Ladies and Gentlemen:
Goldman Sachs Bank USA ("Goldman Sachs"), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPFS") and U.S. Bank National Association ("U.S. Bank" and together with Goldman Sachs and MLPFS, the "Arrangers" or "we") are pleased to confirm the arrangements under which
You have informed us that the Borrower was established exclusively for the purpose of entering into
The Borrower intends to borrow funds under the Senior Secured Facility and
The Stadium and certain other Improvements and appurtenant rights will be leased by the Authority to the Company for the National Football League (the "NFL") season (including pre-season, regular season and post-season NFL games),' during each year of the lease term, and in turn subleased by the Company to San Francisco Forty Niners, Limited (the "Team") for each such NFL season. The Company, a special purpose entity whose activities will be limited exclusively to
The Authority will use the proceeds of the Authority Loan, together with the proceeds received by the Authority from other sources, including the Stadco Advance (as defined below), and other available funds of the Authority, to pay costs and expenses of the design, development, construction and completion by the Scheduled Completion Date (as defined In Annex B) of the Improvements (the "Authority Project Costs"), fund interest and fees that become due under the Authority Loan during the construction of the improvements, and pay all other fees, costs and expenses incurred or payable by the Authority in connection with the transactions described herein. The Company will use the proceeds of (lie Stadco Loan, together with the proceeds received by the Company from other sources, including the NFL Financing (as defined in Annex B), and other available funds of (lie Company, to finance or refinance certain costs and expenses of the Improvements paid or payable by the Company, fund interest and fees that become due tinder (lie Stadco Loan during the construction of the Improvements, advance fonds to the Authority to be used by the Authority to pay Authority Project Costs (the "Stndco Advance"), and pay all other fees, costs and expenses incurred or payable by the Company in connection with the transactions described herein. The Stadco Advance will be a loan subordinate to the Authority Loan and repayable by the Authority pursuant to the terms set forth in a note of the Authority issued to the Company at or before the time the Stadco Advance is initially made.
1. Commitments; Titles and Roles. Each Arranger severally agrees to act, and you hereby agree that, upon the Authority's joinder hereto, each such Arranger shall act, as a co-lead arranger and joint bookrunner in connection with the Senior Secured Facility. Goldman Sachs is pleased to confirm its agreement to act, and you hereby agree that, upon the Authority's joinder hereto, Goldman Sachs shall act, as administrative agent the "Administrative Agent") and collateral agent the "Collateral Agent") for the Senior Secured Facility. In addition, (a) Goldman Sachs Is pleased to inform you of its commitment to provide up to $325,000,000 of the Senior Secured Facility, (b) BOA is pleased to inform you of its commitment to provide up to $325,000,000 of the Senior Secured Facility, and (c) U.S. Bank is pleased to inform you of its commitment to provide up to $200,000,000 of the Senior Secured Facility, In each case on the terms and subject to the conditions contained in this Commitment Letter and the Fee Letter (referred to below). Our fees for our commitment and for services related to the Senior Secured Facility are to be set forth in a separate fee letter (the "Fee Letter") to be entered into by the Company, the Borrower, the Authority, Goldman Sachs, MLPFS and U.S. Bank on or prior to the Closing Date. Goldman Sachs shall have "left side" designation and shall appear on the top left of any financing materials and all other offering or marketing materials in respect of the Senior Secured Facility, and MLPFS shall appear to the immediate right of Goldman Sachs in any such financing materials, offering or marketing materials.
2. Conditions Precedent. In addition to the conditions precedent described on Annexes B and C hereto, each Arranger's commitments and agreements are subject to there not having occurred, since March 31, 2011 (the date of the most recent audited financial statements furnished by the Team to the Arrangers), any event that has resulted in or could reasonably be expected to result in a material adverse change in or effect on (i) the general affairs, management, financial position or results of operations of the Borrower and the Authority, or (ii) the general affairs, management, financial position, shareholders' equity or results of operations of the Company and the Team and their respective subsidiaries (taken as a whole), in each case as determined by each Arranger in its reasonable discretion (each, a "Material Adverse Change"). Each Commitment Party's commitments and agreements are also subject to the execution and delivery of appropriate definitive loan documents relating to the Senior Secured Facility including, without limitation, credit agreements, security agreements, pledge agreements, leasehold mortgages, opinions of counsel and other related definitive documents (collectively, the "Loan Documents") that are substantially consistent with the terms set forth in this Commitment Letter and otherwise contain customary terms for similar financings acceptable to each Arranger and the Borrower, and the execution and delivery of appropriate definitive loan documents relating to the Authority Loan and the Stadco Loan, respectively, in each case acceptable to each Arranger, the Borrower, the Authority and the Company. Each Commitment Party's commitment is also conditioned upon and made subject to such Commitment Party not becoming aware after the date hereof of any new or inconsistent information or other matters not previously disclosed to such Commitment Party relating to the Borrower, the Authority, the Company, the Team or the Stadium Project or the transactions contemplated by this Commitment Letter which such Commitment Party, in its reasonable judgment, deems material and adverse relative to the information or other matters disclosed to each Arranger prior to the date hereof. Each Arranger's commitment is also conditioned upon and made subject to the Authority joining, pursuant to a joinder agreement in form and substance reasonably satisfactory to each Arranger, this Commitment Letter on or prior to December 15, 2011 and the Fee Letter on or prior to the Closing Date as a co-obligor of the Company and the Borrower, in each case with such amendments to the Commitment Letter and Fee Letter as are reasonably necessary in connection with such joinder but only as approved in writing by each Arranger (which approval shall not be unreasonably withheld or delayed). The Arrangers agree to cooperate with the Borrower and the Company and, upon Its joinder hereto, the Authority in connection with obtaining necessary consents and approvals regarding the transactions described herein from the NFL, governmental bodies and other third parties.
3. Syndication Goldman Sachs Intends, and reserves the right, in consultation with the other Arrangers, to syndicate the Senior Secured Facility to the Lenders (as defined in Annex B), and you acknowledge and agree that the commencement of syndication shall occur in the discretion of Goldman Sachs, in consultation with the other Arrangers. Goldman Sachs, in consultation with the other Arrangers, will select the Lenders after consultation with the Borrower, the Authority and the Company. Goldman Sachs will lead the syndication, including determining, in consultation with the other Arrangers, the timing of all offers to potential Lenders, any title of agent or similar designations or roles awarded to any Lender and the acceptance of commitments, the amounts offered and the compensation provided to each Lender from the amounts to be paid to the Arrangers pursuant to the terms of this Commitment Letter and the Fee Letter. Goldman Sachs will determine the final commitment allocations in consultation with the other Arrangers, the Borrower, the Authority and the Company. The Company agrees to use all commercially reasonable efforts to ensure that Goldman Sachs' and the other Arrangers' syndication efforts benefit from the existing lending relationships of the Team and its subsidiaries. Solely to facilitate an orderly and successful syndication of the Senior Secured Facility, you agree that, until the earlier of the termination of each syndication period as determined by Goldman Sachs, in consultation with the other Arrangers, and 90 days following the date of initial funding under the Senior Secured Facility, the Borrower, the Authority and the Company will not syndicate or issue, attempt to syndicate or issue, or announce or authorize the announcement of the syndication or issuance of, or engage in discussions concerning the syndication or issuance of, any debt facility or any debt security of the Borrower, the Authority, the Company or any of their respective subsidiaries or affiliates (other than the Senior Secured Facility and other indebtedness contemplated hereby to remain outstanding after the Closing Date), including any renewals or refinancings of any existing debt facility or debt security, without the prior written consent of Goldman Sachs. The Arrangers acknowledge and agree that for the purposes of this Commitment Letter, the Authority has no affiliates or subsidiaries.
