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HomeMy WebLinkAbout1994-01-03 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 January 3, 1994, 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 fo~ 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 71~ day of January, 1994. ",....""" ~'" "I, ..i ... ..... ~~......... ~ .. . ~ ~ tel .. .. -I- ~ -- . . .. _~. ..a.. _ . f. .. .. . 4.. - =:1: e:...= : ~ ~ : 0: ;. ~.. .~ ~ .. ~: ~ ~.... ..~~... ~ ~ ,,-r.. . .- '-~ ~ "', 41'\'; ......... '0' ," "'" 0 SE'NE.f. ..' 11"".... """,\ Board of Commissioners, and Cler , New Hanover County Water and Sewer District .! EXTRACTS FROM MINUTES OF BOARD Of COMMISSIONERS, SITTING AS THE GOVERNING BODY OF NEW HANOVER COUNTY WATER AND SEWER DISTRICT A regular meeting of the Board of Commissioners of the New Hanover County Water and Sewer District was held on Monday, January 3, 1994 at 6:30 p.m. in Room 100 of the New Hanover County Administration Building, 320 Chestnut Street, Wilmington, North Carolina, and the following Commissioners were present: PRESENT: E.L. Mathews, Jr., Chairman Sandra Barone, Vice-Chairman Robert G. Greer William A. Caster William Sisson ABSENT : None * * * * * * * * Commissioner Sisson presented the following resolution and moved that it be adopted: WHEREAS, the bond order hereinafter described has taken effect, and it is desirable to make provision for the issuance of bonds authorized by said bond order; NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners, sitting as the governing body of New Hanover County Water and Sewer District, North Carolina (the "Issuer"), as follows: 1. Pursuant to and in accordance with the general obligation refunding bond order adopted by the Board of Commissioners, sitting as the governing body of New Hanover County Water and Sewer District, on December 6, 1993, the Issuer shall issue its bonds of the aggregate principal amount of $9,720,000. The bonds shall be designated "General Obligation Refunding Bonds, Series 1994" (hereinafter referred to as the "Bonds"). The Bonds shall be dated January 1, 1994 and shall bear interest from their date at a rate or rates which shall be hereafter determined upon the public sale thereof and such interest shall be payable on June 1, 1994 and semi-annually thereafter on December 1 and June 1. The Bonds shall mature, subject to adjustment and to the right of prior redemption as hereinafter set forth, annually on June 1, as follows: Principal Principal Year Amount Year Amount 1994 $230,000 2003 $730,000 1995 255,000 2004 715,000 1996 255,000 2005 705,000 1997 255,000 2006 695,000 1998 250,000 2007 685,000 1999 250,000 2008 675,000 2000 250,000 2009 665,000 2001 750,000 2010 655,000 2002 740,000 .' 2011 640,000 2012 320,000 -2- Debt service will be payable to the owners of the Bonds shown on the records of the hereinafter designated Bond Registrar of the Issuer on the record date which shall be the fifteenth day of the calendar month (whether or not a business day) next preceding a debt service payment date. The Bonds shall be deemed to refund the issue of bonds being refunded within the period of usefulness of the capital project being financed by such issue of bonds being refunded. 2. The Bonds will be issued in fully registered form by means of a book entry system with no physical distribution of bond certificates made to the public. One bond certificate for each maturity will be issued to The Depository Trust company, New York, New York ("DTC"), and immobilized in its custody. The book entry system will evidence ownership of the Bonds in principal amounts of $5,000 or whole multiples thereof, with transfers of beneficial ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC. Interest on the Bonds will be payable at the times stated in the preceding paragraph, and principal of the Bonds will be paid annually on June 1, as set forth in the foregoing maturity schedule, in clearinghouse funds to DTCor its nominee as registered owner of the Bonds. Transfer of principal, premium and interest payments to participants of DTC will be the responsibility of DTCi transfer of principal, premium and interest payments to beneficial owners by participants of DTC will be the responsibility of such participants and other nominees of beneficial owners. The Issuer will not be responsible or liable for maintaining, supervising or reviewing the records maintained by DTC, its participants or persons acting through such participants. In the event that (a) DTC determines not to continue to act as securities depository for the Bonds, or (b) the Issuer determines that continuation of the book entry system of evidence and transfer of ownership of the Bonds would adversely affect the interests of the beneficial owners of the Bonds, the