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HomeMy WebLinkAboutFresno Baseball Club, LLC - 2005 Pledge Agreement to Transfer Lease Agreement (Chukchansi Park) from Fresno Diamond Group to Fresno Baseball ClubML \■.: rncs� =`H� REPORT TO THE CITY COUNCIL AGENDA ITEM NO. JCb Pro "L' COUNCIL MEETING F%?c �g5 N»,ru�rrinit ANDREW T. SOUZA. CITY MANAGER NICOLE R. ZIEBA, MANAGEMENT ANALYST III CITY MANAGER'S OFFICE SUBJECT: APPROVE ASSIGNMENT AGREEMENT, SUBORDINATION AGREEMENT am PLEDGE AGREEMENT CONCERNING THE SALE OF THE GRIZZLIES FRANCHISE FROM FRESNO DIAMOND GROUP, LLC TO FRESNO BASEBALL CLUB, LLC. KEY RESULT AREA Resource Management EXECUTIVE SUMMARY Fresno Diamond Group, the current owners of the Fresno Goalies franchise, is selling their franchise rights to Fresno Baseball Club, LLC (FBC). The City is given the right under fis Sublease Agreement 0 approve the sale or dander of To franchise. The wlrent Pledge Agreement calls for the pledge of the membership interest In FBC In the event that Mare shouts ba a breach of the City's Sublease Agreement or other stadium documents. City stuff have conductetl due diligence and research over the past fax months to ensure that the patlnership purchasing the Gumlies is structurally and financially sound aid that the City maintains a secured interest in the new Agreements on at least a parity, with the old Agreements. The City is also requiring any debt incurred by FBC for initial capitachution of me LLC to t e subordinate to the Citys succored interest. Staff believes the FBC is structurally and gnanchaly sound and that the agreements in this transaction Jo maintain, and in some ways improve, the Cilys security Interest. This transaction maintains a balance of the three Key Objectives. It maintains Bre security interest of Ne City, thereby shielding the Fresno constituents of any unnecessary risk. It maintains the fiscal parameters of the initial agreements with the Fresno Diamond Group. It does rot adversely impact employee satisfaction. Prn.e,M..n n.. .. rm .. n...L',M•r> S apaPPtoved as rewmrmderl On October 17, 2000, the City Council approved the Fledge Agreement, Sublease, and other various documents retafing to gra GrlvJies franchise under the Fresno Biemond Greup (FBG). Within those agreements, there are provisions calling for the City to have final approval authority over any sale or transfer of Interest of pre Grilles franchise. Several months ago, the Fresno Baseball Club. LLC, (FBC) made its intentions to purchase Man Grizz ies Munched known to the Gty. City staff began to conduct due diligence research about the new ownership entity to ensure Nat it Is fiscally and organizaborelly sound. Staff also began negotiations with FBC concerning Me assignment of the Pledge Agreement and various other documents to the FEC. The City Attorneys Office also had Omck, Hartington & Sutcliffe, Me City's andante counsel, review the financial and legal documents to ensure soundness, At this point, staff believes the agreements before City Councll today ensure the Ckys security in Ms transfer of the Grlalies franchise from FBG to FBC. FISCAL IMPACT None. The City is a party in Me transaction for approval authority only, Insomuch as the sale may impact me equity interest the City holds, Me Pledge and Assignment Agreements contain me same and in some cases better substantive points as the previous agreements with the FOG. The City retains an equity interest in the franchise, and will continue to have approval rights over the sale of Me franchise, or any other sale or transfer of assets. Attachment A— Pledge Agreement Attachment B — Stadium Sublease Amendment and Global Assignment and Assumption Agreement Won Consent of City of Fresno Attachment G Subordination Agreement Attachment A PLEDGE AGREEMENT (Fresno Baseball Club, LLLP) This Pledge Agreement ("Agreement") dated as of Ci 4o 13, 2005 is made and "counted by and between Fresno Baseball Club, LLLP, a Delaware limited liability limited partnership ("Grantor•'), Fresno Baseball Club, LLC, a Delaware limited liability company ("PBC"), and the City of Fresno, a Municipal Corporation ("Secured Parry"). RECITALS A. On or soon[ January 3, 2001, Secured Peaty entered him various agreements with the Fresno Grizzlies, Inc. (the "Grizzlies") andtor the Fresno Diamond Group, LLC ("FDG"), including the Sublease Agreement, the Parking Agreement and the Nov -Relocation and Continuous Operation Agreement (each as defined below). B. On or about Jammy 3, 2001, Sewed Perry entered into the Pledge Agreement (Fresno Gri;odos Inc.) with the Grirdies and FDG. C. FBC ban entered into an Asset Purchase Agreement dated[ as of July 15, 2005 with FDG and certain other parties assured thereia, in which FEC has aged (1) to purchase the Franchise and substantially all of the assets used in the operation of FDG and the professional baseball teem called the Fresno Grizzlies, including the Franchise, and (2) to assume certain continues including the Sublease Agreement, the Peking Agtemund, and the Non -Relocation and Continuous Operation Agreement D. FBC has asked Secured Party to consent to the m nsfer and assignment to FEC (and the acceptance and assumption by FBC) of ell righty tide and interest is and to the Sublease Agreement, the Parking Agreement, .and the Non -Relocation and Continuous Operation Agreement. E. Grantor is the cote member and role manager of FBC, and owns in the aggregate all afthe outstanding membership interests and other equity securities in FBC. F. As a condition precedent to Secured] Party's consent to the transfer and assignment to FBC of all rights, title and interest in and m the Sublease Agreement, the Parking Agreement, and the Non -Relocation end Continuous Operation Agreement, Second Party has requited that Grantor and FBC enter men this Agreement with Sawed Party to secure the prompt and complete paymrnt end performance of all of the obligations se forth an Section 3 of this Agreement (all such obligations are hereiveder referred to collectively as the "Obligations"). NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: smsessn.I 1. Defined Terme. Any term not defirud in this Ageemmt shall have the meaning sal Porth in the Sublease Agreement As used in this Agreement. the following turns shall have the following meanings: "Codee shell mean the Uniform Commercial Code as the same may from rima to time be in effect in the State of California. "Formation Agreement" shall mean the Certificate of Formation of Fresno Baseball Club, LLC dated June g, 2005, pursuant in which FBC was formed, as such agecment may be hammer amended from time b time in accordance with the terms ofthis Agreement "Franchise- means be Class AAA Minor League Baseball franchise currently operating as the Fresno Griaha baseball club, and the corresponding membership interest in the Pacific Coast I.eague of Professional Baseball Clubs, Inc., protected territorial rights, and other rights and entfiemmts necessary, or in any way related, to the ownership, use or operation of the franchise. "Non -Relocation and Continuous Operation Agreement" shall mem that certain Non -Relocation and Continuous Operation Agreement by and between The Fresno Diamond Group, LLC, Fresno Grizzlies, hta, Tucson Toros, Inc, and the City of Fawn dated January 3, 2001, as amended. "Parking Agreement" shall mem that cement Agreement Regarding Parking Freaon Downtown Stadium Project by and between The Fresno Diamond Coup, LLC, the City ofFresuo and the Redevelopment Agency of We City of Fresno, as amended "Proeeeds" shall mean "proceeds", as such term is defined in the Code and. in my event, shall include, but not be limited to, (a) my and all payments (in my form whatsoever) made or due and payable to Grantor from time to time is comectiun with my tayuisnion, mn5scatom condemnation, seizure or Porf mere of all or my part of the Pledged Collateral by any govemmmtal body, authority, bureau or agency (or my person acting under color of governmental autlwrlty), (b) my and all amounts paid or payable to Grantor for or in connection with any sale or other disposition of Grmmr's increases in FEC, and (c) my and all other nuns from time to time paid or payable under or m cormectim with my of the Pledged Collateral. "Sublease Agreement" shall mean that terrain Agreement Bemm the City of Fresno, Fresno Grizzlies, Ina and Fresno Diamond Group, LLC Concerning Construction and Sublease of a Multipurpose Smdium dated January 3, 2001, es emended by the First Amendment to Agreement Concerning Construction and Sublease of a Multi -Purpose Stadium dated as of December 20, 2001, as emended by that certain Stadium Sublease Amendment Aru1 Global Assignment And Assumption Agreement with Consent of City dated m of the same date as this Agreement. 