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Home My WebLink About2009-70 - Proposition 1ARESOLUTION NO. 2009 -70 • CITY COUNCIL OF THE CITY OF NEWPORT BEACH A RESOLUTION APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF A PURCHASE AND SALE AGREEMENT AND RELATED DOCUMENTS WITH RESPECT TO THE SALE OF THE SELLER'S PROPOSITION lA RECEIVABLE FROM THE STATE; AND DIRECTING AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH WHEREAS, pursuant to Section 25.5 of Article XHI of the California Constitution and Chapter 14XXXX of the California Statutes of 2009 (Assembly Bill No. 15), as amended (the "Act "), certain local agencies within the State of California (the "State ") are entitled to receive certain payments to be made by 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 (the "Reimbursement Payments "), which reductions have been authorized pursuant to Sections 100.05 and 100.06 of the California Revenue and Taxation Code; WHEREAS, the City of Newport Beach, a local agency within the meaning of Section 6585(f) of the California Government Code (the "Seller "), is entitled to and has determined to sell all right, title and interest of the Seller in and to its "Proposition lA 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 XIII of the California Constitution and Section 100.06 of the California Revenue and Taxation Code, in order to obtain money to fund public capital improvements or working capital; WHEREAS, the Seller is authorized to sell or otherwise dispose of its property as the interests of its residents require; WHEREAS, the California Statewide Communities Development Authority, a joint exercise of powers authority organized and existing under the laws of the State (the "Purchaser "), has been authorized pursuant to Section 6588(x) of the California Government Code to purchase the Proposition IA Receivable; WHEREAS, the Purchaser desires to purchase the Proposition IA Receivable and the Seller desires to sell the Proposition 1 Receivable pursuant to a purchase and sale agreement by and between the Seller and the Purchaser in the form presented to this City Council (the "Sale Agreement ") for the purposes set forth herein; WHEREAS, in order to finance the purchase price of the Proposition 1 A Receivable from the Seller and the purchase price of other Proposition IA Receivables from other local agencies, the Purchaser will issue its bonds (the "Bonds ") pursuant to Section 6590 of the California • Government Code and an Indenture (the "Indenture "), by and between the Purchaser and Wells Fargo Bank, National Association, as trustee (the "Trustee "), which Bonds will be payable solely from the proceeds of the Seller's Proposition lA Receivable and other Proposition IA • Receivables sold to the Purchaser by local agencies in connection with the issuance of the Bonds; WHEREAS, the Seller acknowledges that (i) any transfer of its Proposition IA Receivable to the Purchaser pursuant to the Sale Agreement shall be treated as an absolute sale and transfer of the property so transferred and not as a pledge or grant of a security interest by City of Newport Beach to secure a borrowing, (ii) any such sale of its Proposition I Receivable to the Purchaser shall automatically be perfected without the need for physical delivery, recordation, filing or further act, (iii) the provisions of Division 9 (commencing with Section 9101) of the California Commercial Code and Sections 954.5 to 955.1 of the California Civil Code, inclusive, shall not apply to the sale of its Proposition lA Receivable, and (iv) after such transfer, the Seller shall have no right, title, or interest in or to the Proposition lA Receivable sold to the Purchaser and the Proposition 1 Receivable will thereafter be owned, received, held and disbursed only by the Purchaser or a trustee or agent appointed by the Purchaser; WHEREAS, the Seller acknowledges that the Purchaser will grant a security interest in the Proposition IA Receivable to the Trustee and any credit enhancer to secure payment of the Bonds; WHEREAS, a portion of the proceeds of the Bonds will be used by the Purchaser to, among other things, pay the purchase price of the Proposition 1 A Receivable; • WHEREAS, the Seller will use the proceeds received from the sale of the Proposition 1 Receivable for any lawful purpose as permitted under the applicable laws of the State; NOW THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: Section 1. All of the recitals set forth above are true and correct, and this City Council hereby so finds and determines. Section 2. The Seller hereby authorizes the sale of the Proposition IA Receivable to the Purchaser for a price equal to the amount certified as the Initial Amount (as defined in the Sale Agreement) by the County auditor pursuant to the Act. The form of Sale Agreement presented to the City Council is hereby approved. An Authorized Officer (as set forth in Appendix A of this Resolution, attached hereto and by this reference incorporated herein) is hereby authorized and directed to execute and deliver the Sale Agreement on behalf of the Seller, which shall be in the form presented at this meeting. Section 3. Any Authorized Officer is hereby authorized and directed to send, or to cause to be sent, an irrevocable written instruction to the State Controller (the "Irrevocable Written Instruction ") notifying the State of the sale of the Proposition IA Receivable and instructing the disbursement pursuant to Section 6588.6(c) of California Government Code of the Proposition IA Receivable to the Trustee, on behalf of the Purchaser, which Irrevocable Written • Instruction shall be in the form presented at this meeting. 