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GUARANTY OF CERTAIN 2026 FIFA WORLD CUP OBLIGATIONS
THIS GUARANTY (“Guaranty”) is entered into by Forty Niners Football Company LLC, a Delaware limited liability company (“Guarantor”) effective as of February __, 2025 (“Effective Date”) in favor of the City of Santa Clara, a chartered municipal corporation (“City”) and the Santa Clara Stadium Authority, a California joint powers authority (“Stadium Authority” , collectively “City/Stadium Authority”) with reference to the following facts.
RECITALS
A. WHEREAS, as of January 17, 2018, Forty Niners Stadium Management Company LLC, a Delaware limited liability company (“ManCo” or “Assignor”) entered into that certain Stadium Agreement by and among United States Soccer Federation, Inc. (“USSF”) and ManCo, as addended by that certain Addendum to Hosting Agreements by and among Federation Internationale de Football Association (“FIFA”), ManCo and the Bay Area Host Committee, a California nonprofit mutual benefit corporation (“BAHC” or “Assignee”), as of June 13, 2022, and that certain Amended and Restated Addendum to Hosting Agreements, entered into and effective as of the Effective Date hereof, by and among FIFA, ManCo and BAHC (together with any annexes, exhibits, and schedules thereto and any related future a greements, amendments and addenda the “Stadium Agreement”); and
B. WHEREAS, Assignee was formed to attract cultural and sporting events to the San Francisco Bay Area for the benefit of the region; and
C. WHEREAS, the purpose of the Stadium Agreement is to, among other things, set forth the terms and conditions whereby certain 2026 FIFA World Cup matches and certain ancillary events associated with those matches, as set forth in the Stadium Agreement (each a “World Cup Stadium Event” and collectively, the “World Cup Stadium Events”), would be hosted at Levi’s Stadium in Santa Clara, California (the “Stadium”); and D. WHEREAS, ManCo’s rights and obligations to book Non- NFL Events at the Stadium is governed by the terms of the Amended and Restated Stadium Lease Agreement by and between the Santa Clara Stadium Authority and Forty Niners SC Stadium Company LLC (“StadCo”), entered into as of June 19, 2013 (“Stadium Lease”) and the Stadium Management Agreement by and among Stadium Authority, ManCo and StadCo , dated as of March 28, 2012 and as amended thereafter (“Management Agreement”); and E. WHEREAS, concurrent with Stadium Agreement, BAHC and FIFA entered into that certain Host City Agreement (as amended, the “Host City Agreement”) pursuant to which BAHC agreed to provide certain other forms of support and services throughout the region and within the City in connection with the World Cup 2026 Event; and F. WHEREAS, effective as of July 1, 2024, City and BAHC entered into that certain Interim Funding Agreement (“IFA”) pursuant to which BAHC agreed to reimburse the City for certain “Eligible Costs” incurred by City in connection with “Event Planning Work” for the World Cup Stadium Events; and
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G. WHEREAS, given the regional nature of the event, the substantial costs involved and, notwithstanding such costs, the projected direct and indirect benefits of the event to the City, BAHC, ManCo, Stadium Authority and the City entered into the FIFA World Cup 2026 – Assignment and Assumption Agreement as of February __, 2025 (“FIFA Assignment Agreement”) to set forth the terms upon which (1) BAHC shall assume ManCo’s and Stadium Authority’s rights and obligations under the Stadium Agreement, (2) BAHC shall reimburse and/or pay to City/Stadium Authority certain costs and expenses , as fully explained and defined in the FIFA Assignment A greement as “Qualif ied Event Expenses ,” (3) City/Stadium Authority and ManCo shall cooperate with and provide certain services to BAHC in order to assist with the event, and (4) related event matters; and
H. WHEREAS, one of the material terms and conditions of the FIFA Assignment Agreement set forth in Section 5.16 thereof is for ManCo to cause Guarantor to enter into this guaranty agreement, whereby Guarantor shall provide City/Stadium Authority a financial guaranty with respect to BAHC’s obligations to reimburse City/Stadium Authority for its Qualified Event Expenses, costs of all “Stadium Improvements,” and costs related to obtaining approvals, buy-outs or other required forms of satisfaction from “FIFA Impacted Parties.” NOW, THEREFORE, in order to induce City/Stadium Authority to execute the FIFA Assignment Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:
GUARANTY TERMS
1. Defined Terms. Capitalized terms used in this Guaranty without definition shall have the same meaning s as in the FIFA Assignment Agreement. Guarantor, City and Stadium Authority are each a “Party” and collectively the “Parties” of this Guaranty.
