1993-03-15 W&S Exhibits
STATE OF NORTH CAROLINA
ss. :
NEW HANOVER COUNTY WATER )
AND SEWER DISTRICT )
I, LUCIE F. HARRELL, Clerk of the Board of Commis-
sioners of the County of New Hanover and Clerk of New Hanover
County Water and Sewer District, DO HEREBY CERTIFY, as follows:
1. A regular meeting of the Board of commissioners,
sitting as the governing body of New Hanover County Water and
Sewer District, located in the State of North Carolina, was
duly held on March 15, 1993, proper notice of such meeting
having been given as required by North Carolina statutes, and
minutes of said meeting have been duly recorded in the Minute
Book kept by me in accordance with law for the purpose of
recording the minutes of said Board.
2. I have compared the attached extract with said
minutes so recorded and said extract is a true copy of said
minutes and of the whole thereof insofar as said minutes relate
to matters referred to in said extract.
3. Said minutes correctly state the time when said
meeting was convened and the place where such meeting was held
and the members of said Board who attended said meeting.
IN WITNESS WHEREOF, I have hereunto set my hand and
have hereunto affixed the corporate seal of said District this
/~ day of March, 1993.
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Board of Commissioners, and
Clerk, New Hanover County Water
and Sewer District
STATE OF NORTH CAROLINA
ss. :
NEW HANOVER COUNTY WATER )
AND SEWER DISTRICT )
I, LUCIE F. HARRELL, Clerk of the Board of
commissioners of the County of New Hanover, and Clerk of the New
Hanover County Water and Sewer District in the State of North
Carolina, DO HEREBY CERTIFY, as follows:
1. The county water and sewer district of the State of
North Carolina known as the "New Hanover County Water and Sewer
District" was duly created by a resolution of the Board of
commissioners of the County of New Hanover adopted on May 16,
1983. At all times since its incorporation and establishment,
said District has continuously exercised the corporate powers
given to it by the laws of North Carolina.
2. All of the territory included in said District is
located in the County of New Hanover.
IN WITNESS WHEREOF, I have hereunto set my hand and
have hereunto affixed the corporate seal of said District, this
/~ day of March, 1993.
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Board 0 Commissioners
Coun of New Hanover, and Clerk,
New Hanover County Water and Sewer
District, North Carolina
STATE OF NORTH CAROLINA
ss:
NEW HANOVER COUNTY WATER
AND SEWER DISTRICT
I, LUCIE F. HARRELL, Clerk of the Board of
Commissioners of the County of New Hanover, and Clerk of the New
Hanover County Water and Sewer District, in the State of North
Carolina, DO HEREBY CERTIFY, as follows:
1. At all times from January 1, 1993 to the date of
the closing, the following persons were members of the Board of
Commissioners of the County of New Hanover and, pursuant to
section 162A-89 of the General Statutes of North Carolina, were
members of the governing body of the District, each of whom was
elected or appointed to such office on the date set forth below
for terms of office beginning and ending on the following dates,
respectively:
Name
Date(s) of
Election/
APpointment
Term(s) of
Office
Beqan
Terms(s) of
Office
Ends/Ended
Robert G. Greer
Appointed
12/3/90
12/5/94
E.L. Mathews, Jr.
11/3/92
12/7/92
12/2/96
Sandra Barone
11/3/92
12/7/92
12/2/96
William A. Caster
11/3/92
12/7/92
12/5/94
William Sisson
11/3/92
12/7/92
12/2/96
2. At all times since January 1, 1993 E. L. MATHEWS,
JR. has served as Chairman of the governing body of the District,
having been elected to such position by the Board of
Commissioners of the County of New Hanover for a term of office
which, will expire December 2, 1996.
3. At all times since January 1, 1993, the undersigned
LUCIE F. HARRELL has served as Clerk of the Board of
commissioners of the County of New Hanover, having been appointed
to said position by the Board of commissioners for a term ex-
piring at the pleasure of said Board. The Clerk of the Board of
Commissioners ex officio serves as Clerk of New Hanover County
Water and Sewer District.
4. Each of the persons hereinabove described, prior to
the beginning of his or her respective term of office, duly
qualified for his or her office by taking the oath prescribed by
law, and where required by law, by giving an official bond, com-
plying with all legal requirements. None of said persons has
died and none of said persons has resigned his or her office,
except as may be set forth in the notes to paragraph 1 hereof.
5. At all times since January 1, 1993, WANDA M.
COPLEY, ESQ. has served as Attorney for the District, having been
appointed to said position by the Board of Commissioners, sitting
as the governing body of the District, for a term expiring at the
pleasure of said Board.
6. At all times since January 1, 1993, ALLEN O'NEAL
has served as County Manager of the County of New Hanover, having
been appointed to said position by the Board of Commissioners for
a term expiring at the pleasure of said Board.
7. At all times since January 1, 1993, ANDREW J.
ATKINSON has served as Finance Officer of the District, having
been appointed to said position by the County Manager for a term
expiring at the pleasure of said Manager.
8. None of the persons hereinbefore named has held or
executed any office or place of trust or profit under the united
States, or any department thereof, or under the State of North
Carolina, or under any other State or government at the time or
since his or her election or appointment to the respective office
to which he or she was elected or appointed as hereinabove
stated, except the respective office to which he or she was
elected or appointed as hereinabove stated.
9. The seal, an impression of which appears below, is
the official corporate seal of said District.
IN WITNESS WHEREOF, I have hereunto set my hand and the
seal of said District, this /~ day of March, 1993.
~
Board of Commissioners
County f New Hanover, and Clerk, New
Hanover County Water and Sewer District,
North Carolina
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~. I
ATTORNEY'S CERTIFICATE
To enable Messrs. LeBoeuf, Lamb, Leiby & MacRae of New
York, New York and Raleigh, North Carolina to examine into and
pass upon the validity of the obligations hereinafter referred
to, I HEREBY CERTIFY to them, as follows:
1. The NEW HANOVER COUNTY WATER AND SEWER DISTRICT, a
body corporate and politic of the State of North Carolina,
proposes to issue $28,755,000 General Obligation Refunding Bonds,
Series 1993, dated March 1, 1993.
2. I have examined the proceedings relating to the au-
thorization and issuance of said bond obligations and I have con-
sidered other satisfactory evidence submitted to me, and it is my
opinion that all conditions, acts and things required by the Con-
stitution and statutes of such State to exist, be performed or
happen precedent to the issuance of such obligations exist, have
been performed and have happened and that such obligations, if
executed and issued in accordance with such proceedings, will be
valid and legally binding obligations of said District.
3. I have made reasonable inquiry and I am satisfied
that no litigation is now pending or threatened either (1) to re-
strain or enjoin the issuance and delivery of such obligations or
(2) to question in any manner the authority of said District to
issue or the issuance or validity of any proceedings authorizing
such obligations; and that neither the corporate existence or the
boundaries nor the title of any of the officers of said District
to their respective offices is being contested.
4. I have examined and am familiar with the contents
of the Official Statement, dated February 19, 1993, distributed
by the Local Government Commission of North Carolina to
prospective bond purchasers in connection with the issuance of
the District's obligations.
5. There is no litigation of any nature now pending or
threatened by or against the District wherein an adverse judgment
or ruling could have a material adverse impact on the financial
condition of the District or adversely affect the power of the
District to levy, collect and enforce the collection of taxes or
other revenues for the payment of these or any other bonds, which
has not been disclosed in the Official Statement.
6. The Escrow Deposit Agreement, dated March 23, 1993,
between the District and First-citizens Bank & Trust Company has
been duly authorized, executed and delivered by the District and
constitutes a legal, valid and binding agreement of the District
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally from time to time in effect.
Dated:
March ___. 199~
t a..dv Pl. ~
Attorney for the New Hanov County
Water and Sewer District, North Carolina
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SIGNATURE CERTIFICATE
WE, the undersigned, acting on behalf of the New
Hanover County Water and Sewer District created and existing
under the laws of the State of North Carolina and herein referred
to as "Issuer", DO HEREBY SEVERALLY CERTIFY, as follows:
1. Subsequent to March 2, 1993 and on or prior to the
date of this certificate, we have signed each of the following
obligations (herein referred to as "Bonds") of the Issuer:
$28,755,000 General obligation Refunding Bonds, Series
1993, consisting of bonds registered as to principal and in-
terest, dated March 1, 1993 and payable, without option of prior
redemption, in annual installments on August 1 in each year as
follows:
principal principal
Year Amount Year Amount
1993 $1,875,000 2003 $1,795,000
1994 1,695,000 2004 1,815,000
1995 1,710,000 2005 990,000
1996 1,715,000 2006 1,035,000
1997 1,725,000 2007 1,085,000
1998 1,740,000 2008 1,140,000
1999 1,750,000 2009 1,200,000
2000 1,760,000 2010 1,245,000
2001 1,775,000 2011 920,000
2002 1,785,000
Interest on the Bonds is payable on August 1, 1993 and semi-
annually thereafter on each February 1 and August 1 and the Bonds
bear interest from their date as follows:
bonds payable in each of the years 1993 to 2003,
inclusive, 4.60% per annum;
bonds payable in the year 2004,
4.70% per annum;
bonds payable in the year 2005,
4.80% per annum;
bonds payable in each of the years 2006 to 2010,
inclusive, 4.90% per annum; and
bonds payable in the year 2011,
5.00% per annum.
2. The issuance of the Bonds has been authorized by a
bond order adopted by the Board of commissioners of the County of
New Hanover, sitting as the governing body of the Issuer, on
January 19, 1993 and resolutions adopted by said Board on
February 24, 1993 and March 15, 1993. The bond order has not
been rescinded or repealed or modified or amended in any respect.
The authority to execute and issue the Bonds on behalf of the Is-
suer thereby granted to the undersigned has not lapsed, been re-
voked or rescinded.
3. At the time we signed the Bonds by our manual or
facsimile signatures we were, and now are, the duly chosen,
qualified and acting officers of the Issuer, as indicated below.
A manual or facsimile of the seal impressed or imprinted, as the
case may be, upon this certificate has been impressed or
imprinted upon each of the Bonds.
IN WITNESS WHEREOF, we have hereunto set our hands and
the seal hereinbefore described, this ____ day of March, 1993.
Office
siqnature
Chairman, governing
,u"'" body of New Hanover &~ ~
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...... ..............o""'"Sewer District . ~ ~.. . '
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D1rector of F1nance a
New Hanover County Water i hAL \I / r-;-/- .
and Sewer District ___~~
I HEREBY CERTIFY that I know the persons whose
signatures appear above and am familiar with their signatures,
and that I have examined the signatures on this certificate and
that such signatures are genuine and that said persons are
officers of the Issuer as st~said ce1~te.
~J;!d 2JC Name
J:~~J~~4
-2-
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EXTRACTS FROM MINUTES OF BOARD OF COMMISSIONERS
OF THE COUNTY OF NEW HANOVER, SITTING AS THE GOVERNING
BODY OF NEW HANOVER COUNTY WATER AND SEWER DISTRICT
The New Hanover County Board of Commissioners, sitting as the
governing Cody of New Hanover County vJater and Sewer District, met in
Regular Session on Monday, March 15, 1993 at 9:00 a.m. in Court Room
401 of the New Hanover County Judicial Building, Wilmington, N.C.
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Robert G. Greer
moved that the following
resolution be adopted:
WHEREAS, the Local Government Commission of North
Carolina has informed the Board of Commissioners of the County
of New Hanover, sitting as the governing body of the New
Hanover County Water and Sewer District (the "Issuer"), that it
has sold in the manner prescribed by law the Issuer's
$28,755,000 General Obligation Refunding Bonds, Series 1993,
dated March 1, 1993 (the "Bonds"), and that the contract of
sale contemplates that the Bonds shall be payable and bear
interest as hereinafter provided; and
WHEREAS, the proceeds of the Bonds will be used,
together with other available funds, to refund General
Obligation Refunding Bonds of the Issuer, dated August 1, 1986,
and maturing in the years 1993 to 2004, inclusive, Sanitary
Sewer Bonds, Series 1986, of the Issuer, dated August 1, 1986,
and maturing in the years 1993 to 2011, inclusive, and a
Sanitary Sewer Bond, Series 1989, of the Issuer, dated August
14, 1989 and payable in installments in the years 1993 to 2029,
inclusive; and
WHEREAS, the Board of Commissioners of the County of
New Hanover, sitting as the governing body of the Issuer,
desires to take such actions as are necessary to approve the
terms of such sale, to approve the official statement and final
official statement circulated in connection therewith and to
authorize and/or confirm such other documents and actions
contemplated by such sale: NOW THEREFORE,
BE IT RESOLVED by the Board of Commissioners of the
County of New Hanover, sitting as the governing body of the
Issuer, as follows:
1. The Bonds shall mature on August 1 in the years
and principal amounts and bear interest at the rates per annum
as follows:
Year
principal Amount
Interest Rate
1993
1994
1995
1996
1997
$1,875,000
1,695,000
1,710,000
1,715,000
1,725,000
4.60%
4.60
4.60
4.60
4.60
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
1,740,000
1,750,000
1,760,000
1,775,000
1,785,000
1,795,000
1,815,000
990,000
1,035,000
1,085,000
1,140,000
1,200,000
1,245,000
920,000
4.60
4.60
4.60
4.60
4.60
4.60
4.70
4.80
4.90
4.90
4.90
4.90
4.90
5.00
The provisions of the Board's resolution adopted on February
24, 1993 respecting principal payments are deemed amended to
reflect the foregoing schedule of principal payments.
2. The Official statement dated February 19, 1993
setting forth financial and statistical data in connection with
the offering of the Bonds, which was circulated with the Notice
of Sale thereof, and the Final Official statement dated March
2, 1993, are hereby approved. In connection with this
approval, the Board of the Issuer has examined copies of the
Official statement and the Final Official statement and has, to
the extent and in the manner it has deemed necessary, discussed
the contents thereof with officers of the administration of the
Issuer. The Board of the Issuer does hereby recite that, upon
its examination and discussions, nothing has come to its
attention which would lead it to believe that said Official
statement or said Final Official Statement contains any untrue
statement of a material fact or omits to state any material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
provided that the Board makes no recitation with respect to
consideration of information supplied by, or which should have
been supplied by, the successful bidder for the Bonds.