Issuer will discontinue the book entry system with DTC. If the Issuer fails to identify another qualified securities depository to replace DTC, the Issuer will authenticate and deliver replacement Bonds in the form of fully registered certificates. -3- Each Bond shall bear interest from the interest payment date next preceding the date on which it is authenticated unless it is (a) authenticated upon an interest payment date in which event it shall bear interest from such interest payment date, or (b) authenticated prior to the first interest payment date in which event it shall bear interest from its date; provided, however, that if at the time of authentication interest is in default, such Bond shall bear interest from the date to which interest has been paid. The principal of and the interest and any redemption premium on the Bonds shall be payable in any coin or currency of the United states of America which is legal tender for the payment of public and private debts on the respective dates of payment thereof. 3. The Bonds shall bear the manual or facsimile signatures of the Chairman of the governing body of the Issuer and the Clerk of the Issuer and the official seal or a facsimile of the official seal of the Issuer shall be impressed or imprinted, as the case may be, on the Bonds. The certificate of the Local Government Commission of North Carolina to be endorsed on all Bonds shall bear the manual or facsimile signature of the Secretary of said Commis- sion or of a representative designated by said Secretary and the certificate of authentication of the Bond Registrar to be endorsed on all Bonds shall be executed as provided hereinafter. In case any officer of the Issuer or the Local Government Commission of North Carolina whose manual or facsimile signature shall appear on any Bonds shall cease to be such officer before the delivery of. such Bonds, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery, and arty Bond may bear the manual or facsimile signatures of such persons as at the actual time of the execution of such Bond shall be the proper officers to sign such Bond although at the date of such Bond such persons may not have been such officers. -4- No Bond shall be valid or become obligatory for any purpose or be entitled to any benefit or security under this resolution until it shall have been authenticated by the execution by the Bond Registrar of the certificate of authentication endorsed thereon. 4. The Bonds and the endorsements thereon shall be in substantially the following form: -5- NO. R- $ united states of America state of North Carolina NEW HANOVER COUNTY WATER AND SEWER DISTRICT GENERAL OBLIGATION REFUNDING BOND, SERIES 1994 INTEREST RATE MATURITY DATE DATE OF ORIGINAL ISSUE CUSIP June 1, January 1, 1994 REGISTERED OWNER: CEDE & CO. PRINCIPAL SUM: DOLLARS The New Hanover County Water and Sewer District (hereinafter referred to as "District"), a county water and sewer district of the State of North Carolina, acknowledges itself indebted and for value received hereby promises to pay to the registered owner named above, on the date specified above, upon surrender hereof, at the office of the Director of Finance of the District, 320 Chestnut street, wilmington, North Carolina 28401 (the "Bond Registrar"), the principal sum shown above and to pay to the registered owner hereof, by check mailed to the registered owner at his address as it appears on the bond registration books of the District, interest on such principal sum from the date of this bond or from the June 1 or December 1 next preceding the date of authentication to which interest shall have been paid, unless such date of authentication is a June 1 or December 1 to which interest shall have been paid, in which case from such date, such interest to the maturity hereof being payable on June 1, 1994 and semi-annually thereafter on December 1 and June 1 of each year, at the rate per annum specified above, until payment of such principal sum. The interest so payable on any such interest payment date will be paid to the person in whose name this bond is registered at the close of business on the record date for such interest, which shall be the fifteenth day of the calendar month (whether or not a business day) next preceding such interest payment date. Both the principal of and the -6- interest on this bond shall be paid in any coin or currency of the United states of America that is legal tender for the payment of public and private debts on the respective dates of payment thereof. This bond is issued in accordance with the Registered Public Obligations Act, Chapter 159E of the General statutes of North Carolina, as amended, 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 District, on December 6, 1993 (the "Bond Orderll) and