES AND AIR QUALITY
Assess and where possible mitigate adverse impacts created to the natural resources of
the site and adjoining area. Minimize production of greenhouse gases.
RECOMMENDATION(S): The Manager recommends that the Board approve the final financing
resolution authorizing the steps to proceed with the financing of the stated capital projects and
equipment and refinancing of existing obligations.
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RES-2022-023 Attachment 1
Resolution providing final approval of terms and
documents for Spring 2022 installment financing
Introduction --
The Board of Commissioners has previously determined to carry out various
public improvements and acquisitions, as identified in the County's capital
improvement plan and as described on Exhibit A. The Board has determined to carry
out the financings by using an installment financing, as authorized under Section
160A-20 of the North Carolina General Statutes. In an installment financing, the
County secures the financing by its promise to pay and a mortgage-like interest in
some or all of the property to be acquired or improved, but not by a pledge of specific
revenues or the taxing power.
County staff recommends that the County accept a proposal from Truist
Commercial Equity, Inc. (the "Lender") to provide the financing. County staff has made
available to the Board the draft documents listed on Exhibit B (the "Documents"),
which relate to the County's carrying out the financing plan.
This resolution provides the County Board's final approval of the financing
terms and the substantially final financing documents.
The Board of Commissioners of Orange County, North Carolina,
RESOLVES, as follows:
1. Determination To Proceed with Financing -- The Board confirms its
decision to carry out the proposed installment financing as described above, to
provide financing for new public improvements and acquisitions. The County will
carry out the projects with financing from the Lender substantially in accordance
with a financing proposal from the Lender dated March 15, 2022.
Under the financing plan, the County will receive funds from the Lender to
carry out the projects. The County will repay the funds over time, with interest. The
County will secure its repayment obligation by granting a mortgage-like interest in
some or all of the following facilities listed on Exhibit C.
2. Approval of Documents;Direction To Execute Documents--The Board
approves the forms of the Documents submitted to this meeting. The Board
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authorizes the Chair and the County Manager,or either of them,to execute and deliver
the Documents when in final form. The Documents in their respective final forms
must be in substantially the forms presented,with changes as the Chair or the County
Manager may approve. The execution and delivery of any Document by an authorized
County officer will be conclusive evidence of that officer's approval of any changes.
The Documents in final form, however, must be consistent with the financing
plan described in this resolution and must provide (a) for the amount financed by the
County not to exceed $43,000,000, (b) for an annual interest rate or rates not to
exceed 2.41% (in the absence of default, or a change in tax status), and (c) for a
financing term not to extend beyond February 1, 2043. The amount financed under
the Documents may include amounts to pay financing expenses and other necessary
and incidental costs.
3. Officers To Complete Closing - The Board authorizes the County
Manager, the Finance Officer and all other County officers and employees to take all
proper steps to complete the financing in accordance with this resolution.
The Board authorizes the County Manager to hold executed copies of all
financing documents authorized by this resolution in escrow on the County's behalf
until the conditions for their delivery have been completed to her satisfaction, and
then to release the executed documents for delivery to the appropriate persons or
organizations.
Without limiting the generality of the previous paragraphs, the Board
specifically authorizes the County Manager (a) to approve and enter into, on behalf of
the County, any additional agreements appropriate to carry out the financing plan
contemplated by this resolution, and (b) to approve changes to any documents
previously signed by County officers or employees, provided that the changes do not
substantially alter the intent from that expressed in the form originally signed. The
County Manager's authorization of the release of any document for delivery will
constitute conclusive evidence of her approval of any changes.
In addition, the County Manager and the Finance Officer are authorized to take
all appropriate steps for the efficient and convenient carrying out of the County's on-
going responsibilities with respect to the financing. This authorization includes,
without limitation, contracting with third parties for reports and calculations that may
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be required under the Documents, this resolution or otherwise with respect to the
financing.
4. Additional Provisions - The Board authorizes all County officers and
employees to take all further action as they may consider desirable to carry out the
purposes of this resolution. In particular, the Board directs the Clerk to this Board to
apply the County's seal to the final form Documents, and to attest to the application
of the seal. The Board ratifies all prior actions of County officers and employees to
this end. Upon the unavailability or refusal to act of the County Manager, the Chair or
the Finance Officer,any other of those officers may assume any responsibility or carry
out any function assigned in this resolution. In addition, the Vice Chair or any Deputy
or Assistant Clerk may carry out or exercise any rights or responsibilities assigned in
this resolution to the Chair or the Clerk. The Board repeals all other Board
proceedings, or parts of proceedings, in conflict with this resolution, to the extent of
the conflict. This resolution takes effect immediately.
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Exhibit A - list of,projects to be financed with estimated amounts
Project Est. Amount ($)
Lake Orange Dam Remediation 908,438
Parks and Rec R&R 203,268
Conservation Easement 262,000
Neuse River Rules Nutrient Management 56,198
Solid Waste Vehicle Replacements 516,739
Solid Waste Equipment Replacement- Grinder 833,500
C&D Construction Phase II 230,643
High Rock Improvements 470,000
Facility Accessibility, Safety and Security
Improvements 195,584
HVAC Projects 106,996
Major Plumbing Repairs 43,960
Orange County Southern Branch Library (County
portion) 18,965,438
Parking Lot Improvements 241,648
Phillip Nick Waters Building Remediation 545,242
Roof& Building Fagade Projects 434,778
Criminal Justice Resource Department 17,598
Southern Campus Expansion 299,422
Communication System Improvements 157,755
Emergency Services Substations
Efland EMS & Medical Examiners Station 5,438,929
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Waterstone EMS Station & Location Study 3,506,703
Sportsplex - Facility Maintenance/Replacement 104,333
ITGC 150,383
IT Infrastructure 1,507,944
Sheriff Vehicles 255,473
EMS Vehicles 439,092
DEAPR Vehicles 68,650
Animal Services Vehicles 47,666
OPT Vehicle Replacement 110,627
Chapel Hill - Carrboro Schools
Technology 908,047
Roofing 484,607
Recurring Capital 1,810,800
Fire Safety 164,172
Supplemental Deferred 217,568
Stormwater Management 105,295
Orange County Schools
Recurring Capital 1,189,200
Supplemental Deferred 320,400
TOTAL $41,319,098
The County will also use additional loan proceeds to pay financing costs.
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Exhibit B -- Draft Documents
(a) A draft dated April 26, 2022, of a Fourth Supplemental Trust Agreement
to be dated on or about May 11, 2022, between the County and The Bank of New York
Mellon Trust Company, N.A. (the "Trustee"), providing for the advance of funds to the
County, for the issuance of two limited obligation bonds to the Lender, for the
County's obligation to repay the amounts advanced, and for the County's
responsibilities for the use and care of the collateral
(b) A draft dated April 26, 2022, of a Deed of Trust Supplement#4 to be dated
on or about May 11, 2022, from the County to a deed of trust trustee for the Trustee's
benefit,providing for a security interest in property to secure the County's repayment
obligations and its other obligations under the financing documents.
Exhibit C - Potential Collateral Facilities
The County's Government Services Annex at 208 S. Cameron St., along with the
County's Link Center and the District Attorney's office building in Hillsborough
The County's Emergency Operations Center on Meadowlands Drive in Hillsborough
The Northern County Campus land and buildings
The County's Southern Campus land and buildings in Chapel Hill
The planned Efland EMS and Medical Examiner's Station
The County's interest in the Carrboro 203/Southern Branch Library Building
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Attachment 2 9
s*h draft of Mri126
Prepared by and return after recording to:
Robert M. Jessup Jr.
Sam Smotherman Barnes
Sanford Holshouser LLP
209 Lloyd St., Suite 350
Carrboro, NC 27510
DEED OF TRUST SUPPLEMENT #4
PINS 9874-15-3612 9864-39-4358
9874-80-2738 9880-00-8527
9788-15-1996 9844-78-8137
Brief description:
Link Center Building at 200 S. Cameron St., Government Services
Annex at 208 S. Cameron St. and District Attorney's office building at 144 E.
Margaret Lane, all in Hillsborough
North Campus Site off Highway 70
Emergency Operations Center on Meadowlands Drive in Hillsborough
Southern Campus Site off Homestead Rd. in Chapel Hill
Visitors' Center on Franklin St. in Chapel Hill
New County EMS building, 3800 US 70 West, Efland
County's interest in the 203 Building/Southern Branch Library
Building at 203 S. Greensboro Street, Carrboro
Supplements RB 6486, Page 413; RB 6613, Page 17; RB 6633,
Page 1121; and RB 6657, Page 704.
STATE OF NORTH CAROLINA ) The collateral is or includes fixtures.
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ORANGE COUNTY ) This instrument secures future advances.
DEED OF TRUST SUPPLEMENT #4
THIS DEED OF TRUST SUPPLEMENT #4 (this "Supplement") is dated as of
May 11, 2022, and is granted by ORANGE COUNTY, NORTH CAROLINA, a political
subdivision of the State of North Carolina (the "County"), to Amy K. Johnson, as
trustee (the "Deed of Trust Trustee"), for the benefit of THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,AS TRUSTEE ("BNY-M").
Introduction
The County is issuing its $41,070,000 Limited Obligation Bonds, Series 2022
(the "2022 Bonds"), under a Fourth Supplemental Trust Agreement dated as of May
11, 2022 (the "2022 Agreement"), between the County and BNY-M, as trustee. The
County is issuing the 2022 Bonds to provide funds, to be used together with other
available funds, to acquire, construct, equip and otherwise improve a variety of
County facilities and assets, as well as to pay financing costs and other related costs.
The 2022 Agreement supplements a Trust Agreement dated as of June 1,
2018 (the "2018 Agreement"), between the County and BNY-M, as trustee, which the
parties previously supplemented by (a) a First Supplemental Trust Agreement dated
as of April 1, 2019, (b) a Second Supplemental Trust Agreement dated as of October
1, 2019, and (c) a Third Supplemental Trust Agreement dated as of May 1, 2020 (the
2018 Agreement as supplemented, the "Prior Agreement"). Under the Prior
Agreement, the County has issued its $7,510,000 Limited Obligation Bonds, Series
2018, its $14,135,000 Limited Obligation Bonds, Series 2019A, its $29,745,000
Limited Obligation Bonds, Series 2019B, and its $40,731,000 Limited Obligation
Bond, Series 2020 (together, the "Prior Bonds"). The County secured its repayment
obligation with respect to the Prior Bonds by granting a security interest in certain
Mortgaged Property, as defined in the Existing Deed of Trust (as defined below).