2. Grant of Security Interest, As collateral security for the prompt and compiae payment and performance when due of the Obligations, Grantor hereby grants to Secured Parry a security interest in and pledges to Secured Party all of the following (all of which being herein collectively celled the "Pledged Cofiaferal"): aTP4a5599.1 (a) all of Grantor's right, fide and interest as a member in FBC, including without limitation all of Grantor's right to receive distributions from FBC; (b) to the extent Grantor has my rights to any FBC property, all of Grantor's right, title and interest is specific FBC property; (c) all of Grantor's tight, title and interest, if my, to participate in the - maoag amen and voting of FBC; (d) all of C er's right, title aM interest is and to: (i) all right, privileges, authority and power of Grantor as owner and holder of the items specified in (a), (b) and (c) above, including but not limited to, all contact rights related thereto; (it) all options and other agreements for the pumhace or acquisition of my interests in FBC; and (iii) my document or certificate representing or evidencing Grantor's rights and interests in FBC; and (iv) to the extent not otherwise included, ell Proceeds and products of my of the foregoing. 3. Obfiesfiom Secured. This Agreement secures the performance or payment of the following Obligations: (a) All obligations of FBC (as the assignee of FDG and Grizzlies) under the Sublease Agreement, the assigemment for which is dazed as of the date of this Agreement, (including, but not limited W. MC's obligation to pay Secured Patty $1,500,Oo0.00 in annual rental payments for the term of the Sublease Agreement, as such amial rental payments may be amended pursuant a the terns of the Sublease Appreciation); (b) All obligations of FBC (as the assignee of FOG and Grizzlies) under the Non -Relocation and Continuous Operation Agra ret, the assignment for which is dated as of U: date of this Agreement; (c) Performance by former of all covenants, conditions, and warranties made by Grantor in this Agreement; and (d) The timely payment and perf ance of a8 present and future obligations of FBC to Secured Party evidenced by, and in eccordmce with the bums and conditions of the Sublease Agreement, the Parking Agreement and the Non -Relocation and Continuous Operation Agreement as such agreements are amended or modified from time to time. SIWa65r I 4. Representations and Warranties. Grantor and FBC, jointly and severally, represent and warrant that: (a) Grantor is the sole owner of each item ofthe Pledged Collateral (or, in the case of after-acquired Pledged Collateral, at the time Grantor acquires rights in the Pledged Collateral, will be the record legal and beneficial owner thereof), free and clear of any and all liens and claims whatsoever except far the security, interest granted b Secured Party Peahent to this Agreement. (b) All membership interests in FBC included in the Pledged Callateml have been (or in the case of after-acquired membership interests, at the time Grantor acquires rights therein, will have been) duly authorized, validly issued and fully paid and are (or in the case of after-acquired membership interests, at the time Grantor acquires rights therein, will be) non - assessable. (c) No security agmement, financing statement, assignmm[, equivalant security or lien instrument or comnuadon statement covering all or any pmt of the Pledged Collateral is on file or of record in any public office or at the records of FBC, except financing statements with respect to the Pledged Collateral filed by Secured Party pursuant to ties Agreement. (d) Upon the filing of all appropriate financing statements by the Secured Party under the applicable Uniform Commerrial Code, all steps necessary to mate and perfect the security interest crested by this Agreement as a valid and continuing first lien on and first perfected security interest in the Pledged Collateral in favor of Sauced Paty, prior to all other liens, security interesrs and other claims of any sort whatsoever, will have been taken. this Agreement and the security interest created hereby are adorer able as such against creditors of and purchasers from Grantor. (e) Cantor has not changed Grantor's name, or used, adopted or discontinued the use of my Crede ounce, fictitious name or other trade home or trade style. (t) Grantor's interests in FBC consist of a one hundred percent (100%) iateran as a member in FBC. (g) This Agreement a a valid and binding obligation of Grantor and FBC. Gramm and FBC have all power, statutory and otherwise, to execute and deliver this Agreement, to perform Grantor's and FBC's respective obligations hereunder and to subject the Pledged Collateral to the security interest created baeby, all of which has. been duly authorized by ell namsary action. (h) No amaWnmsa or supplements have been made to the Formation Agreement since it was originally entered into; such Fonoation Agreement remains he effort; and no party to the Formation Agreement is presently in default thereunder. (i) Grantor has the right to maresfa all or my part of the Pledged Collateral free of my lien or encumbrance. a1Po5a55W.1 0) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required either (i) for Grantor's Bouncing of a serenity interest in the Pledged Collateral pursuant to this Agreement or for the execution, delivery or performance of this Agreement by Granmr and FBC or (a) for the exerdse by Secured Parry of the rights provided for in this Agreement or the remedies in respect of the Pledged Collateral permitter to this Agreement (except as may be required in connection with such disposition by laws affecting the offering and sale of securities generally). (k) Neither the execution and delivery of this Agreement, nor the halting of any action in compliance with it, will (i) violate or breach any law, regulation, rule, order, or judicial action binding on Grenlor or FBC or any agreement m which Cm mr or FBC is a party; or (ii) result in the erection of a Had against the Pledged Collateral except that created by this Agreement. There exists no event or omission that would be a default under this Agreemrnf except for the passage of turns or the giving of notice. (1) Grantor is a limited liability limited partnership duly formed, validly existing, and in good standing under the laws of Delaware, with its principal place of business at 53 Walsh Avenue, Stommin, MA 02180. (m) FBC is a Whited Lability company duly formed, validly existing, and in good standing under the laws of Delaware, with its principal place of business as of the date hereof at IBM Tulare Street, Fresno, CA 93721. (n) Upon the transfer of the Pledged Collateral, or any portion thereaf, to my party porsumt to Section 11 below, FBC shall continue in existence and the Formation Agreement provides for such communion. (e) As of the date hereof, there are no certificates, instruments or other documents evidencing any of the Pledged Collideral. (p) Gmnmr keeps all records concerning the pledged membership wterests ul FBC and ell certificates, instruments and other writings evidencing the same at its chief executive office located at 53 Walsh Avenue, Stoneham, MA 02180. 