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09-1101_CALIFORNIA STATEWIDE COMMUNITIES DEV AUTH_Purchase and Sale AgreementCITY OF SAN JUAN CAPISTRANO, CALIFORNIA, as Seller and CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, as Purchaser PURCHASE AND SALE AGREEMENT .Dated as of November 1, 2009 E -i TABLE OF CONTENTS Page I. DEFINITIONS AND INTERPRETATION......................................................................2 2. AGREEMENT TO SELL AND PURCHASE; CONDITIONS PRECEDENT................2 3. PURCHASE PRICE, CONVEYANCE OF PROPOSITION IA RECEIVABLE AND PAYMENT OF PURCHASE PRICE....................................................................... 3 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER .......................... 4 5. REPRESENTATIONS AND WARRANTIES OF T HE SELLER. ....... ........... .............. 5 6. COVENANTS OF THE SELLER...................................................................................... 7 7. THE PURCHASER'S ACKNOWLEDGMENT.........................:.....................................9 8. NOTICES OF BREACH ....................... ...................... ...:.................................................. 9 9. LIABILITY OF SELLER; INDEMNIFICATION............................................................9 10. LIMITATION ON LIABILITY...................................................................................... 10 1.1. THE SELLER'S ACKNOWLEDGMENT ............ .............. ............................. I ......... ...... 1.0 1.2. NOTICES..........................................................................................................................1.0 13. AMENDMENTS............................................................................................................. 10 14. SUCCESSORS AND ASSIGNS ..................... ... 10 15, THIRD PARTY RIGHTS ................................. ...._........ ................................................ 11. 16. PARTIAL INVALIDITY...............................................................................................Al 17. COUNTERPARTS......................................................................................................... 11 18. ENTIRE AGREEMENT.. ._ ................................................. 11 19. GOVERNING LAW........................................................................................................ 12 EXHIBITA .- DEFINITIONS...................................................................................................A-] EXHIBIT BI —OPINION OF SELLER'S COUNSEL........................................................... BI-] EXHIBIT B2 — BRINGDOWN OPINION OF SELLER'S COUNSELL................................. 132-1 EXHIBIT Cl — CLERK'S CERTIFICA`I'E............................................................................. C1-1. EXHIBIT C2 -- SELLER CERTIFICATE ... ........................ :....... ............................................ C2-1 EXHIBIT C3 -- B111 OF SALE AND BRINGDOWN CERTIFICATE ................................ C3-1 EXHIBIT D — IRREVOCABLE INSTRUCTIONS TO CONTROLLER ................................ D -I EXHIBIT E — ESCROW INSTRUCTION LETTER................................................................ E -I YURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT, dated as of November 1, 2009 (this "Agreement'), is entered into by and between: (1) CITY OF SAN JUAN CAPISTRANO, a local agency of the State of California within the meaning of Section 6585(f) of the California Government Code (the "Seller"); and (2) CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California (the "Purchaser"). RECITALS A. Pursuant to Section 25.5 of Article X111. of the California Constitution and Section 100.06 of the California Revenue and. Taxation Code, local agencies within the meaning of Section 6585(1) of the California Government Code are entitled to receive certain payments to be made by the State of California (the "State") on or before June 30, 2013, as reimbursement for reductions in the percentage of the total amount of ad valorem property tax revenues allocated to such local agencies during the State's 2009-10 fiscal year, which reductions have been authorized pursuant to Sections 100.05 and 100.06 of the California Revenue and Taxation Code. B. The Seller is the owner of the Proposition IA Receivable (as defined below) and is entitled to and has determined to sell all right, title and interest in and to the Proposition I A receivable, namely, the right to payment of moneys due or to become due to the Seller pursuant to Section 25.5(a)(1)(B)(iii) of Article XIII of the California Constitution and Section 100.06 of the California Revenue and Taxation Code, in order to obtain money to fund any lawful purpose as permitted under the applicable laws of the State. C. The Seller is authorized to sell or otherwise dispose of its property as the interests of its residents require. D. The Purchaser, a joint exercise of powers authority organized and existing under the laws of the State, has been authorized pursuant to Section 6588(x) of the California Government Code to purchase the Proposition IA .Receivable. E. The Seller is willing to sell, and the Purchaser is willing to purchase, the Proposition IA Receivable upon the terms specified in this Agreement. F. Pursuant to its .Proposition IA Receivable Financing Program (the "Program"), the Purchaser will .issue its bonds (the -Bonds") pursuant to an Indenture (the "Indenture"), between the Purchaser and Wells Fargo Bank, National Association, as trustee (the "Trustee"), and will use a portion of the proceeds thereof to purchase the Proposition 1A Receivable from the Seller. G. The Purchaser will grant a security interest in such .Proposition ]A Receivable to the Trustee and each Credit Enhancer to secure the Bonds. AGREEMENT NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, the parties hereto hereby agree as follows: 1. Definitions and Interpretation. (a) For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings ascribed. to such terms in Exhibit A attached hereto and which is incorporated by reference herein. (b) The words "hereof," "herein," `:hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; section and exhibits references contained in this Agreement are references to sections and exhibits in or to this Agreement unless otherwise specified; and the term "including" shall mean "including without limitation." (c) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time may be amended, modified or supplemented and. includes (in the case of agreements or instruments) references to all attachments and exhibits thereto and instruments incorporated therein; and any references to a Person are also to its permitted successors and assigns. 