3. The Chairman and the Clerk of the Issuer, the
County Manager, the Finance Officer and other officers of the
Issuer are hereby authorized and directed to take all other
actions necessary in connection with the sale and issuance of
the Bonds and the effectuation of the purposes for which the
Bonds are being issued.
4. This resolution shall become effective upon its
adoption.
Sandra Barone
seconded the motion, and
the motion was adopted. The vote on the adoption of the
resolution
AYES:
was as follows:
E.L. Mathews, Jr., Chairman
Sandra Barone, Vice-Chairman
Robert G. Greer
William A. Caster
William Sisson
NAYS:
None
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CERTIFICATE CONCERNING OFFICIAL STATEMENT
WE, E.L. MATHEWS, JR., ALLEN O'NEAL and ANDREW J.
ATKINSON, being the Chairman of the governing body of New Hanover
County Water and Sewer District (the "District"), the County
Manager of the County of New Hanover and the Director of Finance
of the District, respectively, DO HEREBY SEVERALLY CERTIFY, as
follows:
1. We have assisted the Local Government Commission
of North Carolina in gathering and assembling the information
contained in the Official Statement dated February 19, 1993 (the
"Official statement"), distributed by the Local Government
Commission to prospective bond purchasers in connection with the
issuance of the District's $28,755,000 General Obligation
Refunding Bonds, Series 1993 (the "Bonds"). We have examined and
are familiar with the contents of the Official statement. A true
and correct copy of said Official Statement and the final
official statement, dated March 2, 1993 consisting of the
Official Statement and the supplement thereto (the "Final
Official Statement") are attached hereto.
2. To the best of our knowledge, the Official state-
ment did not, as of its date and as of the sale date, and the
Final Official Statement does not, as of the date of delivery of
the Bonds (which latter date coincides with the date of this
certificate), contain an untrue statement of a material fact or
omit to state a material fact required to be included therein for
the purpose for which the Official Statement or the Final
Official Statement is to be used or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, provided that we make no
certification with respect to information supplied by, or which
should have been supplied by, the successful bidder for the
Bonds.
this
IN WITNESS WHEREOF, we have hereunto set our hands,
day of March, 1993.
~
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unty Manager,
w Hanover County
Dirfl~Ji~
New Hanover County Water
and Sewer District
. '. :-:, :.--'~~..:""- -.., :';;::"';;-~~"."
CERTIFICATE OF NO LITIGATION
WE, the undersigned, acting on behalf of the New
Hanover County Water and Sewer District created and existing
under the laws of the State of North Carolina and herein referred
to as "Issuer", DO HEREBY SEVERALLY CERTIFY, as follows:
1. We are on the date of this certificate, the duly
chosen, qualified and acting officers of the Issuer as indicated
below. Neither the corporate existence of the Issuer nor the
title of any of us to our respective offices is being contested.
2. Acting pursuant to authority given to us by
proceedings taken by the Issuer for that purpose, we have duly
executed the following obligations (herein referred to as
"Bonds") of the Issuer:
$28,755,000 General obligation Refunding Bonds, Series
1993, consisting of bonds registered as to principal and in-
terest, dated March 1, 1993 and payable, without option of prior
redemption, in annual installments on August 1 in each year as
follows:
Principal Principal
Year Amount Year Amount
1993 $1,875,000 2003 $1,795,000
1994 1,695,000 2004 1,815,000
1995 1,710,000 2005 990,000
1996 1,715,000 2006 1,035,000
1997 1,725,000 2007 1,085,000
1998 1,740,000 2008 1,140,000
1999 1,750,000 2009 1,200,000
2000 1,760,000 2010 1,245,000
2001 1,775,000 2011 920,000
2002 1,785,000
Interest on the Bonds is payable on August 1, 1993 and semi-
annually thereafter on each February 1 and August 1 and the Bonds
bear interest from their date as follows:
bonds payable in each of the years 1993 to 2003,
inclusive, 4.60% per annum;
bonds payable in the year 2004,
4.70% per annum;
bonds payable in the year 2005,
4.80% per annum;
bonds payable in each of the years 2006 to 2010,
inclusive, 4.90% per annum; and
bonds payable in the year 2011,
5.00% per annum.
~ ~. .~"\.-;,";:.;..~~f'~,,~,:;:,~,
:
3. No litigation of any nature is now pending or, to
our knowledge, threatened, to restrain or enjoin the issuance or
delivery of any of the Bonds or the levy or collection of taxes
to pay any of the Bonds or the interest thereon or in any manner
questioning the validity of the statutes authorizing the Bonds or
the authority or proceedings under which the Bonds are issued or
authorizing the levy or collection of such taxes.
IN WITNESS WHEREOF, we have hereunto set our hands and
have hereunto affixed the corporate seal of the Issuer and have
caused this certificate to be delivered to the purchasers of the
Bonds, this day of March, 1993.
Office
Siqnature
Chairman, governing
body of New Hanover ~
",,,tI,,..,,, County Water and ~~ It
,"~'--"OVER cd"" Sewer District ~ , _ _ _....
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f~..'.. ..~...{~ ~~
: IE: )l: : Clerk, New Hanover County -} J
:':4\ 8: fo-: Water and Sewer District ~~) '(7'
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I"" BEWEt'. .."
"",,,,, "",.,
Director of Finance
New Hanover County Water
and Sewer District
akJ~
I HEREBY CERTIFY that I know the persons whose
signatures appear above and am familiar with their signatures,
and that I have examined the signatures on this Certificate and
that such signatures are genuine and that said persons are
officers of the Issuer as stated in aid Certificate.
Name
-2-
CERTIFICATE OF NON-ARBITRAGE
We, E.L. MATHEWS, JR. and LUCIE F. HARRELL, the
Chairman of the governing body of New Hanover County Water and
Sewer District (the "Issuer"), and the Clerk of the Issuer,
respectively, being the persons duly charged, among others, with
the responsibility for issuing the Issuer's $28,755,000 General
Obligation Refunding Bonds, Series 1993, dated March 1, 1993 (the
"Bonds"), issued on the date hereof, hereby certify that:
SECTION 1. AUTHORIZATION. The Bonds have been
authorized pursuant to the Registered Public Obligations Act,
Chapter 159E of the General Statutes of North Carolina and
pursuant to The Local Government Finance Act of the State of
North Carolina, as amended, a bond order adopted by the Board of
commissioners of the County of New Hanover, sitting as the
governing body of the Issuer, on January 19, 1993 (the "Bond
Order") and resolutions adopted by said Board on February 24,
1993 and March 15, 1993 (collectively, the "Bond Resolution")
(the Bond Order and the Bond Resolution, together, the
"Resolution"). Capitalized terms herein have meanings given to
them in the Resolution, the Rebate Compliance certificate
(attached hereto as Exhibit A) and herein.
SECTION 2. COVENANT. The Issuer has covenanted in the
Resolution to comply with the provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), to the extent necessary to
preserve the exclusion from gross income of interest on the Bonds
for Federal income tax purposes. This certificate is being
executed and delivered pursuant to section 148 of the Code and
Treasury Regulations sections 1.103-13, 1.103-14, 1,103-15,
1.103-18, 1.148-0 through 1.148-11, inclusive, 1.149(d)-1, and
1.150-0 through 1.150-1, inclusive, and Temporary Treasury
Regulations 1.148-12T and 1.148-13T.
SECTION 3. PURPOSE. (a) The Bonds are being issued
for the purposes of (i) advance refunding the Issuer's
outstanding $10,645,000 General Obligation Refunding Bonds, dated
August 1, 1986 (the "Refunded 1986 Refunding Bonds"), and the
Issuer's outstanding $10,085,000 Sanitary Sewer Bonds, Series
1986, dated August 1, 1986 (the "Refunded 1986 Sewer Bonds")
(the Refunded 1986 Refunding Bonds and the Refunded 1986 Sewer
Bonds collectively referred to as the "Refunded 1986 Bonds"),
(ii) current refunding on the date hereof, the Issuer's
$6,008,000 Sanitary Sewer Bond, Series 1989, dated August 14,
1989 (the "Refunded 1989 Bond") and (iii) paying costs of
issuance of the Bonds.
(b) The Refunded 1986 Refunding Bonds were issued to
advance refund Sanitary Sewer Bonds, Series 1985, of the Issuer.
The Refunded 1986 Sewer Bonds and Refunded 1989 Bond were issued
to fund improvements to sanitary sewer facilities of the Issuer.
The Refunded 1986 Bonds and the Refunded 1989 Bond may be
collectively referred to herein as the "Refunded Bonds".
Pursuant to Treasury Regulations section 1.148-11 (j),
for purposes of this certificate, the portion of the proceeds of
the Bonds that will be used to advance refund the Refunded 1986
Bonds and to currently refund the Refunded 1989 Bond will be
-2-
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treated as proceeds of separate issues, respectively referred to
as the "Advance Refunding Issue" and the "Current Refunding
Issue". Accrued interest, premium, underwriter's discount and
other costs of issuance will be allocated between such separate
issues in the same proportion that the principal amount to be
used to accomplish the express purpose of each issue bears to the
total principal amounts used to accomplish the express purposes
of all issues composing the Bonds.
SECTION 4. NO ADVERSE ACTION. The Issuer has neither
received notice that its certification as to expectations may not
be relied upon with respect to its obligations, nor has it been
advised that any adverse action by the Commissioner of Internal
Revenue is contemplated.
SECTION 5. SECURITY. The Bonds are a direct and
general obligation of the Issuer, and the full faith, credit and
taxing power of the Issuer have been irrevocably pledged for the
payment of principal of and interest due on the Bonds.
SECTION 6. FACTS, ESTIMATES AND CIRCUMSTANCES. On the
basis of the facts, estimates and circumstances in existence on
the date hereof, we reasonably expect the following with respect
to the Bonds and with respect to the use of the proceeds of the
Bonds, and there are no facts, estimates or circumstances that
would materially change the expectations expressed in this
certificate:
-3-
".~ :',; ';.'" \:.-,.: ~.,.",':':~;"'''''-'... ~
(a) Application of Net Proceeds of the Bonds.
1. Total Net Proceeds. The amount of proceeds
received by the Issuer from the sale of the Bonds is equal to the
principal amount of $28,755,000 plus premium of $299,546.45 and
accrued interest of $82,336.22 less underwriter's discount of
$186,546.45 or $28,950,336.22 (the "Net Proceeds").
2. Accrued Interest. An amount of the Net
Proceeds equal to $82,336.22 will be used to pay accrued interest
on the Bonds on August 1, 1993.
3. Costs of Issuance. An amount of the Net
Proceeds approximately equal to $94,810.14 will be used to pay
costs of issuance of the Bonds.
4. Insurance Policy. An amount of the Net
Proceeds equal to $113,000.00 will be used to purchase an
insurance policy (the "Insurance Policy") from Municipal Bond
Investors Assurance Corporation insuring payment of principal of
and interest on the Bonds.
5. Escrow. An amount of Net Proceeds equal to
$22,791,285.48 will be deposited in an escrow account for the
Refunded 1986 Bonds (the "Escrow"), used to purchase u.s.
Treasury Bills and Notes and ultimately used to advance refund
the Refunded 1986 Bonds.
6. Current Refunded Bonds. An amount of Net
Proceeds equal to $5,868,904.38, together with $485,070 of other
funds on hand, will be used on the date hereof to pay principal
of and interest on the Refunded 1989 Bond.
-4-
(b) Refunded Bond Proceeds and other Funds on Hand.
1. 1985 Escrow. There remain unexpended certain
proceeds of the Refunded 1986 Refunding Bonds in the escrow
established with proceeds of such bonds (the "1985 Escrow") to
advance refund the Issuers' Sanitary Sewer Bonds, Series 1985.
2. Accumulated Debt Service Moneys. The Issuer
has on hand $485,070 of revenues that were to be used to pay
regularly scheduled debt service on the Refunded 1989 Bond. This
amount will be used on the date hereof to pay debt service on the
Refunded 1989 Bond.
(c) Investment Proceeds. Investment Proceeds (as
defined in Treasury Regulations section 1-148-8(d) (5) include
amounts received at any time by the Issuer, such as interest and
dividends, resulting from the investment of Net Proceeds in the
Escrow and investment of Net Proceeds ("Investment Proceeds") to
be used to pay accrued interest. Investment Proceeds of that
portion of the Bonds to be used to pay principal of and interest
and call premium on the Refunded 1986 Bonds will remain in the
Escrow and be used for the same purpose.
(d) Transferred Proceeds. On each date (a "Transfer
Date"), as original, investment or transferred proceeds of the
Advance Refunding Issue discharge principal of the Refunded 1986
Refunding Bonds, proceeds of the Refunded 1986 Refunding Bonds
that are unexpended on such date will become proceeds of the
Advance Refunding Issue (hereinafter referred to as the
"Transferred Proceeds") and cease to be proceeds of the Refunded
1986 Refunding Bonds. As among all sources of unspent proceeds
-5-
of each Refunded 1986 Refunding Bond, the aggregate amount
subject to transfer is equal to the product of the total
remaining original, investment and transferred proceeds of the
Refunded 1986 Refunding Bonds and a fraction, the numerator of
which is principal amount of such Refunded 1986 Refunding Bonds
paid with proceeds on such date and the denominator of which is
the total outstanding principal amount of the Refunded 1986
Refunding Bonds immediately prior to such discharge. As proceeds
of the Refunded 1986 Refunding Bonds in the 1985 Escrow become
transferred proceeds of the Advance Refunding Issue, a ratable
portion of each nonpurpose investment will be allocated to
Transferred Proceeds.