2. A cknowledgement of Consideration. Guarantor acknowledges and agrees that Guarantor, and/or Guarantor’s affiliates ManCo and StadCo, derive a material benefit by City/Stadium Authority entering into the FIFA Assignment A greement, sufficient to warrant Guarantor to enter into this Guaranty.
3. G uaranty of Third Party Rights/Approval Obligations. Guarantor hereby guarantees the full and complete payment by BAHC of (a) all of its financial obligations to “FIFA Impacted Parties,” and (b) all of the costs of its indemnity obligations to City/Stadium Authority, in each case as provided under the terms of Section 5.7.1 of the FIFA Assignment Agreement. If after thirty (30) days written notice to BAHC of any claim(s) against City/Stadium Authority made by any FIFA Impacted Party(ies), Guarantor’s obligations under this Section 3 shall be triggered immediately upon written notice from City/Stadium Authority that such claim has not been addressed and/or resolved or is not in the process of being addressed and/or resolved by BAHC.
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uaranty of BAHC Qualified Event Expenses Reimbursement Obligations.
Guarantor hereby guarantee s the full and complete payment by BAHC of all Qualified Event Expenses due and payable by BAHC to City/Stadium Authority, but not including any interest due City/Stadium Authority Proposed FINAL 2.5.25
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with respect to Delinquent Amounts or Disputed Amounts as provided in section 7.1 of the FIFA Assignment Agreement (“BAHC QEE Interest”).
(a) Triggering of Guarantor’s obligations and Guarantor’s Payment Due Date.
Guarantor’s obligation will be triggered in the event that thirty (30) days following the due date for the last payment owed by BAHC to City/Stadium Authority under the FIFA A ssignment Agreement, there remains any unpaid amount of Qualified Event Expenses that City/Stadium Authority invoiced to BAHC, that has not been timely disputed by BAHC under the terms of the FIFA Assignment Agreement (“Unpaid Qualified Expenses”). Upon that triggering event, City/Stadium Authority shall provide thirty (30) days’ prior written notice to Guarantor for Guarantor’s prompt and complete payment of the Unpaid Qualified Expenses. During such period, Guarantor shall have full and complete access to backup documentation for the invoiced Qualified Event Expenses as provided to BAHC under the FIFA Assignment Agreement and may dispute any such Qualified Event Expenses on the same grounds and pursuant to the same rights as provided to BAHC under the FIFA Assignment Agreement . S uch cost dispute by Guarantor , inclusive of any amounts disputed by BAHC, shall not exceed eighteen percent (17.5%) of the final Updated Estimate for Actual Event Expenses. If Guarantor fails to honor such demand with a full and complete payment by the 30-day deadline set forth in that notice, the debt or obligation owed to City/Stadium Authority pursuant to this Guaranty shall start to accrue interest of six percent (6%) per annum on any Unpaid Qualified Expenses. Such interest accrual shall be in addition to any BAHC QEE Interest that may also be accruing to BAHC. (b) L
imited offset of Guarantor’s obligation . In the event that the Guaranty obligation is triggered, Guarantor will be obligated to pay 100% of the Unpaid Qualified Expenses (“Guaranty Obligation Amount”); provided, however, such obligation will be subject to an offset (“Ticket Surcharge Offset”) by an amount equal to Stadium Authority Ticket Surcharge revenues actually received by Stadium Authority under the terms of the FIFA Assignment Agreement (“Ticket Surcharge Received Amount”) as follows:
(i) If the total Guaranty Obligation Amount is less than $ 1.0 million (the “First Tier Guaranty Amount”), the Ticket Surcharge Offset will be an amount equal to the lesser of (x) 20% of the Guaranty Obligation Amount or (y) ninety percent (90%) of the Ticket Surcharge Received Amount.
(ii) If the total Guaranty Obligation Amount is greater than the First Tier Guaranty Amount (i.e., $1.0 million or above), the Ticket Surcharge Offset shall be the lesser of (x) ninety percent (90%) of the Ticket Surcharge Received amount; or (y) $200,000.00. (c) Adjustment of Guaranty Obligatio n Amount . To the extent there is a dispute between BAHC and City/Stadium Authority regarding Qualified Event Expenses owed under the FIFA Assignment Agreement, and there is either a subsequent resolution or a final, binding legal determination regarding disputed amounts of Qualified Event Expenses owed, Guarantor’s obligation will be adjusted accordingly to include amounts determined to be due and payable by BAHC as Qualified Expenses following such proceeding.
