2023 Council Appointments to Outside Agency Committees
OUTSIDE AGENCY COMMITTEES (Outside Agency responsible for preparing and posting the agendas for the meetings).
1. Association of Bay Area Governments (ABAG) (General Assembly):
Date: Meetings held once a year
Time: From approximately 9:00 a.m. to 3:00 p.m.
Location: TBD
Contact: [email protected] Phone: (415) 820-7913 Councilmember: Kevin Park Alternate: Anthony Becker
Staff Member: Director of Community Development
Established in 1961 to protect local control, planning for the future and promoting cooperat ion in areawide issues. No stipend for attendee.
2. Bay Area Water Supply and Conservation Agency (BAWSCA):
Date: Meetings held every odd numbered month (January, March, May, July, September, November) on the third Thursday of the month Time: 6:30 p.m.
Location: Locations may rotate central to the three-county district Contact: Nicole Sandkulla, CEO
Lourdes Enriquez, Assistant
[email protected]
Phone: (650) 349-3000
Councilmember: Karen Hardy
Staff Member: Director of Water and Sewer Utilities
Established in February 2003 to allow the City to have a greater voice in planning and funding of improvements in the Hetch-Hetchy regional water supply system. The BAWSCA term is a four-year (and has only one representative (no alternate). $100 stipend for meeting attendance. The appointment of Councilmember Hardy will be for a four-year term beginning July 1, 2023 and ending on June 30, 2027.
3. Caltrain Modernization Local Policymaker Group (CalMod):
Date: Meets monthly on the fourth Thursday; except in December, meets on the third Thursday
Time: 5:30 p.m. – 7:30 p.m.
Location: Via Zoom or additional location, if any, TBD
Contact: [email protected] Phone: (650) 730-6172
Councilmember: Anthony Becker Alternate: Raj Chahal
Staff Member: Director of Public Works (advisor only, does not attend meetings) Established by Caltrain Joint powers Board for Caltrain modernization/electrification. Members represent cities along the Caltrain corridor. No stipend for attendee.
4. Cities Association of Santa Clara County:
Contact: Audin Leung, Board Clerk
P.O. Box 3114, Los Altos, CA 95024
[email protected]
Phone: (408) 314-7440
A. Board of Directors:
Date: Meets on the second Thursday of every month, except in July Time: 7:00 p.m.
Location: Sunnyvale City Hall, 456 West Olive Avenue, Sunnyvale Councilmember: Kathy Watanabe Alternate: Kevin Park
Staff Member: City Manager or Assistant City Manager
City of
Santa Clara
The Center of What's Possible
Updated 3-28-23
No stipend for attendee.
B. City Selection Committee:
Date: Meets on call
Time: 6:45 p.m. (Immediately before the Board of Directors meeting) Location: Sunnyvale City Hall, 456 West Olive Avenue, Sunnyvale Mayor: Lisa Gillmor Alternate: Designee as needed
Staff Member: City Manager or Assistant City Manager
Established to promote cooperation among the fifteen cities of Santa Clara County and to promote legislative action that will affect local control. The membership of the City Selection Committee shall be the Mayor or the Mayor’s designee.
C. Legislative Action Committee:
Date: Meets on call
Time: 6:45 p.m. (Immediately before the Board of Directors meeting) Location: Sunnyvale City Hall, 456 West Olive Avenue, Sunnyvale Councilmember: Kathy Watanabe Alternate: Suds Jain
Staff Member: City Manager or Assistant City Manager
5. City/Mission College Liaison Committee:
Date: Meets on call twice a year
Time: TBD
Location: Alternates between Santa Clara City Hall and Mission College Contact: Mission College President’s Secretary
[email protected] or
Executive Assistant to the City Manager
[email protected]
Phone: (408) 855-5123
(408) 615-2250
Councilmembers Karen Hardy (Chair), Lisa Gillmor, Anthony Becker Alternate: Raj Chahal Staff Members: City Manager, Director of Community Development, Director of Parks and Recreation
Established on-going communication and review of joint programs with Mission College. The Mission College President and two board members participate on the Committee. No stipend for attendee.
6. City/School Liaison Committee (Santa Clara Unified School District):
Date: Meets first Wednesday every other month beginning January Time: 11:45 a.m.
Location: Alternates between Santa Clara City Hall and Santa Clara Unified School District Contact: City Manager’s Office or
SCUSD Superintendent
Phone: (408) 615-2210
(408) 423-2006
Councilmembers: Lisa M. Gillmor (Chair), Kathy Watanabe, Raj Chahal
Alternate: Jain
Staff Members: Assistant City Manager, Director of Parks and Recreation, Chief of Police Established on-going communication and coordination of joint projects/programs between City officials and SCUSD officials. The School Board representatives and School Superintendent are members of the Committee. No stipend for attendee.
7. Grand Boulevard Initiative Task Force/El Camino Real:
Date: In lieu of regular meetings, there will be annual convening(s) on specific topics Time: TBD
Location: TBD
Contact: Dave Pape, SamTrans Phone: (650) 508-6210
Councilmember: Raj Chahal Alternate: Suds Jain
Staff Member: Director of Community Development
Joint Venture Silicon Valley Network/Peninsula Policy Partnership formed the Task Force for the purpose of looking for ways to raise the status of the El Camino Real to a world-class boulevard with
Updated 3-28-23
special attention to the aesthetic, safety and interjurisdictional issues. No stipend for attendee.
8. Human Trafficking Commission:
Date: Meetings held once per year, generally at the end of the year (November) Time: 1:00 p.m.
Location: Board of Supervisors’ Chambers, County Government Center, 70 West Hedding Street, San Jose
Contact: County of Santa Clara, Deputy Board Clerk, [email protected] Phone: (408)299-5083 or 408-299-5001
Councilmember: Kathy Watanabe Alternate: Kevin Park
Staff Member: Pat Nikolai, Chief of Police
The Human Trafficking Commission was established on April 29, 2014 to investigate the nature and scope of human trafficking in the County, including both labor and sex trafficking; identify model victim-centered policies, services, and preventative measures to address this issue; make legislative and policy recommendations to the Santa Clara County Board of Supervisors; support the apprehension and prosecution of traffickers; and collaborate with partners regionally, nationally, and internationally to share information and strategies for ending human trafficking. No stipend for attendee.
9. Northern California Power Agency (NCPA):
Date: Meets most months, fourth Thursday of every month Time: Typically meets at 9:30 a.m.
Location: Rotating NCPA Cities (half in Roseville)
Contact: NCPA Phone: (916) 781-4202
Councilmember: Suds Jain Alternate: Kathy Watanabe
Staff Members: City Manager, Assistant City Manager, Chief Electric Utility Officer, Assistant Director of Electric Utility, Electric Division Manager.
10. Police Activities League (PAL):
Date: Meets second Wednesday of every month
Time: 7:00 p.m.
Location: Police Department Community Room, 601 El Camino Real, Santa Clara Contact: [email protected]
Councilmember: Lisa M. Gillmor Alternate: Kathy Watanabe Staff Members: PAL Executive Director, Chief of Police
Founded and incorporated in 1970 as a nonprofit organization to provide a place where the youth of the City may enjoy educational and social benefits and athletic activities under competent supervision.
The organization is managed by a board of directors comprised of volunteers.
11. Peninsula Division of the League of California Cities:
Date: Meets four times per year. Additionally, the Peninsula Division holds a “Legislative Day” in April of each year in Sacramento
(Invitations sent out quarterly.)
Location: Alternating between San Mateo and Santa Clara Counties Contact: Seth Miller Phone: (415) 595-8629
Councilmember: Kevin Park Alternate: Suds Jain
Staff Member: City Manager
Established to encourage greater participation in the Division’s activities, thereby creating a strong and unified voice for cities in the Peninsula Division. The responsibilities of the liaison include keeping the Council informed about and engaged in the Division’s legislative activities, to provide periodic League updates at Council meetings and to attend Division and League events whenever possible.
No stipend for attendee.
Updated 3-28-23
12. Joint Recycled Water Policy Advisory Committee:
Date: Meets third Thursday in April and as needed
Location: Alternates annually between San Jose City Hall (even years) and the Santa Clara Valley Water District Headquarters, San Jose (odd years) Contact: Jeff Provenzano, City of San Jose
Environmental Services
Phone: (408) 277-3288
Councilmember: Karen Hardy Alternate: Kathy Watanabe
Staff Member: Director of Water and Sewer Utilities
Established in 2010 to review and advise the Santa Clara Water District and the City of San Jose (lead agency for the San Jose/Santa Clara Water Pollution Control Plant) on all policy issues related to recycled water including operations and capital improvements.
13. Recycling and Waste Reduction Commission of Santa Clara County (RWRC):
Date: Meets the fourth Wednesday of every even numbered month except the December meeting (date to be determined due to holidays) Time: 5:30 p.m.
Location: Board of Supervisors’ Chambers, County Government Center, 70 West Hedding Street, 1st Floor, San Jose 95112
Contact: [email protected] Phone: (408) 282-3180 Councilmember: Kathy Watanabe
Staff Member: Deputy Director of Public Works
Established per requirements of the California Integrated Waste Management Act of 1989 (AB 939) and subsequent amending legislation in order to coordinate and provide input to the countywide solid waste management program. Membership appointed through the City Selection Committee of Santa Clara County Cities’ Association. No stipend for attendee.
14. San Francisco Bay Area Regional Water System Financing Authority:
Date: Meets once a year, in January
Time: Immediately prior to the BAWSCA Board Meetings at 6:30pm Location: San Mateo Main Library, Oak Room, 55 West 3rd Avenue, San Mateo, CA 94402 Contact: Nicole Sandkulla, CEO,
Lourdes Enriquez, Assistant
[email protected]
Phone: (650) 349-3000
Councilmember: Karen Hardy
Staff Member: Director of Water and Sewer Utilities
Established February 2003 to allow the City to have a greater voice in planning and funding of improvements in the Hetch-Hetchy regional water supply system. The Regional Financing Authority is a parallel organization with the Bay Area Water Supply and Conservation Agency (BAWSCA). Same stipend for this and BAWSCA meeting attendance. The appointment of Councilmember Hardy will be for a four-year term beginning July 1, 2023 and ending on June 30, 2027.
15. San Jose/Santa Clara Clean Water Financing Authority:
Date: Meets quarterly (February, if necessary), May, August, and November) on the second Thursday of the month
Time: 3:30 p.m.
Location: San Jose City Hall, 200 East Santa Clara Street, Room T-1352, San Jose
Contact: [email protected] Phone: (408) 535-7010 Councilmembers: Kathy Watanabe, Kevin Park Alternate: Suds Jain Staff Member: Director of Water and Sewer Utilities
Updated 3-28-23
16. San Jose/Santa Clara Treatment Plant Advisory Committee (TPAC):
Date: Meets second Thursday every month (third Thursday in May, due to budget; no meeting in July)
Time: 4:00 p.m. (if there are other meetings, this group would meet last) Location: San Jose City Hall, City Manager’s Office, 17th floor, Room 1734, San Jose Contact: April Kellett, City of San Jose
Environmental Services
Phone: (408) 975-2547
Councilmembers: Kathy Watanabe, Karen Hardy Alternate: Lisa Gillmor Staff Member: Director of Water and Sewer Utilities
Reviews and advises the City of San Jose City Council on all issues relating to the operation and capital improvement of the San Jose/Santa Clara Water Pollution Control Plant. $100 stipend for regular meeting attendance.
17. Santa Clara County Expressway Plan 2040 Policy Advisory Board (PAB):
Date: Meets as needed
Time: TBA
Contact: Ellen Talbo, County of Santa Clara,
County Transportation Planner
Phone: (408) 573-2482
Councilmember: Kathy Watanabe Alternate: Karen Hardy
Staff Member: Director of Public Works (Advisor only, does not attend meetings) The Santa Clara County Comprehensive Expressway Planning Study Policy Advisory Board (PAB) will provide a forum for policy input from elected officials for updating the Expressway Study’s Implementation Plan originally adopted in August 2003. No stipend for attendee.
18. Santa Clara Sister Cities Association
Date: Meets as needed
Time: 7:00 p.m.
Contact: Margaret Horoszko, President, [email protected] Location: Headen Inman House for Board Meetings
Councilmember: Kevin Park Alternate: Kathy Watanabe
Staff Member: City Manager’s Office
The Santa Clara Sister Cities Association, an independent non-profit organization, assists the City in exchange activities with Coimbra, Portugal, Izumo, Japan and Limerick, Ireland -- Santa Clara's three sister-cities. The Council appoints a representative to serve as liaison to the Association.
19. Santa Clara University Liaison/Neighborhood-University Relations Committee (NURC):
Date: Meets three times annually on Monday evenings during the academic year Time: 7:00 p.m.
Location: Mission Branch Library
Councilmembers: Raj Chahal (Chair), Kevin Park, Suds Jain Alternate: Lisa Gillmor Staff Members: City Manager, Director of Community Development, Code Enforcement Technician, Chief of Police
Established in 1990 to review student housing issues (formerly Student Housing Committee).
Established a forum for on-going communication and problem solving among City officials, neighborhoods, property owners and Santa Clara University officials and students. Santa Clara University/City Liaison Committee and NURC were combined because of the similar topics that the two committees cover. Three NURC meetings will be held per year (October/November, February and April) for neighborhood issues, and the STAFF TASK FORCE and the CITY-NEIGHBORHOOD FORUM will no longer be held (pursuant to Council action of June 23, 2009). A University-City Subcommittee comprised of NURC City Councilmembers, University officials and City Executive Team Members will meet as needed.
Updated 3-28-23
20. Santa Clara Valley Transportation Authority (SCVTA):
Contact: Board Secretary, SCVTA Phone: (408) 321-5680
A. Board of Directors:
Date: Meets first Thursday of every month (except July) Time: 5:30 p.m.
Location: Board of Supervisors Chambers, 70 West Hedding Street, San Jose North East Cities Group
Position includes appointment to one of three sub-committees appointed by the VTA Board of Directors. Small Cities Group representation is a 2-year rotating term with two member cities and one alternate city. The Small Cities Group is comprised of the Cities of Milpitas, Sunnyvale, and Santa Clara.
Councilmember: Suds Jain
Staff Member: Director of Public Works
Sets VTA policy; establishes committees to give advice on policy matters and provide in-depth review. $100 stipend for meeting attendance, per day. The VTA Administrative Code states that appointments to standing committees are approved by the VTA Board of Directors based on the recommendations of the current chairperson. At the first meeting in January, the Board shall approve the members and chairpersons of all standing committees of the Board based on recommendations for these positions provided by the Board Chairperson. The term of each appointment shall be for one year.
B. Policy Advisory Committee:
Date: Meets on the second Thursday of every month
Time: 4:00 p.m.
Location: VTA Offices, 3331 North First Street, San Jose Building B, Conference Room B-106
Councilmember: Raj Chahal Alternate: Kevin Park
Ensures that all jurisdictions within the County have access to development of VTA's policies. No stipend for attendee.
21. Santa Clara Valley Water Commission (SCVW):
Date: Meets quarterly in January, April (2nd Wednesday), July, and October on the fourth Wednesday of the month
Time: 12:00 p.m.
Location: SCVW District Headquarters, 5700 Almaden Expressway, San Jose Contact: Glenna Brambill
Santa Clara Valley Water District
Phone: (408) 630-2408
Councilmember: Karen Hardy Alternate: Kathy Watanabe
Staff Member: Director of Water and Sewer Utilities
Established by the Santa Clara Valley Water District Board of Directors to review and advise on issues relating to water supply and water pricing. No stipend for attendee.
22. Silicon Valley Animal Control Authority (SVACA):
Date: Meets on the fourth Wednesday of every other month beginning in January Time: 8:30 a.m.
Location: SVACA Headquarters, 3370 Thomas Road, Santa Clara Contact: Heidi Springer Phone: (408) 764-0350
Councilmember: Raj Chahal Alternate: Anthony Becker
Staff Member: Police Department Patrol Lieutenant
Established in 2000 to provide animal control field services and shelter services for the participating cities. The Board is comprised of four members representing the participating cities of Santa Clara, Campbell, Monte Sereno and Mountain View. No stipend for attendee.
Updated 3-28-23
23. Silicon Valley Regional Interoperability Authority (SVRIA) Board of Directors:
Date: Meets every other month - must meet annually a minimum of two regular meetings
Time: 5:00 p.m.
Location: Santa Clara Police Department, 601 El Camino Real, Santa Clara Contact: Eric Nickel
Executive Director SVRIA
Phone: (408) 615-5571
Councilmember: Karen Hardy
Primary: Sunnyvale is the primary member and Santa Clara is the alternate member until June 30, 2022 (Santa Clara alternates primary member position with Sunnyvale and Milpitas).
Staff Member: Chief of Police
In 2001, several agencies in the area established the Silicon Valley Regional Interoperability Project to design an implementation strategy for an interoperable communications network; purchase a radio and data communications system or network; integrate this system or network with other nearby regional public safety communications systems; participate in regional interoperability; and to jointly apply for grants and funding to facilitate these goals. In 2010, a Joint Powers Agreement was established to implement and operate the SVRIA and other projects. The nine-member Board of Directors of the JPA consists of elected officials from different geographic regions of the County and will serve as the governing body for the agreement. The City of Santa Clara is represented in the “Central County Agencies” that also includes Sunnyvale and Milpitas. No stipend for attendee.
24. Stevens Creek Corridor Steering Committee
Date: Meets as-needed basis
Time: Typically meets at 11:00 a.m.
Location: Locations alternate
Contact: City of San Jose – District 1 Phone: (408) 535-4901 Councilmembers: Lisa Gillmor, Anthony Becker
Primary: City of San Jose – Council District 1 Councilmember Rosemary Kamei In 2019, the cities of Cupertino, Santa Clara, San José, and Santa Clara County adopted resolutions in support of a vision study of the Stevens Creek Corridor, formalizing interest in creating a common vision for high-capacity transit along the Stevens Creek Corridor that will improve mobility and its interrelationship with walking, biking, placemaking, and enhancing the quality of life for all community members in a seamless manner. A steering committee of elected officials from the participating jurisdictions formed to provide a forum for their elected representatives to meet, discuss and provide direction on a common vision for the Stevens Creek Corridor.
25. Triton Museum of Art Liaison Committee:
Date: Meets generally on the fourth Thursday of every month Time: 4:30 p.m. – 5:30 p.m.
Location: Triton Museum Boardroom, 1505 Warburton Avenue, Santa Clara Contact: Triton Museum of Art Phone: (408) 247-3754
Councilmember: Kevin Park Alternate: Raj Chahal
Staff Member: City Manager’s Office, Management Analyst The Triton Museum of Art is an independent non-profit organization. The Council appoints a representative to serve as a liaison to the Triton Museum Board. The participation of a Councilmember at the Triton Museum Board meetings will further the communication and knowledge of the City’s support. No stipend for attendee.
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
23-414 Agenda Date: 4/4/2023
REPORT TO STADIUM AUTHORITY
SUBJECT
Action on a Resolution of the Santa Clara Stadium Authority Authorizing the Deposit of Stadium Authority Funds Into the State's Local Agency Investment Fund and Authorizing Staff to Deposit and Withdraw These Funds
COUNCIL PILLAR
Enhance Community Engagement and Transparency
BACKGROUND
The Santa Clara Stadium Authority (Stadium Authority) will receive monies to fund the Renovation/Demolition reserve starting in fiscal year 2023/24. The Stadium Authority expects to transfer its annual excess revenue to the Renovation/Demolition reserve each year until it reaches $70 million. The monies in the Renovation/Demolition reserve are earmarked for future Levi Stadium’s renovation and demolition costs as it is restricted for that purpose.
The Stadium Authority recommends participation in the Local Agency Investment Fund (LAIF). LAIF is an investment pool administered by the Treasurer of the State of California in which cities and other local governmental entities may invest monies which are not immediately needed. By pooling the cash deposited by these local agencies, LAIF staff is able to invest through a diversified portfolio with savings on security purchase costs due to economies of scale. The pool invests in high quality securities to ensure the portfolio safety; however, the portfolio is managed so that any agency can withdraw up to all of its deposits on any given day, subject to certain restrictions. LAIF staff has managed to achieve exceptional yields over the life of the investment pool considering its emphasis on safety and liquidity.
California Government Code section 16429.3 protects the local governmental entities’ funds from seizure, impoundment, loan or transfer by the State of California. If the State fails to adopt a budget, California Government Code section 16429.4 protects the rights of participating local agencies by allowing the withdrawal funds upon demand. Such rights cannot be “altered, impaired or denied in any way” by any State official or State agency under this code section.
DISCUSSION
The Stadium Authority is projected to receive approximately $7 million for the Renovation/Demolition reserve in fiscal year 2023/24 and staff recommends depositing these funds into a LAIF account, as it is the best short-term cash management vehicle which provides safety, liquidity, and yield. In the meantime, Staff will be able to evaluate other options to maximize yield and protect the funds including potential future plans to issue a Request for Proposal (RFP) to procure an external investment manager to manage the Stadium Authority’s monies.. .
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23-414 Agenda Date: 4/4/2023
To participate in LAIF, a resolution adopted by the agency’s governing board is required to be filed with the State Treasurer’s Office, authorizing staff to deposit and withdraw funds. The proposed resolution grants authority to the Stadium Authority’s Executive Director, Assistant Executive Director, and Treasurer or their successors to initiate investment-related transactions with LAIF. These are the staff responsible for managing cash flow.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is an administrative activity that will not result in direct or indirect changes in the environment.
FISCAL IMPACT
This action does not have any fiscal impact on budget, except for staff time.
COORDINATION
This report has been coordinated with the Stadium Authority Counsel Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Adopt a Resolution Authorizing the Deposit of Stadium Authority Funds into the State's Local Agency Investment Fund and Authorizing Staff to Deposit and Withdraw These Funds Reviewed by: Kenn Lee, Treasurer
Approved by: Office of the Executive Director
ATTACHMENTS
1. Resolution Authorizing the Deposit of Stadium Authority Funds into the State's Local Agency Investment Fund and Authorizing Staff to Deposit and Withdraw These Funds City of Santa Clara Page 2 of 2 Printed on 3/30/2023
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Santa Clara Stadium Authority Resolution/Local Agency Investment Fund Page 1 of 2 Rev: 11/22/17
RESOLUTION NO. _____ (STADIUM AUTHORITY)
A RESOLUTION OF THE SANTA CLARA STADIUM AUTHORITY
AUTHORIZING THE DEPOSIT OF STADIUM AUTHORITY FUNDS
INTO THE STATE'S LOCAL AGENCY INVESTMENT FUND AND
STADIUM AUTHORITY STAFF TO DEPOSIT AND WITHDRAW
THESE FUNDS
BE IT RESOLVED BY THE SANTA CLARA STADIUM AUTHORITY AS FOLLOWS:
WHEREAS, Government Code section 16429 et seq, provides that a local governmental official, with the consent of the governing body of that agency, having money in its treasury not required for immediate needs, may remit the money to the Treasurer for deposit in the Local Agency Investment Fund for the purpose of investment; and
WHEREAS, the Board of the Santa Clara Stadium Authority has been presented with facts that there is money within the treasury of the Santa Clara Stadium Authority which is not required for immediate needs of the authority and that the deposit of money within the Local Agency Investment Fund for the purpose of investment is in the best interests of the Santa Clara Stadium Authority.
NOW THEREFORE, BE IT FURTHER RESOLVED BY THE SANTA CLARA STADIUM AUTHORITY AS FOLLOWS:
1. The Board of the Santa Clara Stadium Authority finds that there is money within the treasury of the Santa Clara Stadium Authority which is not required for immediate needs of authority and that the deposit of money within the Local Agency Investment Fund and that the deposit of money within the Local Agency Investment Fund for the purpose of investment is in the best interests of the Santa Clara Stadium Authority.
2. The Board of the Santa Clara Stadium Authority authorize the following Santa Clara Stadium Authority officers and their successors in office to order the deposit or withdrawal of monies in the Local Agency Investment Fund and may execute and deliver any and all documents necessary or advisable in order to effectuate the purposes of this resolution and the transactions contemplated herein:
Santa Clara Stadium Authority Resolution/Local Agency Investment Fund Page 2 of 2 Rev: 11/22/17
Executive Director - Vacant
Treasurer - Kenn Lee
Assistant Executive Director - Nadine Nader
3. This resolution shall remain in full force and effect until rescinded by the Board of the Santa Clara Stadium Authority by resolution and a copy of the resolution rescinding this resolution is filed with the State Treasurer’s Office.
4. Effective date. This resolution shall become effective immediately.
I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED
AND ADOPTED BY THE SANTA CLARA STADIUM AUTHORITY, AT A REGULAR MEETING THEREOF HELD ON THE 4TH DAY OF APRIL, 2023, BY THE FOLLOWING VOTE:
AYES: BOARD MEMBERS:
NOES: BOARD MEMBERS:
ABSENT: BOARD MEMBERS:
ABSTAINED: BOARD MEMBERS:
ATTEST: ____________________________________________
NORA PIMENTEL, MMC
SECRETARY OF THE STADIUM AUTHORITY
SANTA CLARA STADIUM AUTHORITY
Attachments incorporated by reference: None
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
23-338 Agenda Date: 4/4/2023
REPORT TO STADIUM AUTHORITY BOARD
SUBJECT
Action on a Resolution to Delegate Authority to the Executive Director and the Stadium Authority Counsel to Negotiate and Execute Documents Necessary to Implement Selection of US Bank as the Depositary Bank Under the Deposit and Disbursement Agreement
COUNCIL PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium
BACKGROUND
On March 28, 2012, the Santa Clara Stadium Authority (Stadium Authority), Forty Niners SC Stadium Company, LLC (StadCo), Stadium Funding Trust (Trust), Goldman Sachs Bank USA (Administrative Agent and Collateral Agent), U.S. Bank National Association (US Bank), and Bank of America entered into a Deposit and Disbursement Agreement (DDA) (Attachment 1) to assign US Bank and Bank of America to act as Depositary Banks for the Stadium Funding Trust, StadCo and Stadium Authority. US Bank is the Depositary Bank for both the Stadium Funding Trust and StadCo, while Bank of America is the Depositary Bank for the Stadium Authority. The Depositary Banks are responsible for holding the monies and distributing the funds based on the instruction of the Trustee.
They cannot invest or transfer monies without the Trustee’s request and approval.
On June 19, 2013, the DDA was amended (Attachment 2) to add additional accounts in Article III and assign the Collateral Trustee role from Goldman Sachs Bank USA to US Bank. It defined the role of the Collateral Trustee, which is to act at the direction of the Required Creditors. The amended agreement did not change the terms of the Depositary Banks.
On April 11, 2014, the Stadium Authority, StadCo, the Trust, and US Bank (acting as the Collateral Trustee role) entered into a First Amendment to the DDA (Attachment 3) to define Required Creditors. The Required Creditors are defined as the holders of more than 50% of the sum of various outstanding obligations.
On February 8, 2023, the Stadium Authority received a Notice of Resignation from Bank of America (Attachment 4) to formally resign as the Depositary Bank effective March 27, 2023. Bank of America has made a strategic decision to exit all aspects of the Global Custody and Agency Service line of business including escrow and depository agent roles. Bank of America properly exercised its rights from Section 6.4(a) of the DDA, which states that any Depositary Bank may resign at any time by giving forty-five (45) days’ written notice thereof to the Collateral Trustee, Goldman Sachs Bank USA, the Trust, the Stadium Authority and StadCo, to resign as a Depositary Bank.
Under Section 6.4(c) of the DDA, upon the resignation of a Depositary Bank, the Collateral Trustee (acting at the direction of the Required Creditors and with reasonable consent of the Trust) shall have City of Santa Clara Page 1 of 3 Printed on 3/30/2023
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23-338 Agenda Date: 4/4/2023
the right to appoint a successor Depositary Bank, which shall be an Approved Bank. Both Bank of America and US Bank are Approved Banks that are also currently parties in the agreement.
DISCUSSION
As stated in Section 6.4(c) of the DDA, the Collateral Trustee (US Bank) shall have the right, with reasonable consent of the Trust, to appoint a successor Depositary Bank upon any resignation or removal of a Depositary Bank. Additionally, the successor Depositary Bank shall be an Approved Bank. Bank of America’s resignation triggered the rights under Section 6.4(c) where US Bank owns the sole right to select a successor Depositary Bank, if there is reasonable consent from the Trust.
On March 8, 2023, StadCo informed the Stadium Authority that the Required Creditors expressed an interest in appointing US Bank as the successor Depositary Bank. StadCo is working with the Required Creditors and US Bank to obtain formal approval and assignment of the successor Depositary Bank. The assignment of a new Depositary Bank will require the Stadium Authority to execute pertinent banking documents for the transfer of funds from Bank of America to the new Depositary Bank chosen by the Required Creditors
Bank of America has agreed to continue the service and keep the escrow accounts open until April 7 th. Staff is working with StadCo and US Bank to identify the necessary banking documents to assign US Bank as the successor Depositary Bank. The work is anticipated to be completed on or before April 6th.
Because of the timing of the transition, the ongoing work underway by StadCo to obtain formal approval from the Required Creditors, and the need to transition the Depositary Bank before Bank of America’s April 7th deadline, the delegation of authority to the Executive Director and Stadium Authority Counsel to negotiate and execute documents necessary to implement selection of US Bank as the Depositary Bank is recommended in this report.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of a California Environmental Quality Act (“CEQA”) pursuant to the CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. Furthermore, the action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.
FISCAL IMPACT
The Stadium Authority FY 2023/24 Operating Budget, Other Expenses Budget, contains sufficient funds to cover the cost of the Depositary Bank fees.
COORDINATION
This report has been coordinated with the Executive Director and Stadium Authority Counsel’s Offices.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board City of Santa Clara Page 2 of 3 Printed on 3/30/2023
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23-338 Agenda Date: 4/4/2023
outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Adopt a Resolution to Delegate Authority to the Executive Director and the Stadium Authority Counsel to Negotiate and Execute Documents Necessary to Implement Selection of US Bank as the Depositary Bank Under the Deposit and Disbursement Agreement.
Reviewed by: Kenn Lee, Treasurer
Approved by: Office of the Executive Director
ATTACHMENTS
1. Original Deposit and Disbursement Agreement
2. Amended and Restated Deposit and Disbursement Agreement
3. First Amendment to Deposit and Disbursement Agreement
4. Bank of America Resignation Letter
5. Resolution to Delegate Authority to the Executive Director and the Stadium Authority Counsel to Negotiate and Execute Documents Necessary to Implement Selection of US Bank as the Depositary Bank Under the Deposit and Disbursement Agreement City of Santa Clara Page 3 of 3 Printed on 3/30/2023
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NY: 1372970.24
DEPOSIT AND DISBURSEMENT AGREEMENT
Dated as of March 28, 2012
made by and among
STADIUM FUNDING TRUST
SANTA CLARA STADIUM AUTHORITY,
FORTY NINERS SC STADIUM COMPANY LLC,
GOLDMAN SACHS BANK USA,
as Administrative Agent and Collateral Agent,
Execution Copy
U.S. BANK NATIONAL ASSOCIATION, as a Depositary Bank
and
BANK OF AMERICA, N.A., as a Depositary Bank
ARTICLE I
Section 1.1
Section 1.2
Section 1.3
ARTICLE II
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
Section 2.7
Section 2.8
ARTICLE III
Section 3.1
Section 3.2
Section 3.3
Section 3.4
Section 3.5
Section 3.6
Section 3.7
Section 3.8
Section 3.9
Table of Contents
DEFINITIONS ....................................................... ............................................... 3 Defined Tenns ................................................................................................... 3 UCC Terms ..... .................................................. ............................................... 12 Interpretation ..................................................... ............................................... 12 APPOINTMENT OF DEPOSITARY BANK; CREATION OF ACCOUNTS.13 Appointment of Depositary Bank .................................................................... 13 Procedures Governing Accounts ...................................................................... 13 Creation of Accounts .. ..................................................................................... 14 Deposit Accounts ......................................................................... .................... 16 Accounts as Collateral ........... ...................................................... .................... 16 Control; Precedence of Instructions ................................................................. 18 Subordination of Lien; Waiver of Set-Off ............. .. ................................ ........ 19 Other Representations and Covenants of Depositary Banks ................. .......... 19 ACCOUNTS ................................................................ .............................. ......... 20 Account Diagram; Disbursement Instructions ................... .............................. 20 Trust Construction Account .................................................... ......................... 21 Trust Revenue Account. ................................................................................... 22 Trust Rent and O&M Account.. ................................................................... .... 27 Trust Debt Service Account ........................................ ..................................... 28 Trust Tax Distributions Account .................................................................... .30 Trust Excess Cash Flow Account ...................................... .... ......................... .30 Trust Special Payments Account ..................................................................... 30 Authority Construction Account ......... ............................................................. 31 Section 3.10 Authority Revenue Account ...................... ...................................................... 31 Section 3.11 Authority Ground Lease Rent and O&M Account. ............................ ............. 32 Section 3.12 Authority Excess Borrowings Account .......... ................ ................................. 32 Section 3.13 Authority Liquidated Damages and Insurance Proceeds Account .................. 33 Section 3.14 StadCo Construction Account.. ........................................................................ 33 Section 3.15 StadCo Revenue Account ................................................................................ 34 Section 3.16 StadCo O&M Account ........ .................................................... ......................... 35 NY:1372970.24
Section 3.17 StadCo Tax Distributions Account.. .. .............................................................. 35 Section 3.18 StadCo Liquidated Damages and Insurance Proceeds Account ............... ....... 36 Section 3.19 StadCo Excess Borrowings Account .................. ............................................ .36 ARTICLE IV ACCOUNT INFORMATION AND BALANCES ... ........................................ .36 Section 4.1 Information to Accompany Amounts Delivered to the Depositary Banks; Deposits Irrevocable; Payment Direction .................. ...................................... 36 Section 4.2 Books of Account ........................................................................................... .37 Section 4.3 Account Balance Statements ............................................................................ 37 Section 4.4 Coordination Between Depositary Banks ........................................................ 38 ARTICLE V INVESTMENTS AND VALUATION ........................ ....................................... 38 Section 5.1 Invest:Inents ...................................................................................................... 38 Section 5.2 Income or Gain .................................................................................... ............ 39 Section 5.3 Value ................................................................................................................ 39 Section 5.4 Taxes ....................................................................... ......................................... 39 ARTICLE VI APPOINTMENT AND DUTIES OF THE DEPOSITARY BANK .................. 39 Section 6.1 Powers~ Immunities and Standard of Care ....................................................... 39 Section 6.2 Reliance; Discretionary Matters ..................................................................... .40 Section 6.3 Compensation; Indemnification ...................................................................... .41 Section 6.4 Successor Depositary Bank ............................................................................. .42 Section 6.5 Additional Depositary Banks .......................................................................... .43 ARTICLE VII RIGHTS OF COLLATERAL AGENT .............................................................. 44 Section 7 .1 Rights of Collateral Agent .............................................................................. .44 Section 7.2 Limitation of Liability ..................... ....... ......................................................... .44 Section 7.3 Reliance by the Collateral Agent.. ................................................... ............... .44 Section 7.4 Ambiguity or Inconsistency in CoIJateral Documents with Proposed Actions45 Section 7.5 Knowledge of Event of Default ......................... .... .. .................................... ... .45 ARTICLE VIII EXERCISE OF RIGHTS UNDER SECURITY DOCUMENTS ...................... .46 Section 8.1 Actions Upon an Event of Default.. ..................................... ........................... .46 Section 8.2 Administration of Collateral ...................................................... ..... ................ .46 Section 8.3 Application of Proceeds After Acceleration .................................. .. ............... .46 ARTICLE IX LACK OF RELIANCE ON THE SECURITY AGENTS ................................. .46 11 NY: I 3 72970 .24
Section 9.1 No Reliance on the Security Agents .................. ............... ............................... 46 ARTICLE X MISCELLANEOUS ........................................................................................... 4 7 Section 10.1 Remedies Cumulative; Delay Not Waiver ................ .............................. ......... 47 Section 10.2 Perfection; Further Assurances; Certain Waivers ........................................... .47 Section 10.3 Continuing Assignment and Security Interest .................................. .. .. .... .. ..... 49 Section 10.4 Termination of Security Interest ........................................ ............. ................. 49 Section 10.5 Security Interest Absolute ................ ................ ............................. ................... 50 Section 10.6 Reinstatement.. ................. .......................................................... ........ .............. 51 Section 10. 7 Severability ...................................................................................................... 51 Section 10.8 Survival of Provisions .......... ............. ..... ...................... .............. ................. .. ... 51 Section 10.9 Successions and Assignments ......................................................................... .51 Section 10.10 Headings ........................................................................................................ .. 52 Section 10.11 Entire Agreement ...................... ... ...................................... ................... ...... ..... 52 Section 10.12 Counterparts ......... ............................................................................................ 52 Section 10.13 Limitation ofLiability ........................... ................................. .......................... 52 Section 10.14 APPLICABLE LAW ..... .... ....... .... ............................................ .. ..................... 52 Section 10.15 CONSENT TO JURISDICTION ..................................................................... 52 Section 10.16 WAIVER OF JURY TRIAL. ......... .... .............................................................. 53 Section I 0.17 Expenses .......................................................................................................... 54 Section 10.18 Agreement for Benefit of Parties Hereto ......................................................... 54 Section 10.19 No Warranties .................... .............................................................................. 54 Section 10.20 Notices ............................................................................................................. 54 Section 10.21 Transfers .......................................................................................................... 55 Section 10.22 No Impairments of Other Rights ...................................................................... 55 Section 10.23 Amendment; Waiver ........................................................................................ 55 Section 10.24 Incumbency Certificates; Authorized Persons ....................... .......................... 55 Section l 0.25 Termination ............................................................................................... ....... 55 Section 10.26 Limitation of Liability of Trustee ..................................................... ............... 55 Section 10.27 NFL Requirements ........................................................................................... 56 Section 10.28 Force Majeure .................................................................................................. 56 Section 10.29 U.S.A. Patriot Act ...................... : .............. ....................................................... 56 1ll
NY:1372970.24
EXHIBITS
Exhibit A - Account Names and Numbers
Exhibit B - Accounts and Funds Flow Diagram
Exhibit C- Credit Agreement
Exhibit D-Form of Disbursement Instruction
Exhibit E - Form of Authority Withdrawal Certificate
Exhibit F - Form of StadCo Withdrawal Certificate
Exhibit G- Form of SBL Proceeds Certificate
IV
NY:1372970.24
This DEPOSIT AND DISBURSEMENT AGREEMENT, dated as of March 28, 2012, is made and entered into by and among STADIUM FUNDING TRUST, a Delaware statutory trust (the "Trust"), SANTA CLARA STADIUM AUTHORITY, a California joint exercise of powers entity (the "Authority"), FORTY NINERS SC STADIUM COMPANY LLC, a Delaware limited Jiability company ("StadCo"), GOLDMAN SACHS BANK USA, not in its individual capacity but solely in its capacity as administrative agent for the Lenders referred to below (together with any successor administrative agent appointed pursuant to Section 9. 7 of the Credit Agreement, the "Administrative Agent"), GOLDMAN SACHS BANK USA, not in its individual capacity but solely in its capacity as collateral agent for the Secured Parties referred to below (together with any successor collateral agent appointed pursuant to Section 9.7 of the Credit Agreement, the "Collateral Agent"), U.S. BANK NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely in its capacity as a depositary bank and a Securities Intermediary ("U.S. Banlc"), BANK OF AMERICA, N.A., not in its individual capacity but solely in its capacity as a depositary bank and a Securities Intermediary ("BofA"), and each other Approved Bank who shall become a party hereto by execution of a joinder agreement or otherwise pursuant to Section 6.5 hereof (U.S. Bank, BofA and each such Approved Bank, together with any successor in such capacities appointed pursuant to Section 6.4 hereof, each a "Depositary Bank"). The Trust, the Authority, StadCo, the Administrative Agent, the Collateral Agent and the Depositary Banks are sometimes collectively referred to as the "Parties" and each individually as a "£filty". Capitalized terms used herein and not otherwise defined shall be defined as provided in Sections 1.1 and 1.2.
RECITALS
WHEREAS, the Trust has entered into a Credit Agreement, dated as of the Closing Date (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), made by and among (i) the Trust, (ii) the Lenders party thereto from time to time (iii) Goldman Sachs Bank USA, as Administrative Agent and Collateral Agent, (iv) Goldman Sachs Banlc USA, Merrill, Lynch, Pierce, Fenner & Smith Incorporated and U.S. Bank National Association, as Co-Lead Arrangers and Joint Bookrunners, (v) Bank of America, N.A. and U.S.
Bank National Association, as Co-Syndication Agents and (vi) PNC Bank, N.A., JPMorgan Chase Bank, N.A., OneWest Bank, FSB and Citibank, N.A., as Co-Documentation Agents, pursuant to which the Lenders have agreed to make Term Loans to the Trust, the proceeds of which will be used by the Trust to make the Authority Loan and the StadCo Loan and for the other purposes set forth more fully in the Credit Agreement; WHEREAS, concurrently with the execution hereof, as security for the Obligations of the Trust to (i) the Agents and the Lenders under the Credit Documents and (ii) any Lender Counterparty under any Hedge Agreement, the Trust will enter into the Collateral Documents, including without limitation, that certain Pledge and Security Agreement between the Trust and the Collateral Agent (the "Trust Pledge and Security Agreement"); WHEREAS, concurrently with the execution hereof the Authority has entered into the Authority Credit Agreement with the Trust and Goldman Sachs Bank USA, as administrative agent, pursuant to which the Trust has agreed to make the Authority Term Loans to the Authority, the proceeds of which will be used by the Authority to finance a portion of the costs 1 NY:1372970.24
--------------- - ---------- -- --- --·
of the design, development and construction of the Stadium and for the other purposes set forth more fully in the Authority Credit Agreement;
WHEREAS, concurrently with the execution hereof StadCo has entered into the StadCo Credit Agreement with the Trust and Goldman Sachs Bank USA, as administrative agent, pursuant to which the Trust has agreed to make the StadCo Term Loans to StadCo, the proceeds of which will be used by StadCo to finance a portion of the costs of the development and construction of the Stadium and for the other purposes set forth more fully in the StadCo Credit Agreement;
WHEREAS, concurrently with the execution hereof, as security for the obligations of (i) the Authority under the Authority Credit Agreement and any Authority Hedge Agreement and (ii) StadCo under the StadCo Credit Agreement and any StadCo Hedge Agreement, respectively, each of the Authority and StadCo will enter into separate pledge and security agreements (the "Authority Pledge and Security Agreement", the "StadCo Pledge and Security Agreement'' and collectively, the "Pledge and Security Agreements") in favor of the Trust, as lender, under the Authority Credit Agreement and the StadCo Credit Agreement, and as Authority Lender Counterparty and StadCo Lender Counterparty, under any Authority Hedge Agreement or StadCo Hedge Agreement, as applicable, and the Trust will collaterally assign all of its rights, title and interest in and to such Pledge and Security Agreements in favor of the Collateral Agent for the benefit of the Secured Parties as security for the Trust's Obligations under the Credit Agreement and any Hedge Agreements;
WHEREAS, the Trust has agreed to secure all of the Secured Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority Lien on the Account Collateral;
WHEREAS, the parties hereto desire to enter into this Agreement (a) to appoint each of U.S. Bank and BofA, and each other Approved Bank that becomes a party hereto, each as a Depositary Bank hereunder, (b) to authorize the Collateral Agent to hold certain Collateral and (c) to set forth certain procedures for the deposit, investment and disbursement of (i) the Term Loans made by the Lenders under the Credit Agreement, (ii) the Authority Term Loans made by the Trust under the Authority Credit Agreement, (iii) the StadCo Term Loans made by the Trust under the StadCo Credit Agreement, (iv) all Revenues (as defined below), (v) all other receipts of the Trust, the Authority and StadCo and all amounts generated thereby, in each case, except as specifically excluded pursuant to the terms of this Agreement and (vi) all proceeds of the foregoing; and
WHEREAS, it is a condition precedent to the Credit Agreement that the Trust shall have entered into this Agreement and shall have granted the security interest and made the pledge and assignment contemplated hereby.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the agreements, provisions and covenants herein contained, and to induce (i) the Lenders to enter into the Credit Agreement and to make the Credit Extensions described therein, (ii) the Trust to enter into the 2 NY:1372970-24
Authority Credit Agreement and to make the Authority Credit Extensions described therein and (iii) the Trust to enter into the StadCo Credit Agreement and to make the StadCo Credit Extensions described therein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement the following terms have the following meanings (terms defined in the singular to have the same meaning when used in the plural and vice versa). All capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement as in effect on the date hereof, a copy of which is attached hereto at Exhibit C. All references in this Agreement to sections and exhibits are to sections and exhibits in or to this Agreement unless otherwise specified. "Account Collateral" has the meaning assigned to that term in Section 2.5(c). "Accounts" has the meaning assigned to that term in Section 2.3. "Administrative Agent" has the meaning assigned to that term in the first paragraph of this Agreement.
"Administrative Agent Claims" means all obligations of the Trust, the Authority and StadCo now or hereafter existing, to pay fees, costs, expenses and other amounts to the Administrative Agent under the Credit Documents and any instruments or documents executed and delivered pursuant thereto.
"Agreement" means this Deposit and Disbursement Agreement, as the same may be amended, modified or supplemented from time to time.
"Annual Debt Service Lookforward" means an amount equal to, collectively, the applicable Authority Debt Service Annual Amount and the StadCo Debt Service Annual Amount.
"Annual Expense Lookforward" means an amount equal to, collectively, the applicable Ground Lease Rent Annual Amount, the Authority O&M Annual Amount, the StadCo Lease Rent Annual Amount and the StadCo O&M Annual Amount. "Approved Bank" means any commercial bank that is a Lender ( or an Affiliate of a Lender) (i) having (or in the case of a bank holding company, its corporate parent shall have) a combined capital and surplus of at least $100,000,000 and (ii) that has executed and delivered to the Co1lateral Agent (A) a signature page or joinder to this Agreement and (B) any other instruments and documents that that the Collateral Agent may reasonably request. "Authority Account Collateral" has the meaning assigned to that term in Section
2.S(b).
3 NY: I 3 72970 .24
"Authority Accounts" means, collectively, the Authority Construction Account, the Authority Excess Borrowings Account, the Authority Ground Lease Rent and O&M Account, the Authority Liquidated Damages and Insurance Proceeds Account, the Authority Revenue Account and the Authority Administrative Account. ''Authority Administrative Account" has the meaning assigned to that term in Section
2.3(a)(xix).
"Authority Collateral Documents" means the "Collateral Documents", as such term is defined in the Authority Credit Agreement.
"Authority Construction Account" has the meaning assigned to that term in Section
2.3(a)(viii).
"Authority Construction Revenues" means all Authority Revenues received by the Authority from the Stadium Project prior to September I, 2015 as a result of SBLs or Prepaid Contracts and all interest income and investment earnings related thereto. "Authority Credit Agreement" means that certain Credit Agreement dated as of the date hereof among the Trust, the Authority and Goldman Sachs Bank USA, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Authority Credit Documents" has the meaning assigned to that term in the Authority Credit Agreement.
"Authority Credit Extension" means a "Credit Extension", as such term is defined in the Authority Credit Agreement. ·
"Authority Debt Service Annual Amount" means, for any date, the amount of estimated debt service costs (including, without limitation, Ordinary Course Settlement Payments) to be paid by the Authority over the ensuing twelve (12) month period, as set forth in the Stadium Operations Budget.
"Authority Debt Service Monthly Amount" means the amount of estimated debt service costs (including, without limitation, Ordinary Course Settlement Payments) to be paid by the Authority for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"Authority Excess Borrowings Account" has the meaning assigned to that term in Section 2.3(a)(ix).
"Authority Ground Lease Rent and O&M Account" has the meaning assigned to that term in Section 2.3(a)(x).
"Authority Hedge Agreement" means a "Hedge Agreement", as such term is defined in the Authority Credit Agreement.
4 NY: 1372970.24
"Authority Hedge Receipts" means any amounts received by the Authority pursuant to an Authority Hedge Agreement.
"Authority Lender Counterparty" means the "Lender", as such term is defined in the Authority Credit Agreement.
"Authority Liquidated Damages and Insurance Proceeds Account" has the meaning assigned to that term in Section 2.3(a)(xi).
"Authority O&M Annual Amount" means, for any date, the amount of estimated operations and maintenance expenses to be paid by the Authority over the ensuing twelve (12) month period, as set forth in the Stadium Operations Budget. "Authority O&M Month]y Amount" means the amount of estimated operations and maintenance expenses to be paid by the Authority for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"Authority Obligations" means the "Obligations", as such term is defined in the Authority Credit Agreement.
"Authority Pledge and Security Agreement" is defined in the recitals hereto. "Authority Revenue Account" has the meaning assigned to that term in Section
2.3(a)(xii).
"Authority Revenues" means all revenues (incJuding all Stadium Authority Revenue but excluding (i) the City of Santa CJara Senior and Youth Program Fee, (ii) the SBL-Sourced Proceeds (as defined in the Funding Agreement) until the Construction Loan Threshold (as defined in the Funding Agreement) has been met, (iii) 50% of the Non-NFL Ticket Surcharge and (iv) all amounts payable by the Authority to a third party taxing authority in respect of sales, use, excise, admission or similar taxes or charges) received by the Authority from the Stadium Project, any Authority Hedge Receipts and all interest income and investment earnings related thereto, which Authority Revenues are pledged by the Authority to the Trust pursuant to the Authority PJedge and Security Agreement. "Authority Term Loan" means a "Term Loan", as such term 1s defined m the Authority Credit Agreement.
"Authority Withdrawal Certificate" is defined in Section 3.10. "Book-Entry Security" means a security maintained in the form of entries (incJuding the Security Entitlements in, and the financial assets based on, such security) in the commercial book-entry system of the Federal Reserve System.
"Capita] Expenditure" has the meaning assigned to such term in the StadCo Lease. "City of Santa Clara Senior and Youth Program Fee" has the meaning assigned to such term in the StadCo Lease.
5 ]\ry:1372970.24
"Collateral Agent" has the meaning assigned to that term in the first paragraph of this Agreement.
"Collateral Agent Claims" means all obligations of the Trust, the Authority and StadCo now or hereafter existing, to pay fees, costs, expenses and other amounts to the Collateral Agent under the Credit Documents and any instruments or documents executed and delivered pursuant thereto.
"Costs of Financing" means (i) fees, costs, expenses and other amounts incurred in connection with the Credit Agreement, the Authority Credit Agreement, the StadCo Credit Agreement and the other Credit Documents, Authority Credit Documents and StadCo Credit Documents which may include, but are not limited to, document printing and reproduction costs, filing and recording fees, costs of credit ratings, fees and charges of the Administrative Agent and each of the other Agents, legal fees and charges, professional consultants' fees, placement agent fees, premiums and other costs, charges and fees, including those incurred by the Trust, the Authority or StadCo, as applicable, in connection with the foregoing and (ii) Ordinary Course Settlement Payments and Termination Payments to be made by the Trust to any Lender Counterparty, the Authority to any Authority Lender Counterparty or StadCo to any StadCo Lender Counterparty, as applicable.
"Depositary Bank" has the meaning assigned to that term in the first paragraph of this Agreement. All references to the Depositary Bank shall mean any Depositary Bank, the Depositary Bank with respect to a specific Account or all Depositary Banks, as the context may require.
"Depositary Bank Claims" means all obligations of the Trust, the Authority and StadCo, now or hereafter existing, to pay costs, expenses and other amounts to a Depositary Bank pursuant to Section 10.17 hereof.
"Development Fund" has the meamng assigned to that term m the Funding Agreement.
"Entitlement Holder" means a Person that (a) is an "entitlement holder" as defined in Section 8-102(a)(7) of the UCC (except in respect of a Book-Entry Security) and (b) in respect of any Book-Entry Security, is an "entitlement holder" as defined in 31 C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such Book-Entry Security) which, to the extent required or permitted by the Federal Book-Entry Regulations, is also an "entitlement holder" as defined in Section 8-102(a)(7) of the UCC.
"Ground Lease Rent Annual Amount" means, for any date, the amount of estimated rental payments to be paid by the Authority under the Ground Lease for the ensuing twelve (12) month period, as set forth in the Stadium Operations Budget. "Ground Lease Rent Monthly Amount" means the amount of rental payments to be paid by the Authority under the Ground Lease for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
6 NY:1372970.24
"Monthly Date" means the 15th day of each calendar month occurring after the Closing Date (or, if such 15th day is not a Business Day, the immediately succeeding Business Day).
"Non-NFL Ticket Surcharge" has the meaning assigned to such term in the StadCo Lease.