The Borrower, the Company and, upon its joinder hereto, the Authority agree to cooperate with the Arrangers, and the Company agrees to cause the Team to cooperate with the Arrangers, in connection with (1) the preparation of one or more information packages for the Senior Secured Facility regarding the business, operations, financial projections and prospects of the Borrower, the Authority, the Company and the Team (collectively, the "Confidential Information Memorandum"), including, without limitation, all information relating to the transactions contemplated hereunder prepared by or on behalf of the Borrower, the Authority, the Company or the Team deemed reasonably necessary by the Arrangers to complete the syndication of the Senior Secured Facility, and (ii) the presentation of one or more information packages for the Senior Secured Facility acceptable in format and content to the Arrangers (collectively, the "Lender Presentation") In meetings and other communications with prospective Lenders or agents in connection with the syndication of the Senior Secured Facility (including, without limitation, direct contact between senior management and representatives, with appropriate seniority and expertise, of the Borrower, the Authority, the Company and the Team, with prospective Lenders and participation of such persons in meetings). The Borrower, the Company and, upon its joinder hereto, the Authority further agree that the commitments and agreements of the Arrangers hereunder are conditioned upon the Borrower's, the Authority's, the Company's and the Team's satisfaction of the requirements of the foregoing provisions of this paragraph by a date sufficient to afford the Arrangers a period of at least 30 consecutive days following the launch of the general syndication of the Senior Secured Facility to syndicate the Senior Secured Facility prior to the Closing Date; p,om'ided that such 30 consecutive day period shall (I) either conclude prior to December 19, 2011 or commence after January 3, 2012 and (ii) exclude November 23, 2011. through and Including November 27, 2011. As more fully described below, each of the Borrower, the Authority and the Company will be responsible only for their respective contents of any such Confidential Information Memorandum and Lender Presentation relating to each such entity and all other information, documentation or materials delivered to the Arrangers in connection therewith (collectively, the "Information") and acknowledge that the Arrangers will be using and relying upon the Information without Independent verification thereof. The Borrower, the Company and, upon its joinder hereto, the Authority agree that information regarding the Senior Secured Facility and Information provided by the Borrower, the Company, the Authority, the Team or their respective representatives to the Arrangers in connection with the Senior Secured Facility (including, without limitation, draft and execution versions of the Loan Documents, the Authority Loan documents, the Stadco Loan documents, the Confidential Information Memorandum, the Lender Presentation, pro forma financial statements and feasibility studies) may be disseminated to potential Lenders and other persons through one or more Internet sites (including an IntraLinks, SyndTrak or other electronic workspace (the "Platform")) created for purposes of syndicating the Senior Secured Facility or otherwise, in accordance with the Arrangers' standard syndication practices, and you acknowledge that no Arranger nor any of its affiliates will be responsible or liable to you or any other person or entity for damages arising from the use by others of any Information or other materials obtained on the Platform. Third-party access to the Information, including but not limited to Information with respect to the Team, whether such access be through the Platform or otherwise, shall be conditioned upon each third party's acceptance of an affirmative obligation to maintain the confidentiality of the Information.
The Borrower, the Company and, upon Its joinder hereto, the Authority acknowledge that certain of the Lenders may be "public side" Lenders that do not wish to receive MNPI (as defined below) (each, a "Public Lender"). At the request of the Arrangers, you agree to prepare an additional version of the Confidential Information Memorandum and the Lender Presentation to be used by Public Lenders that may contain MNPI. It Is understood that in connection with your assistance described above, you will provide, and cause all other applicable persons to provide, authorization letters to the Arrangers authorizing the distribution of the Information to prospective Lenders and you agree that the Information distributed to prospective Public Lenders will contain a representation that (1) each of the Borrower, the Authority and the Company is not then the issuer of any debt or equity securities, (ii) such Confidential Information Memorandum and the Lender Presentation may contain MNPI, but do not contain financial projections and (III) if the Borrower, the Authority or the Company is or becomes the issuer of any debt or equity securities Issued pursuant to a public offering or Rule 144A or other private placement, or it is actively contemplating any such issuance of securities, in connection with (and prior to) the issuance of such securities, the Borrower, the Authority or the Company, as applicable, will publicly disclose (or otherwise disclose in an appropriate manner for the type of offering, including in the related prospectus or other offering document for the issuance of such securities) all information contained in such Confidential Information Memorandum or such Lender Presentation that constitutes MNPI at such time. "MNPI" means material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to the Borrower or any of Its respective affiliates or securities.
4. Information. The Company represents and covenants that (i) all Information (other than financial projections) provided directly or indirectly by the Company or the Team to any Commitment Party, in its capacity as an Arranger or as a Lender, or to the other Lenders, .in connection with the transactions contemplated hereunder is and will be, when taken as a whole, complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading and (ii) the financial projections that have been or will be made available to the Commitment Parties or the Lenders by or on behalf of the Team or the Company have been and will be prepared in good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such financial projections are furnished to the Commitment Parties or the Lenders, it being understood and agreed that financial projections are as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond your control, and are not a guarantee of financial performance; that no assurance can be given that any particular financial projections will be realized; and that actual results may differ from financial projections and such differences may be material. You agree that if at any time prior to the earlier of (i) 90 days following the Closing Date and (ii) the termination of each syndication of the Senior Secured Facility as determined by Goldman Sachs, in consultation with the other Arrangers, any of the representations in the preceding sentence would be incorrect in any material respect if such Information and financial projections were being furnished, and such representations were being made, at such time, then you will promptly supplement, or cause to be supplemented, such Information and financial projections so that such representations will be correct in all material respects under those circumstances.
The Borrower represents and covenants that (i) all Information (other than financial projections) provided directly or indirectly by the Borrower to any Commitment Party, in its capacity as an Arranger or as a Lender, or to the other Lenders, In connection with the transactions contemplated hereunder is and will be, when taken as a whole, complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading and (ii) the financial projections that have been or will be made available to the Commitment Parties or the Lenders by or on behalf of the Borrower have been and will be prepared In good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such financial projections are furnished to the Commitment Parties or the Lenders, it being understood and agreed that financial projections are as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the Borrower's control, and are not a guarantee of financial performance; that no assurance can be given that any particular financial projections will be realized; and that actual results may differ from financial projections and such differences may be material. The Borrower agrees that If at any time prior to the earlier of (i) 90 days following the Closing Date and (ii) the termination of each syndication of the Senior Secured Facility as determined by Goldman Sachs, in consultation with the other Arrangers, any of the representations in the preceding sentence would be incorrect in any material respect if such Information and financial projections were being furnished, and such representations were being made, at such time, then the Borrower will promptly supplement, or cause to be supplemented, such Information and financial projections so that such representations will be correct in all material respects under those circumstances.
Upon its joinder hereto, the Authority represents and covenants that (1) all Information (other than financial projections) provided on or prior to its joinder hereto and directly or indirectly by the Authority to any Commitment Party, in its capacity as an Arranger or as a Lender, or to the other Lenders, in connection with the transactions contemplated hereunder Is and will be, when taken as a whole, complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading and (ii) the financial projections, if any, that have been or will be made available to the Commitment Parties or the Lenders by or on behalf of the Authority (which, for the avoidance of doubt, do not and will not include any financial projections made available by or on behalf of the Team or the Company) have been and will be prepared in good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such financial projections are furnished to the Commitment Parties or the Lenders, it being understood and agreed that financial projections are as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the Authority's control, and are not a guarantee of financial performance; that no assurance can be given that any particular financial projections will be realized; and that actual results may differ from financial projections and such differences may be material. Upon its joinder hereto, the Authority agrees that if at any time prior to the earlier of (1) 90 days following the Closing Date and (ii) the termination of each syndication of the Senior Secured Facility as determined by Goldman Sachs, in consultation with the other Arrangers, any of the representations in the preceding sentence would be incorrect in any material respect if such Information and financial projections were being furnished, and such representations were being made, at such time, then the Authority will promptly supplement, or cause to be supplemented, such Information and financial projections so that such representations will be correct in all material respects under those circumstances.
In arranging and syndicating the Senior Secured Facility, we will be entitled to use and rely on the Information and the financial projections without responsibility for independent verification thereof. We will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of the Borrower, the Authority, the Company or the Team or any other party or to advise or opine on any related solvency issues.
5. Indemnification and Related Matters. In connection with arrangements such as this, it is the policy of each of our firms to receive indemnification. The Borrower, the Company and, upon Its joinder hereto, the Authority agree to the provisions with respect to our indemnity and other matters set forth in Annex A, which is incorporated by reference into this Commitment Letter.
6. Assignments. This Commitment Letter may not be assigned by you without the prior written consent of each Arranger (and any purported assignment without such consent will be null and void), is intended to be solely for the benefit of the Arrangers and the other parties hereto and, except as set forth in Annex A hereto, is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto. Notwithstanding the foregoing, the Company may, with the prior written consent of each Arranger (such consent not to be unreasonably withheld or delayed), assign all of its rights and obligations hereunder to a duly created and existing (i) affiliate established as a direct wholly-owned and controlled bankruptcy remote, single-purpose subsidiary of the Team or (ii) bankruptcy remote sister entity of the Team with the identical ownership as the Team, in each case to assume and carry out the business of the Company relating to the Stadium Project as described herein and the transactions contemplated hereby and by the Fee Letter, in which event such affiliate or sister entity shall thereafter be deemed to be the "Company" hereunder. Each Arranger may assign its commitments and agreements hereunder, in whole or in part, to any of its affiliates and, as provided above, to any Lender prior to the Closing Date. In addition, until the termination of the syndication of the Senior Secured Facility, as determined by Goldman Sachs, In consultation with the other Arrangers, each Arranger may, in consultation with the Borrower, the Authority and the Company, assign its commitments and agreements hereunder, in whole or in part, to additional arrangers or other Lenders. Any assignment by an Arranger to any potential Lender made prior to the Closing Date will not relieve such Arranger of its obligations set forth herein to fund that portion of the commitments so assigned unless such assignment was approved by the Borrower in writing such approval not to be unreasonably withheld or delayed). Neither this Commitment Letter nor the Fee Letter may be amended or any term or provision hereof or thereof waived or otherwise modified except by an instrument in writing signed by each of the parties hereto or thereto, as applicable, and any term or provision hereof or thereof may be amended or waived only by a written agreement executed and delivered by all parties hereto or thereto.
