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HomeMy WebLinkAboutAgenda 05-16-2023; 8-c - Adoption of the Final Resolution Authorizing 2023 Installment Financing for Various Capital Investment Plan Projects for Up to $14,500,000 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 16, 2023 Action Agenda Item No. 8-c SUBJECT: Adoption of the Final Resolution Authorizing 2023 Installment Financing for Various Capital Investment Plan Projects for Up to $14,500,000 DEPARTMENT: Finance and Administrative Services ATTACHMENT(S): INFORMATION CONTACT: Attachment 1 . Resolution Approving Gary Donaldson, (919) 245-2453 Financing Terms and Chaz Offenburg, (919) 245-2150 Documents for 2023 Robert Jessup, (919) 933-9891 Installment Financing Attachment 2. Deed of Trust Attachment 3. Trust Agreement PURPOSE: To adopt the final financing resolution authorizing up to $14,500,000 in installment financing for capital investment projects and equipment for the fiscal year. The financing will also include amounts to pay transaction costs. BACKGROUND: At the May 2, 2023 Business meeting, the Board of County Commissioners conducted a public hearing and approved a preliminary resolution for capital projects and equipment financing. The Board made a preliminary determination to finance costs of these projects and equipment, and the financing costs, by the use of an installment financing, as authorized under Section 160A-20 of the North Carolina General Statutes. With approval of the attached resolution, the Board gives final approval for the financing, approves the financing proposal from TD Bank, approves substantially final financing documents, and authorizes staff to complete the closing. Staff anticipates receiving the required approval of the Local Government Commission on June 6, 2023, and then closing the financing by mid-June. Between now and then, staff will work with the lender and other financing team members to confirm final documents and County payment arrangements in order to finalize remaining blanks in the documents. This process is consistent with past practice. The final project list is $2 million lower than the initial project listing, reflecting final staff adjustments for both County and School projects. The financing is set to close June 13, 2023. COLLATERAL: In this type of County installment financing, the County secures its obligations to the lender by a mortgage-type interest in some or all of the property being acquired or improved through the financing. The County plans to secure this 2023 financing through a pledge of several school properties, along with extending the existing lien on the Whitted Building, the Orange 2 County Library in Hillsborough and other County property. The school boards will convey the selected schools to the County for the financing term, so that the County can use them as collateral (and the County will lease the schools back for their continued use as schools). The attached resolution authorizes County staff to complete the process and documentation for transferring schools to the County. Lenders generally require that the County offer collateral equal to at least 50% of the loan amount. The County expects to offer collateral with a value equal to many multiples of the loan amount, but transferring schools to the County now will facilitate future school improvements and financings over the next several years. The County has flexibility to release schools individually from the financing lien if that becomes appropriate. FINANCIAL IMPACT: There is no financial impact related to this action. However, there will be a financial impact in proceeding with the financing. A preliminary estimate of maximum debt service applicable to this financing would require the highest debt service payment of approximately $1.75 million in FY 2025 (based on the interest rates provided by TD Bank and the $14.5 million not-to-exceed financing amount). The tax rate equivalent for the estimated highest debt service payment based on the current (FY 2023) value of a penny of $2,212,097 is approximately $0.0079 (0.79 cents). 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 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. 3 RES-2023-039 Attachment 1 Resolution providing final approval of terms and documents for Spring 2023 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 finance these undertakings 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 County's taxing power. County staff recommends that the County accept a proposal from TD Bank, N.A. (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 April 6, 2023. 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 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 4 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 $14,500,000, (b) for an annual interest rate or rates not to exceed 3.83% (in the absence of default, or a change in tax status as may be described in the final Documents), 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 2 5 be required under the Documents, this resolution or otherwise with respect to the financing. 4. Acceptance of Property Transfer- The County agrees to accept title to the real property associated with the schools identified on Exhibit C to facilitate the financing arrangements contemplated by the Documents. The Board ratifies all prior actions of County officers and employees toward the carrying out of these property transfers. The County Manager shall determine which properties the County will accept by the execution and delivery of the final form Deed of Trust; the execution and delivery of the final form Deed of Trust will constitute conclusive evidence of the County's acceptance of title to any properties made subject to the security interests imposed by that Deed of Trust. In addition, the Board authorizes the County Manager to approve, execute and deliver leases of any transferred schools from the County to the school districts for the continued operation of the schools. The County Manager's execution and delivery of any lease will constitute conclusive evidence of the County's approval of the form of that lease. 5. 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. 3 6 Exhibit A - list of projects to be financed with estimated amounts Project Est.Amount ($) School Projects (Combined for both Orange County and Chapel Hill - 8,271,640 Carrboro Schools) County Vehicles 1,742,927 Roofing and Facade Projects 808,502 HVAC Projects 1,084,341 County IT Projects 897,070 Remediation for emergency Services Warehouse [510 Meadowlands] 259,450 County Communications System/Radio 556,447 Upgrades Facility Accessibility, Safety and Security Improvements 331,215 Emergency Services Renewals and 110,997 Replacements Project total 14,062,589 Financing approval total 14,500,000 The County will use additional proceeds to pay financing costs. The final amount financed will not exceed the estimated total needed for the projects and the financing costs. 