"Ordinary Course Settlement Payments" means all payments due by (i) the Trust under any Hedge Agreement, (ii) StadCo under any StadCo Hedge Agreement or (iii) the Authority under any Authority Hedge Agreement, in each case from time to time, calculated in accordance with the respective tenns of such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, but excluding, as applicable, any "Early Termination Amounts" or "Close-out Amounts" (as such terms are used in the 2002 ISDA Master Agreement), any "Settlement Amounts" (as such term is defined in the 1992 ISDA Master Agreement) or any Termination Payments due and payable under such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement.
"Permitted Investments" means:
(a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P, at least A-1 from Fitch, or at least P-1 from Moody's;
( c) commercial paper maturing no more than three months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P, at least A-1 from Fitch, or at least P-1 from Moody's; (d) certificates of deposit or bankers' acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least "adequately capitalized" (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and ( e) shares of any money market mutual fund that ( i) bas substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $5,000,000,000, and (iii) has the highest rating obtainable from S&P, Fitch, or Moody's.
"Predevelopment Make-Ready Distribution" has the meaning assigned to that term in the StadCo Credit Agreement.
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"Prepaid Contracts" means any contract or agreement pursuant to which (i) Authority Construction Revenues or StadCo Construction Revenues are received by the Authority or StadCo, as applicable, and (ii) certain payments owing in multiple years of such contract or agreement are prepaid prior to September 1, 2015. For the avoidance of doubt, all amounts received in respect of a contract or agreement that constitutes a Prepaid Contract are Authority Revenues or StadCo Revenues, as applicable.
"Project Liquidated Damages and Insurance Proceeds" means, collectively, (i) all liquidated damages paid by the Design-Builder under the Design-Build Agreement, and (ii) all insurance proceeds in respect of an event of loss or damage to the Stadium Project and all proceeds in respect of any taking or condemnation of the Stadium Project, in each case which are received by the Authority, StadCo as agent for the Authority or otherwise, the Collateral Agent or any Secured Party.
"Required Amount" is defined in Section 3.14.
"Revenues" means all Authority Revenues and StadCo Revenues. "SBL Proceeds" shall mean all payments, revenues, rents, royalties, issues, profits, fees and other proceeds paid or payable for any SBLs, net of costs of issuance or sale. "SBL Proceeds Certificate" is defined in Section 3.10.
"SBLs" has the meaning assigned to that term in the StadCo Lease. "Second Team" has the meaning assigned to that term in the StadCo Lease. "Second Team Capital Expenditure" means a Capital Expenditure that a Second Team requires to be made in connection with its entry into of a Second Team Sublease with StadCo.
"Second Team Construction Revenue" means any upfront payments received by StadCo from a Second Team to fund a Second Team Capital Expenditure. "Second Team Sublease" has the meaning assigned to that term in the StadCo Lease. "Secured Obligations" has the meaning assigned to that term in the Trust Pledge and Security Agreement.
"Securities Intermediary" means a Person that (a) is a "securities intermediary" as defined in Section 8-102(a)(14) of the UCC and (b) in respect of any Book-Entry Security, is also a "securities intermediary" as defined in 31 C.F.R. Section 357 .2 ( or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such BookEntry Security). "Security Agents" means, collectively, the Collateral Agent and the Depositary Bank.
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"Security Entitlement" means (a) "security entitlement" as defined in Section 8- 102(a)(l 7) of the UCC (except in respect of a Book-Entry Security) and (b) in respect of any Book-Entry Security, a "security entitlement" as defined in 31 C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such Book-Entry Security) which, to the extent required or permitted by the Federal Book-Entry Regulations, is also a "security entitlement" as defined in Section 8-l02(a)(l 7) of the UCC.
"Special Payments" means any damages, indemnity payments and similar amounts received by StadCo, the Authority, the Trust, the Collateral Agent or any Secured Party pursuant to the Related Agreements, including any liquidated damages received pursuant to the terms of the Non-Relocation Agreement or Authority Non-Relocation Agreement. For the avoidance of doubt, "Special Payments" shall not include any Project Liquidated Damages and Insurance Proceeds.
"StadCo Account Collateral" bas the meaning assigned to that term in Section 2.5(c). "StadCo Accounts" means, collectively, the StadCo Construction Account, the StadCo Excess Borrowings Account, the StadCo O&M Account, the StadCo Revenue Account, the StadCo Liquidated Damages and Insurance Proceeds Account and the StadCo Tax Distributions Account.
"StadCo Agency Advance" has the meaning assigned to that term in the Funding Agreement.
"StadCo CFD Advance" has the meanmg assigned to that term m the Funding Agreement.
"StadCo Collateral Documents" means the "Collateral Documents", as such term is defined in the StadCo Credit Agreement.
"StadCo Construction Account" has the meaning assigned to that term in Section
2.3(a)(xvii).
"StadCo Construction Revenues" means all StadCo Revenues received by StadCo from the Stadium Project prior to September 1, 2015 as a result of Prepaid Contracts and all interest income and investment earnings related thereto. "StadCo Credit Agreement" means that certain Credit Agreement dated as of the date hereof among the Trust, StadCo and Goldman Sachs Bank USA, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time. "StadCo Credit Documents" has the meaning assigned to that term in the StadCo Credit Agreement.
"StadCo Credit Extension" means a "Credit Extension", as such term is defined in StadCo Credit Agreement.
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"StadCo Debt Service Annual Amount" means, for any date, the amount of estimated debt service costs (including, without limitation, Ordinary Course Settlement Payments) to be paid by StadCo over the ensuing twelve (12) month period, as set forth in the Stadium Operations Budget.
"StadCo Debt Service Monthly Amount" means the amount of estimated debt service costs (including, without limitation, Ordinary Course Settlement Payments) to be paid by StadCo for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"StadCo Excess Borrowings Account" has the meaning assigned to that term in Section 2.3 ( a)(xviii).
"StadCo Hedge Agreement" means a "Hedge Agreement", as such term is defined in the StadCo Credit Agreement.
"StadCo Hedge Receipts" means any amounts received by StadCo pursuant to a StadCo Hedge Agreement.
"StadCo Lease Rent Annual Amount" means, for any date, the amount of estimated rental payments to be paid by StadCo under the StadCo Lease over the ensuing twelve (12) month period, as set forth in the Stadium Operations Budget. "StadCo Lease Rent Monthly Amount" means the amount of rental payments to be paid by StadCo under the StadCo Lease for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"StadCo Lender Counterparty" means the "Lender", as such term is defined in the StadCo Credit Agreement.
"StadCo Liquidated Damages and Insurance Proceeds Account" has the meaning assigned to that term in Section 2.3(a)(xiii).
"StadCo O&M Account" has the meanmg assigned to that term m Section
2.3(a)(xiv).
"StadCo O&M Annual Amount" means, for any date, the amount of estimated operations and maintenance expenses to be paid by StadCo over the ensuing twelve (12) month period, as set forth in the Stadium Operations Budget. "StadCo O&M Monthly Amount" means the amount of estimated operations and maintenance expenses to be paid by StadCo for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"StadCo Obligations" means the "Obligations" as such term is defined in the StadCo Credit Agreement.
"StadCo Pledge and Security Agreement" is defined in the recitals hereto.
NY:1372970.24
"StadCo Revenue Account" has the meamng assigned to that term m Section
2.3(a)(xv).
"StadCo Revenues" means all revenues (including all Tenant Revenue but excluding (i) the City of Santa Clara Senior and Youth Program Fee, (ii) the ticket component, or visiting team share of amounts in excess of the ticket component, of any club seat or private suite revenues and any other revenues to which the NFL is entitled, (iii) the proceeds of the NFL G-4 Facility received by StadCo and (iv) all amounts payable by StadCo to a third party taxing authority in respect of sales, use, excise, admission or similar taxes or charges), received by StadCo from the Stadium Project, any StadCo Hedge Receipts and all interest income and investment earnings related thereto, which StadCo Revenues are pledged by StadCo to the Trust pursuant to the StadCo Pledge and Security Agreement. "StadCo Tax Distributions Account" has the meaning assigned to that term m Section 2.3(a)(xvi).
"StadCo Tax Distributions Amount" means, for any date, the amount of estimated taxes ( calculated at the highest federal, st<;1te and local marginal tax rate applicable to individuals) to be paid by the direct and indirect members of StadCo over the ensuing twelve (12) month period as a result of the operations of StadCo. "StadCo Term Loan" means a· "Term Loan", as such term is defined in the StadCo Credit Agreement.
"StadCo Withdrawal Certificate" is defined in Section 3.15. "Stadium Authority Revenue" has the meaning assigned to such term in the StadCo Lease.
"Stadium Capital Expenditure Reserve Account" has the meaning assigned to such term in the StadCo Lease.
"Stadium Construction Revenues" means, collectively, Authority Construction Revenues and StadCo Construction Revenues.
"Tenant Improvements" has the meaning assigned to such term in the Disposition and Development Agreement.
"Tenant Revenue" has the meaning assigned to such term in the StadCo Lease. "Termination Date" means (i) with respect to Authority Accounts, the date the Authority Obligations are paid .in full, (ii) with respect to the StadCo Accounts, the date the StadCo Obligations are paid in full and (iii) with respect to the Trust Accounts, the date on which the Obligations are paid in full.
"Termination Payments" means all amounts due from the Trust, StadCo or the Authority in connection with any unwinding, breach, cash settlement or termination of any transactions under a Hedge Agreement, StadCo . Hedge Agreement or Authority Hedge 11 NY: 1372970.24
Agreement, all as calculated pursuant to such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement; provided, that for the avoidance of doubt, "Termination Payments" shall not include any Ordinary Course Settlement Payments due under any such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement. "Trust" has the meaning assigned to that term in the first paragraph of this Agreement.
"Trust Account Collateral" has the meaning assigned to such term in Section 2.5(a). "Trust Accounts" means, collectively, the Trust Construction Account, the Trust Debt Service Account, the Trust Excess Cash Flow Account, the Trust Rent and O&M Account, the Trust Revenue Account, the Trust Special Payments Account and the Trust Tax Distributions Account.
"Trust Construction Account" has the meanmg assigned to that term m Section
2.3(a)(i).
"Trust Debt Service Account" has the meaning assigned to that term in Section
2.3(a)(ii).
"Trust Excess Cash Flow Account" has the meaning assigned to that term in Section
2.3(a)(iii).
"Trust Hedge Receipts" has the meaning assigned to that term in Section 3.2(b). "Trust Rent and O&M Account" has the meaning assigned to that term in Section
2.3(a)(iv).
"Trust Revenue Account" has the meaning assigned to that term in Section 2.3(a)(v). "Trust Special Payments Account" has the meaning assigned to that term in Section
2.3(a)(vii).
"Trust Tax Distributions Account" has the meaning assigned to that term in Section
2.3(a)(vi).
Section 1.2 UCC Tenns. All terms defined in the UCC shall have the respective meanings given to those terms in the UCC, except where otherwise defined in the Credit Agreement or this Agreement or the context requires otherwise.
Section 1 .3 Interpretation. For all purposes of this Agreement, except as otherwise expressly provided, the rules of interpretation set forth in Section 1 .3 of the Credit Agreement, Section 1.3 of the Authority Credit Agreement and Section 1.3 of the StadCo Credit Agreement are hereby incorporated by reference, mutatis mutandis, as if fully set forth herein. 12 NY: 1372970.24
ARTICLE II
APPOINTMENT OF DEPOSITARY BANK; CREATION OF ACCOUNTS
Section 2.1 Appointment of Depositary Bank.
(a) (i) As of the Closing Date, each of U.S. Bank and BofA is hereby appointed to act as (A) the Depositary Ban1c for the Collateral Agent and as agent of the Co1lateral Agent with respect to its respective Accounts as set forth in Exhibit A and the other applicable Account Collateral and (B) Securities Intermediary with respect to its respective Accounts hereunder, with such powers as are expressly delegated to such Depositary Bank by the terms of this Agreement, together with such other powers as are reasonably incidental thereto and such Depositary · Bank hereby accepts such appointment; and (ii) after the Closing Date, each Approved Bank that becomes a party hereto is hereby appointed to act as (A) the Depositary Ban1c for the Collateral Agent and as agent of the Collateral Agent with respect to its respective Accounts as set forth in Exhibit A, as the same may be amended from time to time, and the other applicable Account Collateral and (B) Securities Intermediary with respect to its respective Accounts hereunder, with such powers as are expressly delegated to such Depositary Bank by the terms of this Agreement, together with such other powers as are reasonably incidental thereto and such Depositary Ban1c hereby accepts such appointment. The Parties hereby acknowledge that each Depositary Bank shall act as Securities Intermediary with respect to its respective Accounts and pursuant to this Agreement. Each Depositary Bank agrees to accept and hold, in its custody and in accordance with the terms of this Agreement, its Accounts and all funds, instruments, securities, financial assets, and other assets delivered to such Depositary Bank pursuant to the terms of this Agreement.
(b) Any other provision hereof to the contrary notwithstanding, no Depositary Bank shall have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions or responsibilities shall be read into this Agreement or otherwise exist against any Depositary Bank.
Section 2.2 Procedures Governing Accounts.
(a) Each Depositary Bank hereby agrees to promptly deposit all amounts to be delivered to or held by such Depositary Bank pursuant to the terms of this Agreement into its respective Accounts established hereunder. Each Depositary Bank shall hold and safeguard its Accounts during the term of this Agreement and shall treat the amounts, and all rights related thereto, now or hereafter deposited in or credited to such Accounts as financial assets pledged by the Trust, with the acknowledgement and agreement of the Authority and StadCo, to the Collateral Agent for the benefit of the Secured Parties, to be held by such Depositary Bank acting as a Securities Intermediary. If and to the extent any Depositary Bank is to take any action on any date (including any Monthly Date) fo11owing receipt of a written instruction from the Collateral Agent or any other Party and does not receive such instruction from the Collateral Agent or such Party prior to 12:00p.m. Chicago, Illinois time on such date, such Depositary Bank shall be authorized, but not obligated, to take any action required by the terms of this Agreement (including, without limitation, transferring funds from and between Accounts) as a result of such Depositary Bank not having received such instruction prior to such time, in each case without any further instruction from any Party.
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(b) Each Account shall bear a name and account number as set forth in Exhibit A, which, notwithstanding Section 10.23 of this Agreement, such Exhibit A may be amended from time to time by the Co11ateral Agent to reflect updated, revised, supplemental or new information of any Depositary Ban1c All securities and other financial assets, and all funds and other property from time to time on deposit in or credited to each Account shall be (i) (A) registered in the name of, or payable to or to the order of, such Depositary Bank for the benefit of the Collateral Agent on behalf of the Secured Parties or (B) endorsed to or to the order of such Depositary Bank in blank and (ii) held by such Depositary Bank for the purposes and on the terms set forth in this Agreement. All cash held in the Accounts shall constitute a part of the Account Collateral and shall not constitute payment of any Indebtedness or any other Obligation of the Trust, any Authority Obligation, or any StadCo Obligation until applied as hereinafter provided.
(c) A11 moneys, investments and secunttes and other property on deposit in or credited to any of the Accounts shall at all times be in the exclusive possession of, and under the dominion and control of, the Collateral Agent and shall constitute Account Collateral in accordance with the terms hereof to be held in custody of the Collateral Agent for the purposes and on the terms set forth in this Agreement, the Credit Documents, the Authority Credit Documents and the StadCo Credit Documents. The Trust, the Authority and StadCo agree that their respective rights to amounts on deposit in or credited to the Accounts are subject to and controlled by the terms of this Agreement. In no case shall any property deposited in or credited to any Account be registered in the name of the Trust, the Authority or StadCo, be payable to the order of the Trust, the Authority or StadCo or be specially endorsed to the Trust, the Authority or StadCo, except to the extent the foregoing have been specially endorsed to the applicable Depositary Bank or in blank.
(d) The Accounts shall be subject to Applicable Law, including such applicable regulations of the Board of Governors of the Federal Reserve System and of any other appropriate banking or Governmental Authority having jurisdiction over the Accounts, as may now or hereafter be in effect.
Section 2.3 Creation of Accounts. (a) The Depositary Banks hereby respectively confirm that they have established the following special, segregated and irrevocable cash co11ateral accounts in the name of the CoUateral Agent (as further described in Exhibit A and including any subaccounts established thereunder, including each of those referenced on Exhibit A, the "Accounts"; all references to the Accounts shall mean any Account, the Account established with the applicable Depositary Bank or aU the Accounts, as the context may require) in the form of non-interest bearing accounts:
(i) an account identified as the "Stadium Funding Trust Construction Account" (the "Trust Construction Account");
(ii) an account identified as the "Stadium Funding Trust Debt Service Account" (the "Trust Debt Service Account");
(iii) an account identified as the "Stadium Funding Trust Excess Cash Flow Account" (the "Trust Excess Cash Flow Account");
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(iv) an account identified as the "Stadium Funding Trust Rent and Operations and Maintenance Account" (the "Trust Rent and O&M Account"); (v) an account identified as the "Stadium Funding Trust Revenue Account" (the "Trust Revenue Account");
(vi) an account identified as the "Stadium Funding Trust Tax Distributions Account" (the "Trust Tax Distributions Account"); (vii) an account identified as the "Stadium Funding Trust Special Payments Account" (the "Trust Special Payments Account"). (viii) an account identified as the "Authority Construction Account" (the "Authority Construction Account");
(ix) an account identified as the "Authority Excess Borrowings Account" (the "Authority Excess Borrowings Account");
(x) an account identified as the "Authority Ground Lease Rent and Operations and Maintenance Account" (the "Authority Ground Lease Rent and O&M Account");
(xi) an account identified as the "Authority Liquidated Damages and Insurance Proceeds Account" (the "Authority Liquidated Damages and Insurance Proceeds Account");
(xii) an account identified as the "Authority Revenue Account" (the "Authority Revenue Account");
(xiii) an account identified as the "StadCo Liquidated Damages and Insurance Proceeds Account" (the "StadCo Liquidated Damages and Insurance Proceeds Account");
(xiv) an account identified as the "StadCo O&M Account" (the "StadCo O&M Account");
(xv) an account identified as the "StadCo Revenue Account" (the "StadCo Revenue Account");
(xvi) an account identified as the "StadCo Tax Distributions Account" (the "StadCo Tax Distributions Account");
(xvii) an account identified as the "StadCo Construction Account" (the "StadCo Construction Account");
(xviii) an account identified as the "StadCo Excess Borrowings Account" (the "StadCo Excess Borrowings Account"); and
15 NY:1372970.24
(xix) an account identified as the "Authority Administrative Account" (the "Authority Administrative Account").
(b) The parties hereto acknow]edge and agree that (i) each Account is and sha11 be maintained as a "securities account" (as such term is defined in Section 8-50l(a) of the UCC) in respect of which each Depositary Bank is and shall be a "securities intermediary" (within the meaning of Section 8-102(a)(l4) of the UCC), (ii) the Collateral Agent is the sole Entitlement Holder with respect to each Account (and aH Security Entitlements and financia] assets from time to time maintained or carried therein), (iii) no Depositary Bank has entered into any agreement (other than this Agreement}under which such Depositary Bank has agreed to comply with Entitlement Orders originated by any Person other than the Collateral Agent with respect to any Account or any cash, securities or other property deposited therein or credited thereto and (iv) the Accounts shall be maintained at all times in accordance with Section 2.2(a) until the termination of this Agreement.
( c) Each Depositary Bank shall cause each Account to be, and each Account shaH be, separate from all other accounts held by or under the control and dominion of such Depositary Bank. No Depositary Bank will change the name or account number of any Account from that set forth in Exhibit A without the prior written consent of the Collateral Agent, other than any changes of account numbers due to internal system changes (upon which the Depositary Bank shall provide prompt written notice thereof to the Collateral Agent). . The Parties hereby authorize each Depositary Bank to open subaccounts within any of the Trust Accounts, and each Depositary Bank shall open one or more subaccounts within any such Trust Account if so directed by the Collateral Agent
Section 2.4 Deposit Accounts. To the extent that, notwithstanding the parties' intent that the Accounts constitute securities accounts, all or any portion of any such Account is determined to be a "deposit account" within the meaning of Section 9-102(a)(29) of the UCC, (a) such Account shall be deemed to be a "deposit account" (as defined in Section 9-102(a)(29) of the UCC), which the parties hereto shall maintain with the applicable Depositary Bank acting not as a securities intermediary but as a "bank" (within the meaning of Section 9-102(a)(8) of the UCC) pursuant to Section 2.2(b), (b) such "bank's jurisdiction" (within the meaning of Section 9-304 of the UCC) is and shall continue to be the State of New York, (c) the Co11ateral Agent shall be such Depositary Bank's "customer" (within the meaning of Article 4 of the UCC) with respect to such deposit account and (d) all references in this Agreement to "Entitlement Orders" shall be deemed to include instructions directing the disposition of funds in such deposit account.
Section 2.5 Accounts as Collateral. (a) To secure the payment of the Obligations, the Trust, pursuant to the Trust Pledge and Security Agreement, has assigned, transferred and pledged to the Collateral Agent, and granted a security interest in favor of the Collateral Agent in, all of the right, title and interest of the Trust which it now possesses or may hereafter obtain, in, to and under: (i) the Pledge and Security Agreements (including, without 1imitation, the Authority Account Collateral (as defined in subsection (b) below) and the StadCo Account Col1ateral (as defined in subsection (c) below)), (ii) each of the Trust Accounts, the Authority Accounts and the StadCo Accounts, inc1uding, except as specifically excluded pursuant to the terms of this Agreement, (A) all monies and Permitted Investments and other instruments held in such Accounts, (B) all other funds of the Trust, 16 NY: 1372970.24
the Authority and StadCo held by each Depositary Barne under this Agreement and (C) all of the proceeds of the foregoing (collectively, the "Trust Account Collateral"), (iii) the Credit Documents, the Authority Credit Documents and the StadCo Credit Documents, (iv) the other Related Agreements and (v) all other tangible and intangible property of the Trust to the extent set forth in the Trust Pledge and Security Agreement and this Agreement. (b) To secure the payment of the Authority Obligations, the Authority, pursuant to the Authority Pledge and Security Agreement, has assigned, transferred and pledged to the Trust, and granted a security interest in favor of the Trust in, all of the right, title and interest of the Authority which it now possesses or may hereafter obtain, in, to and under: (i) all Authority Revenues derived from the Stadium Project, (ii) each of the Authority Accounts, including, except as specifically excluded pursuant to the terms of this Agreement, (A) all monies and Pennitted Investments and other instruments held in such Authority Accounts, (B) all other funds of the Authority held by a Depositary Bank under this Agreement and (C) alJ of the proceeds of all the foregoing (co11ective1y, the "Authority Account Collateral"), (iii) the Authority Credit Documents, (iv) the Related Agreements (as defined in the Authority Credit Agreement) and (vi) all other tangible and intangible property of the Authority to the extent set forth in the Authority Pledge and Security Agreement and this Agreement.
(c) To secure the payment of the StadCo Obligations, StadCo, pursuant to the StadCo Pledge and Security Agreement, has assigned, transferred and pledged to the Trust, and granted a security interest in favor of the Trust in, a11 of the right, title and interest of StadCo which it now possesses or may hereafter obtain, in, to and under: (i) all StadCo Revenues derived from the Stadium Project, (ii) each of the StadCo Accounts, including, except as specifically excluded pursuant to the terms of this Agreement, (A) all monies and Permitted Investments and other instruments held in such StadCo Accounts, (B) all other funds of StadCo held by a Depositary Bank under this Agreement and (C) all of the proceeds of all the foregoing ( collectively, the "StadCo Account Collateral" and, together with the Trust Account Collateral and the Authority Account Collateral, collectively, the "Account Co11ateral"), (iii) the StadCo Credit Documents, (iv) the Related Agreements (as defined in the StadCo Credit Agreement) and a11 other tangible and intangible property of StadCo to the extent set forth in the StadCo Pledge and Security Agreement and this Agreement. (d) The Trust agrees that the Trust Account Collateral and all other collateral pledged by the Trust, and a11 rights the Trust may have with respect to such Trust Account Collateral and all other collateral pledged by the Trust, shall be subject to the terms and conditions of this Agreement and the other Collateral Documents. The Authority agrees that the Authority Account Collateral and all other collateral pledged by the Authority, and al1 rights the Authority may have with respect to such Authority Account Co1lateral and all other collateral pledged by the Authority, shall be subject to the terms and conditions of this Agreement and the other Authority Collateral Documents. StadCo agrees that the StadCo Account Collateral and all other co11ateral pledged by StadCo, and all rights StadCo may have with respect to such StadCo Account Co11ateral and all other collateral pledged by StadCo, shall be subject to the terms and conditions of this Agreement and the other StadCo Collateral Documents.
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Section 2.6 Control; Precedence oflnstructions. (a) Until the Termination Date, the Collateral Agent shall have "control" (within the meaning of Section 8-l06(d)(2) or Section 9- 104(a) (as applicable) of the UCC) of the Accounts and the Trust's "security entitlements" (within the meaning of Section 8-102(a)(l 7) of the UCC) with respect to the financial assets credited to the Accounts. The parties hereby irrevocably direct, and each Depositary Bank (in its capacity as a Securities Intermediary) hereby agrees, that each Depositary Bank will comply with all instructions and orders (including Entitlement Orders within the meaning of Section 8- 102(a)(8) of the UCC) regarding each Account and any financial asset therein originated by the Collateral Agent without the further consent of the Trust, the Authority, StadCo or any other Person; provided, however, that so long as no Default or Event of Default shall have occurred, the applicable Depositary Bank shall (i) comply with all written instructions by or on behalf of the Authority in respect of the Authority Ground Lease Rent and O&M Account, the Authority Construction Account and the Authority Administrative Account and (ii) comply with all written instructions by or on behalf of StadCo in respect of the StadCo O&M Account, the StadCo Tax Distributions Account and the StadCo Construction Account, without the further consent of the Trust, the Collateral Agent or any other Person; provided further, however, that, notwithstanding the occurrence and continuance of any Default or Event of Default, to the extent that amounts are deposited in the Authority Revenue Account or StadCo Revenue Account which are not Authority Revenues or StadCo Revenues, respectively, the Collateral Agent and Depository Bank shall comply with withdrawal certificates of the Authority or StadCo, respectively, for the removal of such amounts in accordance with Sections 3.10 and 3.15, respectively. In the case of a conflict between any instruction or order originated by the Collateral Agent and any instruction or order originated by the Trust, the Authority or StadCo or any other Person other than a court of competent jurisdiction, the instruction or order originated by the Collateral Agent shall prevail. The Collateral Agent hereby agrees that, so long as it shall not have delivered to any Depositary Bank (pursuant to the direction of the Requisite Lenders) written notice in accordance with Section 2.6(b) that (i) a Default or Event of Default has occurred and is continuing and (ii) the Collateral Agent is exercising its right of exclusive control with respect to the Accounts, the Collateral Agent shall not deliver any notices or instructions to any Depositary Bank with respect to transfers to or from the Accounts except as expressly permitted or required under this Agreement.
(b) On and after any date on which any Depositary Bank receives written notice from the Collateral Agent (pursuant to the direction of the Requisite Lenders) that (i) a Default or an Event of Default has occurred and is continuing and (ii) the Collateral Agent is exercising its right of exclusive control with respect to the Accounts, notwithstanding anything herein to the contrary, each such Depositary Bank shall thereafter accept all notices and instructions required or permitted to be given to such Depositary Bank pursuant to the tenns of this Agreement only from the Collateral Agent and not from the Trust, the Authority, StadCo or any other Person, and such Depositary Bank shall not withdraw, transfer, pay or otherwise disburse any amounts in any of the Accounts except pursuant to such notices and instructions from the Collateral Agent, unless such Default or Event of Default no longer exists due to such Default or Event of Default having been waived, cured or no longer existing, or having been deemed waived, in accordance with the tenns of the applicable Credit Document (as confirmed in writing by the Collateral Agent), in which event the tenns of this Section 2.6(b) shall thereafter be inapplicable to such Default or Event of Default.
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(c) Each of the Trust, the Authority, but only commencing upon the first draw on the Authority Loan following the establishment of the GMP (as such term is defined in the Funding Agreement), and StadCo hereby authorizes the Administrative Agent to direct the Collateral Agent to instruct, in writing, the applicable Depositary Bank, which as of the Closing Date is U.S. Bank, to charge the Costs of Financing subaccount of the Trust Construction Account and the Trust Debt Service Account and the respective subaccounts therein, as applicable, in accordance with the then applicable provisions of Sections 3.2 and 3.5 hereof, in order to cause timely payment to be made to the Administrative Agent of all principal, interest and Costs of Financing due under the Credit Agreement, Authority Credit Agreement, StadCo Credit Agreement and any Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, as applicable.
Section 2.7 Subordination of Lien; Waiver of Set-Off. In the event that any Depositary Bank has or subsequently obtains by agreement, operation of law or otherwise a Lien on any Account or in any Account Collateral, such Depositary Bank agrees that such Lien shall (except to the extent provided in the next sentence) be subordinate to any Lien of the Collateral Agent. The financial assets or funds standing to the credit of the Accounts will not be subject to deduction, set-off, counter-claim, banker's lien or any other right in favor of the Depositary Bank or any Person other than the Collateral Agent, except to the extent of returned items and chargebacks either for uncollected checks or other items of payment and transfers previously credited to one or more of the Accounts, and the Trust, the Authority, StadCo and the Collateral Agent hereby authorize each Depositary Bank to debit the applicable Accounts for such amounts.
Section 2.8 Other Representations and Covenants of Depositary Banks. Each Depositary Bank hereby severa11y represents, warrants, covenants and agrees as follows:
(a) the Depositary Bank in its capacity as Securities Intermediary (i) is a Securities Intermediary on the Closing Date or the date on which such Depositary Bank becomes a party to this Agreement, as applicable, and, so long as this Agreement remains in effect, shall remain a Securities Intermediary, and shall act as such with respect to the Collateral Agent, the Accounts and all of the assets, property and items (including aH Security Entitlements and financial assets maintained or carried in the Accounts) from time to time transferred, credited or deposited to or maintained or carried in the Accounts, (ii) shall comply with any and all Entitlement Orders received by it from the Collateral Agent in respect of the Accounts, in each case, without further consent of the Trust, the Authority, StadCo or any other Person in accordance with the terms of this Agreement and (iii) shall not comply with the Entitlement Orders of any other Person other than as set forth in this Agreement;
(b) notwithstanding any other provision of this Agreement or any other agreement governing any Account to the contrary, the "securities intermediary's jurisdiction" (within the meaning of Section 8-110( e) or 9-30 I and 9-305 ( as applicable) of the UCC) of each Depositary Bank acting as Securities Intermediary is and shall continue to be the State of New York; (c) until any Depositary Bank's obligations hereunder shall terminate in accordance with Section 6.4, each of the Accounts with such Depositary Bank shall be held by such Depositary Bank for the benefit of the Collateral Agent, for the benefit of the Secured Parties, at all times until the Termination Date, and the Collateral Agent shall have exclusive control and, 19 NY:1372970.24
other than as described in Section 2.6(a) in respect of the Authority Ground Lease Rent and O&M Account and the StadCo O&M Account, sole right of withdrawal over all Accounts and shall have "control" (within the meaning of Section 8-l06(d)(2) or 9-104(a) (as appJicable) of the UCC) of all amounts on deposit in or credited to an Account; ( d) in furtherance of clause ( c) above, each Depositary Bank has credited and shall continue to credit such assets, property and items to the appropriate Accounts in accordance with this Agreement; provided that all such assets credited to any Account shall be registered in the name of, payable to the order of, or indorsed to the applicable Depositary Bank or in blank; provided, further that in no event shall any amounts or Permitted Investments deposited in or credited to any Account be registered in the name of the Trust, the Authority or StadCo, payable to the order of the Trust, the Authority or StadCo or specially indorsed to the Trust, the Authority or StadCo, except to the extent that the foregoing have been subsequently indorsed by the Trust, the Authority or StadCo to the applicable Depositary Bank or in blank; (e) to the maximum extent permitted by Applicable Law, all funds and other assets, of any nature whatsoever, from time to time carried in the Accounts shall constitute financial assets, and each Depositary Bank shall treat all such assets, property and items as financial assets;
(f) except as provided herein, (i) no Depositary Bank knows of any right or claim to or interest in the Account Collateral (including any "adverse claim" within the meaning of Section 8-102(a)(l) of the UCC) by any Person other than the Trust, the Authority and StadCo, as applicable, and (ii) no Depositary Bank has entered into nor will any enter into any agreement with any other Person (including the Trust) (A) relating to any Account and/or any financial assets from time to time credited thereto, or Securities Entitlements carried therein, pursuant to which it has agreed to comply with Entitlement Orders of such Person or any other Person, (B) purporting to limit or condition the obligation of any Depositary Bank to comply with Entitlement Orders originated by the Collateral Agent or (C) that is otherwise inconsistent with this Agreement; and
(g) each Depositary Bank hereby (i) waives and releases any lien, encumbrance, claim, right of set-off or other right it may have against the Accounts or any financial asset carried in the Accounts or any credit balance in the Accounts or Securities Entitlements carried therein (provided, that any Depositary Bank may, pursuant to Section 2.7, set off the face amount of any checks or other items of payment and transfers which have been credited to the Accounts but are subsequently returned unpaid because of uncollected or insufficient funds) and (ii) agrees that it shall not assert any such lien, encumbrance, claim or right against the Accounts or any financial asset carried in the Accounts or any credit balance in the Accounts or Securities Entitlements carried therein.
ARTICLE III
ACCOUNTS
Section 3.1 Account Diagram; Disbursement Instructions. Attached at Exhibit B hereto is a diagram setting forth the Accounts and the funds flow to, from and between the Accounts, which diagram is for illustrative purposes only. In the event of any inconsistency 20 NY: 1372970.24
between such diagram and the terms of this Artic1e III, the tem1s of this Article III shall control. The Parties agree to use the form of Disbursement Instructions attached hereto at Exhibit D when instructing or directing the transfer of amounts to and between Accounts or subaccounts.
Section 3.2 Trust Construction Account. (a) Except as set forth in clause (b)(i) of this Section 3.2, each Term Loan, as and when made by the Lenders, shall be deposited by the Administrative Agent into the Trust Construction Account. (b) (i) Any Term Loan made to the Trust to pay Costs of Financing shall be deposited into the Costs of Financing subaccount of the Trust Construction Account and shall be used solely for such purposes; provided, however, that any portion of the Initial Credit Extension to be used to pay Costs of Financing may be netted against any Costs of Financing due and payable on the Closing Date;
(ii) On any day prior to Substantial Completion all amounts received by the Trust from a Lender Counterparty pursuant to a Hedge Agreement ("Trust_ Hedge Receipts") shall be deposited upon receipt by the Trust into the Costs of Financing subaccount of the Trust Construction Account. Such Trust Hedge Receipts deposited in the Costs of Financing subaccount of the Trust Construction Account, shall upon written instruction by the Collateral Agent to the applicable Depositary Bank, and upon receipt of such instruction such Depositary Bank sha11, transfer such funds to the Trust Debt Service Account, by depositing such amounts in the respective Authority and StadCo subaccounts of the Trust Debt Service Account in proportion to the amounts then due and payable by the Trust to the Authority and StadCo pursuant to any Authority Hedge Agreement or StadCo Hedge Agreement, as applicable. (c) On any day on which the proceeds of any Term Loan are deposited pursuant to clause (a) of this Section 3.2, the Collateral Agent shall instruct the applicable Depositary Bank to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer funds available in the Trust Construction Account for the following purposes, provided that no Default or Event of Default has occurred and is continuing:
(i) To the Authority Construction Account in an amount equal to the Authority Credit Extension requested by the Authority of the Trust to be used for Costs of the Stadium Project pursuant to the terms of the Authority Credit Agreement;
(ii) To the Authority Construction Account in an amount equal to the StadCo Credit Extension requested by StadCo of the Trust to be used for Costs of the Stadium Project (other than such costs allocable to Tenant Improvements) pursuant to the terms of the StadCo Credit Agreement;
(iii) To the StadCo Construction Account in an amount equal to the StadCo Credit Extension requested by StadCo of the Trust to be used for Costs of the Stadium Project a11ocable to Tenant Improvements pursuant to the terms of the StadCo Credit Agreement;
21 NY:1372970.24
(iv) To the StadCo Construction Account in an amount equal to the StadCo Credit Extension requested by StadCo of the Trust to be used to fund any StadCo CFD Advance, any StadCo Agency Advance or certain payments in respect of certain StadCo Project Costs pursuant to the terms of the Funding Agreement and Section 2.6(b)(i) and (iv) of the Credit Agreement; and (v) To the StadCo Construction Account in an amount equal to the StadCo Credit Extension requested by StadCo of the Trust to be used to fund amounts payable by StadCo to the Authority in respect of amounts payable to the Authority as (A) additional rent pursuant to Sections 6.6 and 6.7 of the StadCo Lease, respectively, or (B) prepaid rent under the Ground Lease in accordance with the terms of Section 6.5 of the StadCo Lease.
Section 3.3 Trust Revenue Account. (a) Immediately following the transfers contemplated by the final sentences of Sections 3.10 and 3.15, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer (i) on each Monthly Date, from the Authority Revenue Account and the StadCo Revenue Account for deposit into the Authority subaccount and the StadCo subaccount of the Trust Revenue Account, respectively, all amounts on deposit in the Authority Revenue Account or the StadCo Revenue Account, (ii) on each Monthly Date prior to Substantial Completion, from the Authority subaccount of the Trust Revenue Account to the Authority Construction Revenues subaccount of the Trust Revenue Account all Authority Construction Revenues on deposit in the Authority subaccount of the Trust Revenue Account, (iii) on each Monthly Date prior to Substantial Completion, from the StadCo subaccount of the Trust Revenue Account to the StadCo Construction Revenues subaccount of the Trust Revenue Account all StadCo Construction Revenues on deposit in the StadCo subaccount of the Trust Revenue Account, (iv) on each Monthly Date, from the StadCo subaccount of the Trust Revenue Account to the StadCo Second Team subaccount of the Trust Revenue Account all Second Team Construction Revenues on deposit in the StadCo subaccount of the Trust Revenue Account, (v) on the date of Substantial Completion, (A) from the Authority Construction Revenues subaccount of the Trust Revenue Account to the Authority subaccount of the Trust Revenue Account all amounts contained in the Authority Construction Revenues subaccount of the Trust Revenue Account; provided, that in the event there are any SBL Proceeds on deposit in the Authority Construction Account on such date, the Authority shal1 deliver to the Collateral Agent and the applicable Depositary Bank a SBL Proceeds Certificate which identifies that portion, if any, of such Authority Construction Revenues that constitute SBL Proceeds and the applicable Depositary Bank shall transfer that portion of the Authority Construction Revenues so identified to the SBL Proceeds subaccount of the Trust Revenue Account, and (B) from the StadCo Construction Revenues subaccount of the Trust Revenue Account to the StadCo subaccount of the Trust Revenue Account all amounts contained in the StadCo Construction Revenues subaccount of the Trust Revenue Account, (vi) on each Monthly Date following Substantial Completion, from the StadCo subaccount of the Trust Rent and O&M Account, for deposit into the Authority subaccount of the Trust Revenue Account, an amount equal to the StadCo Lease Rent Monthly Amount and (vii) on each Monthly Date following Substantial Completion, from the Authority Revenue Account for deposit into the SBL Proceeds subaccount of the Trust Revenue Account a11 SBL Proceeds identified in the 22 NY:1372970.24
SBL Proceeds Certificate delivered concurrently with each deposit of Authority Revenues into the Authority Revenue Account in accordance with Section 3.10 hereof. Upon making the transfers contemplated by clause (v) of the immediately preceding sentence, the applicable Depositary Banlc shall permanently close the Authority Construction Revenues and StadCo Construction Revenues subaccounts of the Trust Revenue Account.
Notwithstanding anything herein to the contrary, on the Closing Date (i) all StadCo Revenues consisting of StadCo Construction Revenues shall be deposited in the StadCo Construction Revenues subaccount of the Trust Revenue Account and (ii) all other StadCo Revenues shall be deposited in the StadCo subaccount of the Trust Revenue Account. (b) On each Monthly Date prior to Substantial Completion:
(i) If the Trust has received a request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to withdraw funds contained in the StadCo Construction Revenues subaccount of the Trust Revenue Account to pay for Costs of the Stadium Project, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Authority Construction Account all amounts so requested and approved;
(ii) If the Trust has received a request from the Authority in accordance with this Agreement and the Authority Credit Agreement to withdraw funds contained in the Authority Construction Revenues subaccount of the Trust Revenue Account to pay for Costs of the Stadium Project, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shal1, transfer to the Authority Construction Account all amounts so requested and approved;
(iii) If the Trust has received a request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to withdraw funds contained in the StadCo Construction Revenues subaccount of the Trust Revenue Account to fund Tenant Improvements, any StadCo CFO Advance, any StadCo Agency Advance, amounts payable by StadCo to the Authority as (A) additional rent pursuant to the terms of Sections 6.6 and 6. 7 of the StadCo Lease or (B) prepaid rent under the Ground Lease pursuant to Section 6.5 of the StadCo Lease, or certain payments in respect of StadCo Project Costs pursuant to Section 2.6(b)(i) and (iv) of the Credit Agreement, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the StadCo Construction Account all amounts so requested and approved; (iv) If the Trust has received a request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to transfer funds contained in the StadCo Construction Revenues subaccount of the Trust Revenue Account in respect of taxes to be paid by the direct and .indirect members of StadCo, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction, the applicable Depositary Bank shall transfer that portion of the StadCo Tax Distribution Amount so requested to the Trust Tax Distributions 23 NY:1372970.24
Account, provided that no such transfer shall be made unless StadCo shall have delivered a certificate to the Trust, the applicable Depositary Bank and the Administrative Agent setting out in reasonable detail the taxes then due and owing in respect of such portion of the StadCo Tax Distribution Amount; and (v) If the Trust has received a request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to transfer funds contained in the StadCo Second Team subaccount of the Trust Revenue Account to pay for a Second Team Capital Expenditure and the Trust (acting at the direction of the Requisite Lenders) has consented to such requested withdrawal in accordance with the terms of the StadCo Credit Agreement, the Collateral Agent shall, provided no Default or Event of Default shall have occurred, instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Stadium Capital Expenditure Reserve Account all amounts so requested and approved.
( c) On each Monthly Date following Substantial Completion, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer the amounts available in (I) the SBL Proceeds subaccount of the Trust Revenue Account to the Authority subaccount of the Trust Debt Service Account and (II) the Authority subaccount and StadCo subaccount of the Trust Revenue Account, as applicable, for the following purposes and in the following order of priority; provided no Default or Event of Default has occurred and is continuing; provided, further, however, that disbursements of the Ground Lease Rent Monthly Amount and the Ground Lease Rent Annual Amount shall be made regardless of the occurrence and continuance of a Default or Event of Default:
(i) first, to the Trust Rent and O&M Account (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Rent and O&M Account equals the sum of the applicab1e Ground Lease Rent Monthly Amount and the applicable Authority O&M Monthly Amount and (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Rent and O&M Account, together with the amount already transferred from the StadCo subaccount of the Trust Rent and O&M Account pursuant to Section 3.3(a)(vi), equals the sum of the applicable StadCo Lease Rent Monthly Amount and the applicable StadCo O&M Monthly Amount; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full such that an amount equal to the applicable Ground Lease Rent Monthly Amount, the Authority O&M Monthly Amount, the StadCo Lease Rent Monthly Amount and the StadCo O&M Monthly Amount is on deposit in the applicable subaccounts of the Trust Rent and O&M Account, the applicable Depositary Bank shall (x), first, transfer the amount of any shortfall from any funds remaining in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, and then, (y) transfer, solely from any amounts on deposit in the Authority subaccount or StadCo subaccount of 24 }ff:1372970.24
the Trust Rent and O&M Account, as applicable, in excess of the amount required to be transferred by clauses (A) or (B) above, the amount of any shortfall thenremaining after the transfer in clause (x) from the Authority subaccount or StadCo subaccount of the Trust Rent and O&M Account, as applicable, in each case to the StadCo subaccount or Authority subaccount of the Trust Rent and O&M Account, as applicable, in which such shortfall occurred, which transfers shall, (a) in the case of a transfer of funds from StadCo to the Authority, be deemed to constitute an advance under the ManagementCo Line of Credit Agreement, (b) in the case of a transfer of funds from the Authority to StadCo, be deemed to constitute a prepayment of the StadCo Advance, and (c) in all cases, not exceed the amount of any shortfall in the applicable Ground Lease Rent Monthly Amount, the Authority O&M Monthly Amount, the StadCo Lease Rent Monthly Amount or the StadCo O&M Monthly Amount so deposited by the applicable Depositary Bank in the applicable subaccount on such Monthly Date and (JI) provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Agent and the Administrative Agent; (ii) second, to the Authority subaccount and StadCo subaccount of the Trust Debt Service Account, as applicable, (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Debt Service Account equals the applicable Authority Debt Service Monthly Amount, (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Debt Service Account equals the applicable StadCo Debt Service Monthly Amount, and (C) after making the transfers contemplated by clauses (A) and (B) above, all available amounts contained in the Authority subaccount and StadCo subaccount of the Trust Revenue Account necessary to permit the Authority or StadCo, as applicable, to make any mandatory prepayment of the Authority Term Loans or the StadCo Term Loans required pursuant to the terms of the Authority Credit Agreement or the StadCo Credit Agreement, respectively; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full such that an amount equal to the applicable Authority Debt Service Monthly Amount or the StadCo Debt Service Monthly Amount is on deposit in the applicable subaccounts of the Trust Debt Service Account, the applicable Depositary Bank shall (x), first, transfer the amount of any shortfal1 from any funds remaining in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, (y) next transfer, from any amounts in the Authority subaccount or StadCo subaccount of the Trust Debt Service Account as applicable, in excess of the amount required to be transferred by clauses (A) or (B) above, the amount of any shortfall then-remaining after the transfer in clause (x) and, finally, (z) transfer, solely from any amounts on deposit in the Authority subaccount or StadCo subaccount of the Trust Rent and O&M Account, as applicable, in excess of the amount required to be transferred to such accounts under clauses (i)(A) and (i)(B) above, the amount of any shortfall then-remaining after the transfers in clauses (x) and (y) from the Authority subaccount or StadCo subaccount of the Trust Rent and O&M Account, as applicable, in each case to the StadCo subaccount or Authority subaccount of the 25 NY: 13 72970.24
Trust Debt Service Account, as applicable, in which such shortfall occurred, which transfers shall, (a) in the case of a transfer of funds from StadCo to the Authority, be deemed to constitute an advance under the ManagementCo Line of Credit Agreement, (b) in the case of a transfer of funds from the Authority to StadCo, be deemed to constitute a prepayment of the StadCo Advance, and (c) in all cases, not exceed the amount of any shortfall in the Authority Debt Service Monthly Amount or the StadCo Debt Service Monthly Amount so deposited by the applicable Depositary Bank in the applicable subaccount on such Monthly Date and (II) provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Agent and the Administrative Agent;
(iii) third, to the Trust Rent and O&M Account (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Rent and O&M Account, including in each case the amounts deposited thereto in accordance with clause (i) above, equals the sum of the Ground Lease Rent Annual Amount and the Authority O&M Annual Amount and (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Rent and O&M Account, including in each case the amounts deposited thereto in accordance with clause (i) above, equals the sum of the StadCo Lease Rent Annual Amount and the StadCo O&M Annual Amount; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full, the applicable Depository Bank shall transfer, to the extent that amounts remain in the StadCo subaccount or Authority subaccount of the Trust Revenue Account, respectively, an additional amount until the aggregate on deposit in the Authority subaccount and the StadCo subaccount of the Trust Rent and O&M Account, collectively, equals the Annual Expense Lookforward and provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Agent and the Administrative Agent;
(iv) fourth, to the Authority subaccount and StadCo subaccount of the Trust Debt Service Account, as applicable, (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Debt Service Account, incJuding the amount deposited thereto in accordance with clause (ii) above), equals the Authority Debt Service Annual Amount, and (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Debt Service Account), including the amount deposited thereto in accordance with clause (ii) above, equals the StadCo Debt Service Annual Amount; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in fu11, the applicable Depository Bank shall transfer, to the extent that amounts remain in the StadCo subaccount or Authority subaccount of the Trust Revenue Account, respectively, an additional amount until the aggregate on deposit in the Authority subaccount and the StadCo subaccount of the Trust Debt Service Account, collectively, equals the 26 NY: 1372970.24
Annual Debt Service Lookforward and provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Agent and the Administrative Agent; (v) fifth, to the Trust Tax Distributions Account, all available amounts from the StadCo subaccount of the Trust Revenue Account such that the StadCo Tax Distributions Amount is deposited in the Trust Tax Distributions Account; and (vi) sixth, to the Authority subaccount and StadCo subaccount of the Trust Excess Cash Flow Account, as applicable, the balance of all amounts contained in the Authority subaccount and the StadCo subaccount of the Trust Revenue Account, as applicable, after taking account of the transfers made pursuant to clauses (i) through (v) of this Section 3.3(c).
(d) On each Monthly Date following Substantial Completion, if the Trust has received a request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to transfer funds contained in the StadCo Second Team subaccount of the Trust Revenue Account to pay for a Second Team Capital Expenditure and the Trust (acting at the direction of the Requisite Lenders) has consented to such requested withdrawal in accordance with the terms of the StadCo Credit Agreement, the Collateral Agent shall, provided no Default or Event of Default shall have occurred, instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Stadium Capital Expenditure Reserve Account all amounts so requested and approved.
( e) On any date following Substantial Completion on which amounts are received by the Trust from a Lender Counterparty pursuant to a Hedge Agreement, such amounts shall be deposited by the Trust into the Authority and StadCo subaccounts of the Trust Revenue Account in proportion to the amounts owing by the Trust to the Authority or StadCo pursuant to the terms of an Authority Hedge Agreement or StadCo Hedge Agreement, as applicable. On any date on which such amounts are deposited into the Trust Revenue Account pursuant to this clause (e), the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer funds available in the Authority and StadCo subaccounts of the Trust Revenue Account, as applicable, to the Authority Revenue Account and StadCo Revenue Account, as applicable, to pay amounts owing to the Authority or StadCo pursuant to the terms of an Authority Hedge Agreement or StadCo Hedge Agreement, as applicable. (f) The Parties acknowledge and agree that concurrent with the incurrence of any Refinancing Indebtedness, the tenns and provisions of this Agreement, including, without limitation, this Section 3.3 may be amended to give effect to the waterfall and payment disbursement mechanics contemplated by such Refinancing Indebtedness to enable, among other things, amounts in the Trust Excess Cash Flow Account to be distributed to the Authority and StadCo.
Section 3 .4 Trust Rent and O&M Account. On each Monthly Date fol1owing Substantial Completion, the Collateral Agent sha11 instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank sha11, 27 NY: 1372970.24
transfer such portion of the amounts deposited in the Authority and StadCo subaccounts of the Trust Rent and O&M Account pursuant to Sections 3.3(c)(i) and (iii) for the following purposes and in the following order of priority; provided, that except with respect to clause (a) below, no Default or Event of Default has occurred and is continuing:
(a) first, to the Authority Ground Lease Rent and O&M Account, from the Authority subaccount of the Trust Rent and O&M Account an amount equal to the Ground Lease Rent Monthly Amount;
(b) second, to the Authority Ground Lease Rent and O&M Account, from the Authority subaccount of the Trust Rent and O&M Account an amount equal to the Authority O&M Monthly Amount;
(c) third, to the Authority subaccount of the Trust Revenue Account, from the StadCo subaccount of the Trust Rent and O&M Account an amount equal to the StadCo Lease Rent Monthly Amount; and
(d) fourth, to the StadCo O&M Account, from the StadCo subaccount of the Trust Rent and O&M Account an amount equal to the StadCo O&M Monthly Amount.
Section 3.5 Trust Debt Service Account. (a) On each Business Day prior to Substantial Completion that Costs of Financing are due and payable for which monies are deposited into the Costs of Financing subaccount of the Trust Construction Account and transferred to the Trust Debt Service Account pursuant to Section 3.2(b), the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction, the applicable Depositary Bank shall, withdraw funds from the Trust Debt Service Account and pay to the applicable Secured Party, such Costs of Financing then due and payable; provided that, amounts due and payable by the Trust to the Lender Counterparty pursuant to any Hedge Agreement shall be withdrawn from the Authority and StadCo subaccounts of the Trust Debt Service Account in proportion to the amounts then due and payable by the Authority and StadCo to the Trust pursuant to any Authority Hedge Agreement or StadCo Hedge Agreement, as applicable.