7. Confidentiality. Please note that this Commitment Letter, the Fee Letter and any written communications provided by, or oral discussions with, any Arranger in connection with this arrangement are exclusively for the information of the Borrower, the Company and, upon its joinder hereto, the Authority and may not be disclosed by you to any third party (other than the Company's, the Borrower's or the Authority's outside law firms or accounting firms, in each case who has been Informed by you of the confidential nature of such advice and the terms of this letter and has agreed to treat such information confidentially) or circulated or referred to publicly without our prior written consent except, after providing written notice to each Arranger, pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial, administrative or legislative body or committee; provided that we hereby consent to your disclosure of (i) this Commitment Letter, the Fee Letter and such communications and discussions to the Borrower's, the Authority's, the Company's and the Team's respective officers, directors, agents and advisors who are directly involved in the consideration of the Senior Secured Facility and who have been Informed by you of the confidential nature of such advice and this Commitment Letter and the Fee Letter and who have agreed to treat such information confidentially; (II) this Commitment Letter, the Fee Letter and such communications and discussions to the NFL; (lii) this Commitment Letter and the Fee Letter as required by applicable law or compulsory legal process (In which case you agree to inform us promptly thereof); (iv) this Commitment Letter and the Fee Letter to the Authority to the extent necessary in connection with the joinder of the Authority hereunder, including without limitation in connection with the Authority's requisite processes as a joint powers agency of the State of California, of which we are aware; and (v) the existence of this Commitment Letter and information about the Senior Secured Facility to market data collectors, similar services providers to the lending industry, and service providers to the Arrangers and the Lenders in connection with the administration and management of the Senior Secured Facility.
Each Arranger agrees that it will treat as confidential all information provided to it hereunder by or on behalf of you, the Team, the Authority or any of your or their respective subsidiaries or affiliates; ro ded owever, that nothing herein will prevent an Arranger from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding relating hereto, or otherwise as required by applicable law or compulsory legal process (in which case such person agrees to inform you promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority purporting to have jurisdiction over such person or any of its affiliates, (c) to the extent that such information is publicly available or becomes publicly available other than by reason of improper disclosure by such person, (d) to such person's affiliates and their respective officers, directors, partners, members, employees, legal counsel, Independent auditors and other experts or agents who need to know such information, who have been informed by such person of the confidential nature of such Information and who have agreed to treat such Information confidentially, (e) to potential and prospective Lenders, participants and any direct or indirect contractual counterparties to any swap or derivative transaction relating to the Borrower or its obligations under the Senior Secured Facility, in each case, who are advised of (lie confidential nature of such information and who have agreed to treat such information confidentially, (f) to Moody's and S&P and other rating agencies or to market data collectors as determined by each Arranger; prow a that such information is limited to Annex B and Annex C and is supplied only on a confidential basis, (g) received by such person on a non-confidential basis from a source (other than you, the Team, the Authority or any of your or their affiliates, advisors, members, directors, employees, agents or other representatives) not known by such person to be prohibited from disclosing such information to such person by a legal, contractual or fiduciary obligation, (1m) to the extent that such information was already in an Arranger's possession (excluding any information in the possession of Goldman Sachs or its affiliates prior to the date hereof in connection with the Company's engagement of Goldman, Sachs & Co. pursuant to the engagement letter dated October 6, 2010) or is independently developed by an Arranger or (I) for purposes of establishing a "due diligence" defense. Each Arranger's obligation under this provision shall remain in effect until the earlier of (I) four years from the date hereof and (ii) the date the definitive Loan Documents are entered into by the Arrangers, at which time any confidentiality undertaking in the definitive Loan Documents shall supersede this provision.
8. Absence of Fiduciary Relationship; Affiliates; Etc. As you know, each of the Arrangers is a full service financial institution engaged, either directly or through its respective affiliates, in a broad array of activities, including commercial and investment banking, financial advisory, market making and trading, investment management (both public and private Investing), investment research, principal investment, financial planning, benefits counseling, risk management, hedging, financing, brokerage and other financial and non-financial activities and services globally. In the ordinary course of their various business activities, each Arranger and funds or other entities In which such Arranger Invests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and Investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers. In addition, each Arranger may at any time communicate independent recommendations and/or publish or express independent research views in respect of such assets, securities or instruments. Any of the aforementioned activities may involve or relate to assets, securities and/or instruments of the Borrower, the Authority, the Company, the Team and/or other entities and persons which may (1) be Involved in transactions arising from or relating to the arrangement contemplated by this Commitment Letter or (ii) have other relationships with the Borrower, the Authority, the Company or the Team. In addition, each Arranger may provide investment banking, commercial banking, underwriting and financial advisory services to such other entities and persons. The arrangement contemplated by this Commitment Letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph, and employees working on the financing contemplated hereby may have been involved in originating certain of such investments and those employees may receive credit internally therefor. Although each Arranger in the course of such other activities and relationships may acquire information about the transaction contemplated by this Commitment Letter or other entities and persons which may be the subject of the financing contemplated by this Commitment Letter, such Arranger shall have no obligation to disclose such information, or the fact that such Arranger is in possession of such information, to the Borrower, the Authority or the Company or to use such information on the Borrower's, the Authority's or the Company's behalf.
No Arranger has assumed (A) an advisory responsibility in favor of the Borrower, the Authority, the Company, the Team or their respective equity holders or their respective affiliates with respect to the financing transactions contemplated hereby, (B) a fiduciary responsibility in favor of the Borrower, the Authority, the Company, the Team or their respective equity holders or their respective affiliates with respect to the transactions contemplated hereby, or in each case, the exercise of rights or remedies with respect thereto or the process leading thereto (irrespective of whether an Arranger has advised, is currently advising or will advise the Borrower, the Authority, the Company, the Team or their respective equity holders or their respective affiliates on other matters) or (C) any other obligation to the Borrower, the Authority, the Company or the Team except the obligations expressly set forth in this Commitment Letter and the Fee Letter.
You acknowledge that no Arranger nor any of its respective affiliates has an obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained or that may be obtained by them from any other person. Each of the Borrower, the Company and, upon its joinder hereto, the Authority agrees that it will not claim that any Arranger has rendered advisory services of any nature or respect with respect to the financing transactions contemplated hereby.
Each Arranger may have economic interests that conflict with those of the Borrower, the Authority, the Company, their respective equity holders and/or their respective affiliates. You agree that each Arranger will act tinder this Commitment Letter as an independent contractor and that nothing in this Commitment Letter or the Fee Letter will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Arranger and the Borrower, the Company, their respective equity holders or their respective affiliates. You acknowledge and agree that the transactions contemplated by this Commitment Letter and the Fee Letter (including the exercise of rights and remedies hereunder and (hereunder) are arm's-length commercial transactions between the Arrangers, on the one hand, and the Borrower, the Authority and the Company, on the other, and in connection therewith and with the process leading thereto, (i) no Arranger has assumed an advisory or fiduciary responsibility in favor of the Borrower, the Authority, the Company, their respective equity holders and/or their respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether an Arranger has advised, Is currently advising or will advise the Borrower, the Authority, the Company, their respective equity holders or their respective affiliates on other matters) or any other obligation to the Borrower, the Authority or the Company except the obligations expressly set forth in this Commitment Letter and the Fee Letter and (ii) each Arranger is acting solely as a principal and not as the agent or fiduciary of the Borrower, the Authority, the Company, or their respective management, equity holders, affiliates, creditors or any other person. Each of the Borrower, the Company and, upon its joinder hereto, the Authority acknowledges and agrees that each such party has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each of the Borrower, the Company and, upon its joinder hereto, the Authority agrees that it will not claim that any Arranger has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, the Authority or the Company, In connection with such transactions or the process leading thereto. In addition, each Arranger may employ the services of its affiliates in providing services and/or performing its or their obligations hereunder and, subject to Section 7 hereof, may exchange with such affiliates information concerning the Borrower, the Authority, the Company and other companies that may be the subject of this arrangement, and such affiliates will be entitled to the benefits afforded to such Arranger hereunder.
In addition, please note that no Arranger provides accounting, (ax or legal advice. Notwithstanding anything herein to the contrary, the Borrower, the Authority and the Company (and each employee, representative or other agent of the Borrower, the Authority or the Company) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Senior Secured Facility and all materials of any kind (including opinions or other tax analyses) that are provided to the Borrower, the Authority or the Company relating to such tax treatment and tax structure. However, any information relating to the tax treatment or tax structure will remain subject to the confidentiality provisions hereof (and the foregoing sentence will not apply) to the extent reasonably necessary to enable the parties hereto, their respective affiliates, and their respective affiliates' directors and employees to comply with applicable securities laws. For this purpose, "tax treatment" means U.S. federal or state income tax treatment, and "tax structure" is limited to any facts relevant to the U.S. federal income tax treatment of the transactions contemplated by this Commitment Letter but does not include information relating to the identity of the parties hereto or any of their respective affiliates.
9. Miscellaneous. The obligations of each Arranger under this Commitment Letter and the Fee Letter are several and not joint, and no Arranger will be liable for the obligations of any other Arranger.