resolutions adopted by said Board (the "Resolutions") to provide funds to refund the District's outstanding Sanitary Sewer Bonds, dated November 1, 1990. The bonds maturing on and after June 1, 2004 shall be subject to redemption prior to their stated maturities at the option of the District on or after June 1, 2003, in whole at any time or in part on any interest payment date, at a redemption price equal to the principal amount of each bond to be redeemed together with accrued interest thereon to the redemption date plus a redemption premium of one-half of one percent (1/2 of 1%) of the principal amount of each bond to be redeemed for each period of twelve months or part thereof between the redemption date and the maturity date of each bond to be redeemed, provided that such premium shall not exceed two percent (2%) of such principal amount. If less than all of the bonds of any maturity are called for redemption, the bonds to be redeemed shall be selected by loti provided, however, that the portion of any bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof and that, in selecting bonds for redemption, the Bond Registrar shall treat each bond as representing that number of bonds which is obtained by dividing the principal amount of such bond by $5,000. For so long as a book entry system is used for determining beneficial ownership of the bonds, if less than all the bonds within a maturity are to be redeemed, The Depository Trust Company ("DTC") and its participants shall determine which of the bonds within a maturity are to be redeemed. If less than all the bonds of different maturities are called for redemption, the bonds or portions of bonds to be redeemed shall be called in the inverse order of their maturities. Not more than forty-five (45) nor less than thirty (30) days before the redemption date of any bonds to be redeemed, whether such redemption be in whole or in part, the District shall cause a notice of such redemption to be mailed, postage prepaid, to DTC or its nominee. On the date fixed for redemption, notice having been given as aforesaid, the bonds or -7- portions thereof so called for redemption shall be due and payable at the redemption price provided for the redemption of such bonds or portions thereof on such date and, if moneys for payment of such redemption price and the accrued interest are held by the Bond Registrar as provided in the Resolutions, interest on the bonds or the portions thereof so called for redemption shall cease to accrue. If a portion of this bond shall be called for redemption, a new bond or bonds in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon the surrender hereof. The bonds will be issued in fully registered form by means of a book entry system with no physical distribution of bond certificates made to the public. One bond certificate for each maturity will be issued to DTC and immobilized in its custody. The book entry system will evidence ownership of the bonds in principal amounts of $5,000 or whole multiples thereof, with transfers of beneficial ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC. Transfer of principal, any premium, and interest payments to participants of DTC will be the responsibility of DTCi transfer of principal, any premium and interest payments to beneficial owners by participants of DTC will be the responsibility of such participants and other nominees of beneficial owners. The District will not be responsible or liable for maintaining, supervising or reviewing the records maintained by DTC, its participants or persons acting through such participants. The Bond Registrar shall keep at its office the books of said District for the registration of transfer of bonds. The transfer of this bond may be registered only upon such books and as otherwise provided in the Resolutions upon the surrender hereof to the Bond Registrar together with an assignment duly executed by the registered owner hereof or his attorney or legal representative in such form as shall be satisfactory to the Bond Registrar. Upon any such registration of transfer, the Bond Registrar shall deliver in exchange for this bond a new bond or bonds, registered in the name of the transferee, of authorized denominations, in an aggregate principal amount equal to the unredeemed principal amount of this bond, of the same maturity and bearing interest at the same rate. The Bond Registrar shall not be required to exchange or register the transfer of any bond during a period beginning at the opening of business fifteen (15) days before the day of the mailing of a notice of redemption of bonds or any portion thereof and ending at the close of business on the day of such -8- mailing or of any bond called for redemption in whole or in part pursuant to the Resolutions. It