The parties have now agreed that the Mortgaged Property will also secure the
County's repayment obligations with respect to the 2022 Bonds as provided in the
2022 Agreement.
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Accordingly, this Supplement supplements the Deed of Trust and
Security Agreement granted by the County for the benefit of BNY-M dated as of
June 1, 2018 (the "2018 Deed of Trust") and recorded at RB 6486, Page 413, Orange
County Registry, which has been previously supplemented by instruments recorded
at RB 6613, Page 17, RB 6633, Page 1121, and RB 6657, Page 704, Orange County
Registry (those instruments, together with the 2018 Deed of Trust, are referred to
as the "Existing Deed of Trust" in this Supplement). The Existing Deed of Trust, as
modified by this Supplement, is referred to as the "Modified Deed of Trust" in this
Supplement.
The Mortgaged Property includes the real property described in Exhibit A.
The County is the record owner of that real property.
The County executes and delivers this Supplement to secure current advances
under the 2022 Agreement of$41,070,000, as well as (a) total outstanding advances
with respect to the Prior Bonds of approximately $76,837,000, and (b) potential
future advances up to a total maximum principal amount outstanding at any one time
of$200,000,000, all as described and pursuant to the Existing Deed of Trust. The time
during which such future advances may be made is 30 years from June 1, 2018. The
current scheduled date for final repayment of amounts secured under the Modified
Deed of Trust is February 1, 2043.
NOW, THEREFORE,
(1) in consideration of the execution and delivery of the 2022 Bonds and
the 2022 Agreement and other good and valuable consideration, the receipt and
sufficiency of which the County acknowledges,
(2) to secure the County's performance of all its covenants under this
Supplement, the Existing Deed of Trust, the 2022 Agreement, the Prior Agreement,
the 2022 Bonds and the Prior Bonds (together, the "Loan Documents"), and
(3) to charge the Mortgaged Property with that payment and performance,
the County sells, grants and conveys to the Deed of Trust Trustee, her successors
and assigns forever, in trust, with power of sale, the Mortgaged Property, as defined
in the 2019B Deed of Trust, which includes the property described in Exhibit A;
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TO HAVE AND TO HOLD the Mortgaged Property with all privileges and
appurtenances belonging thereunto, to the Deed of Trust Trustee, her 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 B,-
BUT
;BUT THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST: if the
County pays its "Obligations," as defined in Section 1-1 below, in full and in
accordance with the Loan Documents, and the County complies with all the terms,
covenants and conditions of the Loan Documents, 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
LOAN DOCUMENTS, then BNY-M will have the remedies provided for in this
Modified Deed of Trust, including directing the Deed of Trust Trustee to sell the
Mortgaged Property under power of sale.
The County covenants with the Deed of Trust Trustee and BNY-M 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 Permitted Encumbrances, as defined in the Prior Agreement and the 2022
Agreement, that title to the Mortgaged Property is marketable, and that the County
will forever warrant and defend title to the Mortgaged Property (subject to the
Permitted Encumbrances) against the claims of all persons.
THE COUNTY COVENANTS AND AGREES with the Deed of Trust Trustee and
BNY-M (and their respective heirs, successors and assigns), in consideration of the
foregoing, as follows:
1. Security Provided
1-1 Security for Payment and Performance. The Modified Deed of
Trust secures the County's payment, as and when the same become due and
payable, of all amounts payable by the County under the Loan Documents (the
"Obligations") and the County's timely compliance with all terms, covenants and
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conditions of (a) the Loan Documents and (b) any Additional Bonds, as defined in
and as may be executed and delivered pursuant to the Prior 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 Trustee related to the
Mortgaged Property as described in and pursuant to the Modified Deed of Trust. The
total amount, including present and future obligations, that may be secured by this
Modified Deed of Trust at any one time is $200,000,000. The period within which
future obligations maybe incurred is 30 years from June 1, 2018.
1-3 Existing Deed of Trust Otherwise Confirmed. Except as provided by
this Supplement, the County ratifies, approves and confirms the terms of the
Existing Deed of Trust.
1-4 County's Obligation Limited. Notwithstanding any other provision
of the Loan Documents, the parties intend that this transaction will comply with
North Carolina General Statutes Section 160A-20. No deficiency judgment may be
entered against the County in violation of Section 160A-20.
No provision of this Supplement should 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 Supplement should be construed
or interpreted as an illegal delegation of governmental 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 Supplement.
Nothing in this Section is intended to impair or prohibit foreclosure under the
Modified Deed of Trust if the Obligations are not paid when due or otherwise upon
the occurrence of an Event of Default under the Loan Documents.
No provision of this Supplement 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 Loan Documents restrict the incurrence of
additional obligations secured by the Mortgaged Property).
To the extent of any conflict between this Section and any other provision of
this Supplement, this Section takes priority.
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2. Miscellaneous
2-1 Notices.
(a) Any communication provided for in this Supplement must be in English
and must be in writing, and "writing" includes facsimile transmission and electronic
mail.
(b) For the purposes of this Supplement, any communication sent by
facsimile transmission or electronic mail will be deemed to have been given on the
date the communication is similarly acknowledged by a County Representative (in
the case of the County) or other authorized representative (in the case of any other
party). No such communication will be deemed given or effective without such an
acknowledgment. Any electronic communication to the Trustee is subject to the
provisions of Section 9.02 of the 2018 Agreement.
(c) Any other communication under this Supplement will be deemed given
on the delivery date shown on a United States Postal Service certified mail receipt,
or a delivery receipt (or similar evidence) from a national commercial package
delivery service, if addressed as follows:
(i) if to the County, to Orange County Manager, Re: Notice under
2022 LOB Deed of Trust, Post Office Box 8181, Hillsborough, NC 27278
(ii) if to the Deed of Trust Trustee, to Deed of Trust Trustee, c/o
The Bank of New York Mellon Trust Company, N.A., Re: Notice for 2022
Orange County (NC) Financing, 10161 Centurion Parkway North,
Jacksonville, FL 32256
(iii) if to BNY-M, to The Bank of New York Mellon Trust Company,
N.A., Re: Notice for 2022 Orange County (NC) Financing, 10161 Centurion
Parkway North, Jacksonville, FL 32256
(c) The County must send a copy of any notice it sends or received under
this Supplement to Truist Commercial Equity, Inc., 1414 Raleigh Road, Chapel Hill,
NC 27517,Attention: Jeff Stoddard with a copy to Tax-Exempt Lending Group, Truist
Bank, 150 Stratford Road, 2nd Floor, Winston-Salem, NC 27104, Attention: Alex
Johnston.
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(d) Any addressee may designate additional or different addresses for
communications by notice given under this Section to each of the others. The County
must send copies of any notices it sends to the Deed of Trust Trustee also to BNY-M.
2-2 Definitions. All capitalized terms used in this Supplement and not
otherwise defined have the meanings ascribed to them otherwise in the Loan
Documents.
2-3 Governing Law; Forum. The County, BNY-M and the Deed of Trust
Trustee intend that North Carolina law will govern this Supplement and all matters
of its interpretation. To the extent permitted by law, the County, BNY-M and the
Deed of Trust Trustee agree that any action brought with respect to this Supplement
must be brought in the North Carolina General Court of Justice in Orange County,
North Carolina.
2-4 Limitation of Liability of Officers and Agents. No officer, agent or
employee of the County, BNY-M or the Deed of Trust Trustee will be subject to any
personal liability or accountability by reason of the execution of this Supplement or
any other documents related to the transactions contemplated by this Supplement.
Those officers or agents are deemed to execute documents in their official capacities
only, and not in their individual capacities. This Section does not relieve any officer,
agent or employee from the performance of any official duty provided by law.
2-5 Covenants Run with the Land. All covenants contained in the
Modified Deed of Trust run with the real estate encumbered by the Modified Deed of
Trust.
2-6 Further Instruments. Upon the request of BNY-M or the Deed of Trust
Trustee, the County will execute, acknowledge and deliver any further instruments
reasonably necessary or desired by BNY-M or the Deed of Trust Trustee to carry out
more effectively the purposes of this Supplement or any other document related to
the transactions contemplated by this Supplement, and to subject to the liens and
security interests of this Supplement all or any part of the Mortgaged Property
intended to be given or conveyed, whether now given or conveyed or acquired and
conveyed subsequent to the date of this Supplement.
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2-7 Entire Agreement; Amendments. This Supplement, together with
the other Loan Documents, constitutes the entire agreement with respect to its
general subject matter between the County, the Trustee and the Deed of Trust
Trustee. This Supplement may not be changed except in accordance with the other
Loan Documents. The Deed of Trust Trustee's consent is not required for any
changes.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the County has caused this instrument to be signed,
sealed and delivered by duly authorized officers, as of the day and year first above
written.
(SEAL)
ATTEST: ORANGE COUNTY,
NORTH CAROLINA
By:
Laura Jensen Bonnie B. Hammersley
Clerk, Board of Commissioners County Manager
STATE OF NORTH CAROLINA;
ORANGE COUNTY
I, a Notary Public of such County and State, certify that Bonnie B. Hammersley
and Laura Jensen personally came before me this day and acknowledged that they
are the County Manager and the Clerk of the Board of Commissioners, respectively,
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
County Manager, sealed with its corporate seal and attested by such Clerk.
WITNESS my hand and official stamp or seal, this day of May, 2022.
[SEAL]
Notary Public
My commission expires:
[Deed of Trust Supplement #4 dated as of May 11, 2022,
for the benefit of The Bank of New York Mellon Trust Company, N.A., as Trustee]
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EXHIBIT A - Pledged Sites Description
TRACT 1 [Government Service Annex, Link Center and District Attorneys'
Office]:
BEING that certain property containing 9.202 acres, more or less, adjacent
to South Cameron Street as shown on a plat entitled "Recombination Survey
Properties of Orange County" as prepared by Riley Surveying, P.A. dated
June 5, 2007 and recorded June 7, 2007 in Plat Book 102, Page 36, Orange
County Register of Deeds.
PIN Number: 9874-15-3612
TRACT 2 [North Campus SiteL
BEING all of that 19.334-acre parcel, more or less, shown on survey entitled
"Recombination Survey, Property of Orange County" dated as of September
6, 2019 and recorded in Plat Book 120, Page 159, Orange County Registry.