4 7 Exhibit B -- Draft Documents (a) A draft dated May 2, 2023, of a First Supplemental Trust Agreement to be dated on or about June 13, 2023, between the County and The Bank of New York Mellon Trust Company, N.A. (the"Trustee").This instrument provides 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. The Trustee keeps certain official records for the bonds, processes bond payments and other payments, and acts as a representative of the bondholders. (b) A draft dated May 2, 2023, of a Deed of Trust Supplement #1 to be dated on or about June 13, 2023, from the County to a deed of trust trustee for the Trustee's benefit. This instrument provides 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 Orange County Library in Hillsborough; Culbreth Middle School, Whitted Building; Blackwood Farm Park Additional Orange County Schools: Orange Middle; Hillsborough Elementary; New Hope Elementary; Pathways Elementary; Orange High Additional Schools from Chapel Hill - Carrboro: Estes Elementary; Smith Middle; Ephesus Elementary; Seawell Elementary 5 8 Attachment 2 s*h draft of May 2 Prepared by and return after recording to: Robert M. Jessup Jr. Sanford Holshouser LLP 209 Lloyd St., Suite 3S0 Carrboro, NC 27510 DEED OF TRUST SUPPLEMENT #1 PINS [To come] Brief description: [To come] Supplements RB 6730, Page 209. STATE OF NORTH CAROLINA ) The collateral is or includes fixtures. ORANGE COUNTY ) This instrument secures future advances. 9 DEED OF TRUST SUPPLEMENT #1 THIS DEED OF TRUST SUPPLEMENT #1 (this "Supplement") is dated as of June 2023, 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 [$14,500,000] Limited Obligation Bonds, Series 2023 (the "2023 Bonds"), under a First Supplemental Trust Agreement dated as of June , 2023 (the "2023 Agreement"), between the County and BNY-M, as trustee. The County is issuing the 2023 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 2023 Agreement supplements a Trust Agreement dated as of June 1, 2021 (the "2021 Agreement"). Under the 2021 Agreement, the County has issued its $23,585,000 original aggregate principal amount Limited Obligation Bonds, Series 2021A and Series 2021B (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 2023 Bonds as provided in the 2023 Agreement. The parties have further agreed that the Mortgaged Property will now also include the real property described as "Tracts " on Exhibit A, and all improvements to that property, as further described below. 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, 2021, and recorded at RB 6730, Page 209, Orange County Registry (the "Existing Deed of Trust"). The Existing Deed of Trust, as modified by this Supplement, is referred to as the "Modified Deed of Trust" in this Supplement. 2 10 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 2023 Agreement of [$14,500,000] , as well as (a) total outstanding advances with respect to the Prior Bonds of approximately $21,265,000, 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, 2021. 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 2023 Bonds and the 2023 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 2023 Agreement, the 2021 Agreement, the 2023 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," which is now defined as the following: (a) The "Mortgaged Property" as defined in the Existing Deed of Trust; along with (b) The property described as Tracts on Exhibit A and any real property later acquired by the County in exchange for, or in consideration of the exchange of, or with the proceeds from any disposition of, all or any part of any property described in this paragraph, and in all cases together with all easements, rights, rights-of-way and appurtenances belonging to any of that property (collectively, the "Added Property"); and 3 11 (c) all buildings and other improvements and fixtures now or later attached to or used in or on that the Added Property or any of its improvements, including (i) all renewals, replacements, and additions, (ii) all articles in substitution, (iii) all building materials for construction, improvement, modification or repair of improvements upon their delivery to the Added Property, and (iv) all proceeds of all the foregoing in whatever form resulting from the loss or disposition of the foregoing, including all proceeds of and unearned premiums for any insurance policies covering the Added Property and the improvements, proceeds of title insurance and payments related to the exercise of condemnation or eminent domain authority, and all judgments or settlements in lieu of any of the foregoing; all of which together now constitutes the "Mortgaged Property" for the purposes of the Modified Deed of Trust. 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 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 2021 Agreement and the 2023 4 12 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 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, 2 02 1. 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 5 13 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. 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 2021 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 2023 LOB Deed of Trust, Post Office Box 8181, Hillsborough, NC 27278 6 14 (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 2023 Orange County (NC) Financing, 4655 Salisbury Rd., STE 300, Jacksonville, FL 32256 (iii) if to BNY-M, to The Bank of New York Mellon Trust Company, N.A., Re: Notice for 2023 Orange County (NC) Financing, 4655 Salisbury Rd., STE 300, Jacksonville, FL 32256 (c) The County must send a copy of any notice it sends or receives under this Supplement to TD Bank, N.A., Re: 2023 Orange County financing, 11325 N Community House Rd., Charlotte, NC 28227, but only so long as this Bank is the registered owner of any portion of the 2023 Bonds. (d) Any addressee (including the addressee identified in (c) above) 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. 15 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. 