is hereby certified and recited that all conditions, acts and things required by the Constitution or statutes of the state of North Carolina to exist, be performed or happen precedent to or in the issuance of this bond, exist, have been performed and have happened, and that the amount of this bond, together with all other indebtedness of the District, is within every debt and other limit prescribed by said Constitution or statutes. The faith and credit of the District are hereby pledged to the punctual payment of the principal of and interest on this bond in accordance with its terms. This bond shall not be valid or become obligatory for any purpose or be entitled to any benefit or security under the Bond Order or the Resolutions mentioned herein until this bond shall have been endorsed by the authorized representative of the Local Government Commission of North Carolina and authenticated by the execution by the Bond Registrar of the certificate of authentication endorsed hereon. IN WITNESS WHEREOF, the District has caused this bond [to be manually signed by] [to bear the facsimile signatures of] the Chairman of the governing body of the District and the Clerk of the District and [a facsimile of] its official seal to be [imprinted] [impressed] hereon, and this bond to be dated January 1, 1994. of ~""""U"'" . '!!I.......~"""OVER Co '''''' ~ti~......o.o ~.. " nil 8. -,..-;. ( yp. .00 '). ~ ~. . ooo~ ...( ~~-: ... , . . n ~ ill:. -c':: i'i':~,& e:,..: ~ o\.. .~~ 0_0 ~ ~ '\ ""..~.G.O "fIi- ~ , 'Cta ...0....... <o\lfp ~..,,~ 1P,,1. -.- f/).i" ~'If........~ ~~)~/~A . Cl'e , New Hanover CountY Water and Sewer District -9- CERTIFICATE OF LOCAL GOVERNMENT COMMISSION The issuance of the within bond has been approved under the provisions of The Local Government Bond Act of North Carolina. Secretary, Local Government Commission CERTIFICATE OF AUTHENTICATION This bond is one of the Bonds of the issue designated herein and issued under the provisions of the within-mentioned bond order and resolutions. NEW HANOVER COUNTY WATER AND SEWER DISTRICT DIRECTOR OF FINANCE, as Bond Registrar By aJ~;r~ Authori~d Signatory Date of Authentication: /-1- r;1 -10- ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto the within Bond and irrevocably appoints , attorney-in-fact, to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without any alteration whatsoever. Signature Guaranteed: -11- 5. The Bonds maturing on and after June 1, 2004 shall be subject to redemption prior to their stated maturities at the option of the Issuer on or after June 1, 2003, in whole at any time or in part on any interest payment date, at a redemption price equal to the principal amount of each Bond to be redeemed together with accrued interest thereon to the redemption date plus a redemption premium of one-half of one percent (1/2 of 1%) of the principal amount of each Bond to be redeemed for each period of twelve months or part thereof between the redemption date and the maturity date of each Bond to be redeemed, provided that such premium shall not exceed two percent (2%) of such principal amount. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by loti provided, however, that the portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof and that, in selecting Bonds for redemption, the Bond Registrar shall treat each Bond as representing that number of Bonds which is obtained by dividing the principal amount of such Bonds by $5,000. For so long as a book entry system is used for determining beneficial ownership of the Bonds, if less than all of the Bonds within a maturity are to be redeemed, DTC and its participants shall determine which of the Bonds within a maturity are to be redeemed. If less than all of the Bonds of different maturities are called for redemption, the Bonds or portions of Bonds to be redeemed shall be called in the inverse order of their maturities. Not more than forty-five (45) nor less than thirty (30) days before the redemption date of any Bonds to be redeemed, whether such redemption be in whole or in part, the Issuer shall cause a notice of such redemption to be mailed, postage prepaid, to DTC or its nominee. Each such notice shall identify the Bonds or portions thereof to be redeemed by reference to their numbers and shall set forth the date designated for redemption, the redemption price to be paid and the maturities of the Bonds to be redeemed. If any Bond is to be redeemed in part only, the notice of redemption shall state also that on or after the redemption date, upon surrender of such Bond, a new Bond or Bonds in principal amount equal to the unredeemed portion of such Bond will be issued. On or before the date fixed for redemption, moneys shall be deposited with the Bond Registrar to pay the principal