5. Covenants. Grmtor and FBC, jointly and severally, covering and agree that from and after the date of this Agreement and until the Obligations are fully satisfied: (a) Further Docummumon: Pldee of Immumm s. At my time and from time to time, upon the written request of Secured Party, and at the sole expense of Grantor, Grantor and FBC will promptly and duly execute and deliver any and all such fuller instruments and documents and take such further actions as Secured Party may reasonably deem necessary to obtain the Rud benefice of this Agreement and of the rights and powers herein Formed, including, without limimtion, the execution and filing of my bouncing or mnlinuation stxtemmts under the Uniform Commercial Code in affect in myjuusdiction with respect to the seminty interest granted hereby and tmnsfaring Pledged Collateral to the possession of Seemed Perry (if a security interest in such Pledged Collateral ran be perfected by possession). Grantor also hereby authorizes Secured Party to file my such finanmg or combustion statement without the signature of Gramm to the extent otherwise permitted by applicable law. If any amount payable under or in connection with any ofthe Pledged Collateral shall be or became evidenced by my promissory note, conditions, or other instrument (other than an instrument which onstitutes chattel paper Boer the Code), such note or instrument shall be immediately pledged hereunder and a security interest therein hereby granted to Secured Paty add shall he duly endorsed in a manner satisfactory to Secured Party and delivered m Secured Party. (b) Priority of Lieru. Grantor will defend the dghq fide and interest himeander of Secured Party, m a first priority weirdly interest in the Pledged Collateral, against the claims and demands of all persons whomsoever. (c) Notices. Grantor and FBC will advise Secured Party promptly, in reasonable stand, (i) of any lien, security interest, encumbrance or claim made or aasstd against any of the Pledged Collateral, (it) of any distribution of cash or other property by FBC, whether in complete or partial liquidation or otherwise and of any other change in the composition of the Pledged Collateral, Gmmor m FBG, and (iii) ofthe occurrenceof any default, potential default or any other event which would have an adverse effect on the aggregate value of the Pledged Collateral or on the security interest created hereunder, including the priority therwf. (d) Continuous Perfection. Grantor will not change Grantor's time, in my mariner which might make my fimncing or continuation statement filed hereunder seriously misleading within the meaning of Section 9-506 of the Code (or my other than -applicable provision of the Code) unless Grantor shell have given Secured Party at least thirty (30) days prior written notice thereof and shall have taken all action (or made arrangements to take such action substantially simultaneously with such change if it is impossible to rake such action in advance) necessary or reassembly restrained by Secured Party to amend such fismncing statement or urn ratralionstatement so that it is act seriously misleading. Grunter will not sign or autlmrize the signing on Grantor's behalf of my finaming statement naming Counter as debtor covering all or any portion of the Pledged Collateral, except financing statements coming Secured Perry us secured party. (e) Place of Business. Groover will not change Grmmr's place of business (or, if Grantor has more than one place of business, its chief executive office), or the office in which Grmmr's records relating we the pledged membership interests are kept unless Grantor has previously nodded Secured Party thermf and talmn such action as is necessary or reammbly requested by Secured Party to cause the security interest of Secured Party in the Pledged Collateral to continue to be perfectd (0 Trmsf of AssmoTermitted Indebtedness. Except for the Gen in favor of Secured Party created hereunder, Grantor and FBC will not directly or indirectly sell, pledge, mortgage, assign, transfer or otherwise disease of or create or mR to be created my Gm, security interest, charging order or encumbrance on any of the Pledged Collateral, the FranrLlse or any other assets of FBC. other thin such Gest security interow, charging order or menumbrance on the assets of FBC (other than on the Franchise) for "Permitted Indebtedness" (as defined below). Neither Grantor nor FBC shall create, incur, assume or permit to exist my Indebtedness except Indebtedness of FBC in an aggregate pti apal amount Out careering 45% of the Fair sranissaw.i Market Value of FBC at my time outstanding (such permitted indebtedness referred to as "Permitted Indebtedness). For purposes of this Section 5(f), unsecured loans or advances m FBC from FBC's member(s) shall not be included in the foregoing calculation and shall be wosidered Pemtitied Indebtedness hereuMa only to the extent such FBC§ members have signed a Subordination Agreement in form and substance acceptable to the Seemed Party subordinating such loam or advances to the Obligations. "Indebtedness" means, without duplication, (a) ell obligations for bonowed money or with respect to deposits or advances of any kind, (b) all obligations evidenced by bonds, debentures, notes or similar irstrumenm, (c) all obligations upon which interest charges are community unity paid, (d) all obligations under conditional sale or other ride retantion agreements relating to property acquired, (e) all obligations in respect of the deferred purchase price of Property or smites (excluding current accounts payable incurtd in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holden of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property awned or acquired by FBC, wbether or not the Indebtedness secured thereby has been assumed, (g) all gumarom by FBC of Indebtedness of others, (h) all capital lease obligation, (i) all obligations. contingent or otherwise, ss an account parry in respect of letters of credit and letters of guaranty. "Fair Market Value" means the prim at wbich all or substantially all of the seeds of a business would change hands between a waling buyer and a willing sella when the former is not under any compulsion to buy and the letter is not under my compulsion to sell, both partes having seasonable knowledge of all relevem facts, including the performance of the Obligations. For purposes of this Agreement, the Fav Market Value of FBC shall equal the YI]5 million or the most recemt Appraised Value of FBC, if my, as agreed to by the Secured Parr (which shall not be unreasonably withheld, delayed or conditioned). The "Appraised Value of FBC" shall equal the Fair Marker Value of FBC as determined by KPMG, LLP or men other third -party appraiser experienced in providing Fair Marker Value appraisals of professional baseball franchises. Theme of any appraiser other then KPMG, LLP by FBC shall be subject to the prior omen of the Secured Party; which will not be unreasonably withheld or delayed- FBC shall be responsible for the mss and expenses of mysuoh appraisal. The Grantor and FBC shall within 45 days after the and of each fiscal quarter deliver to the Secured Perry a certificate signed the Chief Financial Officer of FBC (or an equivalent officer or manager) certifying to the Secured Party compliance with this paragraph 5(f) and seting fish iv ceasomble detail the Indebtedness, Permined Indebtedness mf FBC. (g) Perfamance of Oblisatiom. Gmnmr will perform all of Gnntor's obligations under me Formation Agreement prior in the time that my interest or penalty would attach against Grantor