2. Agreement to Sell and Purchase; Conditions Precedent. (a) The Seller agrees to sell, and the Purchaser agrees to purchase, on the Closing Date, for an amount equal to the Purchase Price, all right, title and interest of the Seller in and to the "Proposition IA receivable" as defined in Section 6585(g) of the California Government Code (the "Proposition IA Receivable"), namely, the right to payment of moneys due or to become due to the Seller pursuant to Section 25.5(a)(1)(B)(iii) of Article X11I of the California Constitution and Section 100.06 of the California Revenue and Taxation Code. The Purchase Price shall be paid by the Purchaser to the Seller in two equal cash installment payments, without interest (each, an "Installment Payment' and, collectively, the "Installment Payments"), on January 15, 2010, and May 3, 2010 (each a "Payment Date" and, collectively, the "Payment Dates"). The Purchaser shall pay the Purchase Price by wire transfer pursuant to wire instructions provided by the Seller to the Trustee by e-mail to john.deleray@welisfargo.com or by facsimile to 213-614-3355, Attention: John Deleray. If wire instructions are not provided to the Trustee (or if such wire instructions are invalid) payment will be made by check mailed .to the Seller's Principal Place of Business. (b) The performance by the Purchaser of its obligations hereunder shall be conditioned upon: (i) Transaction Counsel receiving on or before the date the Bonds are sold (the "Pricing Date"), to be held in escrow until the Closing Date and then delivered to the Purchaser on the Closing Date, the following documents 2 duly executed by the Seller or its counsel, as applicable: (1) an opinion of counsel to the Seller dated the Pricing Date in substantially the 'form attached hereto as Exhibit 131, (2) certificates dated the Pricing Date in substantially the forms attached hereto as Exhibit C1 and Exhibit C2, (3) irrevocable instructions to the Controller dated as of the Closing Date in substantially the form attached hereto as Exhibit D, (4) this Agreement, (5) a certified copy of the resolution of the Seller's City Council approving this Agreement, the transactions contemplated. hereby and the documents attached hereto as exhibits, and (6) an escrow instruction letter in substantially the form attached hereto as Exhibit E; (ii) Transaction Counsel receiving on or before the Pricing Date, (1) a bringdown opinion of counsel to the Seller dated as of the Closing Date in Substantially the form attached hereto as Exhibit B2, and (2) a bill of sale and bringdown certificate of the Seller (the "Bill of Sale") in substantially the form attached hereto as Exhibit C3; provided that the Purchaser may waive, in its sole discretion, the requirements of Section 2(b)(ii)(1); (iii) the Purchaser issuing Bonds in an amount which will be sufficient to pay the .Purchase Price; and (iv) the receipt by the Purchaser of a certification bf the County Auditor confirming the Initial Amount of the Proposition I A Receivable pursuant to the Act. (c) The performance by the Seller of its obligations hereunder shall be conditioned solely upon the Purchaser's issuance of the Bonds its execution and delivery of this Agreement, pursuant to which it is legally obligated to pay the Installment Payments to the Seller on the Payment Dates as set forth in this Agreement, and no other act or omission on the part of the Purchaser or any other party shall excuse the Seller from performing its obligations hereunder. Seller specifically disclaims any right to rescind this Agreement, or to assert that title to the Proposition IA Receivable.has not passed to the Purchaser, should Purchaser fail to make Installment Payments in the requisite amounts on the Payment Dates. 3. Purchase Price Conveyance of Pro osition IA Receivable and Payment of Purchase Price. (a) Upon pricing of the Bonds by the Purchaser, the Purchaser will inform the Seller that it will pay the Purchase Price in Installment Payments on the Payment Dates. (b) In consideration of the Purchaser's agreement to pay and. deliver to the Seller the Installment Payments on the Payment Dates, the Seller agrees to (i) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral security, without recourse except as expressly provided herein, and the Purchaser agrees to purchase, accept and receive, the Proposition I Receivable, and (ii) assign to the Purchaser, to the extent permitted by law, all present or future rights, if any, of the Seller to enforce or cause the enforcement of payment of the Proposition ]A Receivable pursuant to the Act and. other applicable law. Such transfer, grant, bargain, sale, assignment, conveyance, set over and delivery is hereby expressly stated to be a sale and, pursuant to Section 6588.6(b) of the California Government Code, shall be treated as an absolute sale and transfer of the Proposition I A Receivable, and not as a grant of a security interest by the Seller to secure a borrowing. This is the statement referred to in Sections 6588.6(b) and (c) of the California Government Code. 4. Representations and Warranties of the Purchaser. The Purchaser represents and warrants to the Seller, as of the date hereof, as follows: (a) The Purchaser is duly organized, validly existing and in good standing under the laws of the State of California. (b) The Purchaser has full power and authority to enter into this Agreement and to perform its obligations hereunder and has duly authorized such purchase and assignment of the Proposition to Receivable by the Purchaser by all necessary action. (c) Neither the execution and delivery by the Purchaser of this Agreement, nor the performance by the Purchaser of its obligations hereunder, shall conflict with or result in a breach or default under any of its organizational documents, any law, rule, regulation, judgment, order or decree to which it is subject or any agreement or instrument to which it is a party. (d) To the best of the knowledge of the Purchaser, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Purchaser affecting the existence of the Purchaser or the titles of its commissioners or officers, or seeking to restrain or to enjoin the purchase of the Proposition IA Receivable or to direct the application of the proceeds of the purchase thereof, or in any way contesting or. affecting the validity or enforceability of any of the Transaction Documents or any other applicable agreements or any action of the Purchaser contemplated by any of said documents, or in any way contesting the powers of the Purchaser or its authority with respect to the Transaction Documents to which it is a party or any other applicable agreement, or any action on the part of the Purchaser contemplated by the Transaction Documents, or in any way seeking to enjoin or restrain the Purchaser from purchasing the Proposition IA Receivable or which if determined adversely to the Purchaser would have an adverse effect upon the Purchaser's ability to purchase the Proposition IA Receivable, nor to the knowledge of the Purchaser is there any basis therefor. (e) This Agreement, and its execution, delivery and performance hereof have been duly authorized by it, and this Agreement has been duly executed and delivered by it,and constitutes its valid and binding obligation enforceable against it in accordance with the terms hereof, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity. (f) The Purchaser is a separate legal entity, acting solely through its authorized representatives, from the Seller, maintaining separate records, books of account, assets, bank accounts and funds, which are not and have not been commingled with those of the Seller. 