Pierce County v. State

¶69 (dissenting) — Central Puget Sound Regional Transit Authority (Sound Transit) argues article I, section 23 of the Washington Constitution obliges it to levy and collect $1.8 billion in unlawful motor vehicle excise tax for the life of its Series 1999 bonds. The majority agrees, but I cannot.

Sanders, J.

f70 The real object of this suit is to enable Sound Transit to benefit from the collection of $1.8 billion in illegal taxes, not to protect the Series 1999 bondholders, who are not even a party. Sound Transit’s total obligation to its Series 1999 bondholders of $738 million is well secured by $6.3 billion in lawful sales and use tax revenue. The contractual obligation to repay the bondholders is intact, even if Sound Transit’s bottom line is not.

¶71 In 1999, Sound Transit issued $350 million in 30-year bonds (Series 1999 bonds) secured by its sales and use tax and motor vehicle excise tax (MVET) revenues. Sound Transit’s total obligation to the Series 1999 bondholders is $738 million, including principal and interest. Over the life of the bonds, Sound Transit expects to collect about $6.3 *53billion in sales and use tax plus $1.8 billion in MVET. In 2002, Sound Transit collected about $207 million in sales and use tax and about $58 million in MVET. Of this $265 million in total tax revenues, Sound Transit used about $17 million to fund its Series 1999 bonds. On November 5, 2002, the people of Washington passed Initiative No. 776 (1-776), repealing Sound Transit’s authority to levy MVET.

¶72 The majority concludes 1-776 substantially impairs the Series 1999 bondholders’ contract with Sound Transit in violation of article I, section 23 of the Washington Constitution because the contract obliges Sound Transit to levy MVET for the life of the bonds.23 I disagree. A law impairs the obligation of a public contract in violation of article I, section 23 only if it impairs a valid contractual obligation to the prejudice of the contracting party. See Retired Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 624, 62 P.3d 470 (2003). 1-776 doesn’t affect a valid contractual obligation because Sound Transit lacked authority to pledge to continue to levy MVET notwithstanding its possible repeal. And nothing in the record suggests 1-776 lowered the value of the Series 1999 bonds, which is the ultimate evidence a bond contract obligation has been impaired.

¶73 In any case, even if Sound Transit does have a valid contractual obligation to levy MVET and 1-776 did lower the value of the Series 1999 bonds, the bondholders are entitled only to damages or just compensation. While the State may not impair the obligation of its contracts, like any private party, it may breach a contract and pay damages. Hays v. Port of Seattle, 251 U.S. 233, 238, 40 S. Ct. 125, 64 L. Ed. 243 (1920). Furthermore, contractual obligations are property subject to eminent domain. See U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 18-19, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977); Tyrpak v. Daniels, 124 Wn.2d 146, 155 n.1, *54874 P.2d 1374 (1994). If a remedy in damages is available, then 1-776 is a breach of contract and the Series 1999 bondholders are entitled to damages. If no remedy in damages is available, then 1-776 is a taking and the Series 1999 bondholders are entitled to just compensation. But nothing entitles the Series 1999 bondholders to specific performance.

I. Sound Transit Lacked Authority To Pledge To Levy MVET Notwithstanding Its Repeal

¶74 1-776 does not violate article I, section 23 because Sound Transit lacked authority to pledge to levy MVET notwithstanding possible repeal. A law affecting a public contract violates article I, section 23 only if it impairs a valid contractual obligation. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 145, 744 P.2d 1032, 750 P.2d 254 (1987). The State authorized Sound Transit to levy MVET. Former RCW 81.104.160(1) (1998). And it authorized Sound Transit to pledge MVET revenues. RCW 81.104.180. But it did not authorize Sound Transit to pledge to levy MVET for all time notwithstanding repeal. Accordingly, Sound Transit’s pledge to levy MVET in the future was ultra vires and invalid.