PIN Number: 9864-39-4358
TRACT 3 [E-911 Center in the Meadowlands ---Approximately 22,000-square
foot building located on Meadowlands Drive, Hillsboroughl
BEGINNING at a point located in the eastern margin of the 60 foot wide
right-of-way of Meadowlands Drive, said beginning point being further
located South 12° 12' 30" West 360.84 feet from a nail located at the
intersection of the center line of Meadowlands Drive with the center line of
the 60 foot wide right-of-way of N.C. Highway 70; and running thence from
said beginning point South 73° 36' 46" East 407.39 feet to a point; thence
South 04° 48' 02" West 329.70 feet to a point; thence North 67° 16' 01" West
494.62 feet to a point located in the aforesaid easterly margin of the right-of-
way of Meadowlands Drive; thence with said easterly margin of the right-of-
way of Meadowlands Drive in two calls as follow: (1) with the arc of a
circular curve to the left having a radius of 525.05 feet (and a chord course
and distance of North 23° 54' 22" East 134.12 feet), an arc distance of
134.49 feet to a point; thence (2) North 16° 34' 02" East 135.34 feet to the
point or place of BEGINNING; containing 3.00 acres and being Lot A as
shown on a survey entitled "Subdivision of Property Surveyed for
Meadowlands Associates" by Alois Callemyn Land Surveyors dated February
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26, 1996 and recorded in Plat Book 75, Page 146, in the Orange County
Registry.
PIN Number: 9874-80-2738
TRACT 4 [Visitor's Center Building, Franklin Street -- Approximately 7,400-
square foot building located at 501 W. Franklin St., Chapel Hill]
BEING all of that 13,953 square foot, more or less, parcel labeled as PIN
Number: 9788-15-1996 as shown on survey entitled "Physical Survey
prepared for the County of Orange" dated as of July 8, 1996 and last revised
on July 17, 1996 completed by Jose L. Torres, Registered Land Surveyor, L-
3771 and recorded in Plat Book 76, Page 103, Orange County Registry.
PIN Number: 9788-15-1996
TRACT 5 [Southern Campus Site]
BEGINNING in the center of the public road leading from Calvander to
Orange Church witnessed by an iron stake on the South side of said road;
running thence South 2 degrees 30 minutes east 1,304 feet to an iron stake
and pointers in the line of the University of North Carolina property; thence
with said property East 1,194 feet to an iron stake in Will Freeland's land;
thence with his line North 1,190 feet to the center of said road; thence with
the center of said road North 84 degrees West 1,250 feet to the beginning,
containing 34.10 acres, more or less, as surveyed by J. Ralph Weaver, County
Surveyor, on November 20, 1940, and being part of the land formerly owned
by Mrs. J. Walker Womble.
BEING also described as the Lands of the County of Orange and the Project
Homestead Lease Lot as shown on that plat entitled "Easement Plat for
Orange County Senior Center" and recorded in Plat Book 102, Page 99,
Orange County Registry.
PIN Number: 9880-00-8527
TRACT 6 [Efland EMS1
PARCEL FIVE- EFLAND EMS:
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BEING ALL OF TRACTS 3, 4, 5, 6, 7, INCLUSIVE, AS SHOWN ON THAT PLAT
ENTITLED "BOUNDARY&
PHYSICAL SURVEY PREPARED FOR THE COUNTY OF ORANGE, PROPERTIES OF
EFLAND REAL
PROPERTY, LLC" BY PHILLIP W. RILEY, LICENSE NUMBER L-3066 AS RECORDED IN
PLAT BOOK 119,
PAGE 84, ORANGE COUNTY REGISTRY.
PIN: 9844-78-8137
EXHIBIT B -- Existing Encumbrances
As to all Tracts: the Deed of Trust and Security Agreement granted by the County
for the benefit of BNY-M dated as of June 1, 2018, and recorded at RB 6486, Page
413, Orange County Registry, as previously supplemented (referred to as the
"Existing Deed of Trust" in this instrument, and further defined above).
All references to books and pages in the lists below are to the Orange County
Registry.
As to Tract 1:
1. Subject to Matters shown on plats recorded in Plat Book 102, Page 34; Plat
Book 102, Page 36; Plat Book 59, Page 179; and Plat Book 110, Page 91.
2. Conservation Easement to Orange County recorded in Book 4296, page 308.
3. Title to that portion of the Land lying below the mean high water mark of Eno
River.
4. Riparian rights incident to the Land.
S. Easement to the Town of Hillsborough recorded in Book 1030, Page 546.
6. Easement(s) to Duke Power Company recorded in Book 1146, Page 153.
7. Right of Way Agreement between Orange County and Duke Energy Carolinas,
LLC recorded in Book 5905, Page 73.
As to Tract 2:
1. Subject to matters shown on plat recorded in Plat Book 118, Page 105, and
Plat Book 120, Pages 156 and 159
2. Subject to matters shown on plat recorded in Plat Book 94, Page 68 including
a 30-foot joint driveway easement and septic easement located on the Land.
3. Rights of others for ingress and egress purposes in and to the use of
easements located on the Land.
4. Commissioners' Second Revised Final Report recorded in Book 3446, Page 26
and Order of Confirmation recorded in Book 3446, Page 29.
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S. Title to that portion of the Land within the right-of-way of US Hwy 70 and
West Hill Ave.
6. Easement(s) to Duke Power Company recorded in Book 114, Page 95.
7. Easement(s) and/or Right(s) of Way to Jean A. Hall, heirs and assigns
recorded in Book 3446 at Page 39, Orange County Registry.
8. Non-exclusive perpetual right and easement of ingress and egress for a
driveway for Dorothy Hall Holloway and Husband, Bill Holloway and their
successors and assigns, recorded in Book 3831 at Page 375, Orange County
Registry.
9. Declaration of Restrictions and Provisions for Private Road Maintenance
recorded in Book 376 at Page 552.
10.Easement recorded in Book 376 at Page 555, Orange County Registry.
11.Easements) and/or Right(s) of Way to Hillsboro Power and Light Co.
recorded in Book 87 at Page 437, Orange County Registry.
12.Easement(s) and/or Right(s) of Way to State Highway Commission recorded
in Book 183 at Page 512, Orange County Registry.
13.Terms and conditions and rights of others in and to that Buffer Easement
recorded in Book 6625 at Page 2007, Orange County Registry.
14.Buffer Easement recorded in Book 6625 at Page 2012, Orange County
Registry.
As to Tract 3:
1. Restrictions appearing of record in Book 654, Page 517 and amended in Book
1081 at Page 425.
2. Subject to matters shown on plat recorded in Plat Book 75, Page 146.
3. Easement(s) to Town of Hillsborough recorded in Book 804, Page 444.
4. Easement(s) to Duke Power Company recorded in Book 676, Page 500.
S. Easement(s) to Public Service Company of North Carolina recorded in Book
1083, Page 235.
6. Title to that portion of the Land within the right-of-way of Meadowland Drive.
7. Termination Agreement recorded in Book 4126, Page 346.
8. Town of Hillsborough Conditional Use Permit #2007-04 recorded in Book
4416, Page 496.
9. Sand Filter SCM (Stormwater Control Measure) Operation and Maintenance
Agreement recorded in Book 6468 at Page 214, Orange County Registry.
10.Stormwater Control Measure Access and Maintenance Easement to the Town
of Hillsborough recorded in Book 6616 at Page 1294, Orange County Registry.
As to Tract 4:
1. Subject to matters shown on plats recorded in Plat Book 76, Page 103; Plat
Book 16, Page 27; and Plat Book 49, Page 72.
2. Party Wall Agreement recorded in Book 194, Page 47.
3. Sewer Easement to Marjorie Patricia Perl recorded in Book 316, Page 636.
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4. Encroachment Agreement between Orville B. Campbell and Chapel Hill
Publishing Company, Inc. recorded in Book 705, page 72.
As to Tract 5:
1. Special Needs Housing Program Deed of Trust, Assignment of Rents and
Leases, and Security Agreement from Inter-Faith Council for Social Service,
Inc. to A. Robert Kucab, Trustee for North Carolina Housing Finance Agency to
secure a note in the amount of$150,000.00 and recorded in Book 1636, page
285, Orange County Registry. As modified by Modification to Promissory
Note, Deed of Trust and Declaration of Deed Restrictions recorded in Book
5911, page 372, Orange County Registry.
2. Orange County Home Program Deed of Trust and Security Agreement from
Interfaith Council for Social Services, Inc. to Geoffrey E. Gledhill, Trustee for
the benefit of Orange County to secure a note in the amount of $50,000.00
and recorded in Book 1731, Page 1, Orange County Registry. As affected by
that Request for Notice recorded in Book 2358, Page 156, Orange County
Registry.
3. Lease from Orange County, North Carolina as Lessor and Inter-Faith Council
for Social Service, Inc. recorded in Book 1579, Page 152, Orange County
Registry.
4. Agreement between Interfaith Council for Social Service, Inc., Orange County,
and Orange Water and Sewer Authority recorded in Book 1543, Page 313,
Orange County Registry.
5. Restrictions appearing in that Declaration of Deed Restrictions between
Inter-Faith Council for Social Service, Inc. and North Carolina Housing Finance
Agency recorded in Book 1636, Page 300, Orange County Registry.
6. Matters shown on plat recorded in:
a. Plat Book 59, Page 96;
b. Plat Book 78, Page 51;
c. Plat Book 78, page 88;
d. Plat Book 80, Page 179; and
e. Plat Book 102, Page 99, Orange County Registry.
7. Easement(s) and/or Right(s) of way to Duke Power Company as recorded in
Book 131 at Page 368 and Book 1610 at Page 213, Orange County Registry.
8. Easement(s) and/or Right(s) of Way to University of North Carolina recorded
in Book 136 at Pages 341 and 528, Orange County Registry.
9. Ordinance to Extend the Corporate Limits of the Town of Chapel Hill recorded
in Book 725, Page 436, Orange County Registry and adopted Ordinance to
Extend the Corporate Limits of the Town of Chapel Hill recorded in Book 818,
Page 223, Orange County Registry.
10.Deed of Easement to Orange Water and Sewer Authority recorded in Book
1684, Page 47 and Book 1684, Page 50, Orange County Registry.
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11.Right of Way Agreement between Orange County and Duke Energy
Corporation recorded in Book 3800, Page 116 and Book 4162, Page 547,
Orange County Registry.
12.Stormwater Operations and Management Plan recorded in Book 4349, Page
234, Orange County Registry.
13.Orange Water and Sewer Authority Dedication recorded in Book 4504, Page
77, Orange County Registry.