4 (g) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would adversely affect, the purchase by the Purchaser of the Proposition 1.A Receivable or the performance by the Purchaser of its obligations ander the Transaction Documents to which it is a party and any other applicable agreements, have been obtained and are in full force and effect. . (h) Insofar as it would materially adversely affect the Purchaser's ability to enter into, carry out and perform its obligations under any or all of the Transaction Documents to which it is a party, or consummate the transactions contemplated by the same, the Purchaser is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of California or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, ,note; resolution, agreement or other instrument to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of the knowledge of the Purchaser, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the execution and delivery by the Purchaser of the Transaction DocumentS to which it is a party, andcompliance by the .Purchaser with the provisions thereof, under the circumstances contemplated thereby, do not and will not conflict with or constitute on the part of the Purchaser a breach of or default under any. agreement or other instrument to which. the Purchaser is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Purchaser is subject. 5. Re resentations and Warranties of the Seller. The Seller hereby represents and warrants to the .Purchaser, as of the date hereof, as follows: (a) The Seller is a local agency within the meaning of Section 6585(f) of the California Government Code, with full power and authority to execute and deliver this Agreement and to carry out its terms. (b) The Seller has full power, authority and legal right to sell and assign the Proposition IA Receivable to the Purchaser and has duly authorized such sale and assignment to the Purchaser by all necessary action; and the execution, delivery and performance by the Seller ofthis Agreement has been duly authorized by the Seller by all necessary action. (c) This Agreement has been, and as of the Closing Date the Bill of Sale will have been, duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery of this Agreement by the Purchaser, each of this Agreement and the Bill of Sale constitutes a legal, valid and. binding obligation of the Seller enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity. (d) Ali approvals, consents, authorizations, elections and orders of or dings or registrations with any governmental authority, board; agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would adversely affect, the sale by the Seiler of the Proposition IA Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction .Documents to which it is a party and any other applicable agreements, have been obtained and are in full force and effect. (e) Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and perform its obligations under any or al.l of the Transaction Documents to which it is a party, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of California or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of the knowledge of the Seller, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents to which it is a parry, and compliance by the Seller with the provisions thereof, under the circumstances contemplated thereby, do not and . will not conflict with or constitute on the part of the Seller a breach of or default under any agreement or other instrument to.which the Seller is a party or by which it is bound or any existing law, regulation,. court order or consent decree to which the Seller is subject. (f) To the best of the knowledge of the Seller, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Seller affecting the existence of the Seller or the titles of its City Council members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the Proposition- l A Receivable or to direct the application of the proceeds of the sale thereof, or in any way contesting or affecting the validity or enforceability of any of the Transaction Documents or any other applicable agreements or any action of the Seller contemplated by any of said documents, or in any way contesting The powers of the Seller or its authority with respect to the Resolution or the Transaction Documents to which it is a party or any other applicable agreement, or any action on the part of the Seller contemplated by the Transaction Documents, or in any way seeking to enjoin or restrain the Seller from selling the Proposition i A Receivable or which if determined adversely to the Seller would have an adverse effect upon the Seller's ability to sell the Proposition I Receivable, nor to the knowledge of the Seller is there any basis therefor. (g) Prior to the sale of the Proposition IA Receivable to the Purchaser, the Seller was the sole owner of the Proposition IA Receivable, and has such right, title and interest to the Proposition 1 A Receivable as provided in the Act. From and after the conveyance of the Proposition IA Receivable by the Seller to Purchaser on the Closing Date, the Seller shall have no right, title or interest in or to the Proposition IA Receivable. Except as provided in this Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any right, title or interest of any kind whatsoever in all or any portion of the Proposition IA Receivable, nor has the Seller created, or to the best knowledge of the Seller permitted the creation of, any lien, pledge, security interest or any other encumbrance (a "Lien") thereon. Prior to the sale of the Proposition IA Receivable to the Purchaser, the Seller held title to the Proposition l A Receivable free and clear of any Liens. As of the Closing Date, this Agreement, together with the Bill of Sale, constitutes a valid and absolute sale to the Buyer of all of the Seller's right, title and interest in and to the Proposition I Receivable. (h) The Seller acts solely through its authorized. officers or agents. (i) The Seller maintains records and books of account separate from those of the Purchaser. 