of and the redemption premium, if any, on the Bonds or portions thereof called for redemption as well as the interest accruing thereon to the redemption date thereof. -12- On the date fixed for redemption, notice having been given in the manner and under the conditions hereinabove provided, the Bonds or portions thereof called for redemption shall be due and payable at the redemption price provided therefor, plus accrued interest to such date. If moneys sufficient to pay the redemption price of the Bonds or portions thereof to be redeemed, plus accrued interest thereon to the date fixed for redemption, are held by the Bond Registrar in trust for the registered owners of Bonds or portions thereof called for redemption, such Bonds or portions thereof shall cease to be entitled to any benefits or security under this resolution or to be deemed outstanding, and the registered owners of such Bonds or portions thereof shall have no rights in respect thereof except to receive payment of the redemption price thereof, plus accrued interest to the date of redemption. If a portion of a Bond shall be selected for redemp- tion, the registered owner thereof or his attorney or legal representative shall present and surrender such Bond to the Bond Registrar for payment of the principal amount thereof so called for redemption and the redemption premium, if any, on such principal amount, and the Bond Registrar shall authenti- cate and deliver to or upon the order of such registered owner or his legal representative, without charge therefor, for the unredeemed portion of the principal amount of the Bond so surrendered, a Bond or Bonds of the same maturity, of any denomination or denominations authorized by this resolution and bearing interest at the same rate. 6. Bonds, upon surrender thereof at the office of the Bond Registrar together with an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall be satisfactory to the Bond Registrar, may, at the option of the registered owner thereof, be exchanged for an equal aggregate principal amount of Bonds of the same maturity, of any denomination or denominations authorized by this resolution and bearing interest at the same rate. The transfer of any Bond may be registered only upon the registration books of the Issuer upon the surrender thereof to the Bond Registrar together with an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall be satisfactory to the Bond Registrar. Upon any such registration of transfer, the Bond Registrar shall authenticate and deliver in exchange for such Bond a new Bond or Bonds, registered in the name of the transferee, of any denomination or denominations authorized by this resolution, in an aggregate principal amount equal to the unredeemed principal -13- amount of such Bond so surrendered, of the same maturity and bearing interest at the same rate. In all cases in which Bonds shall be exchanged or the transfer of Bonds shall be registered hereunder, the Bond Registrar shall authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions of this resolution. All Bonds surrendered in any such exchange or registration of transfer shall forthwith be cancelled by the Bond Registrar. The Issuer or the Bond Registrar may make a charge for shipping and out-of-pocket costs for every such exchange or registration of transfer of Bonds sufficient to reimburse it for any tax or other governmental charge required to be paid with respect to such exchange or registration of transfer, but no other charge shall be made for exchanging or registering the transfer of Bonds under this resolution. The Bond Registrar shall not be required to exchange or register the transfer of any Bond during a period beginning at the opening of business fifteen (15) days before the day of the mailing of a notice of redemption of Bonds or any portion thereof and ending at the close of business on the day of such mailing or of any Bond called for redemption in whole or in part pursuant to this section. As to any Bond, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal or redemption price of any such Bond and the interest on any such Bond shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such bond, including the redemption premium, if any, and interest thereon, to the extent of the sum or sums so paid. The Issuer shall appoint such registrars, transfer agents, depositaries or other agents and make such other arrangements as may be necessary for the registration, registration of transfer and exchange of Bonds within a reasonable time according to then commercial standards and for the timely payment of principal, interest and any redemption premium with respect to the Bonds. The Director of Finance of the Issuer is hereby appointed the registrar, transfer agent and paying agent