The following percentages of proceeds and investment
proceeds of the Refunded 1986 Refunding Bonds in the 1985 Escrow
that remain unspent on the following dates will transfer and
become proceeds of the Advance Refunding Issue:
Transfer Date Transfer Percentaqe
8/1/93 8.548614%
8/1/94 9.296353%
(d) No Overissuance. The estimated total costs of
refunding the Refunded 1989 Bonds are expected to be financed
with Net Proceeds of the Current Refunding Issue and other funds
on hand. The Net Proceeds of the Current Refunding Issue, less
payment of costs of issuance, plus the Investment Proceeds of the
Bonds, do not exceed the amounts necessary to accomplish the
purpose set forth in sections 3(a) (ii) and (iii) of this
certificate.
-6-
The estimated total costs of refunding the Refunded
1986 Bonds are expected to be financed with Net Proceeds of the
Bonds. The Net Proceeds of the Advance Refunding Issue, less
costs of issuance paid with such Net Proceeds, plus the
Investment Proceeds of the Advance Refunding Issue, do not exceed
the amounts necessary to accomplish the purposes set forth in
sections 3(a) (i) and 3(a) (iii) of the certificate.
(e) Excess Proceeds. All proceeds of the Advance
Refunding Issue (including Investment Proceeds) will be used
either to (i) pay principal of and interest and call premium on
the Refunded 1986 Bonds, (ii) pay costs of issuance of the
Advance Refunding Issue or (iii) pay not more than six months
accrued interest on the Advance Refunding Issue. Thus, there
will be no "excess proceeds" of the Advance Refunding Issue
within the meaning of Treasury Regulations section 1.103-15.
(f) No sinking Fundso There are no funds or accounts
as to which the amounts on deposit therein are reasonably
expected to be used to pay debt service on the Bonds or as to
which there is a reasonable assurance that the amounts on deposit
therein will be available for the payment of debt service on the
Bonds in the event that the Issuer encounters financial
difficulties.
(g) single Issue. There are no other obligations
(i) that are expected to be secured by the full faith and credit
for the Issuer (ii) are being issued at substantially the same
time as the Bonds and (iii) are being sold pursuant to a common
plan of financing with the Bonds.
-7-
(h) Bond Yield. Bond Yield shall generally mean that
yield which, when used in computing the present value on the
Delivery Date of all expected issue payments (principal and
interest, early retirement value, qualified guarantee payments,
if any, and the retirement price) paid and to be paid on the
Bonds, produces an amount equal to the present value on the
delivery date of the aggregate issue prices of the Bonds (defined
as the initial offering price to the public, excluding bond
houses, brokers or similar persons or organizations acting in the
capacity of underwriters or wholesalers, at which price a
substantial amount of such Bonds of each series and maturity is
sold). The present value on the delivery date of the aggregate
issue prices of the Bonds, as so defined, and based upon certain
information provided by the Underwriter of the Bonds and attached
hereto as Exhibit B is $29,054,546.45, plus accrued interest.
In computing the Bond Yield, amounts paid as premiums on the
Insurance Policy will constitute payments for a qualified
guarantee and will be treated as additional interest on the
Bonds. The Underwriter has represented that the present value of
the premiums to be paid for the Insurance Policy is less than the
present value of the interest reasonably expected to be saved as
a result of the Insurance Policy. The Bond Yield, so calculated,
is equal to 4.642987% and has been verified by McGladrey & Pullen
in the verification report.
-8-
(i) Yield Limitations.
(1) Costs of Issuance. Net Proceeds used to pay
costs of issuance of the Bonds will be invested without regard to
yield restriction for one year from the date hereof.
(2) Net Proceeds in the Escrow. Net Proceeds
deposited in the Escrow and used to advance refund the Refunded
1986 Bonds will be invested at a yield that, together with the
yield on investment earnings on such Net Proceeds and the yield
on the Transferred Proceeds does not exceed the Bond Yield.
(3) Net Proceeds Used to Pay Refunded 1989 Bond.
Net Proceeds used to pay debt service on the Refunded 1989 Bond
will not be invested.
(4) Accrued Interest. Net Proceeds of the Bonds
used to pay accrued interest will be invested without regard to
yield restriction for one year from the date hereof.
(5) Investment Proceeds. Investment earnings on
Net Proceeds used to pay debt service on the Refunded 1986 Bonds
will be invested at a yield that, together with the yield on
investment of the Net Proceeds of the Refunded 1986 Bonds
deposited in the Escrow and the yield on the Transferred
Proceeds, does not exceed the Bond Yield. Investment earnings on
proceeds of the Bonds not to be used to pay debt service on the
Refunded Bonds will be invested without regard to yield
restriction for a period ending one year from the date of
receipt.
(6) No Replacement. No portion of the amounts
received from the sale of the Bonds will be used as a substitute
-9-
for other funds that were otherwise to be used as a source of
payment for the Refunded Bonds and that have been or will be used
to acquire, directly or indirectly, non-purpose investments
producing a yield in excess of the yield on the Bonds.
SECTION 7. PROHIBITED INVESTMENTS AND DISPOSITIONS.
No investment will be acquired for an amount in excess
of the fair market value of such investment as defined in Exhibit
C to this certificate. No investment will be sold or otherwise
disposed of for an amount less than the fair market value of the
investment.
SECTION 8. REBATE.
The Issuer agrees to comply with the rebate
requirement described in the Rebate Compliance certificate,
attached hereto as Exhibit A, with respect to the Bonds.
SECTION 9. ALLOCATION AND ACCOUNTING RULES. The
Issuer shall comply with the allocation and accounting rules
contained in Exhibit D, attached hereto.
-10-
SECTION 10. INFORMATION REPORTING.
The Issuer will review the Internal Revenue Service
Form 8038-G to be filed in connection with the issuance of the
Bonds, and will not authorize LeBoeuf, Lamb, Leiby & MacRae to
file Form 8038-G on its behalf unless all of the information
contained therein is, to the best of the Issuer's knowledge, true
and complete.
NEW HANOVER COUNTY WATER
AND SEWER DISTRICT,
NORTH CAROLINA
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Water and Sewer
Date: March /7, 1993
-11-
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LLL&M DRAFT
3~/93
ESCROW DEPOSIT AGREEMENT
This ESCROW DEPOSIT AGREEMENT, dated March 23, 1993, by
and between the New Hanover County Water and Sewer District,
North Carolina (the "District") and First-Citizens Bank & Trust
Company, Raleigh, North Carolina, as escrow agent hereunder (the
"Escrow Agent") :
WITNESSETH:
WHEREAS, the District, pursuant to The Local Government
Finance Act and a bond order adopted by the Board of
Commissioners of the County of New Hanover (the "County"),
sitting as the governing body of the District, on June 23, 1986
issued its $16,150,000 General Obligation Refunding Bonds, dated
August 1, 1986 and $10,645,000 of such General Obligation
Refunding Bonds, stated to mature in installments on August 1 in
each of the years 1993 to 2004, inclusive, are outstanding (the
"1986 Refunding Bonds"); and
WHEREAS, the District, pursuant to The Local Government
Finance Act and a bond order adopted by the Board of
Commissioners of the county, sitting as the governing body of the
District, on December 19, 1983 issued its $11,000,000 sanitary
Sewer Bonds, Series 1986, dated August 1, 1986 and $10,085,000 of
such Sanitary Sewer Bonds, Series 1986, stated to mature in
installments on August 1 in each of the years 1993 to 2011,
inclusive, are outstanding (the "1986 sanitary Sewer Bonds"); and
WHEREAS, the District, pursuant to The Local Government
Finance Act and a bond order adopted by the Board of
Commissioners of the County, sitting as the governing body of the
District, on December 19, 1983 issued its $6,062,000 sanitary
Sewer Bond, Series 1989, dated August 14, 1989 and $6,008,000 of
such Sanitary Sewer Bond, Series 1989, payable in installments on
June 1 in each of the years 1993 to 2029, inclusive, is
outstanding (the "1989 Sanitary Sewer Bond"); and
WHEREAS, the District, pursuant to The Local Government
Finance Act, a bond order adopted by the Board of commissioners
of the County, sitting as the governing body of the District, on
January 19, 1993 and resolutions adopted by said Board of
Commissioners, sitting as the governing body of the District, on
~February 24, 1993 and March ~, 1993, authorized,the,issuance ~nd
provided for the sale of $28,755,000 General obllgatlon Refundlng
Bonds, series 1993 (the "Refunding Bonds") I for the purpose of
providing funds, together with other available funds, to pay and
refund the 1986 Refunding Bonds, the 1986 sanitary Sewer Bonds
and the 1989 Sanitary Sewer Bondi and
WHEREAS, the District has determined to provide for the
payment, refunding and redemption of the 1986 Refunding Bonds by
depositing with the Escrow Agent cash and non-callable direct
obligations of the united States of America, which obligations
shall not include investments in money market mutual funds
("Government obligations"), in such amounts and maturing at
stated fixed prices as to principal and interest at such times so
that sufficient moneys will be available from such principal and
interest to pay, as the same mature and become due, all principal
and interest on the outstanding 1986 Refunding Bonds maturing on
August 1, 1993 to August 1, 1996, inclusive, and to redeem on
August 1, 1996, at the applicable redemption price, as stated in
each outstanding 1986 Refunding Bond, the 1986 Refunding Bonds
maturing after August 1,1996 (collectively, the "Refunded 1986
Refunding Bonds"); and
WHEREAS, the District has determined to provide for the
payment, refunding and redemption of the 1986 Sanitary Sewer
Bonds by depositing with the Escrow Agent cash and Government
Obligations, in such amounts and maturing at stated fixed prices
as to principal and interest at such times so that sufficient
moneys will be available from such principal and interest to pay,
as the same mature and become due, all principal and interest on
the outstanding 1986 Sanitary Sewer Bonds maturing on August 1,
1993 to August 1, 1996, inclusive, and to redeem on August 1,
1996, at the applicable redemption price, as stated in each
outstanding 1986 sanitary Sewer Bond, the 1986 Sanitary Sewer
Bonds maturing after August 1, 1996 (collectively, the "Refunded
1986 sanitary Sewer Bonds"); and
WHEREAS, the District has determined to provide for the
refunding and redemption of the 1989 Sanitary Sewer Bond by
depositing with the Escrow Agent cash in such amount as is
sufficient to redeem on March 23, 1993, at the applicable
redemption price, as stated in the outstanding 1989 sanitary
Sewer Bond, the 1989 sanitary Sewer Bond (the "Refunded 1989
Sanitary Sewer Bond") (the Refunded 1986 Refunding Bonds, the
Refunded 1986 Sanitary Sewer Bonds and the Refunded 1989 Sanitary
Sewer Bond may be collectively referred to herein as the
"Refunded Bonds");
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants hereinafter set forth, the parties hereto
agree as follows:
-2-
1. Creation of Escrow Account and Expense Account.
There is hereby created and established with the Escrow Agent a
special and irrevocable escrow account, designated "1993 Escrow
Account," to be held in the custody of the Escrow Agent separate
and apart from other funds of the District or of the Escrow Agent
as a trust fund for the benefit of the holders of the Refunded
Bonds.
There is also hereby created and established with the
Escrow Agent the special account designated "1993 Expense
Account" to be held in the custody of the Escrow Agent separate
and apart from other funds of the District or of the Escrow
Agent.
2. Deposit of Moneys. Concurrently with the execution
of this Agreement, the District deposits or causes to be
deposited with the Escrow Agent, and the Escrow Agent
acknowledges receipt of, immediately available moneys for deposit
in the following Accounts, in the amounts and from the sources
indicated, to be supplied solely as provided in this Agreement:
(a)
$28,660,189.86, to be deposited in the 1993 Escrow
Account, from the proceeds of the Refunding Bonds.
(b)
$485,070, to be deposited in the 1993 Escrow
Account from cash in the District's water and
sewer fund.
(c)
$94,810.14, to be deposited in the 1993 Expense
Account, from the proceeds of the Refunding Bonds.
3. Irrevocable Trusts Created. The deposit of moneys
in the Accounts, as provided in paragraph 2 (a) and (b) hereof,
shall constitute an irrevocable deposit and pledge of said moneys
for the equal and ratable benefit of the holders of the Refunded
Bonds. The holders of the Refunded Bonds shall have an express
lien on all moneys deposited in the 1993 Escrow Account, and on
the Government Obligations credited to the 1993 Escrow Account,
until applied in accordance with this Agreement. The matured
principal of the Government Obligations and the interest thereon
shall be held in trust by the Escrow Agent, and shall be applied
as hereinafter set forth, solely to the payment of the principal
of and premium and interest on the Refunded Bonds, respectively,
as the same become due and payable, whether at maturity or upon
the redemption thereof.
4. Purchase of Government Obligations. The Escrow
Agent is hereby directed to immediately purchase the non-callable
Government Obligations listed on Exhibit A hereto, solely for the
account of and from the moneys deposited in the 1993 Escrow
Account, as therein set forth. A $6,353,974,38 portion of the
moneys deposited in the 1993 Escrow Account shall not be
invested. The Escrow Agent shall apply the moneys deposited in
-3-
the 1993 Escrow Account, and the Government Obligations purchased
therewith, together with all income or earnings thereon, in
accordance with the provisions hereof. The Escrow Agent shall
have no power or duty to invest any moneys held hereunder or to
make substitutions of the Government Obligations held hereunder
or to sell, transfer or otherwise dispose of the Government
Obligations acquired hereunder except as provided in this
Agreement.