0) The Seller maintains its respective assets separately from the assets of the Purchaser (including through the maintenance of separate bank accounts); the Seller's funds and assets, and records relating thereto, have not been and are not commingled with those of the Purchaser. (k) The Seller's principal place of business and chief executive office is located at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. (1) The aggregate amount of the Installment Payments is reasonably equivalent value for the Proposition IA Receivable. The Seller acknowledges that the amount payable to or on behalf of the Purchaser by the State with respect to the Proposition I A Receivable will be in excess of the Purchase Price and the Initial Amount of the Proposition 1A Receivable and confirms that it has no claim to any such excess amount whatsoever. (m) The Seller does not act as an agent of the Purchaser in any capacity, but instead presents itself to the public as an entity separate from the Purchaser. (n) The Seller has not guaranteed and shall not guarantee the obligations of the Purchaser, nor shall it hold itself out or permit itself to be held out as having agreed to pay or as beim; liable for the debts of the Purchaser; and the Seller has not received nor shall the Seller accept any credit or financing from any Person who is relying upon the availability of the assets of the.Purchaser in extending such credit or financing. The Seller has not purchased and shall not purchase any of the Bonds or any interest therein. (o) All transactions between or among the Seller, on the one band, and the Purchaser on the other hand (including, without limitation, transactions governed by contracts for services and facilities, such as payroll, purchasing, accounting, legal and personnel services and. office space), whether existing on the date hereof or entered into after the date hereof, shall be on terms and conditions (including, without limitation, terms relating to amounts to be paid thereunder) which are believed by each such party thereto to be both fair and reasonable and comparable to those available on an arras -length basis from Persons who are not affiliates. (p) The Seller has not, under the provisions of Section 100.06(b) of the California Revenue and Taxation Code, received a reduction for hardship or otherwise, nor has it requested, made arrangements for, or completed a reallocation or exchange with any other local agency, of tW, total amount of the ad valorem property tax revenue reduction allocated to the Seller pursuant to Section 100.06(a) of the California Revenue and Taxation Code. 6. Covenants of the Seller. (a) The Seller shall not take any action or omit to take any action which adversely affects the interests of the Purchaser in the Proposition IA Receivable and in the proceeds thereof.. The Seller shall not take any action or omit to tape any action that shall adversely affect 7 the ability of the Purchaser, and any assignee of the Purchaser, to receive payments of the Proposition IA Receivable. (b) The Seller shall not take any action or omit to take any action that would impair the validity or effectiveness of the Act, nor, without the prior written consent of the Purchaser or its assignees, agree to any amendment, modification, termination, waiver or surrender of, the terms of the Act, or waive timely performance or observance under the Act. Nothing in this agreement shall impose a duty on the Seller to seek to enforce the Act or to seek enforcement thereof by others, or to prevent others from modifying, terminating, discharging or impairing the validity or effectiveness of the Act. (c) Upon request of the Purchaser or its assignee, (i) the Seller shall execute and deliver such further instruments and do such further acts (including being named as a plaintiff in an appropriate proceeding) as may be reasonably necessary or proper to carry out more effectively the purposes and intent of this Agreement and the Act, and (ii) the Seller shall take all actions necessary to preserve, maintain and protect the title of the Purchaser to the Proposition IA Receivable. (d) On or before the Closing Date, the Seller shall send (or cause to be sent) an irrevocable instruction to the Controller pursuant to Section 6588.6(c) of California Government Code to cause the Controller to disburse all payments of the Proposition lA Receivable to the Trustee, together with notice of the sale of the Proposition 1 A Receivable to the Purchaser and the assignment of all or a portion of such assets by the Purchaser to the Trustee. Such notice and instructions shall be in the form of Exhibit D hereto. The Seller shall not take any action to revoke or which would have the effect of revoking, in. whole or in part, such. instructions to the Controller. Upon sending such irrevocable instruction, the Seller shall have relinquished and waived any control over the Proposition IA Receivable, any authority to collect the Proposition IA Receivable, and any power to revoke or amend the instructions to the Controller contemplated by this paragraph. Except as provided in Section 2(c) of this Agreement, the Seller shall not rescind, amend or modify the instruction described in the first sentence of this paragraph. The Seller shall cooperate with the Purchaser or its assignee in giving instructions to the Controller if the Purchaser or its assignee transfers the Proposition I A Receivable. In the event that the Seller receives any proceeds of the Proposition IA Receivable, the Seller shall hold the same in trust for the benefit of the Purchaser and the Trustee and each Credit Enhancer, as assignees of the Purchaser, and shall promptly remit the same to the Trustee. (e) The Seller hereby covenants and agrees that it will not at any time institute against the Purchaser, or join in instituting against the Purchaser, any bankruptcy, reorganization, arrangement, insolvency, liquidation, or similar proceeding under any United States or state bankruptcy or similar law. (f) The financial statements and books and records of the Seller prepared after the Closing Date shall reflect the separate existence of the Purchaser and the sale to the Purchaser of the Proposition IA Receivable. (g) The Seller shall treat the sale of the Proposition IA Receivable as a sale for regulatory and accounting purposes. 8 (h) From and after the date of this Agreement, the Seiler shall not sell, transfer, assign, set over or otherwise convey any right, title or interest of any kind whatsoever in all or any portion of the Proposition IA Receivable, nor shall the Seller create, or to the knowledge of the Seller permit the creation of, any Lien thereon. 7. The Purchaser's Acknowled ment. , The Purchaser acknowledges that the Proposition IA Receivable is not a debt or liability of the Seller, and that the Proposition IA Receivable is payable solely by the State from the funds of the State provided therefor. Consequently, neither the taxing power of the Seller, nor the full faith and credit thereof is pledged to the payment of the Proposition I A Receivable. No representation is made by the Seller concerning the obligation or ability of the State to make any payment of the Proposition I A Receivable pursuant to Section 100.06 of the Revenue and Taxation Code and Section 25.5 of Article XIII of the California Constitution, nor is any representation made with respect to the ability of the State to enact any change in the law applicable to the Transaction Documents (including without limitation Section 100.06 of the Revenue and Taxation Code or Section 6588.6 of the Government Code). The Purchaser acknowledges that the Seller has no obligation with respect to any offering document or disclosure related to the Bonds. 