(b) Following Substantial Completion, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the apphcable Depositary Bank shall, transfer such portion of the amounts deposited in the respective Authority and StadCo subaccounts of the Trust Debt Service Account pursuant to Sections
3.3(c)(I), 3.3(c)(ii) and (iv), Sections 3.7(a) and (b), Section 3.8, Section 3.12, Section
3. l 3(c), Section 3.18(c) and Section 3.19, for the following purposes:
(i) On each Interest Payment Date, and on any other Business Day that Costs of Financing are due and payable to any Secured Party by the Trust or an interest payment is due and payable on a Term Loan, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction, the applicable Depositary Bank shall, withdraw funds from the Authority subaccount and StadCo subaccount of the Trust Debt Service Account, as applicable, and pay, as the case may be, (A) to each Secured Party, such Costs of Financing not 28 NY: 1372970.24
constituting Ordinary Course Settlement Payments or Termination Payments and (B) to each Secured Party, such Costs of Financing constituting Ordinary Course Settlement Payments then due and payable and to the Administrative Agent, such interest payment, as determined in accordance with the Credit Agreement; provided, that, to the extent that the amounts in a subaccount are not sufficient to pay the amounts in (A) and (B) in full, the amounts in such subaccount shall be applied,first, to the payment of the Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments described in clause (A), and second, to each Secured Party, such Costs of Financing constituting Ordinary Course Settlement Payments then due and payable and to the Administrative Agent, the payment of interest, in each case as described in clause (B); provided, further, that to the extent there are insufficient funds to pay in full all of the amounts due under any of clauses first or second, the funds available for payment shall be applied pro rata to the amounts due under such clause.
(ii) On the Maturity Date, and on any other Business Day that principal is due and payable on a Term Loan, any mandatory prepayment contemplated by the deposits required by Section 3.3(c)(ii)(C), Section 3.7(a), Section 3.7(b), Section 3.8, Section 3.12, Section 3.13(c), Section 3.18(c) or Section 3.19 is made or any Costs of Financing are due and payable to any Secured Party, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, withdraw funds from the Authority subaccount or the StadCo subaccount of the Trust Debt Service Account (after making the withdrawals described in clause (i) above, if any), as applicable, and pay, as the case may be, (A) to each Secured Party, such Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments then due and payable and (B) to each Secured Party such Costs of Financing constituting Tennination Payments then due and payable and to the Administrative Agent such principal payment, as detennined in accordance with the Credit Agreement; provided, that, to the extent that the amounts in a subaccount are not sufficient to pay the amounts in (A) and (B) in full, the amounts in such subaccount shall be applied, first, to each Secured Party the payment of the Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments described in clause (A), and second, to each Secured Party, such Costs of Financing constituting Termination Payments then due and payable and to the Administrative Agent, the payment of principal, in each case as described in clause (B); provided, further, that to the extent there are insufficient funds to pay in full all of the amounts due under any of clauses first or second, the funds available for payment shall be applied pro rata to the amounts due under such c1ause.
(iii) From and after the date on which all Tenn Loans, Authority Tenn Loans, StadCo Term Loans, Obligations, Authority Obligations and StadCo Obligations have been indefeasibly paid and performed in full, the Authority or StadCo, as applicable, shall instruct the Depositary Bank in writing to, and upon receipt of such instruction the Depositary Bank shall, withdraw funds from the Authority subaccount or StadCo subaccount of the Trust Debt Service Account, as 29 NY: 1372970.24
applicable, to the account or accounts so directed by the Authority and StadCo, respectively.
The Parties acknowledge and agree that to the extent funds are transferred pursuant to this Section 3.5 for the payment of principal, interest or Costs of Financing owing under the Credit Agreement or any Hedge Agreement the payment of such amounts to the Lenders or the Lender Counterparties, as applicable, shall be deemed to satisfy the corresponding amounts then due and owing to the Trust either (i) as lender, under the StadCo Credit Agreement and Authority Credit Agreement, as applicable, or (ii) as StadCo Lender Counterparty or Authority Lender Counterparty, as applicable.
Section 3.6 Trust Tax Distributions Account. If no Default or Event of Default shall have occurred and be continuing, on any Business Day on which amounts are deposited into the Trust Tax Distributions Account pursuant to Sections 3.3(b)(iv) and
3.3(c)(v), the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such funds to the StadCo Tax Distributions Account.
Section 3.7 Trust Excess Cash Flow Account. On each Monthly Date following Substantial Completion, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such portion of the amounts deposited in the Authority subaccount and the StadCo subaccount of the Trust Excess Cash Flow Account, as applicable, pursuant to Section
3.3(c)(vi), for the following purposes:
(a) to the NFL, such amounts contained in the StadCo subaccount of the Trust Excess Cash Flow Account as is necessary to pay any interest then due and owing on the NFL G-4 Facility;
(b) to the StadCo subaccount of the Trust Debt Service Account, to the extent of funds remaining in the StadCo subaccount of the Trust Excess Cash Flow Account after giving effect to the transfer contemplated by clause (a) above, to make a mandatory prepayment of the StadCo Term Loans;
(c) to StadCo, such amounts contained in the Authority subaccount of the Trust Excess Cash Flow Account as is necessary to pay any interest then due and owing on the Authority Note; and
(d) to the Authority subaccount of the Trust Debt Service Account, to the extent of funds remaining in the Authority subaccount of the Trust Excess Cash Flow Account after giving effect to the transfer contemplated by clause (c) above, to make a mandatory prepayment of the Authority Term Loans.
Section 3.8 Trust Special Payments Account. All Special Payments received pursuant to any Credit Document, StadCo Credit Document or Authority Credit Document, as applicable, shall be transferred upon receipt by such Person to the applicable Depositary Bank for deposit into the Trust Special Payments Account. On any Business Day following Substantial Completion, so long as no Default or Event of Default sha11 have occurred and 30 NY: 1372970.24
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be continuing, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, distribute any amounts deposited in the Special Payments Account to the Pcrson(s) for whom such Special Payments were made; provided, that in the event such Special Payments consist of liquidated damages paid pursuant to the Non-Relocation Agreement or Authority NonRelocation Agreement, the amount of such Special Payments shall be transferred to the Trust Debt Service Account and used to make a mandatory prepayment of the Term Loans.
Section 3.9 Authority Construction Account. If no Default or Event of Default shall have occurred and be continuing, on any day on which amounts are deposited into the Authority Construction Account, the Authority shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer funds available for the following purposes:
(a) to pay Costs of the Stadium Project as and when the same become due in accordance with the terms of the Authority Credit Documents and the StadCo Credit Documents; and
(b) to the extent that amounts are deposited into the Authority Construction Account pursuant to Section 3.14(c)(ii) in respect of amounts constituting a portion of any StadCo CFD Advance or any StadCo Agency Advance not then needed to pay Costs of the Stadium Project, such amounts may be retained in the Authority Construction Account until such amounts are required to pay such costs; and
(c) to the extent the remaining amounts in the Authority Construction Account are not to be used to pay Costs of the Stadium Project, to the Authority Excess Borrowings Account.
Section 3.10 Authority Revenue Account. All Authority Revenues (except for Liquidated Damages and Insurance Proceeds paid to the Authority which shall be applied in accordance with Section 3.13 below, any Special Payments paid to the Authority which shall be applied in accordance with Section 3.8 above and proceeds of any Authority Credit Extension which shall be deposited in accordance with Section 3 .2 above) shall be deposited upon receipt by the Authority into the Authority Revenue Account and any amounts received by the Authority fo11owing Substantial Completion pursuant to an Authority Hedge Agreement in accordance with Section 3.3(e), sha11 be deposited upon receipt by the Authority into the Authority Revenue Account. The Authority shall, concurrent with any deposit of Authority Revenues into the Authority Revenue Account, deJiver to the ColJateral Agent and the applicable Depositary Bank a cert1ficate in the form of Exhibit G hereto (each, a "SBL Proceeds Certificate") which identifies that portion, if any, of such deposited Authority Revenues that constitute SBL Proceeds. Moneys that (a) are inadvertently or for convenience deposited to the Authority Revenue Account but that do not constitute Authority Revenues and (b) the Authority identifies in a withdrawal certificate in the form of Exhibit E hereto received by the applicable Depositary Bank and the Collateral Agent by Friday (or, if such day is not a Business Day, the next succeeding Business Day) of any calendar week (each, an "Authority Withdrawal Certificate") shall be withdrawn from the Authority Revenue Account by the applicable Depositary Bank on the immediately succeeding Wednesday (or, if such day is not a Business Day, the next succeeding Business 31 NY:1372970.24
Day) and remitted to the Authority; provided,further that in order to permit the Authority to identify amounts that are deposited to the Authority Revenue Account in error, amounts deposited into the Authority Revenue Account shall only be transferred on a Monthly Date if such amounts have been on deposit in such Authority Revenue Account for at least a calendar week without any being the subject of an Authority Withdrawal Certificate being delivered by the Authority. If a Monthly Date shall occur (A) between when an Authority Withdrawal Certificate is received and the immediately succeeding Wednesday, the moneys identified in such Authority Withdrawal Certificate shall be retained in the Authority Revenue Account on such Monthly Date until withdrawn on the immediately succeeding Wednesday pursuant to the terms of the immediately preceding sentence or (B) between the date of deposit and the expiration of such calendar week period the funds so deposited shall be retained in the Authority Revenue Account on such Monthly Date until the next succeeding Monthly Date. On each Monthly Date on which amounts are on deposit in the Authority Revenue Account, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Authority subaccount of the Trust Revenue Account all amounts contained in the Authority Revenue Account.
Section 3.11 Authority Ground Lease Rent and O&M Account. Upon the receipt of any funds into the Authority subaccount of the Trust Rent and O&M Account in accordance with Sections 3.3(c)(i) or (iii), the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such funds from the Authority subaccount of the Trust Rent and O&M Account to the Authority Ground Lease Rent and O&M Account. Upon the receipt of any funds into the Authority Ground Lease Rent and O&M Account, the Authority shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the Authority Ground Lease Rent and O&M Account for the following purposes and in the following order of priority:
(a) first, to the City an amount equal to the rent then due and owing under the Ground Lease; and
(b) second, so long as no Default or Event of Default shall have occurred and be continuing, to the appropriate Person(s) as required by the Related Agreements, an amount equal to the respective operations and maintenance expenses then due and owing by the Authority to such Person(s); provided that no such transfer shall be made unless the applicable Depositary Bank and the Administrative Agent shall have received a certificate by or on behalf of the Authority setting out in reasonable detail and attaching unpaid invoices and/or receipted bills in respect of the operations and maintenance expenses then due and owing by the Authority to such Person(s).
Section 3.12 Authority Excess Borrowings Account. On any day on which amounts are deposited into the Authority Excess Borrowings Account, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer an amount equal to such excess borrowings contained in the Authority Excess Borrowings Account to make a mandatory 32 NY:1372970.24
prepayment of the Authority Term Loans pursuant to the terms of the Authority Credit Agreement by depositing such amounts in the Authority subaccount of the Trust Debt Service Account.
Section 3.13 Authority Liquidated Damages and Insurance Proceeds Account. (a) All Project Liquidated Damages and Insurance Proceeds received by the Authority or the Collateral Agent or any Secured Party on behalf of the Authority shall be transferred upon receipt by such party to the applicable Depositary Bank for deposit into the Authority Liquidated Damages and Insurance Proceeds Account.
(b) On the fifteenth (15th) Business Day following (i) the date of the Collateral Agent's receipt of written notice from the Authority specifying in detail the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the Authority Liquidated Damages and Insurance Proceeds Account and (ii) the Construction Monitor's approval of the use of such funds in connection with the Stadium Project, the Collateral Agent shall instruct the applicable Depositary Bank in writing to transfer, and upon receipt of such instruction the applicable Depositary Bank shall transfer, so long as no Default or Event of Default shall have occurred and be continuing, in the amounts and the manner approved by the Construction Monitor, all or a portion of such Project Liquidated Damages and Insurance Proceeds on deposit in the Authority Liquidated Damages and Insurance Proceeds Account to the Authority Construction Account to be applied exclusively as so approved by the Construction Monitor.
(c) In the event that the Construction Monitor rejects the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the Authority Liquidated Damages and Insurance Proceeds Account, the Authority shall be entitled to resubmit in writing to the Construction Monitor within ten (10) Business Days of such initial rejection an alternate use for such Project Liquidated Damages and Insurance Proceeds. In the event that the Authority elects not to resubmit to the Construction Monitor within such time period or the use of any or all such Project Liquidated Damages and Insurance Proceeds described in such resubmission is not approved by the Construction Monitor, such amounts sha11 be transferred to the Authority subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the Authority Tenn Loans pursuant to the terms of the Authority Credit Agreement.
Section 3.14 StadCo Construction Account. (a) From and after the date on which amounts are first deposited into the StadCo Construction Account, StadCo shall on each Monthly Date ensure that an amount not greater than $30,000, or such greater amount as may be reasonably acceptable to the Administrative Agent from time to time (such amount, the "Required Amount"), is at all times on deposit in the StadCo Construction Account. The Required Amount may be sourced from proceeds (i) advanced to StadCo pursuant to a StadCo Credit Extension or (ii) derived from StadCo Construction Revenues. The Required Amount may be used, from time to time during the course of any calendar month, for unexpected Costs of the Stadium Project allocable to Tenant Improvements or costs contemplated by Section
2.02(a)(iii) of the StadCo Obligations Agreement arising after the most recent Monthly Date for which Costs of the Stadium Project were not included in the draw request made on the immediately preceding Monthly Date.
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(b) If no Default or Event of Default shall have occurred and be continuing, on any Business Day prior to Substantial Completion on which StadCo is required to prepay rent owing under the StadCo Lease in respect of prepaid rent owing under the Ground Lease, StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo Construction Account to the Authority Ground Lease Rent and O&M Account such prepaid rent.
(c) If no Default or Event of Default shall have occurred and be continuing, on any day on which amounts are deposited into the StadCo Construction Account, StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer funds available for the following purposes:
(i) to fund Tenant Improvements, certain payments in respect of StadCo Project Costs contemplated by Section 2.6(b )(i) and (iv) of the Credit Agreement and amounts payable by StadCo to the Authority (A) as additional rent pursuant to the terms of Sections 6.6 and 6. 7 of the StadCo Lease, or (B) in respect of prepaid rent under the Ground Lease pursuant to the terms of Section 6.5 of the StadCo Lease; and
(ii) to fund any StadCo CFD Advance or any StadCo Agency Advance, either through payments of such amounts directly in respect of Costs of Stadium Project or, to the extent not then required for such costs, by a deposit of such funds into the Authority Construction Account;
(iii) to make a Predevelopment Make-Ready Distribution pursuant to Section 6.4(ii) of the StadCo Credit Agreement; and
(iv) to the extent the remaining amounts in the StadCo Construction Account are not to be used to fund costs in respect of the purposes set out in clauses (i), (ii) and (iii) above or are not retained as a part of the Required Amount, to the StadCo Excess Borrowings Account.
Section 3. 15 StadCo Revenue Account. All StadCo Revenues (including, without limitation, all rental payments received by StadCo pursuant to the terms of the Team Lease, any Second Team Sublease, all interest earnings and any repayment of the StadCo Advance, the StadCo CFD Advance or the StadCo Agency Advance but excluding Liquidated Damages and Insurance Proceeds paid to StadCo which shal1 be applied in accordance with Section 3.18 below and any Special Payments paid to StadCo which shall be applied in accordance with Section 3.8 above and proceeds of any StadCo Credit Extension which shall be deposited in accordance with Section 3.2 above) shall be deposited upon receipt by StadCo into the StadCo Revenue Account and any amounts received by StadCo following Substantial Completion pursuant to a StadCo Hedge Agreement in accordance with Section
3.3(e), shall be deposited upon receipt by StadCo into the StadCo Revenue Account.
Moneys that (a) are inadvertently or for convenience deposited to the StadCo Revenue Account but that do not constitute StadCo Revenues and (b) StadCo identifies in a 34 NY:1372970.24
withdrawal certificate in the Form of Exhibit F hereto received by the applicable Depositary Bank and the Collateral Agent by Friday (or, if such day is not a Business Day, the next succeeding Business Day) of any calendar week (each, a "StadCo Withdrawal Certificate") shall be withdrawn from the StadCo Revenue Account by the Depositary Bank on the immediately succeeding Wednesday (or, if such day is not a Business Day, the next succeeding Business Day) and remitted to StadCo; provided, further that in order to permit StadCo to identify amounts that are deposited to the StadCo Revenue Account in error, amounts deposited into the StadCo Revenue Account shall only be transferred on a Monthly Date if such amounts have been on deposit in such StadCo Revenue Account for at least a calendar week without any being the subject of a StadCo Withdrawal Certificate being delivered by StadCo. If a Monthly Date shall occur (A) between when a StadCo Withdrawal Certificate is received and the immediately succeeding Wednesday, the moneys identified in such StadCo Withdrawal Certificate shall be retained in the StadCo Revenue Account on such Monthly Date until withdrawn on the immediately succeeding Wednesday pursuant to the tenns of the immediately preceding sentence or (B) between the date of deposit and the expiration of such calendar week period the funds so deposited shall be retained in the StadCo Revenue Account on such Monthly Date until the next succeeding Monthly Date. On each Monthly Date on which amounts are on deposit in the StadCo Revenue Account, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the StadCo subaccount of the Trust Revenue Account all amounts contained in the StadCo Revenue Account.
Section 3.16 StadCo O&M Account. Upon the receipt of any funds into the StadCo subaccount of the Trust Rent and O&M Account in accordance with Sections
3.3(c)(i) or (iii), the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such funds from the StadCo subaccount of the Trust Rent and O&M Account to the StadCo O&M Account. If no Default or Event of Default shall have occurred and be continuing, StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo O&M Account to the appropriate Person(s) as required by the Related Agreements an amount equal to the respective operations and maintenance expenses then due and owing by StadCo to such Person(s); provided that no such transfer shall be made unless the applicable Depositary Bank and the Administrative Agent shall have received a certificate by or on behalf of StadCo setting out in reasonable detail and attaching unpaid invoices and/or receipted bills in respect of the operations and maintenance expenses then due and owing by StadCo to such Person(s).
Section 3.17 StadCo Tax Distributions Account. If no Default or Event of DefauJt shall have occurred and be continuing, the Collateral Agent sha11 instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo Tax Distributions Account to StadCo such portion of the StadCo Tax Distributions Amount so that StadCo may distribute to the direct and indirect owners of StadCo a11 amounts necessary to pay the taxes then due and owing by such Person(s).
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Section 3.18 StadCo Liquidated Damages and Insurance Proceeds Account. (a) All Project Liquidated Damages and Insurance Proceeds received by StadCo as agent for the Authority or otherwise or the Collateral Agent or any Secured Party on behalf of StadCo shall be transferred upon receipt by such party to the applicable Depositary Bank for deposit into the StadCo Liquidated Damages and Insurance Proceeds Account. (b) On the fifteenth (15th) Business Day following (i) the date of the Collateral Agent's receipt of written notice from StadCo specifying in detail the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the StadCo Liquidated Damages and Insurance Proceeds Account and (ii) the Construction Monitor's approval of the use of such funds in connection with the Stadium Project, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer so long as no Default or Event of Default shall have occurred and be continuing, in the amounts and the manner approved by the Construction Monitor, all or a portion of such Project Liquidated Damages and Insurance Proceeds on deposit in the StadCo Liquidated Damages and Insurance Proceeds Account to the Authority Construction Account to be applied exclusively as so approved by the Construction Monitor.
(c) In the event that the Construction Monitor rejects the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the StadCo Liquidated Damages and Insurance Proceeds Account, StadCo shall be entitled to resubmit in writing to the Construction Monitor within ten ( 10) business days of such initial rejection an alternate use for such Project Liquidated Damages and Insurance Proceeds. In the event that StadCo elects not to resubmit to the Construction Monitor within such time period or the use of any or all such Project Liquidated Damages and Insurance Proceeds described in such resubmission is not approved by the Construction Monitor, such amounts shall be transferred to the StadCo subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the StadCo Term Loans pursuant to the terms of the StadCo Credit Agreement.
Section 3.19 StadCo Excess Borrowings Account. On any day on which amounts are deposited into the StadCo Excess Borrowings Account, the Collateral Agent shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer an amount equal to such excess borrowings contained in the StadCo Excess Borrowings Account to make a mandatory prepayment of the StadCo Term Loans pursuant to the terms of the StadCo Credit Agreement by depositing such amounts in the StadCo subaccount of the Trust Debt Service Account.
ARTICLE IV
ACCOUNT INFORMATION AND BALANCES
Section 4.1 Information to Accompany Amounts Delivered to the Depositary Banks; Deposits Irrevocable: Payment Direction. (a) All amounts transferred to the applicable Depositary Bank shall be accompanied by a written direction of the Trust, the Authority or StadCo specifying the Account or Accounts (including the number of such Account or Accounts) into which such amounts are to be deposited. 36 NY: 1372970.24
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(b) All amounts transferred to the applicable Depositary Bank hereunder shall be made by federal wire transfer to such Depositary Bank for the applicable Account as more fully set forth in Exhibit A.
( c) Any deposit made into any Account shall be irrevocable and the amount of such deposit plus any investment earnings thereon shall be held by the applicable Depositary Bank and applied, invested and transferred solely as provided herein, in the Credit Agreement and in the Credit Documents, in the Authority Credit Agreement and Authority Credit Documents and in the StadCo Credit Agreement and the StadCo Credit Documents. (d) No Depositary Bank shall have any obligation to verify the accuracy or the adequacy of the sources or amounts transferred to it pursuant to subsection (a) of this Section 4.1 and shall be entitled to conclusively rely on the written directions accompanying such transfers.
(e) The Authority and StadCo shall irrevocably direct all parties which are, or may be, obligated to pay Pledged Revenues or Project Liquidated Damages and Insurance Proceeds to the Authority or StadCo, as appropriate, to make all payments of Pledged Revenues or Project Liquidated Damages and Insurance Proceeds directly to the applicable Depositary Bank for deposit (i) prior to such parties' receipt from the Collateral Agent of written notice of the expiration or termination of (A) the Authority Credit Agreement, into the Authority Revenue Account (with respect to Authority Revenues) or the Authority Liquidated Damages and Insurance Proceeds Account (with respect to Project Liquidated Damages and Insurance Proceeds paid to the Authority), (B) the StadCo Credit Agreement, into the StadCo Revenue Account (with respect to StadCo Revenues) or the StadCo Liquidated Damages and Insurance Proceeds Account (with respect to Project Liquidated Damages and Insurance Proceeds paid to StadCo) and (C) the Credit Agreement, into the Trust Special Payments Account (with respect to Special Payments). (f) The Trust shall irrevocably direct the Authority and StadCo and any other party which is, or may be, obligated to pay amounts to the Trust to make all such payments directly to the applicable Depositary Bank for deposit into the Trust Revenue Account (except as otherwise described herein) other than amounts in respect of any Trust Hedge Receipts which shall be for deposit into the Costs of Financing subaccount of the Trust Construction Account.
Section 4.2 Books of Account. Each Depositary Bank shall maintain books of account on a cash basis and record therein all deposits into and transfers to, from and between its respective Accounts and all investment transactions effected by the Depositary Bank, pursuant to Artic1c V hereof. The applicable Depositary Bank shall make such books of account avai]able during normal business hours for inspection and audit by the Collateral Agent, the Trust, the Authority, StadCo and the Secured Parties and their respective representatives upon reasonable prior written notice.
Section 4.3 Account Balance Statements. Each Depositary Bank shall, on a monthly basis not less than ten (10) days prior to each Monthly Date and at such other times as the CoJlateral Agent, the Trust, the Authority, StadCo or any other Depositary Bank may from time 37 NY: 1372970.24
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to time reasonably request, provide to the Collateral Agent, the Trust, the Authority, StadCo or such other Depositary Bank, as applicable, fund balance statements in respect of each of the Accounts, subaccounts and amounts segregated in any of the Accounts; provided that, notwithstanding the foregoing, if requested by the Collateral Agent, the Trust or such other Depositary Bank, the applicable Depositary Bank sha11 provide the Trust, the Collateral Agent and such other Depositary Bank with internet access to fund balance statements and account activity summaries. Such balance statements shall also include deposits, withdrawals and transfers from and to any Account and subaccounts and the net investment income or gain received and collected in such Account and subaccounts. Each Depositary Bank shall retain records of all receipts, disbursements and investments of funds with respect to the Accounts until the third (3rd) anniversary of the Termination Date. Within thirty (30) days after the end of each calendar year, each Depositary Bank shall furnish to the Collateral Agent, with copies to the Trust, the Authority and StadCo a written statement setting forth in reasonable detail the account balance, receipts, disbursements, transfers and investment transactions with respect to each of the Accounts and subaccounts during such calendar year. The applicable Depositary Bank, upon reasonable request, shall promptly notify the Collateral Agent and the Trust, the Authority and StadCo of its receipt and the amount of any funds received from any Person that are, or are required hereunder to be, deposited into any Account or subaccount, specifying the Account or subaccount into which such funds have been deposited.
Section 4.4 Coordination Between Depositary Banks. Each Depositary Bank shall, in order to timely facilitate the administration of this Agreement (including, without limitation, the transfer of funds between Accounts), provide to the Collateral Agent and each other Depositary Bank no later than two (2) Business Days prior to each Monthly Date, the balance of the amounts contained in each Account and subaccount over which such Depositary Bank maintains control.
ARTICLE V
INVESTMENTS AND VALUATION
Section 5.1 Investments. All amounts held in the StadCo Accounts by the applicable Depositary Bank shall, until disbursed in accordance with the terms of this Agreement, constitute the property of StadCo, subject to the security interests in favor of the Trust referred to in Section 2.5. All amounts held in the Authority Accounts by the applicable Depositary Bank shall, until disbursed in accordance with the terms of this Agreement, constitute the property of the Authority, subject to the security interests in favor of the Trust referred to in Section 2.5. All amounts held in the Trust Accounts by the applicable Depositary Bank shall, until disbursed in accordance with the terms of this Agreement, constitute the property of Trust, subject to the security interests in favor of the Secured Parties referred to in Section 2.5. Accordingly prior to the receipt by any Depositary Bank of written notice of a Default or an Event of Default, any amounts held by such Depositary Bank in any of its respective Accounts shall be invested by such Depositary Bank from time to time, at the risk and expense of the Trust, the Authority or StadCo, as the case may be, solely in such Permitted Investments as the Trust, the Authority or StadCo, as the case may be, or its respective designated representative, sha11 specificalJy direct in writing ( or, so Jong as any Default or Event of Default shall have occurred and be continuing, as such Depositary Bank may in its discretion select). The Trust, the Authority 38 NY:1372970.24
or StadCo, as the case may be, or its respective designated representative, as the case may be, shall select Permitted Investments having such maturities as shall cause each Account to have a sufficient cash balance as of any day to cover the transfers necessary to be made from such Account on such day in accordance with this Agreement. In the event that the cash balance in any Account as of any day is insufficient to cover the transfers to be made from such Account on such day, the applicable Depositary Bank shall sell or liquidate the Permitted Investments held in such Account (without regard to the maturity date of such) in such manner as such Depositary Bank may deem necessary in order to obtain cash sufficient to make such transfers and to pay any expenses and charges incurred in connection with effecting any such sale or liquidation, which expenses and charges such Depositary Bank shall be authorized to pay with cash on deposit in such Account. No Depositary Bank shall be liable to any Person for any loss suffered because of any such sale or liquidation, or for any other loss, fee, tax or other charge in connection with any investment, reinvestment or liquidation hereunder, other than by reason of its willful misconduct or gross negligence.
Section 5.2 Income or Gain. Any interest, investment income or gain realized as a result of any Permitted Investments held in the Accounts (net of the expenses incurred in connection with making such Permitted Investments) shall be deposited, on the last Business Day of each month (and reinvested as provided herein), (i) if such interest, income or gain realized was with respect to the Authority Accounts, into the Authority Revenue Account, (ii) if such interest, income or gain realized was with respect to the StadCo Accounts, into the StadCo Revenue Account and (iii) if such interest, income or gain realized was with respect to the Trust Accounts, into the Authority subaccount and StadCo subaccount of the Trust Revenue Account, on a pro rata basis based on the source of such interest income or gain realized. No Depositary Bank shall have any liability for any loss resulting from any such Permitted Investment other than by reason of its willful misconduct or gross negligence.
Section 5.3 Value. Cash and secunttes on deposit from time to time m the Accounts shall be valued by the applicable Depositary Bank, as follows:
(a) cash shall be valued at the face amount thereof; and (b) securities shall be valued at the market value thereof.
Section 5.4 Taxes. It is acknowledged by the parties hereto that all interest and other investment income earned on amounts on deposit in the Accounts for Federal, state and local income tax purposes shall be attributed to the Authority (with respect to the Authority Accounts), StadCo (with respect to the StadCo Accounts) and the Trust (with respect to the Trust Accounts), respectively.
ARTICLE VI
APPOINTMENT AND DUTIES OF THE DEPOSITARY BANK
Section 6.1 Powers, Immunities and Standard of Care.
(a) No Depositary Bank shall have any duties or responsibilities except those expressly set forth in this Agreement or m any other Credit Document, Authority Credit 39 NY: 1372970.24
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Document or StadCo Credit Document to which it is a party. Notwithstanding anything to the contrary contained herein, no Depositary Bank shall be required to take any action which is contrary to this Agreement or any other Credit Document, Authority Credit Document or StadCo Credit Document or any law or which exposes any such Depositary Bank to any liability. Each Depositary Bank and its Affiliates shal1 not be responsible to any other Secured Party for (i) any recitals, statements, representations or warranties made by the Trust, the Authority or StadCo contained in this Agreement or in any certificate or other document referred to or provided for herein or received by any Depositary Bank under this Agreement, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document referred to or provided for herein or (iii) any failure by the Trust, the Authority or StadCo to perform its obligations hereunder. Each Depositary Bank may employ agents, designees and attorneys-in-fact, and shaIJ not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. (b) Each Depositary Bank, and its directors, officers, employees, agents or sub-agents shall not be responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, (i) each Depositary Bank may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by them in accordance with the advice of such counsel, accountants or experts, (ii) no Depositary Bank makes any warranty or representation to any Secured Party for any statements, warranties or representations made in or in connection with any Credit Document, Authority Credit Document or StadCo Credit Document, (iii) no Depositary Bank shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of any Credit Document, Authority Credit Document or StadCo Credit Document on the part of any party thereto, to inspect the property (including the books and records) of the Trust, the Authority, StadCo or any other Person or to ascertain or determine whether a Default or Event of Default exists or is continuing, and (iv) no Depositary Bank shall be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of any Credit Document, Authority Credit Document or StadCo Credit Document or any other instrument or document furnished pursuant hereto. Except as otherwise provided under this Agreement, each Depositary Bank shall take such action with respect to the Credit Documents, Authority Credit Documents and StadCo Credit Documents as shall be directed in writing by the Collateral Agent. ( c) Each Depositary Bank shall use the same care with respect to the safekeeping and handling of property with respect to the Accounts it uses in respect of property held for its own benefit.
Section 6.2 Reliance: Discretionary Matters.
(a) Each Depositary Bank shall be entitled to conclusively rely upon any certificate, notice or other document (including any facsimile or electronic transmission in ".pdf' format) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counselt independent accountants and other experts selected by it. As to any other matters not expressly provided for by this Agreement, no Depositary Bank shall be required to take any action or exercise any 40 NY:1372970.24
discretion, but shall be required to act or to refrain from acting upon instructions of the CoJlateral Agent ( except that the Depositary Bank shall not be required to take any action which exposes the Depositary Bank to personal liability or that is contrary to this Agreement, any other Credit Document, any Authority Credit Document, any StadCo Credit Document or any Applicable Law). Each Depositary Bank shall in all cases (including when any action by any Depositary Bank alone is authorized hereunder, if such Depositary Bank elects in its sole discretion to obtain instructions from the Collateral Agent) be fully protected in acting or in refraining from acting hereunder, under any other Credit Document, any Authority Credit Document or any StadCo Credit Document in accordance with the instructions of the Collateral Agent, and such instructions of the Collateral Agent, where applicable, and any action taken or failure to act pursuant thereto shall be binding on all of the Secured Parties. (b) The permissive rights of each Depositary Bank enumerated herein shall not be construed as duties. No provision of this Agreement shall require any Depositary Bank to expend or risk its own funds or incur any liability.
( c) Notwithstanding any provision in this Agreement providing for any action in a Depositary Bank's reasonable discretion or reasonable determination or at any Depositary Bank's reasonable request or for approval of any action or matter in any Depositary Bank's reasonable satisfaction or reasonable opinion (any of the foregoing, a "Discretionary Matter"), each Depositary Bank may solicit confirmatory instructions from the Requisite Lenders in respect of any Discretionary Matter and, if any Depositary Bank solicits such instructions, it shalJ have no duty to act on any Discretionary Matter until it receives such instructions. In no event shall any Depositary Bank be liab]e for comp]ying with any instructions provided pursuant to an instruction of the Requisite Lenders.
Section 6.3 Compensation; Indemnification.
(a) The Trust, the Authority and StadCo shall pay such compensation to the applicable Depositary Bank as such Parties may agree in writing from time to time. (b) The Trust, the Authority and StadCo jointly and severally agree to pay or reimburse the applicable Depositary Bank the amount of any and all actual expenses, including the reasonable fees and expenses of its legal counsel and any experts or agents incurred by such Depositary Bank, unless arising from the gross negligence or willful misconduct of such Depositary Banlc or its Affiliates, directors, employees, attorneys, agents or sub-agents, in connection with (i) the custody or preservation of, or the sale of, collection from or other realization upon any of the Account Collateral, (ii) the exercise or enforcement of any of the rights of such Depositary Bank hereunder or (iii) the failure by the Trust, the Authority or StadCo to perform or observe any of the provisions hereof. Without limiting the foregoing, the Trust, the Authority and StadCo jointly and severally agree to pay, and to hold the applicable Depositary Bank harmless from, and to indemnify the applicable Depositary Bank against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other similar taxes which may be payable or determined to be payable with respect to any of the Account Collateral or in connection with any of the transactions contemplated by this Agreement.
41 NY:1372970.24
(c) In addition to the payment of amounts pursuant to the foregoing clauses (a) and (b ), whether or not the transactions contemplated hereby shall be consummated, each of the Trust, the Authority and StadCo agrees to defend, indemnify, pay and hold harmless, the applicable Depositary Bank (in its capacity as such) and the officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and Affiliates of such Depositary Bank (in its capacity as such) (each, an "Indemnitee") from and against any and all Indemnified Liabilities; provided that the Trust, the Authority and StadCo shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this clause ( c) may be unenforceable in whole or in part because they are violative of any law or public policy, the Trust, the Authority and StadCo shall contribute the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. ( d) Any amounts payable by the Trust, the Authority or StadCo as provided in clause (a) or (b) of this Section 6.3 shall be paid within thirty (30) days after written demand therefor and shall constitute additional Obligations, Authority Obligations or StadCo Obligations, as applicable.
(e) To the extent permitted by Applicable Law, the Trust, the Authority and StadCo shall not assert, and each of the Trust, the Authority and StadCo hereby waives, releases and agrees not to sue upon, any claim against the applicable Depositary Bank and its Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any Applicable Law) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby or any act or omission or event occurring in connection therewith.
(t) Without limiting the obligations of the Trust, the Authority and StadCo hereunder, each Depositary Bank shall be fully justified in refusing to take or to continue to take any action hereunder unless it shall first be indemnified to its satisfaction by the Secured Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action; provided, however, that the Collateral Agent (acting at the direction of the Requisite Lenders) shall be entitled to remove any Depositary Bank as a result of such refusal and appoint a successor Depositary Bank in accordance with Section 6.4. (g) The agreements in this Section 6.3 shall survive the Termination Date.
Section 6.4 Successor Depositary Bank.
(a) Any Depositary Bank may resign at any time by giving forty-five (45) days' written notice thereof to the Collateral Agent, the Lenders, the Trust, the Authority and StadCo. 42 NY: 1372970.24
(b) Any Depositary Bank may be removed involuntarily only for a material breach of its respective duties and obligations hereunder or for gross negligence or willful misconduct in connection with the performance of its duties hereunder and then only by the Collateral Agent (acting at the direction of the Requisite Lenders (excluding such Depositary Bank from such vote and such Depositary Bank's proportionate share (if any) of the Term Loans from the amounts used to determine the requisite vote of the Requisite Lenders)). (c) Upon any such resignation or removal of the Depositary Bank, the Collateral Agent (acting at the direction of the Requisite Lenders) shall have the right, with the consent of the Trust (such consent not to be unreasonably withheld or delayed and provided that no such consent shall be required if an Event of Default shall have occurred and be continuing) to appoint a successor Depositary Bank, which shall be an Approved Bank. If no successor Depositary Bank shall have been so appointed by the Collateral Agent and shall have accepted such appointment, within thirty (30) days after the retiring Depositary Bank's (i) giving of notice of resignation or (ii) its involuntary removal, the retiring Depositary Bank may at the expense of the Trust, the Authority and StadCo but only to the extent an Account relating to such Party was controlled by the retiring Depositary Bank, apply to a court of competent jurisdiction to appoint a successor Depositary Bank hereunder, which shall be an Approved Bank. ( d) Upon the acceptance of any appointment as Depositary Bank under this Agreement by a successor Depositary Bank, such successor Depositary Bank shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Depositary Bank (and Exhibit A shall be updated as necessary), and the retiring Depositary Bank sha11 be discharged from its duties and obligations as Depositary Bank on]y under this Agreement. After any retiring Depositary Bank's resignation or removal hereunder as Depositary Bank, the provisions of this Article VI shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Depositary Bank under this Agreement. (e) Each Depositary Bank is hereby authorized by the Collateral Agent to execute, deliver and perform this Agreement.
Section 6.5 Additional Depositary Banlcs.
(a) At any time after the Closing Date upon the delivery to the Collateral Agent of a joinder to this Agreement (a "Joinder Agreement") in form and substance satisfactory to the Collateral Agent and consented to in writing by the Collateral Agent, the Trust, the Authority and StadCo, any Approved Bank may become a Depositary Bank hereunder for the purpose of maintaining an existing Account previously maintained by another Depositary Bank ( each, a "Moved Account").
(b) Upon the delivery of a Joinder Agreement, such Approved Bank shall thereupon become vested with all the rights, powers, privileges and duties of a Depositary Bank hereunder and shall act as a Depositary Bank for the Collateral Agent and as agent of the Collateral Agent with respect to its respective Accounts as set forth in Exhibit A (which Exhibit A shall be updated as necessary) and the other applicable Account Collateral. 43 NY:1372970.24
( c) The Depositary Bank formerly maintammg any Moved Account shall be discharged from its duties and obligations as Depositary Bank with respect to such Moved Account. After any Depositary Bank's removal hereunder as Depositary Bank of any Moved Account, the provisions of this Article VI shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Depositary Bank of such Moved Account under this Agreement.
ARTICLE Vil
RIGHTS OF COLLATERAL AGENT
Section 7 .1 Rights of Collateral Agent. The rights of the CoUateral Agent under this Agreement and each of the other Collateral Documents is subject to the terms of the Credit Agreement and the Trust Pledge and Security Agreement.
Section 7 .2 Limitation of Liability. In furtherance of the general immunity from liability contained in Section 9.3 of the Credit Agreement, neither the Collateral Agent nor any of its officers, partners, directors, employees or agents shall be (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement (except for its gross negligence or willful misconduct as determined by a final, nonappealable judgment of a court of competent jurisdiction), or (ii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by the Trust, the Authority or StadCo or any representative thereof contained in any Collateral Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Collateral Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral Documents or for any failure of the Trust, the Authority or StadCo to perform its obligations thereunder. The Collateral Agent shall not be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Collateral Document, or to inspect the properties, books or records of the Trust, the Authority or StadCo.
Section 7.3 Reliance by the Collateral Agent. The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Trust, the Authority or StadCo), independent accountants and other experts. In connection with any request of any Secured Party, the Co11ateral Agent shall be fully protected in relying on a certificate of any Person, signed by an autho.rized representative of such Person. The Collateral Agent shall be fully justified in failing or refusing to take any action under any this Agreement or any Collateral Document (i) if such action would, in the opinion of the Collateral Agent, be contrary to Applicable Law or the terms of this Agreement or the other Co1lateral Documents, (ii) if, in any case where such action is not specifically provided for in such Co11ateral Document, the Col1ateral Agent shall not have received any such advice or concurrence of the Requisite Lenders as it deems appropriate, or (iii) if, in connection 44 NY: 13 72970 .24
with the taking of any such action that would constitute an exercise of remedies under such Collateral Document, it shall not first be indemnified to its satisfaction by the Trust, the Authority and StadCo or the Secured Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under any Collateral Document in accordance with a request of the Administrative Agent, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties.
Section 7.4 Ambiguity or Inconsistency in Collateral Documents with Proposed Actions. If, with respect to a proposed action to be taken by it, the Collateral Agent shall determine in good faith that the provisions of this Agreement or any other Collateral Document relating to the functions or responsibilities or discretionary powers of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral Agent shall notify the Secured Parties, the Trust, the Authority and StadCo and identify to such parties the proposed action and the provisions that it considers are or may be ambiguous or inconsistent, and may decline either to perforrn such function or responsibility or to exercise such discretionary power unless it has received written confirmation that the Requisite Lenders and, if no Default or Event of Default has occurred and is continuing, the Trust, the Authority and StadCo concur in the circumstances that the action proposed to be taken by the Collateral Agent is consistent with the terms of this Agreement or is otherwise appropriate. The Collateral Agent shall be fully protected in acting or refraining from acting upon the confirmation of the Requisite Lenders and the Trust, the Authority and StadCo in this respect, and such confirmation shall be binding upon the Collateral Agent and the other Secured Parties.
Section 7 .5 Knowledge of Event of Default. The Collateral Agent shall not be deemed to have actual constructive, direct or indirect knowledge or notice of the occurrence of any Default or Event of Default unless and until the Co1lateral Agent has received a notice or a certificate from a Secured Party, the Trust, the Authority or StadCo stating that a Defau]t or an Event of Default has occurred. The Collateral Agent sha11 have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default or Event of Default has in fact occurred and shall be entitled to rely conc1usively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liabihty in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. In the event that the Collateral Agent receives such a notice of the occurrence of any Default or Event of Default, the Collateral Agent shall give notice thereof to the Secured Parties. The Collateral Agent shall take such action with respect to an Event of Default as so directed pursuant to Article 8.1 hereof. 45 NY: 1372970.24
I
ARTICLE VIII
EXERCISE OF RIGHTS UNDER SECURITY DOCUMENTS
Section 8.1 Actions Upon an Event of Default. Upon the occurrence and during the continuance of an Event of Default and upon written request of the Administrative Agent or the Requisite Lenders as provided in the Credit Agreement, the Collateral Agent shall be permitted and is hereby authorized to take any and all actions and to exercise any and all rights, remedies and options which it may have under the Collateral Documents.
Section 8.2 Administration of Collateral. Each of the Secured Parties hereby aclrnowledges and agrees that the Collateral Agent shall administer the Collateral in the manner contemplated by this Agreement, the Trust Pledge and Security Agreement and the other Collateral Documents and the Collateral Agent shall exercise such rights and remedies with respect to the Collateral as are granted to it under the Collateral Documents and Applicable Law. No Secured Party shall have any right (a) to direct the Collateral Agent to take any action in respect of the Collateral other than as provided in the Credit Agreement or (b) to take any action with respect to the Collateral (i) independently of the Collateral Agent or (ii) other than to direct the Collateral Agent to take action in accordance with the Credit Agreement.
Section 8 .3 Application of Proceeds After Acceleration. If any Event of Default shall have occurred and be continuing, and if the Administrative Agent shall have declared all Term Loans under the Credit Agreement to be due and payable thereunder, all Collateral held by the Collateral Agent (including, but not limited to, the Accounts) and the proceeds of any sale, disposition or other realization by the Collateral Agent or by any Secured Party upon the Collateral ( or any portion thereof) pursuant to the Collateral Documents shall be distributed in whole or in part by the Collateral Agent pursuant to the terms of Section 9 .2 of the Trust Pledge and Security Agreement.
ARTICLE IX
LACK OF RELIANCE ON THE SECURITY AGENTS
Section 9.1 No Reliance on the Security Agents. Each of the Secured Parties expressly acknowledges that no Security Agent nor any of its respective officers, directors, employees, agents or attorneys-in-fact has made any representations or warranties to it and that no act by any Security Agent hereinafter taken, including, without limitation, any review of the Stadium Project or of the affairs of the Trust, the Authority or StadCo, shall be deemed to constitute any representation or warranty by such Security Agent to any Secured Party. Each Secured Party represents to each of the Security Agents and the other Secured Parties that it has, independently and without reliance upon any Security Agent or any other Secured Party, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Stadium Project, the Trust, the Authority and StadCo. Each Secured Party also represents that it will, independently and without reliance upon any Security Agent or any other Secured Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to 46 NY: 1372970.24
make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Stadium Project, the Trust, the Authority and StadCo. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by the Security Agents hereunder, no Security Agent shall have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Stadium Project, the Trust, the Authority or StadCo which may come into the possession of such Security Agent or any of its officers, directors, employees, agents or attorneys-in-fact.
ARTICLEX
MISCELLANEOUS
Section l 0.1 Remedies Cumulative: Delay Not Waiver.
(a) No right, power or remedy herein conferred upon or reserved to the Collateral Agent hereunder is intended to be excJusive of any other right, power or remedy, and every such right, power and remedy shall, to the extent permitted by Applicable Law, be cumulative and in addition to every other right, power and remedy given hereunder or under any other Credit Document now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Resort to any or all security now or hereafter held by the Collateral Agent or any other Secured Party, may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both. If the Collateral Agent may, under Applicable Law, proceed to realize its benefits under this Agreement or any other Credit Document giving the Collateral Agent a Lien upon any Account Collateral, whether owned by the Trust or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, the Collateral Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of the rights and remedies of the Collateral Agent under this Agreement. (b) No delay or omission in exercising any right, power or remedy accruing to the Collateral Agent upon the occurrence and during the continuance of any Event of Default shall impair any such right, power or remedy of the Collateral Agent, nor shall it be construed to be a waiver of any such Event of Default or of any similar breach or default thereafter occurring or an acquiescence therein, nor shall any waiver of any other breach or default under this Agreement or any other Credit Document be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of the Collateral Agent of any breach or default under this Agreement, or any waiver on the part of the Secured Parties or the Collateral Agent of any provision or condition of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. Each and every default by the Trust, the Authority or StadCo in payment hereunder shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises.
Section 10.2 Perfection; Further Assurances; Certain Waivers. 47 NY:1372970.24
(a) The Trust, the Authority and StadCo agree that from time to time, at the expense of the Trust, the Authority and StadCo, the Trust, the Authority and StadCo shall promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary, or that the Collateral Agent may reasonably request, in order to perfect, to ensure the continued perfection of, and to protect the assignment and security interest granted or intended to be granted hereby or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Account Collateral. Without limiting the generality of the foregoing, the Trust, the Authority and StadCo shall (i) except to the extent such Account Collateral is in the possession of a Depositary Bank, deliver the Account Collateral or any part thereof to the Collateral Agent, as the Collateral Agent may reasonably request in accordance with this Agreement, accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to the Collateral Agent, and (ii) authorize the Collateral Agent to file such financing statements, or amendments thereto relating to any part of the Account Collateral ( or any other collateral to which the Lien of the Collateral Agent (for the benefit of any of the Secured Parties)) granted under this Agreement, and such other instruments, endorsements or notices, as may be reasonably necessary or desirable, or as the Collateral Agent may reasonably request, or as required by Applicable Law, in order to perfect and preserve the assignments and security interests granted or purported to be granted hereby.
(b) The Trust, the Authority and StadCo hereby authorize the filing of any financing statements (and continuations thereof), and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Collateral Agent may reasonably determine arc necessary or advisable to perfect the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, herein. Such financing statements may describe the Account Collateral in the same manner as described herein or may contain an indication or description of the Account Collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Co11atera1 Agent herein. Copies of any such Filing Statements shall promptly be delivered to the Trust, the Authority and StadCo.
Notwithstanding anything to the contrary contained herein, unless directed to do so by the Requisite Lenders (which direction shall be on a filing by filing basis and not on a standing instruction basis) and at the Trust's, the Authority's or StadCo's expense, as applicable, the Collateral Agent shall have no responsibility for the preparing, recording, filing, re-recording, or re-filing of any financing statement, continuation statement or other instrument in any public office.
(c) The Trust, the Authority and StadCo shall, within five (5) Business Days foUowing receipt of prior written request, and at the expense of the Trust, the Authority or StadCo, respectively, provide to the Collateral Agent all information and evidence it may reasonably request concerning the Account Collateral to enable the Collateral Agent to enforce the provisions of this Agreement.
(d) The Trust, the Authority and StadCo hereby waive, to the maximum extent permitted by Applicable Law, (i) all rights under any law limiting remedies, (ii) all rights under any law to require the Collateral Agent to pursue any Person other than the Trust, the Authority or StadCo, any security which the Collateral Agent may hold, or any other remedy before 48 NY: 13 72970.24
proceeding against the Trust, the Authority or StadCo, (iii) all rights of reimbursement or subrogation and a11 rights to participate in any security held by the Co1lateral Agent until the Termination Date has occurred, (iv) all rights to require the Collateral Agent to give any notices of any kind, including notices of nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as set forth herein or as expressly provided in the Credit Documents, (v) all rights to assert the bankruptcy or insolvency of the Trust, the Authority or StadCo as a defense hereunder or as the basis for rescission hereof, (vi) all rights under any law purporting to reduce the Trusf s, the Authority's or StadCo's obligations hereunder if the Secured Obligations are reduced (other than as a result of payment of such Secured Obligations), and (vii) all defenses based on the disability or lack of authority of the Trust, the Authority, StadCo or any Person, the repudiation of the Credit Documents by the Trust or any Person, the Authority Credit Documents by the Authority or any Person or the StadCo Credit Documents by StadCo or any Person, the failure by the Collateral Agent or the Secured Parties to enforce any claim against the Trust, the Authority or StadCo, or the unenforceability in whole or in part of any of the Credit Documents, the Authority Credit Documents or the StadCo Credit Documents.
Section 10.3 Continuing Assignment and Security Interest. This Agreement shall create a continuing pledge and assignment of and security interest in the Account Collateral and shall (a) remain in full force and effect until the Termination Date, (b) be binding upon the Trust, the Authority or StadCo and the Trust's, the Authority's and StadCo's respective successors and assigns, and (c) inure, together with the rights and remedies of the Collateral Agent, to the benefit of the Collateral Agent, the other Secured Parties and their respective successors, transferees and assigns. The release of the security interest in any or all of the Account Collateral, the taking or acceptance of additional security, or the resort by the Collateral Agent to any security it may have in any order it may deem appropriate, shall not affect the liability of any Person on the Indebtedness secured hereby.
Section 10.4 Termination of Security Interest. Upon the Tennination Date, this Agreement and the security interest and all other rights granted hereby shall terminate and all rights to the Account Collateral shall revert to the Trust, the Authority or StadCo, as applicable.
In addition to the foregoing, the Lien created hereunder shall automatically terminate with respect to any Account Collateral (but, for certainty, only such Account Collateral) that is permitted to be disposed by the Trust acting in accordance with the Credit Documents, the Authority acting in accordance with the Authority Credit Documents or StadCo acting in accordance with the StadCo Credit Documents upon any such disposition. Upon any termination referred to in this Section 10.4, the Collateral Agent shall, at the Trust's, the Authority's or StadCo's expense and upon such party's written direction, execute and, subject to Section 10.6, deliver to the Trust, the Authority or StadCo such documents (including UCC-3 financing statements) as the Trust, the Authority or StadCo shall reasonably request to evidence such termination, to release all security interests on the Account Collateral, and to return such Account Collateral to the Trust, the Authority or StadCo, as applicable. If this Agreement shall be terminated or revoked by operation of law, the Trust, the Authority and StadCo shall indemnify and hold the Collateral Agent and the other Secured Parties harmless from any loss ( other than any loss arising out of the gross negligence or willful misconduct of the Collateral Agent or such other Secured Party) which may be suffered or incurred by the Collateral Agent 49 NY: 1372970.24
and the other Secured Parties in acting hereunder prior to the receipt by the Collateral Agent, its successors, transferees, or assigns of notice of such termination or revocation.