5. Substituted Government Obliqations. Except as
otherwise expressly provided in paragraphs 3, 4 and 6 hereof and
this paragraph 5, the Escrow Agent shall have no power or duty to
invest any moneys held hereunder or to make substitutions of the
non-callable Government obligations held hereunder or to sell,
transfer or otherwise dispose of the Government obligations
acquired hereunder, or to pay interest on any such moneys not
required to be invested hereunder; provided, however, that at the
written direction of the Finance Director of the District and
upon compliance with the conditions hereinafter stated, the
Escrow Agent shall have the power to sell, transfer, or otherwise
dispose of the Government Obligations acquired hereunder, to
substitute therefor other direct, non-callable, non-prepayable
Government obligations and to release excess cash from the 1993
Escrow Account and pay such cash to the District. The Escrow
Agent shall purchase such substitute Government Obligations and
shall pay such excess cash to the District with the proceeds
derived from the sale, transfer, or disposition of the Government
Obligations. The substitution of Government Obligations
described above and the payment of such excess cash to the
District may be effected only if (i) the moneys and Government
Obligations on deposit immediately after such substitution will
be sufficient to meet or exceed the amount required to pay and
refund the Refunded Bonds as hereinbefore provided, (ii) the
District and the Escrow Agent shall receive, at the expense of
the District, and may rely conclusively upon, a verification of
an independent certified public accountant or firm of independent
certified public accountants designated by the District and not
unacceptable to the Escrow Agent that the moneys and Government
obligations on deposit immediately after such substitution or
release of cash will be sufficient to meet or exceed the amount
required to pay and refund the Refunded Bonds as hereinbefore
provided without any reinvestment, (iii) notification of
substitution will be given to Moody's Investors Service and
Standard and Poor's Corporation and (iv) the Escrow Agent shall
receive an opinion of LeBoeuf, Lamb, Leiby & MacRae or other
nationally recognized bond counsel to the effect that the
substitution and payment of excess cash to the District will not
cause any of the Refunding Bonds to be an "arbitrage bond" within
the meaning of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder,
6. Deposit of Amounts Received. The Escrow Agent
shall deposit, as received, to the credit of the 1993 Escrow
-4-
Account, all maturing principal of and interest on the Government
obligations purchased with the moneys deposited in the 1993
Escrow Account. Any portion of the maturing principal of and
interest on the Government Obligation so deposited in the 1993
Escrow Account and not needed at the time to make the payments on
Refunded Bonds shall remain in trust and be invested in direct
obligations of the united states of America (for the benefit of
the holders of the Refunded Bonds until applied in accordance
with section 7 hereof and as shown in Exhibit B hereto), which
mature prior to the next redemption date, maturity date or
interest payment date of the Refunded Bonds; provided that in no
event may the aggregate investment earnings from such
reinvestment exceed $227 912.85. The earnings from such
reinvestment shall, to the extent not required to be applied to
meet the requirements set forth in Exhibit B, be remitted by the
Escrow Agent to the District.
The Escrow Agent shall invest at prevailing market
rates amounts in the Expense Account until such time as such
amounts are needed for payment of expenses as provided herein.
7. Transfers from Accounts for Payment of Refunded
Bonds and Expenses.
(a) The Escrow Agent shall, on or immediately prior to
each interest or principal payment date for the Refunded 1986
Refunding Bonds, transfer from cash on hand to First-citizens
Bank & Trust Company, Raleigh, North Carolina, the paying and
disbursement agent for the Refunded 1986 Refunding Bonds, amounts
sufficient to pay the interest on and any principal or redemption
price of the Refunded 1986 Refunding Bonds payable on such date,
as set forth in Exhibit B-1 hereto.
(b) The Escrow Agent shall, on or immediately prior to
each interest or principal payment date for the Refunded 1986
sanitary Sewer Bonds, transfer from cash on hand to First-
citizens Bank & Trust Company, Raleigh, North Carolina, the
paying and disbursement agent for the Refunded 1986 sanitary
Sewer Bonds, amounts sufficient to pay the interest on and any
principal or redemption price of the Refunded 1986 Sanitary Sewer
Bonds payable on such date, as set forth in Exhibit B-2 hereto.
(c) The Escrow Agent shall, on March 23, 1993, upon
presentation for redemption of the Refunded 1989 Sanitary Sewer
Bond, pay from cash on hand to the United States of America,
Farmers Home Administration, the registered owner of the Refunded
1989 Sanitary Sewer Bond, the sum of $6,353,974.38, to redeem
said Refunded 1989 Sanitary Sewer Bond on such date.
(d) If the Escrow Agent shall determine that amounts
in the 1993 Escrow Account available to make the payments
required by paragraphs (a), (b) and (c) of this section 7 are
insufficient for such required payments, the Escrow Agent shall
-5-
immediately notify the Finance Director of the District in
writing of such shortfall, c/oANew Hanover Water and Sewer
District Finance Director, 320 Chestnut Street, wilmington, North
Carolina 28401.
(e) The Escrow Agent
satisfactory invoices, pay from
incurred in connection with the
approximate expenses, stated in
shall, upon receipt of
the Expense Account expenses
refunding, including those
the aggregate, set forth below:
Financial Consultant -
Bond Counsel -
Escrow Agent -
Ratings -
Verification
Local Government Commission,
publications, Postage
and Miscellaneous -
$
8. Redemption: Notice of Redemption.
(a) The District specifically and irrevocably elects
to redeem on August 1, 1996 the Refunded 1986 Refunding Bonds
maturing on and after August 1, 1997. The Escrow Agent is hereby
irrevocably authorized and directed, and hereby agrees, to cause
to be given a notice of redemption of the Refunded 1986 Refunding
Bonds in substantially the form set forth in Exhibit C-1 attached
hereto. The Escrow Agent hereby agrees to inform the District
promptly and in writing of the required mailing and publication
of said notice of redemption.
(b) The District specifically and irrevocably elects
to redeem on August 1, 1996 the Refunded 1986 Sanitary Sewer
Bonds maturing on and after August 1, 1997. The Escrow Agent is
hereby irrevocably authorized and directed, and hereby agrees, to
cause to be given a notice of redemption of the Refunded 1986
Sanitary Sewer Bonds in substantially the form set forth in
Exhibit C-2 attached hereto. The Escrow Agent hereby agrees to
inform the District promptly and in writing of the required
mailing and pUblication of said notice of redemption,
(c) The District specifically and irrevocably elects
to redeem on March 23, 1993 the Refunded 1989 Sanitary Sewer
Bond.
(d) With respect to the Refunded 1986 Refunding Bonds,
the notice of redemption, stating the redemption date, redemption
price and identifying the bonds to be redeemed by reference to
their numbers and further stating that on such redemption date
there shall become due and payable upon each bond so to be
redeemed, the principal thereof, redemption premium and interest
-6-
accrued to the redemption date and that from and after such date
interest thereon shall cease to accrue, shall be given by
publication at least once in a newspaper of general circulation
published in the County of New Hanover, North Carolina and at
least once in a newspaper of general circulation or a financial
journal distributed in the Borough of Manhattan, City and state
of New York not less than 30 days prior to the redemption date
fixed in said notice. Such notice shall also be given in writing
to the registered owners, by pre-paid certified or registered
mail, at their addresses as such addresses appear on the records
of First-citizens Bank & Trust Company, Raleigh, North Carolina,
as bond registrar for the Refunded 1986 Refunding Bonds not less
than 30 days nor more than 60 days prior to the redemption date
fixed in said notice.
(e) with respect to the Refunded 1986 Sanitary Sewer
Bonds, the notice of redemption, stating the redemption date,
redemption price and identifying the bonds to be redeemed by
reference to their numbers and further stating that on such
redemption date there shall become due and payable upon each bond
so to be redeemed, the principal thereof, redemption premium and
interest accrued to the redemption date and that from and after
such date interest thereon shall cease to accrue, shall be given
by publication at least once in a newspaper of general
circulation published in the County of New Hanover, North
Carolina and at least once in a newspaper of general circulation
or a financial journal distributed in the Borough of Manhattan,
City and State of New York not less than 30 days prior to the
redemption date fixed in said notice. Such notice shall also be
given in writing to the registered owners, by pre-paid certified
or registered mail, at their addresses as such addresses appear
on the records of First-citizens Bank & Trust Company, Raleigh,
North Carolina, as bond registrar for the Refunded 1986 Sanitary
Sewer Bonds not less than 30 days nor more than 60 days prior to
the redemption date fixed in said notice.
(f) with respect to the Refunded 1989 Sanitary Sewer
Bond, the notice of redemption, in a form satisfactory to the
united States of America, Farmers Home Administration, as
registered owner of the Refunded 1989 Sanitary Sewer Bond, has
been provided to the registered owner of the Refunded 1989
Sanitary Sewer Bonds.
9. Surplus Funds. When all the Refunded Bonds and
interest due thereon have been paid and discharged, this Escrow
Deposit Agreement shall terminate and all remaining moneys and
Government Obligations, together with any income and interest
thereon, in the 1993 Escrow Account shall be transferred to the
District by the Escrow Agent.
Any money remaining in the 1993 Expense Account on
May 15, 1993 shall be transferred to the District by the Escrow
Agent.
-7-
10. Acceptance bv Escrow Aqent; Liabilitv.
(a) By execution of this Agreement, the Escrow Agent
accepts the duties and obligations as Escrow Agent hereunder.
The Escrow Agent represents that it has all requisite power, and
has taken all corporate actions necessary, to execute the trusts
hereby created,
(b) The Escrow Agent shall not be liable in connection
with the performance of its duties hereunder except for its own
negligence or default. The Escrow Agent shall not be liable for
any loss resulting from any investment made pursuant to the terms
and provisions of this Agreement. The Escrow Agent shall have no
lien whatsoever upon any of the moneys or investments in the 1993
Escrow Account for the payment of fees and expenses for services
rendered by the Escrow Agent under this Agreement.
(c) The Escrow Agent shall not be liable for the
accuracy of the calculations as to the sufficiency of moneys
deposited, and of the principal amount of the Government
obligations as provided herein, and the earnings thereon, to p~y
the Refunded Bonds or any of them. So long as the Escrow Agent
applies any moneys, the Government Obligations and the earnings
therefrom to pay the Refunded Bonds as provided herein, and
complies fully with the terms of this Agreement, the Escrow Agent
shall not be liable for any deficiencies in the amounts necessary
to pay the Refunded Bonds caused by such calculations.
(d) In the event of the Escrow Agent's failure to
account for any of the Government obligations or moneys received
by it, such Government Obligations or moneys shall be and remain
the property of the District in trust for the holders of the
Refunded Bonds as herein provided, and if for any reason such
Government Obligations or moneys are not applied as herein
provided, or cannot be identified, the assets of the Escrow Agent
shall be impressed with a trust in the amount thereof for the
benefit of the holders of the Refunded Bonds until the required
application or identification shall be made.
11. Escrow Aqent Reports. The Escrow Agent shall, no
later than August 15th in each year during which this Agreement
is in effect, furnish the District a written report of the
receipts, investments, redemptions and payments of and from the
1993 Escrow Account as of the immediately preceding August 1.
12. Receipt of Proceedinqs. Receipt of true and
correct copies of the bond order and resolutions authorizing the
issuance and providing for the sale of the Refunding Bonds is
hereby acknowledged by the Escrow Agent, and reference herein to
or citation herein of any provision of said documents shall be
deemed to incorporate the same as a part hereof in the same
manner and with the same effect as if they were fully set forth
herein.
-8-
13. Amendments. In the absence of 100% bondholder
approval, amendments to this Agreement shall be limited to (a)
the insertion of unintentionally omitted material or the
correction of mistakes or clarification of ambiguities, (b) the
pledging of additional security to the holders of the Refunded
Bonds, (c) the deposit of additional cash or securities in the
1993 Escrow Account or (d) amendments which will not result in a
lowering or withdrawal of Moody's Investors Service's rating or
standard & Poor's Corporation's rating as confirmed in writing by
Moody's and Standard & Poor's, respectively. Prior written
notice of an amendment to the Agreement shall be given to Moody's
Investors Service, attention Public Finance Rating Desk/Refunded
Bonds, 99 Church Street, New York, New York 10007 and to
Standard & Poor's Corporation at its principal office in New York
City.
14. Severability. If anyone or more of the covenants
or agreements provided in this Agreement on the part of the
District or the Escrow Agent to be performed should be determined
by a court of competent jurisdiction to be contrary to law, such
covenant or agreement shall be deemed and construed to be
severable from the remaining covenants and agreements herein
contained and shall in no way affect the validity of the
remaining provisions of this Agreement. The District shall
promptly notify Moody's Investors Service and Standard & Poor's
Corporation in writing if any portion of this Agreement is
severed because of its illegality, The required notice shall be
given to Moody's Investors Service and to Standard & Poor's
corporation at the respective address provided in section 13.
15. Counterparts.
several counterparts, all or
all purposes as one original
and the same instrument.
This Agreement may be executed in
any of which shall be regarded for
and shall constitute and be but one
-9-
16. Governinq Law. This Agreement shall be governed
by and construed in accordance with the applicable law of the
state of North Carolina.
IN WITNESS WHEREOF, the parties hereto have each caused
this Agreement to be executed by their duly authorized officers
and their official seals to be hereunto affixed and attested as
of the date first above written.