or my of the Pledged Collateral as a result of Grammes failure to perform my of such obligations, and Grantor will do all things necessary to maintain FBC as a limited liability mmpany under the laws of Delaware and to maintain Grantor's interest in FBC in full force and affect without diminution. (h) For anion Aareemrnt. Grantor will not (i) suffer or permit my ammdment, or modification of the FBC Formation Agreement without the prior wdnm coment of Secured Party; (a) withdraw as a member of FBC or (iii) waive, release, or compromise my rights or claims Grantor may have apt= my other party which arise under the Formation Agreement. Grantor will not vote under the Formation Agreernent to cause FBC to dissolve, Liquidate, merge or consolidate with any other entity or oke my other action under the Formation Agreement that would adversely sheet the security interest created by this Agreement. including, without limitation, the value or priority thereof. Grantor will not permit, ether or otherwise consent in the modification or redemption of existing interests in FBC or the issuance of my new or additional interests in FBC or options or other agreements grouting any right to receive humero in FBC. (i) MemberAareermi Without the Secured Party consent (which will not be imressonably withheld or delayed), Granmr and FBC will not enter into any shareholder or member agreement, voting must, pray agreanrnt or other agrounmt or understanding which affect or is related to the voting or giving of written consents with respect to any of the Pledged Collateral. Q) Stay or Extension Law . Grantor will not at my time claim, take, insist upon or invoke the benefit or advantage of or from my law now or hereafter in force providing for the valuation or appraiaement of the Pledged Collateral prior to my sale or sales thereof m be made pursuant to the provisions hereof or pursuant to the decree, judgment, or order of my mon of competent jurisdiction; nor, after such sale or sales, claim or exercise my right under my statute now or hemafter made or counted by my state an redeem the property so sold or my part thereof, and Grinner hereby expressly waives, on behalf of Grantor and ouch and every person claiming by, through and under Granmq all benefit and advantage of my such law or laws, and ! covenants that Grantor will not invoke or utilize my men law or laws or otherwise Nader, delay or impede the exception of any power, right or remedy herein or hereby ground and delegated to Secured Party, but will authorize, allow and permit the execution of every such power, right m remedy as though m such law or laws had forest made or enacted. (k) Delivery of C licatrs. Grantor agrees (i) immediately to deliver to Secured Party, or Seca el Party's designee, all certificates, instruments or other documents evidencing my of the Pledged Collateral which may at my time mine into the possession of Grantor and (it) to execute and deliver a notice of Seemed Party's security interest in the Pledged Collateral (which notice shall be satisfactory to Semorad Party in form and substance and which may request acknowledgment fiom the addresses) m my third party which either has possession of the Pledged Collateral or my cenifioutes evidencing my of the Pledged Collateral or otherwise has the ability under applicable law or the tams of my agreement to record monsfers or mmfer ownership of my of the Pledged] Collateral (whether Y the direction of Grmmr or otherwise). Grantor hereby upfront Sawed Party as Grantor's attorey-in-fact, with authority at my time or times m mks my of the foregoing actions on behalf of Grmmr. Grantor items that lips Agreement or a photocopy of this Agreement shall be sufficient as a financing statement. (1) FBC's Records. G for shall cause FBC to make a notation on the records of FBC indicating the security imaean granted hereby. (m) Uncertificated Simon ..Ifet my time the Pledged Collateral wvatitutes e"security" as def ed in Article 8 of the UCC, Grantor shall, or shall permit Secured Perry to, Promptly take all action necessary or appropriate to cause Secured Perry to have sole and exclusive "control^ over the Pledged Collateral, as such term is defined in Article 9 ofthe UCC. (n) Dearness of FBC. A to the business conducted by FBC, Granter and FBC covenant and agree: (i) to ensure that FBC's business is conducted efficiently and without voluntaryinterruption. (ii) to ensure that all necessary anion is taken to preserve all rights pdvilega and franchises held by FBC. (iii) to ensure that FBC's business property is kept in good repair. fi. Grassi Powers (a) So long as an Event of Default shall not then exist, Grantor shall be the sole party armed (i) to exercise for my purpose coy and all (A) voting rights and (B) powers, and (ii) to relive arty and all payments, dividends, distributions or other proceeds of any kind in each case arising from or relate; to the Pledged Collateral; provided howler that Grantor shall not exercise such rights or powers, or consent to my action of FBC that would be in contravention of the provisions of, or commute an Event of Default miler, this Agreement, the Sublease Agreement. the Non -Relocation and Continuous Operation Agreement or the Parking Agreement;mpravr ded,further that prior to GranmPs voting of the Pledged Collateral for the following purposes, Greater shall obtain and file with the General Panner of Grantor the Secwed Party's written consent, which shell be given at Secured Party's reasonable disdains an (i) merge, wrasohdate or dissolve FBC, (u) sell all, or substantially all, of me nuts of FBC, or (fit) do anything which would have the effect of impairing the position or interest of Secured Party with respect in the Pledged Collateral or which would alter the voting rights with respect to the membership interests of FBC, or be inconsonant with or violate any provisions of this Agreement. (b) Until an Event of Default occurs, Secured Party is not allowed to remise any nghm against the Pledged Collateral (other then such rights as are necessary to perfect Secured Party's security interest in the Pledged Collaeral). Subject to the immediately proceeding sentence, upon the occurrence of an Event of Default, unless Secured Party designates in writing to Grantor to the contrary, all rights of Granmr provided in Section fifa) hrwf shall cease, and all voting rights =d powers and rights to distributions included in the Pledged Colldsal or otherwise desembed in such Section dial shall thereupon become vested in Secured Party, and Secured Petry shell thereafter have the sole and exclusive right and authority on exercise such voting rights and powm. Garter shall execute such documents and instruments, including but not limited m, statements that Grater m longer has the right to as as a member or otherwise relating to such change u Secured Parry may request. Grmmr agrees that FBC and my member in FBC may rely conclusively Won my notice from Secured Perry than Secured Party has the right and authority to exercise all rights and powers of Grantor under the Formation Agreement. Grantor irrevocably waives my claim or cause of action against FBC or any member in FHC who deals directly with Seemed Party fallowing receipt of such notice Goma Seemed Party. 