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(d) Special Provisions for Advance Payments . If, as required pursuant to the terms of Section 2.3.3.a of the FIFA Assignment Agreement BAHC fails to pay City/Stadium Authority the First Advance Payment when due (on or before May 1, 2026), then, starting July 15, 2026, and continuing until the First Advance Payment has been made, Guarantor’s obligation with respect to such payment amount shall accrue interest at the rate of six percent (6%) per annum. In addition, if as required pursuant to the terms of Section 2.3.3.a of the FIFA Assignment Agreement BAHC fails to pay City/Stadium Authority the Second Advance Payment when due (on or before June 22, 2026), then, starting September 1 , 2026, and continuing until the Second Advance Payment has been made, Guarantor’s obligation with respect to such payment amount shall accrue interest at the rate of six percent (6%) per annum. Guarantor’s obligations to pay interest as provided above shall c ollectively be referred to as “Guarantor’s Advance Payment Interest Obligation.” City/Stadium Authority shall notify Guarantor of any failure of BAHC to timely pay Advance Payments upon thirty (30) days of delinquency in order to provide Guarantor an opportunity to make such payment itself and avoid the accrual of Guarantor’s Advance Payment Interest obligation. Any such Guarantor’s Advance Payment Interest Obligation shall only be due and payable to City/Stadium Authority by Guarantor for those amounts of the First Advance Payment or Second Advance Payment on which the BAHC has not subsequently paid BAHC QEE Interest.
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uaranty of ManCo’s Stadium and Field Improvements Obligations. Under section 4.1 and 4.3.3 of the FIFA Assignment Agreement, ManCo shall be responsible for overseeing the implementation of and causing payment of all costs associated with the Stadium Improvements including, without limitation, any and all payments due to the contractor(s) hired to design and construct the Field Improvements and all related improvement costs. Guarantor hereby guarantees, for the benefit of the Stadium Authority, the full and complete payment by ManCo of all costs associated with ManCo’s responsibilities set forth in section 4.1 and 4.3.3 in order to assure all contractors are paid and all such improvements are constructed lien-free. If after thirty (30) days written notice to BAHC of any claim(s) against City/Stadium Authority made by any contractor or other party performing Stadium Improvements work, or any lien filed against the Stadium in connection with any Stadium Improvements, Guarantor’s obligations under this Section 5 shall be triggered immediately upon written notice from City/Stadium Authority that such claim has not been addressed and/or resolved or is not in the process of being addressed and/or resolved by BAHC.
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rrevocable Guaranty ; Other Terms.
(a) Guarantor’s guaranty is irrevocable. This Guaranty cannot be revoked or canceled by Guarantor.
(b) This Guaranty shall remain in full force and effect and survive the expiration or earlier termination of the FIFA Assignment Agreement; provided, however, if the FIFA Assignment Agreement is terminated as a result of City/Stadium Authority’s default in its obligations with respect to the provision of World Cup Event Support Services, then, as of the date of such termination (“Termination Date”), to the extent BAHC is determined to no longer be obligated to reimburse City/Stadium for Qualified Event Expenses incurred with respect to World City/Stadium Authority Proposed FINAL 2.5.25
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Cup Support Services provided after the Termination Date, Guarantor ’s obligations with respect to such Qualified Event Expenses shall also be terminated. (c) Guarantor’s obligations shall also remain in full force and effect and shall not be affected or discharged by any modification, alteration or variation to the terms of the FIFA Assignment Agreement; provided, however, Guarantor’s obligations hereunder may not be increased by any amendment to the FIFA Assignment Agreement without Guarantor’s prior written approval of such amendment.