Section 10.5 Security Interest Absolute. All rights of the Collateral Agent and the other Secured Parties and the security interest hereunder, and all obligations of the Trust, the Authority and StadCo hereunder, shall be unconditional irrespective of:
(a) any lack of validity or enforceability of this Agreement or any other Credit Document, Authority Credit Document, StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, as applicable; (b) the failure of any Secured Party (i) to assert any claim or demand or to enforce any right or remedy against the Trust, the Authority or StadCo, any Affiliate of the Trust, the Authority or StadCo or any other Person under the provisions of this Agreement, any other Credit Document, any Authority Credit Document, any StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, or otherwise, or (ii) to exercise any right or remedy against any other guarantor of, or collateral securing, any of the Secured Obligations;
( c) any change in the time, manner or place of payment of, or in any other term of the Secured Obligations (including any increase in the amount thereof), or any other amendment or waiver of or any consent to any departure from this Agreement or any other Credit Document, Authority Credit Document, StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement;
( d) any reduction, limitation, impairment or termination of any of the Secured Obligations for any reason other than the written agreement of the Secured Parties to terminate the Secured Obligations in full, but including any c1aim of waiver, release, surrender, alteration or compromise, and shall not be subject to, and the Trust, the Authority and StadCo hereby waive any right to or claim of, any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Secured Obligation or otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or any consent to departure from, any of the terms of this Agreement or any Credit Document, Authority Credit Document, StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement;
(f) any exchange, surrender, release or non-perfection of any Account Collateral, or any release, amendment or waiver or addition of or consent to departure from any other security interest held by any Secured Party securing any of the Secured Obligations; (g) any bankruptcy or insolvency of the Trust, the Authority, StadCo or any other Person;
(h) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in the Collateral, even though such foreclosure, sale or election of 50 NY:1372970.24
remedies may impair the subrogation rights of the Trust, the Authority or StadCo or may preclude the Trust, the Authority or StadCo from obtaining reimbursement, contribution, indemnification or other recovery and even though the Trust, the Authority or StadCo may or may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency; or
(i) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Trust, the Authority, StadCo or any third party pledgor ( other than the defense of payment).
Section I 0.6 Reinstatement. This Agreement and the respective obligations of the Trust, the Authority or StadCo hereunder sha11 continue to be effective or shall be automatically reinstated, as the case may be, if at any time any payment pursuant to this Agreement is rescinded or must otherwise be restored or returned, whether as a result of the insolvency, bankruptcy, reorganization or liquidation of the Trust, the Authority or StadCo or any other Person or upon the dissolution of, or appointment of any intervenor or conservator of, or trustee or similar official for, the Trust, the Authority or StadCo or any other Person or any substantial part of the Trust's, the Authority's or StadCo's or any other such Person's assets, or as a result of any settlement or compromise with any Person (including the Trust, the Authority or StadCo) in respect of such payment, or otherwise, all as though such payments had not been made, and the Trust, the Authority and StadCo shall pay the Collateral Agent on demand all actual and reasonable costs and expenses (including reasonable fees of counsel) incurred by the Co11ateral Agent in connection with such rescission or restoration.
Section 10.7 Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.8 Survival of Provisions. All covenants, agreements, representations and warranties made by the Trust, the Authority or StadCo in this Agreement and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of the Credit Documents, the Authority Credit Documents, the StadCo Credit Documents, any Hedge Agreement, StadCo Hedge Agreement and Authority Hedge Agreement, respectively, regardless of any investigation made by such Persons or on their behalf, and shall continue in full force and effect until the Termination Date shall have occurred.
Section 10. 9 Successions and Assignments. This Agreement shall inure to the benefit of the successors and assigns of the Secured Parties who shall have, to the extent of their interest, the rights of the Secured Parties hereunder. This Agreement is binding upon the Trust, the Authority and StadCo and their respective successors and assigns. Neither the Trust, the Authority nor StadCo is entitled to assign its obligations hereunder to any other Person without the written consent of the Collateral Agent (acting pursuant to the written instruction of the Requisite Lenders), and any purported assignment in violation of this provision shall be void. 51 NY:1372970.24
Section 10.10 Headings. Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
Section 10.11 Entire Agreement. This Agreement and the other Credit Documents, Authority Credit Documents and StadCo Credit Documents constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Credit Documents, Authority Credit Documents and StadCo Credit Documents, as applicable. Nothing in this Agreement or in the other Credit Documents, Authority Credit Documents or StadCo Credit Documents, express or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Credit Documents, Authority Credit Documents or StadCo Credit Documents.
Section 10.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart to this Agreement by facsimile transmission or electronic transmission in ".pdf' format shall be as effective as delivery of a manually signed original.
Section 10.13 Limitation of Liability. No claim sha1l be made by the Trust, the Authority or StadCo against the Collateral Agent or the other Secured Parties or any of their respective Affiliates, directors, employees, attorneys or agents for any loss of profits, business or anticipated savings, special or punitive damages or any indirect or consequential loss whatsoever in respect of any breach or wrongful conduct ( whether or not the claim therefor is based on contract, tort or duty imposed by law), in connection with, arising out of or in any way related to the transactions contemplated by this Agreement, the other Credit Documents, the Authority Credit Documents, the StadCo Credit Documents or any act or omission or event occurring in connection therewith, and the Trust, the Authority and StadCo hereby waives, releases and agrees not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in their favor.
Section 10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT
LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW
ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS
WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUE.D AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STA TE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
Section 10.15 CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF
THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT .DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE 52 NY: 13 72970 .24
BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT
HA VE SUBJECT MATTER JURISDICTION, IN ANY ST ATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING
THIS AGREEMENT, EACH OF THE TRUST, THE AUTHORITY AND STADCO, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT
TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY
AGREEMENT GOVERNED BY A LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE TRUST, THE AUTHORITY OR STADCO AT ITS ADDRESS
PROVIDED IN THE CREDIT AGREEMENT, THE AUTHORITY CREDIT
AGREEMENT OR THE STADCO CREDIT AGREEMENT, AS APPLICABLE; (D)
AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT
TO CONFER PERSONAL JURISDICTION OVER THE TRUST, THE AUTHORITY
AND STADCO IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST THE TRUST, THE AUTHORITY AND STADCO IN
THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE
EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.
Section 10.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR
UNDER ANY OF THE OTHER CREDIT DOCUMENTS, AUTHORITY CREDIT
DOCUMENTS OR STADCO CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE
TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE D.EALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT
IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS W AlVER IS 53 NY: 13 72970.24
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS, AUTHORITY CREDIT
DOCUMENTS, STADCO CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS HEREUNDER. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 10.17 Expenses. Without limiting Section 6.3(b ), the Trust, the Authority and StadCo agree to pay to the Collateral Agent and the applicable Depositary Bank (a) the amount of any and all actual and reasonable out-of-pocket costs and expenses that the Collateral Agent and such Depositary Bank (including reasonable attorneys' fees and expenses) may incur in connection with (i) the custody, preservation, use or operation of, or the sale of, collection from or other realization upon, any of the Account Collateral or (ii) the failure by the Trust, the Authority and StadCo to perform or observe any of the provisions hereof and (b) all actual costs and expenses of the Collateral Agent and such Depositary Bank incurred in connection with the exercise of any of their respective rights hereunder or the enforcement of this Agreement (including reasonable attorneys' fees and expenses), whether in any action, suit or litigation, any bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally or in any negotiated settlement or workout. The agreements and obligations of the Trust, the Authority and StadCo contained in this Section I 0.17 shall survive the Termination Date and the resignation or removal of the Collateral Agent or any Depositary Bank.
Section 10.18 Agreement for Benefit of Parties Hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon, or to give to, any person other than the parties hereto and their respective successors and assigns, any right, remedy or claim under or by reason of this Agreement or any covenant, condition or stipulation hereof; and the covenants, stipulations and agreements contained in this Agreement are and shall be for the sole and exclusive benefit of the parties hereto and their respective successors and assigns.
Section 10. I 9 No Warranties. Except as otherwise expressly provided herein, the Secured Parties have not made to each other nor do they hereby or otherwise make to each other any warranties, express or implied, nor do they assume any liability to each other with respect to the enforceability, validity, value or collectibility of the Co11ateral (or any portion thereof). No Secured Party shall be bable to any other Secured Party for any action or failure to act or any error of judgment, negl.igence, or mistake, or oversight whatsoever on the part of any Secured Party or any Secured Party's agents, officers, employees or attorneys with respect to any transaction relating to any of the notes or agreements evidencing or entered into with respect to any of the Obligations or any security therefor.
Section I 0.20 Notices. All notices or other communications hereunder shaJI be given in the manner set forth in the Credit Agreement (a) to the Trust, the Lenders and the Collateral Agent at the addresses specified in the Credit Agreement, (b) to the Authority at 54 NY: 1372970.24
the address specified in the Authority Credit Agreement, (c) to StadCo at the address specified in the StadCo Credit Agreement and ( d) to each Depositary Bank at the address specified in Exhibit A, or as to any party at such other address as shall be designated by such party in a written notice to each other party hereto.
Section 10.21 Transfers. Any Secured Party may at any time assign, transfer, grant or sell participations in its rights and interests under the Collateral Documents, subject, however, to the conditions and restrictions, if any, imposed on the assignment, transfer, grant or sale of participations in the Obligations owing to such Secured Party.
Section 10.22 No Impairments of Other Rights. Nothing in this Agreement is intended or shall be construed to impair, diminish or otherwise adversely affect any other rights the Secured Parties may have or may obtain against the Trust, the Authority or StadCo.
Section 10.23 Amendment; Waiver. Except as otherwise expressly provided for in this Agreement, no amendment or waiver of any provision of this Agreement shall be effective unless the same sha11 be in writing and signed by the Trust, the Authority, StadCo and the Administrative Agent at the direction of the Requisite Lenders (unless the consent of each Lender directly affected thereby is required pursuant to Section 10.5(b) of the Credit Agreement), and any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;provided, however, that no amendment, waiver or consent shall, unless in writing and signed by (a) the Collateral Agent in addition to the Secured Parties required above to take such action, affect the rights or duties of the Collateral Agent under this Agreement or any Credit Document or (b) the applicable Depositary Bank(s) in addition to the Secured Parties required above to take such action, affect the rights and duties of any Depositary Bank under this Agreement or any Credit Document. No delay on the part of any Secured Party in the exercise of any right, power or remedy shalJ operate as a waiver thereof, nor shalJ any single or partial waiver by such Secured Party of any right, power or remedy preclude any further exercise thereof, or the exercise of any other right, power or remedy.
Section 10.24 Jncumbency Certificates; Authorized Persons. Each of the Trust, the Authority and StadCo sha11 furnish to each Depositary Bank and the Co1lateral Agent on or prior to the Closing Date and from time to time thereafter as may be necessary, duly executed incumbency certificates showing the names, titles and specimen signatures of the persons authorized on behalf of such party to take the actions and give the officer's certificates, notifications, approvals and payment instructions required by this Agreement.
Section I 0.25 Termination. This Agreement shall remain in fu]I force and effect until the payment in full of all of the Obligations, Authority Obligations and StadCo Obligations.
Section 10.26 Limitation of Liability of Trustee. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Trustee of the Trust, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (b) 55 NY:1372970.24
each of the representations, undertaking and agreements herein made on the part of the Trust is made and intended not as personal representations, undertaking and agreements by Wilmington Trust, National Association but is made and intended for the purposes for binding only the Trust, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personal1y, 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 breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement or the other Credit Documents.
Section I 0.27 NFL Requirements. The Parties acknowledge that the Trust, StadCo, the Administrative Agent and the Collateral Agent are entering into a separate letter agreement with, inter alia, the NFL, Forty Niners Holdings LP, Forty Niners Football Company LLC and their respective Affiliates party thereto (as the same may hereafter be amended, the "NFL Letter Agreement"), and that so long as the NFL Letter Agreement is in effect and notwithstanding anything in this Agreement or any other Collateral Document (as defined in the Authority Credit Agreement) to the contrary, (a) the exercise by the Secured Parties of their rights and remedies under any Collateral Document will be made in accordance with the terms and provisions of the NFL Letter Agreement, and (b) in the event of any conflict or inconsistency between the terms of the NFL Letter Agreement and the terms of any Collateral Document (including without limitation this Agreement) relating to the rights and remedies of the Secured Parties under such Collateral Document, the terms of the NFL Letter Agreement will control as among the parties thereto. Although, as described above, the NFL Letter Agreement may affect the exercise by the Secured Parties of their rights and remedies under any Collateral Documents, the Parties acknowledge that the Authority is not a party to the NFL Letter Agreement, and that nothing in the NFL Letter Agreement controls the exercise by the Authority of its rights, or the performance by the Authority of its obligations, hereunder.
Section 10.28 Force Majeure. In no event shall any Depositary Bank be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that each Depositary Bank shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.29 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, each Depositary Bank, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with a Depositary Bank. The parties to this Agreement agree that they will provide the applicable Depositary Bank with such information as it may request in order for such Depositary Bank to satisfy the requirements of the U.S.A. Patriot Act.
NY: 1372970.24
[Remainder of Page Intentionally Left Blank]
56 IN WrfNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers. all as of the date first above written.
STADIUM FUNDING TRUST
By: Wilmington Trust, National Association,
not in its individual capacity but solely as
Trustee~
Nam--e:- By: - ----:.,..., .......,...___._.......___ ________ _ Title: Jacqueline E. Solone
Banking Officer
[Signature Page - Deposit and Disbursement Agreement]
SANTA CLARA STAD~UM AUTHORITY,
a joint exercise of powers entity,
created through Government Code Sections 6500 et seq.
RTC , JR
Aut or1 y en ounsel
ATI'EST:
ROD
~~ DIRIDON, JR.
Authorjty Secretary
1500 Warburton A venue
Santa Clara, CA95050
Telephone: (408) 615-2210
Facsimile: (408) 241-6771
Date
[Signature Page - Deposit and Disbursement Agreement)
PORTY NINERS SC STADIUM COMPANY
LLC
and Chief Financial
[Signature Page - Deposit and Disbursement Agreement]
I
I
I
I
I
I
-I
I
I
I
I
I
I
I
GOLDMAN SACHS BANK USA, as
Administrative Agent and ColJateral Agent
Robert Ehudin
Authorized Signatory
[Signature Page - Deposit and Disbursement Agreement]
IN WlTNESS WHEREOF, the parties hereto have caused this Agrc:etnent to b~ duly :executed. by their duly authorizeci.offlcers, all a~ of the date first above \Vritten. :,.JV: 1372970.22
STAD.IUM FUNDJNG TRUST
By: Wilmington Trust, Nationa:! Association,
not in ils indivjdual capadty but solely as
Trustee
By:_ .. ·····-------·----- Name:
Title:
SANTA CLARA STADHJM AU1'HORITY
By:. __ ~ ____ __,_ ______ _
Name':
Title:
FORTY NlNER.S SC- STADIUM COMP ANY
LLC
By: ____ _
Name:
TiUe:
GOLDMAN SACHS BANK USA, as
.Administmth·e Agent and Cotlalcral Agent
By: ........ _____________ _
Authorized Sig11atory
U.S. BANKNATIONAL ASSOCJ.ATlON,-as
a DepositaI)' Bank _ _,..--~~;;,f'·
By: =:?:: ~ ~ 1/ t,.-- :::::r
Name: Thomas :E. Tabor
Tide: Vice Pr~-sidcnt.
57 TS_ignature:Pagc -.Deposit. and .Qisbµts_eoi~rit j\:gr,eeqier;1H Depositary Bank
US. Bank National
Association
JOO Wall Street, Suite 1600
New York, New York 10005
ABA No.: 091000022
BNF: US. Bank NA.
AIC# 180121167365
For further credit to:
[Insert Account Number
from first column at right]
Ref [Insert Account Name
from first column at right]
For further credit to:
[Insert Subaccount Number
from second column at
right]
Ref [Insert Subaccount
Name from second column
at right]
Attn: Amy Wilkinson
Telephone: (651) 495w3996
US Bank National
Association
Administrative Details
Same as above
NY:1372970.24
EXHIBIT A
ACCOUNT NAMES AND NUMBERS
Account Name and Number
Stadium Funding Trust
Construction Account
159182000
Stadium Funding Trust Debt
Service Account
159182001
Subaccount Name(s) and
Number(s)
Costs of Financing Subaccount
159182018
Authority Subaccount
159182019
StadCo Subaccount
159182020
Exhibit A - Deposit and Disbursement Agreement
-------------- ------ ------
-·-
Depositary Bank
U.S. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
U.S. Bank National
Association
Administrative Details
Same as above
NY: 1372970.24
Account Name and Number
Stadium Funding Trust Excess
Cash Flow Account
159182002
. Stadium Funding Trust Rent and
Operations and Maintenance
Account
159182003
Stadium Funding Trust Revenue
Account
159182004
Subaccount Name(s) and
Number(s)
Authority Subaccount
159182021
StadCo Subaccount
159182022
Authority Subaccount
159182023
StadCo Subaccount
159182024
SBL Proceeds Subaccount
159182025
Authority Construction
Revenues Subaccount
159182026
Authority Subaccount
159182027
StadCo Subaccount
159182028
StadCo Construction Revenues
Subaccount
159182029
Exhibit A - Deposit and Disbursement Agreement
Del!ositar,y Bank Account Name and Number Subaccount Name(s) and Number(s)
U.S. Bank National Stadium Funding Trust Tax NIA
Association Distributions Account
Administrative Details 159)82005
Same as above
U.S, Bank National Stadium Funding Trust Special NIA
Association Payments Account
Administrative Details 1S9182006
Same as above
U.S. Bank National StadCo Excess Borrowings NIA
Association Account
Administrative Details 159182017
Same as above
U.S. Bank National StadCo Liquidated Damages and NIA
Association Insurance Proceeds Account
Administrative Details 159182012
Same as above
U.S. Bank National StadCo O&M Account NIA
Association
159182013
Administrative Details
Same as above
U.S. Bank National StadCo Construction Account NIA
Association
159182016
Administrative Details
Same as above
U.S. Bank National StadCo Revenue Account NIA
Association
159182014
Administrative Details
Same as above
NY:1372970.24
Exhibit A - Deposit and Disbursement Agreement
De:Qositary Bank Account Name and Number Subaccount Name(s) and Number(s)
U.S. Bank National StadCo Tax Distributions NIA
Association Account
Administrativ~ Details 159182015
Same as above
Bank of America, NA. Authority Construction Account NIA 11 West 33rd St.
New York, NY 10001 433511.4
ABA: 0260-0959-3
G.L. Account:
2047628893919
Credit Trust Beneficiary
Name: [Insert Name and of
Account from first column
at right]
FFCT Trust AIC: [Insert
Account Number from first
column at right]
Attn: Thomas Popovics
(312-992-9800)
Bank ofAmerica, N.A. Authority Excess Borrowings NIA
Account
Administrative Details
Same as Above 433511.3
Bank ofAmerica, N.A. Authority Ground Lease Rent NIA
and Operations and Maintenance
Administrative Details Account
Same as Above
433511.2
NY: 13 72970.24
Exhibit A - Deposit and Disbursement Agreement
Depositary Bank
Bank of America, N.A.
Administrative Details
Same as Above
Bank of America, N.A.
Administrative Details
Same as Above
Bank of America, N.A.
Bank of America, San
Francisco
ABA 0026-009-593
Credit: Santa Clara
Stadium Authority
NY:1372970.24
------------- ---· --··
Account Name and Number
Authority Liquidated Damages
and Insurance Proceeds Account
433511.5
Authority Revenue Account
43351 l.l
Authority Administrative
Account
14990-86280
Subaccount Name(s) and _
Number{s)
NIA
NIA
N/A
Exhibit A - Deposit and Disbursement Agreement
EXHIBIT B
ACCOUNTS AND FUNDS FLOW DIAGRAM
Exhibit B - Deposit and Disbursement Agreement
NY:1372970.24
NY:1372970.24
EXHIBITC
CREDIT AGREEMENT
Exhibit C - Deposit and Disbursement Agreement
EXHIBIT D
FORM OF DISBURSEMENT INSTRUCTION
[Applicable Depositary Bank]
[address]
[address]
Attention: [Applicable Depositary Bank contact name]
Ladies and Gentlemen:
This Disbursement Instruction is delivered by [NAME OF INSTRUCTING PARTY] (the "Instructing Party") pursuant to the provisions of the Deposit and Disbursement Agreement dated as of March 28, 2012 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority"), Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent and collateral agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shalJ have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
1. The undersigned Instructing Party, hereby refers to Section __ of the Deposit and Disbursement Agreement. Pursuant to the terms of such Section the Instructing Party requests a transfer of funds in the aggregate amount of $___ which funds will be used for the following purposes: ______________ _
2. The requested disbursements should be drawn from the following Account(s) (or subaccount(s)) in the following amounts:
Account/subaccount: Disbursement Amount:
$ __________ _
$ __________ _
$ __________ _
3. The requested disbursements should be transferred to the following Account(s) (or subaccount(s)) in the following amounts:
Exhibit D - Form of Disbursement Instruction
NY:1372970.24
Account/su baccount: Disbursement Amount:
$ _______ _
$ __________ _
$ _______ _
4. Except in connection with any transfer of rent owing under the Ground Lease pursuant to Section 3.l(a), no Default or Event of Default has occurred and is continuing, and the requested disbursements from and the payments contemplated in connection therewith will not constitute, result in, nor create a Default or an Event of Default.
Exhibit D- Fonn of Disbursement Instruction
NY:1372970.24
SIGNATURE PAGE TO DISBURSEMENT INSTRUCTION
Dated this ________ day of _______________ _
[NAME OF INSTRUCTING PARTY]
By: ____________ _
Exhibit D - Form of Disbursement Instruction
NY; 1372970.24
EXHIBIT E
FORM OF AUTHORITY WITHDRAW AL CERTIFICATE
(Applicable Depositary Bank]
[address]
[address]
Attention: [Applicable Depositary Bank contact name]
Goldman Sachs Bank USA, as Collateral Agent
[address]
[address]
Attention: [Applicable Goldman Sachs contact name]
Ladies and Gentlemen:
This Withdrawal Certificate is delivered by Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority") pursuant to the provisions of the Deposit and Disbursement Agreement dated as of March 28, 2012 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), the Authority, Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent and collateral agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
1. The undersigned hereby refers to Section 3.10 of the Deposit and Disbursement Agreement. Pursuant to the terms of such Section the undersigned requests a transfer of funds which have been inadvertently or for convenience deposited to the Authority Revenue Account.
2. The requested disbursements should be drawn and disbursed from the Authority Revenue Account(s) in the foJlowing aggregate amount $ ________ (the "Specified Amount").
3. The undersigned hereby directs that the Specified Amount be transferred by [wire transfer][ACH transfer] to the following account(s):
Exhibit E - Fonn of Authority Withdrawal Certificate
NY: 1372970.24
Payee (including account
information and wire transfer
instructions):
Portion of Specified Amount:
$ __________ _
$ __________ _
$ __________ _
Exhibit E- Form of Authority Withdrawal Certificate
NY: 1372970.24
SIGNATURE .PAGE TO WITHDRAWAL CERTIFICATE
Dated this_. _______ day of _______________ _
NY: I 372970.24
SANTA CLARA STADIUM
AUTHORITY
By: ____________ _
Exhibit E- Form of Authority Withdrawal Certificate
EXHIBITF
FORM OF STADCO WITHDRAWAL CERTIFICATE
[Applicable Depositary Bank]
[address]
[address]
Attention: [Applicable Depositary Bank contact name]
Goldman Sachs Bank USA, as Collateral Agent
[address]
[address]
Attention: [Goldman Sachs contact name]
Ladies and Gentlemen:
This Withdrawal Certificate is delivered by Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo") pursuant to the provisions of the Deposit and Disbursement Agreement dated as of March 28, 2012 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority"), StadCo, Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent and collateral agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time. l. The undersigned hereby refers to Section 3.15 of the Deposit and Disbursement Agreement. Pursuant to the terms of such Section the undersigned requests a transfer of funds which have been inadvertently or for convenience deposited to the StadCo Revenue Account.
2. The requested disbursement should be drawn and disbursed from the StadCo Revenue Account(s) in the folJowing aggregate amount $ ________ (the "Specified Amount").
3. The undersigned hereby directs that the Specified Amount be transferred by [wire transfer][ACH transfer] to the following account(s):
Exhibit F - Fonn of StadCo Withdrawal Certificate
NY:1372970.24
Payee (including account
information and wire transfer
instructions):
Portion of Specified Amount:
$ __________ _
$ _________ _
$ __________ _
Exhibit F - Fonn of StadCo Withdrawal Certificate
NY:1372970.24
SIGNATURE PAGE TO WITHDRAWAL CERTIFICATE
Dated this ________ day of _______________ _
NY:1372970.24
.FORTY NINERS SC STADIUM
COMPANYLLC
By:-------------
Exhibit F - F onn of StadCo Withdrawal Certificate
EXHIBIT G
FORM OF SBL PROCEEDS CERTIFICATE
[Applicable Depositary Bank]
[address]
[address}
Attention: [App1icable Depositary Bank contact name]
Goldman Sachs Bank USA, as Collateral Agent
[address]
[address)
Attention: [Applicable Goldman Sachs contact name]
Ladies and Gentlemen:
This SBL Proceeds Certificate is delivered by Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority") pursuant to the provisions of the Deposit and Disbursement Agreement dated as of March 28, 2012 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), the Authority, Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent and collateral agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
The undersigned hereby refers to Section 3.10 of the Deposit and Disbursement Agreement.
Pursuant to the terms of such Section the undersigned hereby certifies that $ ____ of the Authority Revenues being deposited into the Authority Revenue Account on the date hereof constitute SBL Proceeds.
Exhibit G - Form of Authority Withdrawal Certificate
NY:1372970.24
SIGNATURE PAGE TO WITHDRAW AL CERTIFICATE
Dated this ________ day of _______________ _
NY: 13 72970.24
SANTA CLARA STADIUM
AUTHORITY
By: __________ _
Exhibit G - Form of Authority Withdrawal Certificate
Imaging Submission Form
Business Transaction Services (BTS)
NOTE: Each document must have a separate form completed prior to imaging 4/19/2012
85 (+ cover)
Priority: ___ x ___ High ____ Low
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EXECUTION COPY
AMENDED AND RESTATED DEPOSIT AND DISBURSEMENT AGREEMENT Dated as of June 19, 2013
made by and among
STADIUM FUNDING TRUST
SANTA CLARA STADIUM AUTHORITY,
FORTY NINERS SC STADIUM COMP ANY LLC,
GOLDMAN SACHS BANK USA,
as Administrative Agent,
U.S. BANK NATIONAL ASSOCIATION, .as Collateral Trustee and as a Depositary Bank and
BANK OF AMERICA, N.A., as a Depositary Bank
NY: 1564032.17
Table of Contents
Page
ARTICLE I DEFINITIONS ............................................................................................................ 4 Section 1.1
Section 1.2
Defined Terms ................................................................................................... 4 UCC Terms ...................................................................................................... 19 Section 1.3 Interpretation .................................................................................................... 19 ARTICLE II APPOINTMENT OF DEPOSITARY BANK; CREATION OF ACCOUNTS ..... .19 Section 2.1 App9intment of Depositary Bank .................................................................... 19 Section 2.2 Procedures Governing Accounts ...................................................................... 20 Section 2.3 Creation of Accounts ...................................................................................... .21 Section 2.4 Deposit Accounts ............................................................................................. 23 Section 2.5 Accounts as Collateral. ................................................................................... .23 Section 2.6 Control; Precedence ofinstructions ................................................................. 25 Section 2.7 Subordination of Lien; Waiver ofSet-Off. ...................................................... 26 Section 2.8 Other Representations and Covenants of Depositary Banks ........................... 26 ARTICLE III ACCOUNTS ........................................................................................................... 27 Section 3.1
Section 3.2
Section 3.3
Section 3.4
Account Diagram; Disbursement Instructions ................................................ .27 Trust Construction Account. ........................................................................... .28 Trust Revenue Account. ................................................................................... 30 Trust Rent and O,:llM Account.. ....................................................................... 38 Section 3 .5 Trust Debt Service Account. ........................................................................... .3 8 Section 3.6 Trust Debt Service Reserve Account. ............................................................. .41 Section 3.7 Trust Strike Reserve Account. ........................................................................ .42 Section 3.8 Reserved ........................................................... , ............................................... 43 Section 3.9 Trust Tax Distributions Account. ................................................................... .43 Section 3.10 Trust Excess Cash Flow Account. .................................................................. .43 Section 3.11 Trust Special Payments Account. ................................................................... .44 Section 3 .12 Authority Construction Account. .................................................................... .44 Section 3 .13 Authority Revenue Account. .......................................................................... .44 Section 3.14 Authority Ground Lease Rent and O&M Account. ........................................ .45 Section 3 .15 Authority Excess Borrowings Account. ......................................................... .46 Section 3.16 Authority Liquidated Damages and Insurance Proceeds Account. ................ .46 Section 3 .17 StadCo Construction Account... ...................................................................... .46 Section 3 .18 StadCo Revenue Account ............................................................................... .4 7 Section 3.19 StadCo O&M Account. .................................................................................... 48 Section 3.20 StadCo Tax Distributions Account. ................................................................ .49 Section 3.21 StadCo Liquidated Damages and Insurance Proceeds Account. .................... .49 Section 3.22 StadCo Excess Borrowings Account. ............................................................. .49 Section 3.23 StadCo Distributions Account. ........................................................................ 50 Section 3.24 Authority Distributions Account. ..................................................................... 50 ARTICLE IV ACCOUNT INFORMATION AND BALANCES ................................................ 50 Section 4.1 Information to Accompany Amounts Delivered to the Depositary Banks; Deposits Irrevocable; Payment Direction ........................................................ 50 Section 4.2 Books of Account. ........................................................................................... 51 Section 4.3 Account Balance Statements ........................................................................... .51 Section 4.4 Coordination Between Depositary Banks ........................................................ 52 ARTICLE V INVESTMENTS AND VALUATION .................................................................... 52 ii
Section 5.1
Section 5.2
Section 5.3
Table of Contents
( continued)
Investments ...................................................................................................... 52 Income or Gain ................................................................................................ 53 Value ................................................................................................................ 53 Section 5.4 Taxes ................................................................................................................ 53 ARTICLE VI APPOINTMENT AND DUTIES OF THE DEPOSITARY BANKS .................... 53 Section 6.1 Powers, Immunities and Standard ofCare .......................... , ............................ 53 Section 6.2 Reliance; Discretionary Matters ...................................................................... 54 Section 6.3 Compensation; Indemnification ....................................................................... 55 Section 6.4 Successor Depositary Bank .............................................................................. 56 Section 6.5 Additional Depositary Banks ........................................................................... 57 ARTICLE VII RIGHTS OF COLLATERAL TRUSTEE ............................................................. 58 Section 7.1 Rights of Collateral Trustee ............................................................................. 58 Section 7.2
Section 7.3
Limitation of Liability ...................................................................................... 5 8 Reliance by the Collateral Trustee ................................................................... 58 Section 7.4 Ambiguity or Inconsistency in Collateral Documents with Proposed Actions ............................................................................................................. 59 Section 7.5 Knowledge of Event of Default ....................................................................... 59 ARTICLE VIII EXERCISE OF RIGHTS UNDER SECURITY DOCUMENTS ........................ 60 Section 8.1 Actions Upon an Event ofDefault. .................................................................. 60 Section 8.2 Administration of Collateral. ........................................................................... 60 Section 8.3 Application of Proceeds After Acceleration .................................................... 60 ARTICLE IX LACK OF RELIANCE ON THE SECURITY AGENTS ...................................... 60 Section 9.1 No Reliance on the Security Agents ................................................................ 60 ARTICLE X MISCELLANEOUS ................................................................................................ 61 Section 10.1 Remedies Cumulative; Delay Not Waiver ....................................................... 61 Section 10.2 Perfection; Further Assurances; Certain Waivers ............................................ 61 Section 10.3 Continuing Assignment and Security Interest. ................................................ 63 Section 10.4 Termination of Security Interest. ..................................................................... 63 Section I 0.5 Security Interest Absolute ................................................................................ 64 Section I 0.6 Reinstatement. ................... : .............................................................................. 65 Section 10.7 Severability ...................................................................................................... 65 Section I 0.8 Survival of Provisions ...................................................................................... 65 Section I 0.9 Successions and Assignments .......................................................................... 65 Section IO.IO Headings .......................................................................................................... 66 Section I 0.11 Entire Agreement. ......... : .................................................................................. 66 Section I 0. 12 Counterparts ..................................................................................................... 66 Section 10.13 Limitation ofLiability ...................................................................................... 66 Section 10.14 APPLICABLE LAW ... , ................................................................................... 66 Section I 0.15 CONSENT TO JURISDICTION ..................................................................... 66 Section 10.16 W AIYER OF JURY TRIAL ............................................................................ 67 Section I 0.17 Expenses .......................................................................................................... 68 Section I 0.18 Agreement for Benefit of Parties Hereto ......................................................... 68 Section 10.19 No Warranties .................................................................................................. 68 Section 10.20 Notices ............................................................................................................. 68 iii
Table of Contents
( continued)
Page
Section 10.21 Transfers .......................................................................................................... 69 Section 10.22 No Impairments of Other Rights ...................................................................... 69 Section 10.23 Amendment; Waiver ........................................................................................ 69 Section 10.24 Incumbency Certificates; Authorized Persons ................................................. 70 Section 10.25 Termination ...................................................................................................... 70 Section 10.26 Limitation of Liability of Trustee .................................................................... 70 Section 10.27 NFL Requirements ........................................................................................... 70 Section 10.28 Force Majeure .................................................................................................. 70 Section 10.29 U.S.A. Patriot Act. ........................................................................................... 71
EXHIBITS
Exhibit A
ExhibitB
Exhibit C-1
Exhibit C-2
Exhibit C-3
Exhibit D
Exhibit E
Exhibit F
Exhibit G
ExhibitH
Account Names and Numbers
Accounts and Funds Flow Diagram
Note Purchase Agreement (Fixed Rate)
Note Purchase Agreement (Floating Rate)
Credit Agreement
Form of Disbursement Instruction
Form of Authority Withdrawal Certificate
Form of StadCo Withdrawal Certificate
Form of SBL Proceeds Certificate
Form of Suite Prepayment Proceeds Certificate
IV
This AMENDED AND RESTATED DEPOSIT AND DISBURSEMENT AGREEMENT (this "Agreement"), dated as of June 19, 2013, is made and entered into by and among STADIUM FUNDJNG TRUST, a Delaware statutory trust (the "Trust"), SANTA CLARA STADTIJM AUTHORlTY, a California joint exercise of powers entity (the "Authority"), FORTY NINERS SC STADIUM COMPANY LLC, a Delaware limited liability company ("StadCo"), GOLDMAN SACHS BANK USA, not in its individual capacity but solely in its capacity as administrative agent for the Lenders referred to below (together with any successor administrative agent ·appointed pursuant to Section 9. 7 of the Credit Agreement, the "Administrative Agent"), U.S. BANK NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely in its capacity as collateral trustee for the Secured-Parties referred to below (in such capacity, together with any successor collateral trustee appointed pursuant to Section 6.5 of the Collateral Trust and Intercreditor Agreement, the "Collateral Trustee"), U.S. BANK NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely in its capacity as a depositary bank and a Securities Intermediary (in such capacity, "U.S. Bank"), BANK OF AMERlCA, N.A., not in its individual capacity but solely in its capacity as a depositary bank and a Securities Intermediary ("BofA"), and each other Approved Bank who shall become a party hereto by execution of a joinder agreement or otherwise pursuant to Section 6.5 hereof (U.S. Bank, BofA and each such Approved Bank, together with any successor in such capacities appointed pursuant to Section 6.4 hereof, each a "Depositary Bank"). The Trust, the Authority, StadCo, the Administrative Agent, the Collateral Trustee and the Depositary Banks are sometimes collectively referred to as the "Parties" and each individually as a "~". Capitalized terms used herein and not otherwise defined shall be defined as provided in Sections 1.1 and 1.2.
RECITALS
WHEREAS, the Trust has entered into (a) a Note Purchase Agreement dated as of the Closing Date ( as amended, restated, supplemented or otherwise modified from time to time, the "Fixed Rate Note Purchase Agreement"), made by and among (i) the Trust, (ii) the purchasers party thereto (the "Fixed Rate Note Purchasers"), and (iii) the Collateral Trustee, pursuant to which the Floating Rate Note Purchasers have purchased $449,000,000 aggregate principal amount of the Trust's senior secured notes (the "Fixed Rate Notes"), (b) a Note Purchase Agreement dated as of the Closing Date (as amended, restated, supplemented or otherwise modified from time to time, the "Floating Rate Note Purchase Agreement" and together with the Fixed Rate Note Purchase Agreement, collectively, the "Note Purchase Agreements"), made by and among (i) the Trust, (ii) the purchasers party thereto (the "Floating Rate Note Purchasers" and together with the Fixed Rate Note Purchasers, the "Purchasers"), and (iii) the Collateral Trustee, pursuant to which the Floating Rate Note Purchasers will purchase $100,000,000 aggregate principal amount of the Trust's floating rate senior secured notes (the "Floating Rate Notes" and together with the Fixed Rate Notes, collectively, the "Notes"), and (c) a Credit Agreement, dated as of the Closing Date (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), made by and among (i) the Trust, (ii) the lenders party thereto from time to time (the "Lenders") (iii) the Administrative Agent, (iv) the Collateral Trustee, (iv) Goldman Sachs Bank USA, Merrill, Lynch, Pierce, Fenner & Smith Incorporated and U.S. Bank National Association, as Co-Lead Arrangers and Joint Bookrunners, (v) Bank of America, N.A. and U.S. Bank National Association, as Co-Syndication Agents and (vi) PNC Bank, N.A., JPMorgan Chase Bank, N.A. and OneWest Bank, FSB, as Co1 Documentation Agents, pursuant to which the Lenders have agreed to make term loans (the "Term Loans") to the Trust, the proceeds of which Notes and Term Loans will be used by the Trust to refinance certain outstanding indebtedness of the Trust and for the other purposes set forth more fully in the Note Purchase Agreements and Credit Agreement; WHEREAS, as security for (a) the obligations of the Trust under the Credit Agreement to (i)(A) the Collateral Trustee, the Agents and the Lenders under the Credit Documents and (B) any Lender Counterparly under any Hedge Agreement and (b) the obligations of the Trust under the Note Purchase Agreements to the Collateral Trustee and the holders of the Notes under the Note Documents (as defined in each of the Fixed Rate Note Purchase Agreement and the Floating Rate Note Purchase Agreement, collectively, the "Note Documents"), the Trust has entered or will enter into the Collateral Documents, including without limitation, that certain Pledge and Security Agreement between the Trust and the Collateral Trustee (the "Trust Pledge and Security Agreement");
WHEREAS, concurrently with the execution hereof the Authority has amended and restated the Authority Credit Agreement with the Trust and Goldman Sachs Bank USA, as administrative agent, pursuant to which the Trust has made and has agreed to make the Authority Term Loans to the Authority, the proceeds of which have been and will be used by the Authority to finance a portion of the costs of the design, development and construction of the Stadium and for the other purposes set forth more fully in the Authority Credit Agreement; WHEREAS, concurrently with the execution hereof StadCo has amended and restated the StadCo Credit Agreement with the Trust and Goldman Sachs Bank USA, as administrative agent, pursuant to which the Trust has made and has agreed to make the StadCo Term Loans to StadCo, the proceeds of which have been and will be used by StadCo to finance a portion of the costs of the development and construction of the Stadium and for the other purposes set forth more fully in the StadCo Credit Agreement;
WHEREAS, concurrently with the execution hereof, as security for the obligations of (i) the Authority under the Authority Credit Agreement and any Authority Hedge Agreement and (ii) StadCo under the StadCo Credit Agreement and any StadCo Hedge Agreement, respectively, each of the Authority and StadCo will amend and restate separate existing pledge and security agreements (the "Authority Pledge and Security Agreement" and the "StadCo Pledge and Security Agreement"; and, collectively, the "Pledge and Security Agreements") in favor of the Trust, as lender, under the Authority Credit Agreement and the StadCo Credit Agreement, and as Authority Lender Counterparty and StadCo Lender Counterparty, under any Authority Hedge Agreement or StadCo Hedge Agreement, as applicable, and the Trust will collaterally assign all of its rights, title and interest in and to such Pledge and Security Agreements in favor of the Collateral Trustee for the benefit of the Secured Parties as security for the Trust's Obligations under the Note Purchase Agreements, the Credit Agreement and any Hedge Agreements; WHEREAS, the Trust has agreed to secure all of the Secured Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a First Priority Lien on the Account Collateral;
2 WHEREAS, the Trust may, from and after the date hereof, incur Additional Permitted Secured Debt, which will be secured on a pari passu basis with the Secured Obligations by a First Priority Lien on the Collateral;
WHEREAS, the parties hereto desire to enter into this Agreement (a) to appoint each of U.S. Bank and BofA, and each other Approved Bank that becomes a party hereto, as a Depositary Bank hereunder, (b) to authorize the Collateral Trustee to hold certain Collateral and ( c) to set forth certain procedures for the deposit, investment and disbursement of (i) the proceeds of the Notes purchased by the Purchasers under the Note Purchase Agreements, (ii) the proceeds of the Term Loans made by the Lenders under the Credit Agreement, (iii) the proceeds of the Authority Term Loans made by the Trust under the Authority Credit Agreement, (iv) the proceeds of the StadCo Term Loans made by the Trust under the StadCo Credit Agreement, (v) all Revenues (as defined below), (vi) all other receipts of the Trust, the Authority and StadCo and all amounts generated thereby, in each case, except as specifically excluded pursuant to the terms of this Agreement and (vii) all proceeds of the foregoing; WHEREAS, pursuant to the Collateral Trust and Intercreditor Agreement, dated as of the Closing Date (the "Collateral Trust and Intercreditor Agreement") among the Trust, the Collateral Trustee, the Administrative Agent and the other Persons party thereto from time to time, the parties thereto have agreed to, among other things, certain rights, obligations and priorities in respect of the Collateral and certain other collateral granted as security by the Trust as security for the Secured Obligations;
WHEREAS, this Agreement amends, restates and supersedes in its entirety that certain Deposit and Disbursement Agreement dated as of March 28, 2012, by and among the Trust, the Authority, StadCo, Goldman Sachs Bank USA as collateral agent, the Administrative Agent, U.S. Bank and BofA; and
WHEREAS, it is a condition precedent to the effectiveness of the Note Purchase Agreements and the Credit Agreement that the Trust shall have entered into this Agreement and shall have granted the security interest and made the pledge and assignment contemplated hereby.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the agreements, provisions and covenants herein contained, and to induce (i) the Purchasers to enter into the Note Purchase Agreements and to purchase the Notes, (ii) the Lenders to enter into the Credit Agreement and to make the Credit Extensions described therein, (iii) the Trust to amend and restate the Authority Credit Agreement and to make the Authority Credit Extensions described therein and (iv) the Trust to amend and restate the StadCo Credit Agreement and to make the StadCo Credit Extensions described therein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
3 ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement the following terms have the following meanings (terms defined in the singular to have the same meaning when used in the plural and vice versa). All capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Fixed Rate Note Purchase Agreement, the Floating Rate Note Purchase Agreement or the Credit Agreement as in effect on the date hereof, copies of which are attached hereto at Exhibit C-1, Exhibit C-2 and Exhibit C-3, respectively. All references in this Agreement to sections and exhibits are to sections and exhibits in or to this Agreement unless otherwise specified. "Account Collateral" has the meaning assigned to that term in Section 2.5( c ). "Accounts" has the meaning assigned to that term in Section 2.3. "Act of Required Creditors" has the meaning given to such term in the Collateral Trust and Intercreditor Agreement.
"Additional Permitted Secured Debt" has the meaning assigned to that term in the Collateral Trust and Intercreditor Agreement.
"Administrative Agent" has the meaning assigned to that term in the first paragraph of this Agreement.
"Administrative Agent Claims" means all obligations of the Trust, the Authority and StadCo now or hereafter existing, to pay fees, costs, expenses and other amounts to the Administrative Agent under the Credit Documents and any instruments or documents executed and delivered pursuant thereto.
"Agreement" means this Amended and Restated Deposit and Disbursement Agreement, as the same may be amended, restated, modified or supplemented from time to time.
"Annual Capital Reserve Amount" has the meaning assigned to such term in StadCo Lease.
"Annual Debt Service Lookforward" means an amount equal to, collectively, the applicable Authority Debt Service Annual Amount and the StadCo Debt Service Annual Amount.
"Annual Expense Lookforward" means an amount equal to, collectively, the applicable Ground Lease Rent Annual Amount, the Authority O&M Annual Amount, the StadCo Lease Rent Annual Amount and the StadCo O&M Annual Amount. "Approved Bank" means any commercial bank (i) having ( or in the case of a bank holding company, its corporate parent shall have) a combined capital and surplus of at least $100,000,000 and (ii) that has executed and delivered to the Collateral Trustee (A) a 4 signature page or joinder to this Agreement and (B) any other instruments and documents that the Collateral Trustee may reasonably request.
"Authority Account Collateral" has the meaning assigned to that term in Section
2.5(b).
"Authority Accounts" means, collectively, the Authority Construction Account, the Authority Distributions Account, the Authority Excess Borrowings Account, the Authority Ground Lease Rent and O&M Account, the Authority Liquidated Damages and Insurance Proceeds Account and the Authority Revenue Account.
"Authority Collateral Documents" means the "Collateral Documents", as such term is defined in the Authority Credit Agreement.
"Authority Construction Account" has the meaning assigned to that term in Section
2.3(a)(xi).
"Authority Construction Revenues" means all Authority Revenues received by the Authority from the Stadium Project prior to September 1, 2015 as a result of SBLs and all interest income and investment earnings related thereto. "Authority Credit Agreement" means that certain Amended and Restated Credit Agreement dated as of the Closing Date, among the Trust, the Authority and Goldman Sachs Bank USA, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Authority Credit Documents" has the meaning assigned to that term in the Authority Credit Agreement.
"Authority Credit Extension" means an Authority Term A Credit Extension or an Authority Term B Credit Extension.
"Authority Debt Service Annual Amount" means, for any date, the amount of estimated debt service (including, without limitation, Ordinary Course Settlement Payments) to be paid by the Authority over the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget; provided, that, for purposes of this definition, such debt service shall be deemed to exclude prepayments made pursuant to Section 2.14( d) of the Authority Credit Agreement and the related Exhibit 0--Required ECF Transfer Calculation. "Authority Debt Service Monthly Amount" means the amount of estimated debt service (including, without limitation, Ordinary Course Settlement Payments) to be paid by the Authority for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget; provided, that, for purposes of this definition, such debt service shall be deemed to exclude the prepayments made pursuant to Section 2. 14( d) of the Authority Credit Agreement and the related Exhibit 0--Required ECF Transfer Calculation. 5 "Authority Distributions Account" has the meaning assigned to that term in Section
2.3(a)(xii)
"Authority Excess Borrowings Account" has the meaning assigned to that term in Section 2.3( a)(xiii).
"Authority Ground Lease Rent and O&M Account" has the meaning assigned to that term in Section 2.3(a)(xiv).
"Authority Hedge Agreement" means a "Hedge Agreement", as such term is defined in the Authority Credit Agreement.
"Authority Hedge Receipts" means any amounts received by the Authority pursuant to an Authority Hedge Agreement.
"Authority Lender Counterparty" means the "Lender", as such term is defined in the Authority Credit Agreement.
"Authority Liguidated Damages and Insurance Proceeds Account" has the meaning assigned to that term in Section 2.3(a)(xv).
"Authority Non-Relocation Agreement" means that certain Amended and Restated Non-Relocation Agreement (Stadium Authority) dated as of the Closing Date, between the Team and the Authority, as the same may be further amended, restated, supplemented or modified from time to time.
"Authority O&M Annual Amount" means, for any date, the amount of estimated operations and maintenance expenses to be paid by the Authority over the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget.
"Authority O&M Monthly Amount" means the amount of estimated operations and maintenance expenses to be paid by the Authority for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"Authority Obligations" means the "Obligations", as such term 1s defined in the Authority Credit Agreement.
"Authority Pledge and Security Agreement" is defined in the recitals hereto. "Authority Reserve Share" means a fraction, the numerator of which is the thenoutstanding principal amount of all Authority Term Loans, and the denominator of which is the sum of the then-outstanding principal amounts of all Authority Term Loans and all StadCo Term Loans.
"Authority Revenue Account" has the meaning assigned to that term m Section
2.3(a)(xvi).
6 "Authority Revenues" means all revenues ( on a cash received basis rather than a GAAP basis) (including all Stadium Authority Revenue but excluding (i) the City of Santa Clara Senior and Youth Program Fee, (ii) 50% of the Non-NFL Ticket Surcharge, and (iii) all amounts payable by the Authority to a third party taxing authority in respect of sales, use, excise, admission or similar taxes or charges) received by the Authority from the Stadium Project, any Authority Hedge Receipts and all interest income and investment earnings related thereto, which Authority Revenues are pledged by the Authority to the Trust pursuant to the Authority Pledge and Security Agreement. For the avoidance of doubt, moneys, if any, received by the Authority (i) but required to be paid to StadCo in satisfaction of the Authority's obligations under the StadCo Agency Advance or (ii) from the City of Santa Clara Community Facilities District No. 2010-1 (the "CFD") pursuant to that certain Reimbursement Agreement dated as of June 19, 2013 among the CFD, the Authority and StadCo, shall not, in each case, constitute Authority Revenues.
"Authority Term A Credit Extension" means a "Term A Credit Extension", as such term is defined in the Authority Credit Agreement.
"Authority Term B Credit Extension" means a "Term B Credit Extension", as such term is defined in the Authority Credit Agreement.
"Authority Term A Loan" means a "Term A Loan", as such term is defined in the Authority Credit Agreement.
"Authority Term B Loan" means a "Term B Loan", as such term is defined in the Authority Credit Agreement.
"Authority Term Loans" means, collectively, the Authority Term A Loans and the Authority Term B Loans.
"Authority Withdrawal Certificate" is defined in Section 3. 13. "Balloon Payment" as defined in the definition of"Distribution Debt Service". "Book-Entry Security" means a security maintained in the form of entries (including the Security Entitlements in, and the financial assets based on, such security) in the commercial book-entry system of the Federal Reserve System.
"Breakage Amounts" has the meaning assigned to such term in the Floating Rate Note Purchase Agreement.
"City of Santa Clara Senior and Youth Program Fee" has the meaning assigned to such term in the StadCo Lease.
"Closing Date" means June 19, 2013.
"Collateral Trust and Intercreditor Agreement" is defined m the recitals to this Agreement.
7 "Collateral Trustee" has the meaning assigned to that term in the first paragraph of this Agreement.
"Collateral Trustee Claims" means all obligations of the Trust, the Authority and StadCo now or hereafter existing, to pay fees, costs, expenses and other amounts to the Collateral Trustee under the Note Documents or the Credit Documents and any instruments or documents executed and delivered pursuant thereto.
"Construction Note Proceeds" means that pmtion of the proceeds of the Notes deposited in the Trust Construction Account and available to the Trust to make additional Authority Term A Loans, StadCo Term A Loans and StadCo Term C Loans pursuant to the terms of the Authority Credit Agreement and the StadCo Credit Agreement, respectively. "Costs of Financing" means (i) fees, costs, expenses and other amounts incurred in connection with the Note Purchase Agreements and the other Note Documents, the Credit Agreement, the Authority Credit Agreement, the StadCo Credit Agreement and the other Credit Documents, Authority Credit Documents and StadCo Credit Documents which may include, but are not limited to, document printing and reproduction costs, filing and recording fees, costs of credit ratings, fees and charges of the Collateral Trustee, the Administrative Agent and each of the other Agents, legal fees and charges, professional consultants' fees, placement agent fees, premiums and other costs, charges and fees, including those incurred by the Trust, the Authority or StadCo, as applicable, in connection with the foregoing and (ii) Ordinary Course Settlement Payments and Termination Payments to be made by the Trust to any Lender Counterparty, the Authority to any Authority Lender Counterparty or StadCo to any StadCo Lender Counterparty, as applicable.
"Debt Service Reserve Reguired Amount" means an amount equal to 50% of Maximum Annual Debt Service.
"Depositary Bank" has the meaning assigned to that term in the first paragraph of this Agreement. All references to the Depositary Bank shall mean any Depositary Bank, the Depositary Bank with respect to a specific Account or all Depositary Banks, as the context may reqmre.
"Depositary Bank Claims" means all obligations of the Trust, the Authority and StadCo, now or hereafter existing, to pay costs, expenses and other amounts to a Depositary Bank pursuant to Section 10.17 hereof.