¶75 Of course, the legislature can authorize a public entity to pledge to levy a tax in the future. Mun. of Metro. Seattle v. O’Brien, 86 Wn.2d 339, 351, 544 P.2d 729 (1976); see also U.S. Trust Co., 431 U.S. at 24 (holding “the State could bind itself in the future exercise of the taxing and spending powers”). However the power to tax “must be granted expressly,” not by implication. Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 809, 650 P.2d 193 (1982). “Before a statute — particularly one relating to taxation— should be held to be irrepealable, or not subject to amendment, an intent not to repeal or amend must be so directly and unmistakably expressed as to leave no room for doubt.” Covington v. Kentucky, 173 U.S. 231, 239, 19 S. Ct. 383, 43 L. Ed. 679 (1899); see also Jefferson Branch Bank v. Skelly, 66 U.S. (1 Black) 436, 446, 17 L. Ed. 173 (1862) (holding *55“neither the right of taxation, nor any other power of sovereignty, will be held... to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken”); City of Tacoma v. Tax Comm’n, 177 Wash. 604, 612, 33 P.2d 899 (1934) (“Every presumption is in favor of the reservation by the state of the complete exercise of this fundamental right.”). The power to tax is an essential element of sovereignty, and a delegation of sovereign authority is no casual matter.

¶76 On occasion we have concluded the legislature authorized a public entity to pledge to levy a tax in the future. For example, when former RCW 35.58.273 (1969) authorized certain municipalities to issue bonds secured by MVET revenues and former RCW 35.58.279 (1969) provided, “ [t]he legislature shall not withdraw from the municipality the authority to levy and collect the tax’ ” for the life of the bonds, the municipalities were authorized to pledge to levy MVET. O’Brien, 86 Wn.2d at 350, 344-45 (emphasis omitted) (quoting former RCW 35.58.279). But any delegation of taxing authority is strictly construed, United States v. Winstar Corp., 518 U.S. 839, 875, 116 S. Ct. 2432, 135 L. Ed. 2d 964 (1996), and [n]othing can be taken against the State by presumption or inference.” Del. R.R. Tax, 85 U.S. (18 Wall.) 206, 225, 21 L. Ed. 888 (1873); see also City of Tacoma, 177 Wash, at 612.

¶77 However nothing in RCW 81.104.180 expressly delegated Sound Transit authority to pledge to levy MVET in the future. On the contrary, it only authorized Sound Transit to pledge MVET “revenues,” not to guarantee there would in fact be revenues. RCW 81.104.180. So, the legislature authorized Sound Transit to pledge any MVET revenues it collected so long as it retained authority to levy MVET. But it reserved the right to rescind Sound Transit’s authority to collect MVET.

178 Accordingly, Sound Transit’s pledge to levy MVET was ultra vires. And an ultra vires contract with a public entity “is void and unenforceable.” Failor’s Pharmacy v. Dep’t of Soc. & Health Servs., 125 Wn.2d 488, 499, 886 P.2d *56147 (1994). The Series 1999 bondholders had “ Tull knowledge of the fact that the Legislature could make the change and, in fact, the possibility of such a change was an incident of the contract since the applicable law became a part of it.’ ” City of Tacoma, 177 Wash, at 615 (quoting State ex rel. City of Sedalia v. Weinrich, 291 Mo. 461, 471, 236 S.W. 872 (1921)). They cannot now complain Sound Transit impaired a contractual obligation it lacked authority to assume.24

II. 1-776 Did Not “Impair” the Obligations of the Series 1999 Bonds

¶79 Similar to the United States Constitution,25 the Washington Constitution provides, “No . . . law impairing the obligations of contracts shall ever be passed.” Const. art. I, § 23. As noted by the majority, however, “[i]t is well settled that these state and federal constitutional provisions are coextensive and are given the same effect.” Majority at 27 n.5.

¶80 The “obligation” of the series 1999 bonds at issue in this proceeding is simply to repay principal and interest to the bondholders as promised. Therefore we must determine whether that obligation has been “impaired” in the constitutional sense.

