HomeMy WebLinkAboutFresno Baseball Club, LLC - 2010 Amended and Restated Stadium Sublease Agreement (Chukchansi Park) - Acquired from Fresno Diamond Group in 2005PERSONAL GUARA}ITY AGREEMENT
THIS PERSONAL GUARANTY AGRÏBMENT (this "Guarênfy") is rnade and entered
into as of March _, 2010, by Binkley C. Shorts* a resident of the State of Massachusetts (the
'*Guarantor"), for the benefit of the City of Fresño, a Califor¡ia municipal corporation (the
"City"), and Îts successoÌs and/or assigns, with a cunent address of Fresno City Hall, 2600
Fresuo Street, Second Floor, Fresno, CA 93721-36û0.
RECITALS
A. The CiÐ has agreed to arnend and restate (the "Amendrnent") that certain
Agreernent dated Jênuêry 3, 2001, originally between the Ciff and Frosno Ðianro¡rd Cnoup, LtC
(the "Sublease," as it may be amended, reñewed, modified, assigned, supplemented, transf,erred,
reinstated or exte*ded, ûom time to tirne).
ts. On or about October 13, 2005, Fresno Baseball Club, LLC, a Ðelaware [imited
-liabilþ cünpaiiy (*FBC,,' inoluding it¡ successors and/or assigns) purchâ$ed and assumcd all of
the Fresns Diao¡ond Group, LLC's rights under the Subloase. The sole msmber and nranager of
FBC is Fresno Bassball Club, LLLP, a Delaware lirnited liability limited partnership ("LLLP.)"
C- Gumantor is a limited partner of the LL[.P, and, as such, u,ill reccive financial
and other benefÌ,ts from the Arnendment.
Ð. FBC's pedormance under Sublease is secured, in part, by that certafui Fledge
.A^geemertt, dated October I3,20t5, wherein th* LLLP granted the City a seeurity interes{ in
cerfain personal property of the LILP (the "Fledge Agreenrent").
E" [n order to induce the City to apprwe the ArnondmeåL and as additional security
for FBC's perfornralce u.nder the Sublease, as amended by the Amendrnent, Guarantor has
agreed to give this Guaranf.
F. The City is not willing to sigu the Amendrnent unless this Guaranty ìs executed
by the Guæantor and delivered to City; provided, howevor, this Guaranfy shall not be sflfective
unless and until the Arnerrdment is tìnally approved and executed by the City and FBC.
4 E REE"M E I.I T
NOW, TTIEREFORE" in consideration of the ReaÍtals ar¡d other good and valuable
consideration, the recoipt and suffieiency of which are hereby acknowledged, C't¡ârâûtor hereby
crvônants and agrees with the City as foliows:
1. Çuarantv of Obligations.. Subject cnly to the condition precedent in Paragraph 5
below, Guarantor hereby ìrrevocably, unconditìona.lly, primariþ, and absolutely guarantees to
the City, the due and prompt payment, performance and sollection of all of the following under
the Sublease (hereinefter being eollectively refer¡ed to as the "Oblþations Guarantcedl'): (i) the
prompt payment when due of all indebtedness þriacipal, interest arrd other), liabìlitÍes and
monetary obligations of FBC to City, of every kind uatue, and description under the Sublease,
including, without limitaÉion, rental paymenfs; (ii) the prompt performance of' all other
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covenants, obligations and agreements to be kept and performed by FBC under the Sublease; and
(iii) the pâyment of any costs and expenses under the Sublease, including, without limitation all
coliection costs, expenses and atÈomeys' fbes (whether or not there is a lawsuit, and if there is a
lawsuit any fees and costs for trial and appeals) that City may sustain as a result of or in
connection with any exercise of remedies available to the City under thc Sublease. This is a
limited guaË$ryJ subject only to the condition precedent ín Paragraph 5 belou., whereby the
deficíency guaranteed by the Guarantor shall be established.