(d) This Guaranty shall be a continuing guarantee and shall remain in full force and effect until all obligations, undertakings and liabilities to be performed, observed or satisfied in connection with BAHC’s obligations under the FIFA Assignment Agreement to make payments of Qualified Event Expenses, BAHC’s obligations pursuant to Section 5.7.1 with respect to FIFA Impacted Parties, and ManCo’s financial obligations in connection with the Stadium Improvements and Field Improvements have been duly completed or satisfied. (e) Guarantor’s guaranty liability is primary, not secondary. Guarantor hereby knowingly, willingly, and irrevocably waives any right, defense and benefits of law or equity with respect to any claim or basis to demand or require that City/ Stadium Authority to proceed first against BAHC to recover, collect, enforce or adjudicate any Unpaid Qualified Expenses , or to proceed first against ManCo or any other party to recover, collect, enforce or adjudicate any costs of Stadium Improvements and Field Improvements, or to proceed first with another remedy in City/Stadium Authority’s power. Guarantor also expressly waives the provision of California Civil code section 2845.
(f) The validity of this Guaranty and Guarantor ’s obligations hereunder shall, to the extent permitted by law, not be impaired by any event whatsoever, including without limitation any of the following, whether or not Guarantor have any notice thereof: (a) the invalidity or unenforceability of any agreement or instrument evidencing or relating to the Guarantor’s obligations; (b) any failure by City/Stadium Authority to exercise diligence in the collection of the obligations or any action, omission or delay on the part of City/Stadium Authority or any other person or entity to assert or enforce any claim, demand, right, power or remedy referred to, conferred in or arising under this Guaranty or any of the other agreements evidencing or relating to the obligations; ( c) the voluntary or involuntary liquidation, sale, cessation of business, marshalling of assets, receivership, or financial decline of BAHC or ManCo, or any insolvency, bankruptcy, assignment for the benefit of creditors, reorganization or other similar proceedings affecting BAHC or ManCo, or their assets; or (d) any allegation or contest of the validity of the Guaranty’s obligations or this Guaranty.
7. Recovery of Bankruptcy Avoided Payments. If any of Guarantor’s payments to City/Authority are subsequently challenged by a bankruptcy trustee or debtor in possession as an avoidable transfer on the grounds that the payment constituted a preferential payment or a fraudulent conveyance under state law or the Bankruptcy Code or any successor statute thereto or on any other grounds, City/ Stadium Authority may, at its option and in its sole discretion, elect whether and to what extent to contest such challenge. If any of the contested amounts are City/Stadium Authority Proposed FINAL 2.5.25
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successfully avoided (whether through settlement or otherwise), the avoided amount will become part of the obligations hereunder. If City/Stadium Authority elects not to contest the avoidance action, City/Stadium Authority may tender the amount subject to the avoidance action to the bankruptcy court, trustee or debtor in possession and the amount so advanced shall become part of the obligations hereunder. Guarantor’s obligation to reimburse City/Stadium Authority for amounts due under this Section shall survive the purported cancellation hereof.
8. Guarantor’s Representations. Guarantor represents that: (a) this Guaranty is valid and binding according to its terms, subject to no counterclaim or set-off, except the effect of applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally or as otherwise provided in the FIFA Assignment Agreement; (b) Guarantor has the necessary power and authority, and that all necessary corporate and other action has been taken, to enable Guarantor to sign and deliver this Guaranty and perform its obligations hereunder; and (c) execution and implementation of this Guaranty by Guarantor will not contravene any law, order or third party agreement by which Guarantor is bound.
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ndependent Investigation. Guarantor has reviewed the FIFA Assignment Agreement, and is fully informed and understands the terms and obligations therein. Guarantor delivers this Guaranty based solely on its own independent investigation and in no part upon any representation or statement of City/Stadium Authority or its agents with respect to any matter whatsoever. Guarantor is in a position to assume and hereby assume full responsibility for obtaining any additional information concerning BAHC’s and ManCo’s obligations guaranteed herein, as well as the financial or other conditions of BAHC and ManCo.
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o Fiduciary Relationship; No Third Party Beneficiaries . Nothing contained herein or in any related document shall be deemed to create any partnership, joint venture or other fiduciary relationship between Guarantor, the City or the Stadium Authority for any purpose. This Guaranty has been executed for the sole benefit of City/Stadium Authority as an inducement to enter into the FIFA Assignment Agreement, and neither Guarantor nor any other third party is authorized to rely upon City/Stadium Authority’s rights hereunder or to rely upon an assumption that City/Stadium Authority has exercised or will exercise its rights under any document.
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urvival . All warranties, representations, and covenants made by the Guarantor herein shall be deemed to have been relied upon by City/Stadium Authority.