NEW HANOVER COUNTY WATER
AND SEWER DISTRICT,
NORTH CAROLINA
By
Chairman, governing body of
New Hanover County Water and
Sewer District
[DISTRICT]
[Seal]
Attest:
Clerk, New Hanover County
Water and Sewer District
FIRST-CITIZENS BANK & TRUST COMPANY
[Seal]
Attest:
By
AAssistant Vice President
Assistant Secretary:
-10-
EXHIBIT A
GOVERNMENT OBLIGATIONS PURCHASED
MARCH 23, 1993
~ Par Coupon Maturitv Price
T-Bill $ 1,170,000 0% 7/29/93 98.936889
T-Note 1,100,000 4.250% 7/31/94 100.906250
T-Note 1,089,000 8.875% 7/15/95 110.687500
T-Note 17,355,000 7.875% 7/31/96 110.062500
Accrued Interest Total Cost
0.00 1,157,561. 60
6586.33 1,116,555.08
17,888.03 1,223,274.91
192,547.01 19,293,893.89
EXHIBIT B-1
DEBT SERVICE REQUIREMENTS
General Obligation Refunding Bonds
dated August 1, 1986
Debt service Interest Redemption
pavment date Princioal rate Interest premium
08/01 /93 $ 910,000 7.10% $377,897.50 0
02/01/94 $345,592.50 0
08/01/94 $ 905,000 7.10 $345,592.50 0
02/01/95 $313,465.00 0
08/01/95 $ 905,000 7.10 $313,465,00 0
02/01/96 $281,337.50 0
08/01/96 $ 900,000 7.10 $ 31,950.00 0
08/01/96 $ 895,000 7.10 $ 31,772.50 $ 4,475
08/01/96 $ 890,000 7.10 $ 31,595.00 $ 8,900
08/01/96 $ 890,000 7,10 $ 31,595.00 $13,350
08/01/96 $4,350,000 7.10 $154,425.00 $87,000
EXHIBIT B-2
DEBT SERVICE REQUIREMENTS
Sanitary Sewer Bonds, Series 1986
dated August 1, 1986
Debt service Interest Redemption
oavment date Principal rate Interest oremium
08/01/93 $ 255,000 7.50% $379,870,00 0
02/01/94 $370,307,50 0
08/01/94 275,000 7,50 $370,307.50 0
02/01/95 $359,995,00 0
08/01/95 300,000 7.50 $359,995.00 0
02/01/96 $348,745.00 0
08/01/96 320,000 7,50 $ 12,000.00 0
08/01/96 340,000 7.50 $ 12,750,00 $ 1,700
08/01/96 370,000 7.50 $ 13,875.00 $ 3,700
08/01/96 395,000 7,50 $ 14,812.50 $ 5,925
08/01/96 4,465,000 7.50 $167,437.50 $89,300
08/01/96 3,365,000 7.60 $127,870.00 $67,300
EXHIBIT C-1
NOTICE OF REDEMPTION
NEW HANOVER COUNTY WATER AND SEWER DISTRICT
General obligation Refunding Bonds
Dated August 1, 1986
NOTICE IS HEREBY GIVEN by the Board of Commissioners of
the County of New Hanover, sitting as the governing body of the
New Hanover County Water and Sewer District, North Carolina that
all of the outstanding General Obligation Refunding Bonds, of the
New Hanover County Water and Sewer District, North Carolina,
dated as of August 1, 1986, numbered , inclusive, and
maturing on August 1 in the years 1997 to 2004, inclusive, are
hereby called for redemption and prepayment on August 1, 1996.
Each of the bonds so called for redemption and prepayment shall
be redeemed and prepaid at the applicable redemption price
(100 1/2% of the principal amount thereof for bonds numbered
to , inclusive; 101% of the principal amount thereof for bonds
numbered to , inclusive; 101 1/2% of the principal amount
thereof for-bonds numbered to , inclusive; and 102% of the
principal amount thereof for bonds numbered to ,
inclusive) plus accrued interest to the date of redemption. The
bonds so called for redemption shall be payable at the principal
office of First-citizens Bank & Trust Company, Raleigh, North
Carolina, and the bonds shall cease to bear interest as of
August 1, 1996.
BOARD OF COMMISSIONERS OF THE
COUNTY OF NEW HANOVER, SITTING
AS THE GOVERNING BODY OF
NEW HANOVER COUNTY WATER
AND SEWER DISTRICT
NORTH CAROLINA
EXHIBIT C-2
NOTICE OF REDEMPTION
NEW HANOVER COUNTY WATER AND SEWER DISTRICT
sanitary Sewer Bonds, Series 1986
Dated August 1, 1986
NOTICE IS HEREBY GIVEN by the Board of Commissioners of
the County of New Hanover, sitting as the governing body of the
New Hanover County Water and Sewer District, North Carolina that
all of the outstanding sanitary Sewer Bonds, Series 1986, of the
New Hanover County Water and Sewer District, North Carolina,
dated as of August 1, 1986, numbered , inclusive, and
maturing on August 1 in the years 1997 to 2011, inclusive, are
hereby called for redemption and prepayment on August 1, 1996.
Each of the bonds so called for redemption and prepayment shall
be redeemed and prepaid at the applicable redemption price
(100 1/2% of the principal amount thereof for bonds numbered
to , inclusive; 101% of the principal amount thereof for bonds
numbered to , inclusive; 101 1/2% of the principal amount
thereof for-bonds numbered to , inclusive; and 102% of the
principal amount thereof for bonds numbered to ,
inclusive) plus accrued interest to the date of redemption. The
bonds so called for redemption shall be payable at the principal
office of First-citizens Bank & Trust Company, Raleigh, North
Carolina, and the bonds shall cease to bear interest as of
August 1, 1996.
BOARD OF COMMISSIONERS OF THE
COUNTY OF NEW HANOVER, SITTING
AS THE GOVERNING BODY OF
NEW HANOVER COUNTY WATER
AND SEWER DISTRICT
NORTH CAROLINA
Form 8038.G
Information Return for Tax-Exempt Governmental Obligations
~ Under Section 149(e)
~ See separate Instructions
(Use Form 8038-GC if the issue price is under $100.000)
OMS No. 1545-0720
Expires 5-31-92
(Rev, October 1989)
Department of the Treasury
Internal Revenue Service
Check box if Amended Return ~
2 Issuer's employer identification number
Reporting Authority
Issuer's name New Hanover County Water and Sewer
District, North Carolina
3 Number and street
320 Chestnut Street
5 City or town, state, and ZIP code
Wilmin ton, North Carolina 2840l
7 Name of Issue
4 Report number
GIg 93-1
6 Date of issue
3/23/93
8 CUSIP Number
6448ll
General Obli ation Refundin Bonds Series 1993
Type of Issue (check box(es) that applies and enter the Issue Price)
9 Check box if obligations are tax or other revenue anticipation bonds ~ 0
10 Check box if obligations are in the form of a lease or installment sale ~ 0
11 0 Education ,
12 0 Health and hospital
13 0 Transportation
14 0 Public safety ,
15 0 Environment (including sewage bonds)
16 0 Housing
17 0 Utilities
18 0 Other. Describe (see Instructions) ~
Issue price
Description of Obli ations
(b)
Interest rate
(c)
Issue price
23
24
25
26
19
Final maturity ,
Entire issue,
Uses of Ori inal Proceeds of Bond Issues (includin
Proceeds used for accrued interest ,
Issue price of entire issue (enter line 20c)
Proceeds used for bond issuance costs (including underwriters' discount) .
Proceeds used for credit enhancement .
Proceeds allocated to reasonably required reserve or replacement fund
Proceeds used to refund prior issues.
Total (add lines 23, 24. 25, and 26) ,
Nonrefundin roceeds of the issue subtract line 27 from line 22 and enter amount here
Descri tion of Refunded Bonds (com lete this art ani for refundin bonds)
Enter the remaining weighted average maturity of the bonds to be refunded
Enter the last date on which the refunded bonds will be called
Enter the date s the refunded bonds were issued ~
Miscellaneous
~
~
years
32 Enter the amount of the state volume cap allocated to the issue ~
33 Enter the amount of the bonds designated by the issuer under section 265(b)(3)(B)(i)(III) (small
issuer exception) , ~
34 Pooled financings:
a Enter the amount of the proceeds of this issue that are to be used to make loans to other governmental units ~
b Check box if this issue is a loan made from the proceeds of another tax-exempt issue ~ 0 and enter the name of the
issuer ~ and the date of the issue ~
Under penalties of perJury, I declare that I have examined this return and accompanying schedules and statements. and to the best of my knowledge and belief,
they are true, correct, and complete,
Please
Sign
Here
~ "'".,""c~~ --l r
Date
~E.L. Mathews, Jr.,
, Type or print nameand tille Chalrman
Form 8038-G (Rev 10-89)
For Paperwork Reduction Act Notice, see page 1 of the Instructions.
'A'U.S. Government Printins Office: 1989-262-151/00019
~~ .~
EXHIBIT A
REBATE COMPLIANCE CERTIFICATE
THIS REBATE COMPLIANCE CERTIFICATE (the "Rebate
Compliance Certificate") is made this 23rd day of March, 1993 by
the New Hanover County Water and Sewer District (the "Issuer") in
connection with the issuance on the date hereof of the Issuer's
$28,755,000 General Obligation Refunding Bonds, Series 1993,
dated March 1, 1993 (the "Bonds"):
WITNESSETH:
WHEREAS, the Internal Revenue Code of 1986, as amended
(the "Code") and the regulations promulgated thereunder impose
certain conditions with respect to the exclusion from gross
income pursuant to the Code of interest paid on municipal
obligations, such as the Bonds;
WHEREAS, it will therefore be necessary to comply with
the Code and regulations in order to assure the exclusion from
gross income of interest paid on the Bonds pursuant to the Code;
NOW, THEREFORE, the Issuer covenants to comply with
those provisions of the Code that are applicable to the Bonds,
including but not limited to regulations promulgated thereunder,
and with the provisions of Temporary Treasury Regulations
sections 1.103-13T, and 1.148-12T through 1.148-13T. The
foregoing provisions of law and regulation, along with certain
other requirements of the Code, are summarized in this Rebate
~
compliance certificate. The Issuer hereby covenants to comply
with the provisions contained in said Rebate Compliance
certificate under the circumstances specified in the certificate
of Non-Arbitrage (the "certificate") executed by the Issuer in
connection with the issuance of the Bonds to which this Rebate
Compliance certificate is attached as Exhibit A.
SECTION 1. Definitions. (a) All capitalized terms
used in this Rebate Compliance Certificate which are not
specifically defined herein shall have the same meanings ascribed
to such terms in the certificate.
(b) The fOllowing terms shall have the following
meanings unless the context otherwise requires:
"Bond Year" shall mean the period, beginning on March
23, 1993 (the date of delivery of the Bonds) and ending on
February 1, 1994 and each subsequent one-year period ending on
February 1 during which the Bonds are outstanding.
"Bond Yield" shall mean the yield on the Bonds as
calculated in the certificate, provided however, that the Bond
Yield must be recomputed to take into account (i) the retirement
of any of the Bonds prior to their scheduled maturity dates or
mandatory early redemption with original proceeds if the
cumulative amount of original proceeds used for this purpose
exceeds 25 percent of the original proceeds; (ii) a retirement of
any of the Bonds, (with other than original proceeds) prior to
their scheduled maturity dates or mandatory early redemption,
within 5 years from the date of issue of the Bonds, or (iii) any
expected retirement of any of the Bonds, prior to their scheduled
-2-
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,~
maturity dates or mandatory early redemption if within 5 years of
the date of issue of the Bonds cash or nonpurpose investments
(other than original proceeds) have been deposited in a fund
reasonably expected to be used for that early retirement, or the
Issuer has contractually obligated itself to carry out the
retirement regardless of whether that early retirement occurs.
"computation Date" shall mean an Installment
computation Date or the Final Computation Date.
"Computation Date Credit" shall mean with respect to
the Bonds on an eligible Computation Date a credit of $3,000
against the Rebate Requirement due. A computation Date is an
eligible Computation Date unless that date is less than 1 year
after the immediately preceding Computation Date.
"Delivery Date" shall mean March 23, 1993.
"Fair Market Value" shall mean, when applied to any
Investment Property, the fair market value of such investment as
determined in accordance with section 3 hereof.
"Final computation Date" shall mean the date that the
last outstanding Bond is discharged.
"Gross Proceeds" shall mean amounts which are:
(i) actually or constructively received by the
Issuer from the sale of the Bonds, excluding amounts
included in the issue price and used to pay accrued
interest within one year of the Delivery Date
("Original Proceeds");
(ii) investment proceeds (defined in Temporary
Treasury Regulations ~1.148-8(d) (5) to include amounts
-3-
.....;;.<,...-.. >;'.'.'''~';'~';,;',,":<;;'''''':.7,,;'''.'
actually or constructively received at any time by the
Issuer, such as interest and dividends, from the
investment of the original proceeds of the Bonds;
(iii) treated as proceeds under Treasury
Regulations section 1.103-13(g) (which treats amounts
in an invested sinking fund for an issue as proceeds of
an issue), other than amounts in the General Fund to
make regularly scheduled payments of debt service on
the Bonds;
(iv) invested in a reasonably required reserve or
replacement fund (as defined in Treasury Regulations
section 1.103-14(d));
(v) pledged by the Issuer as security for
payment of debt service on the Bonds;
(vi) proceeds on certain uninvested cash balances
imputed by Treasury Regulations section 1.148-5; and
(vii) Transferred proceeds.
(viii) treated as after-arising replacement amounts
under Treasury Regulations section 1.148-11(c).
For additional rules governing the allocation of Gross
Proceeds to the Bonds and of investments to Gross Proceeds, see
Exhibit D, attached hereto.
"Installment computation Date" shall mean February 1,
1998, the last date of the fifth Bond Year, and February 1 of
each succeeding fifth Bond Year.
"Investment Property" shall mean any security or
obligations, any annuity contract or any other investment-type
-4-
.' ,.i':--....;. v-,.:r:..-.:.....l."'-~""~,,,..>,.~
.
property. Investment property shall not include any tax exempt
obligation which is not a "specified private activity bond," A
tax exempt obligation includes a tax exempt bond (other than a
specified activity bond), a tax exempt mutual fund (that does not
invest in specified private activity bonds) and an exempt Demand
Deposit SLGS as to which the Issuer in good faith attempts to
comply with the requirements of the Demand Deposit state and
Local Government Series program described in 31 CFR part 344.
"Nonpurpose Investment" shall mean any Investment
Property in which the Gross Proceeds are invested,
"Rebate Requirement" shall have the meaning ascribed
thereto in section 4(a) of this Rebate Compliance certificate.
SECTION 2. ACCOUNTING REQUIREMENTS.
(a) Accounting Requirements Applicable to the Escrow
Agent. The Issuer shall instruct the Escrow Agent to maintain
accurate books and records, setting forth:
(A) the date upon which the investment is purchased;
(B) The purchase price of such investment (recording
separately commissions, administrative expenses and
similar expenses);
(C) th~ date of sale or maturity of such investment;
(D) the proceeds received on the sale or maturity of
such investment (recording separately commissions,
administrative expenses and similar expenses); and
(E) investment income realized with respect to such
investment.