The Arrangers' commitments and agreements hereunder will terminate upon the first to occur of (i) a material breach by the Borrower, the Authority or the Company under this Commitment Letter or the Fee Letter and (ii) April 30, 2012, unless the closing of the Senior Secured Facility, on the terms and subject to the conditions contained herein, has been consummated on or before such date.
The provisions set forth tinder Sections 3, 4, 5 (including Annex A), 7 and 8 hereof and this Section 9 hereof and the provisions of the Fee Letter, to the extent provided therein, will remain in full force and effect regardless of whether definitive Loan Documents are executed and delivered. The provisions set forth in the Fee Letter and under Sections 5 (including Annex A), 7 and 8 hereof and this Section 9 will remain in full force and effect notwithstanding the expiration or termination of this Commitment Letter or the Arrangers' commitments and agreements hereunder.
It is expressly understood and agreed by the parties hereto that (a) this Commitment Letter is executed and delivered by Wilmington Trust, National Association, not Individually or personally but solely as Trustee of the Borrower, in the exercise of the powers and authority conferred and vested in it under that certain Trust Agreement dated as of November 4, 2011 among the Company, as depositor, BSCS 2011-4, Inc., as beneficiary, and Wilmington Trust, National Association, as owner trustee (the "Trust Agreement"), (b) each of the representations, undertakings and agreements herein made on the part of the Borrower is made and intended not as personal representations, undertakings and agreements by \Vilnitngton Trust, National Association but is made and intended for the purpose for binding only the Borrower, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either express or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and any Person claiming by, through or under the parties hereto, and (d) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Borrower or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Borrower under this Commitment Letter or the other related documents.
Each of the Borrower, the Company and, upon its joinder hereto, the Authority for Itself and its affiliates agrees that any stilt or proceeding arising In respect of this Commitment Letter or the Arrangers' commitments or agreements hereunder or (lie Fee Letter will be tried exclusively in any Federal court of the United States of America sitting In the Borough of Manhattan or, If that court does not have subject matter jurisdiction, In any state court located in (lie City and County of New York, and the Borrower, the Authority and the Company agree to submit to the exclusive jurisdiction of, and to venue in, such court. Any right to trial by jury with respect to any action or proceeding arising In connection with or as n result of either an Arranger's commitments or agreements or any matter referred to In this Commitment Letter or the Fee Letter is hereby waived by the parties hereto. Each of the Borrower, the Authority and the Company for Itself and its affiliates agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by stilt on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses above shall be effective service of process against such party for any suit, action or proceeding brought In any such court. This Commitment Letter and the Fee Letter will be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws.
Each Arranger hereby notifies the Borrower, the Authority and the Company that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act") such Arranger and each Lender may be required to obtain, verify and record information that identifies the Team, the Borrower, the Authority and the Company, which information includes the name and address of the Borrower and other information that will allow such Arranger and each Lender to identify tine Team, the Borrower, the Authority and the Company in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective for each Arranger and each Lender.
This Commitment Letter may be executed in any number of counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or electronic transmission (in pdf format) will be effective as delivery of a manually executed counterpart hereof. This Commitment Letter and the Fee Letter are the only agreements that have been entered Into among the parties hereto with respect to the Senior Secured Facility and set forth the entire understanding of the parties with respect thereto and supersede any prior written or oral agreements among the parties hereto with respect to the Senior Secured Facility.
Please confirm that the foregoing is in accordance with your understanding by signing and returning to the Arrangers the enclosed copy of this Conunitment Letter, on or before the close of business on November 4, 2011, whereupon this Commitment Letter will become a binding agreement between us. If this Commitment Letter has not been signed and returned as described in the preceding sentence by such date, this offer will terminate on such date.
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In the event that any Commitment Party becomes involved in any capacity in any action, proceeding or investigation brought by or against any person, including shareholders, partners, members or other equity holders of the Borrower, the Authority or the Company in connection with or as a result of either this arrangement or any matter referred to in this Commitment Letter or the Fee Letter (together, the "Letters"), the Borrower, the Company and, upon its joinder hereto, the Authority jointly and severally agree to periodically reimburse each Commitment Party for its reasonable legal and other expenses (including the cost of any instigation and preparation) incurred in connection therewith; provided however, that if it is found by a final, non-appealable judgment of a court of competent jurisdiction in any such action, proceeding or Investigation that any loss, claim, damage or liability of such Commitment Party has resulted from the gross negligence or willful misconduct of such Commitment Party in performing the services which are the subject of the Letters or in connection with any matter referred to herein, such Commitment Party shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to the act or omission of such Commitment Party which is the subject of such funding. The Borrower, the Company and, upon its joinder hereto, the Authority also agree to indemnify and hold each Commitment Party harmless against any and all losses, claims, damages or liabilities to any such person in connection with or as a result of either this arrangement or any matter referred to in the Letters (whether or not such investigation, litigation, claim or proceeding is brought by you, your equity holders or creditors or an indemnified person and whether or not any such indemnified person is otherwise a party thereto), except to the extent that such loss, claim, damage or liability has been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted front the gross negligence or willful misconduct of such Commitment Party in performing the services that are the subject of the Letters or in connection with any natter referred to herein. Iffor any reason the foregoing I ndeniniffcation Is unavailable to a Commitment Party or hnss f icient to hold it harmless, then the Authority, the Borrower and the Company shall contribute to the amount paid or ptowble by such Commitment Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of
The reimbursement, indemnify and contribution obligations of the Borrower, the Authority and the Company under this paragraph shall be in addition to any liability which the Borrower, the Authority and the Company may otherwise have, shall extend upon the same terms and conditions to any affiliate of a Commitment Party and the partners, members, directors, agents, employees and controlling persons (if any), as the case may be, of such Commitment Party and any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borower, the Authority, the Company, such Commitment Party, any such affiliate and any such person. The Borrower, the Company and, upon its joinder hereto, the Authority, also agree that neither any indemnified party nor any of such affiliates, partners, members, directors, agents, employees or controlling persons shall have any liability to the Borrower or the Company or any person asserting claims on behalf of or in right of the Borrower, the Authority or the Company or any other person in connection with or as a result of either this arrangement or any matter referred to in the Letters except in case of the Borrower, the Authority and the Company to the extent that any losses, claims, damages, liabilities or expenses incurred by the Borower, the Authority or the Company or their respective affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such indemnified party in performing the services that are the subject of the Letters or in connection with any matter referred to herein; provided however that in no event will such indemnified party or such other parties have any liability for any indirect, consequential, special or punitive damages in connection with or as a result of such indemnified pary's or such other parties' activities related to the Letters. For a period of one year from the termination of this letter, prior to entering into any agreement or arrangement with respect to, or effecting any proposed sale, exchange, dividend or other distribution or liquidation of all or a significant portion of its assets in one or a series of transactions or any significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the obligations of the Borrower, the Authority or the Company set forth in this Annex A, the Company will notify each Commitment Party in writing thereof (If not previously so notified) and, if requested by any such Commitment Party, shall arrange in connection therewith alternative means of providing for the obligations of the Borrower, the Authority or the Company, as applicable, set forth in this paragraph, including the assumption of such obligations by another party, insurance, surety bonds or the creation of an escrow, in each case by an amount and upon terms and conditions reasonably satisfactory to such Commitment Party; provided however that if any action, proceeding or investigation is pending at the end of such one year period for which a claim for indemnification, contribution or reimbursement under this agreement has been or may be made, the Borrower's, the Authority's and the Company's obligations pursuant to this sentence shall continue until such action, proceeding or investigation has been ultimately resolved. The provisions of this Annex A shall survive any termination or completion of the arrangements provided by the Letters.
This Summary outlines certain terms of the Senior Secured Facility referred to in the Commitment Letter, of which this Annex B is a part. Certain capitalized terms used herein are defined in the Commitment Letter.