2. . SuQect to Paragraph 3 below, G*arantor's
payment obligations hereu¡¡der shall be liroited to Guarantor's Shâre of the Obligations
Guaranteed. "Guârantor's Share of the Obligations Çua¡a$teed" shall mean an amoun¿ not to
exceed One Million Five Hundred Thousa¡d and No/lûO Dollars ($i,500,00.0.00) of the
Obligations Guaranteed. Guarantor's Sha¡e of the Obligations Gr¡ararrtced wilt only be reduced
by sums acttally paid by Guarantor u¡rder this Guaranty, but will not be reduced by srlrns from
any other sourcel including, but not limited to, sums realized frorn the LLLP, FBC, or payrnents
by anyone othcr than Guar.antor, or reductions by operafioa of law, .iudicial order or equitable
principles, uuless and until the Obligations Guaranteed have been reduced to less than
Guarantor's Share of the Obligations G,uaranteed. City has the sole arrd absolute discretion to
deten¡line how zuly arnounts sollected ftom anyone other than Guarantor shall be applied to the
Obligations Gu¿ranteed and arnong Èhe guaranties of the St¡blEase. This limitation on
Guatantor's üability is not a restrietion on the amounts Õwing under the Sublease by FBC to Ci!y,
either in the aggregaÈe or at any cne timg nor shall it affect the liability of any other guarantors
of the Sublease. This Guaranty is in additioü to, and shall not Ïi$rit in any \i/ây' any and all
rernedies tlre City has under existing documcnts.
3. Notrvithsta:iding Paragraph 2 above, in
addition to Guarantor's Shars of the Obligatlons Guaranteed, Guarantor shall be liable to ths City
and shall prornptly Fay upon demand ffLy and all coilection côsÉs, expenses and attorneys' fees
(whether or not there is a lawsuit, and if there is a larvsuit, any fees and costs for trial and
appeals) incurred by the City in enforcing its rigþts against Guatantor tmder this Guarzurty.
4. Independeq!-ObligðËgns. The obligations of Guarantor to City hereunder are
direct and indeper.rdent of aay obligations of FBC to City. Subject orrly to the conditisn
precedent in Paragrqph 5 below, ô séparatç actioü or acÊioru may be brought ageinst Guarantor,
without regard to whether aoy action is brought against FBC cr the LLLP, or whether FBC orthe
LLIP is joined in any such action or actions. No cireumstance which operates to d"ischarge, oÍ to
bar, suspend, or delay City's right to enforce, any obligation of FBC o¡ the LLLP to Cþ,
inciuding, without lirnitation, the effect of any statute of limitatioÍls or the pendency or
conclrrsion of any prooeeding under the Bankruptcy Code (il U.S.C. $ 1û1, er. seE) or any
similar present or future federal or state larr, shall have any effect upon the enforceability of
Guarantor's obligations to City hcreunder. Any payrnent by FBC or tlre LLLP or any other
circumst¿nce which operates to toll âny statute of limiÉations as to Êorrower shall operate
likewise to toll the statute of linnitations as to Guarantor.
5. City's -CoJlwtiqq Oblig+Êipnp. City shall be entitled to bring an action or actions
against Guarantor under this Guaranty immediaÉely following the satisf,action of the foilowing
condition precedent: CiÉy uses cornmercially reasonably etforÊs to exercise its rights ând
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remedies under the Pledge Agreement against the Pledged Coilateral (as defined in the Pled.ge
Agreement) and those rights and remedies are reasonably expected to be satisfied within 1&0
days after the notiee of default has been delivered to FBC. However, in the eve*t that any
proceeding is commenced by or against FBC o¡the LLLP under the Bankruptcy Code (11 U.S.C.