14.Town of Chapel Hill Special Use Permit recorded in Book 1283, Page 256,
Orange County Registry as modified by that Modification of Special Use
Permit recorded in Book 1437, Page 33; by Special Use Permit Modification
recorded in Book 4349, Page 228; and by that Special Use Permit
Modification recorded in Book 5878, Page 49, Orange County Registry.
As to Tract 6 --
Easement(s) to Morris Telephone Company recorded in Book 214 at Page 633 and
Book 219, Page 785.
Easement(s) to Duke Power Company recorded in Book 214 at Page 633 and Book
219, Page 782.
Matters shown on plat recorded in Plat Book 19 at Page 72.
Right of way to North Carolina Board of Transportation recorded in Book 256 at
Page 1209
Right of Way to Orange County, North Carolina recorded in Book 636 at Page 30.
Terms and conditions of Boundary Line Agreement between Efland Volunteer
Fire Company, Inc. and Efland Real Property, LLC recorded in Book 6539 Page
133.
Subject to matters shown on recorded Plat Book 119 at Page 84 including possible
deed overlap between parcel 3 and adjacent parcel owned by Clarence Loftin
having PIN numbers: 9844-78 6326; 9844-78-6242; 9844-78-8137; and 9844-88-
1320,located on the land.
Deed Overlap shown on that certain survey entitled Boundary and Physical Survey
prepared for the County of Orange Properties of Efland Real Properties, LLC,
prepared by Phillip W Riley,bearing the seal and certification of Phillip W Riley,
PLS, dated 10/22/18.
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Attachment 3
s*h draft of April 26
Fourth Supplemental Trust Agreement
by and between
Orange County, North Carolina
and
The Bank of New York Mellon Trust
Company, N.A., as Trustee
Relating to the issuance of
[$43,000,000]
Limited Obligation Bonds
Series 2022
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THIS FOURTH SUPPLEMENTAL TRUST AGREEMENT is dated as of May 11,
2022 (this "Supplemental Agreement"), is between ORANGE COUNTY, NORTH
CAROLINA, a political subdivision of the State of North Carolina (the "County"), and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association having an office in Jacksonville, Florida, as trustee (the "Trustee"), and
relates to the issuance of [$43,000,000] Limited Obligation Bonds, Series 2022 (the
"2022 Bonds").
Introduction
The County and the Trustee executed and delivered a Trust Agreement dated
as of June 1, 2018 (the "2018 Agreement"). The 2018 Agreement provides for the
issuance of a 2018 series of limited obligation bonds (the "2018 Bonds"), and allows
for the issuance of additional series of limited obligation bonds. The 2018
Agreement provides that the parties will enter into a supplemental agreement for
each issue of limited obligation bonds.
The County and the Trustee are now entering into this Supplemental
Agreement to supplement the 2018 Agreement and provide for the issuance of the
2022 Bonds as additional bonds under the Trust Agreement. The 2022 Bonds are
issued and secured on a parity with the 2018 Bonds and the rest of the "Prior
Bonds," as defined below.
The County is issuing the 2022 Bonds to provide funds to be used, together
with other available funds, on a project (the "2022 Project") to acquire, construct,
equip and otherwise improve a variety of County facilities and assets, including
those described in Exhibit A, and to pay financing costs and other related costs.
Each of the 2022 Bonds represents an "installment contract" within the
meaning of Section 160A-20 of the North Carolina General Statutes, between the
County and the owner of that Bond. The Trustee serves under this Supplemental
Agreement for and on behalf of the bondholders.
Unless the context clearly requires otherwise, capitalized terms used in this
Supplemental Agreement and not otherwise defined have the meanings set forth in
Exhibit B or in the 'Prior Agreement,"as defined in Exhibit B.
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NOW, THEREFORE, in consideration of the covenants contained in this
Supplemental Agreement, the parties agree as follows:
ARTICLE I
THE 2022 BONDS
Section 1.01. Provision for 2022 Bonds; Advance. (a) The County will
issue, and the Trustee will authenticate and deliver, 2022 Bonds in an aggregate
principal amount of[$43,000,000].
(b) The County acknowledges that the amount paid to it from the issuance
and sale of the 2022 Bonds will be $ . The County will use the amount
paid as provided in this Supplemental Agreement to pay 2022 Project Costs.
Section 1.02. Bonds Constitute Installment Contracts. Each of the 2022
Bonds, together with the County's corresponding obligations under the Trust
Agreement and the Deed of Trust, constitutes a separate "installment contract"
within the meaning of Section 160A-20 between the County and the owner of that
Bond. The County's payment obligations, and its other obligations under this
Agreement and with respect to the Bonds, are secured by the lien on the Mortgaged
Property created under the Deed of Trust and by the other security provided for in
the Trust Agreement.
Section 1.03. Agreement Supplements 2018 Agreement; 2022 Bonds
Are Additional Bonds. (a) This Supplemental Agreement is a "supplemental
agreement" for the issuance of Additional Bonds as provided in the 2018
Agreement, and the 2022 Bonds are "Additional Bonds" as defined in the 2018
Agreement.
(b) Except as modified by this Supplemental Agreement, all terms of the
Prior Agreement remain in effect and apply with respect to the 2022 Bonds to the
same extent as to all Prior Bonds.
Section 1.04. Form and Details; Payments. (a) The 2022 Bonds will be
issued initially as two fully registered bonds. The 2022 Bonds will be in
substantially the form of Exhibit C, with any changes as the Trust Agreement
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permits or requires. Each 2022 Bonds will be dated the date of its initial delivery to
the Lender. All interest payments will be calculated based on a 360-day year
consisting of twelve 30-day months and subject to adjustment as provided in this
Supplemental Agreement.
(b) One of the 2022 Bonds (the "2022A Bond") will be designated "Limited
Obligation Bond, Series 2022A." The 2022A Bond will be (i) numbered RA-1 for
identification, (ii) payable as to interest semiannually until payment on each
Payment Date at the 2022A Interest Rate, and (iii) payable as to principal on
February 1 in installments in years and amounts as follows:
Maturity Date Principal Maturity Date Principal
(February 1I Amount ($1 f Februaryjj Amount ($1
[To come]
(c) The other of the 2022 Bonds (the "2022B Bond") will be designated
"Limited Obligation Bond, Series 2022B." The 2022B Bond will be (i) numbered RB-
1 for identification, (ii) payable as to interest semiannually until payment on each
Payment Date at the 2022B Interest Rate, and (iii) payable as to principal on
February 1 in installments in years and amounts as follows:
Maturity Date Principal Maturity Date Principal
(Februaryl Amount ($1 (Februaryjj Amount ($1
[To come]
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(d) Exhibit D shows a schedule of payments due on the 2022 Bonds with
respect to each Payment Date. Upon any change to the 2022A Interest Rate or the
2022B Interest Rate, the affected Bondholder shall promptly prepare a substitute
Exhibit D reflecting the new interest rate and resulting payment schedule, and
deliver a copy of the new schedule to the County, the Trustee and to the LGC. The
Trustee has no responsibility to calculate any new payments, with those matters
lying only between the County and the affected Bondholders.
Section 1.05. Event of Taxability. Except as otherwise provided herein,
upon the occurrence of an Event of Taxability and for as long as any portion of the
2022A Bond remains outstanding, the 2022A Interest Rate shall be converted to the
Taxable Rate. This adjustment shall survive full payment on the 2022A Bond until
such time as the federal statute of limitations under which the interest on the 2022A
Bond could be declared taxable under the Code has expired. In addition, upon an
Event of Taxability, the County shall, immediately upon demand, pay to the
Bondholder (or prior Bondholders, if applicable) (i) an additional amount equal to
the difference between (A) the amount of interest actually paid on the 2022A Bond
during the Taxable Period and (B) the amount of interest that would have been paid
during the Taxable Period had the 2022A Bond borne interest at the Taxable Rate,
and (ii) an amount equal to any interest, penalties and additions to tax (as referred
to in Subchapter A of Chapter 68 of the Code) owed by the Bondholder as a result of
the Event of Taxability.
Except as otherwise provided herein, upon the occurrence of an Event of
Taxability and for as long as any portion of the 2022B Bond remains outstanding,
the 2022B Interest Rate shall be converted to the Taxable Rate. This adjustment
shall survive full payment on the 2022B Bond until such time as the federal statute
of limitations under which the interest on the 2022B Bond could be declared taxable
under the Code has expired. In addition, upon an Event of Taxability, the County
shall, immediately upon demand, pay to the Bondholder (or prior Bondholders, if
applicable) (i) an additional amount equal to the difference between (A) the amount
of interest actually paid on the 2022B Bond during the Taxable Period and (B) the
amount of interest that would have been paid during the Taxable Period had the
2022B Bond borne interest at the Taxable Rate, and (ii) an amount equal to any
interest, penalties and additions to tax (as referred to in Subchapter A of Chapter 68
of the Code) owed by the Bondholder as a result of the Event of Taxability.
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As appropriate, each affected Bondholder shall promptly prepare a substitute
Exhibit D reflecting the new interest rate and resulting payment schedule, and
deliver a copy of the new schedule to the County, the Trustee and to the LGC. The
Trustee has no responsibility to calculate any such additional interest, penalties or
charges, or to confirm that any have been paid, with those matters lying only
between the County and the affected Bondholders.
Section 1.06. Default Rate. While any default by the County under the 2022
Bonds, the Deed of Trust or the Trust Agreement is continuing, the 2022 Bonds will
bear interest (but only during the pendency of the default) at the Default Rate. If a
default only applies to the 2022A or the 2022B Bond, then only the affected 2022
Bond will be subject to interest at this default rate. As appropriate, each affected
Bondholder shall promptly prepare a substitute Exhibit D reflecting the new
interest rate and resulting payment schedule, and deliver a copy of the new
schedule to the County, the Trustee and to the LGC. The Trustee has no
responsibility to calculate any such additional interest, penalties or charges, or to
confirm that any have been paid, with those matters lying only between the County
and the affected Bondholders.
Section 1.07. Redemption Dates and Prices. The 2022 Bonds are subject
to redemption as described in Section 2.01.