8. Notices of Breach. (a) Upon discovery by the Seller or the Purchaser that the Seller or Purchaser has breached any of its covenants or that any of the representations or warranties of the Seller or the Purchaser are materially false or misleading, in a manner that materially and adversely affects the value of the Proposition I A Receivable or the Purchase .Price thereof, the discovering party shall give prompt written notice thereof to the other party and to the Trustee, as assignee of the Purchaser, who shall, pursuant to the Indenture, promptly thereafter notify each Credit Enhancer and the Rating Agencies. (b) The Seller shall not be liable to the Purchaser, the Trustee, the holders of the Bonds, or any Credit Enhancer for any loss, cost or expense resulting from thefailure of the Trustee, any Credit Enhancer or the Purchaser to promptly notify the Seller upon the discovery by an authorized officer of the Trustee, any Credit Enhancer or the Purchaser of a breach of any covenant or any materially false or misleading representation or warranty contained herein. 9. Liability of Seller; Indemnification. The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this Agreement. The Seller shall indemnify, defend and hold harmless the Purchaser, the Trustee and each Credit Enhancer, as assignees of the Purchaser, and their respective officers, directors, employees and agents from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon any such Person by the Seller's breach of any of its covenants contained herein or any materially false or misleading representation or warranty of the Seller contained herein. Notwithstanding anything to the contrary herein, the Seller shall have no liability for the payment of the principal of or interest on. the Bonds issued by the Purchaser. 9 10. Limitation on Liability. (a) The Seller and any officer or employee or agent of the Serer may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Seller shall not be under any obligation to appear in, prosecute or defend any legal action regarding the Act that is unrelated to its specific obligations under this Agreement. (b) No officer or employee of the Seller shall have any liability for the representations, warranties, covenants, agreements or other obligations of the Seller hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Seller. 11. The Seller's Acknowledgment. The Seller hereby agrees and acknowledges that the Purchaser intends to assign and grant a security interest in all or a portion of (a) its rights hereunder and (b) the Proposition IA Receivable, to the Trustee and each Credit Enhancer pursuant to the Indenture. The Seller further agrees and. acknowledges that the Trustee, the holders of the Bonds, and each Credit Enhancer have relied and shall continue to rely upon each of the foregoing representations, warranties and. covenants, and further agrees that such Persons are entitled so to rely thereon. Each of the above representations, warranties and covenants shall. survive any assignment and grant of a security interest in all or a portion of this Agreement or the Proposition ]A Receivable to the Trustee and each Credit Enhancer and shall continue in full force and effect, notwithstanding any subsequent termination of this Agreement and the other Transaction Documents, The above representations, warranties and covenants shall inure to the benefit of the Trustee and each Credit Enhancer. 12. Notices. All demands upon or, notices and communications to, the Seller, the Purchaser, the Trustee or the Rating Agencies under this Agreement shall be in writing, personally delivered or mailed by certified mail, return receipt requested, to such party at the appropriate notice address, and shall be deemed to have been duly given upon receipt. 13. Amendments. This Agreement may be amended by the Seller and the Purchaser, with (a) the consent of the Trustee, (b) the consent of each Credit Enhancer, and (c) a Rating Agency Confirmation, but without the consent of any of the holders of the Bonds, for the purpose of adding any provisions to or changing in any manner or eliminating arty of the provisions of this Agreement. Promptly after the execution of any such amendment, the Purchaser shall furnish written notification of the substance of such amendment to the Trustee and to the Rating Agencies. 14. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Seller, the Purchaser and their respective successors and permitted assigns. The Seller may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Purchaser. Except as specified herein, the Purchaser may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Seller. 10 1.5. Third Party Rim. The Trustee and each Credit Enhancer are express and intended third party beneficiaries under this Agreement. Nothing expressed. in or to be implied from this Agreement is intended to give, or shall be construed to give, any Person, other than the parties hereto, the Trustee, and each Credit Enhancer, and their permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision herein. 16. Partial Invalidity, if at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. 17. Counterparts. This Agreement may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed original for all purposes. 1$. Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter hereof. 11. 19. Governing Law. This Agreement shall be governedby and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement to be duly executed as of the date first written above. CITY OF SAN JUAN CAPISTRANO, as Seller By: Authorized Officer CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, as Purchaser By: Authorized Signatory 12 EXHIBIT A DEFINITIONS For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings set forth below. "Act" means Chapter 14XXXX of the California Statutes of 2009 (Assembly Bill No. 15), as amended. "Bill of Sale" has the meaning given to that term in Section 2(b)(ii) hereof. "Closing Date" means the date on which the Bonds are issued. The Closing Date is expected to be November 1.9, 2009, but the .Purchaser may change the Closing Date by providing e-mail notification to crussell@sanjuancapistrano.org not later than .one day prior to the Closing Date. "Controller" means the Controller of the State. "County Auditor" means the auditor or auditor -controller of the county within which the Seller is located. "Credit Enhancer" means any municipal bond insurance company, bank or other financial institution or organization which is performing in all material respects its obligations under any Credit Support Instrument for some or all of the Bonds. "Credit Support Instrument" means a policy of insurance, a letter of credit, a stand-by purchase agreement, a revolving credit agreement or other credit arrangement pursuant to which a Credit Enhancer provides credit or liquidity support with respect to the payment of interest, principal or purchase price of the Bonds. "Initial Amount" means, with respect to the Proposition IA Receivable, the. amount of property tax revenue reallocated away from the Seller pursuant to the provisions of Section 100.06 of the Revenue and Taxation Code, as certified by the County Auditor pursuant to the Act. "Installment Payments" have the meaning set forth in Section 2(a). "Payment Dates" have the meaning set forth in Section 2(a). "Pricing Date" means the date on which the Bonds are sold. The Pricing Date