-5-
~'~. .-' w", ,.,' ~: ';'.;;.-':""-:i"~,:;'::;:,,,-....~:"'~.
(b) Accounting Requirements Applicable Solely to the
Issuer. The Issuer will maintain records adequate to determine
the Rebate Requirement. Such records will include, but are not
necessarily limited to, information regarding the following with
respect to each and every Nonpurpose Investment by the Issuer
allocated to Gross Proceeds:
(1) the date of expenditure of all amounts held
in the Accounts under the Resolutions and
(2) with respect to each investment held in the
Accounts under the Resolutions.
(i) the purchase price, recording separately
commissions, administrative expenses and similar expenses);
(ii) nominal rate of interest;
(iii) amount of accrued interest (included in purchase
price);
(iv)
(v)
(vi)
(vii)
any) ;
(viii)
(ix)
(x)
(xi)
(xii)
par or face amount;
purchase date;
maturity date;
amount of original issue discount or premium (if
type of Investment Property;
frequency of periodic payments;
period of compounding;
yield to maturity;
date of disposition;
-6-
~'.,,. '~"''''~~-~'.'-<''- .
(xiii) amount realized on the disposition (including
accrued interest) (recording separately commissions,
administrative expenses and similar expenses);
(xiv) market price data sufficient to establish that the
purchase price was equal to the fair market value on the
date of acquisition or, if earlier, on the date of a binding
contract to acquire such Nonpurpose Investment; and
(xv) market price data sufficient to establish the fair
market value of any Nonpurpose Investment as of any
Computation Date, and as of the date such Nonpurpose
Investment becomes allocable to, is sold, or otherwise
ceases to be allocable to, Gross Proceeds.
The Issuer will instruct the Escrow Agent to deliver
any books and records maintained by it to the Issuer within 30
days of each Computation Date. Additionally, the Issuer shall
retain records of the determinations required by section 5 hereof
until six years after the Final Computation Date or for such
other period as the Treasury Department may, by regulations or
rulings, provide.
SECTION 3. Market Price Rules. The Issuer agrees to
comply with the requirements of Treasury Regulations Sections
1.148-4(c) and l,148-2(d) and any further regulations promulgated
by the Treasury, In this regard, the Issuer agrees, among other
things, that it will not acquire or cause to be acquired any
Nonpurpose Investment acquired with Gross Proceeds for an amount
in excess of its Fair Market Value or sell or otherwise dispose
-7-
of any such Nonpurpose Investment for an amount less than its
Fair Market Value.
SECTION 4. Rebate Requirement. The Code requires that
certain arbitrage profits earned with respect to the Gross
Proceeds be rebated to the Federal Government. In order to
satisfy this requirement, the Issuer shall comply with the
following provisions and procedures.
(a) The Issuer shall calculate the Rebate Requirement,
if any, as of each Computation Date. The Rebate Requirement as
of any Computation Date, subject to such modifications as may be
made by Treasury regulations or rulings, shall be an amount equal
to the excess of the future value of all Nonpurpose Receipts (as
defined in subsection (b) below) over the future value of all
Nonpurpose PaYments (as defined in subsection (c) below). All
future values are computed as of the Computation Date using the
Bond Yield.
(b) Any amount actually or constructively received
with respect to a Nonpurpose Investment allocated to the Bonds
constitutes a Nonpurpose Receipt. Such Nonpurpose Receipts are
not reduced by any commissions, administrative or similar
expenses, except as provided below in subsection 4(d). A
Nonpurpose Investment that ceases to be allocated to the Bonds
other than by reason of a sale or retirement of such Nonpurpose
Investment, shall be a Nonpurpose Receipt as of the date such
Nonpurpose Investment is no longer allocated to the Bonds (a
"Disposition Receipt"), Except as provided below, the amount of
a Disposition Receipt shall be the fair market value of the
-8-
" ~." ~.......-o..,. ".,,,,,..r~,~.,~.
Nonpurpose Investment on the date such Nonpurpose Investment is
no longer allocated to the Bonds.
Subject to the foregoing and the next succeeding
paragraph, on each Installment Computation Date, the fair market
value of all Nonpurpose Investments allocated to the Bonds on
that date shall be treated as Nonpurpose Receipts, provided that
all fixed rate, Nonpurpose Investments held on any Installment
Computation Date may be valued at the present value of the
Nonpurpose Investment in lieu of fair market value. For purposes
of this paragraph and the preceding paragraph of this section 4,
the fair market value of investment property other than
obligations of the united states or any instrumentality thereof
backed by the full faith and credit of the united states or any
such agency or instrumentality thereof shall be determined
pursuant to the following special rules rather than the rules
described in section 3 to the extent such rules conflict with the
rules set forth in section 3:
(1) any investment contracts which provide for
investments from time to time in obligations of the
other party having an interest rate or rates specified
in the contract where all such obligations are
purchased and retired or redeemed at par plus accrued
interest shall, on any Installment Computation Date, be
valued at par plus accrued interest; and
(2) investments in any refunding escrow fund will
be valued at present value on any Installment
Computation Date, or for purposes of determining the
-9-
amount of any Disposition Receipt or Constructive
Payment (as defined below in Temp. Treas. Reg. ~1.148-
2(b)); and
(3) for a SLGS not in a refunding escrow fund,
the present value of the SLGS is treated as the fair
market value thereof and the maximum interest rate in
effect (on the date of determination) for SLGS with a
term equal to the remaining term of the SLGS shall be
treated as the yield on such SLGS for purposes of
computing the present value of such SLGS.
Except as otherwise provided, the present value of a
Nonpurpose Investment on any computation Date equals the present
value of all future receipts with respect to such Nonpurpose
Investment, using a discount rate equal to the yield on the
Nonpurpose Investment. The yield used for determining present
value on a Non-Purpose Investment equals the discount rate that,
when used in computing the present value of all past and future
receipts with respect to the Nonpurpose Investment, produces an
amount equal to the present value of the payments taken into
account on the Nonpurpose Investment as of the date that the Non-
Purpose Investment is allocated to the Bonds. For purposes of
calculating the yield on a Nonpurpose Investment, it shall be
assumed that the Nonpurpose Investment will be sold on the date
that the Issuer is entitled to require that the Nonpurpose
Investment be redeemed, purchased or retired at a stated price
that will produce the highest yield on the Nonpurpose Investment.
-10-
In the event that the Nonpurpose Investments constitute
Eligible Investments, as hereinafter defined, the present value
of those investments will equal the par amount of the investment
plus accrued interest. For purposes of this paragraph, an
Eligible Investment is a fixed rate investment that is not an
United states Treasury Security - state or Local Government
Series ("SLGS") and is not in a refunding escrow fund where the
payments taken into account (i.e. the purchase price) are par
plus accrued interest for a period of less than one year,
interest on the investment is actually and unconditionally due
and payable at periodic intervals of one year or less and the
date that produces the highest yield on the investment is the
final maturity date.
In the event that the Nonpurpose Investment constitutes
a SLGS, the present value of the SLGS shall be computed using the
Bond Yield, unless the SLGS is in a refunding escrow fund, in
which case the present value shall be computed using the yield on
the SLG. The calculation of the present value of investments in
a refunding escrow fund is made by treating all investments in
such escrow as one investment and the date any investment was
first in the escrow as the date the one investment is allocated
to the bonds.
Nonpurpose Receipts also include recovered overpayments
of the Rebate Requirement, and amounts that may be treated as
imputed receipts under future Treasury Regulations.
(c) Nonpurpose Payments are amounts of Gross Proceeds
directly used to purchase Nonpurpose Investments, net, except as
-11-
provided in section 4(d), of commissions, administrative or other
expenses. Nonpurpose Investments that were not purchased with
Gross Proceeds shall be treated as purchased with Gross Proceeds
for the Fair Market Value on the date such Nonpurpose Investment
is allocated to the Bonds. In the case of a restricted reserve
or replacement fund, such amounts are valued at their present
value. In addition, any payments of the Rebate Requirement,
including the Computation Date credit, shall constitute a
Nonpurpose Payment.
(d) Reasonable administrative costs may be taken into
account with respect to investments of Gross Proceeds in both
regulated investment companies (within the meaning of section 851
of the Code) and in a Commingled Fund (as defined in Exhibit Two,
hereto) in which the Issuer and all members of the same
controlled group as the Issuer own less than 10% of the
beneficial interest in the investments of the commingled Fund,
provided that, in each case, the regulated investment company or
the fund, as the case may be, either (i) has a reasonable
expectation that the average daily balance of moneys invested in
the fund from sources other than Gross Proceeds of tax-exempt
bonds will equal or exceed the lesser of $50 million or 50% of
the total average daily balance of monies invested in such
regulated invested company or fund, for the current fiscal year,
or (ii) the regulated investment company or fund, as the case may
be, qualifies as a publicly offered regulated investment company
(as defined in section 67(c) (2) (B) of the Code), and is not
marketed or structured for a principal purpose of attracting
-12-
" ~
investors of proceeds of issues of tax-exempt bonds. An
unintentional failure to satisfy the diversification requirements
set forth in (i), above, will not disqualify the regulated
investment company or fund as the case may be, unless the company
or fund fails to take prompt remedial action to comply with such
requirement for the next succeeding quarterly accounting period.
An intentional failure to satisfy such requirements will cause
such fund to never have been qualified.
with respect to commingled Funds and regulated
investment companies that fail to satisfy the above requirements,
the Issuer may, nevertheless, recover reasonable administrative
costs not in excess of .25% of the average daily balance of
amounts invested in such company or fund for the fiscal year.
Under no circumstances, however, may administrative
costs paid or incurred for computing the Rebate Requirement
imposed by section 4 of this Rebate compliance certificate be
taken into account.
For purposes of this Rebate Compliance certificate,
"administrative costs" include costs paid by or on behalf of the
Issuer for brokerage or selling commissions, legal and accounting
fees, investment advisory fees, recordkeeping, safekeeping,
custody, and similar costs and expenses of a fund.
Administrative costs include 12(b)-1 fees charged by a regulated
investment company, Administrative costs include a brokerage
commission for an investment contract purchased with Gross
Proceeds regardless of whether the brokerage commission is paid
or incurred on behalf of the Issuer or the provider of the
-13-
v
~
investment contract. Whether administrative costs are reasonable
is based on all the facts and circumstances including, without
limitation, whether or comparable in nature and amount to
customary administrative costs that would be charged for the same
investment if the investment were made from a source of funds
other than Gross Proceeds.
(e) The future value of a Nonpurpose Receipt or
Payment shall be determined by using the following formula:
FV = PV(l + i)n
where:
FV = the future value of the Nonpurpose Receipt or Payment;
PV = the amount of the Nonpurpose Receipt or Payment;
i = Bond Yield divided by the number of compounding intervals in
a Bond Year; and
n = the number of whole or fractional intervals from the date of
the Nonpurpose Receipt or Payment to the computation Date.
(f) The Rebate Requirement shall be computed by the
Issuer as of each Installment Computation Date and as of the
Final Computation Date. Rebate installments of at least 90
percent of any rebate requirement earned as of any Installment
Computation Date shall be paid by the Issuer no later than the
date 60 days after such Installment Computation Date. The final
rebate payment of 100 percent as of the Final computation Date,
together with any income attributable to such rebate requirement
(calculated in accordance with subsection (g) below), shall be
-14-
paid by the Issuer no later than the date 60 days after the Final
computation Date.
(g) If the final rebate paYment is not made within 60
days after the Final Computation Date, the following rules apply.
Amounts earned from investing the amount of rebatable arbitrage
at an arm's length interest rate during the Final PaYment Period,
as hereinafter defined, shall constitute income attributable to
rebatable arbitrage. If the amount of rebatable arbitrage is not
invested at an arm's length interest rate, or the amount so
invested is not identified, income attributable to rebatable
arbitrage will be calculated using the maximum interest rate in
effect on the Final Computation Date for SLGs with. a term equal
to the longer of the Final PaYment Period or thirty days. For
purposes of this section Final PaYment period shall mean the
period beginning on the Final computation Date and ending fifteen
days before the final rebate paYment is made.
(h) Each paYment made pursuant to this section shall
be filed with the Internal Revenue Service Center, Philadelphia,
Pennsylvania 19255 on or before the date such paYment is due, and
shall be accompanied by an Internal Revenue Service Form 8038-T.
SECTION 5. Further Actions to Maintain Tax Exemption.
The Issuer shall take all actions necessary to comply with the
requirements of the Code in order to ensure that interest on the
Bonds will not become includable in gross income for purposes of
Federal income taxation; provided, however, the Issuer shall not
be required to comply with any provision of this Rebate
Compliance certificate in the event the Issuer receives an
-15-
~ ,
opinion from Bond Counsel that compliance with such provision is
not necessary to maintain the exclusion from gross income
pursuant to the Code of interest on the Bonds and the Issuer
complies with any requirements set forth in such opinion.
SECTION 6. Amendments. This Rebate Compliance
certificate shall be amended or modified by the parties hereto in
any manner which is necessary to comply with such regulations as
may be promulgated by the Treasury Department from time to time
under the Code. In this regard, the parties shall obtain an
opinion of Bond Counsel that such amendment or modification is in
compliance with such regulations.
SECTION 7. survival on Defeasance or Payment.
Notwithstanding anything in this Rebate Compliance certificate or
the Resolution to the contrary, the obligation of the Issuer to
remit the amount determined pursuant to section 4 to the Internal
Revenue Service, and to comply with all other requirements
contained in this Rebate Compliance Agreement, must survive the
defeasance or payment of the Bonds.