for the Bonds (collectively, the "Bond Registrar"), subject to the right of the governing body of the Issuer to appoint another Bond Registrar, and as such shall keep at his office at 320 Chestnut street, wilmington, North Carolina 28401, the books of the Issuer for the registration, registration of transfer, exchange and payment of the Bonds as provided in this resolution. -14- 7. The Local Government Commission of North Carolina is hereby requested to sell the Bonds and to state in the Notice of Sale of the Bonds that bidders may name one rate of interest for part of the Bonds and another rate or rates for the balance of the Bonds. The Bonds shall bear interest at such rate or rates as may be named in the proposal to purchase said Bonds which shall be accepted by the Local Government Commission. The Issuer hereby reserves the right to adjust the aggregate principal amount of the Bonds and the principal amount of each maturity of the Bonds both prior to and after the opening of bids for the Bonds. Changes to be made prior to the opening of bids will be communicated by Munifacts wire not later than 5:00 o'clock P.M., North Carolina time on the day prior to the opening of the bids. The Issuer hereby further reserves the right to increase or decrease the aggregate principal amount of the Bonds by an amount not to exceed $1,000,000 following the opening of bids. The Issuer also hereby reserves the right to increase or decrease the principal amount of any maturity of the Bonds by an amount not to exceed $100,00 per maturity following the opening of the bids. In the event of such increase or decrease in the aggregate principal amount of the Bonds, the purchase price of the Bonds will be accordingly increased or decreased by the amount of such increase or decrease. 8. The Board of commissioners of the County of New Hanover, sitting as the governing body of the Issuer, hereby approves the terms of the Escrow Deposit Agreement by and between the Issuer and First-citizens Bank & Trust Company, in the form presented to the Board (draft of 12/23/93) and hereby authorizes the officers of the Issuer designated therein to execute and deliver the Escrow Deposit Agreement in substantially such form with such changes and insertions as any of such officers shall deem necessary to accomplish the purposes for which the Bonds are being issued, their execution thereof constituting conclusive evidence of such approval. 9. The Chairman of the governing body of the Issuer, the Clerk of the Issuer and the Director of Finance of the Issuer are hereby authorized and directed to cause the Bonds to be prepared and, when they shall have been duly sold by said Local Government Commission, to execute the Bonds and have the Bonds endorsed and authenticated as provided herein and to deliver the Bonds to the purchaser or purchasers to whom they may be sold by said Local Government Commission. 10. The Chairman of the governing body of the Issuer, the Clerk of the Issuer, the Director of Finance of the Issuer, and other officers of the Issuer are hereby authorized and directed to execute and deliver for and on behalf of the -15- ~ Issuer any and all financing statements, certificates, documents or other papers and to perform any and all acts they may deem necessary or appropriate in order to carry out the intent of this resolution and the matters herein authorized. 11. The Issuer covenants to comply with the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), to the extent required to preserve the exclusion from gross income of interest on the Bonds for Federal income tax purposes. 12. The Issuer hereby represents that (i) the Bonds are not private activity bonds as defined in the Code and (ii) the Issuer, together with any subordinate entities of the Issuer and any entities which issue obligations on behalf of the Issuer, reasonably expects that it will not issue more than $10,000,000 of tax-exempt obligations (other than private activity bonds which are not qualified as 501(c) (3) bonds) during the calendar year 1994. In addition, the Issuer hereby designates the Bonds as "qualified tax-exempt obligations" for the purposes of section 265(b) (3) of the Code. 13. The power to make any election on behalf of the Issuer with respect to the arbitrage rebate provisions of the Code applicable to the Bonds is hereby delegated to the Chairman of the governing body of the Issuer and the Director of Finance of the Issuer. -16- . The motion having been duly seconded, and the resolution having been considered, it was adopted by the following vote: E.L. Mathews, Jr., Chairman Sandra Barone, Vice-Chairman Robert G. Greer William A. Caster NA Y S : William Sisson /None AYES: * * -17- * * * LLG&M DRAFT 12/23/93 ESCROW DEPOSIT AGREEMENT This ESCROW DEPOSIT