7. Secured Pam's Appointment as Attorney -in -Fact. (a) Grantor hereby irrevocably consomtes and appoints Secured Party with full power of substitution, as Grantor's we and lawful money-m4act with full irrevocable power and authority in the place end stand of Grantor and in the Blame of Greater or in such altamey-in-t ct's own name, from time to time in the discretion of each such anomey-in-fact fallowing the ommumme of an Event of Default, forthe purpose of carrying am the terms of this Agreement, to take any and all appropuate action and to exeme any and all dorm err s ad monuments which may be necessary to accomplish the purposes of this Agreement and, without fuaitin; the gmemlity of the foregoing, hereby gives each such amwcwy-i-fact the power and right, from and after an Event of Default, on behalf of Gunter, without notice m or assent by Gmmmq to do the following. (i) to collect and otherwise rake possession of and title to my and all distributions of cash or other property due or distributable at my time after the dare hereof to Greater as a member from FBC, whether in complete or partial liquidation or otherwise, and to prosecute or defend my ration or proceeding in my court of law or equity and to convert my non -rash distribufiom to crib, and to apply my such cash distributions, interest or proceeds of conversion in the counter specified in Section l lid) ofthis Agreement; i (u) to ask, demand, collect, receive and give acceptances and receipts �f for my and all moneys due and to became due under my Pledged Collateral and, in the came of Grantor or such anomey-in-fact's own name or otherwise, to take possession of and endorse and collect my checks, drafts, nota, mceptnces or other insrmro mer for the payment of moneys due order my Pledged Collmeral and to file my claim or to take my other moon or proceeding in my court of law or eptaty or otherwise comet appropriate by such enomey-in-fact for the purpose of collecting my and all such moneys due under my Pledged Collateral whenever payable; (in) to pay or discharge taxes, liras, security interests or other encumbrances levied or placed an or threazmd against the Pledged Collateral; and (iv) (A) to direct my pray liable for my payment under my of the Pledged Collateral to make payment of my and all moneys due and to become due thereunder directly to Secured Party or as such enomey-in-fact shall drs ct (B) to receive payment of and receipt for my and all moneys, claims and! other amounts due and to became due at my true in respect of or causing out of my Pledged Collateral; (C) in commmce and prosecute my Bib. actions or pdceedivgs at law or th equity in. my court of competent jmisdicuoa to collect the Pledged Collateral or my Portion thereof and to enforce my other right is reopen of my Pledged Collateral; (D) to defend my suit, action or proceeding brought apeman Grantor with respect to my Pledged Collateral; (E) to smile, compromise or djusr my suit, action or proceeding described above and, in connection therewith, to give such discharger or releases w such anomey-tier-fact may dem appropriate; and (F) generally to sell, hansfer, pledge, make my agreement with respect to or otherwise deal with my of the Pledged Collateral as fully and BM565559.I completely as though such attomey-in fact were the absolute owner thereof for all purposes, and to do, at the option of such attorney-in-fact at Grantor's expense, at any time, or tram time to time, all sots and things which such attorney-in-fact reasonably deems necessary to proud, preserve or realize upon the Pledged Collateral and the security interest of Segued Party therein, in order to effxt the intent of Ws Agreement, all as fully and eff Lively es Grantor might do. Grantor hereby ratifies, to the extent permitted by law, aE that said attomey shall lawfully do or cause to be done by virtue hereof This power of attorney is a power coupled with an interest and shall be irrevocable. (b) The powers conferred on Secured Party hereunder are solely to protect the intereat On the Pledged Collateral of Secured Party and shall not impose any duty upon any such attomey-m-fact to exernse any such powers. Such attorney-in-fact shall be accountable only for owls that it actraly receives as a reach of the exercise of such Powers and neither it nor any of onot5cera, duccans, employees or agents shall be responsible to Grantor for any act or failure to ad ureas such action or failure to ad consulates gross negligence. (c) Grantor also authorizes Secured Party at my time and from time to time upon the occurrence of my Event of Default. to immune, in connection with the sale provided for in Section 11 of this Agreement, my errdorsemrnts, assignments or other Instruments of conveyance or trmsfer with respect in my of the Pledged Collateral. S. DisMbutions. Following an Event of Default, Grantor hereby grants Secured Perry full irrevocable Power and authority to receive and hold 9 any such time cash and non-cash distributions by PBC on account of my of the Pledged Collateral (together with ell interest, if my, eamed thereon), which may be held free and clear of the liens created hereby, and to convert my such non-cash distributions to cash, and to apply any such cash distributions. interest or proceeds of conversion in the mama specified in Section l l(d) ofthis Agceemrnt. 9. Performance by Secured Pam of Grantor's Obligations. If tremor fails to perform or comply with my of Gmnbr's agreements contained herein and Second! Party as provided for by the terms of this Agreement, following written notice to Grantor, shall itself perform or comply, or otherwise cause performance or compliance, with such agreement, the expemes of Seamed Party incurred in connection with such performance or compliance, together with interest thereon a the rate of 7%, shall be payable by Grantor to Secured Party on resound and shall constitute Obligations secured hereby. 10. Default. Any of the following shall constitute an "Event of Default" hereunder: (a) A failure by Grmor or FDC o observe or perform my obligation. covenam, condition, or agreement hereof to be performed by Contra or FBC which involves the payment of money for a period of five (5) days after woman notice from Secureil Parry is received by Grantor, (b) A failure by Gmnor or FBC to observe or perform my immortality, obligation, covenant, conlition, or agreement hereof to be perfumed by Grantor or FBC (which is not otherwise included in Section I0(a) (y or Co which is Out cured within thirty (30) days srnss5sw.1 SOU written notice thereof to Gra llm,, provided that if such failure is capable of ewe but cannot be cured within such 3May period no Event of Default shall mew so long as Grmmr or FBC, as applicable, is diligently attempting to cure and does so within ninety (90) days after written notice of such failure to Greater, (c) Any representation or warranty made by Grantor or FBC in this Agreement is not tare and correct in my material respect as of the time made; (d) The occurrence of my `Event of Default," breach or default under the Sublease Agreement, the Nan -Relocation and Continuous Operation Agreement or the Parking Agreanrnt beyond all applicable grace or creative periods provided therein; (e) The =slim of any time, security borrow, charging order or encmnbrence on the Pledged Collateral, the Franchise or the other assns of FBC in breach of Section 5(f) above, or the making of my levy, serous or attachment thereon, that is not cured within the time period set forth in Section I*) above; (f) The suspension for more don thirty (30) consecutive days, termination or liquidation of the business of Granmq or (g) The dissolution, teminabon of existence or insolvency of Grmmr, the appointment of a receiver of all or pan of Gramm's more. Grantor's assignment for the benefit of creditors, or the commencement of a proceeding under a bankruptcy or insolvency law by or against Grantor, provided, however, that with respect to the commencement of my involmuni bankruptcy or insolvency proceeding against Greater, no Event of Defeult shall have omuned if such proceeding shall be dismissed or discharges within the time pound set forth in Section 10(b)above. 