"Distribution Condition" means:
(a) For the period from and after commencement of operations at the Stadium, with the first test date occurring as of the completion of the second full fiscal quarter after Substantial Completion, the ratio determined for the then most recently-ended four fiscal quarters of the Trust ( or if four fiscal quarters have not yet ended since the commencement of operations at the Stadium, such lesser number of fiscal quarters that have so ended), of (i) Revenues for such period, to
8 (ii) Distribution Debt Service for such period,
is at least 1.25 to 1.00; and
(b) For the period from and after commencement of operations at the Stadium, with the first test date occurring as of the completion of the first full fiscal quarter after Substantial Completion, the ratio determined for the four fiscal quarter period beginning with the fiscal quarter in which such test date occurs, of
(i) Revenues, determined on a pro forma basis, for such four fiscal quarter period, to
(ii) Distribution Debt Service for such period,
is at least 1.25 to 1.00.
"Distribution Debt Service" means the sum of (i) Distribution Interest Expense ( calculated at the interest rate payable on such indebtedness on the date of calculation) for such period, plus (ii) the aggregate amount of regularly scheduled payments required to be made during such period in respect of principal on any Indebtedness; provided, that, for purposes of this definition, Distribution Debt Service shall be deemed to include for each quarter of such period a pro rata amount of the applicable Excess Cash Flow Target Amortization Amount. For purposes of calculating the aggregate amount of payments required to be made during any such period in respect of principal on any Indebtedness, for any such Indebtedness for which greater than 25% of the principal amount thereof (a "Balloon Payment") becomes due and payable in any such period, such Balloon Payment shall be excluded. "Distribution Interest Expense" means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the Trust with respect to any Indebtedness, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under any related Hedge Agreement, but excluding, however, any amount not payable in cash. "Entitlement Holder" means a Person that (a) is an "entitlement holder" as defined in Section 8-102(a)(7) of the UCC (except in respect of a Book-Entry Security) and (b) in respect of any Book-Entry Security, is an "entitlement holder" as defined in 31 C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such Book-Entry Security) which, to the extent required or permitted by the Federal Book-Entry Regulations, is also an "entitlement holder" as defined in Section 8-102( a)(7) of the ucc.
"Excess Cash Flow Target Amortization Amount" means the amount set forth as the Excess Cash Flow Target Amortization Amount on Table 1 of Exhibit O-Required ECF Transfer Calculation of either the StadCo Credit Agreement or the Authority Credit Agreement, without duplication.
"Fixed Rate Note Documents" means any of the Fixed Rate Notes, the Fixed Rate Note Purchase Agreement and all other documents, certificates, instruments or agreements executed 9 and delivered by the Trust for the benefit of the Collateral Trustee or any holder of a Fixed Rate Note in connection therewith, as the same may be amended, restated, snpplemented or otherwise modified from time to time.
"Fixed Rate Note Purchase Agreement" is defined in the recitals to this Agreement. "Fixed Rate Noteholder" shall mean a holder of a Fixed Rate Note under the Fixed Rate Note Purchase Agreement.
"Fixed Rate Notes" is defined in the recitals to this Agreement. "Floating Rate Note Documents" means any of the Floating Rate Notes, the Floating Rate Note Purchase Agreement and all other documents, certificates, instruments or agreements executed and delivered by the Trust for the benefit of the Collateral Trustee or any holder of a Floating Rate Note in connection therewith, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Floating Rate Note Purchase Agreement" is defined in the recitals to this Agreement. "Floating Rate Noteholder" shall mean a holder of a Floating Rate Note under the Floating Rate Note Purchase Agreement.
"Floating Rate Notes" is defined in the recitals to this Agreement. "Ground Lease Rent Annual Amount" means, for any date, the amount of estimated rental payments to be paid by the Authority under the Ground Lease for the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget.
"Ground Lease Rent Monthly Amount" means the amount of rental payments to be paid by the Authority under the Ground Lease for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"Initial Debt Service" means the sum of (i) Initial Debt Interest Expense ( calculated at the interest rate payable on such indebtedness on the date of calculation) for such period, plus (ii) the aggregate amount of payments required to be made during such period in respect of principal on the Term Loans and the Notes.
"Initial Debt Interest Expense" means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the Trust with respect to the outstanding Indebtedness of the Trust related to the Term Loans and the Notes, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under any related Hedge Agreement, but excluding, however, any amount not payable in cash. "Lease Year" has the meaning assigned to that term in the StadCo Lease. 10 "Loan Obligations" means the "Obligations" as such term is defined in the Credit Agreement.
"ManagementCo Line of Credit Agreement" means that certain Amended and Restated Line of Credit Agreement, dated as of the Closing Date, entered into by and between the Authority and Forty Niners Stadium Management Company LLC, as the same may be amended, restated, supplemented or otherwise modified from time to time. '
"Maximum Annual Debt Service" means, as of any date of calculation, an amount equal to the maximum aggregate Initial Debt Service payable during the then-current or any future Fiscal Year with respect to any then-outstanding Term Loans and Notes; provided, that, for purposes of this definition, Initial Debt Service shall be deemed to (A) include prepayments required to be made pursuant to Sections 2.14(a) and (b) of the Credit Agreement relating to payments made pursuant to (i) Section 2.14( d) of the Authority Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation and (ii) Section 2.14( d) of the StadCo Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation and (B) exclude principal payments of the Term Loans scheduled to be made on the Maturity Date with respect thereto.
"Monthly Date" means the 15th day of each calendar month occurring after the Closing Date ( or, if such 15th day is not a Business Day, the immediately succeeding Business Day).
"NFL CBA" means a collective bargaining agreement between the NFL and the NFL Players Association, or their respective successors.
NFL.
"NFL Players Association" means the union for professional football players in the "Non-NFL Ticket Surcharge" has the meaning assigned to such term in the StadCo Lease.
"Non-Relocation Agreement" means that certain Non-Relocation Agreement (Collateral Trustee) dated as of the Closing Date between the Team and the Collateral Trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time. "Note Documents" is defined in the recitals of this Agreement. "Note Obligations" means the "Obligations" as such term is defined in each of the Note Purchase Agreements.
"Ordinary Course Settlement Payments" means all payments due by (i) the Trust under any Hedge Agreement, (ii) StadCo under any StadCo Hedge Agreement or (iii) the Authority under any Authority Hedge Agreement, in each case from time to time, calculated in accordance with the respective terms of such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, but excluding, as applicable, any "Early Termination Amounts" or "Close-out Amounts" (as such terms are used in the 2002 ISDA Master Agreement), any "Settlement Amounts" (as such term is defined in the 1992 ISDA Master Agreement) or any Termination 11 Payments due and payable under such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement.
"Permitted Investments" means investments described in one of the categories below; provided, however, that (A) amounts held in StadCo Accounts and StadCo subaccounts may not be invested in any investments which are not also permitted under StadCo's then-current investment guidelines, and (B) amounts held in Authority Accounts and Authority subaccounts may not be invested in any investments which are not also permitted under the then-current investment policy of the Authority:
(a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date;
(b) marketable direct obligations issued by any state· of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P, at least A-1 from Fitch, or at least P-1 from Moody's; ( c) commercial paper maturing no more than three months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P, at least A-1 from Fitch, or at least P-1 from Moody's;
( d) certificates of deposit or bankers' acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least "adequately capitalized" ( as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000; and
( e) shares of any money market mutual fund that (i) has substantially all of its assets . invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $5,000,000,000, and (iii) has the highest rating obtainable from S&P, Fitch, or Moody's.
"Predevelopment Make-Ready Distribution" has the meaning assigned to that term in the StadCo Credit Agreement.
"Prepaid Contracts" means any contract or agreement pursuant to which (i) Suite Prepayment Proceeds are received by StadCo, and (ii) certain payments owing in multiple years of such contract or agreement are prepaid prior to September 1, 2015. For the avoidance of doubt, all amounts received in respect of a contract or agreement that constitutes a Prepaid Contract are StadCo Revenues.
"Prepayment Premium" has the meaning assigned to that term in the Floating Rate Note Purchase Agreement.
12 "Project Liquidated Damages and Insurance Proceeds" means, collectively, (i) all liquidated damages paid by the Design-Builder under the Design-Build Agreement, (ii) all insurance proceeds in respect of an event of loss or damage to the Stadium Project and (iii) all proceeds in respect of any taking or condemnation of the Stadium Project, in each case which are received by the Authority, StadCo as agent for the Authority or otherwise, the Collateral Trustee or any Secured Party.
"Required Amount" is defined in Section 3 .1 7.
"Reguired Creditors" has the meaning given to such term in the Collateral Trust and Intercreditor Agreement.
"Revenues" means all Authority Revenues and StadCo Revenues. "SBL Proceeds" means all payments, revenues, rents, royalties, issues, profits, fees and other proceeds paid or payable by the applicable licensees for any SBLs, net of costs of issuance or sale.
"SBL Proceeds Certificate" is defined in Section 3 .13. "SBLs" has the meaning assigned to that term in the StadCo Lease. "Second Team" has the meaning assigned to that term in the StadCo Lease. "Second Team Costs" means a cost payable by StadCo pursuant to Article 17 of the StadCo Lease in connection with StadCo's entry into a Second Team Sublease. "Second Team Construction Revenue" means any upfront payments received by StadCo from a Second Team and available to fund Second Team Costs. "Second Team Seat Licenses" has the meaning assigned to that term in the StadCo Lease.
"Second Team Seat License Proceeds" shall mean all payments, revenues, rents, royalties, issues, profits, fees and other proceeds paid or payable by the applicable licensees for any Second Team Seat Licenses, net of costs of issuance or sale, and excluding any related finance charges paid or payable by such licensees. "Second Team Sublease" has the meaning assigned to that term in the StadCo Lease. "Secured Obligations" has the meaning assigned to that term in the Collateral Trust and Intercreditor Agreement.
"Secured Parties" has the meaning assigned to that term in the Collateral Trust and Intercreditor Agreement.
"Securities Intermediary" means a Person that (a) is a "securities intermediary" as defined in Section 8-102(a)(l4) of the UCC and (b) in respect of any Book-Entry Security, is 13 also a "securities intermediary" as defined in 31 C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such BookEntry Security). "Security Agents" means, collectively, the Collateral Trustee and each Depositary Bank.
"Security Entitlement" means (a) "security entitlement" as defined in Section 8- 102(a)(l 7) of the UCC (except in respect of a Book-Entry Security) and (b) in respect of any Book-Entry Security, a "security entitlement" as defined in 31 C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such Book-Entry Security) which, to the extent required or permitted by the Federal Book-Entry Regulations, is also a "security entitlement" as defined in Section 8-102(a)(l 7) of the UCC.
"Special Payments" means any damages, indemnity payments and similar amounts received by StadCo, the Authority, the Trust, the Collateral Trustee or any Secured Party pursuant to the Related Agreements, including any liquidated damages received pursuant to the terms of the Non-Relocation Agreement or Authority Non-Relocation Agreement. For the avoidance of doubt, "Special Payments" shall not . include any Project Liquidated Damages and Insurance Proceeds.
"StadCo Account Collateral" has the meaning assigned to that term in Section 2.5( c ). "StadCo Accounts" means, collectively, the StadCo Construction Account, the StadCo Distributions Account, the StadCo Excess Borrowings Account, the StadCo O&M Account, the StadCo Revenue Account, the StadCo Liquidated Damages and Insurance Proceeds Account and the StadCo Tax Distributions Account. "StadCo Agency Advance" has the meaning assigned to that term in the Funding Agreement.
"StadCo CFD Advance" has the meaning assigned to that term m the Funding Agreement.
"StadCo Collateral Documents" means the "Collateral Documents", as such term is defmed in the StadCo Credit Agreement.
"StadCo Construction Account" has the meaning assigned to that term in Section
2.3(a)(xvii).
"StadCo Construction Revenues" means (i) all StadCo Revenues received by StadCo from the Stadium Project prior to September!, 2015 as a result of Prepaid Contracts, (ii) any refund to StadCo of moneys previously deposited with the Authority in connection with make-ready work related to the Stadium Project, and (iii) all interest income and investment earnings related to the foregoing.
14 "StadCo Credit Agreement" means that certain Credit Agreement dated as of March 28, 2012, and amended and restated as of the date hereof, among the Trust, StadCo and Goldman Sachs Bank USA, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"StadCo Credit Documents" has the meaning assigned to that term in the StadCo Credit Agreement.
"StadCo Credit Extension" means a StadCo Term A Credit Extension, a StadCo Term B Credit Extension or a StadCo Term C Credit Extension. "StadCo Debt Service Annual Amount" means, for any date, the amount of estimated debt service (including, without limitation, Ordinary Course Settlement Payments) to be paid by StadCo over the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget; provided, that, for purposes of this definition, debt service shall be deemed to exclude prepayments made pursuant to Section 2. I 4(d) of the StadCo Credit Agreement and the related Exhibit 0-Required ECF Transfer Calculation.
"StadCo Debt Service Monthly Amount" means the amount of estimated debt service (including, without limitation, Ordinary Course Settlement Payments) to be paid by StadCo for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget; provided, that, for purposes of this defmition, Debt Service shall be deemed to exclude the prepayments made pursuant to Section 2.14( d) of the StadCo Credit Agreement and the related Exhibit 0-Required ECF Transfer Calculation. "StadCo Distributions Account" has the meaning assigned to that term in Section
2.3(a)(xviii)
"StadCo Excess Borrowings Account" has the meaning assigned to that term in Section 2.3(a)(xix).
"StadCo Hedge Agreement" means a "Hedge Agreement", as such term is defined in the StadCo Credit Agreement.
"StadCo Hedge Receipts" means any amounts received by StadCo pursuant to a StadCo Hedge Agreement.
"StadCo Lease Rent Annual Amount" means, for any date, the amount of estimated rental payments to be paid by StadCo under the StadCo Lease over the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget.
"StadCo Lease Rent Monthly Amount" means the amount of rental payments to be paid by StadCo under the StadCo Lease for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
15 "StadCo Lender Counterparty" means the "Lender", as such term is defined in the StadCo Credit Agreement.
"StadCo Liquidated Damages and Insurance Proceeds Account" has the meaning assigned to that term in Section 2.3(a)(xx).
"StadCo O&M Account" has the meanmg assigned to that term m Section
2.3(a)(xxi).
"StadCo O&M Annual Amount" means, for any date, the amount of estimated operations and maintenance expenses to be paid by StadCo over the remainder of the thencurrent Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget.
"StadCo O&M Monthly Amount" means the amount of estimated operations and maintenance expenses to be paid by StadCo for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"StadCo Obligations" means the "Obligations" as such term is defined in the StadCo Credit Agreement.
"StadCo Pledge and Security Agreement" is defined in the recitals hereto. "StadCo Reserve Share" means a fraction, the numerator of which is the thenoutstanding principal amount of all StadCo Term Loans, and the denominator of which is the sum of the then-outstanding principal amounts of all StadCo Term Loans and all Authority Term Loans.
"StadCo Revenue Account" has the meanmg assigned to that term m Section
2.3(a)(xxii).
"StadCo Revenues" means all revenues ( on a cash received basis rather than a GAAP basis) (including all Tenant Revenue but excluding (i) the City of Santa Clara Senior and Youth Program Fee, (ii) the ticket component, or visiting team share of amounts in excess of the ticket component, of any club seat or private suite revenues and any other revenues to which the NFL, the NFL's Affiliates or the Team is entitled, (iii) the proceeds of the NFL G-4 Facility received by StadCo, and (iv) all amounts payable by StadCo to a third party taxing authority in respect of sales, use, excise, admission or similar taxes or charges), received by StadCo from the Stadium Project, any StadCo Hedge Receipts and all interest income and investment earnings related thereto, which StadCo Revenues are pledged by StadCo to the Trust pursuant to the StadCo Pledge and Security Agreement. "StadCo Tax Distributions Account" has the meaning assigned to that term m Section 2.3(a)(x:xiii).
"StadCo Tax Distributions Amount" means, for any date, the amount of estimated taxes ( calculated at the highest federal, state and local marginal tax rate applicable to 16 individuals) to be paid by the direct and indirect members of StadCo over the ensuing twelve (12) month period as a result of the operations of StadCo. "StadCo Term A Credit Extension" means a "Term A Credit Extension", as such term is defined in the StadCo Credit Agreement.
"StadCo Term A Loan" means a "Term A Loan", as such term is defined in the StadCo Credit Agreement.
"StadCo Term B Credit Extension" means a "Term B Credit Extension", as such term is defined in the StadCo Credit Agreement.
"StadCo Term B Loan" means a "Term B Loan", as such term 1s defined in the StadCo Credit Agreement.
"StadCo Term C Credit Extension" means a "Term C Credit Extension", as such term is defined in the StadCo Credit Agreement.
"StadCo Term C Loan" means a "Term C Loan", as such term is defmed in the StadCo Credit Agreement.
"StadCo Term Loans" means, collectively, the StadCo Term A Loans, the StadCo Term B Loans and the StadCo Term C Loans.
"StadCo Withdrawal Certificate" is defined in Section 3.18, "Stadium Authority Revenue" has the meaning assigned to such term in the StadCo Lease.
"Stadium Capital Expenditure Reserve Account" has the meaning assigned to such term in the StadCo Lease.
"Stadium Construction Revenues" means, collectively, Authority Construction Revenues and StadCo Construction Revenues.
"Strike" means (i) a players' strike or work stoppage called by the NFL Players Association or any successor organization, (ii) an NFL lockout of the NFL Players Association, or (iii) any other termination, suspension or cancellation of regular season football games caused by the expiration or termination of an NFL CBA.
"Strike Reserve Commencement Date" means the date that is 12 months prior to the expiration of the then-current NFL CBA.
"Strike Reserve Requirement" means, during the period beginning on any Strike Reserve Commencement Date and concluding on the following Strike Risk Conclusion Date, an amount equal to 50% of Maximum Annual Debt Service. 17 "Strike Risk Conclusion Date" means the date on which the then-current NFL CBA is extended or a new NFL CBA becomes effective, either upon execution of a letter of intent with respect thereto or otherwise.
"Substantial Completion" has the meaning assigned to such term 111 the Note Purchase Agreements.
"Suite Prepayment Proceeds" means the first $150,000,000 of payments, revenues, rents, royalties, issues, profits, fees and other proceeds from prepayments of amounts owing in multiple years of suite license contracts or agreements ( excluding for the avoidance of doubt, the ticket component of any amounts so paid) made by licensees of suites at the Stadium received by StadCo at any time on or prior to December 31, 2014. "Tenant Improvements" has the meaning assigned to such term in the Disposition and Development Agreement.
"Tenant Revenue" has the meaning assigned to such term in the StadCo Lease. "Termination Date" means (i) with respect to Authority Accounts, the date the Authority Obligations (other than contingent indemnification obligations) are paid in full, (ii) with respect to the StadCo Accounts, the date the StadCo Obligations ( other than contingent indemnification obligations) are paid in full and (iii) with respect to the Trust Accounts, the date on which the Trust Obligations ( other than contingent indemnification obligations) are paid in full.
"Termination Payments" means all amounts due from the Trust, StadCo or the Authority in connection with any unwinding, breach, cash settlement or termination of any transactions under a Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, all as calculated pursuant to such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement; provided, that for the avoidance of doubt, "Termination Payments" shall not include any Ordinary Course Settlement Payments due under any such Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement. 'Trust" has the meaning assigned to that term in the first paragraph of this Agreement.
"Trust Account Collateral" has the meaning assigned to such term in Section 2.5(a). "Trust Accounts" means, collectively, the Trust Construction Account, the Trust Debt Service Account, the Trust Debt Service Reserve Account, the Trust Excess Cash Flow Account, the Trust Rent and O&M Account, the Trust Strike Reserve Account, the Trust Revenue Account, the Trust Special Payments Account and the Trust Tax Distributions Account.
"Trust Construction Account" has the meanmg assigned to that term in Section
2.3(a)(i).
18 "Trust Debt Service Account" has the mearung assigned to that term m Section
2.3(a)(ii).
"Trust Debt Service Reserve Account" has the meaning assigned to that term in Section 2.3(a)(iii)
"Trust Excess Cash Flow Account" has the meaning assigned to that term in Section
2.3(a)(iv).
"Trust Hedge Receipts" has the meaning assigned to that term in Section 3.2(c). "Trust Obligations" means the Note Obligations and the Loan Obligations. "Trust Rent and O&M Account" has the meaning assigned to that term in Section
2.3(a)(v).
"Trust Revenue Account" has the meaning assigned to that term in Section 2.3(a)(vi). "Trust Special Payments Account" has the meaning assigned to that term in Section
2.3(a)(x).
"Trust Strike Reserve Account" has the meaning assigned to that term in Section
2.3(a)(viii).
"Trust Tax Distributions Account" has the meaning assigned to that term in Section
2.3(a)(ix).
Section 1.2 UCC Terms. All terms defined in the UCC shall have the respective meanings given to those terms in the UCC, except where otherwise defined in the Credit Agreement or this Agreement or the context requires otherwise.
Section 1.3 Interpretation. For all purposes of this Agreement, except as otherwise expressly provided, the rules of interpretation set forth in the final paragraph of Schedule A to the Note Purchase Agreements, Section 1.3 of the Credit Agreement, Section 1.3 of the Authority Credit Agreement and Section 1.3 of the StadCo Credit Agreement are hereby incorporated by reference, mutatis mutandis, as if fully set forth herein.
ARTICLE II
APPOINTMENT OF DEPOSITARY BANK; CREATION OF ACCOUNTS
Section 2.1 Appointment of Depositary Bank.
(a) (i) As of the Closing Date, each of U.S. Bank and BofA is hereby appointed to act as (A) a Depositary Bank for the Collateral Trustee and as agent of the Collateral Trustee with respect to its respective Accounts as set forth in Exhibit A and the other applicable Account Collateral and (B) Securities Intermediary with respect to such Depositary Bank's respective Accounts hereunder, with such powers as are expressly delegated to such Depositary Bank by the terms of this Agreement, together with such other powers as are reasonably incidental thereto 19 and such Depositary Bank hereby accepts such appointment; and (ii) after the Closing Date, each Approved Bank that becomes a party hereto is hereby appointed to act as (A) a Depositary Bank for the Collateral Trustee and as agent of the Collateral Trustee with respect to such Depositary Bank's respective Accounts as set forth in Exhibit A, as the same may be amended from time to time, and the other applicable Account Collateral and (B) Securities Intermediary with respect to such Depositary Bank's respective Accounts hereunder, with such powers as are expressly delegated to such Depositary Bank by the terms of this Agreement, together with such other powers as are reasonably incidental thereto and such Depositary Bank hereby accepts such appointment. The Parties hereby acknowledge that each Depositary Bank shall act as Securities Intermediary with respect to its respective Accounts and pursuant to this Agreement. Each Depositary Bank agrees to accept and hold, in its custody and in accordance with the terms of this Agreement, its Accounts and all funds, instruments, securities, financial assets, and other assets delivered to such Depositary Bank pursuant to the terms of this Agreement. (b) Any other provision hereof to the contrary notwithstanding, no Depositary Bank shall have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions or responsibilities shall be read into this Agreement or otherwise exist against any Depositary Bank.
Section 2.2 Procedures Governing Accounts.
(a) Each Depositary Bank hereby agrees to promptly deposit all amounts to be delivered to or held by such Depositary Bank pursuant to the terms of this Agreement into its respective Accounts established hereunder. Each Depositary Bank shall hold and safeguard its Accounts during the term of this Agreement and shall treat the amounts, and all rights related thereto, now or hereafter deposited in or credited to such Accounts as financial assets pledged by the Trust, with the acknowledgement and agreement of the Authority and StadCo, to the Collateral Trustee for the benefit of the Secured Parties, to be held by such Depositary Bank acting as a Securities Intermediary. If and to the extent any Depositary Bank is to take any action on any date (including any Monthly Date) following receipt of a written instruction from the Collateral Trustee or any other Party and does not receive such instruction from the Collateral Trustee or such Party prior to 12:00p.m. Chicago, Illinois time on such date, such Depositary Bank shall be authorized, but not obligated, to take any action required by the terms of this Agreement (including, without limitation, transferring funds from and between Accounts) as a result of such Depositary Bank not having received such instruction prior to such time, in each case without any further instruction from any Party. (b) Each Account shall bear a name and account number as set forth in Exhibit A, which, notwithstanding Section I 0.23 of this Agreement, such Exhibit A may be amended from time to time by the Collateral Trustee to reflect updated, revised, supplemental or new information of any Depositary Bank. All securities and other financial assets, and all funds and other property from time to time on deposit in or credited to each Account shall be (i)(A) registered in the name of, or payable to or to the order of, such Depositary Bank for the benefit of the Collateral Trustee on behalf of the Secured Parties or (B) endorsed to or to the order of such Depositary Bank in blank and (ii) held by such Depositary Bank for the purposes and on the terms set forth in this Agreement. All cash held in the Accounts shall constitute a part of the Account Collateral and shall not constitute payment of any Indebtedness or any other Obligation 20 of the Trust, any Authority Obligation, or any StadCo Obligation until applied as hereinafter provided.
( c) All moneys, investments and secunt1es and other property on deposit in or credited to any of the Accounts shall at all times be in the exclusive possession of, and under the dominion and control of, the Collateral Trustee and shall constitute Account Collateral in accordance with the terms hereof to be held in custody of the Collateral Trustee for the purposes and on the terms set forth in this Agreement, the Note Documents, the Credit Documents, the Authority Credit Documents and the StadCo Credit Documents. The Trust, the Authority and StadCo agree that their respective rights to amounts on deposit in or credited to the Accounts are subject to and controlled by the terms of this Agreement. In no case shall any property deposited in or credited to any Account be registered in the name of the Trust, the Authority or StadCo, be payable to the order of the Trust, the Authority or StadCo or be specially endorsed to the Trust, the Authority or StadCo, except to the extent the foregoing have been specially endorsed to the applicable Depositary Bank or in blank.
( d) The Accounts shall be subject to Applicable Law, including such applicable regulations of the Board of Governors of the Federal Reserve System and of any other appropriate banking or Governmental Authority having jurisdiction over the Accounts, as may now or hereafter be in effect.
Section 2.3 Creation of Accounts. (a) The Depositary Banks hereby respectively confirm that they have established the following special, segregated and irrevocable cash collateral accounts in the name of the Collateral Trustee (as further described in Exhibit A and including any subaccounts established thereunder, including each of those referenced on Exhibit A, the "Accounts"; all references to the Accounts shall mean any Account, the Account established with the applicable Depositary Bank or all the Accounts, as the context may require) in the form of non-interest bearing accounts:
(i) an account identified as the "Stadium Funding Trust Construction Account" (the "Trust Construction Account");
(ii) an account identified as the "Stadium Funding Trust Debt Service Account" (the "Trust Debt Service Account");
(iii) an account identified as the "Stadium Funding Trust Debt Service Reserve Account" (the "Trust Debt Service Reserve Account");
(iv) an account identified as the "Stadium Funding Trust Excess Cash Flow Account" (the "Trust Excess Cash Flow Account");
(v) an account identified ~s the "Stadium Funding Trust Rent and Operations and Maintenance Account" (the "Trust Rent and O&M Account"); (vi) an account identified as the "Stadium Funding Trust Revenue Account" (the "Trust Revenue Account");
(vii) [intentionally omitted];
21 (viii) an account identified as the "Stadium Funding Trust Strike Reserve Account" (the "Trust Strike Reserve Account");
(ix) an account identified as the "Stadium Funding Trust Tax Distributions Account" (the "Trust Tax Distributions Account");
(x) an account identified as the "Stadium Funding Trust Special Payments Account" (the "Trust Special Payments Account").
(xi) an account identified as the "Authority Construction Account" (the "Authority Construction Account");
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(xxi)
(xxii)
an account identified as the "Authority Distributions Account" (the "Authority Distributions Account");
an account identified as the "Authority Excess Borrowings Account" (the "Authority Excess Borrowings Account");
an account identified as the "Authority Ground Lease Rent and Operations and Maintenance Account" (the "Authority Ground Lease Rent and O&M Account");
an account identified as the "Authority Liquidated Damages and Insurance Proceeds Account" (the "Authority Liquidated Damages and Insurance Proceeds Account");
an account identified as the "Authority Revenue Account" (the "Authority Revenue Account");
an account identified as the "StadCo Construction Account" (the "StadCo Construction Account"); and
an account identified as the "StadCo Distributions Account" (the "StadCo Distributions Account");
an account identified as the "StadCo Excess Borrowings Account" (the "StadCo Excess Borrowings Account"); and
an account identified as the "StadCo Liquidated Damages and Insurance Proceeds Account" (the "StadCo Liquidated Damages and Insurance Proceeds Account");
an account identified as the "StadCo O&M Account" (the "StadCo O&M Account");
an account identified as the "StadCo Revenue Account" (the "StadCo Revenue Account"); and
22 (xxiii) an account identified as the "StadCo Tax Distributions Account" (the "StadCo Tax Distributions Account").
(b) The parties hereto acknowledge and agree that (i) each Account is and shall be maintained as a "securities account" (as such term is defined in Section 8-50l(a) of the UCC) in respect of which each Depositary Bank is and shall be a "securities intermediary" (within the meaning of Section 8-102(a)(l4) of the UCC), (ii) the Collateral Trustee is the sole Entitlement Holder with respect to'each Account (and all Security Entitlements and financial assets from time to time maintained or carried therein), (iii) no Depositary Bank has entered into any agreement ( other than this Agreement) under which such Depositary Bank has agreed to comply with Entitlement Orders originated by any Person other than the Collateral Trustee with respect to any Account or any cash, securities or other property deposited therein or credited thereto and (iv) the Accounts shall be maintained at all times in accordance with Section 2.2(a) until the termination of this Agreement.
( c) Each Depositary Bank shall cause each Account to be, and each Account shall be, separate from all other accounts held by or under the control and dominion of such Depositary Bank. No Depositary Bank will change the name or account number of any Account from that set forth in Exhibit A without the prior written consent of the Collateral Trustee, other than any changes of account numbers due to internal system changes (upon which the applicable Depositary Bank shall provide prompt written notice thereof to the Collateral Trustee). The Parties hereby authorize each Depositary Bank to open subaccounts within any of the Trust Accounts, and each Depositary Bank shall open one or more subaccounts within any such Trust Account if so directed by the Collateral Trustee.
Section 2.4 Deposit Accounts. To the extent that, notwithstanding. the parties' intent that the Accounts constitute securities accounts, all or any portion of any such Account is determined to be a "deposit account" within the meaning of Section 9-102(a)(29) of the UCC, (a) such Account shall be deemed to be a "deposit account" (as defined in Section 9-102(a)(29) of the UCC), which the parties hereto shall maintain with the applicable Depositary Bank acting not as a securities intermediary but as a "bank" (within the meaning of Section 9-102(a)(8) of the UCC) pursuant to Section 2.2(b ), (b) such "bank's jurisdiction" ( within the meaning of Section 9-304 of the UCC) is and shall continue to be the State of New York, (c) the Collateral Trustee shall be such Depositary Bank's "customer" (within the meaning of Article 4 of the UCC) with respect to such deposit account and ( d) all references in this Agreement to "Entitlement Orders" shall be deemed to include instructions directing the disposition of funds in such deposit account.
Section 2.5 Accounts as Collateral. (a) To secure the payment of the Trust Obligations, the Trust, pursuant to the Trust Pledge and Security Agreement, has assigned, transferred and pledged to the Collateral Trustee, and granted a security interest in favor of the Collateral Trustee in, all of the right, title and interest of the Trust which it now possesses or may hereafter obtain, in, to and under: (i) the Pledge and Security Agreements (including, without limitation, the Authority Account Collateral (as defined in subsection (b) below) and the StadCo Account Collateral (as defined in subsection (c) below)), (ii) each of the Trust Accounts, the Authority Accounts and the StadCo Accounts, including, except as specifically excluded pursuant to the terms of this Agreement, (A) all monies and Permitted Investments and other instruments held in such Accounts, (B) all other funds of the Trust, 23 the Authority and StadCo held by each Depositary Bank under this Agreement and (C) all of the proceeds of the foregoing (collectively, the "Trust Account Collateral"), (iii) the Note Documents, the Credit Documents, the Authority Credit Documents and the StadCo Credit Documents, (iv) the other Related Agreements and (v) all other tangible and intangible property of the Trust to the extent set forth in the Trust Pledge and Security Agreement and this Agreement.
(a) To secure the payment of the Authority Obligations, the Authority, pursuant to the Authority Pledge and Security Agreement, has assigned, transferred and pledged to the Trust, and granted a security interest in favor of the Trust in, all of the right, title and interest of the Authority which it now possesses or may hereafter obtain, in, to and under: (i) all Authority Revenues derived from the Stadium Project, (ii) each of the Authority Accounts, including, except as specifically excluded pursuant to the terms of this Agreement, (A) all monies and Permitted Investments and other instruments held in such Authority Accounts, (B) all other funds of the Authority held by a Depositary Bank under this Agreement and (C) all of the proceeds of all the foregoing (collectively, the "Authority Account Collateral"), (iii) the Authority Credit Documents, (iv) the Related Agreements (as defined in the Authority Credit Agreement) and (vi) all other tangible and intangible property of the Authority to the extent set forth in the Authority Pledge and Security Agreement and this Agreement.
(b) To secure the payment of the StadCo Obligations, StadCo, pursuant to the StadCo Pledge and Security Agreement, has assigned, transferred and pledged to the Trust, and granted a security interest in favor of the Trust in, all of the right, title and interest of StadCo which it now possesses or may hereafter obtain, in, to and under: (i) all StadCo Revenues derived from the Stadium Project, (ii) each of the StadCo Accounts, including, except as specifically excluded pursuant to the terms of this Agreement, (A) all monies and Permitted Investments and other instruments held in such StadCo Accounts, (B) all other funds of StadCo held by a Depositary Bank under this Agreement and (C) all of the proceeds of all the foregoing ( collectively, the "StadCo Account Collateral" and, together with the Trust Account Collateral and the Authority Account Collateral, collectively, the "Account Collateral"), (iii) the StadCo Credit Documents, (iv) the Related Agreements (as defined in the StadCo Credit Agreement) and all other tangible and intangible property of StadCo to the extent set forth in the StadCo Pledge and Security Agreement and this Agreement. ( c) The Trust agrees that the Trust Account Collateral and all other collateral pledged by the Trust, and all rights the Trust may have with respect to such Trust Account Collateral and all other collateral pledged by the Trust, shall be subject to the terms and conditions of this Agreement and the other Collateral Documents. The Authority agrees that the Authority Account Collateral and all other collateral pledged by the Authority, and all rights the Authority may have with respect to such Authority Account Collateral and all other collateral pledged by the Authority, shall be subject to the terms and conditions of this Agreement and the other Authority Collateral Documents. StadCo agrees that the StadCo Account Collateral and all other collateral pledged by StadCo, and all rights StadCo may have with respect to such StadCo Account Collateral and all other collateral pledged by StadCo, shall be subject to the terms and conditions of this Agreement and the other StadCo Collateral Documents.
24 Section 2.6 Control: Precedence ofinstructions.
(a) Until the Termination Date, the Collateral Trustee shall have "control" (within the meaning of Section 8-106( d)(2) or Section 9-104(a) (as applicable) of the UCC) of the Accounts and the Trust's "security entitlements" (within the meaning of Section 8-102(a)(l 7) of the UCC) with respect to the financial assets credited to the Accounts. The parties hereby irrevocably direct, and each Depositary Bank (in its capacity as a Securities Intermediary) hereby agrees, that each Depositary Bank will comply with all instructions and orders (including Entitlement Orders within the meaning of Section 8-102(a)(8) of the UCC) regarding each Account and any financial asset therein originated by the Collateral Trustee without the further consent of the Trust, the Authority, StadCo or any other Person; provided, however, that so long as no Default or Event of Default shall have occurred, the applicable Depositary Bank shall (i) comply with all written instructions by or on behalf of the Authority in respect of the Authority Ground Lease Rent and O&M Account and the Authority Construction Account and (ii) comply with all written instructions by or on behalf of StadCo in respect of the StadCo O&M Account, the StadCo Tax Distributions Account and the StadCo Construction Account, without the further consent of the Trust, the Collateral Trustee or any other Person; provided further, however, that, notwithstanding the occurrence and continuance of any Default or Event of Default, to the extent that amounts are deposited in the Authority Revenue Account or StadCo Revenue Account which are not Authority Revenues or StadCo Revenues, respectively, the Collateral Trustee and Depository Bank shall comply with withdrawal certificates of the Authority or StadCo, . respectively, for the removal of such amounts in accordance with Sections 3.13 and 3.18, , respectively. In the case of a conflict between any instruction or order originated by the Collateral Trustee and any instruction or order originated by the Trust, the Authority or StadCo or any other Person other than a court of competent jurisdiction, the instruction or order originated by the Collateral' Trustee shall prevail. The Collateral Trustee hereby agrees that, so long as it shall not have delivered to any Depositary Bank (pursuant to an Act of Required Creditors) written notice in accordance with Section 2.6(b) that (i) a Default or Event of Default has occurred and is continuing and (ii) the Collateral Trustee is exercising its right of exclusive control with respect to the Accounts, the Collateral Trustee shall not deliver any notices or instructions to any Depositary Bank with respect to transfers to or from the Accounts except as expressly permitted or required under this Agreement.
(b) On and after any date on which any Depositary Bank receives written notice from the Collateral Trustee ( as directed pursuant to an Act of Required Creditors) that (i) a Default or an Event of Default has occurred and is continuing and (ii) the Collateral Trustee is exercising its right of exclusive control with respect to the Accounts, notwithstanding anything herein to the contrary, each such Depositary Bank shall thereafter accept all notices and instructions required or permitted to be given to such Depositary Bank pursuant to the terms of this Agreement only from the Collateral Trustee and not from the Trust, the Authority, StadCo or any other Person, and such Depositary Bank shall not withdraw, transfer, pay or otherwise disburse any amounts in any of the Accounts except pursuant to such notices and instructions from the Collateral Trustee, unless such Default or Event of Default no longer exists due to such Default or Event of Default having been waived, cured or no longer existing, or having been deemed waived, in accordance with the terms of the Collateral Trust and Intercreditor Agreement (as confirmed in writing by the Collateral Trustee), in which event the terms of this Section 2.6(b) shall thereafter be inapplicable to such Default or Event of Default.
25 ( c) Each of the Trust, the Authority and StadCo hereby authorizes the Administrative Agent, prior to the Final Construction Credit Extension Date, to direct the Collateral Trustee to instruct, in writing, the applicable Depositary Bank, which as of the Closing Date is U.S. Bank, to charge the Costs of Financing subaccount of the Trust Construction Account and the Trust Debt Service Account and the respective subaccounts therein, as applicable, in accordance with the then applicable provisions of Sections 3.2 and 3.5 hereof, in order to cause timely payment to be made to (i) the holders of the Notes, of all principal, interest, Make-Whole Amount, if any, and Costs of Financing 'due under the Note Documents, and (ii) the Administrative Agent of all principal, interest and Costs of Financing due under the Credit Agreement, Authority Credit Agreement, StadCo Credit Agreement and any Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, as applicable.
Section 2.7 Subordination of Lien· Waiver of Set-Off. In the event that any Depositary Bank has or subsequently obtains by agreement, operation of law or otherwise a Lien on any Account or in any Account Collateral, such Depositary Bank agrees that such Lien shall ( except to the extent provided in the next sentence) be subordinate to any Lien of the Collateral Trustee. The financial assets or funds standing to the credit of the Accounts will not be subject to deduction, set-off, counter-claim, banker's lien or any other right in favor of a Depositary Bank or any Person other than the Collateral Trustee, except to the extent of returned items and charge-backs either for uncollected checks or other items of payment and transfers previously credited to one or more of the Accounts, and the Trust, the Authority, StadCo and the Collateral Trustee hereby authorize each Depositary Bank to debit the applicable Accounts for such amounts.
Section 2.8 Other Representations and Covenants of Depositary Banks. Each Depositary Bank hereby severally represents, warrants, covenants and agrees as follows:
(a) the Depositary Bank in its capacity as Securities Intermediary (i) is a Securities Intermediary on the Closing Date or the date on which such Depositary Bank becomes a party to this Agreement, as applicable, and, so long as this Agreement remains in effect, shall remain a Securities Intermediary, and shall act as such with respect to the Collateral Trustee, the Accounts and all of the assets, property and items (including all Security Entitlements and financial assets maintained or carried in the Accounts) from time to time transferred, credited or deposited to or maintained or carried in the Accounts, (ii) shall comply with any and all Entitlement Orders received by it from the Collateral Trustee in respect of the Accounts, in each case, without further consent of the Trust, the Authority, StadCo or any other Person in accordance with the terms of this Agreement and (iii) shall not comply with the Entitlement Orders of any other Person other than as set forth in this Agreement;
(b) notwithstanding any other provision of this Agreement or any other agreement governing any Account to the contrary, the "securities intermediary's jurisdiction" (within the meaning of Section 8-ll0(e) or 9-301 and 9-305 (as applicable) of the UCC) of each Depositary Bank acting as Securities Intermediary is and shall continue to be the State of New York; (c) until any Depositary Bank's obligations hereunder shall terminate in accordance with Section 6.4, each of the Accounts with such Depositary Bank shall be held by such Depositary Bank for the benefit of the Collateral Trustee, for the benefit of the Secured Parties, 26 at all times until the Tetmination Date, and the Collateral Trustee shall have exclusive control and, other than as described in Section 2.6(a) in respect of the Authority Ground Lease Rent and O&M Account and the StadCo O&M Account, sole right of withdrawal over all Accounts and shall have "control" (within the meaning of Section 8-106( d)(2) or 9-104(a) (as applicable) of the UCC) of all amounts on deposit in or credited to an Account; ( d) in furtherance of clause ( c) above, each Depositary Bank has credited and shall continue to credit such assets, property and items to the appropriate Accounts in accordance with this Agreement; provided that all such assets credited to any Account shall be registered in the name of, payable to the order of, or indorsed to the applicable Depositary Bank or in blank; provided, farther that in no event shall any amounts or Permitted Investments deposited in or credited to any Account be registered in the name of the Trust, the Authority or StadCo, payable to the order of the Trust, the Authority or StadCo or specially indorsed to the Trust, the Authority or StadCo, except to the extent that the foregoing have been subsequently indorsed by the Trust, the Authority or StadCo to the applicable Depositary Bank or in blank; ( e) to the maximum extent permitted by Applicable Law, all funds and other assets, of any nature whatsoever, from time to time carried in the Accounts shall constitute financial assets, and each Depositary Bank shall treat all such assets, property and items as financial asse~s;
(f) except as provided herein, (i) no Depositary Bank knows of any right or claim to or interest in the Account Collateral (including any "adverse claim" within the meaning of Section 8-102(a)(l) of the UCC) by any Person other than the Trust, the Authority and StadCo, as applicable, and (ii) no Depositary Bank has entered into nor will any enter into any agreement with any other Person (including the Trust) (A) relating to any Account and/or any fmancial assets from time to time credited thereto, or Securities Entitlements carried therein, pursuant to which it has agreed to comply with Entitlement Orders of such Person or any other Person, (B) purporting to limit or condition the obligation of any Depositary Bank to comply with Entitlement Orders originated by the Collateral Trustee or (C) that is otherwise inconsistent with this Agreement; and
(g) each Depositary Bank hereby (i) waives and releases any lien, encumbrance, claim, right of set-off or other right it may have against the Accounts or any financial asset carried in the Accounts or any credit balance in the Accounts or Securities Entitlements carried therein (provided, that any Depositary Bank may, pursuant to Section 2.7, set off the face amount of any checks or other items of payment and transfers which have been credited to the Accounts but are subsequently returned unpaid because of uncollected or insufficient funds) and (ii) agrees that it shall not assert any such lien, encumbrance, claim or right against the Accounts or any fmancial asset carried in the Accounts or any credit balance in the Accounts or Securities Entitlements carried therein.
ARTICLE Ill
ACCOUNTS
Section 3.1 Account Diagram; Disbursement Instructions. Attached at Exhibit B hereto is a diagram setting forth, the Accounts and the funds flow to, from and between the 27 Accounts, which diagram is for illustrative purposes only. In the event of any inconsistency between such diagram and the terms of this Article III, the terms of this Article III shall control. The Parties agree to use the form of Disbursement Instructions attached hereto at Exhibit D when instructing or directing the transfer of amounts to and between Accounts or subaccounts.
Section 3.2 Trust Construction Account.
(a) Except as set forth in subsection (b) of this Section 3.2, the Construction Note Proceeds and the proceeds of each Term Loan (as and when the latter is made by the Lenders) shall be deposited by the Collateral Trustee, in the case of the Construction Note Proceeds, into the Construction Note Proceeds subaccount of the Trust Construction Account, or by the Administrative Agent, in the case of each Term Loan, into the Trust Construction Account.
(b) (i) Any Construction Note Proceeds needed to pay Costs of Financing shall be transferred as and to the extent necessary from the Construction Nate Proceeds subaccount of the Trust Construction Account to the Costs of Financing subaccount of the Trust Construction Account, and (ii) any Term Loan made to the Trust to pay Costs of Financing shall be deposited into the Costs of Financing subaccount of the Trust Construction Account, and in each case such amounts shall be used solely for such purposes; provided, however, that any portion of the Initial Credit Extension to be used to pay Costs of Financing may be netted against any Costs of Financing due and payable on the Closing Date. Upon such deposit of Construction Note Proceeds or Term Loans into the Costs of Financing subaccount of the Trust Construction Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction such Depositary Bank shall, transfer such funds to the Trust Debt Service Account, by depositing such amounts in the respective Authority and StadCo subaccounts of the Trust Debt Service Account in proportion to the amounts then due and payable by the Trust to the holders of the Notes or the Lenders under the Term Loans, as applicable.
( c) On any day prior to Substantial Completion all amounts received by the Trust from a Lender Counterparty pursuant to a Hedge Agreement ("Trust Hedge Receipts") shall be deposited upon receipt by the Trust into the Costs of Financing subaccount of the Trust Construction Account. Upon such deposit of Trust Hedge Receipts into the Costs of Financing subaccount of the Trust Construction Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction such Depositary Bank shall, transfer such funds to the Trust Debt Service Account, by depositing such amounts in the respective Authority and StadCo subaccounts of the Trust Debt Service Account in proportion to the amounts then due and payable by the Trust to the Authority and StadCo pursuant to any Authority Hedge Agreement or StadCo Hedge Agreement, as applicable. ( d) On any day (i) on which Construction Note Proceeds are on deposit in the Construction Note Proceeds subaccount of the Trust Construction Account, or (ii) on which the proceeds of any Term Loan are deposited pursuant to subsection (a) of this Section 3.2, the Collateral Trustee shall instruct the applicable Depositary Bank to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer, first, funds available in the 28 Construction Note Proceeds subaccount of the Trust Construction Account, in the case of any Construction Note Proceeds, and, second, funds available in the Trust Construction Account, in the case of the Term Loans, for the following purposes, provided that no Default or Event of Default has occurred and is continuing ( except to the extent waived by an Act of Required Creditors):
(i) To the Authority Construction Account in an amount equal to the applicable Authority Term A Credit Extension (in the case of Construction Note Proceeds from the issuance of the Fixed Rate Notes) and/or Authority Term B Credit Extension (in the case of Term Loan proceeds) requested by the Authority of the Trust to be used for Costs of the Stadium Project pursuant to the terms of the Authority Credit Agreement;
(ii) To the Authority Construction Account in an amount equal to the applicable StadCo Term A Credit Extension (in the case of Construction Note Proceeds from the issuance of the Fixed Rate Notes) and/or StadCo Term B Credit Extension (in the case of Term Loan proceeds) and/or StadCo Term C Credit Extension (in the case of Construction Note Proceeds from the issuance of the Floating Rate Notes) requested by StadCo of the Trust to be used for Costs of the Stadium Project ( other than such costs allocable to Tenant Improvements) pursuant to the terms of the StadCo Credit Agreement; (iii) To the StadCo Construction Account in an amount equal to the applicable StadCo Term A Credit Extension (in the case of Construction Note Proceeds from the issuance of Fixed Rate Notes) and/or StadCo Term B Credit Extension (in the case of Term Loan proceeds) and/or StadCo Term C Credit Extension (in the case of Construction Note Proceeds from the issuance of the Floating Rate Notes) requested by StadCo of the Trust to be used for Costs of the Stadium Project allocable to Tenant Improvements pursuant to the terms of the StadCo Credit Agreement;
(iv) To the StadCo Construction Account in an amount equal to the applicable StadCo Term A Credit Extension (in the case of Construction Note Proceeds from the issuance of the Fixed Rate Notes) and/or StadCo Term B Credit Extension (in the case of Term Loan proceeds) and/or StadCo Term C Credit Extension (in the case of Construction Note Proceeds from the issuance of the Floating Rate Notes) requested by StadCo of the Trust to be used to fund any StadCo CFD Advance, any StadCo Agency Advance or certain payments in respect of certain StadCo Project Costs pursuant to the terms of the Funding Agreement and Section 2.6(a)(iii)(l) and (4) of the Credit Agreement; and
29 (v) To the StadCo Construction Account in an amount equal to the applicable StadCo Term A Credit Extension (in the case of Construction Note Proceeds from the issuance of the Fixed Rate Notes) and/or StadCo Term B Credit Extension (in the case of Term Loan proceeds) and/or StadCo Term C Credit Extension (in the case of Construction Note Proceeds from the issuance of the Floating Rate Notes) requested by StadCo of the Trust to be used to fund amounts p'ayable by StadCo to the Authority as (A) additional rent pursuant to Sections 6.6 and 6.7 of the StadCo Lease, respectively, or (B) prepaid rent under the Ground Lease in accordance with the terms of Section
6.5 of the StadCo Lease.
Section 3.3 Trust Revenue Account.
(a) Immediately following the transfers contemplated by the final sentences of Sections 3.13 and 3.18, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer:
(i) on each Monthly Date from the Authority Revenue Account and the StadCo Revenue Account for deposit into the Authority subaccount and the StadCo subaccount of the Trust Revenue Account, respectively, all amounts on deposit in the Authority Revenue Account or the StadCo Revenue Account,
(ii) on each Monthly Date, from the Authority Revenue Account for deposit into the SBL Proceeds subaccount of the Trust Revenue Account all SBL Proceeds identified in the SBL Proceeds Certificate delivered concurrently with each deposit of Authority Revenues into the Authority Revenue Account in accordance with Section 3 .13 ·hereof,
(iii) on each Monthly Date, from the StadCo Revenue Account for deposit into the Suite Prepayment Proceeds subaccount of the Trust Revenue Account, all Suite Prepayment Proceeds identified in the Suite Prepayment Proceeds Certificate delivered concurrently with each deposit of StadCo Revenues into the StadCo Revenue Account in accordance with Section 3 .18 hereof,
(iv) on each Monthly Date, (A) from the StadCo subaccount of the Trust Revenue Account to the StadCo Second Team subaccount of the Trust Revenue Account all Second Team Construction Revenues on deposit in the StadCo subaccount of the Trust Revenue Account, and (B) from the Authority subaccount of the Trust Revenue Account to the StadCo Second Team subaccount of the Trust Revenue Account all Second Team Seat License Proceeds,
30 (v) on each Monthly Date following Substantial Completion, from the StadCo subaccount of the Trust Rent and O&M Account, for deposit into the Authority subaccount of the Trust Revenue Account, an amount equal to the StadCo Lease Rent Monthly Amount, and (vi) on each Monthly Date following Substantial Completion, from the StadCo subaccount of the Trust Revenue Account for deposit into the Carried-Forward Revenues subaccount of the Trust Revenue Account, respectively, all Carried-Forward Revenues identified by StadCo pursuant to the terms of Section 6.7(a) of the Credit Agreement and Section 10.7(a) of the Note Purchase Agreements.