is expected to be November 10, 2009, but the Purchaser may change the Pricing Date by providing e-mail notification to crusscll(a�sanjuancapistrano.org not later than one day prior to the Pricing Date. "Principal Place of Business" means, with respect to the Seller, the location of the Seller's principal place of business andchief executive office located at 32400 Paseo Adelanto; San :roan Capistrano, CA 92675. A -I "Proposition IA Receivable" has the meaning set forth in Section 2(a). "Purchase Price" means an amount equal to the Initial Amount. "Rating Agency" means any nationally recognized rating agency then providing or maintaining a rating on the Bonds at the request of the Purchaser, "Rating Agency Confirmation" means written confirmation from each Rating Agency that any proposed action will not, in and of itself, cause the Rating Agency to lower, suspend or withdraw the rating then assigned by such Rating Agency to any Bonds. "Resolution" means the resolution adopted by the City Council approving the sale of the Proposition lA Receivable. "State" means the State of California. "Transaction Counsel" means Orrick, Herrington &Sutcliffe LLP. "Transaction Documents" mean this Agreement, the Bill of Sale, the Indenture, the Bonds and the Irrevocable Instructions For Disbursement of Proposition IA Receivable .of City of San .Tuan Capistrano, dated as of the Closing Date. A-2 EXHIBIT BI OPINION OF COUNSEL to CITY OF SAN JUAN CAPISTRANO Dated: Pricing Date California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National Association Los Angeles, California Re: Sale of Proposition I A Receivable Ladies & Gentlemen: [I have/'Thi s 1. 0f�ice has acted as counsel for the City of San Juan Capistrano (the "Seller") in connection with the adoption of that certain resolution (the "Resolution") of the City Council of the Seller (the "Governing Body") pursuant to which the Seller authorized the sale to the California Statewide Communities Development Authority (the "Purchaser") of the Seller's "Proposition I Receivable", as defined in and pursuant to the Purchase and Sale Agreement dated as of November 1, 2009 (the "Sale Agreement") between the Seller and the Purchaser. In connection with these transactions, the Seller has issued certain Irrevocable Instructions For Disbursement of the Seller's Proposition IA Receivable to the Controller of the State of California (the "Disbursement Instructions") and a Bill of Sale and Bringdown Certificate of the Seller (the "Bill of Sale" and, collectively with the Sate Agreement and the Disbursement Instructions, the "Seller Documents"). Unless the context otherwise requires, capitalized terms used but not o 4erwise defined herein shall have the meanings given to such terms in the Sale Agreement. [P�]Dave examined and are familiar with the Seller Documents and with those documents relating to the existence, organization, and operation of the Seller, the adoption of the Resolution, and the executionof the Seller Documents, and have satisfied ourselves as to such other matters as [w� deem necessary in order to render the following opinions. As to paragraphs numbered 3 and 4 below, [I we have relied as to factual matters on the representations and warranties of the Seller contained. the Sale Agreement. I3a,sed upon the foregoing, and subject to the limitations and qualifications set forth herein, [Iw].are of the opinion that: Bl -1 I . The Seller is a focal agency, within the meaning of Section 6585(f) of the California Government Code. The Governing Body is the governing body of the Seller. 2. The Resolution was duly adopted at a meeting of the Governing Body, which was called and held pursuant to law and with all public notice required by law, and at which a quorum was present and acting throughout, and the Resolution is in full force andeffect and has not been modified, amended or rescinded since the date of its adoption. 3. To the best of Amy our knowledge, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Seller (i) affecting the existence of the Seller or the titles of its Governing Body members or officers to their respective offices; (ii) seeping to restrain or to enjoin the sale of the Proposition 1A Receivable or to direct the application of the proceeds of the sale thereof, or materially adversely affecting the sale of the Proposition I A Receivable; (iii) in any way contesting or affecting the validity or enforceability of the Resolution, Seller Documents or any other applicable agreements or any action of the Seller contemplated by any of said documents; or (iv) in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Seller Documents or any other applicable agreement, or any action on the part of the Seller contemplated by any of said documents. 4. To the best of fmoud knowledge, prior to the sale of the Proposition IA Receivable to the Purchaser, the Seller had not sold, transferred, assigned, set over or otherwise conveyed any right, title or interest of any kind whatsoever in all or any portion of the Seller's Proposition IA Receivable, nor had the Seller created, or permitted the creation of, any Lien thereon. 5. The Seller has duly authorized and executed the Seller Documents and, assuming the due authorization execution and delivery of the Sale Agreement by the Purchaser, each Seller Document will be legal, valid and binding against the Seller and enforceable against the Seller in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or laws relating to or affecting creditors' rights, and the application of equitable principles and the exercise of.judicial discretion in appropriate areas. No opinion is expressed concerning the obligation or ability of the State of California to make any payment of the Proposition IA Receivable pursuant to Section 100.06 of the Revenue and Taxation. Code and Section 25.5 of Article XIII of the California Constitution, nor is any opinion expressed with respect to the ability of the State to enact any change in the law applicable to the Seller Documents (including, without limitation, Section 10006 of the Revenue and Taxation Code or Section 6588.6 of the Government Code). Furthermore, �e express no opinion as to the value of the .Proposition IA Receivable or as to any legal or equitable remedies that may be available to any person should the Proposition lA Receivable have Iittle or no value. No opinion is expressed with respect to the sale of Bonds by the Purchaser. B 17 The legal opinion set forth herein is intended for the information solely of the addressees hereof and for the purposes contemplated by the Sale Agreement. The addressees may not rely on it in connection with any transactions other than those described herein, and it is not to be relied upon by any other person or entity, or for any other purpose, or quoted as a whole or in part, or otherwise referred to, in any document, or to be filed with any governmental or administrative agency other than the Purchaser or with any other person or entity for any purpose without [any our iprior written consent. In addition to the addressees hereof, each Credit Enhancer an the uncle, iters of the Bonds may rely upon this legal opinion as if it w e addressed to them. [I(I 51)do not undertake to advise you of matters that may come to [m©urs, attention subsequent to fhe date hereof that may affect the opinions expressed herein. Very truly yours, By. Selle'r's Counsel 81-3 EXHIBIT 1:32 OPINION OF COUNSEL to CITY OF SAN JUAN CAPISTRANO Dated: Closing Date California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National. Association Los Angeles, California Re: Sale of Proposition l A Receivable Brin down Opinion) Ladies & Gentlemen: Pursuant to that certain Purchase and Safe Agreement dated as of November 1, 2009 (the "Sale Agreement") between the City of Sad. Tuan Capistrano (the "Seller") and the California Statewide Communities Development Authority (the "Purchaser") this Office delivered an opinion .