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.] s 16 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 June, 2023. [SEAL] Notary Public My commission expires: [Deed of Trust Supplement #1 dated as of June , 2023, for the benefit of The Bank of New York Mellon Trust Company, N.A., as Trustee] 9 17 EXHIBIT A - Pledged Sites Description [To come] 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, 2021, and recorded at RB 6730, Page 209, 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. [To come.] 10 18 Attachment 3 s*h draft of May 2 First 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 [$K5001000] Limited Obligation Bonds Series 2023 19 THIS FIRST SUPPLEMENTAL TRUST AGREEMENT is dated as of June , 2023 (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 [$14,500,000] Limited Obligation Bonds, Series 2023 (the "2023 Bonds"). Introduction The County and the Trustee executed and delivered a Trust Agreement dated as of June 1, 2021 (the "Prior Agreement"). The Prior Agreement provides for the issuance of a 2021 series of limited obligation bonds (the "2021 Bonds"), and allows for the issuance of additional series of limited obligation bonds. The Prior 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 Prior Agreement and provide for the issuance of the 2023 Bonds as additional bonds under the Trust Agreement. The 2023 Bonds are issued and secured on a parity with the 2021 Bonds and the rest of the "Prior Bonds," as defined below. The County is issuing the 2023 Bonds to provide funds to be used, together with other available funds, on a project (the "2023 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 2023 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. 1 20 NOW, THEREFORE, in consideration of the covenants contained in this Supplemental Agreement, the parties agree as follows: ARTICLE I THE 2023 BONDS Section 1.01. Provision for 2023 Bonds; Advance. (a) The County will issue, and the Trustee will authenticate and deliver, 2023 Bonds in an aggregate principal amount of[$14,500,000] . (b) The County acknowledges that the amount paid to the County from the issuance and sale of the 2023 Bonds will be $ . The County will use the amount paid as provided in this Supplemental Agreement to pay 2023 Project Costs. Section 1.02. Bonds Constitute Installment Contracts. Each of the 2023 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 Prior Agreement; 2023 Bonds Are Additional Bonds. (a) This Supplemental Agreement is a "supplemental agreement" for the issuance of Additional Bonds as provided in the Prior Agreement, and the 2023 Bonds are "Additional Bonds" as defined in the Prior Agreement. (b) Except as modified by this Supplemental Agreement, all terms of the Prior Agreement remain in effect and apply with respect to the 2023 Bonds to the same extent as to all Prior Bonds. Section 1.04. Form and Details; Payments. (a) The 2023 Bonds will be issued initially as two fully registered bonds. The 2023 Bonds will be in substantially the form of Exhibit C, with any changes as the Trust Agreement 2 21 permits or requires. Each of the 2023 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 2023 Bonds (the "2023A Bond") will be designated "Limited Obligation Bond, Series 2023A." The 2023A Bond will be (i) in the principal amount of $ , (ii) numbered RA-1 for identification, (iii) payable as to interest semiannually until payment on each Payment Date at the 2023A Interest Rate, and (iv) payable as to principal on February 1 in installments in years and amounts as follows: Maturity Date Principal Maturity Date Principal (February 1� Amount ($1 (February j Amount ($1 2025 2029 2026 2030 2027 2031 2028 2032 (c) The other of the 2023 Bonds (the "2023B Bond") will be designated "Limited Obligation Bond, Series 2023B." The 2023B Bond will be (i) in the principal amount of$ , (ii)numbered RB-1 for identification, (iii) payable as to interest semiannually until payment on each Payment Date at the 2023B Interest Rate, and (iv) payable as to principal on February 1 in installments in years and amounts as follows: Maturity Date Principal Maturity Date Principal (February 11 Amount ($1 (February 11 Amount f$1 2025 2035 3 22 2026 2036 2027 2037 2028 2038 2029 2039 2030 2040 2031 2041 2032 2042 2033 2043 2034 (d) Exhibit D shows a schedule of payments due on the 2023 Bonds with respect to each Payment Date. Upon any change to the 2023A Interest Rate or the 2023B 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. Rate Changes upon Taxability. Upon any Determination of Taxability or Event of Taxability, (a) the principal of the 2023 Bonds will remain payable on dates and in amounts as provided in Section 1.04, but (b) the unpaid principal of the 2023A Bonds will, from and after the Date of Taxability, bear interest at the rate that will provide to each affected Bondholder the effective yield which it would have received if there had not been a Determination of Taxability or an Event of Taxability (the "Alternative Rate of Interest"), payable from and after the Date of Taxability. If a Determination of Taxability or Event of Taxability only applies to the 2023A or the 2023B Bond, then only the affected 2023 Bond will be subject to the Alternative Rate of Interest. The County shall also pay to each affected Bondholder, upon the Bondholder's demand, (i) the difference between interest paid and interest that would have been due at the Alternative Rate of Interest for all Payment Dates from the Date of Taxability to the demand date, and (ii) all amounts which may be necessary to 4 23 reimburse the Bondholder for any interest, penalties or other charges assessed by the United States Internal Revenue Service or the North Carolina Department of Revenue against the Bondholder by reason of the Bondholder's failure to include the interest paid by the County on the 2023 Bonds in its gross income for income tax purposes. The County shall pay to each affected Bondholder interest calculated at the Alternative Rate of Interest notwithstanding any transfer by the Bondholder or payment or prepayment by the County prior to the Determination of Taxability. As appropriate, each affected Bondholder shall promptly prepare a substitute Exhibit D reflecting the Alternative Rate of Interest, as calculated by the Bondholder, and the 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 2023 Bonds, the Deed of Trust or the Trust Agreement is continuing, the 2023 Bonds will bear interest (but only during the pendency of the default) at the Default Rate. If a default only applies to the 2023A or the 2023B Bond, then only the affected 2023 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 2023 Bonds are subject to redemption as described in Section 2.01. Section 1.08. Delivery of 2023 Bonds. The Trustee will authenticate and deliver the 2023 Bonds when it has received the following items: (a) Certified copies of County Board resolutions (i) approving the terms and conditions under which the 2023 Bonds are to be executed and delivered and (ii) authorizing the execution, delivery and issuance of the 2023 Bonds, this 5 24 Supplemental Agreement, and Deed of Trust Supplement #1 (as described in Exhibit B) (b) Evidence satisfactory to the Trustee that the LGC has approved the issuance of the 2023 Bonds (c) An executed copy of this Supplemental Agreement (d) An executed copy of Deed of Trust Supplement #1, 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 2023 Bonds, as contemplated by Section 1.06(iv) of the Prior Agreement (e) An Opinion of Bond Counsel to the effect that the execution and delivery of the 2023 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 to authenticate and then deliver the 2023 Bonds to the person or persons named therein upon payment to the Trustee of a specified sum (g) A County Certificate directing the Trustee as to the application of the proceeds from the sale of the 2023 Bonds (h) 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 2023 Bonds, and including the instrument referenced in (d) above as an insured instrument Section 1.09. Limited Obligation. The 2023 Bonds are limited obligations of the County, as provided and described in Section 4.05 of the Prior Agreement. 