| Borrower: | Stadium Funding Trust, a statutory trust established under the laws of the State of Delaware (the "Borrower") exclusively for the purpose of borrowing funds from the Lenders (as defined below) under the Senior Secured Facility and making loans to the Loan Parties (as defined below) to finance the development and construction of the Stadium Project (as defined below). |
| Loan Parties: | Santa Clara Stadium Authority, a joint powers agency created pursuant
to Section 6532 of the California Government Code (the "Authority"),
formed exclusively for the purpose of financing, constructing and
owning the Stadium Project, and Forty Niners Stadium, LLC ("Stadco"
or the "Company"), a special purpose entity whose activities will be
limited exclusively to
|
| Stadium Project: | The Authority intends to (i) develop, finance and construct an approximately 1.8 million square foot, 68,500 seat professional football stadium(the "Stadium"), and all related facilities and other improvements(collectively, including the Stadium,the "Improvements"), together with supporting infrastructure, on a site on the south side of Tasman Drive at Centennial Boulevard in Santa Clara, California (the "Stadium Site" and, together with the improvements, the "Stadium Project"), and (ii) lease the Stadium and certain other improvements and appurtenant rights to Stadco for the National Football League (the "NFL") season (including pre-season, regular season and post-season NFL games), during each year of the lease term. The scheduled completion date for the construction of the Improvements (the "Scheduled Completion Date") will be established to the reasonable satisfaction of each of the Co-Lead Arrangers, on or before the Closing Date. |
| Construction Monitor/Independent Engineer: | An independent engineering firm(the "Constructlon Monitor") selected by the Co-Lead Arrangers in consultation with the Borrower and the Company with responsibility for, among other things,(i) confirming that sufficient proceeds are available from the monies deposited in the construction account and amounts available from and under the Senior Secured Facility, the NFL Financing (as hereinafter defined), and other sources to complete construction of the Improvements by the Scheduled Completion Date, (ii) reviewing and approving all material change orders and ceilifying that there are sufficient contingencies available to fund change orders (or, alternatively, requiring that additional monies be deposited into the construction account prior to signing a change order) and (iii) after the Closing of the Senior Secured Facility, reviewing and approving each construction Invoice prior to a construction draw being made to pay a construction contractor. |
| NFL Financing: | It will be a condition precedent to the Closing that the NFL shall have committed to provide at least $150 million to the Team Parties under the successor to its G-3 stadium financing program or otherwise (collectively, the "NFL Financing") to finance or refinance tenant improvements and other costs of the Stadium Project incurred by Stadco, pursuant to a legally binding commitment letter or similar documentation and on terms reasonably satisfactory to the Initial Lender (as defined below), in its sole discretion. |
| Purpose/Use of Proceeds: | The proceeds of the Senior Secured Facility will be used to make (x) a loan to the Authority up to a maximum. amount to be agreed (the "Authority Loan") and (y) a loan to Stadco up to a maximum amount to be agreed (the "Stadco Loan," and together with the Authority Loan, the "Loans"), which Loans shall not, in the aggregate, exceed $850,000,000. The Authority will use the proceeds of the Authority Loan, together with the proceeds received by the Authority from all other sources reasonably satisfactory to each of the Co-Lead Arrangers, including, without limitation, the Stadco Advance (as defined below), and other available funds of the Authority, to (a) pay costs and expenses of the design, development, construction and completion of the Stadium Project by the Scheduled Completion Date (the "Authority Project Costs"), (b) fund Interest and fees that become due under the Authority Loan during the construction of the Improvements, and (c) pay all other fees, costs and expenses incurred or payable by the Authority in connection with the transactions described herein. Stadco will use the proceeds of the Stadco Loan, together with the proceeds received by Stadco from all other sources reasonably satisfactory to each of the Co-Lead Arrangers, Including, without limitation, the NFL Financing, and other available funds of Stadco, to (i) finance or refinance certain costs and expenses of the Improvements paid or payable by Stadco (the "Stadco Project Costs"), (ii) fund interest and fees that become due under the Stadco Loan during the construction of the Improvements, (Iii) advance funds to the Authority up to a maximum amount to be agreed to be used by the Authority to pay Authority Project Costs (the "Stadco Advance"), and (iv) pay all other fees, costs and expenses incurred or payable by Stadco in connection with the transactions described herein. Authority Project Costs and Stadco Project Costs Include ceilain amounts relating to prior advances that are to be reimbursed directly or indirectly to the Team on the Closing Date. The Stadco Advance will be a loan subordinate to the Authority Loan and repayable by the Authority pursuant to the terms set forth in a note of the Authority (the "Antlrorlly Note"), Which Authority Note shall be issued to Stadco at or before the time the Stadco Advance is initially made. |
| Co-Lead Arrangers: | Goldman Sachs Bank USA ("Goldman Sachs"), Merrill Lynch,Pierce, Fenner & Smith Incorporated("MLPFS") and U.S. Bank National Association ("U.S Bank" and, collectively with Goldman Sachs and MLPFS, the "Co-Lead Arrangers"). |
| Joint Bookrunners: | Goldman Sachs, MLPFS and U.S. Bank. |
| Administrative Agent: | Goldman Sachs (in its capacity as Administrative Agent under the Senior Secured Facility and the Loans, the "Administrative Agent"). |
| Co-Syndication Agents: | Bank of America, N.A. ("BOA") and U.S. Bank. |
| Documentation Agent: | A financial institution selected by Goldman Sachs in consultation with the Co-Lead Arrangers. |
| Collateral Agent: | Goldman Sachs (in its capacity as Collateral Agent, the "Collateral Agent"). |
| Initial Lenders: | Goldman Sachs, BOA, and U.S. Bank and/or one or more of their affiliates(each, an "Initial Lender" and, collectively, the "Initial Lenders"; the Initial Lenders together with any financial institutions selected by the Co-Lead Arrangers that shall become lenders pursuant to the terms of the definitive Loan Documents, the "Lenders"). |
| Type and Amount of Senior Secured Facility: | An up to $850,000,000 senior secured multi-draw construction term loan. |
| Availability: | Multiple drawings may be made under the Senior Secured Facility in accordance with the provisions relating to Construction Draws set forth below to fund, as described herein, the Authority Loan and the Stadco Loan. |
| Maturity Date: | The Senior Secured Facility, the Authority Loan, and the Stadco Loan will mature on the earlier of (i) September 1, 2015 and (ii) the closing date of the final portion of takeout financings the proceeds of which, in the aggregate, together with any other funds available therefor, are sufficient to pay in full the outstanding amount of the Senior Secured Facility. The Stadco Advance may, in certain circumstances, mature after the Maturity Date of the Senior Secured Facility, the Authority Loan and the Stadco Loan. |
| Closing Date: | The date on which the Administrative Agent declares that all conditions precedent to the effectiveness of the Senior Secured Facility have occurred (the "Closing Date"; and the closing of the Senior Secured Facility is referred to herein as the "Closing"). The Closing is anticipated to occur on or before April 30, 2012. |
| Amortization: | No scheduled amortization will be required with respect to the Senior Secured Facility, the Authority Loan, the Stadco Loan or the Stadco Advance. |
| Interest Rate: | All amounts outstanding under the Senior Secured Facility will bear
interest, at the Borrower's option, as follows:
(i) the Base Rate plus 2.25% per annum; or (ii) the reserve adjusted Eurodollar Rate plus 3.25% per annum. As used herein, the terms "Base Rate" and "reserve adjusted Eurodollar Rate" will have meanings customary and appropriate for financings of this type, and the basis for calculating accrued interest and the interest periods for loans bearing Interest at the reserve adjusted Eurodollar Rate will be customary and appropriate for financings of this type. In no event shall the Base Rate be less than the sum of (i) the one-month reserve adjusted Eurodollar Rate (after giving effect to any reserve adjusted Eurodollar Rate "floor") plus (ii) the difference between the applicable stated margin for reserve adjusted Eurodollar Rate loans and the applicable stated margin for Base Rate loans. After the occurrence and during the continuance of any payment, bankruptcy or financial covenant Event of Default, interest on amounts then outstanding will accrue at a rate equal to the rate then applicable thereto, or otherwise at a rate equal to the rate then applicable to loans bearing Interest at the rate determined by reference to the Base Rate, in each case plus an additional two percentage points (2.00%) per annum. Such interest will be payable on demand. All amounts outstanding under the Authority Loan and the Stadco Loan will bear interest at the same rate as that of the Senior Secured Facility. |
| Interest Payments: | After the Closing Date, quarterly for loans bearing interest with reference to the Base Rate; except as set forth below, on the last day of selected interest periods (which will be one, two, three and six months) for loans bearing interest with reference to the reserve adjusted Eurodollar Rate (and at the end of every three months, in the case of interest periods of longer than three months); and upon prepayment, In each case payable in arrears and computed on the basis of a 360-day year (365/366 day year with respect to loans bearing interest with reference to the Base Rate). |
| Commitment Fees: | Beginning after the Closing Date, the Borrower shall pay each Lender
a commitment fee, payable In arrears on a quarterly basis, and passed through pro rata from the Authority and Stadco under the Authority Loan documents and Stadco Loan documents, respectively, equal to
(x) the Applicable Rate (as defined below) multiplied by (y) the aggregate amount of such Lender's undrawn commitments. As used herein, the "Applicable Rate" means, for any day:
|
| Voluntary Prepayments: | The Senior Secured Facility may be prepaid in whole or in partwithout premium or penalty; provided that loans bearing interest with reference to the reserve adjusted Eurodollar Rate will be prepayableonly on the last day of the related interest period unless the Borrowerpays any related breakage costs. Each of the Authority Loan and the Stadco Loan may be prepaid in whole or in part without premium or penalty; provided that loans bearing interest with reference to the reserve adjusted Eurodollar Rate will be prepayable only on the last day of the related interest period unless the applicable Loan Party pays any related breakage costs. |