$ 101, et. seq.) or under any similar present or future federal or state law the City shall have the
right to bring an action o¡ actions irnmediately against Guarantor under this Guæanty. The City
shall only be required to pursue its rights and rernedies against the Pledged Collateral to the
extent that the City determines, in is reæonable discretior, that the net revenüe generated by its
collection effo¡ts will exceed its cost of colleetion, resulting in a net reduction in the Obligations
Guaranteed. The condition precedent ín this paragraph shall be deemed fi.illy satisfied by the
City upon the occurrence of the following events, whiehevor event occurs f-rrst: (u) *y personal
property of FBC, over which the City actually obtains possession or con{rol under the Fledge
Agreement, has been sold by the City in an arrns*lengfh transaetico to a third.parfy pwotraser;
provided however. the City's oblig*tions hereuRder shall be dee.med fully satisfied, if the City
determines, in is rsasonable discretion, thaf the tevenu€ gsnerated by any ñrther snlcs of FBC's
personal pröperty will exceed the cost of such sales; (b) any pr,oceeding is eornmençed by or
against FBC or the LLLP under the Barlkrupæy Ccde ill U.S.C. $ l0l, et. seq.) or under any
sirnilar present or future federal or sî¿te law; or (c) the Obligations Gusanteed are not satlsfied
within one hundred eighty (180) days aôer the City delivers a notíce of defeult to FBC.
Gr¡ffrûntor undersÈânds artd agites that, dsspitç commercially reasonabie effofs af City, Thsre is
no guåranty that the City will be able to exercise its rights a¡¡d remedies under the Ftredge
A.greement, or that the City's collection efforts will result in a reduction in Guarantol's Share of
the Obligations Guaranteed.
6. Tenn of Guaranft. Guaranto¡ agrees tha¡ this shall be a continuing, absolute and
unconditional Guaranty and shall be in full force and çffect untii all sums due unde.r the Sublease
and the Obligations Guaranteed have been satísfied in full; provided. horvevsr, that Guara¡Éor's
obligations under this Guaranty shall be deemed ftlly satisfied if, and only íf: (a) on the date the
City has c.onrpleted its review sf the at¡dit of FBC' as sot forth in the Subleêse, for the fiseal year
that includes the 2û14 baseball se&son ftr the Fresns Grizzlies (the .2014 Audit DateÌ) there is
no existing "Ïenâ¡rt Default" (as such term is defined in Section 8"1 of the Sublea*e) and, ib) i"
the event there is a circurnstance existing on the 2014 Audit Date that, with the lapse of time,
would constitute a Tenant Default, such oircwnstance is rernedied prior to the expìratio¡r oithe
applicable cure period as set forÉh irr Section 8.1 of the Sublease. Regarding subclause (b).of the
forogoing søntenee, by way of illustratíon and not limïtation, if FBC has been provided notiqe of
its faih¡re to perform a given obligation under the Sublease, but the cure period fo¡ such fai[ure
as set forth in Section 8.1 of the Sublease has not expired prior to the 2014 Audit Date (and
therefore FBC's failure does not constitu(e a "Tenant Defâr¡lt" on such daÉe), then this Guaranty
will not be deemed fully satisfied uuless and until FBC has cured (or caused to be cured) sueh
failure prior to tho expiration of the applicable cure period.
7. Release gf Guaran[¡ bv City. As more fully set forth in the S¡.¡bÌease, and subject
to the terms and conditions therein, including but:rot limited ûon the obligation of any third=party
purchaser 1o as¡ume any and all obligations of the Team under the Sublease and related
agreements, the Sublease and related agreements may be assigned and solé by FBC in an arms-
lengfh transaction to a third-party purchaser {the "Sale"), No less than fhirty (30) days before
such Sate, FBC and the prospective purchaser may propose to the City, in writing, a subsÉitute
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guarantor for the Sublease (the "Substitute Guarantor"). Such proposal shalÌ include a current,
verified personal financiat ståtement for such Substitute Guarantor, together with such other
additional financial infurmation and dosumentation as the City may reasonably request. Subject
to the personal neJ worth and documentation requirenents as reasonably deternrined by the City,
the Cþ's approval of the Substitute Guarantor shall not be un¡easonably withheld, corrditioned,
or delayed. If the Cíty approves such Substitute Gua¡antor, then simultaneousty with the closing
of such Saie and with the Substitute Gtrarantor's executio¡¡ of, a personal gumanfy agreement
acceptable to City, this Guaranty shatl be marked "paid-in-fu11" and returned to Gua¡¿ntor, and
Gua¡antor shall be fully and unconditionaily released from all further obligations hereunder. If
the Substittrte Gua¡antor is not approved by the City, then this Gu*ranty shall rernain a
continuing, absolute and unconditional guaranty and shall continue in fi*li furce and ef,fcet.