2 Section 4. The Authorized Officers and such other Seller officers, as appropriate, • are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents, including but not limited to, if required, appropriate escrow instructions relating to the delivery into escrow of executed documents prior to the closing of the Bonds, and such other documents mentioned in the Sale Agreement or the Indenture, which any of them may deem necessary or desirable in order to implement the Sale Agreement and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution; and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved. • • Section 5. All consents, approvals, notices, orders, requests and other actions permitted or required by any of the documents authorized by this Resolution, whether before or after the sale of the Proposition lA Receivable or the issuance of the Bonds, including without limitation any of the foregoing that may be necessary or desirable in connection with any default under or amendment of such documents, may be given or taken by an Authorized Officer without further authorization by this City Council, and each Authorized Officer is hereby authorized and directed to give any such consent, approval, notice, order or request, to execute any necessary or appropriate documents or amendments, and to take any such action that such Authorized Officer may deem necessary or desirable to further the purposes of this Resolution. Section 6. The City Council acknowledges that, upon execution and delivery of the Sale Agreement, the Seller is contractually obligated to sell the Proposition lA Receivable to the Purchaser pursuant to the Sale Agreement and the Seller shall not have any option to revoke its approval of the Sale Agreement or to determine not to perform its obligations thereunder. 3 Section 7. This Resolution shall take effect from and after its adoption and • approval. PASSED AND ADOPTED by the City Council of the City of Newport Beach, State of California, this 13th day of October , 2009, by the following vote: AYES: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich NOES: None ABSENT: Daigle Attest: City Clerk V el an Z Approved as to form : SELLER'S COUNSEL 7, 01 1 It. -� u N 1] • • APPENDIX A CITY OF NEWPORT BEACH Authorized Officers: David A. Kiff, City Manager Sharon Z. Wood, Assistant City Manager Edward Selich, Mayor any designee of any of them, as appointed in a written certificate of such Authorized Officer delivered to the Trustee. r1 L J • • STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2009 -70 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 13th day of October, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich Noes: None Absent: Daigle Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14th day of October, 2009. yl�A X �✓IfiN�� City Clerk Newport Beach, California (Seal) RESOLUTION NO. 2009 -70 CITY COUNCIL OF THE. CITY OF NEWPORT BEACH A RESOLUTION APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF A PURCHASE AND SALE AGREEMENT AND RELATED DOCUMENTS WITH RESPECT TO THE SALE OF THE SELLER'S PROPOSITION 1A RECEIVABLE FROM THE STATE; AND DIRECTING AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH WHEREAS, pursuant to Section 25.5 of Article X111 of the California Constitution and Chapter 14XXXX of the California Statutes of 2009 (Assembly Bill No. 15), as amended (the "Act "), certain local agencies within the State of California (the "State ") are entitled to receive certain payments to be made by 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 (the "Reimbursement Payments'), which reductions have been authorized pursuant to Sections 100.05 and 100.06 of the California Revenue and Taxation Code; WHEREAS, the City of Newport Beach, a local agency within the meaning of Section 6585(f) of the California Government Code (the "Seller'), is entitled to and has determined to sell all right, title and interest of the Seller in and to its "Proposition 1 A receivable ", as defined in Section 6585(g) of the California Government Code (the "Proposition I 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 public capital improvements or working capital; WHEREAS, the Seller is authorized to sell or otherwise dispose of its property as the interests of its residents require; WHEREAS, the California Statewide Communities Development Authority, a joint exercise of powers authority organized and existing under the laws of the State (the "Purchaser'), has been authorized pursuant to Section 6588(x) of the California Government Code to purchase the Proposition I Receivable; WHEREAS, the Purchaser desires to purchase the Proposition I Receivable and the Seller desires to sell the Proposition 1 A Receivable pursuant to a purchase and sale agreement by and between the Seller and the Purchaser in the form presented to this City Council (the "Sale Agreement ") for the purposes set forth herein; WHEREAS, in order to finance the purchase price of the Proposition 1 A Receivable from the Seller and the purchase price of other Proposition 1 A Receivables from other local agencies, the Purchaser will issue its bonds (the "Bonds ") pursuant to Section 6590 of the California