(the "Opinion") . dated the Pricing Date as counsel for the Seller in connection with the sale of the Seller's Proposition 1A Receivable (as defined in the Sale Agreement), the execution of documents related thereto and certain other related matters. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Sale Agreement. 1. confirm that you may continue to rely upon the Opinion as if it were dated as of the date hereof. Each Credit Enhancer and the underwriters of the Bonds may rely upon this legal opinion as if it were addressed to them. This letter is delivered to you pursuant to Section 2(b)(ii)(1) of the Sale Agreement. Very truly yours, By. Seller's Counsel fel EXHIBIT C1 CLERK'S CERTIFICATE CERTIFICATE OF THE CITY CLERK OF CITY OF SAN JUAN CAPISTRANO, CALIFORNIA Dated: Pricing Date The undersigned. City Clerk of the City of San Juan Capistrano (the "Seller"), a local agency of the State of California within the meaning of Section 6585(f) of the California Government. Code, does hereby certify that the foregoing is a full, true and correct copy of Resolution No. 0 9 - 10 - 2 0 - 0 3 duly adopted at a regular meeting of the City Council of said Seller duly and legally held at the regular meeting place thereof on the 20th day of October , 2009, of which meeting all of the members of said City Council had due notice and at which a quorum was present and acting throughout, and that at said meeting said resolution was adopted by the following vote: AYES: Al.levato, Freese, Hribar, Uso and Mayor Nl,el.sen NOES: None ABSENT: None ABSTAIN: None I do hereby further certify that I have carefully compared the same with the original minutes of said meeting on file and of record in my office and that said resolution is a full, true and correct copy of the original resolution adopted at said meeting and entered in said minutes and that said resolution has not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect. I do hereby further certify that an agenda of said meeting was posted at least 72 hours before said meeting at a location in the City of San .Tuan Capistrano, California freely accessible to members of the public, and a brief general description of said resolution appeared on said agenda. Capitalized terms used but not defined herein shall have tte meanings given to such terms in the Purchase and Sale Agreement, dated as of�ivefhbe 1, 2009, between the Seller and the California Statewide Communities Development, A Witx . WITNESS by my hand as of the Pricing Date. By: Ci y e oflthe City A San Juan Cl -1 EXHIBIT C2 SELLER CERTIFICATE SELLER CERTIFICATE Dated: Pricing Date We, the undersigned officers of the City of San Juan Capistrano (the "Seller"), a local agency of the State of California within the meaning of Section 6585(0 of the California Government Code, holding the respective offices herein below set opposite our signatures, do hereby certify that on the date hereof the following documents (the "Seller Transaction Documents") were officially executed and delivered by the Authorized Officer or Officers whose names appear on the executed copies thereof, to wit: Document 1. Purchase and Sale Agreement, dated as of November 1, 2009 (the "Sale Agreement"), between the Seller and the California Statewide Communities Development Authority (the "Purchaser") 2. Irrevocable Instructions For Disbursement of Seller's Proposition 1 A Receivable to the Controller of the State of California, dated the Closing Date. 3. Bill of Sale, dated the Closing .Date. Capitalized terns used herein and not defined herein shall have the meaning given such ten -ns in the Sale Agreement. We further certify as follows: I. At the time of signing the Seller Transaction Documents and the other documents and opinions related thereto, we held said offices, respectively, and we now hold the same. The representations and warranties of the Seller contained in the Seller rransaetion Documents are true and correct as of date hereof in all material respects. 3. The City Council duly adopted its resolution (the "Resolution") approving the sale of the Seller's Proposition 1A Receivable at a meeting of the City Council which was duly called and held pursuant to law with all. public notice required by law and at which a quorum was present and acting when the Resolution was adopted, and such Resolution is in full force and effect and has not been amended, modified., supplemented or rescinded. C2-1 Name Official Title Cindy Russell, Administrative Services Director Steve Montano, Assistant Administrative Services Director Maria Morris, .Deputy City Clerk genuine. I HEREBY CERTIFY that the signatures of the officers named above are Dated.: Pricing Date By: C2-2 EXHIBIT C3 BILL OF SALE AND 3RINGDO WN CERTIFICATE BILI, OF SALE AND BRINGDOWN CERTIFICATE Pursuant to terms and conditions of the Purchase and Sale Agreement (the "Sale Agreement"), dated as of November 1, 2009, between the undersigned (the "Seller") and the California Statewide Communities Development Authority (the "Purchaser"), and in consideration of the obligation of the Purchaser to pay and deliver to the Seller the Purchase Price (as defined in the Sale Agreement), in two equal installment payments to be made on January 15, 2010, and May 3, 2010 (collectively, the "Payment Dates"), the Seller does hereby (a) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral security, without recourse except as expressly provided in the Sale Agreement, the Proposition 1 A Receivable as defined in the Sale Agreement (the "Proposition lA Receivable"), and (b) assign to the Purchaser, to the extent permitted by law (as to which no representation is made), all present or future rights, if any, of the Seller to enforce or cause the enforcement of payment of the Proposition IA Receivable pursuant to the Act and other applicable law. Such transfer, grant, bargain, sale, assignment, conveyance, set over and delivery is hereby expressly stated to be a sale and, pursuant to Section 6588.6(b) of the California Government Code, shall be treated as an absolute sale and transfer of the Proposition IA Receivable, and not as a grant of a security interest by the Seller to secure a borrowing. Seller specifically disclaims any right to rescind the Agreement, or to assert that title to the Proposition lA Receivable has not passed to the