¶81 In summary, 1-776 did not “impair” the legal duty of Sound Transit to repay bondholders (as would be the necessary result if there were actually an impairment of their contractual obligation to repay principal and interest) and did not “impair” the ability of Sound Transit to repay its bondholders. Moreover a law affecting a public bond contract violates article I, section 23 only if it substantially impairs the bond’s obligation to pay. Tyrpak, 124 Wn.2d at 152. However a law substantially impairs a bond obligation only if it lowers the value of the bond. See, e.g., U.S. Trust Co., 431 U.S. at 18-19; Charles, 148 Wn.2d at 627. In other *57words, a party alleging an impairment of a bond contract must show “loss causation,” i.e., a causal connection between passage of the law and an economic loss. Cf. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 342, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005). But this record contains no evidence Series 1999 bondholders suffered any economic loss in the first place. After all, the “impairment” must be of the contract’s “obligation” to the bondholders (i.e., repayment). And if the alteration in the contract’s terms does not diminish the value of the contract by making payment less likely, there is simply no impairment of the obligation.

¶82 The absence of any evidence that the value of the bonds has diminished is easily understood on this record because there remains $6.3 billion in lawful sales and use tax to secure the obligation to Series 1999 bondholders of $738 million, and the repayment obligation of the bonds is fully insured to boot. There is simply no possibility these bonds will not be repaid absent MVET revenues. On this record these bonds may have increased in value since their issuance.

¶83 Nevertheless the majority insists a law substantially impairs a public contract in violation of article I, section 23 if it alters the contract’s terms in any way. See majority at 30-36. The majority is mistaken. Indeed, a law affecting a public contract cannot “discard the legitimate expectations embodied in the contract” or “dramatically diminish the inducements which led to the initial formation of the contract.” Tyrpak, 124 Wn.2d at 155 n.1. But “a contract with the government does not impose upon it a binding obligation to maintain with photographic precision the status quo at the time of the contract.” Id. To the contrary, evaluation of a contract impairment claim requires a “particularized inquiry into the legitimate expectations of the contracting parties.” U.S. Trust Co., 431 U.S. at 19 n.17. And the legitimate expectation of this bond-holding contracting party is that the obligation to repay that party be met. If the legislative change has not actually diminished the value of the bond, it has not “impaired” its “obligation.”

*58¶84 Thus, article I, section 23 permits laws affecting public contracts. It prohibits only laws impairing their obligations by altering the contractually due performance of a contractual obligation to the prejudice of the contracting party. See Charles, 148 Wn.2d at 627 (“While Retirees and Employees maintain that they need not show a likelihood of harm, to allow them to claim that their contractual rights have been substantially impaired based on their assertions alone would open the door for any future plaintiff to bring a successful suit against the Director without any showing that harm is even likely to result.”).

¶85 In the case of a publicly traded bond, the calculation is quite simple because the market price of a publicly traded bond precisely expresses its value.26 A law “which diminishes the value of the contract constitutes a prohibited impairment.” O’Brien, 86 Wn.2d at 352. So, if a law affecting the bond contract reduces the price of the bond, it impairs the bond contract, and if it does not reduce the price of the bond, it does not impair the bond contract.

¶86 However even then a party alleging a violation of article I, section 23 must demonstrate both economic loss and causation. Or rather, it is necessary but not sufficient to show a decrease in the value of the bond. A “mere change in the value or rating of the outstanding bonds, by itself, is not enough to prove an impairment of contract.” Tyrpak, 124 Wn.2d at 153 (emphasis added). A party alleging an impairment of a bond contract must also show loss causation. No impairment exists unless the law caused the loss. In this *59case however we need not consider causation because there is no predicate showing of value loss in the first place.

¶87 The majority, at 30, correctly recognizes a law affecting a municipal bond contract violates article I, section 23 if it “detrimentally affects the financial framework which induced the bondholders originally to purchase the bonds, without providing alternative or additional security.” Tyrpak, 124 Wn.2d at 153-54. There the trial court specifically found the particular alteration of the financial framework actually diminished the value of the bonds. But curiously, the current majority insists a law can impair the obligation of a bond contract without lowering its value. This is unprecedented and illogical. I can find no Washington or United States Supreme Court case which has ever found an impairment of a bond contractual obligation absent a diminution in its value.