Section 1.08. Delivery of 2022 Bonds. The Trustee will authenticate and
deliver the 2022 Bonds when it has received the following items:
a) Certified copies of County Board resolutions (i) approving the
terms and conditions under which the 2022 Bonds are to be executed and
delivered and (ii) authorizing the execution, delivery and issuance of the 2022
Bonds, this Supplemental Agreement, and Deed of Trust Supplement #4 (as
described in Exhibit B)
b) Evidence satisfactory to the Trustee that the LGC has approved
the issuance of the 2022 Bonds
C) An executed copy of this Supplemental Agreement
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d) An executed copy of Deed of Trust Supplement #4, which
extends the benefit of the security provided to the Trustee under the Prior Deed
of Trust to secure the County's performance of its obligations under this
Supplemental Agreement and 2022 Bonds, as contemplated by Section 1.06(iv)
of the 2018 Agreement
e) An Opinion of Bond Counsel to the effect that the execution and
delivery of the 2022 Bonds as Additional Bonds is permitted under the terms of
the Prior Agreement and has been duly authorized
f) A County Certificate directing the Trustee as to the application of
the proceeds from the sale of the 2022 Bonds
g) Evidence of the issuance or proposed issuance of one or more
lender's title insurance policies (or an appropriate endorsement to an existing
policy) in favor of the Trustee, in an aggregate face amount of insurance equal to
the total amount of Outstanding Bonds plus the principal amount of the 2022
Bonds, and including the instrument referenced in (d) above as an insured
instrument
Section 1.09. Limited Obligation. The 2022 Bonds are limited obligations
of the County, as provided and described in Section 4.05 of the 2018 Agreement.
ARTICLE II
REDEMPTION
Section 2.01. Redemption Dates and Prices. (a) Principal of the 2022
Bonds is subject to redemption and prepayment prior to the scheduled Payment
Dates only under the terms of this Article.
(b) Principal of the 2022A Bond is not subject to prepayment prior to the
scheduled Payment Dates.
(c) (i) The County may prepay the principal of the 2022B Bond, in whole
or in part, at the County's option, on any date, upon payment of the principal
amount to be prepaid plus interest accrued to the prepayment date.
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(ii) No premium or penalty is payable for a redemption of the 2022B Bond
made under this Section after May 12, 2032. For a prepayment made on or before
May 12, 2032, the County must pay the Make Whole Prepayment Premium.
(iii) If the County redeems a portion of the 2022B Bond, the County will
prepare, and the Trustee will deliver, a new 2022B Bond in principal amount equal
to the unpaid portion to the registered owner upon the surrender of the 2022B
Bond.
Section 2.02. Redemption Notices. (a) The Trustee, at the County's
direction, upon being satisfactorily indemnified by the County with respect to
expenses and with at least two Business Days' notice, will send notice of redemption
no less than 30 nor more than 60 days prior to the redemption date, to the
registered owner of the 2022B Bond at its address as it appears on the Trustee's
registration books, by registered or certified mail. The Trustee shall also send a copy
of the notice to the LGC.
(b) Any redemption notice may state that the redemption to be effected is
conditioned upon --
(i) the Trustee's receipt on or prior to the redemption date of moneys
sufficient to pay the principal of and interest on the 2022B Bonds or
portions thereof to be redeemed; or
(ii) any other condition not unacceptable to the Trustee.
If a notice contains a condition and the Trustee either (i) does not receive
moneys sufficient to pay the principal of and interest on the 2022B Bond on or
prior to the redemption date, or (ii) the stated condition is not fulfilled,
in either case on or before the redemption date,
then redemption will not be made, and the Trustee must, within a reasonable
time, give notice the same way the redemption notice was given that the moneys
were not so received (or condition was not fulfilled) and the redemption was not
made.
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(c) Each redemption notice must specify (i) the complete designation of
the 2022B Bond to be redeemed, (ii) the CUSIP numbers of the 2022B Bonds to be
redeemed, if any, (iii) the dated dates, maturity dates and interest rates of the 2022
Bonds to be redeemed, (iv) the date fixed for redemption, (v) any conditions to the
redemption, as contemplated by subsection (b) above, (vi) the principal amount of
2022B Bond or portions thereof to be redeemed, (vii) the applicable redemption
price, (viii) the address of the place or places of payment, (ix) the Trustee's name
and telephone number, and the name of a contact person, (x) that interest accrued
to the date fixed for redemption will be paid as specified in the notice, and (xi) that
on and after the established redemption date, interest on 2022B Bond which have
been redeemed will cease to accrue. The Trustee must also include in any
redemption notice any additional information provided by the County for use in the
notice.
Section 2.04. 2022B Bond Payable on Redemption Date; Interest Ceases
To Accrue. If on or before the date fixed for redemption funds are deposited with
the Trustee to pay the principal of and interest accrued to the redemption date on
2022B Bonds called for redemption, the 2022B Bond (or portions of the 2022B
Bond) called for redemption ceases to accrue interest from and after the redemption
date. Thereafter, that 2022B Bond, or portion called for redemption, (a) is no longer
entitled to the benefits provided by the Trust Agreement and (b) is not deemed to
be Outstanding under the Trust Agreement.
ARTICLE III
DEPOSIT AND USE OF 2022 PROCEEDS; OTHER FUNDS
Section 3.01. Disbursement of Proceeds. The Trustee will apply proceeds
from the sale of the 2022 Bonds as provided in the certificate described in Section
1.07(f).
Section 3.02. Creation and Use of 2022 Proceeds Fund. The Trustee will
establish a special fund designated as the "Orange County 2022 Proceeds Fund." The
Trustee will keep this Fund separate and apart from all other funds and moneys
held by it, and will hold and administer this Fund as provided in this Supplemental
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Agreement. Moneys in the 2022 Proceeds Fund will be expended only as described
in Sections 3.03 and 3.04. The Trustee is not required to disburse any moneys from
the 2022 Proceeds Fund during the continuation of any Event of Default.
Section 3.03. Deposits to 2022 Proceeds Fund; Payment of Project Costs.
(a) The Trustee will deposit into the 2022 Proceeds Fund the amount specified in
the certificate referenced in Section 1.07(f) and all other amounts paid to it for
deposit in the 2022 Proceeds Fund.
(b) The Trustee will disburse moneys in the 2022 Proceeds Fund from
time to time, either to pay 2022 Project Costs directly or to reimburse the County for
previous expenditures on any of those costs, upon receipt of a requisition
substantially in the form of Exhibit E. The Trustee will accept requisitions that the
County submits by electronic mail or by facsimile transmission. The Trustee may
rely conclusively on requisitions as authorization for payments, and the Trustee has
no duty or responsibility to verify any matters in the requisitions. The County will
also send a copy of each requisition by electronic mail or facsimile transmission to
the Lender at the address or number provided by the Lender to the County from
time to time, but the Lender has no rights or role in determining whether the
Trustee will pay a requisition.
(c) Unless otherwise directed by the County, the Trustee will disburse
moneys from the 2022 Proceeds Fund that are due to the County by wire transfer to
any bank account in the United States as the County may designate to the Trustee
from time to time.
Section 3.04. Transfer of Unexpended Proceeds. Upon the first to occur
of (a) July 1, 2025, or (b) receipt of a County Certificate stating that there are no
more 2022 Project Costs to be paid from the 2022 Proceeds Fund, the Trustee will
withdraw all remaining moneys in the 2022 Proceeds Fund and deposit those
moneys in the Payment Fund. The Trustee will then apply those moneys to Bond
payments as directed by a County Representative. In the absence of any direction
from the County, the Trustee will deposit those moneys in the Interest Account and
use them to pay interest on the 2022 Bonds as the same becomes due.
Section 3.05. Use of Funds and Accounts from 2018 Agreement. The
Trustee is to maintain and administer the Bond Payment Fund (and its principal and
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interest accounts) and the Net Proceeds Fund established under the 2018
Agreement to the same effect and purpose as provided in the 2018 Agreement with
respect to the 2022 Bonds as to the 2018 Bonds and all Bonds generally.
ARTICLE IV
OTHER MODIFIED TERMS
Section 4.01. Financial Information to Lender. The County will send to the
Lender a copy of the County's audited financial statements for each Fiscal Year within
30 days of the County's acceptance of the statements, but in any event within 270 days
of the completion of each Fiscal Year. The County will send to the Lender a copy of the
County's adopted budget ordinance within 30 days after its adoption by the County
Board. The County shall also furnish the Lender, at such reasonable times as the
Lender may request, all other financial information (including, without limitation,
the County's annual budget as submitted or approved) as the Lender may
reasonably request. The County shall permit the Lender or its agents and
representatives to inspect the County's books and records and make extracts
therefrom.
Section 4.02. Amendments Require Lender's Consent. This Supplemental
Agreement may only be amended by a writing signed by the Lender. Otherwise, the
provisions of the Trust Agreement concerning the amendment of the Trust
Agreement apply.
Section 4.03 Permission To Use Information. The County agrees and
consents that the Lender may use information related to the 2022 Bonds in
connection with marketing, press releases or other transactional announcements or
updates provided to investors or trade publications, including, but not limited to,
the placement of the County's logo or other identifying name on marketing
materials or of "tombstone" advertisements in publications of its choice at the
Lender's own expense.
Section 4.04 No Advisory or Fiduciary Relationship. In connection with
all aspects of the transaction contemplated hereunder, the County acknowledges
and agrees, that: (a) (i) the County has consulted its own legal, accounting,
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regulatory and tax advisors to the extent it has deemed appropriate, (ii) the County
is capable of evaluating, and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby, (iii) the Lender is not acting as
a municipal advisor or financial advisor to the County and (v) the Lender has no
fiduciary duty pursuant to Section 15B of the Securities Exchange Act to the County
with respect to the transactions contemplated hereby and the discussions,
undertakings and procedures leading thereto (irrespective of whether the Lender
has provided other services or is currently providing other services to the County on
other matters); (b) (i) the Lender is and has been acting solely as a principal in an
arm's-length commercial lending transaction and, has not been, is not, and will not
be acting as an advisor, agent or fiduciary, for the County, or any other person or
entity and (ii) the Lender has no obligation to the County with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein; (c) notwithstanding anything herein to the contrary, the County and the
Lender intend that the 2022 Bonds represent a commercial loan transaction not
involving the issuance and sale of a municipal security, and that any bond, note or
other debt instrument that may be delivered to the Lender is delivered solely to
evidence the repayment obligations of the County under the 2022 Bonds; and (d)
the Lender may be engaged in a broad range of transactions that involve interests
that differ from those of the County, and the Lender has no obligation to disclose any
of such interests to the County. To the fullest extent permitted by law, the County
hereby waives and releases any claims that it may have against the Lender with
respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transactions contemplated hereby. If the County would like a
municipal advisor in this transaction that has legal fiduciary duties to the County,
the County is free to engage a municipal advisor to serve in that capacity. The
Lender's participation is pursuant to and in reliance upon the bank exemption
and/or the institutional buyer exemption provided under the municipal advisor
rules of the Securities and Exchange Commission, Rule 1513a1-1 et sea., to the extent
that such rules apply to the transactions contemplated hereunder.