6 25 ARTICLE II REDEMPTION Section 2.01. Redemption Dates and Prices. (a) Principal of the 2023 Bonds is subject to redemption and prepayment prior to the scheduled Payment Dates only under the terms of this Article. (b) 2023A Bond- The County may prepay the principal of the 2023A Bond in whole or in part at any time, at the County's option, upon payment of (i) the principal amount to be prepaid, plus (ii) interest accrued to the prepayment date, plus (iii) a prepayment premium equal to the greater of 1% of the amount prepaid or a "Break Funding Fee" in an amount computed as follows: The "Current Rate" shall be subtracted from the "Original Rate." If the result is zero or a negative number, there is no Break Funding Fee. If the result is a positive number, then the resulting percentage shall be multiplied by the amount being prepaid times the "Remaining Term" divided by 360 days. That is, the "Break Funding Fee" = [Principal Amount Being Prepaid x (Original Rate - Current Rate) x (Remaining Term/360 days)] plus accrued interest. The registered owner of the 2023A Bond shall calculate the Break Funding Fee in accordance with its customary practices, and the Bondholder's calculation shall be conclusive absent manifest error. "Remaining Term" means the number of days from the calculation date to the final Payment Date on the 2023A Bond. "Current Rate" means the "Treasury Constant Maturities Rate," as defined below, effective on the calculation date. "Original Rate" means the Treasury Constant Maturities Rate effective on the day the Lender received the County's acceptance of the Lender's proposal to purchase the Bonds, that being , 2023. "Federal Reserve Banking Day" means any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which Federal Reserve is authorized or required by law, regulation or executive order to close. 7 26 "Treasury Constant Maturities Rate" means the bond equivalent yield for United States Treasury securities (bills on a discounted basis shall be converted to bond equivalent yield) with the maturity closest to the Remaining Term as published on the Federal Reserve Board website (currently: federalreserve.gov/releases/h15/), or another recognized electronic source, two Federal Reserve Banking Days prior to the determination date. (c) 2023B Bond -- (i) The County may prepay the principal of the 2023B 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. (ii) For a prepayment made on or before June 30, 2030, the County must also pay a prepayment premium of 2% of the principal amount to be prepaid. No premium or penalty is payable for a redemption of the 2023B Bond made after June 30, 2030. (d) If the County redeems a portion of a 2023 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 the 2023 Bond subject to the partial prepayment. All amounts prepaid will be applied first to any prepayment premium due for that 2023 Bond on that prepayment date, then to interest accrued to the prepayment date, and then to installments of principal in inverse order of maturity. 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 2023 Bonds to be prepaid at the addresses as appear 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 -- 8 27 (i) the Trustee's receipt on or prior to the redemption date of moneys sufficient to pay the principal of and interest on the 2023 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 2023 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. (c) Each redemption notice must specify (i) the complete designation of the 2023 Bond to be redeemed, (ii) the CUSIP numbers of the 2023 Bonds to be redeemed, if any, (iii) the dated dates, maturity dates and interest rates of the 2023 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 2023 Bonds 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 2023 Bonds that 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. 2023 Bonds 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 2023 Bonds called for redemption, the 2023 Bonds (or portions of the 2023 Bonds) called for redemption cease to accrue interest from and after the redemption date. Thereafter, those 2023 Bonds, or portions called for redemption, (a) are no longer 9 28 entitled to the benefits provided by the Trust Agreement and (b) are not deemed to be Outstanding under the Trust Agreement. ARTICLE III DEPOSIT AND USE OF 2023 PROCEEDS; OTHER FUNDS Section 3.01. Disbursement of Proceeds. The Trustee will apply proceeds from the sale of the 2023 Bonds as provided in the certificate described in Section 1.08(f). Section 3.02. Deposit and Custody of Proceeds; Security Interest. (a) The County will hold all the proceeds from the sale of the 2023 Bonds in a separate deposit account to be known as the "2023 Proceeds Account." The County will hold this account separate and apart from all other County funds. The County must use all amounts on deposit from time to time in this Account only for the payment of 2023 Project Costs (which may include the reimbursement to the County for previous expenditures on 2023 Project Costs). (b) The County grants a security interest in all funds on deposit from time to time in the 2023 Proceeds Account to the Trustee, for the benefit of the Bondholders. At any time during the continuation of an Event of Default, upon notice and demand from the Trustee, the County will pay all amounts in the 2023 Proceeds Account as the Trustee directs. (c) The Trustee has no right or obligation to review or limit the County's use of funds in the 2023 Proceeds Account. The County's is solely responsible for the investment of amounts on deposit to the credit of the 2023 Proceeds Account in Legal Investments. The County will provide such information concerning the use and investment of amounts from the 2023 Proceeds Account as the Trustee or the Lender may request from time to time. Section 3.03. Transfer of Unexpended Proceeds. When the County determines