-16-
.. ,
SECTION 8. Supplementation of this certificate. The
Issuer and the Bonds are subject to section 148 of the Code and
the Temporary Regulations thereunder. Changes in such
regulations or the interpretation thereof may be retroactive to
the date of issue of the Bonds. Accordingly, the Issuer
understands the need to supplement this Rebate Compliance
certificate periodically to reflect further developments in the
Federal income tax laws governing the exclusion from gross income
or federal income tax purposes of the interest on the prior to
making any of the calculations set forth hereunder.
IN WITNESS WHEREOF, the Issuer has caused this Rebate
Compliance certificate to be executed in its name as of the date
first above written.
COUNTY OF NEW HANOVER,
COUNTY WATER AND SEWER DISTRICT
NORTH CAROLINA
By: ([f~J~ '
Cn lr an, g erning
body of the District
, governing body
he District
-17-
EXHIBIT C
Definitions
Fair Market Value, with respect to a nonpurpose
investment, shall mean, except where otherwise indicated in the
certificate of Non-Arbitrage or the Rebate Compliance
certificate, the following:
1. Nonpurpose Investments for which there is an
Established Market. Except with respect to Investment
Property that is an obligation of the united states (or any
agency or instrumentality thereof), and is backed by the
full faith and credit of the united states (or any such
agency or instrumentality), the fair market value of any
Investment Property for which there is an established market
shall be determined as provided in Section 20.2031-2 of the
United states Treasury states Tax Regulations, attached
hereto as Exhibit E. The fair market value of Investment
Property consisting of the obligations of the United states
(or any agency or instrumentality thereof) described above,
for which there is an established market, shall be the mean
of the bid and asked prices on the date of determination
(or, if there are no bid and asked prices on such date, on
the first date preceding such date for which there are bid
and asked prices), provided that, if the price paid to
purchase such an obligation is higher than the mean of the
bid and asked prices, that higher price may be treated as
the fair market value of the obligation if that obligation
is purchased in a bona fide arm's length transaction without
regard to any amount paid to reduce the yield on the
obligation. The bid and asked prices shall be determined
either by reference to "Composite closing Quotations for
United states Government Securities" published by the
Federal Reserve Bank of New York, or by reference to a
comparable compilation of bid and asked prices regularly
published in a newspaper of general circulation throughout
the united states.
2. certificates of Deposit. The market price of
a certificate of deposit issued by a commercial bank that
has a fixed interest rate, a fixed principal payment
schedule, a fixed maturity, and a substantial penalty for
early withdrawal shall be its purchase price if the
certificate of deposit has a yield not less than the yield
on reasonably comparable direct obligations of the United
states, and either (i) the yield on the certificate of
deposit is not less than the highest yield that is published
or posted by the provider to be currently available from the
provider on comparable certificates of deposit offered to
-1-
. f t! '~
the public, or (ii) (a) the purchaser makes a bona fide
solicitation for a specified certificate of deposit and
receives at least three qualifying bids from providers that
have no material financial interest in the issue, (b) the
purchaser purchases the highest-yielding certificate of
deposit for which a qualifying bid is made, and (c) the
yield on the certificate of deposit is not less than the
yield then currently available from the provider on
comparable certificates of deposit offered to other persons
from a source of funds other than gross proceeds of an issue
of tax-exempt bonds.
3. Investment contracts. Except as provided in
section 4 of the Rebate compliance certificate, in the case
of an investment contract, the obligations acquired
thereunder shall be considered acquired or disposed of for
an amount equal to the fair market of such obligations if:
a. the purchaser makes a bona fide
solicitation for an investment contract with specified
material terms and receives at least three bids on the
investment contract from persons other than those with an
interest in the Bonds (e.g., underwriters);
b. the purchaser purchases the highest
yielding investment contract for which a qualified bid is
made, or has significant bona fide, non-tax reasons (such as
credit worthiness of the bidder) for failure to purchase the
highest-yielding investment contract offered, provided that,
if the purchaser purchases an investment contract from a
provider that has a material financial interest in the
issue, the purchase price of the contract is presumed to be
more than fair market value unless the yield of the
investment contract is at least as high as the highest-
yielding investment contract for which a qualifying bid is
made;
c. the determination of the price of the
investment contract takes into account as significant
factors, the purchaser's reasonably expected draw-down
schedule for the funds to be invested, exclusive of float
funds and reasonably required reserve or replacement funds;
d. the collateral security requirements for
the investment contract are reasonable, based on all the
facts and circumstances;
e. the provider of the investment contract
certifies those administrative costs that are reasonably
expected to be paid to third parties in connection with the
investment contract; and
-2-
It: I ~. )
f. the yield on the investment contract is
not less than the yield currently available from the
provider on reasonably comparable investment contracts
offered by the provider to other persons, if any, from a
source of funds other than gross proceeds of an issue of
tax-exempt bonds.
The requirements cited above will not apply to the following
investment contracts, and all such following investment contracts
will be deemed to be purchased at a fair market price: (i) an
investment contract that has a remaining term to maturity that
such is not in excess of six months, (ii) an investment contract
that is traded on an established securities market, and (iii) an
investment contract that has a yield more than .25% below the
yield on the Bonds, provided that such low-yielding investment
contract must not have been entered into for a purpose of
offsetting arbitrage earned or to be earned on other investments
of Gross Proceeds of the Bonds.
4. Other Nonpurpose Investments for which there
is not an Established Market. Except as otherwise provided
in this Exhibit C or in section 4 of the Rebate Compliance
certificate, the fair market value of any Investment
Property for which there is no established market is the
price at which a willing buyer would purchase the investment
from a willing seller. Except as otherwise provided in this
Appendix One, if Investment Property is not readily
saleable, the fair market value shall be determine by taking
into account the price at which a willing buyer would
purchase the same (or a substantially similar) investment
from the issuer of the investment.
-3-
ill . . '.
EXHIBIT D
Allocation and Accounting Rules
(a) General Allocation of Proceeds to Bonds,
Investments and Expenditures. Except as otherwise provided in
the Rebate compliance certificate, Gross Proceeds shall be
identified and allocated to the Bonds and to expenditures in the
manner and under the circumstances described in the definition of
Gross Proceeds in the Rebate Compliance certificate. Except as
provided in this Exhibit D in subsection (c) (regarding Working
capital Expenditures), subsection (e) (regarding deemed
expenditures of certain investment proceeds), and subsection (f)
(regarding expenditures from commingled Funds), Gross Proceeds of
the Bonds may be allocated to investments pursuant to any
reasonable, consistently applied accounting method, provided that
Gross Proceeds may not be allocated to a payment for a nonpurpose
investment in an amount greater than, or to a receipt from the
sale or other disposition of a nonpurpose investment in an amount
less than, the fair market value of such nonpurpose investment.
For this purpose, "accounting method" means both the overall
method used to account for gross proceeds of an issue (e.g., the
cash method or a modified accrual method) and the method used to
account for or allocate any particular item within that overall
accounting method (e.g., accounting for investments,
expenditures, allocations to and from different sources, and
particular items of the foregoing). Except as otherwise provided
in the Rebate compliance Certificate, amounts are allocable to
only one issue (including a taxable issue) at a time as Gross
Proceeds. Finally, except as otherwise provided in the Rebate
Compliance certificate, amounts that are original proceeds or
transferred proceeds allocable to an issue must be so allocated
to that issue and may not be allocated instead as replacement
proceeds to another issue.
(b) General Allocation of Proceeds to Expenditures.
Gross Proceeds of the Bonds may be allocated to expenditures
pursuant to any reasonable, consistently applied accounting
method, provided that all expenditures must involve a reasonably
current outlay of cash i.e., an outlay, by check mailed, or
available funds advanced, that is reasonably expected to occur
not later than five banking days after the allocation of Gross
Proceeds to the expenditure. An allocation method will not be
considered consistently applied unless it accounts uniformly both
for Gross Proceeds of the Bonds in a Commingled Fund (as defined
below) and for any other amounts in the same commingled Fund
containing those Gross Proceeds and unless it accounts uniformly
for all Gross Proceeds of the Bonds for the period beginning on
the Delivery Date and ending on the retirement of the last
obligation that is part of the Bonds, provided, however, that the
Issuer may specially account for a particular expenditure, and
may alter the general accounting method previously used to
. , ~ '.
account for expenditures of Gross Proceeds, if such special or
altered accounting method is employed for a bona fide purpose and
is not an artifice or device to avoid the requirements of
section 148 of the Code. In the event the Issuer elects to
employ a ratable allocation method to account for expenditures of
Gross Proceeds, and deposits Gross Proceeds in a Commingled Fund,
as defined below, the ratable allocation method so employed
generally to account for all expenditures of Gross Proceeds shall
be the same as that used to allocate paYments and receipts with
respect to investments in such Commingled Fund. Reasonable
accounting methods for allocating funds from different sources to
expenditures for the same governmental purpose include any of the
following methods applied consistently: a "specific tracing"
method, a "gross-proceeds-spent-first" method, a "first-in,
first-out" method, or a ratable allocation method. Allocations
of Gross Proceeds of the Bonds to expenditures incurred prior to
the delivery date shall comply with the provisions of Treasury
Regulations section 1.103-18. Amounts cease to be original
proceeds or transferred proceeds allocated to an issue only when
they are properly allocated to an expenditure for a governmental
purpose, when they become transferred proceeds of another issue,
or when they cease to be allocated to that issue by operation of
the limitation under subsection (g) of this Exhibit D.
(c) Allocation of Gross Proceeds to working capital
Expenditures. Except as provided below, an allocation of Gross
Proceeds of the Bonds on any date to an expenditure that does not
constitute a capital expenditure as defined in Treasury
Regulations section 1.150-1 (h) (a "working capital Expenditure")
may occur only to the extent that the amount of such Working
capital Expenditure exceeds the otherwise available amounts
calculated as of such date. For this purpose, otherwise
available amounts include cash, investments, and other amounts
held by the Issuer or any member of the same controlled group as
the Issuer if those amounts may be used by the Issuer for Working
Capital Expenditures of the type being financed by the Bonds
without legislative or judicial action and without a legislative,
judicial or contractual requirement that those amounts be
reimbursed, provided that otherwise available amounts shall not
for this purpose include Gross Proceeds of the Bonds, and
provided also, that the Issuer need not consider as an otherwise
available amount a reasonable working capital reserve. The
reasonableness of a working capital reserve is based on all
relevant facts and circumstances but, except with the opinion of
Bond Counsel, in no event shall a working capital reserve be
considered reasonable if it exceeds an amount equal to 10% of the
Issuer's actual Working Capital Expenditures for the previous
fiscal year. Gross Proceeds of the Bonds used to reimburse
Working Capital Expenditures originally paid for with amounts
that were not otherwise available amounts may be allocated to
such reimbursement under the same circumstances that Gross
Proceeds may be allocated to Working Capital Expenditures (i.e.,
-2-
, p. ' .
only if there are no otherwise available amounts capable of being
used to make such reimbursement).
(d) Exceptions to working capital Expenditure Rules.
Gross Proceeds of the Bonds may be allocated to the following
Working capital Expenditures under any reasonable, consistently
applied accounting method, without regard to the special method
required above, by subsection (c):
(1) Expenditures that both do not exceed 5% of
the sale proceeds of the Bonds and that are directly related
to the capital expenditures financed by the Bonds. For this
purpose, sale proceeds means any amounts actually or
constructively received from the sale of the Bonds,
excluding amounts used to pay accrued interest within one
year of the Delivery Date;
(2) Expenditures for issuance costs of an issue
of obligations within the meaning of section 147(d) of the
Code;
(3) Expenditures for qualified guarantees within
the meaning of Treasury Regulations section 1.148-3(b) (12);
(4) Expenditures for payment of principal of, and
interest or call premium on a refunded issue; and
(5) Expenditures from a bona fide debt service
fund for payment of principal of or interest on an issue.
Expenditures described in items (2) through (5) above shall not
be taken into account in computing the amo~nt of Working Capital
Expenditures described in subparagraph (1) above.
(e) Expenditure of certain Investment Proceeds.
Investment earnings on Gross Proceeds of the Bonds may be treated
as allocated to expenditures when such amounts are deposited in a
Commingled Fund (other than a refunding escrow fund), as defined
below, with substantial tax or other revenues from governmental
operations of the Issuer, provided that such amounts are
reasonably expected to be spent for governmental purposes within
six months from the date of such commingling. Such expectations
may be based upon any reasonable accounting assumption and are
not required to be determined with reference to the accounting
method generally required for Working Capital Expenditures
pursuant to subsection (c) above.
(f) Allocations of Investments in commingled Funds.
In the event any Gross Proceeds of the Bonds are deposited in a
fund (i) that 'contains both Gross Proceeds of the Bonds and
amounts in excess of $25,000 that are not Gross Proceeds of the
Bonds and (ii) in which moneys are invested collectively without
regard to the source of amounts deposited in such fund (a
-3-
. " l' .
"commingled Fund"), allocations with respect to such Commingled
Fund shall comply with the provisions of this subsection (f). An
open-end regulated investment company (as defined in section 851
of the Code) is not a commingled Fund. For purposes of this
definition, a regulated investment company is open-ended if it is
offering for sale or has outstanding any redeemable security, as
defined in section 2(a) (32) of the Investment Company Act of
1940, of which it is the issuer.
(1) common Reserve and sinking Funds. Except
with respect to a bona fide debt service fund, investments
held by a commingled Fund serving as a common reserve fund
or sinking fund for the Bonds and some other issue of
obligations, must be allocated on each allocat.Lon date, as
defined below, ratably among the applicab~\' ~ 'sues sharing
the commingled Fund in accordance with ;: .'.) i:.le outstanding
principal amounts of the issues as of the sate of allocation
(except that the present value of a bond originally issued
with discount or premium in excess of one-fourth of one
percent multiplied by the number of complete years to
maturity of the bond must be used instead of its outstanding
principal amount), (ii) the present value of the issues on
the allocation date determined in accordance with Treasury
Regulations sections 1.148-3(b) (8) or (iii) the aggregate
amount of debt service payable on the issues from such
Commingled Fund during the following one year period.