AGREEMENT, dated January 25, 1994, by and between the New Hanover County Water and Sewer District, North Carol~na (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 bond orders adopted by the Board of Commissioners of the County of New Hanover (the "County"), sitting as the governing body of the District, on December 19, 1983 and September 4, 1990 issued its $12,690,000 sanitary Sewer Bonds, dated November 1, 1990 and $8,540,000 of such Sanitary Sewer Bonds, stated to mature in installments on May 1 in each of the years 1994 to 2012, inclusive, are outstanding (the "Sanitary Sewer Bonds"); 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 December 6, 1993 and resolutions adopted by said Board of commissioners, sitting as the governing body of the District, on January 3, 1994 and January , 1994, authorized the issuance and provided for the sale of $ -- General Obligation Refunding Bonds, Series 1994 (the "Refunding Bonds"), for the purpose of providing funds to pay and refund the Sanitary Sewer Bonds; and WHEREAS, the District has determined to provide for the payment, refunding and redemption of the sanitary Sewer 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 Sanitary Sewer Bonds maturing in an annual principal amount of $150,000 on May 1 in each of the years 1994 to 2000, inclusive, and to redeem on May 1, 2000, at the applicable redemption price, as stated in each outstanding sanitary Sewer Bond, the Sanitary Sewer Bonds maturing after May 1, 2000 (collectively, the "Refunded Bonds"); NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 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 "1994 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 "1994 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 Monevs. 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) $ , to be deposited in the 1994 Escrow Account, from the proceeds of the Refunding Bonds. (b) $ , to be deposited in the 1994 Expense Account, from the proceeds of the Refunding Bonds. 3. Irrevocable Trusts Created. The deposit of moneys in the Account, as provided in paragraph 2 (a) 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 1994 Escrow Account, and on the Government obligations credited to the 1994 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 Obliqations. 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 1994 Escrow Account, as therein set forth. A $ portion of the moneys deposited in the 1994 Escrow Account shall not be invested. The Escrow Agent shall apply the moneys deposited in -2- the 1994 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 1994 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, Greene & 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. -3- 6. Deposit of Amounts Received. The Escrow Agent shall deposit, as received, to the credit of the 1994 Escrow Account, all maturing principal of and interest on the Government Obligations purchased with the moneys deposited in the 1994 Escrow Account. 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 Bonds, transfer from cash on hand to The Depository Trust Company, amounts sufficient to pay the interest on and any principal or redemption price of the Refunded Bonds payable on such date, as set forth in Exhibit B hereto. (b) If the Escrow Agent shall determine that amounts in the 1994 Escrow Account available to make the payments required by paragraph (a) of this section 7 are insufficient for such required payments, the Escrow Agent shall immediately notify the Finance Director of the District in writing of such shortfall, c/o New Hanover County Water and Sewer District Finance Director, 320 Chestnut Street, wilmington, North Carolina 28401. (c) 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 May 1, 2000 the Refunded Bonds maturing on and after May 1, 2001. The Escrow Agent is hereby irrevocably authorized and directed, and hereby agrees, to cause to be given a notice of redemption of the Refunded Bonds in substantially the form set forth in Exhibit C attached hereto. The Escrow Agent hereby -4- agrees to inform the District promptly and in writing of the required mailing of said notice of redemption. (b) 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 not less than 30 nor more than 45 days prior to the redemption date in writing to the registered owners by pre-paid first class mail, at their addresses as such addresses appear on the records of the Director of Finance of the District, as bond registrar for the Refunded 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 1994 Escrow Account shall be transferred to the District by the Escrow Agent. Any money remaining in the 1994 Expense Account on March 15, 1994 shall be transferred to the District by the Escrow Agent. 