there are no more 2023 Project Costs to be paid from the 2023 Proceeds Account, the County will withdraw all remaining moneys in the 2023 Proceeds Account and pay those amounts to the Trustee for deposit in the Payment Fund. The Trustee will segregate those amounts in a separate account within the Bond 10 29 Payment Fund and 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 2023 Bonds as the same becomes due. Section 3.04. Creation of Accounts in Payment Fund. (a) The Trustee shall establish, in the 2021 Bond Payment Fund established under the Prior Agreement, three special accounts to be designated as the "2023 Interest Account," the "2023 Principal Account" and the "2023 Redemption Account." The Trustee shall keep these accounts separate and apart from all other funds and moneys held by it, and must hold and administer the same as provided below. The Trustee must deposit in the proper account in the Payment Fund all amounts paid to it for deposit in the Payment Fund, including all amounts paid to it by the County for payments on Bonds. (b) Not less than 15 days prior to each Payment Date for the 2023 Bonds, the Trustee must determine the amounts on deposit and available to make the payments due on that Payment Date with respect to the 2023 Bonds, whether in (i) the 2023 Interest Account or the 2023 Principal Account of the Payment Fund, or (ii) any special trust fund established pursuant to Section 11.01 of the Prior Agreement. The Trustee must notify the County of the available amounts not less than 10 days prior to the applicable Payment Date. The County's obligation to make payments with respect to any Payment Date is reduced by the available amounts the Trustee determines. (c) The Trustee must pay the principal of the 2023 Bonds from the 2023 Principal Account and the interest on the 2023 Bonds from the 2023 Interest Account, as the same become due. On or before each Payment Date, the Trustee must first determine if it has on hand amounts sufficient to pay the principal and interest coming due on the Bonds on the Payment Date. Then, the Trustee must set aside an amount sufficient to pay the interest on the Bonds becoming due and payable on that Payment Date, and then an amount sufficient to pay the principal on the Bonds becoming due and payable on that Payment Date. The Trustee must then transfer on the Payment Date the amounts due to the registered owner of the Bonds. (d) If the amount on deposit in the 2023 Principal Account or the 2023 Interest Account is insufficient for its purposes two Business Days before any 11 30 Payment Date, the Trustee must notify the County of the amount of the insufficiency. The Trustee must then transfer the required amounts to those Accounts from any amounts as may be available in the 2023 Redemption Account. If the amount on deposit in the 2023 Interest Account on any Payment Date exceeds the amount payable on account of interest on the 2023 Bonds on that date, the Trustee must, as directed by a County Certificate, retain the excess in the 2023 Interest Account or transfer the excess to the 2023 Principal Account to be credited against subsequent required deposits to the 2023 Principal Account. In the absence of any direction from the County, the Trustee will retain the excess in the 2023 Interest Account. If the amount on deposit in the 2023 Principal Account on any September 1 exceeds the amount required on that date to pay principal of 2023 Bonds coming due on that date, then the Trustee must, as directed by a County Certificate, retain the excess in the 2023 Principal Account or transfer the excess to the 2023 Interest Account to be credited against subsequent required deposits to the 2023 Interest Account. In the absence of any direction from the County, the Trustee will transfer the excess to the 2023 Interest Account. (e) The Trustee must deposit in the 2023 Redemption Account all amounts paid to it for deposit in that Account, and must use those amounts within 12 months of their deposit to pay 2023 Bonds called for redemption on their redemption dates. The Trustee must transfer any amounts not so used within 12 months of their deposit in the 2023 Redemption Account to the 2023 Interest Account for use on the next Payment Date to pay interest on the 2023 Bonds, and pending that use or in the absence of direction must invest those funds in Legal Investments having a yield not in excess of the "Restricted Yield," as defined in Section 3.06. Subject to retaining moneys necessary to pay 2023 Bonds that have been called for redemption but not yet presented for payment, the Trustee must use amounts in the 2023 Redemption Account as directed by a County Certificate to make transfers to the 2023 Interest Account or the 2023 Principal Account to the extent the balances in those Accounts may be insufficient. 12 31 (f) The Trustee must apply Net Proceeds deposited in the Redemption Account pursuant to Section 5.16 of the Prior Agreement to the redemption of Bonds pursuant to Section 2.01(a) of the Prior Agreement or Section 2.01 of this Supplemental Agreement as directed by a County Representative. Section 3.05. Use of Net Proceeds Fund from Prior Agreement. The Trustee is to maintain and administer the Net Proceeds Fund established under the Prior Agreement to the same effect and purpose as provided in the Prior Agreement with respect to the 2023 Bonds as to the 2021 Bonds and all Bonds generally. Section 3.06. Restricted Yield Investment. Not later than June 1, 2026, the County shall (a) invest any "Covered Proceeds," as defined below, that the County holds, and (b) direct the Trustee to invest any Covered Proceeds the Trustee holds, in either case in Legal Investments at or below a "Restricted Yield," as defined below, as the County may specify from time to time. It is the County's responsibility, and not the Trustee's, to identify and maintain investments as required by this Section. The "Covered Proceeds" are any amounts on deposit in any Fund or Account under the Trust Agreement that represent proceeds of the 2023 Bonds, including proceeds from the investment of the 2023 Bond proceeds or proceeds from the sale or other disposition of property acquired or improved through the proceeds of the 2023 Bonds (including insurance proceeds), 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 %, which is the "yield" on the 2023 Bonds. 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 210 days of the completion of each Fiscal Year. The County will send to the Lender a copy of the 13 32 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 as the Lender may reasonably request to supplement or verify financial assumptions or to verify the County's creditworthiness. 