11. Remedies. Willits Upon Default. (a) Upon the occurrence of my Evenl of Default, Secured Party or Secured Part's designee may, at Secured Party's option, elect to become a substimted member in FBC with respect to the Pledged Collateral oud Grantor shall execute or muse to be mounted ell docmm®is necessary m cv dmce Secured Pmy so becoming a substituted member- If my Evmt of Default shall occur, Secured Party or Sawed Party's designee may, at the time of such Event of Default or my time thereafter, declare FBC in default or breach of the Sublease Agreement Ne parking Agreement and the Non-Relocmon and Continuous Operation Agreement and may exercise in addition to all other rights and remedies grouted to Secured Party in this Agreement the Sublease Agreement the Parking Agreement and the Nov -Relocation and Continuous Operation Agreement and in my other announced or agreement searing, evidencing or relating in the Obligations, all rights and amedies of a secured pay wider the Code. Without limiting the generality, of the foregoing Grantor expressly agrees that in my such event Secured Perry, without demand of perfonvance or other demand, advertisement or notice of my (rind to or upon Gmnmr or any other person (all and each of which demands, advenisemmis and/or notices we hereby expressly waived except the notice specified below of time and place of public or pnvate sale), may forthwith collect receive, appropriate and realize open the Pledged Collateral, or my pan thereof, and/or may forthwith sell, assign, give option or ophom to purcbme, or sell or SRRBsw9 I otherwise dispose of and deliver said Pledged Collateral (or contract to do so), or any part thereof, at public or private sale or sales, at any exchange or broker's board or at any of Secured Party's offices or elsewhere at such prices as it may deem bat, for cash or an credit or far future delivery without the assumption of any credit risk Gmann expressly micnowledgeothat private Was; maybe less favorable In a seller then public sales but that private sales shall nevertheless be deemed commercially reasonable and otherwise permitted hereunder. In view of the face that federal and slide securities laws and/or other applicable laws may impose certain restrictions on the method by which a sale of the Pledged Collateral may be effected, Grantor agrees that upon the occurrence of an Event of Default Secured Party may, from time to time, attempt to sell all or any part of We Pledged Collateral by mean of a private placement, restricting the prospective purchasers to those who will represent and agree that they are purchasing for inve anent only and not for distribution and who otherwise satisfy all of the require nenas of applicable federal and state securities laws. In so drug, Secured Party may solicit offers to buy the Pledged Collateral, or any part thereof, for cash, from a limited number of investors denied by Sinned Party in its judgment, an be financially responsible parties who might be interested in purchasing the Pledged Collateral, and if Savml Perry solitus such offers, Wen the acceptance by Secured Party of the highest offer obtained therefrom shall be deemed to be a commercially reasonable method of disposing ofthe Pledged Collateral. Upon the occurrence of any Event of Default. Secured Party or Secured Party's designee shall have the right upon any public sale or sales contemplated in We immediately proceeding paragraph, mill, to the extent permitted by law, upon my such private sale or sales contemplated in the immediately Proceeding paragraph, to purchase the whole or any part of said Pledged Collateral so sold free and clear of all liens, free of any right or equity of ademption, which Nudity of redemption Grantor hereby releases. Greater further agrees, at the request of Secured Party, to deliver to Secured Party or any purchaser or purchasers of We. Pledged Collateral any egreemmts, instruments out other documents evidencing or relating to the Pledged Collateral. Grantor further agrees, at the request of Secured Party, to deliver to Secured Party or any purchaser or purchasers of We Pledged Collateral any agreements, instruments and other documents evidencing or relating to the Pledged Collateral. Secured Party shell apply the net proeeed of any such collection, recovery, rxeipt, appropriation, realization or sale u provided in Section I1(d) of this Agreement. Daly after an applying such net proceeds and after We payment by Secured Party of any other remount required by my provision of law, including Section 9-608(a)(IxC) of We Cade, need Secured Party account for We surplus, if my, to Grantor. To We extent pnmined by applicable law, Gratin waives all claims, damages, and demands against Secured Party arising out of the repossession, retention or sale of Ne Pledged Collateral. Grantor agrees that Secured Perry need not give more then can (10) days' notice (which notification shall be domed given when delivered on an overnight touter basis (i.e., Italian] express or similar service, receipt acknowledged, addressed m Greater al Grantor's address referred to in Section 13 heeot) of the fime and place of my publicsale or of the time after which a private sale may take place and that such notice is reasonable notification of such ma[teR. (b) Gmnmr also agrees to pay all costs of Sinned Party, including reasonable attorneys' fees and expenses, incurred with respect to We nforcemmt of any of Secured Party's rights hereunder. mFour" 1 (c) Counter hereby waives presentment, demand, or parted (to the extent permind by applicable law) of any kind in connection with Ws Agreement or any Pledged Collateral. Except for notices expressly provided for herei , Granter hereby waives notice (to Ne extent permitted by applicable law) of any kind in connection with ths Agrament. (d) The proceeds of any sale, disposition or other realization upon all or my part of the Pledged Collateral shall be distributed by Secured Party in the following order of Priorities: first to Secured Pany in an amount sufficient te pay in full Ne expenses of Secured Party in connection with such sale, disposition or other realization, including all expense, liabilities and advances incurred or made by Served Party in correction therewith, including reasonable attorneys' fees and expenses; sewn to Secured Party unfil the other Obligations are Paid in full; and final y upon payment in full of all of the Obligations, to Granter, or then repreentative or as a court of competent jurisdiction may direct. Except for Secured] Party's gross negligence or willful misconduct, Grantor agrees W indemnify and hold harmless Secured Party, its elected or appointed officials, employees and agents, and each of Nem, from and against any and at lisbilitie, obligations, claims, damages, or expenses incurred by my of Nem arising out of or by reason of entering inte this Agreement and to pay or reimburse Secured Party for the few and disbursements of counsel incurred in , iserection with my investigation, litigation or other proceedings (whether or not Secured Party a party thereto) arising out afar by reason of any of the aforesaid. Any amounts properly due under this Section I I shall be payable in Seemed Party immediately upon demand'. 12. ]Ltarmationa on Secured PD W Respect of Medved CanisteraL Except as expressly provided in the Code, Secured Party shall have no duty as to my Pledged Collateral in its possession or conuol or in the possession or control of my agent or aomina of Secured Party or as to my income thereon or as to the preservation of rights agamont prior parties or my other rights pertaining thereto. 