¶88 Contrary to the claim of the majority, United States Trust Co. does not serve as such an example. There the Supreme Court found relevant the parties’ disagreement about the value of the 1962 covenant to bondholders. 431 U.S. at 18-19. After a trial on the question of whether the value had been diminished, the trial court made a factual finding that “ ‘immediately following repeal and for a number of months thereafter the market price for Port Authority bonds was adversely affected.’ ” Id. at 19 (quoting U.S. Trust Co. of N.Y. v. New Jersey, 134 N.J. Super. 124, 338 A.2d 833, 865 (1975), aff’d, 69 N.J. 253, 353 A.2d 514 (1976)). Respondents however countered, and the trial court factually found, “after an initial adverse effect they regained a comparable price position in the market.” Id. The United States Supreme Court observed “[t]he fact. . . that no one can be sure precisely how much financial loss the bondholders suffered” did not matter because “the question of valuation need not be resolved in the instant case because the State has made no effort to compensate the bondholders for any loss sustained by the repeal.” Id. (emphasis added). In other words, the Supreme Court understood the record to indicate there was some loss, *60although it was not necessary for their impairment analysis to determine precisely how much. Here, however, we review cross motions for summary judgment where the intervenors presented evidence there was no impairment of value, whereas Sound Transit presented no contrary evidence that there was. Under our jurisprudence, as well as that of the Supreme Court, this is fatal to an impairment claim.27

¶89 In Tyrpak, for example, the trial court expressly found:

“The value of outstanding [general obligation] bonds is reduced due to 1) the removal of part of the PORT OF VANCOUVER’S assessed territory by the proposed annexation, and 2) the uncertainty of further annexation in the future.”

Tyrpak, 124 Wn.2d at 151 (quoting Clerk’s Papers at 75). We further explained, “The court found that the reduction or threat of reduction in the assessed valuation adversely affected the credit rating and value of the outstanding bonds as well as future issues.” Id. at 150 (emphasis added). We then cautioned even a diminution of contract value is insufficient, in itself, unless it is also proved the diminution was caused by the legislation at issue:

A mere change in the value or rating of the outstanding bonds, by itself, is not enough to prove an impairment of contract.
Rather, the relevant question is whether the legislation detrimentally affects the financial framework which induced the bondholders originally to purchase the bonds, without providing alternative or additional security. See Haberman, [109 Wn.2d] at 146-47; Continental Ill. Nat’l Bank [& Trust Co. v. Washington], 696 F.2d [692,] 701 [(9th Cir. 1983)].

*61Tyrpak, 124 Wn.2d at 153-54. Notwithstanding the majority’s evident confusion occasioned by reading the quoted text out of context, Tyrpak means what we have always said about bonds: a bond obligation is impaired where legislation diminishes the value of the bond by detrimentally affecting the financial framework inducing the purchase of the bonds.28 A change in the financial framework which is not detrimental to performance of the obligation as reflected in the bond’s value is not an impairment of that obligation. But contrary to every bond impairment case we have ever decided, the majority claims a bond obligation may be impaired without lowering the value of the bond.

¶90 An efficient market, like the market for publicly traded bonds, necessarily incorporates any contractual impairment into the price of a bond. So, if a law does not affect the price of a bond, it obviously did not impair the obligation of the bond.

¶91 Allowing bondholders “to claim that their contractual rights have been substantially impaired based on their assertions alone would open the door for any future plaintiff to bring a successful suit. . . without any showing that harm is even likely to result.” Charles, 148 Wn.2d at 627 (emphasis omitted). A law affecting the security of a bond may well impair the obligation of the bond contract. But that is a question of fact. If there is no proof that the value of the bond is lower, there is no proof of impairment.

*62III. The Series 1999 Bondholders Are Not Entitled to Specific Performance

¶92 Even if Sound Transit did have authority to pledge to levy MVET and 1-776 did lower the value of the Series 1999 bonds, the Series 1999 bondholders are entitled only to damages or just compensation, not specific performance. Article I, section 23 prohibits the State from impairing the obligation of a public contract. But it does not prohibit the State from breaching a public contract and paying damages, just like any private party. See, e.g., Hays, 251 U.S. at 238; St. Paul Gas Light Co. v. St. Paul, 181 U.S. 142, 151, 21 S. Ct. 575, 45 L. Ed. 788 (1901). Nor does it prohibit the State from exercising its power of eminent domain and paying just compensation. See, e.g., U.S. Trust Co., 431 U.S. at 18-19; Tyrpak, 124 Wn.2d at 155 n.1. In any case, the bondholders are entitled to the value of their contract, no more.