ARTICLE V
ADDITIONAL PROVISIONS
Section 5.01. Notices.
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(a) Any communication provided for in this Supplemental Agreement must
be in English and must be in writing, and "writing" includes facsimile transmission
and electronic mail.
(b) For the purposes of this Supplemental Agreement, any communication
sent by facsimile transmission or electronic mail will be deemed to have been given
on the date the communication is similarly acknowledged by a County
Representative (in the case of the County) or other authorized representative (in the
case of any other party). No such communication will be deemed given or effective
without such an acknowledgment. Any electronic communication to the Trustee is
subject to the provisions of Section 9.02 of the 2018 Agreement.
(c) Any other communication under this Supplemental Agreement will be
deemed given on the delivery date shown on a United States Postal Service certified
mail receipt, or a delivery receipt (or similar evidence) from a national commercial
package delivery service, if addressed as follows:
(i) if to the County, to Orange County Manager, Re: Notice under
2022 LOBs Trust Agreement, Post Office Box 8181, Hillsborough, NC 27278
(ii) if to the Trustee, to The Bank of New York Mellon Trust Company,
N.A., Re: Notice for 2022 Financing for Orange County, 10161 Centurion
Parkway North, Jacksonville, FL 32256
(iii) If to the LGC, to the North Carolina Local Government
Commission, Attn: Secretary of the Commission, Re: Notice for 2022 Orange
County LOBs Financing, Longleaf Building, 3200 Atlantic Ave., Raleigh, NC
27604
(iv) If to the Lender, to Truist Commercial Equity, Inc., 1414 Raleigh
Road, Chapel Hill, NC 27517, Attention: Jeff Stoddard, with a copy to Tax-
Exempt Lending Group, Truist Bank, 150 Stratford Road, 2nd Floor, Winston-
Salem, NC 27104, Attention: Alex Johnston.
(d) Any addressee (including the LGC and the Lender) may designate
additional or different addresses for communications by notice given under this
Section to each of the others.
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(e) Any communication sent under this Agreement must also be sent to the
County and the Trustee, along with any other parties to which the communication
may be addressed. Any party sending a communication under this Supplemental
Agreement must also send a copy to the Lender, so long as the Lender is the
registered owner of any portion of the 2022 Bonds. Any party sending a
communication under this Supplemental Agreement that relates to amendments or
defaults must also send a copy to the LGC.
(f) Whenever this Supplemental Agreement requires the giving of a notice,
the person entitled to receive the notice may waive the notice, in writing. The giving
or receipt of the notice will then not be a condition to the validity of any action taken
in reliance upon the waiver.
Section 5.02. Definition of "Restricted Yield." With respect to the 2022
Bonds, a "Restricted Yield" means a "yield," within the meaning of Treas. Regs. Secs.
1.103-13(c), -13(d), 1.148-9T(a), or any successor or other provision that may be
applicable, not in excess of a "yield" equal to %.
Section 5.03. Consent to Jurisdiction. The Trustee consents to jurisdiction
in the State of North Carolina for any lawsuit arising from this Supplemental
Agreement, or arising from any of the related transactions contemplated by this
Supplemental Agreement.
Section 5.04. Binding Effect; Limitation of Rights. This Supplemental
Agreement is binding upon, inures to the benefit of and is enforceable by the parties
and their respective successors and assigns. Nothing expressed or implied in this
Supplemental Agreement or the 2022 Bonds gives any person other than the
Trustee, the County and the Owners any right, remedy or claim under or with
respect to this Supplemental Agreement.
Section 5.05. Severability. If any provision of this Supplemental Agreement
is determined to be unenforceable, that does not affect any other provision of this
Supplemental Agreement.
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Section 5.06. Counterparts. This Supplemental Agreement may be signed in
several counterparts, including separate counterparts. Each will be an original, but
all of them together constitute the same instrument.
Section 5.07. Restriction on Transfer. Notwithstanding any provision or
indication in the Trust Agreement to the contrary, the Trustee will not register the
transfer of any 2022 Bonds except to (a) a bank, insurance company, or similar
financial institution, or (b) any direct or indirect wholly-owned subsidiary either of
the Lender or of any transferee referenced in (a) (in either case, an "Affiliate"),
provided that the Affiliate agrees to transfer the 2022 Bonds to a permitted
transferee under this paragraph before it ceases to be an Affiliate if at the time it
ceases to be an Affiliate it would not qualify as a permitted transferee under this
paragraph, or (c) any other entity approved by the LGC. In connection with any such
transfer, the transferring owner must notify the Trustee that the transfer is
permitted pursuant to this Section 5.07. The Trustee shall be fully protected in
relying on such notification.
Section 5.08. Definitions; Rules of Interpretation. Unless the context
clearly requires otherwise, capitalized terms used as defined terms in this
Supplemental Agreement and not otherwise defined have the meanings set forth in
Exhibit B, and if not defined there will have the meanings set forth in the Prior
Agreement. This Supplemental Agreement will be interpreted in accordance with
the rules of interpretation set forth in the 2018 Agreement.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties have caused this Fourth Supplemental
Trust Agreement to be executed in their corporate names by their duly authorized
officers, all as of May 11, 2022.
(SEAL)
ATTEST: ORANGE COUNTY,
NORTH CAROLINA
By:
Laura Jensen Bonnie B. Hammersley
Clerk, Board of Commissioners County Manager
The Bank of New York
Mellon Trust Company, N.A.,
as Trustee
By:
Terence Rawlins, Vice President
[Fourth Supplemental Trust Agreement dated as of May 11, 2022]
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Exhibit A - list of projects to be financed with estimated amounts
Project Est. Amount ($)
Lake Orange Dam Remediation 908,438
Parks and Rec R&R 203,268
Conservation Easement 262,000
Neuse River Rules Nutrient Management 56,198
Solid Waste Vehicle Replacements 516,739
Solid Waste Equipment Replacement- Grinder 833,500
C&D Construction Phase II 230,643
High Rock Improvements 470,000
Facility Accessibility, Safety and Security
Improvements 195,584
HVAC Projects 106,996
Major Plumbing Repairs 43,960
Orange County Southern Branch Library (County
portion) 18,965,438
Parking Lot Improvements 241,648
Phillip Nick Waters Building Remediation 545,242
Roof& Building Facade Projects 434,778
Criminal Justice Resource Department 17,598
Southern Campus Expansion 299,422
Communication System Improvements 157,755
Emergency Services Substations
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Efland EMS & Medical Examiners Station 5,438,929
Waterstone EMS Station & Location Study 3,506,703
Sportsplex - Facility Maintenance/Replacement 104,333
ITGC 150,383
IT Infrastructure 1,507,944
Sheriff Vehicles 255,473
EMS Vehicles 439,092
DEAPR Vehicles 68,650
Animal Services Vehicles 47,666
OPT Vehicle Replacement 110,627
Chapel Hill - Carrboro Schools
Technology 908,047
Roofing 484,607
Recurring Capital 1,810,800
Fire Safety 164,172
Supplemental Deferred 217,568
Stormwater Management 105,295
Orange County Schools
Recurring Capital 1,189,200
Supplemental Deferred 320,400
TOTAL $441,319,098
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The County will also use additional loan proceeds to pay financing costs.
The amounts stated above are estimates only. The County may use any
portion of the 2022 Bonds proceeds for any of the 2022 Project Costs, subject to the
County's obligation to undertake and complete those components of the project
related to the "Mortgaged Property," as defined in the Deed of Trust, and the
limitation on the use of funds only for 2022 Project Costs.
Components of the 2022 Project related to the Mortgaged Property include
the following:
• Southern Campus expansion
• Efland EMS & Medical Examiners Station
• Orange County Southern Branch Library (County portion)
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EXHIBIT B - Definitions: Rules of Construction
For all purposes of this Supplemental Agreement, unless the context requires
otherwise, the following terms have the following meanings.
"2022 Bonds" means the County's Limited Obligation Bonds, Series 2022,
originally issued in the aggregate principal amount of [$43,000,000] pursuant to the
Prior Agreement and this Supplemental Agreement.
"2022A Interest Rate" means a per annum rate equal to 2.13%, but after an
Event of Taxability, means the Taxable Rate. Notwithstanding the foregoing,
however, after, and during the continuance of, an Event of Default, "2022A Interest
Rate" means the Default Rate.
"2022B Interest Rate" means a per annum rate equal to 2.41%, but after an
Event of Taxability, means the Taxable Rate. Notwithstanding the foregoing,
however, after, and during the continuance of, an Event of Default, "2022B Interest
Rate" means the Default Rate.
"2022 Proceeds Fund" means the Orange County 2022 Proceeds Fund
established pursuant to Section 3.02.
"2022 Project" has the meaning assigned in the preambles to this
Supplemental Agreement.
"2022 Project Costs" means "Project Costs," as defined in the 2018
Agreement, related to the 2022 Project.
"Deed of Trust" means the Prior Deed of Trust as modified by the "Deed of
Trust Supplement #4" dated as of May 11, 2022, also granted by the County for the
Trustee's benefit.
"Default Rate" means the lesser of (a) the sum of the Prime Rate plus 2.0%
(200 basis points) per annum and (b) the maximum lawful rate.
"Event of Taxability" means that a final decree or judgment of any federal
court or a final action of the Internal Revenue Service determining that interest is
includable in the gross income of the registered owner of a 2022 Bond for federal
income tax purposes as a result of the action or inaction of the County has been
issue; provided, no Event of Taxability shall be deemed to occur unless the County
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has been given written notice of the occurrence and, to the extent permitted by law,
an opportunity to participate in and seek, at the County's own expense, a final
administrative determination by the Internal Revenue Service or determination by
a court of competent jurisdiction (from which no further right of appeal exists) as
to the occurrence of such Event of Taxability. For all purposes of this definition, the
effective date of any Event of Taxability will be the first date as of which interest is
deemed includable in the gross income of the Registered Owner of the 2022 Bonds.
"Make Whole Prepayment Premium" with respect to a prepayment of the
2022B Bond means an amount equal to the present value of the difference between
(1) the amount that would have been realized by the Lender on the prepaid amount
for the remaining term of the loan at the rate for fixed-rate payers in U.S. Dollar
interest rate swaps as quoted by Bloomberg (the "Swap Rate'l for a term
corresponding to the term of the 2022B Bond, interpolated to the nearest month, if
necessary, that was in effect three Business Days before the Closing Date and (2) the
amount that would be realized by the Lender by reinvesting such prepaid funds for
the remaining term of the loan at the Swap Rate for fixed-rate payers in U.S. Dollar
interest rate swaps, interpolated to the nearest month, that was in effect three
Business Days prior to the loan repayment date; both discounted at the same
interest rate utilized in determining the applicable amount in (2). Should the
present value have no value or a negative value, the County may repay with no
additional fee. Should Bloomberg no longer release rates for fixed-rate payers in U.S.
