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HomeMy WebLinkAboutOTHER-2023-032-Deed of Trust Supplement #1 Cog IIIINII) I III II �� III � Doc No: 30089518 Recorded : 06113I202311 :32 : 23 AM Fee Ami : $64 . 00 Page 1 of 21 Orange County North Carolina Mark Chilton, Register of Deeds BK 6818 PG 817 - 837 ( 21 ) Prepared by and return after recording to : Robert M . Jessup Jr , Sanford Holshouser LLP 209 Lloyd St., Suite 350 Carrboro , NC 27510 DEED OF TRUST SUPPLEMENT # 1 PiNs and brief descriptions 9874 - 05 - 2954 Orange County Library, Hillsborough 9777 - 99 - 9032 Culbreth Middle School 9872 - 55 � 73020 9872 - 63 - 3300 Blackwood Farm Park 9864 - 87 �8123 Whitted Building 9875 - 21 � 0552 Orange Middle 9864- 78 - 3471 Hillsborough Elementary 987245 - 5904 New Hope Elementary 9865 - 99 - 3002 Pathways Elementary 987542 - 5819 Orange High School 9799 - 544734, 9'799 - 44- 8776 Ephesus Elementary Supplements RB 6730 , Page 209 . Book 6818 Prepared by and return after recording to . Robert M . Jessup Jr. Sanford Holshouser LLP 209 Lloyd St., Suite 350 Carrboro, NC 27510 DEED OF TRUST SUPPLEMENT # 1 P1Ns and brief descriptions 9874 - 05 - 2954 Orange County Library, Hillsborough 9777 - 99 - 9032 Culbreth Middle School 9872 - 55 � 73021 9872 - 63 - 3300 Blackwood Farm Park 9864 - 87 - 8123 whitted Building 9875 - 21. 0552 Orange Middle 9864 - 78 - 3471 Hillsborough Elementary 9872 - 7S - S904 New Hope Elementary 9865 � 99 - 3002 Pathways Elementary 9875AM819 Orange High School 9799 � 54A734, 979944 - 8776 Ephesus Elementary Supplements RB 6730 , Page 209 , STATE OF NORTH CAROLINA ) The collateral is or includes fixtures . ORANGE COUNTY ) This instrument secures future advances . DEED OF TRUST SUPPLEMENT # 1 THIS DEED OF TRUST SUPPLEMENT # 1 (this " Supplement " ) is dated as of June 13 , 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 BAND OF NEW YORK MELLON TRUST COMPANY, N.A. , AS TRUSTEE ( " BNY- M " ) . i Introduction The County is issuing its $ 14 , 298 , 000 (aggregate principal amount) Limited Obligation Bonds , Series 2023 (the " 2023 Bonds " ) , under a First Supplemental Trust Agreement dated as of June 13 , 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 2 now also include the real property described as Parcels Five through Ten 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 ified Deed of Trust" in this Supplement. Supplement, is referred to as the " Mod 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, 298 , 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 . 3 i i (a) The " Mortgaged Property" as defined in the Existing Deed of Trust; along with i (b ) The property described as Parcels Five , Six, Seven , Eight, Nine and Ten 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 (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 (1) 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 " Obligations , " as defined in Section 1a- 1 below, in full and in County pays its 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; 4 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 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 14 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 , 2021 . 1 - 3 Existing Deed of Trust Otherwise Confirmed . Except as provided by this Supplement, the County ratifies, approves and confirms the terns of the Existing Deed of Trust. 5 14 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. 2 . Miscellaneous 24 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 6 acknowledgment. Any electronic communication to the Trustee is sub ect 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 : (1) if to the County, to Orange County Manager, Re : Notice under 2023 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 2023 Orange County (NC) Financing, 4655 Salisbury Rd ., STE 300 , Jacksonville , FL 32256 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 ., Attn : Mason Hurley, 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 . 24 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. 2M7 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.] 8 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 : 17 5 ORANGE COUNTY NORTH CAROLINA w 1'1 By : La ra Jensen Bonnie B . Hammersl Clerk, Board of Commissioners County Manager STATE OF NORTH CAROLINA ) ORANGE COUNTY 1 , 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 , �1 • • ' " " ' • • ''� Notary Public «� a NO � PAM r sion expires : t � `�� « ' PUBLIC �'� qN ' O ` ' • � a" ust Supplement # 1 dated as of June 13 , 2023 , lot C enefit of The Bank of New York Mellon Trust Company, N .A. , as Trustee]