¶93 Apparently, the majority believes article I, section 23 prohibits the State from breaching public contracts. The majority is mistaken. “For when a state repudiates a contract to which it is a party it is doing nothing different from what a private party does when the party repudiates a contract; it is committing a breach of contract.” Horwitz-Matthews, Inc. v. City of Chicago, 78 F.3d 1248, 1250 (7th Cir. 1996) (Posner, C.J.). A contract is merely a form of property, its value consisting in its obligation. “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, — and nothing else.” Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897). When the State forms a contract, it must perform or pay damages, just like any private party. Article I, section 23 prohibits the state from voiding public contracts absent a police power justification. See Stone v. Mississippi, 101 U.S. (11 Otto) 814, 817, 25 L. Ed. 1079 (1880) (holding that “the legislature cannot bargain away the police power of a State”). That is all.

¶94 A law affecting a public contract is a breach of contract if it provides a remedy in damages and an impair*63ment of contract if it does not. See Hays, 251 U.S. at 237 (distinguishing “between a statute that has effect of violating or repudiating a contract previously made by the State and one that impairs its obligation”); see also E&E Hauling, Inc. v. Forest Pres. Dist. of Du Page County, 613 F.2d 675, 679 (7th Cir. 1980) (“If the action of the state does not preclude a damage remedy. . . there has been no law impairing the obligation of the contract.”). Essentially, “legislation impairs a public contract only if it prevents or materially limits the remedies that would be available if the contract were between private parties.” Leo Clarke, The Contract Clause: A Basis for Limited Judicial Review of State Economic Regulation, 39 U. Miami L. Rev. 183, 234 (1985). And the remedy for breach of contract is damages.

f95 Even if 1-776 prevented Sound Transit from performing its contract with the Series 1999 bondholders (which it clearly does not), it does not preclude a damage remedy. And so long as a damage remedy exists, the contract is unimpaired. “In short,” the majority has “confused impairment of performance of a contract with impairment of the obligation of the contract.” Jackson Sawmill Co. v. United States, 580 F.2d 302, 312 (8th Cir. 1978). If Sound Transit is contractually obliged to levy MVET, an initiative such as 1-776 is merely one way the State can breach its contract. See Horwitz-Matthews, 78 F.3d at 1251. The Series 1999 bondholders are perfectly entitled to bring an action for breach of contract against Sound Transit.29 But they cannot insist it perform.

¶96 Furthermore, article I, section 23 doesn’t prohibit the State from exercising its power of eminent domain. See, e.g., U.S. Trust Co., 431 U.S. at 18-19; Tyrpak, 124 Wn.2d at 155 n.1. So, even if 1-776 does preclude a damage remedy, it merely obliges the State to provide just compensation. The State cannot nullify its contractual obligations. But it is never obliged to provide specific performance.

*64TV. Conclusion

f97 In principle, I admire the Lochnerian rigor with which the majority defends the sanctity of contractual obligation. Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905). Unfortunately, its proposed remedy finds no support in the law. In contracts, as in love, “you can’t always get what you want,” but the law of remedies ensures “you get what you need.”30 Only the Series 1999 bondholders possess a legally enforceable right protected by article I, section 23. See Moses Lake Sch. Dist. No. 161 v. Big Bend Cmty. Coll., 81 Wn.2d 551, 558, 503 P.2d 86 (1972). Indeed, they expected Sound Transit to collect MVET for the life of their bonds. But it appears Sound Transit’s pledge to levy MVET was invalid, and there is no evidence its incapacity to collect MVET substantially impairs the Series 1999 bonds. And in any case, the Series 1999 bondholders are entitled only to damages or just compensation, which cannot exceed the value of their bonds. They simply cannot oblige Sound Transit to collect $1.8 billion in illegal MVET over the course of decades to satisfy a $738 million obligation already secured by $6.3 billion is sales and use tax revenue.

¶98 Of course, as a public entity unprotected by article I, section 23, Sound Transit considers 1-776 an unfortunate intrusion into its affairs. It contemplates contracts 1-776 may render impossible to fund. But it cannot object. The State entrusted Sound Transit with certain powers and properties, and “may, at its pleasure, modify or withdraw such powers, may take without compensation such property, hold it itself, or vest it in other agencies.” Moses Lake Sch. Dist., 81 Wn.2d at 557. For better or worse, 1-776 withdraws a power previously granted.