Notwithstanding anything herein to the contrary, on the Closing Date (i)(A) all Authority Construction Revenues consisting of SBL Proceeds shall be deposited in the SBL Proceeds subaccount of the Trust Revenue Account and (B) all other Authority Revenues shall be deposited in the Authority subaccount of the Trust Revenue Account and (ii)(A) all StadCo Construction Revenues consisting of Suite Prepayment Proceeds shall be deposited in the Suite Prepayment Proceeds subaccount of the Trust Revenue Account and (B) all other StadCo Revenues shall be deposited in the StadCo subaccount of the Trust Revenue Account. (b) On each Monthly Date prior to Substantial Completion:
(i) If the Trust has received a written request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to withdraw funds contained in the Suite Prepayment Proceeds subaccount of the Trust Revenue Account to pay for Costs of the Stadium Project ( other than such costs allocable to Tenant Improvements), the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Authority Construction Account all amounts so requested and approved;
(ii) If the Trust has received a written request from the Authority in accordance with this Agreement and the Authority Credit Agreement· to withdraw funds contained in the SBL Proceeds subaccount of the Trust Revenue Account to pay for Costs of the Stadium Project, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Authority Construction Account all amounts so requested and approved;
(iii) If the Trust has received a written request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to withdraw funds contained in the Suite Prepayment Proceeds subaccount of the Trust Revenue Account to fund Tenant Improvements, any StadCo CFD Advance, any StadCo Agency Advance, amounts payable by 31 StadCo to the Authority as (A) additional rent pursuant to the terms of Sections 6.6 and 6. 7 of the StadCo Lease or (B) prepaid rent under the Ground Lease pursuant to Section 6.5 of the StadCo Lease, or certain payments in respect of StadCo Project Costs pursuant to Sections
2.6(a)(iii)(l) and 2.6(a)(iii)(4) of the Credit Agreement, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the StadCo Construction Account all amounts so requested and approved;
(iv) If the Trust has received a written request from StadCo in accordance with this Agreement and the StadCo Credit Agreement to transfer funds contained in the Suite Prepayment Proceeds subaccount of the Trust Revenue Account in respect of taxes to be paid by the direct and indirect members of StadCo, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction, the applicable Depositary Bank shall, transfer that portion of the StadCo Tax Distributions Amount so requested to the Trust Tax Distributions Account, provided that no such transfer shall be made unless StadCo shall have delivered a certificate to the Trust, the Collateral Trustee, the applicable Depositary Bank and the Administrative Agent setting out in reasonable detail the taxes then due and owing in respect of such portion of the StadCo Tax Distributions Amount; and
(v) If the Trust has received a written request from StadCo to transfer funds contained in the StadCo Second Team subaccount of the Trust Revenue Account to pay for Second Team Costs, the Collateral Trustee shall, provided no Default or Event of Default shall have occurred, instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer all amounts so requested to the account identified in such request to be applied to the payment of such Second Team Costs. ( c) On each Monthly Date following Substantial Completion, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer the amounts available in (I) the SBL Proceeds subaccount of the Trust Revenue Account to the Authority subaccount of the Trust Debt Service Account, provided, however, that prior to the Final Construction Credit Extension Date, upon the written request of the Authority, such amounts shall be either (A) retained in the SBL Proceeds subaccount of the Trust Revenue Account or (B) transferred to the Authority Construction Account and applied to Costs of the Stadium Project as and when the same become due in accordance with the terms of the Authority Credit Documents and the StadCo Credit Documents, if the Construction Monitor approves the items and costs for which such Credit Extension relates (which approval shall be based on, among other things, retainage withheld in accordance with the Design-Build Agreement, the cost of items in relation to the Stadium Project Budget and adequacy of available funding to complete construction of the 32 Stadium Project); (II) the Suite Prepayment Proceeds subaccount of the Trust Revenue Account to the StadCo subaccount of the Trust Debt Service Account, provided, however, that prior to the Final Construction Credit Extension Date, upon the written request of StadCo such amounts shall be either (A) retained in the Suite Prepayment Proceeds subaccount of the Trust Revenue Account or (B) transferred to the Authority Construction Account and applied to Costs of the Stadium Project and any of the items described in Section 3.3(b)(iii), Ci'{) or (v), as and when the same become due in accordance with the terms of the Authority Credit Documents and the StadCo Credit Documents, if the Construction Monitor approves the items and costs for which such Credit Extension relates (which approval shall .be based on, among other things, retainage withheld in accordance with the Design-Build Agreement, the cost of items in relation to the Stadium Project Budget and adequacy of available funding to complete construction of the Stadium Project); and (III) the Authority subaccount and StadCo subaccount of the Trust Revenue Account, as applicable, for the following purposes and in the following order of priority:
(i) first, to the Trust Rent and O&M Account (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Rent and O&M Account equals the sum of the applicable Ground Lease Rent Monthly Amount and the applicable Authority O&M Monthly Amount and (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the, StadCo subaccount of the Trust Rent and O&M Account, together with the amount already transferred from the StadCo subaccount of the Trust Rent and O&M Account pursuant to Section 3.3(a)(vi), equals the sum of the applicable StadCo Lease Rent Monthly Amount and the applicable StadCo O&M Monthly Amount; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full such that an amount equal to the applicable Ground Lease Rent Monthly Amount, the Authority O&M Monthly Amount, the StadCo Lease Rent Monthly Amount and the StadCo O&M Monthly Amount is on deposit in the applicable subaccounts of the Trust Rent and O&M Account, the applicable Depositary Bank shall (I)(x) first, transfer the amount of any shortfall from any funds remaining in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, and then, (y) transfer, solely from any amounts on deposit in the Authority subaccount or StadCo subaccount of the Trust Rent and O&M Account, as applicable, in excess of the amount required to be on deposit in such subaccount following the transfers required by clauses (A) or (B) above, the amount of any shortfall then-remaining after the transfer in clause (x), from the Authority subaccount or StadCo subaccount of the Trust Rent and O&M Account, as applicable, in each case to the StadCo subaccount or Authority subaccount of the Trust Rent and O&M Account, as applicable, in which such shortfall occurred, which transfers shall (a) in the case of a transfer of funds 33 from StadCo to the Authority, be deemed to constitute an advance under the ManagementCo Line of Credit Agreement, (b) in the case of a transfer of funds from the Authority to StadCo, be deemed to constitute a prepayment of the StadCo Advance, and ( c) in all cases, not exceed the amount of any shortfall in the applicable Ground Lease Rent Monthly Amount, the Authority O&M Monthly Amount, the qtadCo Lease Rent Monthly Amount or the StadCo O&M Monthly Amount so deposited by the applicable Depositary Bank in the applicable subaccount on such Monthly Date and (II) provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Trustee and the Administrative Agent;
(ii) second, to the Authority subaccount and StadCo subaccount of the Trust Debt Service Account, as applicable, (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Debt Service Account equals the applicable Authority Debt Service Monthly Amount, (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Debt Service Account equals the applicable StadCo Debt Service Monthly Amount, and (C) after making the transfers contemplated by clauses (A) and (B) above, all available amounts contained in the Authority subaccount and StadCo subaccount of the Trust Revenue Account necessary to permit the Authority or StadCo, as applicable, to make any mandatory prepayment of the Authority Term Loans or the StadCo Term Loans required pursuant to the terms of the Authority Credit Agreement or the StadCo Credit Agreement, respectively; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full such that an amount equal to the applicable Authority Debt Service Monthly Amount or the StadCo Debt Service Monthly Amount is on deposit in the applicable subaccounts of the Trust Debt Service Account, the applicable Depositary Bank shall (x) first, transfer the amount of any shortfall from any funds remaining in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable;, (y) next, transfer from any amounts in the Authority subaccount or StadCo subaccount of the Trust Debt Service Account, as applicable, in excess of the amount required to be on deposit in such subaccount following the transfers required by clauses (A) or (B) above, the amount of any shortfall then-remaining after the transfer in clause (x), and (z) finally, transfer, solely from any amounts on deposit in the Authority subaccount or StadCo subaccount of the Trust Rent and O&M Account, as applicable, in excess of the amount required to be on deposit in such subaccount following the transfers required by clauses (i)(A) and (i)(B) above, the amount of any shortfall then-remaining 34 after the transfers in clauses (x)-(y), in each case to the StadCo subaccount or Authority subaccount of the Trust Debt Service Account, as applicable, in which such shortfall occurred, which transfers shall (a) in the case of a transfer of funds from StadCo to the Authority, be deemed to constitute an advance under the ManagementCo Line of Credit Agreement, (b) in the case of a transfer of funds from the Authority to StadCo, be deemed to constitute a prepayment of the StadCo Advance, and ( c) in all cases, not exceed the amount of any shortfall in the applicable Authority Debt Service Monthly Amount or the StadCo Debt Service Monthly Amount so deposited by the applicable Depositary Bank in the applicable subaccount on such Monthly Date and (II) provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Trustee and the Administrative Agent;
(iii) third, to the Trust Rent and O&M Account (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account such that the amount on deposit in the Authority subaccount of the Trust Rent and O&M Account, including in each case the amounts deposited thereto in accordance with clause (i) above, equals the sum of the Ground Lease Rent Annual Amount and the Authority O&M Annual Amount and (B) an amount, if any, from the StadCo subaccount of the Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Rent and O&M Account, including in each case the amounts deposited thereto in accordance with clause (i) above, equals the sum of the StadCo Lease Rent Annual Amount and the StadCo O&M Annual Amount; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full, the applicable Depository Bank shall (x) transfer, to the extent that amounts remain in the StadCo subaccount or Authority subaccount of the Trust Revenue Account, respectively, an additional amount until the aggregate on deposit in the Authority subaccount and the StadCo subaccount of the Trust Rent and O&M Account, collectively, equals the Annual Expense Lookforward and (y) provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Trustee and the Administrative Agent, in which event the requirements of this clause (iii) shall have been satisfied;
(iv) fourth, to the Authority subaccount and StadCo subaccount of the Trust Debt Service Account, as applicable, (A) an amount, if any, from the Authority subaccount of the Trust Revenue Account. such that the amount on deposit in the Authority subaccount of the Trust Debt Service Account, including the amount deposited thereto in accordance with clause (ii) above, equals the Authority Debt Service Annual Amount, and (B) an amount, if any, from the StadCo subaccount of the 35 Trust Revenue Account such that the amount on deposit in the StadCo subaccount of the Trust Debt Service Account, including the amount deposited thereto in accordance with clause (ii) above, equals the StadCo Debt Service Annual Amount; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full, the applicable Depository Bank shall (x) transfer, to the extent that amounts remain in the StadCo subaccount or Authority subaccount of the Trust Revenue Account, respectively, an additional amount until the aggregate on deposit in the Authority subaccount and the StadCo subaccount of the Trust Debt Service Account, collectively, equals the Annual Debt Service Lookforward and (y) provide written notice of such transfer to the Authority, StadCo, the Trust, the Collateral Trustee and the Administrative Agent, in which event the requirements of this clause (iv) shall have been satisfied;
(v) fifth, to the Trust Debt Service Reserve Account, (A) from the Authority subaccount of the Trust Revenue Account, an amount equal · to the product of (i) the Authority Reserve Share multiplied by (ii) any positive difference between (x) the applicable Debt Service Reserve Required Amount less (y) the amount then on deposit in the Trust Debt Service Reserve Account, and (B) from the StadCo subaccount of the Trust Revenue Account, an amount equal to the product of (i) the StadCo Reserve Share multiplied by. (ii) any positive difference between (x) the applicable Debt Service Reserve Required Amount less (y) the amount then on deposit in the Trust Debt Service Reserve Account; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B)above in full on such Monthly Date, the applicable Depositary Bank shall (x) not transfer amounts remaining in either the StadCo subaccount or Authority subaccount of the Trust Revenue Account, respectively, to Accounts lower in priority pursuant to this Section 3.3(c) until the amount on deposit in the Trust Debt Service Reserve Account equals the Debt Service Reserve Required Amount and (y) on the next Monthly Date transfer to the Trust Debt Service Reserve Account from the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, in which such insufficiency existed an amount equal to such insufficiency.
(vi) sixth, during the period beginning on any Strike Reserve Commencement Date and concluding on the following Strike Risk Conclusion Date, to the Trust Strike Reserve Account, (A) from the Authority subaccount of the Trust Revenue Account, an amount equal to the product of (i) the Authority Reserve Share multiplied by (ii) any positive difference between (x) the applicable Strike Reserve 36 Requirement less (y) the amount then on deposit in the Trust Strike Reserve Account, and (B) from the StadCo subaccount of the Trust Revenue Account, an amount equal to the product of (i) the StadCo Reserve Share multiplied by (ii) any positive difference between (x) the applicable Strike Reserve Requirement less (y) the amount then on deposit in the Trust Strike Reserve Account; provided that in the event there are insufficient funds in the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, to make the transfers contemplated by clauses (A) or (B) above in full on such Monthly Date, the applicable Depositary Bank shall (x) not transfer amounts remaining in either the StadCo subaccount or Authority subaccount of the Trust Revenue Account, respectively, to Accounts lower in priority pursuant to this Section 3.3(c) until the amount on deposit in the Trust Strike Reserve Account equals the Strike Reserve Requirement and (y) on the next Monthly Date transfer to the Trust Strike Reserve Account from the Authority subaccount or StadCo subaccount of the Trust Revenue Account, as applicable, in which such insufficiency existed an amount equal to such insufficiency.
(vii) seventh, to the Stadium Capital Expenditure Reserve Account, all available amounts from the Authority subaccount of the Trust Revenue Account, until, in any Fiscal Year, an amount equal to the Annual Capital Reserve Amount for the current Lease Year has been transferred to the Stadium Capital Expenditure Reserve Account pursuant to this clause (vii);
(viii) eighth, to the Trust Tax Distributions Account, all available amounts from the StadCo subaccount of the Trust Revenue Account such that the StadCo Tax Distributions Amount is on deposit in the Trust Tax Distributions Account; and
(ix) ninth, to the Authority subaccount and StadCo subaccount of the Trust Excess Cash Flow Account, as applicable, the balance of all amounts contained in the Authority subaccount and the StadCo subaccount of the Trust Revenue Account, as applicable, after taking account of the transfers made pursuant to clauses (i) through (viii) of this Section
3.3(c).
( d) On each Monthly Date following Substantial Completion, if the Trust has received a written request from StadCo to transfer funds contained in the StadCo Second Team subaccount of the Trust Revenue Account to pay for Second Team Costs, the Collateral Trustee shall, provided no Default or Event of Default shall have occurred, instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer all amounts so requested to the account identified in such request to be applied to the payment of such Second Team Costs. 37 ( e) On any date following Substantial Completion on which amounts are received by the Trust from a Lender Counterparty pursuant to a Hedge Agreement, such amounts shall be deposited by the Trust into the Authority and StadCo subaccounts of the Trust Revenue Account in proportion to the amounts owing by the Trust to the Authority or StadCo pursuant to the terms of an Authority Hedge Agreement or StadCo Hedge Agreement, as applicable. On any date on which such amounts are deposited into the Trust Revenue Account pursuant to this clause ( e ), the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer funds available in the Authority and StadCo subaccounts of the Trust Revenue Account, as applicable, to the Authority Revenue Account and StadCo Revenue Account, as applicable, to pay amounts owing to the Authority or StadCo pursuant to the terms of an Authority Hedge Agreement or StadCo Hedge Agreement, as applicable. (f) The Parties acknowledge and agree that concurrent with the incurrence of any Refinancing Indebtedness and/or Permitted Indebtedness, the terms and provisions of this Agreement, including, without limitation, this Section 3 .3 may be amended to give effect to specific waterfall and payment disbursement mechanics contemplated by such Refinancing Indebtedness and/or Permitted Indebtedness.
Section 3.4 Trust Rent and O&M Account. On each Monthly Date following Substantial Completion, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer a portion of the amounts deposited in the Authority and StadCo subaccounts of the Trust Rent and O&M Account pursuant to Sections 3 .3( c )(i) and (iii) for the following purposes and in the following order of priority; provided, that except with respect to clause (a) below, no Default or Event of Default has occurred and is continuing:
(a) first, to the Authority Ground Lease Rent and O&M Account, from the Authority subaccount of the Trust Rent and O&M Account an amount equal to the Ground Lease Rent Monthly Amount;
(b) second, to the Authority Ground Lease Rent and O&M Account, from the Authority subaccount of the Trust Rent and O&M Account an amount equal to the Authority O&M Monthly Amount;
( c) third, to the Authority subaccount of the Trust Revenue Account, from the StadCo subaccount of the Trust Rent and O&M Account an amount equal to the StadCo Lease Rent Monthly Amount; and
(d) fourth, to the StadCo O&M Account, from the StadCo subaccount of the Trust Rent and O&M Account an amount equal tci the StadCo O&M Monthly Amount.
Section 3.5 Trust Debt Service Account.
(a) On each Business Day prior to Substantial Completion that Costs of Financing are due and payable for which monies are deposited into the Costs of Financing subaccount of the Trust Construction Account and transferred to the Trust Debt Service Account pursuant to Section 3.2(b) or (c), the Collateral Trustee shall instruct the applicable 38 Depositary Bank in wntmg to, and upon receipt of such instruction, the applicable Depositary Banlc shall, withdraw funds from the Trust Debt Service Account and pay to the applicable Secured Party, such Costs of Financing then due and payable; provided that, amounts due and payable by the Trust to any Lender Counterparty pursuant to any Hedge Agreement shall be withdrawn from the Authority and StadCo subaccounts of the Trust Debt Service Account in proportion to the amounts then due and payable by the Authority and StadCo to the Trust pursuant to any Authority Hedge Agreement or StadCo Hedge Agreement, as applicable.
(b) · Following Substantial Completion, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such portion of the amounts deposited in the respective Authority and StadCo subaccounts of the Trust Debt Service Account pursuant to Sections
3.3(c)(I) and (II), 3.3(c)(ii) and (iv), Section 3.6(b), Section 3.7(a), Section 3.J0(a), Section
3.15, Section 3. 16(c), Section 3.2l(c) and Section 3.22, for the following purposes:
(i) On each Interest Payment Date, and on any other Business Day that Costs of Financing are due and payable to any Secured Party by the Trust or an interest payment is due and payable on the Notes or any Term Loan, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction, the applicable Depositary Bank shall, withdraw funds from the Authority subaccount and StadCo subaccount of the Trust Debt Service Account, as applicable, and pay, as the case may be, (A) to each Secured Party, such Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments and (B) to each Secured Party, such Costs of Financing constituting Ordinary Course Settlement Payments then due and payable and to, in the case of the Notes, each holder thereof, in the case of the Term Loans, the Administrative Agent, and in the case of any Additional Permitted Secured Debt, the applicable Secured Party, such interest payment, as determined in accordance with the terms of the Note Purchase Agreements, the Credit Agreement or such instrument evidencing Additional Permitted Secured Debt; provided, that, to the extent that the amounts in a subaccount are not sufficient to pay the amounts in (A) and (B) in full, the amounts in such subaccount shall be applied, first, to the payment to each Secured Party of the Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments described in clause (A), and second, to the payment to each Secured Party of such Costs of Financing constituting Ordinary Course Settlement Payments then due and payable and to, in the case of the Notes, each holder thereof, in the case of the Term Loans, the Administrative Agent, and in the case of any Additional Permitted Secured Debt, the applicable Secured Party, such interest payment, in each case as described in clause (B); provided, further, that to the extent there are insufficient funds to pay in full all of the amounts due 39 under any of clauses first or second, the funds available for payment shall be applied pro rata to the amounts due under such clause. (ii) On the Maturity Date, and on any other Business Day that (I) principal is due and payable on the Notes or a Term Loan, (2) any mandatory prepayment . contemplated by the deposits required by Section
3.3(c)(ii)(C), Section 3.I0(a), Section 3.15, Section 3.16(c), Section
3.21(c) or Section 3.22 is made, (3) any Costs of Financing are due and payable to any Secured Party or ( 4) any prepayment resulting from an offer of prepayment made to a holder of a Note is scheduled to be made, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, withdraw funds from the Authority subaccount or the StadCo subaccount of the Trust Debt Service Account (after making the withdrawals described in clause (i) above, if any), as applicable, and pay, as the case may be, (A) to each Secured Party, such Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments then due and payable and (B) to each Secured Party such Costs of Financing constituting Termination Payments then due and payable and to, in the case of the Notes, each holder thereof, in the case of the Term Loans, the Administrative Agent, and in the case of any Additional Permitted Secured Debt, the applicable Secured Party, the principal payment (whether as a result of a prepayment or otherwise) and any Make-Whole Amount, yield maintenance premium, Prepayment Premium or Breakage Amounts as determined in accordance with the Note Purchase Agreements, Credit Agreement or instrument evidencing such Additional Permitted Secured Debt, as applicable; provided, that, to the extent that the amounts in a subaccount are not sufficient to pay the amounts in (A) and (B) in full, the amounts in such subaccount shall be applied, first, to the payment to each Secured Party of the Costs of Financing not constituting Ordinary Course Settlement Payments or Termination Payments described in clause (A), and second, to the payment to each Secured Party of such Costs of Financing constituting Termination Payments then due and payable and to, in the case of the Notes, each holder thereof, in the case of the Term Loans, the Administrative Agent, and in the case of any Additional Permitted Secured Debt, the applicable Secured Party, the principal payment (whether as a result of a prepayment or otherwise) and any Make-Whole Amount, yield maintenance premium, Prepayment Premium or Breakage Amounts, in each case as described in clause (B); provided, farther, that to the extent there are insufficient funds to pay in full all of the amounts due under any of clauses first or second, the funds available for payment shall be applied pro rata to the amounts due under such clause. In the event any holder of a Note rejects an offer of prepayment described in clause (4) of this subsection (ii) proposed to be made using SBL Proceeds pursuant to Section 8.10 of the Fixed Rate Note Purchase 40 Agreement, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, withdraw funds from the Authority subaccount of the Trust Debt Service Account, and deposit such funds in the Authority subaccount of the Trust Excess Cash Flow Account to permit the Authority to make the payments contemplated by clause (b) of Section 3. 10.
(iii) From and after the date on which all of the Notes, Term Loans, Authority Term Loans, StadCo Term Loans, Trust Obligations, Authority Obligations and StadCo Obligations have been indefeasibly paid and performed in full, the Authority or StadCo, as applicable, shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the Depositary Bank shall, withdraw funds from the Authority subaccount or StadCo subaccount of the Trust Debt Service Account, as applicable, and deposit such funds to the account or accounts so directed by the Authority and StadCo, respectively. (iv) The Parties acknowledge and agree that to the extent funds are transferred pursuant to this Section 3.5 for the payment of principal, interest, Make-Whole Amount, yield maintenance premium, Breakage Amounts or Costs of Financing owing under the Note Purchase Agreements, the Credit Agreement, any instrument evidencing Additional Permitted Secured Debt or any Hedge Agreement the payment of such amounts to the holders of the Notes, the Lenders, the providers of such Additional Permitted Secured Debt or the Lender Counterparties, as applicable, shall be deemed to satisfy the corresponding amounts then due and owing to the Trust either (i) as lender, under the StadCo Credit Agreement, the Authority Credit Agreement or any other applicable instrument, (iii) as issuer/lender under any instrument evidencing Additional Permitted Secured Debt, or (ii) as StadCo Lender Counterparty or Authority Lender Counterparty, as applicable.
Section 3.6 Trust Debt Service Reserve Account.
(a) The Debt Service Reserve Required Amount shall be initially funded on the Closing Date through a deposit to the Trust Debt Service Reserve Account of a portion of the proceeds of the Notes and/or Term Loans.
(b) If, on the Business Day preceding (i) an Interest Payment Date or any other Business Day on which an interest payment is due and payable on the Notes or any Term Loan, or (ii) a Maturity Date or any other Business Day on which principal is due and payable on the Notes or any Term Loan ( excluding prepayments made pursuant to Section 2. l 4(a) or (b) of the Credit Agreement relating to payments made pursuant to (A) Section 2.14( d) of the Authority Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation and (B) Section 2.14(d) of the StadCo Credit Agreement and the related Exhibit 0-Required ECF 41 Transfer Calculation), the balance in the Trust Debt Service Account, after giving effect to any transfers thereto made pursuant to this Section 3.6(b), shall be insufficient for the payment of the amounts due on such Interest Payment Date, Maturity Date or other payment date described above, the Collateral Trustee shall instruct the applicable Depositary Banlc in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, withdraw and transfer from the Trust Debt Service Reserve Account to the Trust Debt Service Account such amounts as may be necessary therefor.
( c) In the event that the balance in the Trust Debt Service Reserve Account on any Monthly Date ( after any required transfers on such date) shall exceed the thenapplicable Debt Service Reserve Required Amount, (i) an amount equal to the product of (A) the Authority Reserve Share multiplied by (B) such excess shall be transferred to the Authority subaccount of the Trust Revenue Account, and (ii) an amount equal to the product of (A) the StadCo Reserve Share multiplied by (B) such excess shall be transferred to the StadCo subaccount of the Trust Revenue Account; provided, on the latest maturity date of any Term Loan or Notes the Collateral Trustee shall instruct the applicable Depositary Bank in writing· to, and upon receipt of such instruction the applicable Depositary Bank shall transfer such remaining amounts to the StadCo Distributions Account or the Authority Distributions Account, as applicable.
Section 3.7 Trust Strike Reserve Account.
(a) If, following the occurrence of a Strike and prior to the related Strike Risk Conclusion Date, on the Business Day preceding (i) an Interest Payment Date or any other Business Day on which an interest payment is due and payable on the Notes or any Term Loan, or (ii) a Maturity Date or any other Business Day on which principal is due and payable on the Notes or any Term Loan (excluding prepayments made pursuant to Section 2.14(a) or (b) of the Credit Agreement relating to payments made pursuant to (A) Section 2.14( d) of the Authority Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation and (B) Section 2.14(d) of the StadCo Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation), the balance in the Trust Debt Service Account, after giving effect to any transfers thereto made pursuant to Section 3.6(b), shall be insufficient for the payment of the amounts due on such Interest Payment Date, Maturity Date or other payment date described above, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, withdraw and transfer from the Trust Strike Reserve Account to the Trust Debt Service Account such amounts as may be necessary therefor.
(b) In the event that the balance in the Trust Strike Reserve Account on any Monthly Date (after any required transfers on such date) shall exceed the then-applicable Strike Reserve Requirement (including, without limitation, because a Strike Risk Conclusion Date has occurred), (i) an amount equal to the product of (A) the Authority Reserve Share multiplied by (B) such excess shall be transferred to the Authority subaccount of the Trust Revenue Account, and (ii) an amount equal to the product of (A) the StadCo Reserve Share multiplied by (B) such excess shall be transferred to the StadCo subaccount of the Trust Revenue Account provided, on the latest maturity date of any Term Loan or Note, the Collateral Trustee shall instruct the applicable Depositary Bank in writing 42 to, and upon receipt of such instruction the applicable Depositary Bank shall transfer such remaining amounts to the StadCo Distributions Account or the Authority Distributions Account, as applicable.
Section 3.8
Section 3.9
Reserved.
Trust Tax Distributions Account. If no Default or Event of Default shall have occurred ·-and be continuing, on any Business Day on which amounts are deposited into the Trust Tax Distributions Account pursuant to Sections 3.3(b)(iv) and
3.3(c)(viii), the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such funds to the StadCo Tax Distributions Account.
Section 3.10 Trust Excess Cash Flow Account. On each Monthly Date following Substantial Completion or, in the case of clause (a) below, the last Business Day of each Fiscal Year following Substantial Completion, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such portion of the amounts deposited in the Authority subaccount and the StadCo subaccount of the Trust Excess Cash Flow Account, as applicable, pursuant to Section 3.3( c)(ix), for the following purposes:
(a) On the last Business Day of each Fiscal Year following Substantial Completion, from the StadCo subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the StadCo Term B Loans pursuant to the terms of Section
2.14(d) of the StadCo Credit Agreement and Exhibit 0--Required ECF Transfer Calculation thereto and (ii) the Authority subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the Authority Term B Loans pursuant to the terms of Section 2.14( d) of the Authority Credit Agreement and Exhibit O-Required ECF Transfer Calculation thereto;
(b) On each Monthly Date following Substantial Completion, provided, that the Authority has certified in writing to the ·Collateral Trustee that it has paid, or has sufficient funds on deposit in the Authority subaccount of the Trust Excess Cash Flow Account, as applicable, to pay, the amounts contemplated by clause (a) above, the applicable Depositary Bank shall transfer such amounts contained in the Authority subaccount of the Trust Excess Cash Flow Account as are necessary to pay any debt service then due and owing on the Authority Note; and
( c) On each Monthly Date following Substantial Completion, provided, that StadCo or the Authority, as applicable, has certified in writing to the Collateral Trustee that it has paid, or has sufficient funds on deposit in the StadCo or Authority subaccounts of the Trust Excess Cash Flow Account, as applicable, to pay, the amounts contemplated by clause (a) above and the regularly scheduled amounts owing under clause (b) above, the applicable Depositary Bank shall transfer (i) such amounts as remain in the Authority subaccount of the Trust Excess Cash Flow Account to the Authority Distribution Account and (ii) such amounts as remain in the StadCo subaccount of the Trust Excess Cash Flow Account to the StadCo Distribution Account.
43 Section 3.11 Trust Special Payments Account. All Special Payments received pursuant to any Note Document, Credit Document, StadCo Credit Document, Authority Credit Document or instrument evidencing Additional Permitted Secured Debt, as applicable, shall be transferred upon receipt by such Person to the applicable Depositary Bank for deposit into the Trust Special Payments Account. On any Business Day following Substantial Completion, so long as no Default or Event of Default shall have occurred and be continuing, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, distribute any amounts deposited in the Special Payments Account to the Person(s) for whom such Special Payments were made; provided, that in the event such Special Payments consist of liquidated damages paid pursuant to the Non-Relocation Agreement or Authority NonRelocation Agreement, the amount of such Special Payments shall be transferred to the Trust Debt Service Account and used to make a mandatory prepayment of the Notes and the Term Loans.
Section 3.12 Authority Construction Account. If no Default or Event of Default shall have occurred and be continuing, on any day on which amounts are deposited into the Authority Construction Account, the Authority shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer or reserve funds available for the following purposes:
(a) to pay Costs of the Stadium Project as and when the same become due in accordance with the terms of the Authority Credit Documents and the StadCo Credit Documents; and
(b) to the extent that amounts are deposited into the Authority Construction Account pursuant to Section 3.17( c )(ii) in respect of amounts constituting a portion of any StadCo CFD Advance or any StadCo Agency Advance not then needed to pay Costs of the Stadium Project, such amounts may be retained in the Authority Construction Account until such amounts are required to pay such costs; and
( c) to the extent the remaining amounts in the Authority Construction Account are not to be used to pay Costs of the Stadium Project, to the Authority Excess Borrowings Account.
Section 3 .13 Authority Revenue Account. ' All Authority Revenues ( except for Liquidated Damages and Insurance Proceeds paid to the Authority which shall be applied in accordance with Section 3.16 below, any Special Payments paid to the Authority which shall be applied in accordance with Section 3 .11 above and proceeds of any Authority Credit Extension which shall be deposited in accordance with Section 3 .2 above) shall be deposited upon receipt by the Authority into the Authority Revenue Account and any amounts received by the Authority following Substantial Completion pursuant to an Authority Hedge Agreement in accordance with Section 3.3(e), shall be deposited upon receipt by the Authority into the Authority Revenue Account. The Authority shall, concurrent with any deposit of Authority Revenues into the Authority Revenue Account, deliver to the Collateral Trustee and the applicable Depositary Bank a certificate in the form of Exhibit G hereto ( each, an "SBL Proceeds Certificate") which identifies that portion, if any, of such deposited Authority Revenues that constitute SBL Proceeds. Moneys that (a) are inadvertently or for 44 convenience deposited to the Authority Revenue Account but that do not constitute Authority Revenues and (b) the Authority identifies in a withdrawal certificate in the form of Exhibit E hereto received by the applicable Depositary Bank and the Collateral Trustee by Friday (or, if such day is not a Business Day, the next succeeding Business Day) of any calendar week ( each, an "Authority Withdrawal Certificate") shall be withdrawn from the Authority Revenue Account by the applicable Depositary Bank on the immediately succeeding Wednesday ( or, if such day is not a Business Day, the next succeeding Business Day) and remitted to the Authority; provided,further that in order to permit the Authority to identify amounts that are deposited to the Authority Revenue Account in error, amounts deposited into the Authority Revenue Account shall only be transferred on a Monthly Date if such amounts have been on deposit in such Authority Revenue Account for at least a calendar week without any being the subject of an Authority Withdrawal Certificate being delivered by the Authority. If a Monthly Date shall occur (A) between when an Authority Withdrawal Certificate is received and the immediately succeeding Wednesday, the moneys identified in such Authority Withdrawal Certificate shall be retained in the Authority Revenue Account on such Monthly Date until withdrawn on the immediately succeeding Wednesday pursuant to the terms of the immediately preceding sentence or (B) between the date of deposit and the expiration of such calendar week period the funds so deposited shall be retained in the Authority Revenue Account on such Monthly Date until the next succeeding Monthly Date. Subject to the foregoing, on each Monthly Date on which amounts are on deposit in the Authority Revenue Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the Authority subaccount of the Trust Revenue Account all amounts contained in the Authority Revenue Account.
Section 3.14 Authority Ground Lease Rent and O&M Account. Upon the receipt of any funds into the Authority subaccount of the. Trust Rent and O&M Account in accordance with Sections 3.3(c)(i) or (iii), the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such funds from the Authority subaccount of the Trust Rent and O&M Account to the Authority Ground Lease Rent and O&M Account. Upon the receipt of any funds into the Authority Ground Lease Rent and O&M Account, the Authority shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the Authority Ground Lease Rent and O&M Account for the following purposes and in the following order of priority:
(a) first, to the City an amount equal to the rent then due and owing under the Ground Lease; and
(b) second, so long as no Default or Event of Default shall have occurred and be continuing, to the appropriate Person( s ), an amount equal to the respective operations and maintenance expenses then due and owing by the Authority to such Person(s ); provided that no such transfer shall be made unless the applicable Depositary Bank and the Administrative Agent shall have received a certificate by or on behalf of the Authority setting out in reasonable detail and attaching unpaid invoices and/or receipted bills in respect of the 45 operations and maintenance expenses then due and owmg by the Authority to such Person(s).
Section 3.15 Authority Excess Borrowings Account. On any day on which amounts are deposited into the Authority Excess Borrowings Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer an amount equal to such excess borrowings contained 'in the Authority Excess Borrowings Account to make a mandatory prepayment of the Authority Term Loans pursuant to the terms of the Authority Credit Agreement by depositing such amounts in the Authority subaccount of the Trust Debt Service Account.
Section 3 .16 Authority Liquidated Damages and Insurance Proceeds Account. (a) All Project Liquidated Damages and Insurance Proceeds received by the Authority or the Collateral Trustee or any Secured Party on behalf of the Authority shall be transferred upon receipt by such party to the applicable Depositary Bank for deposit into the Authority Liquidated Damages and Insurance Proceeds Account. (b) On the fifteenth (I 5th) Business Day following (i) the date of the Collateral Trustee's receipt of written notice from the Authority specifying in detail the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the Authority Liquidated Damages and Insurance Proceeds Account and (ii) the Construction Monitor's approval of the use of such funds in connection with the Stadium Project, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to transfer, and upon receipt I . of such instruction the applicable Depositary Bank shall transfer, so long as no Default or Event of Default shall have occurred and be continuing, in the amounts and the manner approved by the Construction Monitor, all or a portion of such Project Liquidated Damages and Insurance Proceeds on deposit in the Authority Liquidated Damages and Insurance Proceeds Account to the Authority Construction Account to be applied exclusively as so approved by the Construction Monitor.
( c) In the event that the Construction Monitor rejects the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the Authority Liquidated Damages and Insurance Proceeds Account, the Authority shall be entitled to resubmit in writing to the Construction Monitor within ten (I 0) Business Days of such initial rejection an alternate use for such Project Liquidated Damages and Insurance Proceeds. In the event that the Authority elects not to resubmit to the Construction Monitor within such time period or the use of any or all such Project Liquidated Damages and Insurance Proceeds described in such resubmission is not approved by the Construction Monitor, such amounts shall be transferred to the Authority subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the Authority Term Loans pursuant to the terms of the Authority Credit Agreement.
Section 3 .17 StadCo Construction Account.
46 (a) From and after the date on which amounts are first deposited into the StadCo Construction Account, StadCo shall on each Monthly Date ensure that an amount not greater than $30,000, or such greater amount as may be reasonably acceptable to the Administrative Agent from time to time (such amount, the "Required Amount"), is at all times on deposit in the StadCo Construction Account. The Required Amount may be sourced from proceeds (i) advanced to StadCo pursuant to a StadCo Credit Extension or (ii) derived from StadCo Construction Revenues. The Required Amount may be used, from time to time during the course of any calendar ··month, for unexpected Costs of the Stadium Project allocable to Tenant Improvements or costs contemplated by Section 2.2(a)(ii) of the StadCo Obligations Agreement arising after the most recent Monthly Date for which Costs of the Stadium Project were not included in the draw request made on the immediately preceding Monthly Date. (b) If no Default or Event of Default shall have occurred and be continuing, on any Business Day prior to Substantial Completion on which StadCo is required to prepay rent owing under the StadCo Lease in respect of prepaid rent owing under the Ground Lease, StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo Construction Account to the Authority Ground Lease Rent and O&M Account such prepaid rent.
( c) If no Default or Event of Default shall have occurred and be continuing, on any day on which amounts are deposited into the StadCo Construction Account, StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer or reserve funds available for the following purposes:
(i) to fund Tenant Improvements, certain payments in respect of StadCo Project Costs contemplated by Section 2.6(a)(iii)(l) and (4) of the Credit Agreement and amounts payable by StadCo to the Authority (A) as additional rent pursuant to the terms of Sections 6.6 and 6. 7 of the StadCo Lease, or (B) in respect of prepaid rent under the Ground Lease pursuant to the terms of Section 6.5 of the StadCo Lease; (ii) to fund any StadCo CFD Advance or any StadCo Agency Advance, either through payments of such amounts directly in respect of Costs of Stadium Project or, to the extent not then required for such costs, by a deposit of such funds into the Authority Construction Account; and (iii) to the extent the remaining amounts in the StadCo Construction Account are not to be used to fund costs in respect of the purposes set out above or are not retained as a part of the Required Amount, to the StadCo Excess Borrowings Account.
Section 3 .18 StadCo Revenue Account. All StadCo Revenues (including, without limitation, all rental payments received by StadCo pursuant to the terms of the Team Lease, any Second Team Sublease, all interest earnings and any repayment of the StadCo Advance, the StadCo CFD Advance or the StadCo Agency Advance but excluding Liquidated 47 Damages and Insurance Proceeds paid to StadCo which shall be applied in accordance with Section 3.21 below and any Special Payments paid to StadCo which shall be applied in accordance with Section 3.11 above and proceeds of any StadCo Credit Extension which shall be deposited in accordance with Section 3.2 above) shall be deposited upon receipt by StadCo into the StadCo Revenue Account and any amounts received by StadCo following Substantial Completion pursuant to a StadCo Hedge Agreement in accordance with Section
3.3(e), shall be deposited upon receipt by StadCo into the StadCo Revenue Account.
StadCo shall, concurrent with any deposit of StadCo Revenues into the StadCo Revenue Account, deliver to the Collateral Trustee and the applicable Depositary Bank a certificate in the form of Exhibit H hereto ( each, a "Suite Prepayment Proceeds Certificate") which identifies that portion, if any, of such deposited StadCo Revenues that constitute Suite Prepayment Proceeds. Moneys that (a) are inadvertently or for convenience deposited to the StadCo Revenue Account but that do not constitute StadCo Revenues and (b) StadCo identifies in a withdrawal certificate in the Form of Exhibit F hereto received by the applicable Depositary Bank and the Collateral Trustee by Friday ( or, if such day is not a Business Day, the next succeeding Business Day) of any calendar week ( each, a "StadCo Withdrawal Certificate") shall be withdrawn from the StadCo Revenue Account by such Depositary Bank on the immediately succeeding Wednesday ( or, if such day is not a Business Day, the next succeeding Business Day) and remitted to StadCo; provided,further that in order to permit StadCo to identify amounts that are deposited to the StadCo Revenue Account in error, amounts deposited into the StadCo Revenue Account shall only be transferred on a Monthly Date if such amounts have been on deposit in such StadCo Revenue Account for at least a calendar week without any being the subject of a StadCo Withdrawal Certificate being delivered by StadCo. If a Monthly Date shall occur (A) between when a StadCo Withdrawal Certificate is received and the immediately succeeding Wednesday, the moneys identified in such StadCo Withdrawal Certificate shall be retained in the StadCo Revenue Account on such Monthly Date until withdrawn on the immediately succeeding Wednesday pursuant to the terms of the immediately preceding sentence or (B) between the date of deposit and the expiration of such calendar week period the funds so deposited shall be retained in the StadCo Revenue Account on such Monthly Date until the next succeeding Monthly Date. On each Monthly Date on which amounts are on deposit in the StadCo Revenue Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the StadCo subaccount of the Trust Revenue Account all amounts contained in the StadCo Revenue Account.
· Section 3.19 StadCo O&M Account. Upon the receipt of any funds into the StadCo subaccount of the Trust Rent and O&M Account in accordance with Sections
3.3(c)(i) or (iii), the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer such funds from the StadCo subaccount of the Trust Rent and O&M Account to the StadCo O&M Account. If no Default or Event of Default shall have occurred and be continuing, StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo O&M Account to the appropriate Person( s) an amount equal to the respective operations and maintenance expenses then due and owing by StadCo to such Person(s); provided that no such transfer shall be made unless the applicable Depositary Bank and the Administrative 48 Agent shall have received a certificate by or on behalf of StadCo setting out in reasonable detail and attaching unpaid invoices and/or receipted bills in respect of the operations and maintenance expenses then due and owing by StadCo to such Person(s).
Section 3 .20 StadCo Tax Distributions Account. So long as no Default or Event of Default shall have occurred and be continuing and, following Substantial Completion, the Distribution Condition has been satisfied, the Collateral Trustee shall instruct the applicable Depositary Bank in ··writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo Tax Distributions Account to StadCo such portion of the StadCo Tax Distributions Amount so that StadCo may distribute to the direct and indirect owners of StadCo all amounts necessary to pay the taxes then due and owing by such Person(s).
Section 3 .2 I StadCo Liguidated Damages and Insurance Proceeds Account. (a) All Project Liquidated Damages and Insurance Proceeds received by StadCo as agent for the Authority or otherwise or the Collateral Trustee or any Secured Party on behalf of StadCo shall be transferred upon receipt by such party to the applicable Depositary Bank for deposit into the StadCo Liquidated Damages and Insurance Proceeds Account. (b) On the fifteenth (I 5th) Business Day following (i) the date of the Collateral Trustee's receipt of written notice from StadCo specifying in detail the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the StadCo Liquidated Damages and Insurance Proceeds Account and (ii) the Construction Monitor's approval of the use of such funds in connection with the Stadium Project, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer so long as no Default or Event of Default shall have occurred and be continuing, in the amounts and the manner approved by the Construction Monitor, all or a portion of such Project Liquidated Damages and Insurance Proceeds on deposit in the StadCo Liquidated Damages and Insurance Proceeds Account to the Authority Construction Account to be applied exclusively as so approved by the Construction Monitor.
( c) In the event that the Construction Monitor rejects the intended use of any Project Liquidated Damages and Insurance Proceeds deposited into the StadCo Liquidated Damages and Insurance Proceeds Account, StadCo shall be entitled to resubmit in writing to the Construction Monitor within ten (I 0) business days of such initial rejection an alternate use for such Project Liquidated Damages and Insurance Proceeds. In the event that StadCo elects not to resubmit to the Construction Monitor within such time period or the use of any or all such Project Liquidated Damages and Insurance Proceeds described in such resubmission is not approved by the Construction Monitor, such amounts shall be transferred to the StadCo subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the StadCo Term Loans pursuant to the terms of the StadCo Credit Agreement.
Section 3.22 StadCo Excess Borrowings Account. On any day on which amounts are deposited into the StadCo Excess Borrowings Account, the Collateral Trustee shall 49 instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer an amount equal to such excess borrowings contained in the StadCo Excess Borrowings Account to make a mandatory prepayment of the StadCo Term Loans pursuant to the terms of the StadCo Credit Agreement by depositing such amounts in the StadCo subaccount of the Trust Debt Service Account.
Section 3 .23 StadCo Distributions Account. So long as the Distribution Condition has been satisfied anci''no Default or Event of Default shall have occurred and be continuing, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo Distributions Account to StadCo all amounts contained in the StadCo Distributions Account; provided, that upon receipt of a certificate of an authorized officer of StadCo, which must be received not later than five (5) Business Days prior to the date that any regularly-scheduled debt service is due and owing under the NFL G-4 Loan Agreement and intended to be paid using amounts contained in the StadCo Distributions Account, setting forth the date and amount of such debt service together with such other reasonably supporting information in respect of such payment as the Collateral Trustee may request, the Collateral Trustee shall, so long as no Default or Event of Default shall have occurred and be continuing, instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the StadCo Distributions Account to StadCo those amounts necessary to permit StadCo to pay any regularly scheduled debt service then due and owing under the NFL G-4 Loan Agreement.
Section 3 .24 Authority Distributions Account. On the last Business Day of the Fiscal Year, so long as the Distribution Condition has been satisfied and no Default or Event of Default shall have occurred and be continuing, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer from the Authority Distributions Account to the Authority all amounts contained in the Authority Distributions Account.
ARTICLE IV
ACCOUNT INFORMATION AND BALANCES
Section 4.1 Information to Accompany Amounts Delivered to the Depositary Banks; Deposits Irrevocable; Payment Direction. (a) All amounts transferred to the applicable Depositary Bank shall be accompanied by a written direction of the Trust, the Authority or StadCo specifying the Account or Accounts (including the number of such Account or Accounts) into which such amounts are to be deposited. (a) All amounts transferred to the applicable Depositary Bank hereunder shall be made by federal wire transfer to such Depositary Bank for the applicable Account as more fully set forth in Exhibit A.
(b) Any deposit made into any Account shall be irrevocable, except as otherwise specifically provided, and the amount of such deposit plus any investment earnings thereon shall be held by the applicable Depositary Bank and applied, invested and transferred solely as provided herein, in the Note Purchase Agreements and in the Note Documents, in the 50 Credit Agreement and in the Credit Documents, in the Authority Credit Agreement and Authority Credit Documents and in the StadCo Credit Agreement and the StadCo Credit Documents.
(c) No Depositary Bank shall have any obligation to verify the accuracy or the adequacy of the sources or amounts transferred to it pursuant to subsection (a) of this Section 4. I and shall be entitled to conclusively rely on the written directions accompanying such transfers. "
( d) ' The Authority and StadCo may irrevocably direct all parties which are, or may be, obligated to pay Pledged Revenues or Project Liquidated Damages and Insurance Proceeds to the Authority or StadCo, as appropriate, to make all payments of Pledged Revenues or Project Liquidated Damages and Insurance Proceeds directly to the applicable Depositary Bank for deposit (i) prior to such parties' receipt from the Collateral Trustee of written notice of the expiration or termination of (A) the Authority Credit Agreement, into the Authority Revenue Account (with respect to Authority Revenues) or the Authority Liquidated Damages and Insurance Proceeds Account (with respect to Project Liquidated Damages and Insurance Proceeds paid to the Authority), (B) the StadCo Credit Agreement, into the StadCo Revenue Account (with respect to StadCo Revenues) or the StadCo Liquidated Damages and Insurance Proceeds Account (with respect to Project Liquidated Damages and Insurance Proceeds paid to StadCo) and (C) the Credit Agreement or the Note Purchase Agreements, into the Trust Special Payments Account (with respect to Special Payments).
( e) The Trust shall irrevocably direct the Authority and StadCo and any other party which is, or may be, obligated to pay amounts to the Trust to make all such payments directly to the applicable Depositary Bank for deposit into the Trust Revenue Account ( except as otherwise described herein) other than amounts in respect of any Trust Hedge Receipts which shall be for deposit into the Costs of Financing subaccount of the Trust Construction Account.
Section 4.2 Books of Account. Each Depositary Bank shall maintain books of account on a cash basis and record therein all deposits into and transfers to, from and between its respective Accounts and all investment transactions effected by such Depositary Bank, pursuant to Article V hereof. The applicable Depositary Bank shall make such books of account available during normal business hours for inspection and audit by the Collateral Trustee, the Trust, the Authority, StadCo and the Secured Parties and their respective representatives upon reasonable prior written notice.
Section 4.3 Account Balance Statements. Each Depositary Bank shall, on a monthly basis not less than ten (10) days prior to each Monthly Date and at such other times as the Collateral Trustee, the Trust, the Authority, StadCo or any other Depositary Bank may from time to time reasonably request, provide to the Collateral Trustee, the Trust, the Authority, StadCo or such other Depositary Bank, as applicable, fund balance statements in respect of each of the Accounts, subaccounts and amounts segregated in any of the Accounts; provided that, notwithstanding the foregoing, if requested by the Collateral Trustee, the Trust or such other Depositary Bank, the applicable Depositary Bank shall provide the Trust, the Collateral Trustee 51 and such other Depositary Bank with internet access to fund balance statements and account activity summaries. Such balance statements shall also include deposits, withdrawals and transfers from and to any Account and subaccounts and the net investment income or gain received and collected in such Account and subaccounts. Each Depositary Bank shall retain records of all receipts, disbursements and investlnents of funds with respect to the Accounts until the third (3'd) anniversary of the Termination Date. Within thirty (30) days after the end of each calendar year, each Depositary Bank shall furnish to the Collateral Trustee, with copies to the Trust, the Authority and StadCo a written statement setting forth in reasonable detail the account balance, receipts, disbursements, transfers and investment transactions with respect to each of the Accounts and subaccounts during such calendar year. The applicable Depositary Bank, upon reasonable request, shall promptly notify the Collateral Trustee and the Trust, the Authority and StadCo of its receipt and the amount of any funds received from any Person that are, or are required hereunder to be, deposited into any Account or subaccount, specifying the Account or subaccount into which such funds have been deposited.
Section 4.4 Coordination Between Depositary Banks. Each Depositary Bank shall, in order to timely facilitate the administration of this Agreement (including, without limitation, the transfer of funds between Accounts), provide to the Collateral Trustee and each other Depositary Bank no later than two (2) Business Days prior to each Monthly Date, the balance of the amounts contained in each Account and subaccount over which such Depositary Bank maintains control.
ARTICLE V
INVESTMENTS AND VALUATION
Section 5.1 Investlnents. All amounts held in the StadCo Accounts by the applicable Depositary Bank shall, until disbursed in accordance with the terms of this Agreement, constitute the property of StadCo, subject to the security interests in favor of the Trust referred to in Section 2.5. All amounts held in the Authority Accounts by the applicable Depositary Bank shall, until disbursed in accordance with the terms of this Agreement, constitute the property of the Authority, subject to the security interests in favor of the Trust referred to in Section 2.5. All amounts held in the Trust Accounts by the applicable Depositary Bank shall, until disbursed in accordance with the terms of this Agreement, constitute the property of Trust, subject to the. security interests in favor of the Secured Parties referred to in Section 2.5. Accordingly prior to the receipt by any Depositary Bank of written notice of a Default or an Event of Default, any amounts held by such Depositary Bank in any of its respective Accounts shall be invested by such Depositary Bank from time to time, at the risk and expense of the Trust, the Authority or StadCo, as the case may be, solely in such Permitted Investments as the Trust, the Authority or StadCo, as the case may be, or its respective designated representative, shall specifically direct in writing ( or, so long as any Default or Event of Default shall have occurred and be continuing, as such Depositary Bank may in its discretion select); provided, that only the Authority may direct as to an Authority subaccount and only StadCo may direct as to a StadCo subaccount. The Trust, the Authority or StadCo, as the case may be, or its respective designated representative, as the case may be, shall select Permitted Investments having such maturities as shall cause each Account to have a sufficient cash balance as of any day to cover the transfers necessary to be made from such Account on such day in 52 accordance with this Agreement. In the event that the cash balance in any Account as of any day is insufficient to cover the transfers to be made from such Account on such day, the applicable Depositary Bank shall sell or liquidate the Permitted Investments held in such Account ( without regard to the maturity date of such) in such manner as such Depositary Bartle may deem necessary in order to obtain cash sufficient to make such transfers and to pay any expenses and charges incurred in connection with effecting any such sale or liquidation, which expenses and charges such Depositary Bank shall be authorized to pay·' with cash on deposit ~ such Account. No Depositary Bank shall be liable to any Person for any loss suffered because of any such sale or liquidation, or for any other loss, fee, tax or other charge in connection with any investment, reinvestment or liquidation hereunder, other than by reason of its willful misconduct or gross negligence.
Section 5 .2 Income or Gain. Any interest, investment income or gain realized as a result of any Permitted Investments held in the Accounts (net of the expenses incurred in connection with making such Permitted Investments) shall be deposited, on the last Business Day of each month (and reinvested as provided herein), (i) if such interest, income or gain realized was with respect to the Authority Accounts, into the Authority Revenue Account, (ii) if such interest, income or gain realized was with respect to the StadCo Accounts, into the StadCo Revenue Account and (iii) if such interest, income or gain realized was with respect to the Trust Accounts, into the Authority subaccount and StadCo subaccount of the Trust Revenue Account, on a pro rata basis based on the source of such interest income or gain realized. No Depositary Bank shall have any liability for any loss resulting from any such Permitted Investment other than by reason of its willful misconduct or gross negligence.
Section 5 .3 Value. Cash and securities on deposit from time to time in the Accounts shall be valued by the applicable Depositary Bank, as follows:
(a) cash shall be valued at the face amount thereof; and (b) securities shall be valued at the market value thereof.