13. Role of Malor I,eamm Dumb W. (a) Grantor reprosen6 and warrants to Secured Party that: Grmtor's execution and parformanwofthis Agreement has ben approvedby the President ofthe National Association of Professional Baseball League, Inc. teed by the Board of Directors of Ne Pacific Cont League of Professional Baseball Clubs, bit. (and reviewed by the Bwrball Offcc of the Commissioner) to grant a security interest of a"Control Interest." as defined by Rule 54 of Ne Major League Rule (which are incorporated by ref in the Pirfiessioned Baseball Agreement), m a Minor Leger Baseball club. (b) Notwithatanding my other provision of this Agreemnt to the comary, Secured Party agrees N be bound by the Major Lague Rule Regarding Regulation of Minor League franchises (the "Rule"), Secured Party acknowledge that the Rule does not permit a Minor League Baseball club to pledge its. franchise as security for my indebtedness and require SlP108555a. that a "Control Interest" trasfeq as defined in the Rule, in such club is subject to the prior review and approval of the Board of Directors of the Pacific Coast league of professional Baseball Clubs, Inc. and the President of Ne National Association of Prnfcssimud Baseball Leagues, fracand prior review of the Baseball Office of Ne Commissioner in their sole and absolute discretion Accordingly Secured Party acknowledges that such approval for a transfer of Control Interest in the club would be required by any foreclosure, sale or varuf of the Pledged Collateral In a third party as well as to the Secured Perry. Secured Party shall i mediately notify the President of the Peo fic Coast League of Professional Baseball Clubs, Inc., the President of the National Association of Professional Baseball Leagues, Inc. and Inc Baseball Office of the Commissioner of airy Event of Default under my Obligation secured by this Ate arsenr. Secured Party admowledgo that any temporary or pmnanmt management of the Pledged Collateral by the Secured Perry or my receiver or trustee shad] he subject to the prior approval of the Board of Directors of the Pacific Coot League of Ptofessioned Baseball Clubs, Inc., and the Problem of the National Association of Professional Baseball Leagues, Inc. and the review of the Baseball Offta of the Commissioner, in their sole and absolute disarmer. hi the vent Nat Seemed Perry desires to operate the Franchise for its own account on a temporary or permanent basis, Secured Parry shall obtain the prior written approval of the President of the National Association of Professional Baseball Leagues, Inc. in acceinhowat with the Rule. Nothing contained in this Section shall be darned to limit the obligations of the Greater to the Seemed Party miter any agreement and the rights of Seemed Perry thereunder whick in either case, are not inconsistent with the provisions of this Section. Any requirements of this Section or this Agreement which require Secured Party to seek and obtain any approvals of Inc President of the National Association of Professional Baseball Leagues, Inc,, or any other third party to operate the Franchise or perfect Scored Party's security interest in Inc Pledged Collateral shall be at the sole and absolute expense of Grantor. 14. Notices. Any notice or other communication required or permitted m be given shall be in writing addressed to the respective party as set forth below and may be personally served, by telefax or sent by overnight mutter and shall be deemed give® (a) if served in person, when served; (b) if telempied, on the date of transmission if bef a 3:00 p.m. (California time) on a business day; provided, that a hand copy of such notice is also sent pursuant ro clause (c) below; or (c) tfby overnight counts service, receipt ackmwledged, on the fifth (S°) day atter deposit with such service. If to Grantor: Fresno Baseball Club, LLLP 53 Walsh Avenue Stoneham, MA 02180 Attention: Christopher P. Cummings Copy To. Carlton Fields, P.A. One Progress Plata 200 Central Avenue. Suite 23M Sc Pmmsbm& Florida 332014352 Attention: Bev 1. Bayes, Esq. If 0 Secured Party: CityofFremis 26W Fresno Street Fresno, California 93721 Attention: City Manager Any party may change its respective address for the giving of notice to mother address by giving at least 10 business days' notice ofsuch chmge. 15. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to suchjurielictiort be ineffective W the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof used any such prohibition or unenforceability in my jursdidion shall not invalidate or render unenforceable such provision in my otherjunsdiction. 16. No Waiver: CumWative Remedies. Secured Patty shall not. by my on, delay, omission or otherwise, be deemed m have waived my of its rights or remedies hermoder. No waiver hereunder shall be valid adess in writing signed by the party to be charged with such waiver and then only to to extent therein set forth. A waiver of my right or remedy hereunder on my one occasion shall not be construed as a bar to any right or remedy which Sawed Perry would otherwise have had on my fume occasion. No failure to exercise nor my delay in exercising on the part of Secured Party my right, power or privilege hereunder shall operate as a giver thereof, nor shall my single or partial exercise of my right, pow" or privilege hereunder preclude my other or from: exorcise thereof or the examine of my other right, power or privilege. The rights and remedies hereunder sod under the Sublease Agreement, to Pinking Agreement and the Nom Relocation and Continuous Operation Agreement aro cumulative and may be exercised singly or concurrently, and are not exclusive of my rights and remedies provided by law. Seemed Pony may resort to and rwliu on to Pledged Collateral simultaneously with any am or proceedings ivtlatd by Secured Pony in its sole and conclusive discretion to resort to or realize upon my other women of repayment of the Obligations, including, but not limited w, collateral granted by other security agreements and the personal liability of Greater and any person or exporation which has guaranteed repayment of the Obligations. None of the terms or provisions of this Agreement may be waived, shard, edified or amended except by an instrument m writing, duly exauted by Grantor and Secured Pant. 17. Successors and Assienr Governing Law. This Agreement and all obligations of Coantor hereunder shall be binding upon the successors and assigns of Grantor. All rights and remedies of Soured Party hereunder shall more to the befit of Secured Party and its successors and assigm. This Agreement she] be govemd by, and be construed and mouprdd in acordance with, the laws of the State of California. Neither this Agreement nor anything ad fart herein is intended to, n" shall it, confor my rights on any person or entity other thm the parties hereto and all third party rights we expressly negated. 18. TerMnatlrn. This Agreement, and the assignments, pledges and security interests created or grmtd hereby, shall terminate when FBC completes performance of all Obligations to Seemed Parr. Upon nomination, Secured Party shall release and reassign (without recourse upoq or my warranty whsnol:ver by, Seemed Party), and deliver to Grantor all Pledgd Collateral and related documents then in the custody or possession of Secured Party, SIIN085519.1 including termination statements under the Code, ali without recourse upon, or warranty whataoever, by Secured Party and at the cost and expense of Grantor. 19. Iaiunctive Relief. Grantor recognizes that in the evert Grantor fails to perform, observe or discharge any of Grantor's obligations hereunder, no remoy of law will provide adequate relief to Secured Part, and agrees that Secured Party shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving' school damages. 20. Release of Grantor or FBC. Without notice W Grantor or FBC, Secured Party may release Grantor or FBC, or any monism, guarantor, or any other collateral security given to secure the obligations of Grantor or FBC. 21. Waiver of Subroeation. Contour shall have no rights of subrogation as W any of the Pledged Collateral until full and complete performance and payment of the Obligations 22. Deleted. 