¶99 Article I, section 23 prohibits the State from impairing its contractual obligations. But it does not bind the *65State to specific performance. The constitution is a compact, not a straitjacket. What the State has done, it may undo. Article I, section 23 only obliges it to make good on its responsibilities.

¶100 I dissent.

As the majority concedes, article I, section 23 of the Washington Constitution is coextensive with the contracts clause of the United States Constitution. Majority at 27 n.5. Accordingly, opinions of the United States Supreme Court interpreting the contracts clause are binding on this court’s interpretation of article I, section 23. Tyrpak v. Daniels, 124 Wn.2d 146, 151, 874 P.2d 1374 (1994).

However, in certain circumstances a private party acting in good faith may be entitled to equitable relief. Noel v. Cole, 98 Wn.2d 375, 381, 655 P.2d 245 (1982).

“No state shall.. . pass any .. . law impairing the obligation of contracts.” U.S. Const, art. I, § 10, cl. 1.

The majority disagrees based upon language in cases such as Caritas Services, Inc. v. Department of Social & Health Services, 123 Wn.2d 391, 404, 869 P.2d 28 (1994), that “a contract is impaired by legislation which alters its terms, imposes new conditions, or lessens its value.” Majority at 30. As a general proposition, I do not quarrel with this formulation as long as we understand (1) only harmful or detrimental alteration of terms and conditions of an obligation from one contractual party to another will suffice and (2) the materiality and harmfulness of the alteration, if any, will necessarily be reflected in the value of the bond because bonds are traded on the market. In nonbond situations (as Caritas Services), one looks to see if there is prejudice to the contracting party with the alteration of contractual terms. Caritas Services made out a prima facie case of contractual impairment by demonstrating a loss of approximately $175,000.

I find it somewhat ironic that the majority at once admits the necessity to establish prejudice while eschewing any requirement that diminution in value be factually shown, asserting, “the dissent would substitute ad hoc judicial determinations of prejudice for the standards that have evolved over decades of case law.” Majority at 34 n.8. Indeed it is the majority which would dispense with factual determinations of prejudice, instead substituting its own “ad hoc judicial determination of prejudice” by simply stating there had been a technical change in the contracted security meriting its own “ad hoc judicial” assumption that therefore there must be harm to the bondholders. But that fact needs to be proved, not just assumed, to sustain an impairment claim.

Haberman, relied upon by Tyrpak, expressly rejected a contract impairment claim because there was no proof that the legislative change at issue “diminished the value of their bonds, thus unconstitutionally impairing the force of their contracts.” Haberman, 109 Wn.2d at 146. O’Brien, relied upon by Haberman as well as the majority, found a contract impairment was caused by the refusal of the state treasurer to remit to petitioner certain tax proceeds based upon a stipulation “that the bonds will be diminished in value from $30 to $60 per thousand dollars par value.” O’Brien, 86 Wn.2d at 352. Ruano v. Spellman, 81 Wn.2d 820, 828, 505 P.2d 447 (1973), relied upon by O’Brien, held legislative action “though indirect, which diminishes the value of the contract constitutes a prohibited impairment is an established rule.” Ruano further held “that the submission of that initiative constitutes an impairment of contract due to the encroachment upon the pledged proceeds of the special excise tax and the consequent diminution of value of the stadium bonds — a diminution established by the findings of the trial court, based upon substantial evidence.” Id. (emphasis added). Continental Illinois, 696 F.2d at 698, found a contractual impairment because “[Bonneville Power Administration’s] sole benefit... is rendered valueless . . ..”

Of course, I doubt the Series 1999 bondholders could prove any damages, as Sound Transit’s total obligation of $738 million of its Series 1999 bonds is not only fully secured by $6.3 billion in sales and use tax revenue but also fully insured. See Bond Purchase Contract at 4 and 13.

The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (ABKCO 1969); cf. Gretchen Craft Rubin & Jamie G. Heller, Restatement of Love, 104 Yale L.J. 707, 727 n.47 (1994) (“Specific performance, of course, is not an available remedy in this situation.”).