Government Code and an Indenture (the "Indenture "), by and between the Purchaser and Wells Fargo Bank, National Association, as trustee (the "Trustee "), which Bonds will be payable solely from the proceeds of the Seller's Proposition IA Receivable and other Proposition IA Receivables sold to the Purchaser by local agencies in connection with the issuance of the Bonds; WHEREAS, the Seller acknowledges that (i) any transfer of its Proposition IA Receivable to the Purchaser pursuant to the Sale Agreement shall be treated as an absolute sale and transfer of the property so transferred and not as a pledge or grant of a security interest by City of Newport Beach to secure a borrowing, (ii) any such sale of its Proposition I Receivable to the Purchaser shall automatically be perfected without the need for physical delivery, recordation, filing or further act, (iii) the provisions of Division 9 (commencing with Section 9101) of the California Commercial Code and Sections 954.5 to 955.1 of the California Civil Code, inclusive, shall not apply to the sale of its Proposition 1 A Receivable, and (iv) after such transfer, the Seller shall have no right, title, or interest in or to the Proposition IA Receivable sold to the Purchaser and the Proposition I A Receivable will thereafter be owned, received, held and disbursed only by the Purchaser or a trustee or agent appointed by the Purchaser, WHEREAS, the Seller acknowledges that the Purchaser will grant a security interest in the Proposition I A Receivable to the Trustee and any credit enhancer to secure payment of the Bonds; WHEREAS, a portion of the proceeds of the Bonds will be used by the Purchaser to, among other things, pay the purchase price of the Proposition 1 A Receivable; WHEREAS, the Seller will use the proceeds received from the sale of the Proposition I A Receivable for any lawful purpose as permitted under the applicable laws of the State; NOW THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: Section 1. All of the recitals set forth above are true and correct, and this City Cotmcd hereby so finds and determines. Section 2. The Seller hereby authorizes the sale of the Proposition 1 A Receivable to the Purchaser for a price equal to the amount certified as the Initial Amount (as defined in the Sale Agreement) by the County auditor pursuant to the Act. The form of Sale Agreement presented to the City Council is hereby approved. An Authorized Officer (as set forth in Appendix A of this Resolution, attached hereto and by this reference incorporated herein) is hereby authorized and directed to execute and deliver the Sale Agreement on behalf of the Seller, which shall be in the form presented at this meeting. Section 3. Any Authorized Officer is hereby authorized and directed to send, or to cause to be sent, an irrevocable written instruction to the State Controller (the "Irrevocable Written Instruction ") notifying the State of the sale of the Proposition IA Receivable and instructing the disbursement pursuant to Section 6588.6(c) of California Government Code of the Proposition 1 A Receivable to the Trustee, on behalf of the Purchaser, which Irrevocable Written Instruction shall be in the form presented at this meeting. 2 Section 4. The Authorized Officers and such other Seller officers, as appropriate, are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents, including but not limited to, if required, appropriate escrow instructions relating to the delivery into escrow of executed documents prior to the closing of the Bonds, and such other documents mentioned in the Sale Agreement or the Indenture, which any of them may deem necessary or desirable in order to implement the Sale Agreement and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution; and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved. Section 5. All consents, approvals, notices, orders, requests and other actions permitted or required by any of the documents authorized by this Resolution, whether before or after the sale of the Proposition IA Receivable or the issuance of the Bonds, including without limitation any of the foregoing that may be necessary or desirable in connection with any default under or amendment of such documents, may be given or taken by an Authorized Officer without further authorization by this City Council, and each Authorized Officer is hereby authorized and directed to give any such consent, approval, notice, order or request, to execute any necessary or appropriate documents or amendments, and to take any such action that such Authorized Officer may deem necessary or desirable to further the purposes of this Resolution. Section 6. The City Council acknowledges that, upon execution and delivery of the Sale Agreement, the Seller is contractually obligated to sell the Proposition 1 A Receivable to the Purchaser pursuant to the Sale Agreement and the Seller shall not have any option to revoke its approval of the Sale Agreement or to determine not to perform its obligations thereunder. 