| Mandatory Prepayments: | Documents: (X)(A) any voluntary prepayments made by the Authority under the definitive Authority Loan documents and (B) any mandatory prepayments made by the Authority under the definitive Authority Loan documents from the proceeds of the following, to the extent such proceeds are not otherwise used or held for use under the definitive Authority Loan documents: (i) any cash advances to the Authority from Stadco made after the Closing Date in accordance with the Stadco Term Loan Commitment (as defined below), (ii) asset sales by the Authority, (iii) receipt of casualty or condemnation proceeds by the Authority, (iv) Incurrence of indebtedness(other than the Stadco Advance) or execution of securitization transactions by the Authority, (v) receipt of additional public sector contributions by the Authority, (vi) receipt of proceeds from the sale or license of any stadium builder licenses, naming rights or other rights or assets owned by the Authority and related to the Stadium Project, (vii) receipt by the Authority of any liquidated damages under the Design-Build Agreement and any non- relocation agreement related to the Stadium Project, and (viii) receipt bythe Authority of any additional proceeds from the NFL (whether as a result of NFL Financing or otherwise) or upfront payments contributed to the Authority by another NFL team related to an additional franchise playing at the Stadium (which additional franchise will be permitted to play at the Stadium upon satisfaction by Stadco of its related obligations to the Authority under the Stadium Lease (defined below)); (Y)(A) any voluntary prepayments made by Stadco under the definitive Stadco Loan documents and (B) any mandatory prepayments made by Stadco under the definitive Stadco Loan documents from the proceeds of the following, to the extent such proceeds are not otherwise used or held for use under the definitive Stadco Loan documents: (i) incurrence of indebtedness by Stadco, (ii) issuance of equity by Stadco, (iii) asset sales by Stadco the Authority of any additional proceeds from the NFL (whether as a result of NFL Financing or otherwise) or upfront payments contributed to the Authority by another NFL team related to an additional franchise playing at the Stadium (which additional franchise will be permitted to play at the Stadium upon satisfaction by Stadco of its related obligations to the Authority under the Stadium Lease (defined below)); (Y)(A) any voluntary prepayments made by Stadco under the definitive Stadco Loan documents and (B) any mandatory prepayments made by Stadco under the definitive Stadco Loan documents from the proceeds of the following, to the extent such proceeds are not otherwise used or held for use under the definitive Stadco Loan documents: (i) incurrence of indebtedness by Stadco, (ii) issuance of equity by Stadco, (iii) asset sales by Stadco, (iv) casualty or condemnation proceeds received by Stadco, (v) the sale or license by Stadco of luxury suites at the Stadium, (vi) any repayment of the Stadco Advance by the Authority, and (vii) receipt by Stadco of any additional proceeds from the NFL (whether as a result of NFL Financing or otherwise) or upfront payments contributed to Stadco by another NFL team related to an additional franchise playing at the Stadium (which additional franchise will be permitted to play at the Stadium upon satisfaction by Stadco of its related obligations to the Authority under the Stadium Lease); and (Z) incurrence of Indebtedness. All mandatory prepayments by the Borrower will be applied to the Senior Secured Facility (including funded loans and loan commitments) without penalty or premium (except for breakage costs, If any). |
| Commitment Reduction Upon Application of Pledged Revenues | As and to the extent described in the definitive Loan Documents, Pledged Revenues directed by the Authority and Stadco, and approved by the Lenders, to be withdrawn from any Account (defined below) or otherwise applied to pay Stadium Project costs will reduce the commitment amount on a dollar for dollar basis provided such use offinds does not dilute annual cash flows to levels that adversely affectthe operating profile for any takeout financing. |
| Lease Structure: | The Authority has entered into, or will enter into on or before the
Closing Date, (i) a ground lease (the "Ground Lease"), pursuant to
which the City of Santa Clara (the "City") will lease the Stadium Site to
the Authority, and (ii) a lease (the "Stadium Lease"), pursuant to which
the Authority will lease the Stadium to Stadco for the NFL season
(including pre-season, regular season and post-season NFL games),
during each year of the lease term. Under certain circumstances
described in the Stadium Lease, the Authority may elect to extend
Stadco's tenancy to the full12 months of each year of the lease term
following such election. In addition, Stadco has entered Into, or will
enter into on or before the Closing Date, a sublease with the Team (the "Team Sublease" and, collectively with the Ground Lease and the Stadium Lease, the ".Leases"), pursuant to which Stadco will sublease the Stadium to the Team for its NFL games and other purposes. The Authority and Stadco will obtain all necessary consents for the collateral assignment of the Leases to the Borrower, which shall in turn collaterally assign its interests therein to the Collateral Agent, and the Borrower, the Authority, the Team Parties and the City shall enter into appropriate subordination and non-disturbance agreements with respect
to the Leases.
The Team currently plays Its NFL home games at Candlestick Park pursuant to a lease between the Team and the City of San Francisco (the "Candlestick Lease"). The Candlestick Lease Is currently subject to early termination by the Team on May 31, 2015 pursuant to its terms. The Team intends to attempt to reach an agreement to terminate the Candlestick Lease In time to allow the Team to play all or substantially all of its NFL regular season home games at the Stadium commencing with the 2014 NFL season. The ability of the Team to play its NFL regular season home games at the Stadium commencing with the 2014 NFL season is not a condition precedent to the Closing. In the first lease year of the Team Sublease, the Team will be required to pay as rent an amount equal to the higher of (i) the revenues of the Team allocable to Candlestick Park operations during such lease year (exclusive of Team specific revenues such as ticket and media revenues), If any, less the operating costs of the Team allocable to Candlestick Park operations during such lease year (exclusive of Team specific operating costs such as operating costs attributable to ticket and media and football operations, including without limitation, players' salaries, bonuses and other compensation), and (ii) the scheduled base rent payable by the Team under the Team Sublease for such lease year. |
| Stadco Obligations: | In accordance with the terms of the Stadium Lease, the Authority and Stadco will enter into an agreement (the "Stadco Obligations Agreement") pursuant to which Stadco will agree to make the Stadco Advance to the Authority, evidenced by the Authority Note, to finance a portion of the Authority Project Costs. Additionally, Stadco will agree under the Stadco Obligations Agreement, for the benefit of the Borrower, to (X) advance to the Authority, after the Closing Date and on or prior to the Maturity Date, funds up to an aggregate amount to be agreed, to finance or refinance certain costs and expenses of the Stadium Project paid or payable by the Authority (the "Stadco Term Loan Commitment") and (Y) purchase on the Maturity Date a portion of the Authority Loan (up to a maximum amount to be agreed) on terms and tinder conditions to be agreed among Stadco, the Authority, the Borrower and the Initial Lenders (the "Sladco Purchase Commitment";and, together with the Stadco Tenn Loan Commitment, the "Stadco Obligations"). The Stadco Obligations shall, in the aggregate, equal the amount of the Authority Loan. Amounts advanced to the Authority pursuant to the Stadco Term Loan Commitment, if any, shall constitute a subordinate loan to be repaid by the Authority to Stadco over a teen to be agreed. To support Stadco's obligation to fulfill the Stadco Purchase Commitment, and the Stadco Term Loan Commitment, if any, (i) pursuant to Stadco's operating agreement, in the event Stadco does not then have available funds or access to financing sufficient to meet its obligation under the Stadco Purchase Commitment or the Stadco Tenn Loan Commitment, Stadco shall have the right to, and shall, make a capital call on the Team In the amount of any deficiency, and the Team shall be obligated to promptly fiend such capital call, subject to any restrictions on the Team under the NFL Constitution or the NFL League-wide Credit Facility, and provided that the NFL waives the debt limit to which the Team is subject under the terms of the NFL Constitution so as to permit the aggregate Indebtedness (as defined in the NFL League-wide Credit Facility) of the Team, including such Team capital call obligation, to be up to 250% of the Team's Average Annual Allocated Revenue Amount under, and as defined in, the NFL League-wide Credit Facility; or (ii) the NFL shall agree under the NFL Consent Letter (as defined below) to seek a purchaser for (a) all assets of the Team and Stadco or (b) the Team and Stadco as a whole (i.e., in the case of (a) and (b) the NFL shall be required to bundle the assets or equity (as applicable) of the Team and Stadco). |
| Lenders' Non-Relocation Agreement: | On the Closing Date, the Team will enter into a non-relocation agreement with the Collateral Agent, for the benefit of the Lenders (the "Lenrlers' Non-Relocation Agreement"), whereby the Team will agree to play all of its pre-season, regular season and post-season home games in the Stadium, except as otherwise provided therein (including, without limitation, any home games played, at the direction of the NFL, at a location other than the Stadium), following substantial completion thereof and until all loans and other obligations under the Senior Secured Facility have been indefeasibly paid and performed in full. |
| Security: | |
| Representations and Warranties of the Borrower | The credit agreement for the Senior Secured Facility will contain such representations and warranties by the Borrower as are reasonably satisfactory to the Co-Lead Arrangers and usual and customary for project financings of this kind, giving due regard to then current market conditions, including without limitation: due organization; requisite power and authority; qualification; due authorization, execution, delivery and enforceability of the Loan Documents to which the Borrower is a party; creation, perfection and priority of security interests; no conflicts; governmental consents; absence of material litigation; title to properties; no defaults under material agreements; absence of brokers or finders fees; solvency; compliance with laws; status as senior debt; full disclosure; and Patriot Act andother related matters. |
| Covenants of the Borrower: | The credit agreement for the Senior Secured Facility will contain suchifnancial, affirmative and negative covenants by the Borrower as arereasonably satisfactory to the Co-Lead Arrangers and usual andcustomary for project financings of this kind, giving due regard tothen current market conditions, Including without limitation: |