Allocations must be made on each date that an issue is added
to the coverage of the Commingled Fund and, in any event,
not less frequently than once every five years.
Notwithstanding the special allocation rules contained in
this subsection (f), the allocation methods described above
shall not require the allocation of amounts to the Bonds as
replacement proceeds to the extent the amounts that would
otherwise be so allocated consists of original or
transferred proceeds of another issue of obligations. Nor
shall the allocation method set forth herein require the
allocation to the Bonds of amounts that cease to be
allocated to the Bonds pursuant to the universal cap rule
described in section (g), below.
(2) Allocation of Investments. Except with
respect to payments from a commingled Fund described in
subparagraph (1) above, all payments and receipts with
respect to investments held in a commingled Fund must be
allocated among the different sources of funds invested in
the commingled Fund in accordance with a consistently
applied, reasonable ratable allocation method described in
subparagraph (3), below. Each commingled Fund must adopt a
fiscal year (or in the absence of such adoption, will be
deemed to adopt the calendar year as its fiscal year) and
must compute and allocate (but not necessarily distribute)
to each different source of funds invested in such
commingled Fund all (i) payments and receipts with respect
-4-
It ~ ,. .
to investments, including accrued income, (ii) gains or
losses realized from sales or other dispositions of
investment, and (iii) expenditures.
(3) Permitted Ratable Allocation Methods.
Permitted reasonable, ratable allocation methods for
commingled Funds, include, without limitation, methods that
allocate payments and receipts in proportion either (i) to
the average daily balances of the amounts in the Commingled
Fund from different sources during a computation period or
(ii) to the average of the beginning and ending balances of
the amounts in the commingled Fund from different sources
for a computation period that does not exceed one month.
Except as otherwise provided, a commingled Fund may
consistently use as a computation period any time period
within the fiscal y~ar of the commingled Fund that does not
exceed three months, provided that a Commingled Fund must
consistently use the computation period so selected. For
purposes of the above requirements, the average daily
balance of an amount in a commingled Fund from a particular
source is the sum of the amounts in the commingled Fund from
that source for each day in the period divided by the number
of days in the period. In addition to allocation of
receipts with respect to investments in a Commingled Fund,
if the weighted average maturity of all investments held by
a Commingled Fund during a particular fiscal year exceeds
one year, or if the investments held by the commingled Fund
during a fiscal year do not consist exclusively of debt
obligations, then the commingled Fund (other than a
commingled Fund serving as a common reserve fund or sinking
fund) must allocate unrealized gains and losses of
investments contained in such commingled Fund either (i) by
treating all investments in the commingled Fund as if sold
at fair market value on the last day of the fiscal year and
by allocating the net gains or losses from such deemed
dispositions to all sources of funds in the commingled Fund
during that fiscal year according to the same ratable
allocation method used to allocate other investment items in
the commingled Fund or (ii) by treating investments in the
commingled Fund as if sold at fair market value on the last
day of computation period and by allocating net gains or
losses from such deemed dispositions to all sources of funds
in the Commingled Fund during that computation method
according to the same ratable allocation method used to
allocate other investment items in the commingled Fund.
-5-
. (r' .
Appendix Three
Treasury Estate Tax Regulations
[! 20,312.01] Reg. S 20.2031-2 Valuation of stocks and bonds. '
(TD 6296, filed 6-23-58; amended by TD 6826, filed 6-14-65; TD
7312, filed 4-26-74; TD 7327, filed 9-30-74 and TD 7432 filed
9-10-76.) [There have been two proposed amendments to Reg.
~ 20.2031-2, published 4-9-91, and 9-11-91, respectively. See
! 143,029 and! 143,033 in the Proposed Amendments to Regulations
section. ]
1. In general. The value of stocks and bonds is the
fair market value per share or bond on the applicable valuation
date.
2. Based on selling prices. (1) In general, if
there is a market for stocks or bonds, on a stock exchange, in an
over-the-counter market, or otherwise, the mean between the
highest and lowest quoted selling prices on the valuation date is
the fair market value per share or bond. If there were no sales
on the valuation date but there were sales on dates within a
reasonable period both before and after the valuation date, the
fair market value is determined by taking a weighted average of
the means between the highest and lowest sales on the nearest
date before and the nearest date after the valuation date. The
average is to be weighted inversely by the respective numbers of
trading days between the selling dates and the valuation date.
If the stocks or bonds are listed on more than one exchange, the
records of the exchange where the stocks or bonds are principally
dealt in should be employed if such records are available in a
generally available listing or publication of general
circulation. In the event that such records are not so available
and such stocks or bonds are listed on a composite listing of
combined exchanges available in a generally available listing or
publication of general circulation, the records of such combined
exchanges should be employed. In valuing listed securities, the
executor should be careful to consult accurate records to obtain
values as of the applicable valuation date. If quotations of
unlisted securities are obtained from brokers, or evidence as to
their sale is obtained from officers of the issuing companies,
copies of the letters furnishing such quotations or evidence of
sale should be attached to the return.
(2) If it is established with respect to bonds for
which there is a market on a stock exchange, that the highest and
lowest selling prices are not available for the valuation date in
a generally available listing or publication of general
circulation but that closing selling prices are so available, the
fair market value per bond is the mean between the quoted closing
selling price on the valuation date and the quoted closing
selling price on the trading day before the valuation date. If
there were no sales on the trading day before the valuation date
but there were sales on a date within a reasonable period before
the valuation date, the fair market value is determined by taking
~ ~.
a weighted average of the quoted closing selling price on the
valuation date and the quoted closing selling price on the
nearest date before the valuation date. The closing selling
price for the valuation date is to be weighted by the number of
trading days between the previous selling date and the valuation
date. If there were no sales within a reasonable period before
the valuation date but there were sales on the valuation date,
the fair market value is the closing selling price on such
valuation date. If there were no sales on the valuation date but
there were sales on dates within a reasonable period both before
and after the valuation date, the fair market value is determined
by taking a weighted average of the quoted closing selling prices
on the nearest date before and the nearest date after the
valuation date. The average is to be weighted inversely by the
respective numbers of trading days between the selling dates and
the valuation date. If the bonds are listed on more than one
exchange, the records of the exchange where the bonds are
principally dealt in should be employed. In valuing listed
securities, the executor should be careful to consult accurate
records to obtain values as of the applicable valuation date.
(3) The application of this paragraph may be
illustrated by the following examples.
Example (1). Assume that sales of X company common
stock nearest to the valuation date (Friday, June 15) occurred
two trading days before (Wednesday, June 13) and three trading
days after (Wednesday, June 20) and on these days the mean sale
prices per share were $10 and $15, respectively. The price of
$12 is taken as representing the fair market value of a share of
X Company common stock as of the valuation date
(3 x 10) + (2 x 15).
5
Example (2). Assume the same facts as in example (1)
except that the mean sale prices per share on June 13 and June 20
were $15 and $10, respectively, The price of $13 is taken as
representing the fair market value of a share of X Company common
stock as of the valuation date
(3 x 15) + (2 x 10),
5
Example (3). Assume the decedent died on Sunday,
October 7, and that Saturday and Sunday were not trading days.
If sales of X Company common stock occurred on Friday, October 5,
at mean sale prices per share of $20 and on Monday, October 8, at
mean sale prices per share of $23, the price of $21.50 is taken
as representing the fair market value of a share of X Company
common stock as of the valuation date
-2-
f. ,> 'I. II
(1 x 20) + (23 X 1).
2
Example (4). Assume that on the valuation date
(Tuesday, April 3, 1973) the closing selling price of a listed
bond was $25 per bond and that the highest and lowest selling
prices are not available in a generally available listing or
publication of general circulation for that date. Assume
further, that the closing selling price of the same listed bond
was $21 per bond on the day before the valuation date (Monday,
April 2, 1973). Thus, under subparagraph (2) of this paragraph
the price of $23 is taken as representing the fair market value
per bond as of the valuation date
(25 + 21).
2
Example (5). Assume the same facts as in example (4)
except that there were no sales on the day before the valuation
date. Assume further, that there were sales on Thursday,
March 29, 1973 and that the closing selling price on that day was
$23. The price of $24.50 is taken as representing the fair
market value per bond as of the valuation date
(1 x 23) + (3 x 25).
4
Example (6). Assume that no bonds were traded on the
valuation date (Friday, April 20). Assume further, that sales of
bonds nearest the valuation date occurred two trading days before
(Wednesday, April 18) and three trading days after (Wednesday,
April 25) the valuation date and that on these two days the
closing selling prices per bond were $29 and $22, respectively.
The highest and lowest selling prices are not available for these
dates in a generally available listing or publication of general
circulation. Thus, under subparagraph (2) of this paragraph, the
price of $26.20 is taken as representing the fair market value of
a bond as of the valuation date
(3 x 29) + (2 x 22).
5
3. Based on bid and asked prices. If the provisions
of paragraph (b) of this section are inapplicable because actual
sales are not available during a reasonable period beginning
before and ending after the valuation date, the fair market value
may be determined by taking the mean between the bona fide bid
and asked prices on the valuation date, or if none, by taking a
weighted average of the means between the bona fide bid and asked
prices on the nearest trading date before and the nearest trading
day after the valuation date, if both such nearest dates are
within a reasonable period. The average is to be determined in
the manner described in paragraph (b) of this section.
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~ ~, ~
4. Based on incomplete selling prices or bid and
asked prices. If the provisions of paragraphs (b) and (c) of
this section are inapplicable because no actual sale prices or
bona fide bid and asked prices are available on a date within a
reasonable period before the valuation date, but such prices are
available on a date within a reasonable period after the
valuation date, or vice versa, then the mean between the highest
and lowest available sale prices or bid and asked prices may be
taken as the value.
5. Where selling prices or bid and asked prices do
not reflect fair market value. If it is established that the
value of any bond or share of stock determined on the basis of
selling or bid and asked prices as provided under paragraphs (b),
(c), and (d) of this section does not reflect the fair market
value thereof, then some reasonable modification of the basis or
other relevant facts and elements of value are considered in
determining the fair market value. Where sales at or near the
date of death are few or of a sporadic nature, such sales alone
may not indicate fair market value. In certain exceptional
cases, the size of the block of stock to be valued in relation to
the number of shares changing hands in sales may be relevant in
determining whether selling prices reflect the fair market value
of the block of stock to be valued. If the executor can show
that the block of stock to be valued is so large in relation to
the actual sales on the existing market that it could not be
liquidated ina reasonable time without depressing the market,
the price at which the block could be sold as such outside the
usual market, as through as underwriter, may be a more accurate
indication of value than market quotations. Complete data in
support of any allowance claimed due to the size of the block of
stock being valued shall be submitted with the return. On the
other hand, if the block of stock to be valued represents a
controlling interest, either actual or effective, in a going
business, the price at which other lots change hands may have
little relation to its true value.
6. Where selling prices or bid and asked prices are
unavailable. If the provisions of paragraphs (b), (c), and (d)
of this section are inapplicable because actual sale prices and
bona fide bid and asked prices ,are lacking, then the fair market
value is to be determined by taking the following factors into
consideration:
(1) In the case of corporate or other bonds, the
soundness of the security, the interest yield, the date of
maturity, and other relevant factors; and
(2) In the case of shares of stock, the company's net
worth, prospective earning power and dividend-paying
capacity, and other relevant factors.
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. (-.,.
Some of the "other relevant factors" referred to in
subparagraphs (1) and (2) of this paragraph are: The good will
of the business; the economic outlook in the particular industry;
the company's position in the industry and its management; the
degree of control of the business represented by the block of
stock to be valued; and the value of securities of corporations
engaged in the same or similar lines of business which are listed
on a stock exchange. However, the weight to be accorded such
comparisons or any other evidentiary factors considered in the
determination of a value depends upon the facts of each case. In
addition to the relevant factors described above, consideration
shall also be given to nonoperating assets, including proceeds of
life insurance policies payable to or for the benefit of the
company, to the extent such nonoperating assets have not been
taken into account in the determination of net worth, prospective
earning power and dividend-earning capacity. Complete financial
and other data upon which the valuation is based should be
submitted with the return, including copies of reports of any
examinations of the company made by accountants, engineers, or
any technical experts as of or near the applic2Lle valuation
date.
7. Pledged securities. The full value of securities
pledged to secure an indebtedness of the decedent is included in
the gross estate. If the decedent had a trading account with a
broker, all securities belonging to the decedent and held by the
broker at the date of death must be included at their fair market
value as of the applicable valuation date, Securities purchased
on margin for the decedent's account and held by broker must also
be returned at their fair market value as of the applicable
valuation date. The amount of the decedent's indebtedness to a
broker or other person with whom securities were pledged is
allowed as'deduction from the gross estate in accordance with the
provisions of ~ 20.2053-1 or ~ 20.2106-1 (for estates of
nonresidents not citizens).
8. Securities subject to an option or contract to
purchase. Another person may hold an option or a contract to
purchase securities owned by a decedent at the time of his death.
The effect, if any, that is given to the option or contract price
in determining the value of the securities for estate tax
purposes depends upon the circumstances of the particular case.
Little weight will be accorded a price contained in an option or
contract under which the decedent is free to dispose of the
underlying securities at any price he chooses during his
lifetime. Such is the effect, for example, of an agreement on
the part of a shareholder to purchase whatever shares of stock
the decedent may own at the time of his death. Even if the
decedent is not free to dispose of the underlying securities at
other than the option or contract price, such price will be
disregard~d in determining the value of the securities unless it
is determined under the circumstances of the particular case that
the agreement represents a bona fide business arrangement and not
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. . ;1-.,*
a device to pass the decedent's shares to the natural objects of
his bounty for less than an adequate and full consideration in
money or money's worth.
9. stock sold "ex-dividend." In any case where a
dividend is declared on a share of stock before the decedent's
death but payable to stockholders of record on a date after his
death and the stock is selling "e~-dividend" on the date of the
decedent's death, the amount of the dividend is added to the
ex-dividend quotation in determining the fair market value of the
stock as of the date of the decedent's death.
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