3 Section 7. This Resolution shall take effect from and after its adoption and approval. PASSED AND ADOPTED by the City ComeW of the City of Newport Beach, State of California, this 13th day of October 2009, by the following vote: AYES: Henn, Curry, Rosansky, Webb, Gardner, Mayor Selich NOES: None ABSENT: Daigle Attest: � NEWp� City Clerk u n ORN \P Approved as to form : SELLER'S COUNSEL B Dated: (5 4 APPENDIX A CITY OF NEWPORT BEACH 'Luthorized Officers: David A. Kif7. City Manager Sharon Z. Wood, Assistant City Manager Edward Selich, Mayor any designee of any of them, as appointed in a written certificate of such Authorized Officer delivered to the Trustee. STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH 1 1, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2009 -70 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 13th day of October, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky. Curry, Webb, Gardner, Mayor Selich Noes: None Absent: Daigle Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14th day of October, 2009. City Clerk Newport Beach, California (Seal) CITY OF NEWPORT BEACH, CALIFORNIA, as Seller and CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, as Purchaser PURCHASE AND SALE AGREEMENT Dated as of November 1, 2009 E -1 TABLE OF CONTENTS Page I. DEFINITIONS AND I NTERPRETATION ........................................ ..............................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 THE SELLER .... ............................... 5 6. COVENANTS OF THE SELLER ...................................................... ............................... 7 7. THE PURCHASER'S ACKNOWLEDGMENT ................................. ..............................9 8. NOTICES OF BREACH .................................................................... ............................... 9 9. LIABILITY OF SELLER; I NDEMNIFICATION ............................. ............................... 9 10. LIMITATION ON LIABILITY ....................................................... ............................... 10 11. THE SELLER'S ACKNOWLEDGMENT ....................................... ............................... 10 12. NOTICES ............................................................................................ .............................10 13. AMENDMENTS .............................................................................. ............................... 10 14. SUCCESSORS AND ASSIGNS ...................................................... ............................... 10 15. THIRD PARTY RIGHTS ................................................................. ............................... 11 16. PARTIAL INVALI DITY ................................................................. ............................... 11 17. COUNTERPARTS ........................................................................... ............................... 11 18, ENTIRE AGREEMENT ................................................................... ............................... 11 19. GOVERNING LAW ......................................................................... ............................... I' EXHIBIT A - DEFINITI ONS .................................................................... ............................... A -1 EXHIBIT B - OPINION OF SELLER'S COUNSEL ............................ ............................... BI -I EXHIBIT B2 - BRINGDOWN OPINION OF SELLER'S COUNSEL .. ............................... B2 -1 EXHIBIT C I - CLERK'S CERTIFI CATE .............................................. ............................... C 1- I EXHIBIT C2 - SELLER CERTIFICATE ................................................ ............................... C2 -1 EXHIBIT C3 - BILL OF SALE AND BRINGDOWN CERTIFICATE . ............................... C3 -1 EXHIBIT D - IRREVOCABLE INSTRUCTIONS TO CONTROLLER . ............................... D -1 EXHIBIT E - ESCROW INSTRUCTION LETTER ................................. ............................... E -1 PURCHASE 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 NEWPORT BEACH, a local agency of the State of California within the meaning of Section 6585(t) 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(f) 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)(IKBxiii) 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 I A Receivable. E. The Seller is willing to sell, and the Purchaser is willing to purchase, the Proposition I 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 IA Receivable from the Seller. G. The Purchaser will grant a security interest in such Proposition IA 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 Intemretation. (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," "hereundee' 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 tens "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(8) 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)(I XB)(iii) of Article XIII 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.delemy(a?wellsfargo.