| - financial covenant: | From and after the commencement of operations at the Stadium, the Borrower shall maintain (i) a pro forma debt service coverage ratio asof the end of each fiscal quarter of not less than 2.0:1.0 and (ii) an historical debt service coverage ratio as of the end of each fiscalquarter to be mutually agreed upon prior to the Closing. |
| - affirmative covenants: | delivery of financial statements and other reports (including the identification of information as suitable for distribution to Public Lenders or Non-Public Lenders); maintenance of existence; payment of taxes and claims; maintenance of properties; maintenance of insurance; cooperation with syndication efforts; books and records; inspections; lender meetings; compliance with laws; compliance with NFL rules and regulations; agreement to take direction from Lenders and/or the NFL, as applicable, upon a default; cash management and further assurances; and use of best efforts to work with the Authority and Stadco so as to arrange the Borrower's transaction structure and the operations of the Loan Parties in such a way that any takeout financings of the Senior Secured Facility achieve an investment grade credit rating, and including, In each case, exceptions and baskets to be mutually agreed upon; and |
| - negative covenants: | limitations with respect to other indebtedness; liens; negative pledges; restrictions on junior payments(e.g., dividends, redemptions or voluntary payments on certain debt); investments, mergers and acquisitions; sales of assets (including subsidiary interests); sales and lease-backs; special purpose entity provisions; capital expenditures; conduct of business; amendments and waivers of organizational documents and other material agreements; and changes to fiscal year, and including, in each case, exceptions and baskets to be mutually agreed upon. |
| Events of Default in respect of the Borrower: | The credit agreement for the Senior Secured Facility will include such events of default (and, as appropriate, grace periods) as are reasonably satisfactory to the Co-Lead Arrangers and usual and customary for project financings of this kind, giving due regard to then current market conditions, including without limitation: failure to make payments when due, defaults under other agreements or instruments of indebtedness, certain events under hedging agreements, noncompliance with covenants, breaches of representations and warranties, bankruptcy, judgments in excess of specified amounts, andimpairment of security interests in collateral. |
| Representations and Warranties of the Authority: | The credit agreement for the Authority Loan will contain such representations and warranties by the Authority as are reasonably satisfactory to the Co-Lead Arrangers and usual and customary for project financings of this kind, giving due regard to then current market conditions, including without limitation: due organization; requisite power and authority; due authorization, execution, delivery and enforceability of the Loan Documents and Authority Loan documents to which the Authority is a party; creation, perfection and priority of security interests; no conflicts; governmental consents; absence of material litigation; title to properties; no defaults under material agreements; absence of brokers or finders fees; solvency; compliance with laws; status as senior debt; full disclosure; and Patriot Act and other related matters. |
| Covenants of the Authority: | The credit agreement for the Authority Loan will contain suchaffirmative and negative covenants by the Authority as are reasonablysatisfactory to the Co-Lead Arrangers and usual and customary forproject financings of this kind, giving due regard to then currentmarket conditions, including without limitation: |
| - affirmative covenants: | delivery of financial statements and other reports (including the identification of information as suitable for distribution to Public Lenders or Non-Public Lenders); maintenance of existence; payment of taxes and claims; maintenance of properties; maintenance of insurance; cooperation with syndication efforts; books and records; inspections; lender meetings; compliance with laws; maintenance of the Design-Build Agreement in full force and effect; cash management and further assurances; and use of best efforts to work with the Borrower and Stadco so as to arrange the Borrower's transaction structure and the operations of the Loan Parties in such away that any takeout financings of the Senior Secured Facility achievean investment grade credit rating, and including, in each case,exceptions and baskets to be mutually agreed upon; and |
| - negative covenants: | limitations with respect to other indebtedness, other than a line of credit provided to the Authority by the Stadium manager; liens; negative pledges; restrictions on junior payments(e.g., dividends, redemptions or voluntary payments on certain debt); investments, mergers and acquisitions; sales of assets(including subsidiary interests); sales and lease-backs; special purpose entity provisions; capital expenditures; conduct of business; amendments and waivers of organizational documents and other material agreements; junior indebtedness; and changes to fiscal year, and including, in each case, exceptions and baskets to be mutually agreed upon. |
| Events of Default In respect of the Authority: | The credit agreement for the Authority Loan will include such events of default(and, as appropriate, grace periods) as are reasonablysatisfactory to the Co-Lead Arrangers and usual and customary forproject financings of this kind, giving due regard to then currentmarket conditions, including without limitation: failure to makepayments when due, defaults under other agreements or instruments ofindebtedness,certaineventsunder hedging agreements,noncompliance with covenants, breaches of representations andwarranties, bankruptcy, judgments in excess of specified amounts, andimpairment of security interests in collateral. |
| Representations and Warranties of Stadco: | The credit agreement for the Stadco Loan will contain such representations and warranties by Stadco as are reasonably satisfactory to the Co-Lead Arrangers and usual and customary for project financings of this kind, giving due regard to then current market conditions, including without limitation: due organization; requisite power and authority; qualification; equity interests and ownership; due authorization, execution, delivery and enforceability of the Loan Documents and Stadco Loan documents to which Stadco is a party; creation, perfection and priority of security interests; no conflicts; governmental consents; historical and projected financial condition; no material adverse change; no restricted junior payments; absence of material litigation; payment of taxes; title to properties; environmental matters; no defaults under material agreements; Investment Company Act and margin stock matters; ERISA and other employee matters; absence of brokers or finders fees; solvency; compliance with laws; status as senior debt; full disclosure; and Patriot Act and other related matters. |
| Covenants of Stadco: | The credit agreement for the Stadco Loan will contain such affirmative and negative covenants by Stadco as are reasonablysatisfactory to the Co-Lead Arrangers and usual and customary for project financings of this kind, giving due regard to then currentmarket conditions, including without limitation: |
| - affirmative covenants: | delivery of financial statements and other reports (including the identification of Information as suitable for distribution to Public Lenders or Non-Public Lenders); maintenance of existence; payment of taxes and claims; maintenance of properties; maintenance of insurance; cooperation with syndication efforts; books and records; inspections; lender meetings; compliance with laws; environmental matters; additional collateral and guarantors; maintenance of facility level ratings; maintenance of the Design-Build Agreement in full force and effect; cash management and further assurances; and use of best efforts to work with the Borrower and the Authority so as to arrange the Borrower's transaction structure and the operations of the Loan Parties in such a way that any takeout financings of the Senior Secured Facility achieve an Investment grade credit rating, and including, in each case, exceptions and baskets to be mutually agreedupon; and |
| - negative covenants: | limitations with respect to other indebtedness; liens; negative pledges; restrictions on junior payments(e.g., dividends, redemptions or voluntary payments on certain debt); restrictions on subsidiary distributions; investments, mergers and acquisitions; sales of assets (including subsidiary interests); sales and lease-backs; special purpose entity provisions; capital expenditures; transactions with affiliates; conduct of business; permitted activities of Stadco; amendments and waivers of organizational documents and other material agreements; junior Indebtedness (such that the only junior indebtedness permittedis indebtedness incurred pursuant to the NFL Financing); and changesto fiscal year, and including, In each case, exceptions and baskets to bemutually agreed upon. |
| Events of Default in respect of Stacco: | The credit agreement for the Stadco Loan will include such events of default(and, as appropriate, grace periods) as are reasonably satisfactory to the Co-Lead Arrangers and usual and customary for project financings of this kind, giving due regard to then current market conditions, including without limitation: failure to make payments when due, defaults under other agreements or instruments of indebtedness,certainevents under hedging agreements, noncompliance with covenants, breaches of representations and warranties, bankruptcy, judgments in excess of specified amounts, ERISA, impairment of security interests in collateral and "change of control" (to be defined in a mutually agreed upon manner). |
| Pledged Revenues Waterfall: | All Pledged Revenues received shall be paid directly by Stadco, the Authority or the Borrower to one or more restricted deposit accounts subject to the exclusive control of the Collateral Agent ((he "Collateral Account") on a daily basis. Commencing upon,the receipt of any Pledged Revenues into the Collateral Account, the Collateral Agent shall transfer funds periodically from the Collateral Account to certain other restricted deposit accounts (which will be subject to the exclusive control of the Collateral Agent) (such accounts collectively, together with the Collateral Account, the "Accounts") In an order of priority to be set forth in the definitive Loan Documents (which will reflect the seniority of obligations of the Authority under the Ground Lease and will otherwise be in accordance with such terms and conditions as are usual and customary for project financings of this kind). Upon completion of construction, any excess amounts remaining after the transfers described above shall not be distributed but shall instead be used to permanently reduce the Senior Secured Facility so long as sufficient reserves have been established to fund the operating expenses of the Stadium for the then current NFL season. |