Purchaser, should Purchaser fail to make the installment payments in the requisite amounts on the Payment Dates, The Seller hereby certifies that the representations and warranties of the Seller set forth in the Certificate of the City Clerk dated. the Pricing Date,the Seller Certificate dated dated the Pricing .Date and in the Transaction Documents to which the Seller is a party are true and correct in all material respects as of the date hereof (except for such representations and warranties made as of a specified date, which are true and correct as of such date). Capitalized terms used but not defined herein shall have the meanings given to such terms in the Sale Agreement. Dated: Closing Date C3-1 CITY OF SAN JUAN CAPI STRANO By:o ",-a Authorized Officer EXHIBIT D IRREVOCABLE INSTRUCTIONS TO CONTROLLER IRREVOCABLE INSTRUCTIONS FOR DISBURSEMENT, OF PROPOSITION lA RECEIVABLE OF CITY OF SAN JUAN CAPISTRANO Dated: Closing Date Office of the Controller State of California P.O. Box 942850 Sacramento, California 94250-5872 Re: Notice of Sale of Proposition IA Receivable by the City of San Juan Capistrano and Wiring Instructions Information Form Dear Sir or Madam: Pursuant to Section 6588.6(c) of the California Government Code, City of San Juan Capistrano (the "Seller") hereby notifies you of the sale by Seller, effective as of the date of these instructions written above, of all right, title and interest of the Seller in and to the "Proposition IA Receivable" as defined in Section 6585(8) of the California Government Code (the "Proposition 1A. Receivable"), namely, the right to payment of moneys due or to become due to the Seller pursuant to Section 25.5(a)(1)(B)(iii) of Article XIII of the California Constitution and Section 100.06 of the California Revenue and Taxation Code. By resolution, the Seller's City Council authorized the sale of the Proposition lA Receivable to the California Statewide Communities .Development Authority (the `Purchaser") pur`su.ant to a Purchase and Sale Agreement, dated as of November 1, 2009{the "Purchase and Sale Agreement") and a Bill of Sale, dated the Closing :Date (as defined in the Purchase and Sale Agreement). The Proposition IA Receivable has been pledged and assigned by the Purchaser pursuant to an Indenture, dated as of November 1, 2009 (the "Indenture") between the Purchaser and Wells Fargo Bank, National Association, as Trustee (the "Trustee"). The Seller hereby irrevocably requests and directs that, commencing as of the date of these instructions written above, all payments of the Proposition 1A Receivable (and documentation related thereto) be made directly to Wells Fargo Bank, National Association, as Trustee, in accordance with the wire instructions and bank routing information set forth below. Please note that the sale of the .Proposition IA Receivable by the,. Seller is irrevocable and that. (i) the Seller has no power to revoke or amend these instructions at any time; (ii) the Purchaser shall have the power to revoke or amend these instructions only if there are no notes of the Purchaser outstanding under the Indenture and the Indenture has been discharged; and (iii) so long as the Indenture has not been discharged, these instructions D-1 cannot be revoked or amended by the Purchaser without the consent of'the Trustee. Should the Purchaser, however, deliver a written notice to the Of tee of the Controller stating that: (a) the Seller failed to meet the requirements set forth in the Purchase and Sale Agreement; (b) the Purchaser has not waived such requirements; and (c) the Purchaser has not purchased the Proposition IA Receivable as a result of the circumstances described in (a) and (b) above, then these instructions shall be automatically rescinded and the Seller shall again be entitled to receive all payment of moneys due or to become due to the Seller pursuant to Section 25.5(a)(I)(d)(iii) of Article Xlll of the California Constitution and Section 100.06 of the California Revenue and Taxation Code. Bank Name: Wells largo Bank, N.A. Bank ABA. Routing #: 121000248 Bank Account #: 000! 038377 Bank Account Name: Corporate Trust Clearing Further Credit To: CSCDA Proposition 1 A Bonds Bank Address: 707 Wilshire Blvd.., 17th Floor MAC E2818-176 Los Angeles, CA 90017 Bank Telephone #: {213} 61.4-3353 Bank Contact Person: Robert Schneider Please do not hesitate to call the undersigned if you have any questions regarding this transaction. Thank you for your assistance in this matter, Very truly yours, CITY OF SAN JUAN CAPISTRANO P e By: Authorized Officer D-2 EXHIBIT E ESCROW INSTRUCTION 'LETTER ESCROW INSTRUCTION LETTER. October 20 2009 California Statewide Communities Development Authority 1.100 K Street Sacramento, CA 95814 Re: Proposition I A Receivable Financin Dear Sir or Madam: The City of San Juan Capistrano (the "Seller") hereby notifies you of its agreement to participate in the California Statewide Communities Development Authority Proposition Lk Receivable Financing. By adoption of a resolution (the "Resolution") authorizing the sale of its Proposition I A Receivable, the Seller's City Council has agreed to sell to the California Statewide Communities Development Authority (the "Purchaser"), for a purchase price that meets the conditions set forth in the Resolution, all of its right, title and interest in the Proposition I A Receivable. Enclosed herewith are the following documents which have been duly approved and executed by the Seller and which are to be held in escrow by Orrick, Herrington & Sutcliffe LLP, as transaction counsel ("Transaction Counsel"), as instructed below: I . certified copy of the Resolution, together with a certificate of the City Clerk, dated the Pricing Date; 2. the Seller Certificate, dated the Pricing Date; 3. the Opinion of Seller's Counsel, dated the Pricing; Date; 4. the Opinion of Seller's Counsel (bringdown opinion), dated the Closing Date; 5. the Purchase and Sale Agreement, dated as of November I, 2009; 6. the Bill of Sale and Bringdown Certificate, dated the Closing Date; and 7. the Irrevocable Instructions to Controller, dated the Closing Date. The foregoing documents are to be held in escrow by Transaction Counsel and shall be delivered on the Closing Date (as defined in the Purchase and Sale Agreement), provided that such Closing Date occurs on or before December 3I , 2009. E- I Should (i) the Closing Date not occur on or berfore December 31, 2009, or (ii) Transaction Counsel receive prior to the Closing Date written notification from Seller or Seller's Counsel stating, respectively and in good faith, that the representations made in the Seller's Certificate are not true and accurate, or the opinions set forth in the Opinion of Seller's Counsel are not valid, in each case as of the Closing Date and provided that the Purchaser may, in its sole discretion, choose to waive receipt of such representations or opinions, then this agreement shall terminate and Transaction Counsel shall destroy all of the enclosed documents. Enclosures cc: Orrick, Herrington & Sutcliffe LLP Very truly yours, CITY OF SAN JUAN CAPISTRANO By: L. -o,,� Authorized Officer .E-2