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 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 BI, (2) certificates dated the Pricing Date in substantially the forms attached hereto as Exhibit C 1 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 of the County Auditor confirming the Initial Amount of the Proposition 1 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 Proposition 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 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 1 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(6) 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 1 A 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 I Receivable or which if determined adversely to the Purchaser would have an adverse effect upon the Purchaser's ability to purchase the Proposition I 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 IA Receivable or the performance by the Purchaser of its obligations under 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, and compliance 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. Representations 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 I A 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 of this 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) 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 sale by the Seller of the Proposition I A 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 all 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 party, 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 patty 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 1 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 Receivable or which if determined adversely to the Seller would have an adverse effect upon the Seller's ability to sell the Proposition I A Receivable, nor to the knowledge of the Seller is there any basis therefor. (g) Prior to the sale of the Proposition I A 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 IA Receivable as provided in the Act. From and after the conveyance of the Proposition l A 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 I 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 A Receivable. M (h) The Seller acts solely through its authoriued 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 3300 Newport Blvd., Newport Beach. California 92663. (1) The aggregate amount of the Installment Payments is reasonably equivalent value for the Proposition I A Receivable. The Seller acknowledges that the amount payable to or on behalf of the Purchaser by the State with respect to the Proposition 1 A Receivable will be in excess of the Purchase Price and the Initial Amount of the Proposition IA 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 being 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 hand, 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 arms - 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 the 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 take any action that shall adversely affect the ability of the Purchaser, and any assignee of the Purchaser, to receive payments of the Proposition lA 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 1 A 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 I Receivable to the Trustee, together with notice of the sale of the Proposition I 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 I 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 IA 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 I Receivable. (g) The Seller shall treat the sale of the Proposition IA Receivable as a sale for regulatory and accounting purposes. (h) From and after the date of this Agreement, the Seller 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 1 A Receivable, nor shall the Seller create, or to the knowledge of the Seller permit the creation of, any Lien thereon. 7. The Purchaser's Acknowledgment. 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 IA Receivable. No representation is made by the Seller concerning the obligation or ability of the State 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 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 IA 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 the failure 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. 10. Limitation on Liabilitv. (a) The Seller and any officer or employee or agent of the Seller 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 lA 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 any 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 15. Third Party Rights. 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. 18. 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. 19. Governine Law. This Agreement shall be governed by 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. rl� CITY OIF ft%WORT BE*CHj as Seller Authorized CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, as Purchaser 0 APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: David R. Hun r, City Attorney ATTEST: By: 1 1f � IUV Leilani Brow A, City C 12 ��RNIP Authorized Signatory 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 19, 2009, but the Purchaser may change the Closing Date by providing e-mail notification to DanM@newportbeachca.gov 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 DonM@a%newportbeachca.gov 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 and chief executive office located at 3300 Newport Blvd.. Newport Beach, California 92663. A -1 "Proposition I A 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 1 A 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 Newport Beach, dated as of the Closing Date. A -2 EXHIBIT BI OPINION OF COUNSEL to CITY OF NEWPORT BEACH Dated: Pricing Date California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National Association Los Angeles, California Rc: Sale of Proposition 1 A Receivable Ladies & Gentlemen: [I havgfi is Office has acted as counsel for the City of Newport Beach (the "Seller") in connection with the optton of that certain resolution (the "Resolution ") of the City Council of the Seller (the "Governing Body ") pursuant to which the Seller authorized the We to the California Statewide Communities Development Authority (the "Purchaser ") of the Seller's "Proposition IA 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 Sale Agreement and the Disbursement Instructions, the "Seller Documents"). Unless the context otherwise requires, capitalized terms used but not o rwise defined herein shall have the meanings given to such terms in the Sale Agreement. [I a have examined and are familiar with the Seller Documents and with those documents relatiflrto the existence, organization, and operation of the Seller, the adoption of the Resolution, and the execution of the Seller Documents, and have satisfied ourselves as to such other matters as [V e deem necessary in order to render the following opinions. As to paragraphs numbered 3 an q? below, [Re have relied as to factual matters on the representations and warranties of the Seller contain the Sale Agreement. OaLed upon the foregoing, and subject to the limitations and qualifications set forth herein, [I a of the opinion that: B1 -1 I. The Seller is a local 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 and effect and has not been modified, amended or rescinded since the date of its adoption. 3. To the best of [m our knowledge, no action, suit, proceeding, inquiry or investigation, at law or in equity, befo 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) seeking to restrain or to enjoin the sale of the Proposition IA Receivable or to direct the application of the proceeds of the sale thereof, or materially adversely affecting the sale of the Proposition IA 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 [my ur nowledge, prior to the sale of the Proposition I A Receivable to the Purchaser, the Seller ha 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 I A 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 terns, 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 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 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 100.06 of Revenue and Taxation Code or Section 6588.6 of the Government Code). Furthermore, [I e] express no opinion as to the value of the Proposition IA Receivable or as to any legal equitable remedies that may be available to any person should the Proposition IA Receivable have little or no value. No opinion is expressed with respect to the sale of Bonds by the Purchaser. C:M 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 [my /our] prior written consent. In addition to the addressees hereof, each Credit Enhancer and the turd ricers of the Bonds may rely upon this legal opinion as if it were addressed to them. [if a do not undertake to advise you of matters that may come to [my� attention subsequent to a date hereof that may affect the opinions expressed herein. Very truly yours, By: , Seller s Co nsel BI -3 EXHIBIT B2 OPINION OF COUNSEL to CITY OF NEWPORT BEACH Dated: Closing Date California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National Association Los Angeles, California Re: Sale of Proposition I A Receivable (Brinedown Opinion) Ladies & Gentlemen Pursuant to that certain Purchase and Sale Agreement dated as of November 1, 2009 (the "Sale Agreement ") between the City of Newport Beach (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 IA 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. I 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: C Seller's Counsel B2 -1 EXHIBIT CI CLERK'S CERTIFICATE CERTIFICATE OF THE CITY CLERK OF CITY OF NEWPORT BEACH, CALIFORNIA Dated: Pricing Date The undersigned City Clerk of the City of Newport Beach (the "Seller'), a local agency of the State of California within the meaning of Section 6585(f) of the Califomia Government Code, does hereby certify that the foregoing is a full, true and correct copy of Resolution No. 2009 -70 duly adopted at a regular meeting of the City Couned of said Seller duly and legally held at the regular meeting place thereof on the 13th 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: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich NOES: None ABSENT: Daigle ABSTAIN: None I do hereby further certify that 1 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 Newport Beach, 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 the meanings given to such terms in the Purchase and Sale Agreement, dated as of November 1, 2009, between the Seller and the California Statewide Communities Development Authority. WITNESS by my hand as of the Pricing Date. M CI -I City Clerk of the City of Newport Beach. C'ahfhrnia EXHIBIT C2 SELLER CERTIFICATE SELLER CERTIFICATE Dated: Pricing Date We, the undersigned officers of the City of Newport Beach (the "Seller "), a local agency of the State of California within the meaning of Section 6585(f) 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 terms used herein and not defined herein shall have the meaning given such terms in the Sale Agreement. We further certify as follows: 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 Transaction Documents are true and correct as of the date hereof in all material respects. 