Dollar interest rate swaps, the Lender may substitute the Bloomberg index for rates
for fixed-payers in U.S. Dollar interest rate swaps with another similar index as
determined by the Lender. The Lender shall provide the County with a written
statement explaining the calculation of the premium due, which statement shall, in
absence of manifest error, be conclusive and binding.
Partial prepayments may be made subject to a prepayment charge based
upon the same calculation methodology described above. Any partial prepayment
shall be applied to installments of principal in the inverse order of maturity and
shall not postpone the due dates of, or relieve the amounts of, any scheduled
installment payments due hereunder. Any amounts repaid hereunder may not be re-
borrowed. For purposes of this provision, the term Business Day shall mean any day
other than a Saturday or Sunday or other day on which the Lender is authorized or
required to close.
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"Payment Date" with respect to the 2022 Bonds means each February 1 and
August 1, beginning February 1, 2023.
"Prime Rate" means the per annum rate which the Lender's affiliate Truist
Bank (whether or not that bank or any affiliate at any time is a registered
Bondholder) announces from time to time to be its "prime rate," as in effect from
time to time. The prime rate is a reference or benchmark rate, is purely
discretionary and does not necessarily represent the lowest or best rate charged to
borrowing customers. The Lender's affiliate Truist Bank may make commercial
loans or other loans at rates of interest at, above or below the prime rate. Each
change in the prime rate will be effective from and including the date Truist Bank
announces the change as effective.
"Prior Agreement" means the Trust Agreement dated as of June 1, 2018,
between the County and The Bank of New York Mellon Trust Company, N.A., as
trustee, as supplemented by (a) a First Supplemental Trust Agreement dated as of
April 1, 2019, (b) a Second Supplemental Trust Agreement dated as of November 1,
2019, and (c) a Third Supplemental Trust Agreement dated as of May 1, 2020, with
all those Supplemental Agreements also between the County and the Trustee.
"Prior Deed of Trust" means the Deed of Trust and Security Agreement dated
as of June 1, 2018, from the County to a Deed of Trust Trustee for the County's
benefit, as supplemented by (a) a Deed of Trust Supplement #1 dated as of April 1,
2019, (b) a Deed of Trust Supplement #2 dated as of November 1, 2019, and (c) a
Deed of Trust Supplement#3 dated as of May 1, 2020
"Supplemental Agreement" means this Fourth Supplemental Trust
Agreement, as it may be properly amended or supplemented from time to time.
["Taxable Period" means the period of time between (a) the date that interest
on a 2022 Bond is deemed to be includable in the gross income of the owner thereof
for federal income tax purposes as a result of an Event of Taxability, and (b) the date
of the Event of Taxability and after which the applicable 2022 Bond bears interest at
the Taxable Rate.]
"Taxable Rate" means the interest rate per annum that provides the Lender
with the same after tax yield that the Lender would have otherwise received had the
Event of Taxability not occurred, taking into account the increased taxable income of
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the Lender as a result of such Event of Taxability. The Lender shall provide the
County with a written statement explaining the calculation of the Taxable Rate,
which statement shall, in the absence of manifest error, be conclusive and binding
on the County.
"Trust Agreement" means the Prior Agreement as modified and
supplemented by this Supplemental Agreement, as it may be further amended or
supplemented from time to time.
All other capitalized terms used in this Fourth Supplemental Trust Agreement
and not otherwise defined have the meanings ascribed thereto in the Prior
Agreement.
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Exhibit C - Form of 2022 Bonds
Registered Bond Number RA-1/RB-1
LIMITED OBLIGATION BOND, SERIES 2022A/2022B
ORANGE COUNTY, NORTH CAROLINA
ORANGE COUNTY, NORTH CAROLINA (the "County"), for value received,
promises to pay, but solely from the sources and in the manner provided, to
Truist Commercial Equity, Inc.
or registered assigns (the "Bondholder"), the principal sum of
[ MILLION DOLLARS]
[*****$ 000,000*****]
in principal installments payable on each February 1 as shown on Schedule I.
together with interest on the unpaid principal from the date hereof until payment of
the entire principal sum at the annual rate of %, payable on each February 1
and August 1, beginning February 1, 2023, subject to [redemption and] adjustment
as described below.
Interest is payable (a) from May 11, 2022, if this Bond is authenticated prior
to February 1, 2023, or (b) otherwise from the February 1 or August 1 that is, or
immediately precedes, the date on which this Bond is authenticated (unless
payment of interest on this Bond is in default, in which case this Bond will bear
interest from the date to which interest has been paid). In all events, (1) all
payments on this Bond will be applied first to interest accrued and unpaid to the
payment date and then to principal, and (2) if not sooner paid, the entire principal of
and interest on this Bond will be due and payable on February 1, 20 Principal
and interest are payable in lawful money of the United States of America.
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Upon the occurrence of an Event of Taxability and for as long as any portion
of this Bond remains outstanding, the interest rate will convert to the Taxable Rate.
This adjustment shall survive full payment on this Bond until such time as the
federal statute of limitations under which the interest on the Bond could be declared
taxable under the Code has expired. In addition, upon an Event of Taxability, the
County shall, immediately upon demand, pay to the Bondholder (or prior
Bondholders, if applicable) (i) an additional amount equal to the difference between
(A) the amount of interest actually paid on the Bond during the Taxable Period and
(B) the amount of interest that would have been paid during the Taxable Period had
the Bond borne interest at the Taxable Rate, and (ii) an amount equal to any
interest, penalties and additions to tax (as referred to in Subchapter A of Chapter 68
of the Code) owed by the Lender as a result of the Event of Taxability.
The Trustee has no responsibility to calculate any such additional
interest, penalties or charges, or to confirm that any have been paid, with
those matters lying only between the County and the affected Bondholders.
"Event of Taxability" means that a final decree or judgment of any federal
court or a final action of the Internal Revenue Service determining that interest is
includable in the gross income of the registered owner for federal income tax
purposes as a result of the action or inaction of the County has been issued;
provided, no Event of Taxability shall be deemed to occur unless the County has
been given written notice of the occurrence and, to the extent permitted by law, an
opportunity to participate in and seek, at the County's own expense, a final
administrative determination by the Internal Revenue Service or determination by a
court of competent jurisdiction (from which no further right of appeal exists) as to
the occurrence of the Event of Taxability. For all purposes of this definition, the
effective date of any Event of Taxability will be the first date as of which interest is
deemed includable in the gross income of the registered owner of the this Bond.
["Taxable Period" means the period of time between (a) the date that interest
on a 2022 Bond is deemed to be includable in the gross income of the owner thereof
for federal income tax purposes as a result of an Event of Taxability, and (b) the date
of the Event of Taxability and after which the applicable 2022 Bond bears interest at
the Taxable Rate.]
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"Taxable Rate" means the interest rate per annum that provides the
Bondholder with the same after tax yield that the Bondholder would have otherwise
received had the Event of Taxability not occurred, taking into account the increased
taxable income of the Lender as a result of such Event of Taxability. The Bondholder
shall provide the County with a written statement explaining the calculation of the
Taxable Rate, which statement shall, in the absence of manifest error, be conclusive
and binding on the County.
"Default Rate" means the lesser of (a) the sum of the Prime Rate plus 2.0%
per annum and (b) the maximum lawful rate.
"Prime Rate" means the per annum rate which the Lender's affiliate Truist
Bank (whether or not that bank or any affiliate at any time is a registered
Bondholder) announces from time to time as its" prime rate," as in effect from time
to time. The prime rate is a reference or benchmark rate, is purely discretionary and
does not necessarily represent the lowest or best rate charged to borrowing
customers. The Lender's affiliate Truist Bank may make commercial loans or other
loans at rates of interest at, above or below the prime rate. Each change in the prime
rate will be effective from and including the date Truist Bank announces the change
as effective.
This Bond constitutes the entire issue of a [$ ] Limited Obligation
Bonds, Series 2022A/2022B (the "Bond"), issued under, and secured by, a Trust
Agreement dated as of June 1, 2018, between the County and The Bank of New York
Mellon Trust Company, N.A., as trustee (the "Trustee"), as previously supplemented
and as supplemented by a Fourth Supplemental Trust Agreement between the
County and the Trustee and dated as of May 11, 2022 (as supplemented, the "Trust
Agreement").
This Bond constitutes an installment contract within the meaning of Section
160A-20 of the North Carolina General Statutes between the County and the owner
(from time to time) of this Bond. The Bond is payable solely from funds
appropriated on an annual basis by the County's governing Board of Commissioners
and other funds available for the purpose of payment pursuant to the Trust
Agreement, such as certain net insurance and condemnation awards and the
proceeds of remedial action, which revenues and other moneys have been pledged
as described in the Trust Agreement to secure payment of the Bond. Neither the
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County's faith and credit nor its taxing power is pledged to the payment of any
amounts due under the Bond. As provided for under that Section 160A-20, no
deficiency judgment may be rendered against the County in any action for breach of
a contractual obligation under the Bond or the Trust Agreement.
To further secure its obligations under the Trust Agreement, the County has
granted, for the benefit of the Trustee on behalf of the owners of the Bonds, a
security interest in certain public facilities and the related real property, and certain
other property, pursuant to the Trust Agreement and a Deed of Trust and Security
Agreement dated as of June 1, 2018, as previously supplemented and as
supplemented by a Deed of Trust Supplement #4 dated as of May 11, 2022,
delivered by the County for the Trustee's benefit (as supplemented, the "Deed of
Trust").
The security provided to owners of the Bond under the Deed of Trust and
otherwise is on parity with the security provided to owners of prior bonds issued
under the Trust Agreement. Additional Bonds secured by a parity interest in the
property securing the Bond may be issued under the terms and conditions set forth
in the Trust Agreement.
Reference is made to the Trust Agreement and the Deed of Trust referenced
above for the provisions, among others, with respect to the nature and extent of the
security, the rights, duties and obligations of the County and the Trustee, the rights
of the Owners of the Bond and the terms upon which the Bond is executed, delivered
and secured, to all of which provisions the owner of this Bond, by the acceptance of
this Bond, agrees.