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. No Advisory or Fiduciary Relationship. The County acknowledges and agrees as follows: (a) the Lender is acting solely as a principal for the purchase of the 2023 Bonds, and not as a municipal advisor, financial advisor or fiduciary to the County or any other person or entity regardless of whether the Lender or an affiliate has or is currently acting as such on a separate transaction; (b) the Lender has not assumed any advisory or fiduciary responsibility to the County with respect to the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto (irrespective of whether the Lender or its affiliates have provided other services or are currently providing other services to the County on other matters); (c) the Lender's only obligations to the County with respect to the transaction contemplated are as expressly set out in the financing documents; and (d) the County has consulted its own legal, accounting, tax, financial and other advisors, as applicable, to the extent it has deemed appropriate. Section 4.04. Additional Event of Default. Along with the Events of Default specified in the Prior Agreement, it shall be an Event of Default if the County's unenhanced general obligation bond rating is downgraded (but not if ratings are withdrawn) below (a) Baal by Moody's Investor's Service, Inc., (b) BBB by S&P Global Ratings or (c) BBB by Fitch Ratings. 14 33 ARTICLE V ADDITIONAL PROVISIONS Section 5.01. Notices. (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 Prior 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 2023 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 2023 Financing for Orange County, 4655 Salisbury Rd., STE 300, Jacksonville, FL 32256 (iii) If to the LGC, to the North Carolina Local Government Commission, Attn: Secretary of the Commission, Re: Notice for 2023 Orange County LOBS Financing, Longleaf Building, 3200 Atlantic Ave., Raleigh, NC 27604 15 34 (iv) If to the Lender, to TD Bank, N.A., Re: 2023 Orange County financing, 11325 N Community House Rd., Charlotte, NC 28227. (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. (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. 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. 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 5.03. 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 2023 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 5.04. Severability. If any provision of this Supplemental Agreement is determined to be unenforceable, that does not affect any other provision of this Supplemental Agreement. 16 35 Section 5.05. 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 5.06. Rules for Bond Transfer. (a) Notwithstanding any provision or indication in the Trust Agreement to the contrary, the Trustee will not register the transfer of any 2023 Bonds except to (i) a bank, insurance company, or similar financial institution, or (ii) any direct or indirect wholly-owned subsidiary either of the Lender or of any transferee referenced in (i) (in either case, an "Affiliate"), provided that the Affiliate agrees to transfer the 2023 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 (iii) 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 5.06. The Trustee shall be fully protected in relying on such notification. (b) In connection with any proposed transfer of the 2023 Bonds, the County shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Code Section 6045. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information. Section 5.07. 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 Prior Agreement. [The remainder of this page has been left blank intentionally.] 17 36 IN WITNESS WHEREOF, the parties have caused this First Supplemental Trust Agreement to be executed in their corporate names by their duly authorized officers, all as of June , 2023. (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: Lisa Infusino,Vice President [First Supplemental Trust Agreement dated as of June , 2023] 18 37 Exhibit A - list of projects to be financed with estimated amounts [To come.] 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 2023 Bonds proceeds for any of the 2023 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 2023 Project Costs. Components of the 2023 Project related to the Mortgaged Property include the following: • [To come] 19 38 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. "2023 Bonds" means the County's Limited Obligation Bonds, Series 2023, originally issued pursuant to the Prior Agreement and this Supplemental Agreement as (a) a $ Limited Obligation Bond, Series 2023A, and (b) a $ Limited Obligation Bond, Series 2023B. "2023A Interest Rate" means an annual interest rate equal to 3.73%, but means the Alternative Rate of Interest under the conditions described in Section 1.05 and during the continuation an Event of Default, "2023A Interest Rate" means the Default Rate. "2023B Interest Rate" means an annual interest rate equal to 3.83%, but means the Alternative Rate of Interest under the conditions described in Section 1.05 and during the continuation an Event of Default, "2023B Interest Rate" means the Default Rate. "2023 Proceeds Account" means the 2023 Proceeds Account established pursuant to Section 3.02. "2023 Project" means the following: (a) carrying out the planned acquisitions and improvements referenced in the Introduction to this Supplemental Agreement and specified in Exhibit A; (b) carrying out any additional public acquisitions and improvements as the County may designate to the Trustee in a City Certificate, subject to the restrictions in Exhibit A; and (c) paying Financing Costs related to the 2023 Bonds. "2023 Project Costs" means "Project Costs," as defined in the Prior Agreement, related to the 2023 Project. 20 39 "Date of Taxability" means the first date upon which interest on a 2023 Bond paid by the County is included in a Bondholder's gross income for federal income tax purposes as a result of an Event of Taxability or a Determination of Taxability. "Deed of Trust" means the Prior Deed of Trust as modified by the "Deed of Trust Supplement #1" dated as of June , 2023, also granted by the County for the Trustee's benefit. "Default Rate," for any 2023 Bond, means an annual interest rate equal to the lesser of (a) then-current annual interest rate on that 2023 Bond plus 4.00% (400 basis points) and (b) the maximum lawful rate. "Determination of Taxability" means a determination that interest on a 2023 Bond paid by the County is included in gross income of a Bondholder for federal income tax purposes, which determination shall be deemed to have been made upon the first to occur of the following: (a) the date on which the Bondholder is advised in writing by the Commissioner or any District Director of the Internal Revenue Service that, as