8 G".t¡æqnty_-Aþsolutc. Guarantor hereby agrees that the Cify ma1, from time to time
without notice to or soüscrit of the Guarantor and upon such fçrms and conditio$s ¿ìs the City
rnay deenr advisable and without affecûng this Guaranty or the liability of Guarantor under this
Guæarfy, which shall remain ebsolute aud unconditional: þ) make any agreement extending or
otlrerwise altering the tìrne for or the tersns of payrrrent of all or any part of the sums due undor
thc Su'blEase or the Obligations Guaranteed, or otherwise be ârrtendirtg, rcnewing, modifliing,
supplementiRg or extending the tenns of the Suble¿se, or any agreement transfening or assigning
the Sublease; (b) modif, $'aive, compromisq retreass, subordinate, resort to, oxercise or refrain
frorn exeroising any right the City rnay have hereunder or under the Sublease; (c) accept or
release additiortal secwity or gwrantees of, any kind for the Obligations Guaranteed; (d) accept
from FBÇ or ânJ other party pârtial paymsnt or payments on account of the Obligatiorts
Guararfeed; or (e) releaseo setlle or compronrise any claim of the Cíty against FBC, or against
any olher per$on, firm or colporation nhose obligation is held by the City as collateral security
for repaymenf ofthe Obligations Guaranteed.
9. Guarantor Waiver. Guarantor hereby uneonditionally alrd absolately waives: (a)
any obligæion on the part of the City to protect, secr¡rç or insure any of the security given for the
paymont of the surns due under the Sublease or for pêyment of the Obligaticns Guaræteed; (b)
the invalidity or urenforceability of the Obligations Guaranteed; (c) notice of acceptance of this
Guaranty by the City; (d) notico of presentment, dernand for pa¡nnent notioe of non perfonnance
or ncn-obsefvânae of, any terrn or c¿ndition of the Sublease, prôtest, notie.es of protest and
notices of, dishonor, notice of non payment or partial payment under the Sublease; (e) notice of
auy defaults under the Sublease or in the performance of any of the coveflånts and agreements
contained frrerein; or (f) any right of subrogation against FBC in reÊpec.t of this GuamnС.
10. No,Imp-ai. rment. Waiver or Release. The obligations of Guarantor hereunder shall
not be subject fo any reductiono lirnitation, impairrnent, or terminatisn fsr any reason) including,
without limitation" any claim of waiver, release, surrender, alteratíon, qr compromise, and shall
not be subject to any dsfense or setoff, countcrclaim, reooupmento or termination whatsoevet,
other than the full and complete paymeüt by Guarantor of Guarantor's Share of the Obligations
Guaranfeed. Without limiting the gene.rality of the foregoing Guarantor wiii not assert against
the Cþ any defense of, waive¡ rele&sô, discharge in banlnrptcy, statute of lirnitations, res
judicata, stst$fe of frauds, anti-defieiency statute, ftaud, utrtra vires. acts, usury, illegality or
uncnforceability that may be available to FBC, the LLLP or the Gua¡antor. Gr*ar¿rntor further
êgrees that no act or ffog, except for Guarantor's payment, in full, of Gua¡antor's Shrue of the
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Obligations Gua¡anteed, which but for ltris provision might or could in law or in equity act as a
release of the liabilities of the Gua¡antor hereunder, shall in any way af,fect or impair this
Guaranty.