12. B inding Guaranty / No Unauthorized Assignment. This Guaranty shall be binding upon the successors and assigns of the Guarantor, except that Guarantor shall not assign any rights or delegate any obligations arising hereunder without the prior written consent of City/Stadium Authority. Any purported assignment in violation of this Section shall be void ab initio.
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otices . All notices to be delivered to the Parties under this Guaranty shall be in writing and delivered at the address listed below. Such notices shall be sent either (i) by hand, plus electronic mail, (ii) by registered or certified mail return receipt requested, plus electronic mail, (iii) by overnight courier service maintaining records of receipt, plus electronic mail, or (iv) City/Stadium Authority Proposed FINAL 2.5.25
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by electronic mail with confirmation in writing mailed first class; in all cases with charges prepaid.
Notice shall be effective upon the date of the electronic email.
Guarantor: Forty Niners Football Company LLC
Attn: Legal Affairs
4949 Marie P DeBartolo Way
Santa Clara, CA 95054
[email protected]
City/Stadium Authority City of Santa Clara
Attn: City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
[email protected]
and a copy to: City Attorney
[email protected]
All notices shall be sent to the applicable party at the address stated above or in accordance with the last unrevoked written direction from such party to the other party hereto.
14. Time. Time is of the essence under this Guaranty.
15. Cumulative Remedies. The remedies provided to City/Stadium Authority in this Guaranty are not exclusive of any other remedies that may be available to City/Stadium Authority under any other document or at law or in equity.
16. C osts and Expenses. In the event any action or motion is filed to enforce any of the provisions of this Guaranty, including without limitation, to enforce the terms herein, or to interpret any provision of this Guaranty, the prevailing Party in any such action or motion shall be entitled to its actual attorneys’ fees and costs incurred in connection with any such action or motion, to be determined by the court and assessed as part of the costs therein.
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overning Law / Jurisdiction.
THIS GUARANTY AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
Each of the Parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any California State court or federal court of the United States of America sitting in Santa Clara County, and any appellate court thereof, in any City/Stadium Authority Proposed FINAL 2.5.25
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action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the Parties hereto, for itself and for its property, hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such California State court or, to the extent permitted by law, in such federal court. Each of the Parties hereto agrees that it may be served with legal process by mail in addition to any other means permitted by applicable law and that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.
Nothing in this Guaranty shall affect any right that either Party may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.
Each of the Parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Guaranty in any California State court or federal court of the United States of America sitting in Santa Clara County. Each of the Parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such action or proceeding in any such court.
18. Severability. Should any provision of this Guaranty be held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions hereof shall remain in full effect.
19. N o Presumption. Each of the Parties had an opportunity to draft, review and edit the language of this Guaranty, and no presumption for or against any of the Parties arising out of drafting all or any part of this Guaranty will be applied in any action or proceeding arising out of, relating to, connected to, or involving this Guaranty.
20. A mendment and Waiver in Writing . No provision of this Guaranty can be amended or waived, except by a statement in writing signed by the party against which enforcement of the amendment or waiver is sought. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing.
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ounterparts. For the purpose for facilitating the execution of this Guaranty , this Guaranty may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. Delivery of executed signature pages by facsimile transmission or by scanned pages sent by electronic mail shall constitute effective and binding execution and delivery thereof.
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urther Assurances; Implementing Agreements . The Parties agrees to execute, acknowledge and deliver such further instruments and documents as may be reasonably requested by another Party to carry out the intent of this Guaranty.
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23. Entire Agreement; No Oral Representations Limiting Enforcement. This Guaranty represents the entire agreement between the parties concerning the liability of Guarantor for the obligations, superseding any and all other agreements, promises or representations existing prior to or made simultaneously with this Guaranty. Any oral statements regarding Guarantor's liability are merged herein. Without limiting the foregoing, Guarantor s acknowledge that City/Stadium Authority have made no oral statements to Guaranto r that could be construed as a waiver of City/Stadium Authority’s right to enforce this Guaranty by all available legal and equitable means. (signature page follows)
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This Guaranty is executed as of the date written below.
GUARANTOR:
FORTY NINERS FOOTBALL COMPANY, LLC
Name:___________________________________
Title:____________________________________
Date: ____________________________________
CITY OF SANTA CLARA:
Name:___________________________________
Title:____________________________________
Date: ____________________________________
SANTA CLARA STADIUM AUTHORITY:
Name:___________________________________
Title:____________________________________
Date: ____________________________________