a consequence of an action, or failure to act, by the County, the interest is included in the Bondholder's gross income for federal income tax purposes; (b) the date on which the County receives notice from a Bondholder that the Bondholder has been advised (i) in writing by the Internal Revenue Service that the Service has issued a statutory notice of deficiency or similar notice to the Bondholder which asserts, in effect, that interest is included in the Bondholder's gross income for federal income tax purposes, as a result of an action, or failure to act, by the County, or (ii) by an opinion of counsel received by the Bondholder which concludes, in effect, that interest is included in the Bondholder's gross income for federal income tax purposes as a result of an action, or failure to act, by the County; (c) the day on which the County is advised in writing by the Commissioner or any District Director of the Internal Revenue Service that there has been issued a public or private ruling of the Internal Revenue Service that the interest is included in the Bondholder's gross income for federal income tax purposes as a result of an action, or failure to act, by the County; or (d) the day on which the County is advised in writing by counsel to the Bondholder that a final determination, from which no further right of appeal exists, has been made by a court of competent jurisdiction in the United States of America in a proceeding with respect to which the County has been given written notice and an opportunity to participate and defend that the interest is included in the Bondholder's gross income for federal income tax purposes, as a result of an action, or failure to act,by the County. 21 40 "Event of Taxability" means any event, occurrence or situation, resulting from an action, or failure to act, by the County, the effect of which is to cause interest on the Bonds paid by the County to be includible in a Bondholder's gross income for federal income tax purposes. "Lender" means TD Bank, N.A., as the initial purchaser of all the 2023 Bonds, together with all successors and assigns that may be the registered owner of all the 2023 Bonds. If at any time there is more than one owner of the 2023 Bonds, "Lender" means the Majority Owners. "Payment Date" with respect to the 2023 Bonds means each February 1 and August 1, beginning "Prior Agreement" means the Trust Agreement dated as of June 1, 2021, between the County and The Bank of New York Mellon Trust Company, N.A., as trustee. "Prior Deed of Trust" means the Deed of Trust and Security Agreement dated as of June 1, 2021, from the County to a Deed of Trust Trustee for the County's benefit. "Supplemental Agreement" means this First Supplemental Trust Agreement, as it may be properly amended or supplemented from time to time. "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 First Supplemental Trust Agreement and not otherwise defined have the meanings ascribed thereto in the Prior Agreement. 22 41 Exhibit C - Form of 2023 Bonds Registered Bond Number RA-1/RB-1 LIMITED OBLIGATION BOND, SERIES 2023A/2023B 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 TD Bank, N.A. 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 subject to prepayment and adjustment as described below. Interest is payable (a) from June , 2023, if this Bond is authenticated prior to , 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 23 42 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. Upon any "Determination of Taxability" or "Event of Taxability," as defined below, (a) the principal of the this Bond will remain payable on dates and in amounts as provided in Schedule I, but (b) the unpaid principal of this Bond will, from and after the "Date of Taxability," as defined below, bear interest at the rate that will provide to each affected Bondholder the effective yield which it would have received if there had not been a Determination of Taxability or an Event of Taxability (the "Alternative Rate of Interest"), payable from and after the Date of Taxability. The County shall also pay to each affected Bondholder, upon the Bondholder's demand, (i) the difference between interest paid and interest that would have been due at the Alternative Rate of Interest for all Payment Dates from the Date of Taxability to the demand date, and (ii) all amounts which may be necessary to reimburse the Bondholder for any interest, penalties or other charges assessed by the United States Internal Revenue Service or the North Carolina Department of Revenue against the Bondholder by reason of the Bondholder's failure to include the interest paid by the County on the this Bond in its gross income for income tax purposes. The County shall pay to each affected Bondholder interest calculated at the Alternative Rate of Interest notwithstanding any transfer by the Bondholder or payment or prepayment by the County prior to the Determination of Taxability. As appropriate, each affected Bondholder shall promptly prepare a substitute Schedule I reflecting the Alternative Rate of Interest, as calculated by the Bondholder, and the resulting payment schedule, and deliver a copy of the new schedule to the County, the Trustee and to the North Carolina Local Government Commission (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. "Determination of Taxability" means a determination that interest on this Bond paid by the County is included in gross income of a Bondholder for federal income tax purposes, which determination shall be deemed to have been made upon the first to occur of the following: (a) the date on which the Bondholder is advised in writing by the Commissioner or any District Director of the Internal Revenue Service that, as a 24 43 consequence of an action, or failure to act, by the County, the interest is included in the Bondholder's gross income for federal income tax purposes; (b) the date on which the County receives notice from a Bondholder that the Bondholder has been advised (i) in writing by the Internal Revenue Service that the Service has issued a statutory notice of deficiency or similar notice to the Bondholder which asserts, in effect, that interest is included in the Bondholder's gross income for federal income tax purposes, as a result of an action, or failure to act, by the County, or (ii) by an opinion of counsel received by the Bondholder which concludes, in effect, that interest is included in the Bondholder's gross income for federal income tax purposes as a result of an action, or failure to act, by the County; (c) the day on which the County is advised in writing by the Commissioner or any District Director of the Internal Revenue Service that there has been issued a public or private ruling of the Internal Revenue Service that the