10. Acceptance bv Escrow Aqent: Liability. (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 1994 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 pay 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 -5- 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 July 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 1994 Escrow Account as of the immediately preceding July 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. 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 1994 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 -6- 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 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 [DISTRICT] [Seal] Attest: Chairman, governing body of New Hanover County Water and Sewer District Clerk, New Hanover County Water and Sewer District FIRST-CITIZENS BANK & TRUST COMPANY By vice President [Seal] Attest: Assistant Secretary: -7- ~ EXHIBIT A GOVERNMENT OBLIGATIONS PURCHASED JANUARY 25, 1994 Par Coupon Maturitv Price Accrued Total Interest Cost Debt service payment date EXHIBIT B DEBT SERVICE REQUIREMENTS Sanitary Sewer Bonds dated November 1, 1990 Principal Interest rate Interest Redemption premium " EXHIBIT C NOTICE OF REDEMPTION NEW HANOVER COUNTY WATER AND SEWER DISTRICT sanitary Sewer Bonds Dated November 1, 1990 CUSIP # 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 of the New Hanover County Water and Sewer District, North Carolina, dated as of November 1, 1990, numbered to , inclusive, and maturing on May 1 in the years 2001 to 2012, inclusive, are hereby called for redemption and prepayment on May 1, 2000. Each of the bonds so called for redemption and prepayment shall be redeemed and prepaid at the applicable redemption price plus accrued interest to the date of redemption. The bonds to be redeemed are further described as follows: Bond Number Maturity May 1 CUSIP Number Redemption Price 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 100-1/2 101 101-1/2 102 102 102 102 102 102 102 102 102 The bonds so called for redemption shall be payable at the office of the Director of Finance of the New Hanover County Water and Sewer District, Wilmington, North Carolina, and the bonds shall cease to bear interest as of May 1, 2000. ~ Under the provisions of the Interest and Dividend Tax Compliance Act of 1983, Paying Agents making payments of principal on municipal securities may be obligated to withhold a thirty-one per centum (31%) tax from remittances to individuals who have failed to furnish the Paying Agent with a valid taxpayer identification number. Holders who wish to avoid the imposition of this tax should submit valid taxpayer identification numbers (via Form W-9) when presenting their securities for collection. 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 *No representation is made as to the correctness of the CUSIP numbers either as printed on the bonds or as contained herein and reliance may be placed only on the bond identification numbers. A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT WHEREAS, G.S. Chapter 153A, Article 15 authorized counties to establish water and sewer systems, and G.S. Chapter 162A, Article 6 authorized counties to establish water and sewer districts; and WHEREAS, New Hanover County has established the New Hanover County Water and Sewer District, which District has arranged for construction of a sewer system in the unincorporated County; and WHEREAS, G.S. 153A-158 authorized counties to acquire a fee or less~r interest in real property by gift, grant or other lawful. method; and WHEREAS, EDWARD E. CROOM, hereinafter called "Grantor", has offered by plat dedication the utility easement shown situated on Tract B, Map Book 31, Page 327, New Hanover Registry; and WHEREAS, New Hanover County desires to accept the above referenced utility easement and the offer of dedication for the purpose of providing sewer and/or water services to County residents by and through the New Hanover County Water and Sewer District. NOW, THEREFORE, BE IT RESOLVED as follows: That New Hanover County Water and Sewer District hereby accepts the Grantor's dedication for the purpose of providing water and/or sewer service. y~ ACCEPTED this,~~ .~ day of [SEAL] ....'''...''0'" ~""~'..'IA@VER 0;"'" ...... i'P"'"_......... i&... "', ...... o' o. .r..... .:' i:! .. e. ?... :: :e 0.0 fl.. " ~ = 00 ~~-: ClIo : f: n: ==:: 0: : ~~t e:"..: c:. ~... .'-'&t;"" 'Y :' ~: tP ':6 0 . ~r..,-tia.,( o. ~ ~ ":..~ .00 .... .~ 00. A,.... ~ ~" -f~ o...o..o~.. o'~ ...,-- ""1, 0 SEwEt' \\\\ ""DlOoa'G"'" ATTES:r' ~. ~.d Cl rk to the Board fJ~/ , 199{. ,:r~~ct- - a rma E.L. Mathews, Jr. . jo- ~ ... :-7'- - ~...', -'-" _........~~ _"4_~_."-'----="--'-"__ oCt "Md. .----: .... o LOCATION EASEMENT OF ON UTILITY CROOM PROPERTY ..;, DECEMBER 21, 1993 Map-Not-To-Scale