lL Guarantor hereby reprcsents and
wa¡rants to City, and covenants with City, that: (i) there âre no legal proceedings, material
claims or demands pending agaìnst, or to the knowledge of the Guaranto¡ tlueatened against,
Guarantor or any of Guarantor's assets, (ií) the Guarantor is not i¡l material breach or material
default of any oblìgation to pay money, (iii) no event (including specifically the Guarantor's
execution and delivery of this Gua.ranty) has oÕcurred which, with or without the lapse of tirne or
action by a third pa¡'ty, constitl¡tes or could constitute a material brçach or material defuult unde¡
any document evidencing or securing alry obligation to pay ¡Ðoüey or unde¡ aay other contract or
agrsement to which the Guarantor is a Þa¡ty, fiv) the Sublease and the guarantee of payment of
tbe Obligations Guaranteed under this Guaranty will resuit in a direct finaucial benefit to
Guarantor, (v) Guarantor has read and approved the terms of the SubÅease, including, without
lìmitation the tenns of the Amendmeut, ald (vi) the Guaranio¡ has knowlçdge of FBC's financial
conelitian and affairs ancl of atrl other ei¡ewnstances which bear upon the risk assr¡med by the
Gu*ra¡rtor under this Guaranty- Th€ Cusrantor shall not transfer any of his assets fsr the pwpose
of preventiug City from satis$irrg any.|udgment renderEd u¡rder this Guaranty tleerefrom, either
before or afler the entry of any sllch judgment.
12. Jurisdiction. Guarantor submits and consents to personal jurisdietion in the State
of California for tle enfarcemsnt of this Guaranty and waives any and all personal righæ under
the laws of, any state or the United States of America to object to jurisdiction in the State of
Califomia for the purposes of litigatior: to enJbrce this Guaranty"
13. Cumulative Re+redies. No right or remedy hereín eonferred upon or reserved to
the City is íntended to be exclusive of any other available rcnredy or remedies but eåch and every
remedy shall be cumutative and shall bç in addition to çveiy other remedy given under this
Guararrty or now or hereafter existing at law or in equity. No waiver, arnendmen[. release or
modihcation of this Guaranty shall be established by conduct, ctrstorn or course of dealing, but
only by a¡r instrument in writing duly ex,ecuted by the Ciff.
14. Gover-nine Law. This Gtraranty is delivered in and made in a¡rd shall in all
respects be construed pursuanf ta the laws of the State of Califbrnia,
i5. Bi.nding Ðffeet. Guarantor agrôes that notice of the acceptance of this Guaranty
shall be deerned gir.en upon the execution of the Amendment by the City. This Guaranty shall
inure to the benefit of City and any successor or assign of Cþ under the Sublease. This
Guaranty, arrd eaEh and every pa¡t herçof, shall be binding upon Guaranfor ærd upon Guarantor's
heirs, adrninistrators, representatives, €xecutors, successotrs and assigns.
16. Notices. Any notice which any party hereto may desire or may be required to
give to any other pûr¿y shall be in w¡iting and rhe mailing thereof by certiñed mail to their
respective addresses as set forth herein, or to suoh other places any party hereto may here*fter by
notice in writing designate, shall constifute service of notice herer¡nder. Guarantor hereby
represents and warrants to the CiÐ/ thât the address of the Guarantor as specif,red below is true
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P. t
a¡¡d conest and until the CiU sheit heve achrally received a rvritten notice spociffing aay suoh
change of add¡tse aud speeifîcalty rêquesting that notices be issued to sucfr changed add¡çss, fhe
City rnay rçly @ the addf¿ss stated as being accu¡ats, Gu¡rar¡tor hor,eby agree$ to provÍdo fhe
City È,ith r¡¿ritten nofico of arry ehange of ad&ess of a Gr¡æanto¡ withÏs ñfreçn (15) day* after
suchúange.
f7, Joínt and Seve$l Liåbilift. If ¡po or nrore Gt¡a¡anto¡s exeeute tlÍs Guaranfy or
rÊlåJed Personal Guaranty Agpe€meffs, each tuaronto¡ sball be jointly aad severally lÞble
hereundor or thpceusder, providedtåat the aggregate anowrt gtrarantecd by all Grxrrantots shall
notoxceed Gua¡antot's Share sfthe Obligations Guæanteed.
IN ItIITNËSS U¡EEREOF, the utrdersigned Guaranto¡ hae sÊused this Guaranff to be
duly executed a¡rd delivered as cf thç datc fust abovc writtrsr^
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