Section 5.4 Taxes. It is acknowledged by the parties hereto that all interest and other investment income earned on amounts on deposit in the Accounts for Federal, state and local income tax purposes shall be attributed to the Authority (with respect to the Authority Accounts), StadCo (with respect to the StadCo Accounts) and the Trust (with respect to the Trust Accounts), respectively.
ARTICLE VI
APPOINTMENT AND DUTIES OF THE DEPOSITARY BANKS
Section 6.1 Powers, Immunities and Standard of Care.
(a) No Depositary Bank shall have any duties or responsibilities except those expressly set forth in this Agreement or in any other Note Document, Credit Document, Authority Credit Document or StadCo Credit Document to which it is a party. Notwithstanding anything to the contrary contained herein, no Depositary Bank shall be required to take any action which is contrary to this Agreement or any other Note Document, Credit Document, 53 Authority Credit Document or StadCo Credit Document or any law or which exposes any such Depositary Bank to any liability. Each Depositary Bank and its Affiliates shall not be responsible to any other Secured Party for (i) any recitals, statements, representations or warranties made by the Trust, the Authority or StadCo contained in this Agreement or in any certificate or other document referred to or provided for herein or received by any Depositary Bank under this Agreement, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document referred to or provided for herein or (iii) any failure by the Trust, the Authority or StadCo to perform its obligations hereunder. Each Depositary Bank may employ agents, designees and attorneys-in-fact, and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care.
(b) Each Depositary Bank, and its directors, officers, employees, agents or sub-agents shall not be responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, (i) each Depositary Bank may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by them in accordance with the advice of such counsel, accountants or experts, (ii) no Depositary Bank makes any warranty or representation to any Secured Party for any statements, warranties or representations made in or in connection with any Note Document, Credit Document, Authority Credit Document or StadCo Credit Document, (iii) no Depositary Bank shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of any Note Document, Credit Document, Authority Credit Document or StadCo Credit Document on the part of any party thereto, to inspect the property (including the books and records) of the Trust, the Authority, StadCo or any other Person or to ascertain or determine whether a Default or Event of Default exists or is continuing, and (iv) no Depositary Bank shall be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of any Note Document, Credit Document, Authority Credit Document or StadCo Credit Document or any other instrument or document furnished pursuant hereto. Except as otherwise provided under this Agreement, each Depositary Bank shall take such action with respect to the Note Documents, Credit Documents, Authority Credit Documents and StadCo Credit Documents as shall be directed in writing by the Collateral Trustee. ( c) Each Depositary Bank shall use the same care with respect to the safekeeping and handling of property with respect to the Accounts it uses in respect of property held for its own benefit.
Section 6.2 Reliance: Discretionary Matters.
(a) Each Depositary Bank shall be entitled to conclusively rely upon any certificate, notice or other document (including any facsimile or electronic transmission in ".pdf' format) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by it. As to any other matters not expressly provided for by this Agreement, no Depositary Bank shall be required to take any action or exercise any discretion, but shall be required to act or to refrain from acting upon instructions of the Collateral 54 Trustee ( except that no Depositary Bank shall be required to take any action which exposes such Depositary Bank to personal liability or that is contrary to this Agreement, any other Note Document, Credit Document, any Authority Credit Document, any StadCo Credit Document or any Applicable Law). Each Depositary Bank shall in all cases (including when any action by any Depositary Bank alone is authorized hereunder, if such Depositary Bank elects in its sole discretion to obtain instructions from the Collateral Trustee) be fully protected in acting or in refraining from acting hereunder, under any other Note Document, Credit Document, any Authority Credit Document or any StadCo Credit Document in accordance with the instructions of the Collateral Trustee, and such instructions of the Collateral Trustee, where applicable, and any action taken or failure to act pursuant thereto shall be bindit;.g on all of the Secured Parties. (b) The permissive· rights of each Depositary Bank enumerated herein shall not be construed as duties. No provision of this Agreement shall require any Depositary Bank to expend or risk its own funds or incur any liability.
( c) Notwithstanding any provision in this Agreement providing for any action in a Depositary Bank's reasonable discretion or reasonable determination or at any Depositary Bank's reasonable request or for approval of any action or matter in any Depositary Bank's reasonable satisfaction or reasonable opinion (any of the foregoing, a "Discretionary Matter"), each Depositary Bank may solicit confirmatory instructions from the Required Creditors in respect of any Discretionary Matter and, if any Depositary Bank solicits such instructions, it shall have no duty to act on any Discretionary Matter until it receives such instructions. In no event shall any Depositary Bank be liable for complying with any instructions provided pursuant to an Act of Required Creditors.
Section 6.3 Compensation; Indemnification.
(a) The Trust, the Authority and StadCo shall pay such compensation to the applicable Depositary Bank as such Parties may agree in writing from time to time. (b) The Trust, the Authority and StadCo jointly and severally agree to pay or reimburse the applicable Depositary Bank the amount of any and all actual and reasonable out of pocket expenses, including the reasonable fees and expenses of its legal counsel and any experts or agents incurred by such Depositary Bank, unless arising from the gross negligence or willful misconduct of such Depositary Bank or its Affiliates, directors, employees, attorneys, agents or sub-agents, in connection with (i) the custody or preservation of, or the sale of, collection from or other realization upon any of the Account Collateral, (ii) the exercise or enforcement of any of the rights of such Depositary Bank hereunder or (iii) the failure by the Trust, the Authority or StadCo to perform or observe any of the provisions hereof. Without limiting the foregoing, the Trust, the Authority and StadCo jointly and severally agree to pay, and to hold the applicable Depositary Bank harmless from, and to indemnify the applicable Depositary Bank against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other similar taxes which may be payable or determined to be payable with respect to any of the Account Collateral or in connection with any of the transactions contemplated by this Agreement.
55 (c) In addition to the payment of amounts pursuant to the foregoing clauses (a) and (b ), whether or not the transactions contemplated hereby shall be consummated, each of the Trust, the Authority and StadCo agrees to defend, indemnify, pay and hold harmless, the applicable Depositary Bank (in its capacity as such) and the officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and Affiliates of such Depositary Bank (in its capacity as such) ( each, an "Indemnitee") from and against any and all Indemnified Liabilities; provided that the Trust, the Authority and StadCo shall not have any obligation to any lndemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this clause ( c) may be unenforceable in whole or in part because they are violative of any law or public policy, the Trust, the Authority and StadCo shall contribute the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. ( d) Any amounts payable by the Trust, the Authority or StadCo as provided in clause (a) or (b) of this Section 6.3 shall be paid within thirty (30) days after written demand therefor and shall constitute additional Trust Obligations, Authority Obligations or StadCo Obligations, as applicable.
(e) To the extent permitted by Applicable Law, the Trust, the Authority and StadCo shall not assert, and each of the Trust, the Authority and StadCo hereby waives, releases and agrees not to sue upon, any claim against the applicable Depositary Bank and its Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any Applicable Law) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby or any act or omission or event occurring in connection therewith.
(f) Without limiting the obligations of the Trust, the Authority and StadCo hereunder, each Depositary Bank shall be fully justified in refusing to take or to continue to take any action hereunder unless it shall first be indemnified to its satisfaction by the Secured Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action; provided, however, that the Collateral Trustee (acting at the direction of the Required Creditors) shall be entitled to remove any Depositary Bank as a result of such refusal and appoint a successor Depositary Bank in accordance with Section 6.4. (g) The agreements in this Section 6.3 shall survive the Termination Date.
Section 6.4 Successor Depositary Bank.
(a) Any Depositary Bank may resign at any time by giving forty-five (45) days' written notice thereof to the Collateral Trustee, the Secured Parties, the Trust, the Authority and StadCo.
56 (b) Any Depositary Bank may be removed involuntarily only for a breach of its respective duties and obligations hereunder or for gross negligence or willful misconduct in connection with the performance of its duties hereunder and then only by the Collateral Trustee (acting at the direction of an Act of Required Creditors (excluding such Depositary Bank from such vote and such Depositary Bank's proportionate share (if any) of the Term Loans from the amounts used to determine the requisite vote of the Required Creditors)). ( c) Upon arly such resignation or removal of a Depositary Bank, the Collateral Trustee (acting at the direction of the Required Creditors) shall have the right, with the consent of the Trust (such consent not to be unreasonably withheld or delayed and provided that no such consent shall be required ifan Event of Default shall have occurred and be.continuing) to appoint a successor Depositary Bank, which shall be an Approved Bank. If no successor Depositary Bank shall have been so appointed by the Collateral Trustee and shall have accepted such appointment, within thirty (30) days after the retiring Depositary Bank's (i) giving of notice of resignation or (ii) its involuntary removal, the retiring Depositary Bank may at the expense of the Trust, the Authority and StadCo but only to the extent an Account relating to such Party was controlled by the retiring Depositary Bank, apply to a court of competent jurisdiction to appoint a successor Depositary Bank hereunder, which shall be an Approved Bank. ( d) Upon the acceptance of any appointment as Depositary Bank under this Agreement by a successor Depositary Bank, such successor Depositary Bank shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Depositary Bank ( and Exhibit A shall be updated as necessary), and the retiring Depositary Bank shall be discharged from its duties and obligations as Depositary Bank only under this Agreement. After any retiring Depositary Bank's resignation or removal hereunder as Depositary Bank, the provisions of this Article VI shall inure to its benefit as to any actions taken or omitted to be taken by it while it was a Depositary Bank under this Agreement. ( e) Each Depositary Bank is hereby authorized by the Collateral Trustee to execute, deliver and perform this Agreement.
Section 6.5 Additional Depositary Banks.
(a) At any time after the Closing Date upon the delivery to the Collateral Trustee of a joinder to this Agreement (a "Joinder Agreement") in form and substance satisfactory to the Collateral Trustee and consented to in writing by the Collateral Trustee, the Trust, the Authority and StadCo, any Approved Bank may become a Depositary Bank hereunder for the purpose of maintaining an existing Account previously maintained by another Depositary Bank ( each, a "Moved Account").
(b) Upon the delivery of a Joinder Agreement, such Approved Bank shall thereupon become vested with all the rights, powers, privileges and duties of a Depositary Bank hereunder and shall act as a Depositary Bank for the Collateral Trustee and as agent of the Collateral Trustee with respect to its respective Accounts as set forth in Exhibit A (which Exhibit A shall be updated as necessary) and the other applicable Account Collateral. 57 ( c) The Depositary Bank formerly maintammg any Moved Account shall be discharged from its duties and obligations as Depositary Bank with respect to such Moved Account. After any Depositary Bank's removal hereunder as Depositary Bank of any Moved Account, the provisions of this Article VI shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Depositary Bank of such Moved Account under this Agreement.
ARTICLE VU
RIGHTS OF COLLATERAL TRUSTEE
Section 7.1 Rights of Collateral Trustee. The rights of the Collateral Trustee under this Agreement and each of the other Collateral Documents is subject to the terms of the Note Purchase Agreements, the Credit Agreement, the Collateral Trust and Intercreditor Agreement and the Trust Pledge and Security Agreement.
Section 7.2 Limitation of Liability. In furtherance of the general immunity from liability contained in Section 6.2 of the Collateral Trust and Intercreditor Agreement and Section
9.3 of the Credit Agreement, neither the Collateral Trustee nor any of its officers, partners, directors, employees or agents shall be (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement ( except for its gross negligence or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction), or (ii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by the Trust, the Authority or StadCo or any representative thereof contained in any Collateral Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Trustee under or in connection with, any Collateral Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral Documents or for any failure of the Trust, the Authority or StadCo to perform its obligations thereunder. The Collateral Trustee shall not be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Collateral Document, or to inspect the properties, books or records of the Trust, the Authority or StadCo.
Section 7.3 Reliance by the Collateral Trustee. The Collateral Trustee shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Trust, the Authority or StadCo ), independent accountants and other experts. In connection with any request of any Secured Party, the Collateral Trustee shall be fully protected in relying on a certificate of any Person, signed by an authorized representative of such Person. The Collateral Trustee shall be fully justified in failing or refusing to take any action under any this Agreement or any Collateral Document (i) if such action would, in the opinion of the Collateral Trustee, be contrary to Applicable Law or the terms of this Agreement or the other Collateral Documents, (ii) if, in any case where such action is not specifically provided for in such Collateral Document, the Collateral Trustee shall not have received any 58 such advice or concurrence of the Required Creditors as it deems appropriate, or (iii) if, in connection with the taking of any such action that would constitute an exercise of remedies under such Collateral Document, it shall not first be indemnified to its satisfaction by the Trust, the Authority and StadCo or the Secured Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Trustee shall in all cases be fully protected in acting, or in refraining from acting, under any Collateral Document in accordance with a request of the Administrative Agent, and such requ~st and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties.
Section 7.4 Ambiguity or Inconsistency in Collateral Documents with Proposed Actions. If, with respect to a proposed action to be taken by it, the Collateral Trustee shall determine in good faith that the provisions of this Agreement or any other Collateral Document relating to the functions or responsibilities or discretionary powers of the Collateral Trustee are or may be ambiguous or inconsistent, the Collateral Trustee shall notify the Secured Parties, the Trust, the Authority and StadCo and identify to such parties the proposed action and the provisions that it considers are or may be ambiguous or inconsistent, and may decline either to perform such function or responsibility or to exercise such discretionary power unless it has received written confirmation that the Required Creditors and, if no Default or Event of Default has occurred and is continuing, the Trust, the Authority and StadCo concur in the circumstances that the action proposed to be taken by the Collateral Trustee is consistent with the terms of this Agreement or is otherwise appropriate. The Collateral Trustee shall be fully protected in acting or refraining from acting upon the confmnation of the Required Creditors and the Trust, the Authority and StadCo in this respect, and such confirmation shall be binding upon the Collateral Trustee and the other Secured Parties.
Section 7.5 Knowledge of Event of Default. The Collateral Trustee shall not be deemed to have actual constructive, direct or indirect knowledge or notice of the occurrence of any Default or Event of Default unless and until the Collateral Trustee has received a notice or a certificate from a Secured Party, the Trust, the Authority or StadCo stating that a Default or an Event of Default has occurred. The Collateral Trustee shall have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default or Event of Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Agreement shall require the Collateral Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. In the event that the Collateral Trustee receives such a notice of the occurrence of any Default or Event of Default, the Collateral Trustee shall give notice thereof to the Secured Parties. The Collateral Trustee shall take such action with respect to an Event of Default as so directed pursuant to Article 8.1 hereof. 59 ARTICLE VIII
EXERCISE OF RIGHTS UNDER SECURITY DOCUMENTS
Section 8.1 Actions Upon an Event of Default. Upon the occurrence and during the continuance of an Event of Default and upon written request of the Collateral Trustee acting pursuant to an Act of Required Creditors, the Collateral Trustee shall be permitted and is hereby authorized to take any and all actions and to exercise any and all rights, remedies and options which it may have under the Collateral Documents.
Section 8.2 Administration of Collateral. Each of the Secured Parties hereby acknowledges and agrees that the Collateral Trustee shall administer the Collateral in the manner contemplated by this Agreement, the Collateral Trust and Intercreditor Agreement, the Trust Pledge and Security Agreement and the other Collateral Documents and the Collateral Trustee shall exercise such rights and remedies with respect to the Collateral as are granted to it under the Collateral Documents and Applicable Law. No Secured Party shall have any right (a) to direct the Collateral Trustee to take any action in respect of the Collateral other than as provided in the Credit Agreement or (b) to take any action with respect to the Collateral (i) independently of the Collateral Trustee or (ii) other than to direct the Collateral Trustee to talce action in accordance with the Credit Agreement.
Section 8.3 Application of Proceeds After Acceleration. If any Event of Default shall have occurred and be continuing, and if the Collateral Trustee shall have declared all Secured Obligations to be due and payable thereunder, all Collateral held by the Collateral Trustee (including, but not limited to, the Accounts) and the proceeds of any sale, disposition or other realization by the Collateral Trustee or by any Secured Party upon the Collateral ( or any portion thereof) pursuant to the Collateral Documents shall be distributed in whole or in part by the Collateral Trustee pursuant to the terms of Section 9.2 of the Trust Pledge and Security Agreement.
ARTICLE IX
LACK OF RELIANCE ON THE SECURITY AGENTS
Section 9.1 No Reliance on the Security Agents. Each of the Secured Parties expressly acknowledges that no Security Agent nor any of its respective officers, directors, employees, agents or attorneys-in-fact has made any representations or warranties to it and that no act by any Security Agent hereinafter taken, including, without limitation, any review of the Stadium Project or of the affairs of the Trust, the Authority or StadCo, shall be deemed to constitute any representation or warranty by such Security Agent to any Secured Party. Each Secured Party represents to each of the Security Agents and the other Secured Parties that it has, independently and without reliance upon any Security Agent or any other Secured Party, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Stadium Project, the Trust, the Authority and StadCo. Each Secured Party also represents that it will, independently and without ' reliance upon any Security Agent or any other Secured Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to 60 make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Stadium Project, the Trust, the Authority and StadCo. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by the Security Agents hereunder, no Security Agent shall have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Stadium Project, the Trust, the Authority or StadCo which may come into· the possession of such Security Agent or any of its officers, directors, employees, agents or attorneys-in-fact.
Section 10.1
ARTICLEX
MISCELLANEOUS
Remedies Cumulative: Delay Not Waiver.
(a) No right, power or remedy herein conferred upon or reserved to the Collateral Trustee hereunder is intended to be exclusive of any other right, power or remedy, and every such right, power and remedy shall, to the extent permitted by Applicable Law, be cumulative and in addition to every other right, power and remedy given hereunder or under any other Note Document, Credit Document now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Resort to any or all security now or hereafter held by the Collateral Trustee or any other Secured Party, may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both. If the Collateral Trustee may, under Applicable Law, proceed to realize its benefits under this Agreement or any other Note Document, Credit Document giving the Collateral Trustee a Lien upon any Account Collateral, whether owned by the Trust or by any other Person, either by judicial foreclosure or by nonjudicial sale or enforcement, the Collateral Trustee may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of the rights and remedies of the Collateral Trustee under this Agreement.
(b) No delay or omission in exercising any right, power or remedy accruing to the Collateral Trustee upon the occurrence and during the continuance of any Event of Default shall impair any such right, power or remedy of the Collateral Trustee, nor shall it be construed to be a waiver of any such Event of Default or of any similar breach or default thereafter occurring or an acquiescence therein, nor shall any waiver of any other breach or default under this Agreement or any other Note Document or Credit Document be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of the Collateral Trustee of any breach or default under this Agreement, or any waiver on the part of the Secured Parties or the Collateral Trustee of any provision or condition of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. Each and every default by the Trust, the Authority or StadCo in payment hereunder shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises.
Section 10.2 Perfection: Further Assurances; Certain Waivers. 61 (a) The Trust, the Authority and StadCo agree that from time to time, at the expense of the Trust, the Authority and StadCo, the Trust, the Authority and StadCo shall promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary, or that the Collateral Trustee may reasonably request, in order to perfect, to ensure the continued perfection of, and to protect the assignment and security interest granted or intended to be granted hereby or to enable the Collateral Trustee to exercise and enforce its rights and remedies hereunder with respect to any Account Collateral. Without limiting the generality ·of the foregoing, the Trust, the Authority and StadCo shall (i) except to the extent such Account Collateral is in the possession of a Depositary Bank, deliver the Account Collateral or any part thereof to the Collateral Trustee, as the Collateral Trustee may reasonably request in accordance with this Agreement, accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to the Collateral Trustee, and (ii) authorize the Collateral Trustee to file such financing statements, or amendments thereto relating to any part of the Account Collateral ( or any other collateral to which the Lien of the Collateral Trustee (for the benefit of any of the Secured Parties)) granted under this Agreement, and such other instruments, endorsements or notices, as may be reasonably necessary or desirable, or as the Collateral Trustee may reasonably request, or as required by Applicable Law, in order to perfect and preserve the assignments and security interests granted or purported to be granted hereby.
(b) The Trust, the Authority and StadCo hereby authorize the filing of any financing statements (and continuations thereof), and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Collateral Trustee may reasonably determine are necessary or advisable to perfect the security interest granted to the Collateral Trustee, for the benefit of the Secured Parties, herein. Such financing statements may describe the Account Collateral in the same manner as described herein or may contain an indication or description of the Account Collateral that describes such property in any other manner as the Collateral Trustee may reasonably determine is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Trustee herein. Copies of any such Filing Statements shall promptly be delivered to the Trust, the Authority and StadCo. Notwithstanding anything to the contrary contained herein, unless directed to do so by an Act of Required Creditors (which direction shall be on a filing by filing basis and not on a standing instruction basis) and at the Trust's, the Authority's or StadCo's expense, as applicable, the Collateral Trustee shall have no responsibility for the preparing, recording, filing, re-recording, or re-filing of any financing statement, continuation statement or other instrument in any public office.
(c) The Trust, the Authority and StadCo shall, within five (5) Business Days following receipt of prior written request, and at the expense of the Trust, the Authority or StadCo, respectively, provide to the Collateral Trustee all information and evidence it may reasonably request concerning the Account Collateral to enable the Collateral Trustee to enforce the provisions of this Agreement.
( d) The Trust, the Authority and StadCo hereby waive, to the maximum extent permitted by Applicable Law, (i) all rights under any law limiting remedies, (ii) all rights under any law to require the Collateral Trustee to pursue any Person other than the Trust, the Authority or StadCo, any security which the Collateral Trustee may hold, or any other remedy before 62 proceeding against the Trust, the Authority or StadCo, (iii) all rights of reimbursement or subrogation and all rights to participate in any security held by the Collateral Trustee until the Termination Date has occurred, (iv) all rights to require the Collateral Trustee to give any notices of any kind, including notices of nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as set forth herein or as expressly provided in the Note Documents or the Credit Documents, (v) all rights to assert the banl:p-uptcy or insolvency of the Trust, the Authority or StadCo as a defense hereunder or as the basis for rescission hereof, (vi) all rights under any law purporting to reduce the Trust's, the Authority's or StadCo's obligations hereunder if the Secured Obligations are reduced (other than as a result of payment of such Secured Obligations), and (vii) all defenses based on the disability or lack of authority of the Trust, the Authority, StadCo or any Person, the repudiation of the Note Documents or the Credit Documents by the Trust or any Person, the Authority Credit Documents by the Authority or any Person or the StadCo Credit Documents by StadCo or any Person, the failure by the Collateral Trustee or the Secured Parties to enforce any claim against the Trust, the Authority or StadCo, or the unenforceability in whole or in part of any of the Note Documents, the Credit Documents, the Authority Credit Documents or the StadCo Credit Documents.
Section I 0.3 Continuing Assignment and Security Interest. This Agreement shall create a continuing pledge and assignment of and security interest in the Account Collateral and shall (a) remain in full force and effect until the Termination Date, (b) be binding upon the Trust, the Authority or StadCo and the Trust's, the Authority's and StadCo's respective successors and assigns, and ( c) inure, together with the rights and remedies of the Collateral Trustee, to the benefit of the Collateral Trustee, the other Secured Parties and their respective successors, transferees and assigns. The release of the security interest in any or all of the Account Collateral, the taking or acceptance of additional security, or the resort by the Collateral Trustee to any security it may have in any order it may deem appropriate, shall not affect the liability of any Person on the Indebtedness secured hereby.
Section I 0.4 Termination of Security Interest. Upon the Termination Date, this Agreement and the security interest and all other rights granted hereby shall terminate and all rights to the Account Collateral shall revert to the Trust, the Authority or StadCo, as applicable.
In addition to the foregoing, the Lien created hereunder shall automatically terminate with respect to any Account Collateral (but, for certainty, only such Account Collateral) that is permitted to be disposed by the Trust acting in accordance with the Note Documents and Credit Documents, the Authority acting in accordance with the Authority Credit Documents or StadCo acting in accordance with the StadCo Credit Documents upon any such disposition. Upon any termination referred to in this Section 10.4, the Collateral Trustee shall, at the Trust's, the Authority's or StadCo's expense and upon such party's written direction, execute and, subject to Section I 0.6, deliver to the Trust, the Authority or StadCo such documents (including UCC-3 financing statements) as the Trust, the Authority or StadCo shall reasonably request to evidence such termination, to release all security interests on the Account Collateral, and to return such Account Collateral to the Trust, the Authority or StadCo, as applicable. If this Agreement shall be terminated or revoked by operation of law, the Trust, the Authority and StadCo shall indenrnify and hold the Collateral Trustee and the other Secured Parties harmless from any loss ( other than any loss arising out of the gross negligence or willful misconduct of the Collateral Trustee or such other Secured Party) which may be suffered or incurred by the Collateral Trustee 63 and the other Secured Parties in acting hereunder prior to the receipt by the Collateral Trustee, its successors, transferees, or assigns of notice of such termination or revocation.
Section I 0.5 Security Interest Absolute. All rights of the Collateral Trustee and the other Secured Parties and the security interest hereunder, and all obligations of the Trust, the Authority and StadCo hereunder, shall be unconditional irrespective of:
(a) any lade of validity or enforceability of this Agreement or any other Note Document, Credit Document, Authority Credit Document, StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, as applicable; (b) the failure of any Secured Party (i) to assert any claim or demand or to enforce any right or remedy against the Trust, the Authority or StadCo, any Affiliate of the Trust, the Authority or StadCo or any other Person under the provisions of this Agreement, any other Note Document or Credit Document, any Authority Credit Document, any StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement, or otherwise, or (ii) to exercise any right or remedy against any other guarantor of, or collateral securing, any of the Secured Obligations;
( c) any change in the time, manner or place of payment of, or in any other term of the Secured Obligations (including any increase in the amount thereof), or any other amendment or waiver of or any consent to any departure from this Agreement or any other Note Document, Credit Document, Authority Credit Document, StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement;
( d) any reduction, limitation, impairment or termination of. any of the Secured Obligations for any reason other than the written agreement of the Secured Parties to terminate the Secured Obligations in full, but including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to, and the Trust, the Authority and StadCo hereby waive any right to or claim of, any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Secured Obligation or otherwise;
( e) any amendment to, rescission, waiver, or other modification of, or any consent to departure from, any of the terms of this Agreement or any Note Document, Credit Document, Authority Credit Document, . StadCo Credit Document, Hedge Agreement, StadCo Hedge Agreement or Authority Hedge Agreement;
(f) any exchange, surrender, release or non-perfection of any Account Collateral, or any release, amendment or waiver or addition of or consent to departure from any other security interest held by any Secured Party securing any of the Secured Obligations; (g) any bankruptcy or insolvency of the Trust, the Authority, StadCo or any other Person;
(h) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in the Collateral, even though such foreclosure, sale or election of 64 remedies may impair the subrogation rights of the Trust, the Authority or StadCo or may preclude the Trust, the Authority or StadCo from obtaining reimbursement, contribution, indemnification or other recovery and even though the Trust, the Authority or StadCo may or may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency; or
(i) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Trust, the Authority, StadCo or any third party pledgor (other than the defense of payment).
Section 10.6 Reinstatement. This Agreement and the respective obligations of the Trust, the Authority or StadCo hereunder shall continue to be effective or shall be automatically reinstated, as the case may be, if at any time any payment pursuant to this Agreement is rescinded or must otherwise be restored or returned, whether as a result of the insolvency, bankruptcy, reorganization or liquidation of the Trust, the Authority or StadCo or any other Person or upon the dissolution of, or appointment of any intervenor or conservator of, or trustee or similar official for, the Trust, the Authority or StadCo or any other Person or any substantial part of the Trust's, the Authority's or StadCo's or any other such Person's assets, or as a result of any settlement or compromise with any Person (including the Trust, the Authority or StadCo) in respect of such payment, or otherwise, all as though such payments had not been made, and the Trust, the Authority and StadCo shall pay the Collateral Trustee on demand all actual and reasonable costs and expenses (including reasonable fees of counsel) incurred by the Collateral Trustee in connection with such rescission or restoration.
Section 10.7 Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.8 Survival of Provisions. All covenants, agreements, representations and warranties made by the Trust, the Authority or StadCo in this Agreement and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of the Note Documents, Credit Documents, the Authority Credit Documents, the StadCo Credit Documents, any Hedge Agreement, StadCo Hedge Agreement and Authority Hedge Agreement, respectively, regardless of any investigation made by such Persons or on their behalf, and shall continue in full force and effect until the Termination Date shall have occurred.
Section 10.9 Successions and Assignments. This Agreement shall inure to the benefit of the successors and assigns of the Secured Parties who shall have, to the extent of their interest, the rights of the Secured Parties hereunder. This Agreement is binding upon the Trust, the Authority and StadCo and their respective successors and assigns. Neither the Trust, the Authority nor StadCo is entitled to assign its obligations hereunder to any other Person without the written consent of the Collateral Trustee (acting pursuant to the written instruction of the Required Creditors), and any purported assignment in violation of this provision shall be void. 65 Section 10.10 Headings. Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
Section 10.11 Entire Agreement. This Agreement and the other Note Documents, Credit Documents, Authority Credit Documents and StadCo Credit Documents constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Note Documents, Credit Documents, Authority Credit Documents and StadCo Credit Documents, as applicable. Nothing in this Agreement or in the other Note Documents, Credit Documents, Authority Credit Documents or StadCo Credit Documents, express or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement, the Note Documents or the other Credit Documents, Authority Credit Documents or StadCo Credit Documents.
Section 10.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart to this Agreement by facsimile transmission or electronic transmission in ".pdf' format shall be as effective as delivery of a manually signed original.
Section 10.13 Limitation of Liability. No claim shall be made by the Trust, the Authority or StadCo against the Collateral Trustee or the other Secured Parties or any of their respective Affiliates, directors, employees, attorneys or agents for any loss of profits, business or anticipated savings, special or punitive damages or any indirect or consequential loss whatsoever in respect cif any breach or wrongful conduct (whether or not the claim therefor is based on contract, tort or duty imposed by law), in connection with, arising out of or in any way related to the transactions contemplated by this Agreement, the other Note Documents, Credit Documents, the Authority Credit Documents, the StadCo Credit Documents or any act or omission or event occurring in connection therewith, and the Trust, the Authority and StadCo hereby waives, releases and agrees not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in their favor.
Section 10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION,
ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POSTWDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD
RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
Section 10.15 CONSENT TO mRISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL mDICIAL PROCEEDINGS BROUGHT AGAINST ANY
PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER NOTE 66 DOCUMENT, CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE
BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HA VE
SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH OF THE TRUST, THE AUTHORITY AND STADCO, FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS
GENERALLY AND 'UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY ANY
AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY AGREEMENT GOVERNED
BY A LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN
ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE TRUST, THE AUTHORITY
OR STADCO AT ITS ADDRESS PROVIDED IN THE NOTE PURCHASE AGREEMENTS,
THE CREDIT AGREEMENT, THE AUTHORITY CREDIT AGREEMENT OR THE STADCO CREDIT AGREEMENT, AS APPLICABLE; (D) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER THE TRUST, THE AUTHORITY AND STADCO IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS AND
LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST THE TRUST, THE
AUTHORITY AND STADCO IN THE COURTS OF ANY OTHER JURISDICTION IN
CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE ENFORCEMENT OF ANY mDGMENT.
Section 10.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER
ANY OF THE OTHER NOTE DOCUMENTS, CREDIT DOCUMENTS, AUTHORITY
CREDIT DOCUMENTS OR STADCO CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS
W AIYER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY
WAIVES ITS WRY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE 67 MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN W AIYER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND
EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER NOTE DOCUMENTS, CREDIT
DOCUMENTS, AUTHORITY CREDIT DOCUMENTS, STADCO CREDIT DOCUMENTS
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 10.17 Expenses. Without limiting Section 6.3(b ), the Trust, the Authority and StadCo agree to pay to the Collateral Trustee and the applicable Depositary Bank (a) the amount of any and all actual and reasonable out-of-pocket costs and expenses that the Collateral Trustee and such Depositary Bank (including reasonable attorneys' fees and expenses) may incur in connection with (i) the custody, preservation, use or operation of, or the sale of, collection from or other realization upon, any of the Account Collateral or (ii) the failure by the Trust, the Authority and StadCo to perform or observe any of the provisions hereof and (b) all actual costs and expenses of the Collateral Trustee and such Depositary Bank incurred in connection with the exercise of any of their respective rights hereunder or the enforcement of this Agreement (including reasonable attorneys' fees and expenses), whether in any action, suit or litigation, any bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally or in any negotiated settlement or workout. The agreements and obligations of the Trust, the Authority and StadCo contained in this Section 10.17 shall survive the Termination Date and the resignation or removal of the Collateral Trustee or any Depositary Bank.
Section 10.18 Agreement for Benefit of Parties Hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon, or to give to, any person other than the parties hereto and their respective successors and assigns, any right, remedy or claim under or by reason of this Agreement or any covenant, condition or stipulation hereof; and the covenants, stipulations and agreements contained in this Agreement are and shall be for the sole and exclusive benefit of the parties hereto and their respective successors and assigns.
Section 10.19 No Warranties. Except as otherwise expressly provided herein, the Secured Parties have not made to each other nor do they hereby or otherwise make to each other any warranties, express or implied, nor do they assume any liability to each other with respect to the enforceability, validity, value or collectability of the Collateral (or any portion thereof). No Secured Party shall be liable to any other Secured Party for any action or failure to act or any error of judgment, negligence, or mistake, or oversight whatsoever on the part of any Secured Party or any Secured Party's agents, officers, employees or attorneys with respect to any transaction relating to any of the notes or agreements evidencing or entered into with respect to any of the Trust Obligations or any security therefor.
Section 10.20 Notices. All notices or other communications hereunder shall be given in the manner set forth in the Note Purchase Agreements or Credit Agreement (a) to the Trust, the Lenders and the Collateral Trustee at the addresses specified in the Credit Agreement, (b) to the holders of the Notes at the address specified in the Note Purchase 68 Agreements ( c) to the Authority at the address specified in the Authority Credit Agreement, ( d) to StadCo at the address specified in the StadCo Credit Agreement and ( e) to each Depositary Bank at the address specified in Exhibit A, or as to any party at such other address as shall be designated by such party in a written notice to each other party hereto.
Section 10.21 Transfers. Any Secured Party may at any time assign, transfer, grant or sell participations in its rights and interests under the Collateral Documents, subject, however, to the conditions and restrictions, if any, imposed on the assignment, transfer, grant or sale of participations in the Trust Obligations owing to such Secured Party.
Section 10.22 No Impairments of Other Rights. Nothing in this Agreement is intended or shall be construed to impair, diminish or otherwise adversely affect any other rights the Secured Parties may have or may obtain against the Trust, the Authority or StadCo.
Section 10.23 Amendment; Waiver. Except as otherwise expressly provided for in this Agreement, no amendment or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the Trust, the Authority, StadCo and the Collateral Trustee at the direction of an Act of Required Creditors (unless the consent of each (i) Lender directly affected thereby is required pursuant to Section 1 0.S(b) of the Credit Agreement or (ii) holder of a Note is required pursuant to Section 17.1 of the Note Purchase Agreements), and any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by (a) the Collateral Trustee in addition to the Secured Parties required above to take such action, affect the rights or duties of the Collateral Trustee under this Agreement or any Credit Document or (b) the applicable Depositary Bank(s) in addition to the Secured Parties required above to take such action, affect the rights and duties of any Depositary Bank under this Agreement, any Note Document or any Credit Document. ·No delay on the part of any Secured Party in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial waiver by such Secured Party of any right, power or remedy preclude any further exercise thereof, or the exercise of any other right, power or remedy.
Notwithstanding the foregoing, (i) in the event of any ambiguity or inconsistency in the terms of this Agreement (including without limitation the description or mechanics of the waterfall set out in Section 3.3(c) hereof), the Collateral Trustee, the Trust, StadCo and the Authority shall negotiate in good faith to amend such ambiguous or inconsistent provision and (ii) the Collateral Trustee, the Trust, StadCo and the Authority shall, within onehundred eighty (180) days of the Closing Date amend and/or supplement Article I of this Agreement to incorporate each of the definitions (where relevant) currently contained in other documents and agreements and incorporated herein by cross-reference, and, in the case of each of clauses (i) and (ii) so long as no such amendment and/or supplement adversely affects the rights of any Secured Party, no consent of any such Secured Party shall be required to amend or modify such ambiguity or inconsistency; provided, that the Collateral Trustee shall deliver a copy of any such amendment and/or supplement to each of the Secured Parties within ten (10) Business Days of the entry thereof. 69 Section 10.24 Incumbency Certificates· Authorized Persons. Each of the Trust, the Authority and StadCo shall furnish to each Depositary Bank and the Collateral Trustee on or prior to the Closing Date and from time to time thereafter as may be necessary, duly executed incumbency certificates showing the names, titles and specimen signatures of the persons authorized on behalf of such party to take the actions and give the officer's certificates, notifications, approvals and payment instructions required by this Agreement.
Section 10.25 · Termination. This Agreement shall remain in full force and effect until the payment in full of all of the Trust Obligations, Authority Obligations and StadCo Obligations.
Section 10.26 Limitation of Liability of Trustee. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Trustee of the Trust, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (b) each of the representations, undertaking and agreements herein made on the part of the Trust is made and intended not as personal representations, undertaking and agreements by Wilmington Trust, National Association but is made and intended for the purposes for binding only the Trust, ( 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 breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement or the other Note Documents or Credit Documents.
Section 10.27 NFL Requirements. The Parties acknowledge that the Trust, StadCo, the Administrative Agent and the Collateral Trustee are entering into a separate letter agreement with, inter alia, the NFL, Forty Niners Holdings LP, Forty Niners Football Company LLC and their respective Affiliates party thereto ( as the same may hereafter be amended, the "NFL Letter Agreement"), and that so long as the NFL Letter Agreement is in effect and notwithstanding anything in this Agreement or any other Collateral Document to the contrary, (a) the exercise by the Secured Parties of their rights and remedies under any Collateral Document will be made in accordance with the terms and provisions of the NFL Letter Agreement, and (b) in the event of any conflict or inconsistency between the terms of the NFL Letter Agreement and the terms of any Collateral Document (including without limitation this Agreement) relating to the rights and remedies of the Secured Parties under such Collateral Document, the terms of the NFL Letter Agreement will control as among the parties thereto. Although, as described above, the NFL Letter Agreement may affect the exercise by the Secured Parties of their rights and remedies under any Collateral Documents, the Parties acknowledge that the Authority is not a party to the NFL Letter Agreement, and that nothing in the NFL Letter Agreement controls the exercise by the Authority of its rights, or the performance by the Authority of its obligations, hereunder.
Section 10.28 Force Maieure. In no event shall any Depositary Bank be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or 70 natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that each Depositary Bank shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.29 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, each Depositary Bank, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with a Depositary Bank. The parties to this Agreement agree that they will provide the. applicable Depositary Bank with such info1mation as it may request in order for such Depositary Bank to satisfy the requirements of the U.S.A. Patriot Act. [ Remainder of Page Intentionally Left Blank]
71 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers, all as of the date first above written.
STADIUM FUNDING TRUST
By: Wilmington Trust, National Association,
not in its individu I capacity but solely as
Trustee
By: ____ -::=---'µ.........., ______ _
Name: . Steve Ba1·one
Title: Assistant Vice Prcssident
[Signature Page - Deposit and Disbursement Agreement]
FORTYNINERS SC STADIUM COMPANY
LLC
~~~e~tt-n
Title: Chief Financial Officer
[Signature Page - Deposit and Disbursement Agreement]
SANTA CLARA STADIUM AUTHORITY,
a joint exercise of powers entity,
created through Government Code Sections 6500 et seq.
APPRO O FORM:
_I
(.. ·~
RICHARD E. NOSKY, JR
Stadium Authority Counsel
ATTEST:
ROti!t:f:
Secretary
Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Facsimile: (408) 241-6771
[Signatures continued on next page]
[Signature Page-Deposit and Disbursement Agreement]
GOLDMAN SACHS BANK USA, as
Administrative Agent
By:.~Af4t~r;;t{,--~-- Anthorized Signatory
[Signature Page - Deposit and Disbursement Agreement]
U.S. BANK NATIONAL ASSOCIATION, as
Collateral Trustee
By:_'~~lnil~· :~!frrl-,f.·~~:1'e - Name:
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as
a Deposimry Bank
By:~
Name:
Title: Jean Clarke
Vice President
[Signature l'age - Deposit and Disbursement Agreement]
EXHIBIT A
ACCOUNT NAMES AND NUMBERS
DeQositaa Bank Account Name and Number Subaccount Name(s) and Number(s) '•
US. Bank National Stadium Funding Trust Costs of Financing Subaccount Association Construction Account
100 Wall Street, Suite 1600 159182018
New York, New York 10005 159182000
Construction Note Proceeds
ABA No.: 091000022 Subaccount
BNF: US. Bank NA.
AIC# 180121167365 204783002
For further credit to:
[Insert Account Number
from first column at right]
Ref [Insert Account Name
from first column at right]
For further credit to:
[Insert Subaccount Number
from second column at
right]
Ref [Insert Subaccount
Name from second column
at right]
Attn: Amy Wilkinson
Telephone: (651) 495~3996
US. Bank National Stadium Funding Trust Debt Authority Subaccount Association Service Account
159182019
Administrative Details 159182001
Same as above StadCo Subaccount
159182020
Exhibit A - Deposit and Disbursement Agreement
Depositary Bank
US. Bank National
Association
Administrative Details
Same as above
'C
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
Account Name and Number
Stadium Funding Trust Debt
Service Reserve Account
204783003
Stadium Funding Trust Excess
Cash Flow Account
159182002
Stadium Funding Trust Rent and
Operations and Maintenance
Account
159182003
Stadium Funding Trust Revenue
Account
159182004
I
Subaccount Name(s) and
Numbers
NIA
Authority Subaccount
159182021
StadCo Subaccount
159182022
Authority Subaccount
159182023
StadCo Subaccount
159182024
SBL Proceeds Subaccount
159182025
Authority Subaccount
159182027
StadCo Subaccount
159182028
Carried-Forward Revenues
Subaccount
204783004
Suite Prepayment Proceeds
Subaccount
204783005
Exhibit A - Deposit and Disbursement Agreement
Depositary Bank
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
US. Bank National
Association
Administrative Details
Same as above
Account Name and Number
Stadium Funding Trust Special
Payments Account
159182006
Stadium Funding Trust Strike
Reserve Account
204783006
Stadium Funding Trust Tax
Distributions Account
159182005
StadCo Construction Account
159182016
StadCo Distributions Account
204783007
StadCo Excess Borrowings
Account
159182017
StadCo Liquidated Damages and
Insurance Proceeds Account
159182012
StadCo O&M Account
159182013
Subaccount N ame(s) and
Numbers
NIA
NIA
\
NIA
NIA
NIA
NIA
NIA
NIA
Exhibit A - Deposit and Disbursement Agreement
Depositary Bank
US. Bank National
Association
Administrative Details
Same as above
'
US. Bank National
Association
Administrative Details
Same as above
Bank of America, NA.
11 West 33rd St.
New York, NY 10001
ABA: 0260-0959-3
G.L. Account:
2047628893919
Credit Trust Beneficiary
Account Name and Number
StadCo Revenue Account
159182014
StadCo Tax Distributions
Account
159182015
Authority Construction Account
433511.4
Subaccount Name(s) and
Numbers
NIA
NIA
NIA
Name: [Insert Name and of
Account from first column
at right]
FFCT Trust AIC: [Insert
Account Number from.first
column at right]
Attn: Thomas Popovics
(312-992-9800)
Bank of America, NA. Authority Distributions Account NIA Administrative Details 433511.6
Same as Above
Bank of America, NA. Authority Excess Borrowings NIA
Account
Administrative Details
Same as Above 433511.3
Exhibit A - Deposit and Disbursement Agreement
Depositary Bank
Bank of America, NA.
Administrative Details
Same as Above
Bank of America, NA.
Administrative Details
Same as Above
Bank of America, NA.
Administrative Details
Same as Above
Account Name and Number
Authority Ground Lease Rent
and Operations and Maintenance
Account
433511.2
Authority Liquidated Damages
and Insurance Proceeds Account
433511.5
Authority Revenue Account
433511.1
Subaccount Name(s) and
Numbers
NIA
NIA
NIA
Exhibit A - Deposit and Disbursement Agreement
EXHIBIT B -ACCOUNTS AND FUNDS FLOW DIAGRAM
Stadium F'unding Trust De,taHed Fund Flows
EXHIBITC-1
NOTE PURCHASE AGREEMENT (FIXED RATE)
Exhibit C-1 - Deposit and Disbursement Agreement
EXIDBITC-2
NOTE PURCHASE AGREEMENT (FLOATING RATE)
Exhibit C-2-Deposit and Disbw:sement Agreement
EXHJBIT C-3
CREDIT AGREEMENT
Exhibit C-3 -Deposit and Disbursement Agreement
EXHIBITD
FORM OF DISBURSE:MENT INSTRUCTION
[Applicable Depositary Banlc]
[address] .,
[address]
Attention: [ Applicable Depositary Bank contact name]
Ladies and Gentlemen:
This Disbursement Instruction is delivered by [NAME OF INSTRUCTING PARTY] (the "Instructing Party") pursuant to the provisions of the Amended and Restated Deposit and Disbursement Agreement dated as of June 19, 2013 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority")," Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as collateral trustee for each Secured Party, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank, and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning. ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
1. The undersigned Instructing Party, hereby refers to Section __ of the Deposit and Disbursement Agreement. Pursuant to the terms of such Section the Instructing Party requests a transfer of funds in the aggregate amount of $___ which funds will be used for the following purposes: ______________ _
2. The requested disbursements should be drawn from the following Account(s) (or subaccount(s)) in the following amounts:
Account/subaccount: Disbursement Amount:
$ ______ ..;__ ___ _
$ __________ _
$ __________ _
3. The requested disbursements should be transferred to the following Account(s) (or subaccount(s)) in the following amounts:
Exhibit D - Form of Disbursement Instruction
Account/subaccount: Disbursement Amount:
$ __________ _
$ __________ _
$ __________ _
4. Except in connection with any transfer of rent owing under the Ground Lease pursuant to Section 3.l(a), no Default or Event of Default has occurred and is continuing, and the requested disbursements from and the payments contemplated in connection therewith will not constitute, result in, nor create a Default or an Event of Default.
Exhibit D -Form of Disbursement Instruction
SIGNATURE PAGE TO DISBURSEMENT INSTRUCTION
Dated this ________ day of ________________ _
[NAME OF INSTRUCTING PARTY]
By: ___________ _
Exhibit D-Form of Disbursement Instruction
EXIDBIT E
FORM OF AUTHORJTY WITHDRAW AL CERTIFICATE
[Applicable Depositary Bank]
[address] '
[address]
Attention: [Applicable Depositary Bank contact name]
U.S. Bank National Association, as Collateral Trustee
[address]
[address]
Attention: [Applicable U.S. Bank contact name]
Ladies and Gentlemen:
This Withdrawal Certificate is delivered by Santa Clara Stadium Authority, a joint exercise of powers entity created through California Govermnent Code sections 6500 et seq. (the "Stadium Authority") pursuant to the provisions of the Amended and Restated Deposit and Disbursement Agreement dated as of June 19, 2013 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), the Authority, Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as collateral trustee for each Secured Party, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank, and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
1. The undersigned hereby refers to Section 3 .13 of the Deposit and Disbursement Agreement. Pursuant to the terms of such Section the undersigned requests a transfer of funds which have been inadvertently or for convenience deposited to the Authority Revenue Account.
2. The requested disbursements should be drawn and disbursed from the Authority Revenue Account(s) in the following aggregate amount $ _________ (the "Specified Amount").
3. The undersigned hereby directs that the Specified Amount be transferred by [wire transfer][ACH transfer] to the following account(s):
Exhibit E -Form of Authority Withdrawal Certificate
Payee (including account
information and wire transfer
instructions):
Portion of Specified Amount:
$ __________ _
$ __________ _
$, _________ _
Exhibit E - Form of Authority Withdrawal Certificate ·
SIGNATURE PAGE TO WITHDRAWAL CERTIFICATE
Dated this ________ day of _________________ _
SANTA CLARA STADIUM
AUTHORITY
By: __________ _
Exhibit E - Form of Authority Withdrawal Certificate
EXHIBITF
FORM OF STADCO WITHDRAWAL CERTIFICATE
[Applicable Depositary Bank]
[address]
[address]
Attention: [Applicable Depositary Bank contact name]
U.S. Bank National Association, as Collateral Trustee
[address]
[address]
Attention: [U.S. Bank contact name]
Ladies and Gentlemen:
This Withdrawal Certificate is delivered by Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo") pursuant to the provisions of the Amended and Restated Deposit and Disbursement Agreement dated as of June 19, 2013 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority"), StadCo, Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as collateral trustee for each Secured Party, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank, and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
I. The undersigned hereby refers to Section 3 .18 of the Deposit and Disbursement Agreement. Pursuant to the terms of such Section the undersigned requests a transfer of funds which have been inadvertently or for convenience deposited to the StadCo Revenue Account.
2. The requested disbursement should be drawn and disbursed from the StadCo Revenue Account(s) in the following aggregate amount $._________ (the "Specified Amount").
3. The undersigned hereby directs that the Specified Amount be transferred by [ wire transfer][ACH transfer] to the following account(s):
Exhibit F - Form of StadCo Withdrawal Certificate
Payee (including account
information and wire transfer
instructions):
Portion of Specified Amount:
$ __________ _
$ __________ _
$ __________ _
Exhibit F - Fonn of StadCo Withdrawal Certificate
SIGNATURE PAGE TO WITHDRAWAL CERTIFICATE
Dated this ________ day of _____________ _
FORTY NINERS SC STADIUM
COMPANYLLC
By: ___________ _
Exhibit F - Form of StadCo Withdrawal Certificate
EXHIBIT G
FORM OF SBL PROCEEDS CERTIFICATE
[Applicable Depositary Bank]
[address]
[address]
Attention: [ Applicable Depositary Bank contact name]
U.S. Bank National Association, as Collateral Trustee
[address]
[address]
Attention: [Applicable U.S. Bank contact name]
Ladies and Gentlemen:
This SBL Proceeds Certificate is delivered by Santa Clara Stadium Authority, a joint exercise of powers entity created through California Government Code sections 6500 et seq. (the "Stadium Authority") pursuant to the provisions of the Amended and Restated Deposit and Disbursement Agreement dated as of June 19, 2013 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), the Authority, Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as collateral trustee for each Secured Party, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank, and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
The undersigned hereby refers to Section 3.13 of the Deposit and Disbursement Agreement.
Pursuant to the terms of such Section the undersigned hereby certifies that $ ____ of the Authority Revenues being deposited into the Authority Revenue Account on the date hereof constitute SBL Proceeds.
Exhibit G - Form of SBL Proceeds Certificate
SIGNATURE PAGE TO SBL PROCEEDS CERTIFICATE
Dated this ________ day of _____________ _
SANTA CLARA STADIUM
AUTHORITY
By: ___________ _
Exhibit G - Form of SBL Proceeds Certificate
EXIDBITH
FORM OF SUITE PREPAYMENT PROCEEDS CERTIFICATE
[Applicable Depositary Bank]
[address]
[address]
Attention: [ Applicable Depositary Bank contact name]
U.S. Bank National Association, as Collateral Trustee
[address]
[address]
Attention: [Applicable U.S. Bank contact name]
Ladies and Gentlemen:
This Suite Prepayment Proceeds Certificate is delivered by Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo") pursuant to the provisions of the Amended and Restated Deposit and Disbursement Agreement dated as of June 19, 2013 (the "Deposit and Disbursement Agreement") among Stadium Funding Trust, a Delaware statutory trust (the "Trust"), Santa Clara Stadium Authority, StadCo, Goldman Sachs Bank USA, not in its individual capacity but solely in its capacity as administrative agent for each Lender party to the Credit Agreement, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as collateral trustee for each Secured Party, U.S. Bank National Association, a national banking association, not in its individual capacity but solely as a Depositary Bank, and Bank of America, N.A., not in its individual capacity but solely as a Depositary Bank. All capitalized terms not defined herein shall have the meaning ascribed to those terms in the Deposit and Disbursement Agreement, as amended from time to time.
The undersigned hereby refers to Section 3.18 of the Deposit and Disbursement Agreement.
Pursuant to the terms of such Section the undersigned hereby certifies that $ ____ of the StadCo Revenues being deposited into the StadCo Revenue Account on the date hereof constitute Suite Prepayment Proceeds.