interest is included in the Bondholder's gross income for federal income tax purposes as a result of an action, or failure to act, by the County; or (d) the day on which the County is advised in writing by counsel to the Bondholder that a final determination, from which no further right of appeal exists, has been made by a court of competent jurisdiction in the United States of America in a proceeding with respect to which the County has been given written notice and an opportunity to participate and defend that the interest is included in the Bondholder's gross income for federal income tax purposes, as a result of an action, or failure to act,by the County. "Event of Taxability" means any event, occurrence or situation, resulting from an action, or failure to act, by the County, the effect of which is to cause interest on the Bonds paid by the County to be includible in a Bondholder's gross income for federal income tax purposes. "Date of Taxability" means the first date upon which interest on this Bond paid by the County is included in a Bondholder's gross income for federal income tax purposes as a result of an Event of Taxability or a Determination of Taxability. This Bond constitutes the entire issue of [$ ] Limited Obligation Bonds, Series 2023A/2023B (the "Bond"), issued under, and secured by, a Trust Agreement dated as of June 1, 2021, 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 First Supplemental Trust Agreement between the County and the Trustee and dated as of June , 2023 (as supplemented, the "Trust Agreement"). 25 44 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 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, 2021, as supplemented by a Deed of Trust Supplement #1 dated as of June , 2023, delivered by the County for the Trustee's benefit (as supplemented, the "Deed of Trust"). While any default by the County under this Bond, the Deed of Trust or the Trust Agreement is continuing, this Bond will bear interest (but only during the pendency of the default) at a "Default Rate" equal to an annual interest rate equal to the lesser of (a) then-current annual interest rate on this Bond plus 4.00% (400 basis points) and (b) the maximum lawful rate. 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 26 45 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. Prepayment provisions for 2O23A Bond-- The County may prepay the principal of the 2023A Bond in whole or in part at any time, at the County's option, upon payment of (i) the principal amount to be prepaid, (ii) plus interest accrued to the prepayment date, plus (iii) a prepayment premium equal to the greater of 1% of the amount prepaid or the "Break Funding Fee" in an amount computed as follows: The "Current Rate" shall be subtracted from the "Original Rate." If the result is zero or a negative number, there is no Break Funding Fee. If the result is a positive number, then the resulting percentage shall be multiplied by the amount being prepaid times the "Remaining Term" divided by 360. That is, the "Break Funding Fee" _ [Principal Amount Being Prepaid x (Original Rate - Current Rate) x (Remaining Term/360 days)] plus accrued interest. The registered owner of this Bond shall calculate the Break Funding Fee in accordance with its customary practices, and the Bondholder's calculation shall be conclusive absent manifest error. "Remaining Term" means the number of days from the calculation date to the final Payment Date on the 2023A Bond. "Current Rate" means the "Treasury Constant Maturities Rate," as defined below, effective on the calculation date. "Original Rate" means the Treasury Constant Maturities Rate effective on , 2023. "Federal Reserve Banking Day" means any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which Federal Reserve is authorized or required by law, regulation or executive order to close. "Treasury Constant Maturities Rate" means the bond equivalent yield for United States Treasury securities (bills on a discounted basis shall be converted to bond equivalent yield) with the maturity closest to the Remaining Term as published on the Federal Reserve Board website (currently: federalreserve.gov/releases/h1S/), 27 46 or another recognized electronic source, two Federal Reserve Banking Days prior to the determination date. Prepayment provisions for 2O23B Bond-- The County may prepay the principal of this 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. For a prepayment made on or before June 30, 2030, the County must also pay a prepayment premium of 2% of the principal amount to be prepaid. No premium or penalty is payable for a prepayment made after June 30, 2030. 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. All amounts prepaid will be applied first to any prepayment premium due for the Bond on that prepayment date, then to interest accrued to the prepayment date, and then to principal in inverse order of the maturity dates. No partial prepayment postpones the due dates of, or relieves the amounts of, any scheduled installment payments otherwise due. The Trustee will send redemption notice to the Bondholder, at its address as it appears on the register kept by the Trustee as provided 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 this Bond, this 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. 28 47 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 this Bond 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 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. 29 48 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 June , 2023. (SEAL) ORANGE COUNTY ATTEST: NORTH CAROLINA By: Laura Jensen Bonnie B. Hammersley Clerk, Board of Commissioners County Manager [Orange County, North Carolina [$ ] Limited Obligation Bond, Series 2023A/2023B] [Schedule I - Payment Schedule to be attached] 30 49 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 2023A/2023B Bond referred to in the First Supplemental Trust Agreement dated as of June , 2023, 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 2023A/2023B] 31 50 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. [Schedule I, payment schedule, to come] 32 51 EXHIBIT D - Schedule of Payments on 2023 Bonds Principal is payable in the amounts and on the dates as shown below, subject to redemption of the 2023B Bond as provided in this Supplemental Agreement. Interest is payable on the dates shown below. The 2023 Bonds will bear interest from the Closing Date until paid. Interest is calculated at the annual rate of 3.73% on the 2023A Bond and 3.83% on the 2023B 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 2023 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 Prior 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— Date 2023A 2023A — 2023B 20238 Total Payment [To come.] 33