[For 2022A -- The principal of this Bond may not be redeemed or prepaid
prior to the stated principal pauyments dates.]
(For 2022B--
This Bond may not be redeemed prior to maturity except as provided in this
Bond and in the Trust Agreement.
The County may prepay the principal of the 2022B Bond, in whole or in part,
at the County's option, on any date, upon payment of the principal amount to be
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prepaid plus interest accrued to the prepayment date. No premium or penalty is
payable for a redemption made under this Section after May 12, 2032. For a
prepayment made on or before May 12, 2032, the County must pay the Make Whole
Prepayment Premium. If the County redeems a portion of this Bond, the County will
prepare, and the Trustee will deliver, a new Bond in principal amount equal to the
unpaid portion to the registered owner upon the surrender of this Bond.
"Make Whole Prepayment Premium" means an amount equal to the present
value of the difference between (1) the amount that would have been realized by the
Lender on the prepaid amount for the remaining term of the loan at the rate for
fixed-rate payers in U.S. Dollar interest rate swaps as quoted by Bloomberg (the
"Swap Rate') for a term corresponding to the term of the 2022B Bond, interpolated
to the nearest month, if necessary, that was in effect three Business Days before the
Closing Date and (2) the amount that would be realized by the Lender by reinvesting
such prepaid funds for the remaining term of the loan at the Swap Rate for fixed-
rate payers in U.S. Dollar interest rate swaps, interpolated to the nearest month, that
was in effect three Business Days prior to the loan repayment date; both discounted
at the same interest rate utilized in determining the applicable amount in (2).
Should the present value have no value or a negative value, the County may repay
with no additional fee. Should Bloomberg no longer release rates for fixed-rate
payers in U.S. Dollar interest rate swaps, the Lender may substitute the Bloomberg
index for rates for fixed-payers in U.S. Dollar interest rate swaps with another
similar index as determined by the Lender. The Lender shall provide the County
with a written statement explaining the calculation of the premium due, which
statement shall, in absence of manifest error, be conclusive and binding.
Partial prepayments may be made subject to a prepayment charge based
upon the same calculation methodology described above. Any partial prepayment
shall be applied to installments of principal in the inverse order of maturity and
shall not postpone the due dates of, or relieve the amounts of, any scheduled
installment payments due hereunder.Any amounts repaid hereunder may not be re-
borrowed. For purposes of this provision, the term Business Day shall mean any day
other than a Saturday or Sunday or other day on which the Lender is authorized or
required to close.
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The Trustee will send redemption notice to the Bondholder, at its address as
it appears on the Trustee's Bond Register (as defined in the Trust Agreement), not
more than 60 nor less than 30 days prior to the redemption date.
If on or before the date fixed for redemption funds have been deposited with
the Trustee to pay the principal and interest accrued to the redemption date with
respect to the Bond called for redemption, the Bond or portion called for
redemption will cease to accrue interest from and after the redemption date, will no
longer be entitled to the benefits provided by the Trust Agreement, and will not be
deemed to be Outstanding under the Trust Agreement.
The Owner of this Bond has no right to enforce the provisions of the Trust
Agreement or to institute action to enforce the covenants therein, or to take any
action with respect to any event of default thereunder, or to institute, appear in or
defend any suit or other proceeding with respect thereto, except as provided in the
Trust Agreement. Changes to or supplements of the Trust Agreement may be made
to the extent and in the circumstances permitted by the Trust Agreement.
Ownership of this Bond will be registered on the Bond Register (as defined in
the Trust Agreement) kept for that purpose by the Trustee, which will act as Bond
registrar. This Bond may be exchanged, and its transfer may be effected, only by its
Owner in person or by attorney duly authorized in writing at the designated office of
the Trustee, but only in the manner, subject to the limitations and upon payment of
the charges provided in the Trust Agreement, and upon surrender and cancellation
of this Bond. Upon exchange or registration of such transfer a new registered Bond
of the same maturity and interest rate for the same aggregate principal amount will
be issued in exchange therefor.
The Trustee will not register the transfer of this Bond except to (a) a
bank, insurance company, or similar financial institution, or (b) any direct or
indirect wholly-owned subsidiary either of the Lender or of any transferee
referenced in (a) (in either case, an "Affiliate"), provided that the Affiliate agrees to
transfer the 2022 Bonds to a permitted transferee under this paragraph before it
ceases to be an Affiliate if at the time it ceases to be an Affiliate it would not qualify
as a permitted transferee under this paragraph, or (c) any other entity approved by
the LGC. In connection with any transfer, the transferring owner must notify the
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Trustee that the transfer is permitted under the Trust Agreement. The Trustee shall
be fully protected in relying on such notification.
The County and the Trustee may deem and treat the person in whose name
this Bond is registered on the Bond Register as the absolute owner of this Bond for
the purpose of receiving payment of or on account of principal of and interest due
on this Bond and for all other purposes, and neither the County nor the Trustee will
be affected by any notice to the contrary, except that interest payments will be made
to the persons shown as Owners on the Trustee's registration books on the Record
Date, which is the end of the calendar day on the 15th day of the month (whether or
not a business day) preceding each Payment Date.
All acts, conditions and things required by the Constitution and laws of the
State of North Carolina to happen, exist or be performed precedent to and in the
execution and delivery of this Bond have happened, exist and have been performed.
The County intends that North Carolina law will govern this Bond and all
matters of its interpretation.
This Bond will not be entitled to any benefit under the Trust Agreement or be
valid or obligatory for any purpose until the Trustee has executed the Certificate of
Authentication appearing on this Bond.
IN WITNESS WHEREOF, the County has caused this instrument to be signed,
sealed and delivered by duly authorized officers, all as of May 11, 2022.
(SEAL) ORANGE COUNTY
ATTEST: NORTH CAROLINA
By:
Laura Jensen Bonnie B. Hammersley
Clerk, Board of Commissioners County Manager
[Orange County, North Carolina
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[$ ] Limited Obligation Bond, Series 2022A/2022B]
[Schedule I - Payment Schedule to be attached]
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This Bond has been approved under the
provisions of Section 160A-20 and Article
8, Chapter 159 of the General Statutes of
North Carolina.
Sharon G. Edmundson
Secretary, North Carolina
Local Government Commission
By
[Sharon G. Edmundson
Or Designated Assistant]
CERTIFICATE OF AUTHENTICATION
This Bond is the 2022A/2022B Bond referred to in the Fourth Supplemental
Trust Agreement dated as of May 11, 2022, between Orange County, North Carolina,
and The Bank of New York Mellon Trust Company, N.A., as trustee.
Date of Authentication:
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
By:
Authorized Officer
[Orange County, North Carolina
[$ ] Limited Obligation Bond, Series 2022A/2022B]
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please print or type transferee's name and address, including zip code)
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE:
the within bond and all rights thereunder, hereby irrevocably constituting and
appointing , Attorney, to transfer said certificate on the
books kept for the registration thereof, with full power of substitution in the
premises.
Dated:
Signature Guaranteed:
(Signature of Owner)
NOTICE: The signature above must
NOTICE: Signature(s) must be correspond with the name the Owner as
guaranteed by a participant in the it appears on the front of this certificate
Securities Transfer Agent Medallion in every particular without alteration or
Program ("STAMP") or similar program enlargement or any change whatsoever.
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EXHIBIT D - Schedule of Payments on 2022 Bonds
Principal is payable in the amounts and on the dates as shown below, subject
to redemption of the 2022B Bond as provided in this Supplemental Agreement.
Interest is payable on the dates shown below.
The 2022 Bonds will bear interest from the Closing Date until paid. Interest is
calculated at the annual rate of 2.13% on the 2022A Bond and 2.41% on the 2022B
Bond, in each case subject to adjustment as provided in this Supplemental
Agreement. The schedule below shows the expected interest payment amounts.
The County's obligation with respect to the 2022 Bonds on each Payment
Date is the amount shown below as the "total payment" for that date, subject to
adjustment as provided in Section 3.05(c) of the 2018 Agreement.
Payments are due to the Bondholders on the indicated Payment Dates. The
County will deposit the amounts required for payment with the Trustee by the 251h
day of the month preceding the Payment Date.
Payment Principal Interest— Principal Interest— Total
Date — 2022A 2022A — 2022B 20228 Payment
[To come]
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Exhibit E - Form of Reg-uisition
[Date]
The Bank of New York Mellon Trust Company, N.A., as Trustee
Attention: Corporate Trust
Regarding: Requisition under 2022 Supplemental
Trust Agreement for Orange County, North Carolina
ELECTRONIC COPY TO:
Truist Commercial Equity, Inc.,
[email or fax number to be provided]
RE: Request by Orange County, North Carolina (the "County"), for disbursement
of funds from a Bond Proceeds Fund created under a Fourth Supplemental
Trust Agreement dated as of May 11, 2022 (the "2022 Agreement"), with
Orange County, North Carolina (the "County")
To the Trustee:
Pursuant to the terms and conditions of the 2022 Agreement, the County
authorizes and requests the disbursement of funds from the "Orange County 2022
Proceeds Fund" established under that 2022 Agreement for the costs described
below.
Capitalized terms used in this requisition and not otherwise defined have the
meanings ascribed in the 2022 Agreement.
This is requisition number 2022 - from the 2022 Proceeds Fund.
Total Amount for
Disbursement
Payee
Payee's address
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Orange County makes this requisition pursuant to the following representations:
1. The County has appropriated in its current fiscal year funds sufficient to pay
the Bond Payments and estimated Additional Payments due in the current
fiscal year.
2. The purpose of this disbursement is for payment of 2022 Project Costs as
provided for in the Trust Agreement.
3. The requested disbursement has not been subject to any previous requisition.
4. No notice of any lien, right to lien or attachment upon, or claim affecting the
right to receive payment of, any of the moneys payable herein to any of the
persons, firms or corporations named herein has been received, or if any
notice of any such lien, attachment or claim has been received, such lien,
attachment or claim has been released or discharged or will be released or
discharged upon payment of this requisition.
S. This requisition contains no items representing payment on account of any
percentage entitled to be retained on the date of this requisition.
6. No Event of Default is continuing, and no event or condition is existing which,
with notice or lapse of time or both, would become an Event of Default.
7. The County has insurance in place that complies with the insurance
requirements of the Trust Agreement.
8. No portion of the amounts set forth in this requisition represents amounts
paid or payable as North Carolina state sales taxes.
ORANGE COUNTY, NORTH CAROLINA
By: !Exhibit Form Only-Do Not Sign
Title:
County Representative
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