Exhibit H - Form of Suite Prepayment Proceeds Certific_ate
SIGNATURE PAGE TO SUITE PREPAYMENT PROCEEDS CERTIFICATE Dated this ________ day of ______________ _
FORTY NINERS SC STADIUM
COMPANYLLC
By: ___________ _
Exhibit H - Form of Suite Prepayment Proceeds Certificate Execution Copy
FIRST AMENDMENT TO DEPOSIT AND DISBURSEMENT AGREEMENT
THIS FIRST AMENDMENT dated as of April 11, 2014 (this "First Amendment") to the Original Deposit and Disbursement Agreement (as defined below) is made and entered into by and among Stadium Funding Trust, a bankruptcy remote special purpose Delaware statutory trust (the "Trust"), Santa Clara Stadium Authority, a California joint exercise of powers entity (the "Authority"), Forty Niners SC Stadium Company LLC, a Delaware limited liability company ("StadCo"), and U.S. Bank National Association, a national banking association, not in its individual capacity but solely in its capacity as collateral trustee for the Secured Parties referred to below (in such capacity, together with any successor collateral trustee appointed pursuant to Section 6.5 of the Collateral Trust and Intercreditor Agreement, the "Collateral Trustee"). Capitalized terms used herein and not otherwise defined shall have the meaning given in the Deposit and Disbursement Agreement (defined below).
RECITALS:
A. The Trust, the Authority, StadCo, Administrative Agent, the Collateral Trustee and each Depositary Bank have heretofore entered into an Amended and Restated Deposit and Disbursement Agreement dated as of June 19, 2013 (the "Original Deposit and Disbursement Agreement"; such Original Deposit and Disbursement Agreement as amended by this First Amendment and other amendments entered into in accordance with the terms thereof from time to time, the "Deposit and Disbursement Agreement").
B. Section 10.23 of the Original Deposit and Disbursement Agreement provides that no amendment of the Original Deposit and Disbursement Agreement shall be effective unless the same is in writing and signed by the Trust, the Authority, StadCo and the Collateral Trustee at the direction of an Act of Required Creditors.
C. The Trust, the Authority, StadCo and the Collateral Trustee now desire to amend the Original Deposit and Disbursement Agreement in the respects, but only in the respects, hereinafter set forth.
D. Capitalized terms used herein shall have the respective meanings ascribed thereto in the Deposit and Disbursement Agreement unless herein defined or the context shall otherwise require.
E. All requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
NOW, THEREFORE, the Trust, the Authority, StadCo and the Collateral Trustee, in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, do hereby agree as follows:
NY:1603581.6
SECTION 1. AMENDMENTS.
1.1. Article I of the Deposit and Disbursement Agreement shall be and is hereby replaced in its entirety by Annex I attached hereto.
1.2. Section 2.5 of the Deposit and Disbursement Agreement shall be and is hereby amended such that (i) the second clause "(a)" in such Section 2.5 is deemed to be clause "(b)", (ii) the current clause "(b)" in such Section 2.5 is deemed to be clause "(c)" and (iii) the current clause "(c)" in such Section 2.5 is deemed to be clause "(d)".
1.3. The first sentence of Section 3.3(a) shall be and is hereby amended by (i) replacing the words "Immediately following" with the words "To effect" and (ii) inserting the words "or the Authority or StadCo, as applicable" immediately following the phrase "the Collateral Trustee".
I .4. Section 3.3(a)(i) shall be and is hereby amended by inserting the words, "subject to the provisions of Section 3.3(a)(ii) and Section 3.3(a)(iii), as applicable," at the beginning of the clause.
1.5. Section 3.3(a)(iii) shall be and is hereby amended by deleting the words "concurrently with each deposit of StadCo Revenues into the StadCo Revenue Account" from such clause.
1.6. Section 3.5 shall be and is hereby amended by adding a new clause (c) at the end thereof as follows:
"(c) The Trust shall, not later than three (3) Business Days prior to each date on which amounts are payable under this Section 3.5 above (each such date, a "Debt Service Payment Date"), deliver to the Collateral Trustee and the applicable Depositary Bank a certificate in the form of Exhibit I hereto (each, a "Debt Service Payment Certificate") which identifies the respective amounts payable and payees on such Debt Service Payment Date."
1.7. Section 3.10 shall be and is hereby amended by deleting clause (a) and substituting the following in lieu thereof:
"(a) On the last Business Day of each Fiscal Year following Substantial Completion, to (i) the StadCo subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the StadCo Term B Loans pursuant to the terms of Section 2.14( d) of the StadCo Credit Agreement and Exhibit O-Required ECF Transfer Calculation thereto and (ii) the Authority subaccount of the Trust Debt Service Account to be used to make a mandatory prepayment of the Authority Term B Loans pursuant to the terms of Section 2.14(d) of the Authority Credit Agreement and Exhibit O-Required ECF Transfer Calculation thereto;"
1.8. Section 3.13 shall be and is hereby amended by deleting the last sentence and substituting the following in lieu thereof:
"Subject to the foregoing, on each Monthly Date on which amounts are on deposit in the Authority Revenue Account, the Collateral Trustee or the Authority shall instruct the 2 applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the applicable subaccount of the Trust Revenue Account all amounts contained in the Authority Revenue Account."
1.9. Section 3 .14 shall be and is hereby amended by deleting the first sentence and substituting the following in lieu thereof:
"The Authority may as necessary from time to time instruct the Collateral Trustee and the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall in the amount so instructed, transfer some or all of the funds then on deposit in the Authority subaccount of the Trust Rent and O&M Account to the Authority Ground Lease Rent and O&M Account."
1.10. Section 3.15 shall be and is hereby replaced in its entirety by the following:
"On any day on which amounts are deposited into the Authority Excess Borrowings Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer an amount equal to such excess borrowings contained in the Authority Excess Borrowings Account to the Authority subaccount of the Trust Debt Service Account to be applied solely to the payment of the Authority Term Loans pursuant to the terms of the Authority Credit Agreement."
1. 11. Section 3.18 shall be and is hereby amended by deleting the second sentence and substituting the following in lieu thereof:
"StadCo shall, not later than two (2) Business Days prior to each Monthly Date, deliver to the Collateral Trustee and the applicable Depositary Bank a certificate in the form of Exhibit H hereto (each, a "Suite Prepayment Proceeds Certificate") which identifies that portion, if any, of such deposited StadCo Revenues that constitute Suite Prepayment Proceeds."
1.12. Section 3.18 shall be and is hereby amended by deleting the final sentence and substituting the following in lieu thereof:
"Subject to the foregoing, on each Monthly Date on which amounts are on deposit in the StadCo Revenue Account, the Collateral Trustee or StadCo shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer to the applicable subaccount of the Trust Revenue Account all amounts contained in the StadCo Revenue Account."
1.13. Section 3.19 shall be and is hereby amended by deleting the first sentence and substituting the following in lieu thereof:
"StadCo may as necessary from time to time instruct the Collateral Trustee and the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall in the amount so instructed, transfer some or all of the funds then on deposit in the StadCo subaccount of the Trust Rent and O&M Account to the StadCo O&M Account." 3 1.14. Section 3.22 shall be and is hereby replaced in its entirety by the following:
"On any day on which amounts are deposited into the StadCo Excess Borrowings Account, the Collateral Trustee shall instruct the applicable Depositary Bank in writing to, and upon receipt of such instruction the applicable Depositary Bank shall, transfer an amount equal to such excess borrowings contained in the StadCo Excess Borrowings Account to the StadCo subaccount of the Trust Debt Service Account to be applied solely to the payment of the StadCo Term Loans pursuant to the terms of the StadCo Credit Agreement." SECTION 2. MISCELLANEOUS.
2.1. Beginning April 15, 2014, on each Monthly"Date prior to Substantial Completion, notwithstanding any provision of the Deposit and Disbursement Agreement to the contrary, but provided that no Default or Event of Default (as such terms are defined in the Fixed Rate Note Purchase Agreement, the Floating Rate Note Purchase Agreement or the Credit Agreement, respectively) shall have occurred and be continuing, the applicable Depositary Bank shall transfer from the Authority subaccount of the Trust Revenue Account to the Authority Ground Lease Rent and O&M Account the amount specified in a certificate substantially in the form of Exhibit J hereto (each, a "Pre-Opening O&M Certificate"), if any, received by such Depositary Bank from the Authority no more than ten (10) and no fewer 1han one (1) Business Day prior to such Monthly Date; provided that no such transfer shall be made unless the applicable Depositary Bank and the Administrative Agent shall have received a Pre-Opening O&M Certificate delivered by or on behalf of the Authority setting forth in reasonable detail operations and maintenance expenses that (i) will become due and payable by the Authority between such Monthly Date and the next succeeding Monthly Date, inclusive, (ii) are consistent with the Pre-Opening Budget attached hereto as Annex ll (the "Pre-Opening Budget"), and (iii) are in an amount a1 least equal to the amount specified to be so transferred in such written instruction.
2.2. Beginning April I 5, 2014, on each Monthly Date prior to Substantial Completion, notwithstanding any provision of the Deposit and Disbursement Agreement to the contrary, but provided that no Default or Event of Default shall have occurred and be continuing, the applicable Depositary Bank shal1 transfer from the StadCo subaccount of the Trust Revenue Account to the StadCo O&M Account the amount specified in a Pre-Opening O&M Certificate, if any, received by such Depositary Bank from StadCo no more than ten (10) and no fewer than one (I) Business Day prior to such Monthly Date; provided that no such transfer shall be made unless the applicable Depositary Bank and the Administrative Agent shall have received a PreOpening O&M Certificate by or on behalf of StadCo setting forth in reasonable detail operations and maintenance expenses that (i) will become due and payable by StadCo between such Monthly Date and the next succeeding Monthly Date, inclusive, (ii) are consistent with the PreOpening Budget, and (iii) are in an amount at least equal to the amount specified to be so transferred in such written instruction.
2.3. Notwithstanding any provision of the Deposit and Disbursement Agreement to the contrary, but provided that no Default or Event of Default shall have occurred and be continuing, the applicable Depositary Bank shall on the date hereof transfer $5,234,117 from the Costs of 4 Financing subaccount of the Trust Construction Account to the Construction Note Proceeds subaccount of the Trust Construction Account.
2.4. This First Amendment shall be construed in connection with and as part of the Deposit and Disbursement Agreement, and except as modified and expressly amended by this First Amendment, a11 terms, conditions and covenants contained in the Original Deposit and Disbursement Agreement are hereby ratified and shall be and remain in full force and effect.
2.5. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Deposit and Disbursement Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.
2.6. A copy of this First Amendment shall be delivered to the Secured Parties and each Depositary Bank.
2.7. The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
2.8. This First Amendment shall be governed by and construed in accordance with New York law, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
2.9. It is expressly understood and agreed by the parties hereto that (a) this First Amendment is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Trustee of the Trust, in the exercise of the powers and authority conferred and vested in it under the Amended and Restated Trust Agreement, dated as of June 19, 2013, among StadCo, as depositary, BSCS 2011-4, Inc., as beneficiary, and Wilmington Trust, National Association, as trustee, (b) each of the representations, undertaking and agreements herein made on the part of the Trust is made and intended not as personal representations, undertaking and agreements by Wilmington Trust, National Association but is made and intended for the purposes for binding only the Trust, (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 breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this First Amendment or the other Note Documents or Credit Documents.
[Remainder of Page Intentionally Left Blank]
5 The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each executed counterpart constituting an '·original, but all together only one agreement.
STADIUM FUNDING TRUST
By: Wilmin on Trust, National Association,
not in · dual capacity but solely as
Trust
By:----+"""""'""--'-----------
Nam
Title:
Jacqueline E. Sofone
Assistar,t \fir<:>- Presider.t
[Signature Page - First Amendment to Deposit and Disbursement Agreement]
SANTA CLARA STADIUM AUTHORITY,
a joint exercise of powers entity,
created through Government Code Sections 6500 et seq.
RICHARD E. NOSKY, JR.
Stadium 11uthority Counsel
ATIEST:
RO DIRIDON, JR.
Secretary
Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Facsimile: (408) 241-6771
[Signature Page - First Amendment to Deposit and Disbursement Agreement]
FORTY NINERS SC STADIUM COMP ANY
LLC
By A~Zd 5--
N an?e:ScottSaatino
Title: VP and Treasurer
[Signature Page - First Amendment to Deposit and Disbursement Agreement] ! '
U.S. BANK NATIONAL ASSOClATrON, as
Colla~-/
Title:
Name:
By: ~
Jean Clarke
Vice President
[Signature Page - First Amendment to Deposit and Disbursement Agreement] Acknowledged and agreed to
as of lhe date first above written:
BANK OF AMERICA, N.A., as a Depositary Bank
U.S. BANK NATJONAL ASSOCIATION, as a Depositary Bank
By: ___________ _
Name:
Title:
[Signature Page - First Amendment to Deposit and Disbursement Agreement) I
I
Ack110wlcdged and agreed to
as of the date first above written:
I
,f
BANK ,, OF AMERICA, N.A., as a Dcpos·itary Bank
By:..;,:· __________ _
Na,~'e:
Title:
I:
:S !:~N, os a Depositary Bank
Nam'~:
Tit Id
I
(
,,
!i
I
,1
·l
r
f.
! 1:
;
Jean Clarke
Vice Pre91dent
[Signature Page - First A111endrnent to Deposit and Disbursement Agreement) i .
'i ;'
Annex I
ARTICLE I
DEFINITIONS
Section 1. 1. Defined Terms. As used in this Agreement the following tenns have the following meanings (tenns defined in the singular to have the same meaning when used in the plural and vice versa). All capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Fixed Rate Note Purchase Agreement, the Floating Rate Note Purchase Agreement or the Credit Agreement as in effect on the date hereof, copies of which are attached hereto at Exhibit C- I, Exhibit C-2 and Exhibit C-3, respectively. All references in this Agreement to sections and exhibits are to sections and exhibits in or to this Agreement unless otherwise specified.
"Acceptable Bank" means a domestic bank or financial institution mutually agreed to by the Authority and StadCo.
"Account Collateral" has the meaning assigned to that term in Section 2.5(c). "Accounts" has the meaning assigned to that term in Section 2.3. "Act of Required Creditors" means, as to any matter at any time, a direction in writing delivered to the Collateral Trustee by or with the consent of holders of Secured Obligations representing the Required Creditors.
"Additional Permitted Secured Debt" means Indebtedness (including, without limitation, Refinancing Indebtedness and Permitted Indebtedness) that is incurred and secured on a part passu basis with the Secured Obligations under the Credit Agreement, the Fixed Rate Note Purchase Agreement and the Floating Rate Note Purchase Agreement by a First Priority Lien on the Collateral to the extent permitted by the Financing Documents and the other Permitted Secured Debt Documents.
"Adjusted Eurodol1ar Rate" means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (i) (a) the rate per annum equal to the rate determined by Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays an average British Bankers Association Interest Settlement Rate (such page currently being LIBOR0l page) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11 :00 a.m. (London, England time) on such Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service which displays an average British Bankers Association Interest Settlement Rate for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11 :00 a.m. (London, England time) on such Interest Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by Bank of America, N.A. for deposits (for delivery on NY:1603587.4
the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Term Loan of Administrative Agent, in its capacity as a Lender, for which the Adjusted Eurodollar Rate is then being determined with maturities comparable to such period as of approximately 11 :00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement.
"Administrative Agent" has the meaning assigned to that term in the first paragraph of this Agreement.
"Advertising and Sponsorship Rights" means, collectively, all advertising, sponsorship and promotional activity, Signage, messages and displays of every kind and nature, whether now existing or developed in the future, including, without limitation, permanent, non-permanent and transitory Signage or advertising displayed on permanent or non-permanent advertising panels or on structures, portions of the Stadium Complex or Appurtenant Areas, fixtures or equipment (such as Scoreboard advertising and canopy advertising); audio or video public address advertising and message board advertising; programs; electronic insertion and other forms of virtual signage; advertising on or in schedules, admission tickets and yearbooks; all other print and display advertising; promotional events sponsored by advertisers; advertising display items worn or carried by concessionaires or personnel (such as ushers and ticket takers) engaged in the operation of any Stadium Event; and logos, slogans or other forms of advertising affixed to or included with such items, including, but not limited to: cups, hats, T-shirts; advertising of Concessions (including menu boards and point of purchase concession advertising within the Stadium); advertising through Broadcast Rights; advertising through Telecommunications Rights; advertising through Domain Name Rights; and advertising through other concession, promotional or premium items. "Advertising and Sponsorship Rights" shall include Stadium Components Sponsorship Rights, Branding Rights, Service Rights, and Pourage Rights. "Advertising and Sponsorship Rights" shall exclude Stadium Naming Rights and Non-NFL Event Advertising Rights.
"Agent" means each of (i) Administrative Agent, (ii) the Co-Syndication Agents, (iii) Collateral Trustee, (iv) the Co-Documentation Agents, (v) the Joint Bookrunners and (vi) any other Person appointed under the Credit Documents to serve in an agent or similar capacity. "Agreement" means this Amended and Restated Deposit and Disbursement Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Annual Capital Reserve Amount" means, for the first Lease Year, the sum of Two Million Dollars ($2,000,000.00). For the second and each succeeding Lease Year, the Annual Capital Reserve Amount shall increase by three percent (3%). "Annual Debt Service Lookforward" means an amount equal to, collectively, the applicable Authority Debt Service Annual Amount and the StadCo Debt Service Annual Amount.
2 "Annual Expense Lookforward" means an amount equal to, collectively, the applicable Ground Lease Rent Annual Amount, the Authority O&M Annual Amount, the StadCo Lease Rent Annual Amount and the StadCo O&M Annual Amount. "Applicable Law" means all federal, state and local laws, rules and regulations applicable from time to time to the Stadium Project, this Agreement or the Related Agreements, or to the performance by Borrower, the Authority, or StadCo of any of their obligations with respect thereto.
"Applicable Margin" means with respect to each Term Loan, the applicable percentage per annum set forth below determined by reference to the Trust's Credit Rating as of the applicable Interest Payment Date:
A1mlicable Margin
Credit Rating Eurodollar Rate Loans Base Rate Loans
A- or better 1.25% 0.25%
BBB+ 1.50% 0.50%
BBB 1.75% 0.75%
BBB- 2.00% 1.00%
BB+ or lower 2.25% 1.25%
"A1mlicable Reserve Requirement" means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against "Eurocurrency liabilities" (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator.
Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted Eurodollar Rate or any other interest rate of a Term Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurodol1ar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
"Approved Bank" means any commercial bank (i) having (or in the case of a bank holding company, its corporate parent shall have) a combined capital and surplus of at least $100,000,000 and (ii) that has executed and de1ivered to the Collateral Trustee (A) a 3 signature page or joinder to this Agreement and (B) any other instruments and documents that the Collateral Trustee may reasonably request.
"Appurtenant Areas" means the easements and other rights described in Section 1.3 of the StadCo Lease.
"Authority Account Collateral" has the meaning assigned to that term in Section
2.5(b).
"Authority Accounts" means, collectively, the Authority Construction Account, the Authority Distributions Account, the Authority Excess Borrowings Account, the Authority Ground Lease Rent and O&M Account, the Authority Liquidated Damages and Insurance Proceeds Account and the Authority Revenue Account.
"Authority Agents" means (i) Goldman Sachs Bank USA, as administrative agent under the Authority Credit Agreement and (ii) any other Person appointed under the Authority Credit Documents to serve in an agent or similar capacity.
"Authority Collateral Documents" means the Authority Pledge and Security Agreement, this Agreement, the Authority Real Estate Documents and all other instruments, documents and agreements (including any deposit account control agreements or securities account control agreements, as applicable) delivered by the Authority pursuant to the Authority Credit Agreement or any of the other Authority Credit Documents in order to grant to, or perfect in favor of the Trust, a Lien on any real, personal or mixed property of the Authority as security for the Authority Obligations, as each of the same may be amended, restated, supplemented or otherwise modified from time to time.
"Authority Construction Account" has the meaning assigned to that term in Section
2.3(a)(xi).
"Authority Construction Revenues" means all Authority Revenues received by the Authority from the Stadium Project prior to September 1, 2015 as a result of SB Ls and all interest income and investment earnings related thereto. "Authority Credit Agreement" means that certain Amended and Restated Credit Agreement dated as of the Closing Date, among the Trust, the Authority and Goldman Sachs Bank USA, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Authority Credit Documents" means any of the Authority Credit Agreement, the Authority Collateral Documents, and all other documents, certificates, instruments or agreements executed and delivered by the Authority for the benefit of Authority Agents, Collateral Trustee or the Trust in connection with the Authority Credit Agreement. "Authority Credit Extension" means an Authority Tenn A Credit Extension or an Authority Term B Credit Extension.
4 "Authority Debt Service Annual Amount" means, for any date, the amount of estimated debt service (including, without limitation, Ordinary Course Settlement Payments) to be paid by the Authority over the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget; provided, that, for purposes of this definition, such debt service shall be deemed to exclude prepayments made pursuant to Section 2.14(d) of the Authority Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation. "Authority Debt Service Monthly Amount" means the amount of estimated debt service (including, without limitation, Ordinary Course Settlement Payments) to be paid by the Authority for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget; provided, that, for purposes of this definition, such debt service shall be deemed to exclude the prepayments made pursuant to Section 2. 14(d) of the Authority Credit Agreement and the related Exhibit O-Required ECF Transfer Calculation. "Authority Distributions Account" has the meaning assigned to that term in Section
2.3(a)(xii).
"Authority Excess Borrowings Account" has the meaning assigned to that term in Section 2.3(a)(xiii).
"Authority Exclusive Facilities" means the Stadium Authority Administrative Offices and other areas shown on the Stadium Plans, as the same may be modified by mutual agreement of the Authority and StadCo.
"Authority Ground Lease Rent and O&M Account" has the meaning assigned to that terrn in Section 2.3(a)(xiv).
"Authority Hedge Agreement" means an Authority Interest Rate Agreement entered into by the Authority with the Trust.
"Authority Hedge Receipts" means any amounts received by the Authority pursuant to an Authority Hedge Agreement.
"Authority Interest Rate Agreement" means any interest rate swap agreement (including forward-starting interest rate swap agreements), interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement, interest rate lock agreement, or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with the Authority's operations and not for speculative purposes. "Authority Lender Counterparty" means the Trust in its capacity as lender under the Authority Credit Agreement.
"Authority Liguidated Damages and Insurance Proceeds Account" has the meaning assigned to that term in Section 2.3(a)(xv).
"Authority Non-Relocation Agreement" means that certain Amended and Restated NonRelocation Agreement (Stadium Authority) dated as of the Closing Date between the Team and 5 the Authority, as the same may be further amended, restated, supplemented or otherwise modified from time to time.
"Authority O&M Annual Amount" means, for any date, the amount of estimated operations and maintenance expenses to be paid by the Authority over the remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the Stadium Operations Budget.
"Authority O&M Monthly Amount" means the amount of estimated operations and maintenance expenses to be paid by the Authority for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"Authority Obligations" means the Authority's obligations from time to time owed to Administrative Agent and the Trust, in each case, under any Authority Credit Document or Authority Hedge Agreement, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to the Authority, would have accrued on any Authority Obligation, whether or not a claim is allowed against the Authority for such interest in the related bankruptcy proceeding), payments for early tennination of Authority Hedge Agreements, fees, expenses, indemnification or otherwise. "Authority Parking Spaces" means the five (5) parking spaces located on the Stadium Site designated as "Stadium Authority Parking Spaces" on the Site Plan, as the same may, with the approval of the Authority, be relocated from time to time to accommodate additions, changes or alterations to the Stadium Complex made pursuant to the StadCo Lease. "Authority Pledge and Security Agreement" means that certain amended and restated pledge and security agreement, dated as of June 19, 2013, by and among the Trust, as secured party, the Authority, as pledgor and Administrative Agent. "Authority Project Costs" means those certain costs and expenses of the approximately
1.8 million square foot, approximately 68,500 seat professional football stadium to be owned by the Authority, and all related facilities and other improvements paid or payable by the Authority. "Authority Real Estate Documents" means the documents entered into by the Authority and specifically listed in the definition of "Authority Real Estate Documents" in the Authority Credit Agreement.
"Authority Reserve Share" means a fraction, the numerator of which is the thenoutstanding principal amount of all Authority Term Loans, and the denominator of which is the sum of the then-outstanding principal amounts of all Authority Term Loans and all StadCo Term Loans.
"Authority Revenue Account" has the meaning assigned to that term m Section
2.3(a)(xvi).
"Authority Revenues" means all revenues (on a cash received basis rather than a GAAP basis) (including all Stadium Authority Revenue but excluding (i) the City of Santa Clara Senior and Youth Program Fee, (ii) 50% of the Non-NFL Ticket Surcharge, and (iii) all 6 amounts payable by the Authority to a third party taxing authority in respect of sales, use, excise, admission or similar taxes or charges) received by the Authority from the Stadium Project, any Authority Hedge Receipts and all interest income and investment earnings related thereto, which Authority Revenues are pledged by the Authority to the Trust pursuant to the Authority Pledge and Security Agreement. For the avoidance of doubt, moneys, if any, received by the Authority (i) but required to be paid to StadCo in satisfaction of the Authority's obligations under the StadCo Agency Advance or (ii) from the CFO pursuant to that certain Reimbursement Agreement dated as of June 19, 2013 among the CFO, the Authority and StadCo, shall not, in each case, constitute Authority Revenues. "Authority Term A Construction Costs Credit Extension" means an Authority Term A Credit Extension made at any time after the Closing Date but no later than the 30th day before the Final Construction Credit Extension Date and no more frequently than once per calendar month. "Authority Term A Credit Extension" means an Authority Term A Initial Credit Extension, an Authority Term A Construction Costs Credit Extension, the Authority Tenn A Substantial Completion Credit Extension, or an Authority Tenn A Financing Costs Credit Extension.
"Authority Tenn A Financing Costs Credit Extension" means an Authority Term A Credit Extension deemed to have been made by the Trust on each Authority Tenn A Loan Interest Payment Date prior to the date of Substantial Completion, in respect of the interest and all accrued and unpaid fees then due and owing.
"Authority Term A Initial Credit Extension" means the Authority Term A Credit Extension made by the Trust to the Authority on the Authority Tenn A Initial Credit Extension Date.
"Authority Term A Initial Credit Extension Date" means the date on which the Authority Term A Initial Credit Extension is made.
"Authority Term A Loan" means a Term A Loan made by the Trust to the Authority pursuant to Section 2. I (a)(i) of the Authority Credit Agreement. "Authority Term A Loan Interest Payment Date" means with respect to any Authority Tenn A Loan, October 1, 2013 and each April 1 and October I thereafter, and the Authority Term A Maturity Date.
"Authority Term A Maturity Date" means, with respect to the Authority Term A Loans, April 1, 2039.
"Authority Term A Substantial Completion Credit Extension" means the Authority Tenn A Loan used or to be used by the Authority to pay a portion of the remaining Authority Project Costs to achieve Substantial Completion.
"Authority Term B Construction Costs Credit Extension" means an Authority Term B Credit Extension made at any time after the Closing Date but no later than the 30th day before 7 the Final Construction Credit Extension Date and no more frequently than once per calendar month.
"Authority Term B Credit Extension" means the Authority Term B Initial Credit Extension, an Authority Term B Construction Costs Credit Extension, the Authority Term B Substantial Completion Credit Extension, or an Authority Term B Financing Costs Credit Extension.
"Authority Term B Financing Costs Credit Extension" means an Authority Tenn B Credit Extension deemed to have made by the Trust on each Authority Term B Loan Interest Payment Date prior to the date of Substantial Completion, in respect of the interest and all accrued and unpaid fees then due and owing.
"Authority Term B Initial Credit Extension" means the Authority Term B Credit Extension made by the Trust to the Authority on the Authority Term B Initial Credit Extension Date.
"Authority Term B Loan" means a Term B Loan made by the Trust to the Authority pursuant to Section 2.l(a)(ii) of the Authority Credit Agreement. "Authority Term B Loan Interest Payment Date" means with respect to (i)(a) any Authority Tenn B Loan that is a Base Rate Loan, the last Business Day of March, June, September and December of each year, commencing on September 30, 2013 and the Authority Term B Maturity Date, (b) any Authority Term B Loan made during the Standstill Period that is a Base Rate Loan, the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the date such Term B Loan is made and the termination date of any such Standstill Period; and (ii) any Term B Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Term B Loan; provided, in the case of each Interest Period of longer than three months "Authority Term B Loan Interest Payment Date" shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.
"Authority Term B Substantial Completion Credit Extension" means the Authority Term A Loan used or to be used by the Authority to pay a portion of the remaining Authority Project Costs to achieve Substantial Completion.
"Authority Term Loans" means, collectively, the Authority Term A Loans and the Authority Term B Loans.
"Authority Withdrawal Certificate" is defined in Section 3 .13. "Balloon Payment" as defined in the definition of "Distribution Debt Service". "Bankruptcy Event" shall be deemed to occur with respect to any Person if (a) such Person shall institute a voluntary case seeking liquidation or reorganization under the Bankruptcy Law, or shall consent to the institution of an involuntary case thereunder against it; or (b) such Person shall file a similar petition or shall otherwise institute any similar proceeding under any other applicable federal or state law, or shall consent thereto; or (c) such Person shall apply for 8 the appointment, or by consent or acquiescence there shall be an appointment, of a receiver, liquidator, sequestrator, trustee or other officer or custodian with similar powers _for itself or any substantial part of its property or assets; or (d) such Person shall make an assignment for the benefit of its creditors; or (e) such Person shall become insolvent, or admit in writing its inability to pay its debts generally as they become due; or (f) an involuntary case shall be commenced seeking liquidation or reorganization of such Person under the Bankruptcy Law or any similar proceedings shall be commenced against such Person under any other applicable federal or state law and (i) the petition commencing the involuntary case is not timely controverted, or (ii) the petition commencing the involuntary case is not dismissed within ninety (90) days of its filing, or (iii) an interim trustee is appointed to take possession of all or a material portion of the property, and/or to operate all or any material part of the business, of such Person and such appointment is not vacated within ninety (90) days, or (iv) an order for relief shall have been issued or entered therein; or (g) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers of such Person or all or a material part of its property shall have been entered; or (h) any other similar relief shall be granted against such Person under any applicable Bankruptcy Law. "Bankruptcy Law" means the U.S. Bankruptcy Code and any other state or federal insolvency, reorganization, moratorium or similar law for the relief of debtors. "Base Rate" means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of I% and (iii) the sum of (a) the Adjusted Eurodollar Rate that would be payable on such day for a Eurodollar Rate Loan with a one-month interest period plus (b) the difference between the Applicable Margin for Eurodollar Rate Loans and the Applicable Margin for Base Rate Loans.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan" means an Authority Term B Loan or a StadCo Term B Loan bearing interest at a rate determined by reference to the Base Rate. "Book-Entry Security" means a security maintained in the form of entries (including the Security Entitlements in, and the financial assets based on, such security) in the commercial book-entry system of the Federal Reserve System.
"Branding Rights" means the exclusive right to designate those products and retail rights that may be sold, displayed ·or delivered on an exclusive or non-exclusive basis to, at or in the area in question and excludes Pourage Rights and Service Rights. "Breakage Amounts" means amounts required to be paid by the Trust to compensate a Floating Rate Noteholder for any losses, costs or expenses sustained or incurred by such Floating Rate Noteholder as a consequence of (i) any event (including any acceleration of the Floating Rate Notes in accordance with Section 12.1 of the Floating Rate Note Purchase Agreement and any prepayment of the Notes pursuant to Section 8 thereof) which results in such holder receiving any amount on account of the principal of or interest on any Floating Rate Note on any date other than the last day of the Interest Period (as defined in the Floating Rate Note Purchase 9 Agreement) in effect therefor or (ii) the failure by the Trust to pay any amount in respect of a payment or prepayment required to be made hereunder on the date due in respect of any Floating Rate Note.
"Broadcast Rights" means any and all of the rights to the full and exclusive use and enjoyment of, and to control, lease, license, grant concessions with respect to, sell, benefit and enter into agreements with respect to, all radio, television, computer network and other electronic broadcasting, film or tape reproductions, closed circuit, cable or pay television or radio rights and similar rights by whatever methods, means or process, now existing or hereafter developed, for preserving, transmitting, disseminating or reproducing for hearing or viewing (a) NFL Garnes, NFL Events or Tenant Incidental Uses or (b) other Tenant-related activities at or near the Premises (including inside or outside the Premises), including broadcast (analog, digital or HDTV), terrestrial cable, microwave, multipoint distribution services (MDS), multichannel MOS (MMDS), satellite television systems (STV) satellite master antenna televisions systems (SMATV), fiber optic, the World Wide Web, Internet, computer network, computer on-line applications, direct broadcast satellite (DBS), local MOS (LMDS), Narrow and Broadband Services, transmission directly to so-called "backyard" TV receive-only (TYRO) receiving dishes, any video dialtone system, open video system (OVS), DPS, Pay-Per-View, radio, and by means of any similar or dissimilar electronic, analog, digital or other form of distribution means now known or hereafter invented.
"Business Day" means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with Authority Term 8 Loans or StadCo Term B Loans, the term "Business Day" means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market. "Capital Leases" means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person. "Carried-Forward Revenues" means those club seat or private suite revenues elected by the Trust which relate to games played on or after the first day of any such financial debt ratio calculation period.
"CFO" means the City of Santa Clara Community Facilities District No. 2010-1. ".Q!y" means the City of Santa Clara, California.
"City of Santa Clara Senior and Youth Program Fee" means a fee on each Ticket for NFL Games in the Stadium equal to thirty-five cents ($0.35) per Ticket, up to a maximum amount of Two Hundred Fifty Thousand Dollars ($250,000.00) per Lease Year. "Civic Events" means not-for-profit civic or other community events which the Authority may schedule in the Stadium.
JO
"Closing Date" means June 19, 2013.
"Club Facilities" means the private club facilities in the Stadium depicted on the Stadium Plans; provided, however, that StadCo may, at any time and from time to time relocate, redesig~, reconfigure, expand or reduce, or otherwise modify the Club Facilities. "Club Seats" means those premium seats in the Stadium accessible through the Club Facilities.
"Co-Documentation Agents" is defined in the recitals to this Agreement. "Co-Syndication Agents" is defined in the recitals to this Agreement. "Co1lateral" means col1ectively, al1 of the real, personal and mixed property in which Liens are purported to be been granted pursuant to the Collateral Documents as security for the Obligations.
"Collateral Documents" means the PJedge and Security Agreement, the Col1ateral Trust and Intercreditor Agreement, this Agreement, the Authority Pledge and Security Agreement, the StadCo Pledge and Security Agreement,. the Real Estate Documents (as defined in the Credit Agreement), the StadCo Obligations Agreement and all other instruments, documents and agreements (including any deposit account control agreements or securities account control agreements, as applicable) delivered by the Trust pursuant to 'the Credit Agreement or any of the other Note Documents in order to grant to, or perfect in favor of Collateral Trustee, for the ratable benefit of Secured Parties, a Lien on any real, personal or mixed property of the Trust as security for the Obligations, as .each of the same may be amended, restated, supplemented or otherwise modified from time to time. ·
"Collateral Trust and Intercreditor Agreement" is defined m the recitals to this Agreement.
"Collateral Trustee" has the meaning assigned to that term in the first paragraph of this Agreement.
"Commencement Date" means the Substantial Completion Date. "Concessions" means, collectively, any and all Consumable Concessions and NonConsumable Concessions, but shall exclude Pourage Rights, Service Rights, and Branding Rights.
"Construction Agency Agreement" means that certain Construction Agency Agreement dated as of February 8, 2012, between the Authority and StadCo, as it may be amended, restated, supplemented or otherwise modified from time to time.
"Construction Monitor'' means Merritt & Harris, Inc. an independent engineering firm .. "Construction Note Proceeds" means that portion of the proceeds of the Notes deposited in the Trust Construction Account and available to the Trust to make additional 11 I
I
I
Authority Tenn A Loans, StadCo Term A Loans and StadCo Term C Loans pursuant to the terms of the Authority Credit Agreement and the StadCo Credit Agreement, respectively. "Consumable Concessions" means, in the Stadium Complex, collectively, the sale and service of food and beverages, the sale and service of alcoholic beverages (subject to procurement of all necessary licenses and permits required by any Governmental Authority), catering and banquet sales and services (including, but not limited to, catering service with respect to any Suites), all the foregoing related to Stadium Events. "Conversion/Continuation Date" means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice. "Conversion/Continuation Notice" means a notice substantially in the form of Exhibit A-2 to the StadCo Credit Agreement.
"Costs of Financing" means (i) fees, costs, expenses and other amounts incurred in connection with the Note Purchase Agreements and the other Note Documents, the Credit Agreement, the Authority Credit Agreement, the StadCo Credit Agreement and the other Credit Documents, Authority Credit Documents and StadCo Credit Documents which may include, but are not limited to, document printing and reproduction costs, filing and recording fees, costs of credit ratings, fees and charges of the Collateral Trustee, the Administrative Agent and each of the other Agents, legal fees and charges, professional consultants' fees, placement agent fees, premiums and other costs, charges and fees, including those incurred by the Trust, the Authority or StadCo, as applicable, in connection with the foregoing and (ii) Ordinary Course Settlement Payments and Termination Payments to be made by the Trust to any Lender Counterparty, the Authority to any Authority Lender Counterparty or StadCo to any StadCo Lender Counterparty, as applicable.
"Credit Date" means the date of a Credit Extension or Credit Withdrawal (as such term is defined in the StadCo Credit Agreement or the Authority Credit Agreement, as the context may require).
"Credit Document" means any of the Upper-Tier Credit Agreement, the notes documenting the Term Loans, the Collateral Documents, and all other documents, certificates, instruments or agreements executed and delivered by the Trust for the benefit of any Agent, the Collateral Trustee or any Lender in connection herewith on or after the date hereof. "Credit Extension" means an Initial Credit Extension, a Construction Costs Credit Extension, the Substantial Completion Credit Extension, or a Financing Costs Credit Extension, as such terms are defined in the Upper-Tier Credit Agreement. "Credit Rating" means a credit rating provided by Fitch, or the equivalent S&P or Moody's credit rating; provided that if there is a difference in the ratings by Fitch, S&P and Moody's, the highest shalJ apply.
"Debt Service" means the sum of (A) Interest Expense (calculated at the interest rate payable on such Indebtedness on the date of calculation) for such period, plus (8) the aggregate amount of payments required to be made during such period in respect of principal on the Term 12 Loans, the Fixed Rate Notes, the Floating Rate Notes, Refinancing Indebtedness, or Permitted Indebtedness.
"Debt Service Payment Certificate" has the meaning assigned to that term in Section
3.S(c).
"Debt Service Payment Date" has the meaning assigned to that term in Section 3.5(c). "Debt Service Reserve Required Amount" means an amount equal to 50% of Maximum Annual Debt Service.
"Defaulting Lender" means, subject to Section 2.22(b) of the Credit Agreement, any Lender that (a) has failed to (i) fund all or any portion of its Tenn Loans within two Business Days of the date such Term Loans were required to be funded thereunder unless such Lender notifies Administrative Agent and the Trust in writing that such failure is the result of such Lender's good faith determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shaH be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any other Lender any other amount required to be paid by it thereunder within two Business Days of the date when due, (b) has notified the Trust or Administrative Agent in writing that it does not intend to comply with its funding obligations thereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders' obligation to fund a Term Loan thereunder and states that such position is based on such Lender's determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by Administrative Agent or the Trust, to confirm in wr.iting to Administrative Agent and the Trust that it will comply with its prospective funding obligations thereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and the Trust), or (d) Administrative Agent has received notification that such Lender is, or has a direct or indirect parent company that is (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (ii) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. ·
"Depositary Bank" has the meaning assigned to that term in the first paragraph of this Agreement. All references to the Depositary Bank shall mean any Depositary Bank, the 13 Depositary Bank with respect to a specific Account or all Depositary Banks, as the context may require.
"Design-Build Agreement" means that certain Design-Build Agreement, dated as of February 8, 2012, as amended by Amendment No. 1 thereto dated as of March 28, 2012 and Amendment No. 2 thereto dated as of June 14, 2012, by and among the Authority, StadCo, as construction agent, and the Design-Builder, as it may be further amended, restated, supplemented or otherwise modified from time to time.
"Design-Builder" means Turner/Devcon, a joint venture, and any successor thereto. "Development Costs" has the meaning given to such term in the Disposition and Development Agreement.
"Disposition and Development Agreement" means that certain Disposition and Development Agreement (Stadium Lease), dated as of December 13, 2011, between the Authority and StadCo.
"Disqualified Equity Interests" means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), in whole or in part, (iii) provides for the scheduled payments or dividends in cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the maturity date of the Fixed Rate Notes, the Floating Rate Notes or the Term Loans, as applicable.
"Distribution Condition" means:
(a) For the period from and after commencement of operations at the Stadium, with the first test date occurring as of the completion of the second full fiscal quarter after Substantial Completion, the ratio determined for the then most recently-ended four fiscal quarters of the Trust ( or if four fiscal quarters have not yet ended since the commencement of operations at the Stadium, such lesser number of fiscal quarters that have so ended), of (i) Revenues for such period, to
(ii) Distribution Debt Service for such period,
is at least 1.25 to 1.00; and
(b) For the period from and after commencement of operations at the Stadium, with the first test date occurring as of the completion of the first full fiscal quarter after Substantial Completion, the ratio determined for the four fiscal quarter period beginning with the fiscal quarter in which such test date occurs, of
14 (i) Revenues, determined on a pro fonna basis, for such four fiscal quarter period, to
(ii) Distribution Debt Service for such period,
is at least 1.25 to 1.00.
"Distribution Debt Service" means the sum of (i) Distribution Interest Expense (calculated at the interest rate payable on such indebtedness on the date of calculation) for such period, plus (ii) the aggregate amount of regularly scheduled payments required to be made during such period in respect of principal on any Indebtedness; provided, that, for purposes of this definition, Distribution Debt Service shall be deemed to include for each quarter of such period a pro rata amount of the applicable Excess Cash Flow . Target Amortization Amount. For purposes of calculating the aggregate amount of payments required to be made during any such period in respect of principal on any Indebtedness, for any such Indebtedness for which greater than 25% of the principal amount thereof (a "Balloon Payment") becomes due and payable in any such period, such Balloon Payment shall be excluded. "Distribution Interest Expense" means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the Trust with respect to any Indebtedness, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under any related Hedge Agreement, but excluding, however, any amount not payable in cash. "Domain Name Rights" means any and all of the rights of StadCo to register and maintain a website or equivalent electronic information distribution system relating to professional football games, NFL Events, and/or other activities of StadCo at or near the Stadium Complex, including the rights to register and maintain a domain name or its equivalent for electronic access to such a website or system.
"Entitlement Holder" means a Person that (a) is an "entitlement holder" as defined in Section 8-102(a)(7) of the UCC (except in respect of a Book-Entry Security) and (b) in respect of any Book-Entry Security, is an "entitlement holder" as defined in 31 C.F .R. Section 357 .2 ( or, as applicable to such Book-Entry Security, the corresponding Federal Book-Entry Regulations governing such Book-Entry Security) which, to the extent required or permitted by the Federal Book-Entry Regulations, is also an "entitlement holder" as defined in Section 8-102(a)(7) of the ucc.
"Equity Interests" means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
15 "Eurodollar Rate Loan" means a Term Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.
"Excess Cash Flow Target Amortization Amount" means the amount set forth as the Excess Cash Flow Target Amortization Amount on Table I of Exhibit O - Required ECF Transfer Calculation of either the StadCo Credit Agreement or the Authority Credit Agreement, without duplication.
"Extension Term" means each of the five (5) additional successive periods of four (4) years each by which StadCo has the option to extend the Lease Term of the StadCo Lease pursuant to the terms of the StadCo Lease.
"Facility Rent" means an amount equal to twenty-four million five hundred thousand dollars ($24,500,000.000) per year, subject to adjustment pursuant to the terms of the StadCo Lease.
"Federal Funds Effective Rate" means for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day;provided, (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent. "Filing Statements" means all UCC financing statements (Form UCC-1) or other similar financing statements, all UCC continuation statements (Form UCC-3), all UCC amendment statements (Form UCC-3) and UCC termination statements (Form UCC-3) required pursuant to the Permitted Secured Debt Documents.
"Final Construction Credit Extension Date" means the earlier of (i) the date that is 365 days after the date on which Substantial Completion is achieved and (ii) the Final Credit Extension Date.
"Final Credit Extension Date" means the date on which the Trust notifies the Administrative Agent that no further Credit Extensions are required. "Financing Documents" means the Credit Agreement, the Credit Documents, the Fixed Rate Note Documents, the Floating Rate Note Documents and the Security Documents. "First Priority" means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
"Fiscal Year" means the year ending on March 31 of each calendar year. "Fitch" means Fitch Ratings Ltd.
16 "Fixed Rate Note Documents" means any of the Fixed Rate Notes, the Fixed Rate Note Purchase Agreement and all other documents, certificates, instruments or agreements executed and delivered by the Trust for the benefit of the Collateral Trustee or any holder of a Fixed Rate Note in connection therewith, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Fixed Rate Note Purchase Agreement" is defined in the recitals to this Agreement. "Fixed Rate Noteholder" means a holder of a Fixed Rate Note under the Fixed Rate Note Purchase Agreement.
"Fixed Rate Notes" is defined in the recitals to this Agreement. "Floating Rate Note Documents" means any of the Floating Rate Notes, the Floating Rate Note Purchase Agreement and all other documents, certificates, instruments or agreements . executed and delivered by the Trust for the benefit of the Collateral Trustee or any holder of a Floating Rate Note in connection therewith, as the same may be amended, restated, supplemented or otherwise modified from time to time.
~'Floating Rate Note Purchase Agreement" is defined in the recitals to this Agreement. "Floating Rate Noteholder" means a holder of a Floating Rate Note under the Floating Rate Note Purchase Agreement.
"Floating Rate Notes" is defined in the recitals to this Agreement. "Funding/Withdrawal Notice" means a notice in substantially the form of Exhibit Al (A), A-l(B) or A-1(C) of the StadCo Credit Agreement. "GAAP" means United States generally accepted accounting principles in effect as of the date of determination thereof, modified, to the extent applicable, pursuant to applicable provisions of the Note Purchase Agreements or Credit Agreement. "Governmental Authority" means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
"Ground Lease" means the Ground Lease, dated March 28, 2012, as amended by the First Amendment thereto dated as of June 19, 2013, as evidenced by that certain Memorandum of Ground Lease, dated as of March 28, 2012, and.recorded on March 29, 2012, as document number 21605284 of the official real property records of Santa Clara County, California, by and between the City and the Authority, a~ it may be amended, restated, supplemented or otherwise modified from time to time.
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"Ground Lease Rent Annual Amount" means, for any date , the amount of estimated rental payments to be paid by the Authority under the Ground Lease f?r the. remainder of the then-current Fiscal Year and the first three (3) months of the following Fiscal Year, as set forth in the· Stadium Operations Budget.
"Ground Lease Rent Monthly Amount" means the amount of rental payments to be paid by the Authority under the Ground Lease for the immediately succeeding calendar month, as set forth in the Stadium Operations Budget.
"Hedge Agreement" means any interest rate swap agreement (including forward-starting interest rate swap agreements), interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement, interest rate lock agreement, or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with the Trust's operations and not for speculative purposes.
"lndebtedness" means, as applied to any Person, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services, including any earn-out obligations (excluding any such obligations incurred under ERISA), which purchase price is (a) due more than six months from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar written instrument; (v) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit i~sued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) Disqualified Equity Interests; (viii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another; (ix) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of a third-party will be paid or discharged, or any agreement relating thereto wiJI be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subc1auses (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above; and (xi) all obligations of such Person in respect of any exchange traded or over the counter derivative transactjon, including under any Hedge Agreement, whether entered into for hedging or speculative purposes or otherwise.
"Initial Debt lnterest Expense" means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the Trust with respect to the outstanding Jndebtedness of the Trust 18 I
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related to the Term Loans and the Notes, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under any related Hedge Agreement, but excluding, however, any amount not payable in cash. "Initial Debt Service" means the sum of (i) Initial Debt Interest Expense (calculated at the interest rate payable on such indebtedness on the date of calculation) for such period, plus (ii) the aggregate amount of payments required to be made during such period in respect of principal on the Term Loans and the Notes.
"Initial Term" means an initial term of forty ( 40) years, beginning on the first day following the Commencement Date and ending on the day immediately preceding the Initial Term Expiration Date.
"Initial Term Expiration Date" means the day immediately preceding the fortieth (40th) anniversary of the Commencement Date.
"Interest Expense" means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of the Trust with respect to the outstanding Indebtedness of the Trust related to the Term Loans, the Fixed Rate Notes, the Floating Rate Notes, Refinancing Indebtedness, and Permitted Indebtedness, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Hedge Agreements, but excluding, however, any amount not payable in Cash and any amounts referred to in Section 2.1 l(c) of the Upper-Tier Credit Agreement payable on or before the Closing Date.
"Interest Payment Date" means each day on which interest is due and owing under the Fixed Rate Note Purchase Agreement, the Floating Rate Note Purchase Agreement or the Credit Agreement, as applicable.
"Interest Period" means, in connection with a Eurodollar Rate Term B Loan, an interest period of one, three or six-months (or, to the extent available and agreed to by the Lender, two, nine, or twelve months), as selected by the applicable borrower in the applicable Funding/Withdrawal Notice or Conversion/Continuation Notice, (i) initially, commencing on such Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month ( or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause ( c) of this definition, end on the last Business Day of a calendar month; and (c) no Interest Period with respect to any portion of any Term B Loans shall extend beyond the Term B Maturity Date, provided, that for any Term B Loans made during the Standstill Period, such Interest Periods may extend beyond the Term B Maturity Date, but shall in no event extend beyond the termination date of the Standstill Period. 19 "Interest Rate Determination Date" means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period. "Joint Bookrunners" means Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated and U.S. Bank National Association.
"Joint Ventures" means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party. "Lease Expiration Date" means the date of expiration of the StadCo Lease, subject to the terms thereof.
"Lease Term" means the Initial Term and any Extension Term. "Lease Year" means each consecutive twelve (12)-month period during the Lease Term beginning on April I of each calendar year and ending on the next following March 31; provided, however, that, (a) if the Commencement Date occurs after April 1 of any calendar year, then the first (1 st) Lease Year of the Initial Term shall begin on the Commencement Date and end on the next following March 31, (b) if the Commencement Date occurs on a date preceding April l of any calendar year, then the first (1 st) Lease Year of the Initial Term shall begin on the Commencement Date and end on March 31 of the next succeeding calendar year, and ( c) the fortieth ( 40th) Lease Year shaU in all events begin on April 1 immediately following the thirty-ninth (39~ Lease Year and end on the day immediately preceding the fortieth (40th) anniversary of the Commencement Date. If the StadCo Lease terminates prior to the Lease Expiration Date for any reason, then the final Lease Year shall end on any such earlier termination of the StadCo Lease. "Lender Counterparties" means each Lender, each Agent and each of their respective Affiliates counterparty to a Hedge Agreement (including any Person who is an Agent or a Lender (and any Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a Hedge Agreement, ceases to be an Agent or a Lender, as the case may be); provided, at the time of entering into a Hedge Agreement, no Lender Counterparty shall be a Defaulting Lender.
"Lenders" is defined in the recitals to this Agreement. "Lien" means (i) any lien, deed of trust, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
"Loan Obligations" means the Trust's obligations from time to time owed to Agents (including former Agents), Lenders or any of them and Lender Counterparties, in each case, under any Credit Document or Hedge Agreement, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to the Trust, would have accrued on any Loan Obligation, whether or not a claim is allowed against the Trust for such 20 interest in the related bankruptcy proceeding), payments for early termination of Hedge Agreements, fees, expenses, indemnification or otherwise. "Make-Whole Amount" means, with respect to any Fixed Rate Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Fixed Rate Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero.
For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any Fixed Rate Note, the principal of such Fixed Rate Note that is to be prepaid pursuant to Sections 8.2 or 8.3 of the Fixed Rate Note Purchase Agreement or has become or is declared to be immediately due and payable pursuant to Section 12.1 of the Note Purchase Agreement, as the context requires.
"Discounted Value" means, with respect to the Called Principal of any Fixed Rate Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Fixed Rate Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any Fixed Rate Note, 0.50% over the yield to maturity implied by the yield(s) reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as ''Page PX I" (or such other display as may replace Page PXl) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities ("Reported") having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S.
Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Fixed Rate Note.
If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then "Reinvestment Yield" means, with respect to the Called Principal of any Fixed Rate Note, 0.50% over the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the 21 Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between {I) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Fixed Rate Note. "Remaining Average Life" means, with respect to any Called Principal, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day year composed of twelve (12) 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called Principal of any Fixed Rate Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the Fixed Rate Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.4 or Section 12.1. "Settlement Date" means, with respect to the Called Principal of any Fixed Rate Note, the date on which such Called Principal is to be prepaid pursuant to Sections 8.2 or