| Construction Draws: | Advances tinder the Senior Secured Facility shall be made (after review and approval by the Construction Monitor) solely (X) to fund advances under the Authority Loan, which shall be applied solely to pay (i) Stadium Project costs, pursuant to the Construction Budget, no more frequently than monthly and pursuant to construction loan requisition and disbursement procedures and requirements established by the Collateral Agent, including retainage withheld in accordance with construction contract documents, loan balancing provisions, adequacy of funding and approval by the Construction Monitor of all requisitions, (ii) approved operating expenses pursuant to an approved operating budget at such times to be mutually agreed upon, (iii) interest and fees that become due under the Authority Loan, and (iv) all other fees, costs and expenses Incurred or payable by the Authority under the Authority Loan; (Y) to fund advances under the Stadco Loan, which shall be applied solely to (i) finance or refinance certain Stadco Project Costs, (ii) advance Rands in respect of the Stadco Advance evidenced by the Authority Note (subject to the restrictions described in clause (X)(i), above), (iii) pay interest and fees that become due under the Stadco Loan, and (iv) pay all other fees, costs and expenses incurred or payable by Stadco tinder the Authority Loan; and (Z) without duplication, to pay (i) Interest and fees that become due under the Senior Secured Facility, and (ii) all other fees, costs and expenses incurred or payable by the Borrower tinder the Senior Secured Facility. |
| Conditions Precedent to Effectiveness of Senior Secured Facility: | The Senior Secured Facility will be subject to customary closing conditions, including, without limitation, the conditions precedent referred to in the Commitment Letter and listed on Annex C attached to the Commitment Letter. |
| Conditions Precedent to Each Borrowing: | Each borrowing under the Senior Secured Facility will be subject to conditions that are usual and customary for project financings of this kind and as otherwise agreed to by the Borrower and the Administrative Agent, Including, without limitation: (i) accuracy of representations and warranties, and (ii) absence of any default or event of default. In addition, for each borrowing under the Senior Secured Facility, there shall have occurred a completion of a periodic inspection of the Stadium Project by the Construction Monitor and delivery of a certificate by the Construction Monitor to the Administrative Agent and the Co-Lead Arrangers, together with delivery by the Borrower and the Authority of certain certifications and written evidence in respect of the items and costs for which such borrowing is to be made. |
| Capitalized Interest: | Whenever any amount of interest and fees is due and payable under the Senior Secured Facility and (a) there are undrawn commitments under the Senior Secured Facility, the Administrative Agent will be entitled, in its sole discretion, to make, on behalf of the Borrower, a borrowing under the Senior Secured Facility, or (b) all of the commitments have been drawn, or during the continuance of any default or event of default under the definitive Loan Documents, the Administrative Agent will be entitled, in its sole discretion, to apply any funds on deposit in the Accounts that will be funded under the Pledged Revenues Waterfall, in each case, in the amount necessary to provide for the payment in full in cash of such unpaid amount as and when due, without the necessity of any further approval, authorization or other action of the Borrower, the Authority or Stadco. |
| Design-Build Agreement | On or prior to the Closing Date, (i) the Authority, Stadco, as construction agent, and Turner/Devcon, a joint venture (the "Design-Builder"), shall have entered into a design-build agreement(the "Design Build Agreement") and shall have established an initial guaranteed maximum price for the construction of the Stadium, and (ii) the Design-Builder shall have obtained bids or proposals representing not less than 75% of all subcontracted project costs associated with the Stadium Project. Within 90 days following the Closing Date, the Authority, Stadco, as construction agent, and the Design-Builder shall enter into an amendment to the Design-Build Agreement establishing the guaranteed maximum price ("GMP") for the construction of the Stadium (exclusive of Stadco-controlled tenant improvements), which GMP shall (i) Include all fees and other amounts payable to the Design-Builder and Its affiliates and subcontractors, all costs and expenses for which the Design-Builder or any of Its affiliates or subcontractors is entitled to reimbursement, and an appropriate contingency in an aggregate amount reasonably satisfactory to the Initial Lenders and(ii) not be greater than the initial guaranteed maximum price for the construction of the Stadium unless such excess is funded with cash (which may be advanced to the Authority by Stadco as part of the Stadco Advance). The Design-Builder shall be responsible in certain circumstances to pay liquidated damages pursuant to the Design-Build Agreement. The Construction Monitor will be required to approve material change orders In accordance with provisions to be set forth in the definitive Loan Documents. |
| Stadco Obligation to Fund Cost Overruns: | Pursuant to, and subject to the terms and conditions of, the Disposition and Development Agreement, Stadco is obligated to pay any amount by which the costs of the development and construction of the Stadium Project exceed the amounts available to the Authority to fund such costs. |
| NFL Rights: | The Senior Secured Facility, the Security, the Authority Loan, the Stadco Loan, the Stadco Obligations, the Stadium Lease and the Team Sublease will be subject in all respects to the NFL Constitution, rules and regulations. The Collateral Agent, the Administrative Agent, the Co-Lead Arrangers, the Borrower, the Authority and the Team Parties will enter into a letter agreement with the NFL on the Closing Date (the "NFL Consent Letter") with respect to the Senior Secured Facility, the Security, the Authority Loan, the Stadco Loan, the Stadco Obligations, the Stadium Lease and the Team Sublease. The NFL Consent Letter will (i) impose certain restrictions on the ability of the Collateral Agent and the Lenders to exercise remedies under the Loan Documents, and (ii) permit the NFL under certain circumstances further described therein to seek a purchaser for (a) all assets of the Team and Stadco or (b) the Team and Stadco as a whole. |
| Assignments and Participations: | The Lenders may assign all or any part of their respective shares of the Senior Secured Facility to their affiliates (other than natural persons) or one or more banks, financial institutions or other entities that are eligible assignees (to be defined in the Loan Documents) which, In the case of assignments with respect to the Senior Secured Facility (except in the case of assignments made by or to Goldman Sachs), are reasonably acceptable to the Administrative Agent, the Borrower, the Authority and Stadco, such consents not to be unreasonably withheld or delayed; provide that the Borrower, the Authority and Stadco shall be deemed to have consented to any such assignment unless It shall have objected thereto by written notice to the Administrative Agent within 5 business days after having received written notice thereof. Upon such assignment, such affiliate, bank, financial institution or entity will become a Lender for all purposes under the Loan Documents; provided that assignments made to affiliates and other Lenders will not be subject to the above described consent or minimum assignment amount requirements. A $3,500 processing fee will be required in connection with any such assignment, with exceptions to be agreed. The Lenders will also have the right to sell participations, without restriction, subject to customary limitations on voting rights, in their respective shares of the Senior Secured Facility. |
| Requisite Lenders: | Amendments and waivers will require the approval of Lenders (other than Defaulting Lenders (as such term will be defined in the definitive Loan Documents) holding more than 50% of total commitments or exposure under the Senior Secured Facility ("Requisite Lenders"), provided that, in addition to the approval of Requisite Lenders, the consent of each Lender directly and adversely affected thereby will be required with respect to matters relating to (a) increases in the commitment of such Lender, (b) reductions of principal, interest, fees or premium, (c) extensions of final maturity or the due date of any amortization, interest, fee or premium payment (d) certain collateral issues and (e) the definition of Requisite Lenders. |
| Yield Protection: | The Senior Secured Facility will contain customary provisions (a) protecting the Lenders against Increased costs or loss of yield resulting from changes in reserve, capital adequacy and capital requirements (or their interpretation), illegality, unavailability and other requirements of law and from the imposition of or changes in certain withholding or other taxes and (b) indemnifying the Lenders for "breakage costs" incurred in connection with, among other things, any prepayment of a Eurodollar Rate loan on a day other than the last day of an interest period with respect thereto. For all purposes of the Loan Documents, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines and directives promulgated thereunder and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case, pursuant to Basel III, shall be deemed introduced or adopted after the date of the Loan Documents. The Senior Secured Facility will provide that all payments are to be made free and clear of any taxes (other than franchise taxes and taxes on overall net income), Imposts, assessments, withholdings or other deductions whatsoever. Lenders will furnish to the Administrative Agent appropriate certificates or other evidence of exemption from U.S. federal tax withholding. |
| Indemnity: | The Senior Secured Facility will provide customary and appropriate provisions relating to indemnity and related matters in a form reasonably satisfactory to the Co-Lead Arrangers, the Administrative Agent and the Lenders. |
| Governing Low and Jurisdiction: | The Senior Secured Facility will provide that the Borrower will submit to the exclusive jurisdiction and venue of the federal and state courts of the State of New York (except to the extent the Collateral Agent requires submission to any other jurisdiction in connection with the exercise of any rights under any security document or the enforcement of any judgment) and will waive any right to trial by jury. New York law will govern the Loan Documents, the Authority Loan documents and the Stadco Loan documents, except with respect to certain security documents where applicable local law is necessary for enforceability or perfection. |
| Counsel to the Co-Lead Arrangers, Administrative Agent and Collateral Agent: | Winston & Strawn LLP. |
The foregoing is intended to summarize certain basic terms of the Senior Secured Facility, it is not intended to be a definitive list of all of the requirements of the Lenders in connection with the Senior Secured Facility .
This Summary of Conditions Precedent outlines certain of the conditions precedent to the Senior Sectored Facility referred to in the Commitment Letter; of which this Annex C is a part. Certain capitalized terns used herein are defined in the Connitnent Letter.
The Authority shall
The Company shall