3. The City Council duly adopted its resolution (the "Resolution ") approving the sale of the Seller's Proposition IA 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 David A. Kiff, City Manager Sharon Z. Wood, Assistant City Manager Edward Selich, Mayor genuine. Signature I HEREBY CERTIFY that the signatures of the officers named above are Dated: Pricing Date By: -✓/ City Cl" of the Ci of Newport Beach, California C2 -2 EXHIBIT C3 BILL OF SALE AND BRINGDOWN CERTIFICATE BILL OF SALE AND BRINGDOWN CERTIFICATE Pursuant to terms and conditions of the Purchase and Sale Agreement (the "Sale Agreement'), dated as of November I, 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 IA Receivable as defined in the Sale Agreement (the "Proposition IA 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 IA 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 terns in the Sale Agreement. Dated: Closing Date C3 -1 CITY 9f NEWPOR f B*ACH EXHIBIT D IRREVOCABLE INSTRUCTIONS TO CONTROLLER IRREVOCABLE INSTRUCTIONS FOR DISBURSEMENT OF PROPOSITION IA RECEIVABLE OF CITY OF NEWPORT BEACH 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 Newport Beach and Wiring Instructions Information Form Dear Sir or Madam: Pursuant to Section 6588.6(c) of the California Government Code, City of Newport Beach (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(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 X111 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 I A Receivable to the California Statewide Communities Development Authority (the "Purchaser ") pursuant 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 IA 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 cannot be revoked or amended by the Purchaser without the consent of the Trustee. Should the Purchaser, however, deliver a written notice to the Office 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 15.5(a)(l)(8)(iii) of Article XIII of the California Constitution and Section 100.06 of the California Revenue and Taxation Code. Bank Name: Wells Fargo Bank, N.A. Bank ABA Routing #: 121000248 Bank Account #: 0001038377 Bank Account Name: Corporate Trust Clearing Further Credit To: CSCDA Proposition IA Bonds Bank Address: 707 Wilshire Blvd., 17th Floor MAC E2818 -176 Los Angeles, CA 90017 Bank Telephone #: (2 13) 614 -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 you C[TY OF PORT ff ecr EXHIBIT E ESCROW INSTRUCTION LETTER ESCROW INSTRUCTION LETTER OC�oyt,. l .3 , 2009 California Statewide Communities Development Authority 1100 K Street Sacramento, CA 95814 Re: Proposition IA Receivable Financin Dear Sir or Madam The City of Newport Beach (the "Seller") hereby notifies you of its agreement to participate in the California Statewide Communities Development Authority Proposition IA Receivable Financing. By adoption of a resolution (the "Resolution") authorizing the sale of its Proposition IA 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 IA 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: 1. 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 1, 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 31, 2009. E -1 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. CI' 0 E -2 CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY REVENUE BONDS (STATE OF CALIFORNIA PROPOSITION IA RECEIVABLES PROGRAM) SERIES 2009 CERTIFICATE OF THE SELLER RE: COMPONENTS OF PROPOSITION IA RECEIVABLES The undersigned, an Authorized Officer of the City of Newport Beach (the "Seller ") hereby certifies with respect to that certain Purchase and Sale Agreement, dated as of November 1, 2009 (the "Agreement "), by and between the Seller and the California Statewide Communities Development Authority (the "Purchaser") as follows (all capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Agreement): 1. The components (the "Components ") of the Proposition IA Receivable listed in Schedule 1, attached hereto and incorporated herein by reference, belong to the Seller; 2. The Components are listed as they appear on the certification of the County Auditor pursuant to Section 6588.6(e) of the Government Code; 3. By entering into the Agreement, the Seller is selling the Proposition IA Receivable, including all Components thereof listed in Schedule I; 4. The Seller acknowledges that the Purchase Price of the Proposition IA Receivable will be equal to the aggregate Initial Amounts of each Component as each such Component is separately certified by the County Auditor; and 5. The funds or other entities listed as Components in Schedule 1 (other than the Seller itself) are not independent legal entities with the power to enter into contracts. Dated: Pric' Date CITY NEWPQI 6B ACH Authorized Component Certificate of City of Newport Beach ACKNOWLEDGEMENT OF SELLER'S COUNSEL Based on such inquiry as the undersigned determined to be necessary of the county office responsible for the preparation of the report given pursuant to Government Code Section 6588.6(e), and in reliance on such information as is provided in the report and otherwise by the County as to the identity and nature of the accounting entities shown, as Counsel to the Seller the undersigned hereby acknowledges and confirms that the statements in paragraphs 1 and 5 of this certificate are legally correct. This acknowledgement and confirmation is subject to the matters referred to in the Opinion of Counsel to the City of Newport Beach dated as of the Pricing Date and executed by the undersigned, including, but not limited to, the limitations expressed in the second to last paragraph of that Opinion. 1 By: J Seller's Counsel 2 Component Certificate of City of Newport Beach SCHEDULE COMPONENTS OF PROPOSITION IA RECEIVABLE Names of Components for City of Newport Beach Schedule 1 Component Certificate of City of Newport Bcach