23. Conuutlo Jurisdiction. GRANTOR HEREBY CONSENTS TOME JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF FRESNO, STATE OF CALIFORNIA AND IRREVOCABLY AGREES THAT, SUBJECT TO SECURED PARTY'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. GRANTOR EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. GRANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON GRANTOR BY OVERNIGHT COURIER SERVICE, ADDRESSED TO GRANTOR, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME HAS BEEN SENT 24. Subordination and Release. All indebtedness now or hereafter owing by FBC to Grantor for borrowed money or otherwise is hereby subordinated to the payment in fall of the Obligations, and subsequent to a default under this Agreement or the Sublease Agreement, to Parking Agreement or the Non -relocation and Continuous Operation Ageement, Grantor shall not accept payment of all or any portion of such subordinated indebtedness, and if any such Payment is made to Grantor, Grantor shall receive such payment w trust for the benefit of Secured Party and shall pmmptly pay over such payment to Secured Party. If Secured Party succeeds to the interest(s) of Granter in FBC, any and all obligations of FBC W Grantor, whether in its capacity as a member of FBC or otherwise (including, without limitation any indebtedness of FBC to Grantor and any obligation of FBC under the Formation Agreement or applicable law to indamify Grantor) and whether arising before, on or after the data $armed Party succeeds to the interest of Grantor, shall be imine lately released and discharged and FBC shall have no furtherobligations or liabilities whatsoever to Grantor. mvasassm., 25. Liability of Gvntor Not Affected. This Agrecsnent shall amount in fall force and effect without regard to, and shall not be released, discharged or affected in any way by, any cirtmnstanecs or condimn, including, without limitation: (a) the attempt or the absence of my attempt by Securml Party to obtain payment or performance by FBC or any other Grantor; (b) Secured Party's delay is enforcing the Obligations our the obligation of Say other parry under the Sublease Agreement,the Parking Agreement or the Non -relocation and Continuous Operation Agreanent, or my prior partial exercise by Secured Party of any right or remedy hereunder or under the Sublease Agreement, rhe Parking Agreement our the Non - relocation and Continuous Operation Agreement; (c) my renewal, extension, substitution, modification, replausi mt of or indulgence with respect to, my indebtedness, liabilifia, or obligations under the Sublease Agreennent, the Parking Agreement or this Non-relombon and Continuous Opmrmon Agrarian (collectively, "FBC's Obligations'), all of which Secured Party is hereby authorized to make; (d) the fact that FDC may not be liable for the payment or perfonrmmce Of FBC's Obligations, or my portion therm$ for my reason whatsoever, (e) my sale, exchange, release, surrender in other disposition of, or realization upon, my collateral searing FBC's Obligations, or my settlement or compromise of my guaranties of FBC's Obligations, or my other obligation of my person or unity with respect w the Sublease Agreemaq the Parking Agreement our the Non -relocation and Continuous Operation Agreement: (f) the acceptance by Secured Perry of my additional security for FBC's Obligations; (g) the failure by Seared Party to take my steps to perfect, Museum, or enforce its remedies under the Sublease Agreement. the Parking Agreement or the Nom relocation and Continuous Operation Agreement, or to preserve its rights to or protect any security or mBateral for FBC's Obligations; (h) the Ink of validity our enforceability of, or Secured Party's waiver our consent with respect to, my provision of my instrunmt evidmcin& searing in othaw'has relating to FBC's Obligations, or my part thereof, (i) my wluntary at involuntary, bankruptcy, insolvency, remgaoieation, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, Liquidation, marshaling of assets and liabilities or similar event or proceedings with respect in FBC or Gerona, as applicable, or my of their respective properties (each, an "Inwlvaey Protecting"), or my action taken by Secured Party, my wnec or receiver m by my court in my such proceeding Q) the failure by Second Parry to file or enforce a claim against the Same (either in an Wolv(Sncy PrOCCe ing or other proceeding) of FBC or Grantor: "Sass" 1 (k) in my Insolvency Proceeding under Title 11 of the United Stat® Code (I I U.S.C. Section 101 et seq.), = amended (the "Bankruptcy Code"): (i) my elation by Seemed Party under Section I I I I(b)(2) of the Bankruptcy Code, (ii) my borrowing or grant of a security ancient by FBC as debtor-in-possession cods Section 364 of the Bankruptcy Code, (iii) the nobility of Secured Parry in enforce FBC's Obligations against FBC by application of the automatic stay provisions of Section 362 of the Bankruptcy Code, or (iv) the disallowance, order Section 502 of the Bankruptcy Code, of all or my portion of Secured Party's clams) against FBC for repayment ofFBC's Obligations; 0) the failure of Omntor to receive notice of my mounted disposition of my collateral (other then the Pledged Collateral) for my of FBC's Obligations; (m) my merger or consolidation of FBC into or with any orbs entity, or my sae, lease or hmsfc ofany of the assess of FBC.or Grantor to my other person or unity; (n) my change in the ownership of MC or my change in the relationship between FBC and Grimoq or any termination of my such relationship; (o) the dissolution or other change. in the status of FBC or Grantor, (p) the absence, impairment or loss of my tight of reimbursement or subrogation or othci right or ranedy of Grantoq (q) my modification, ammdmmt, release or waver of the tuns of the Sublease Agreement, the Padrivg Agreement or the Non -relocation and Continuous Operation Agreement; and (r) my other circumstance which might otherwise emotions a legal or equitable discharge or defuse of FBC or Grantor. Grantor hereby expressly waives and surtmdem my defuse in its liability under this Agreement based upon my of the alts, omissions, agreements, wavers or matters era hutch above in clauses (a) through (r) on this Section, whether or not Granbr had notice or knowledge claims. It is the purpose era intent ofthis Agreement that the obligations of Grantor heremds shall be absolute and couvditiona mderany and all chcumsumes. 26. Mithos of Seared Parlv. Seared Party is hereby authorized, without notice to or demand of Granmr and without affecting ted liability of Grantor hnrewder, to make my of the following actions from time to time: (a) inmmse or decrease the amount of, or anew, extend, accelerate or otherwise charge the time for payment of, or other terms relating to, FBC's Obligations, or otherwise modify, amend or change the terns of my agreement evidencing, standing or otherwise relating to my of FBC's Obligations; (b) most and apply my payments on or recoveries against FBC's Obligations fium any source, and my pmads of my sminnty therefor, to FBC's Obligations in such moment, order and priority m Secured Party my elect in its sole discretion; (C) take, hold, sell, release or otherwise dispose of all or my security for FBC's Obligations; (d) settle, release, compromise, collect or otherwise liquidate FBC's Obligations or my portion thereof, (e) serum, hold, substitute, add or release my other Agreement or endorsements of FBC's Obligations; and (0 upon the thJure of FBC to pafotm srrasrssssI any of FBC's Obligations, appropriate and apply toward payment of MC's Obhgat o w my indebtedness due or to become due from Secured Patty to Grantor. 27. Grmtorb Waivers. (a) Election of Remedies. Grantor inevocably waives my defense based upon an election of remedies made by Secured Party or any other election afforded to granted Party pursuant to applicable law, including without limitmern, (i) any election to proud by judicial or nonjudicial foreclosure or by Caribbean Commercial Code sale or by dead or assignment in ban thereof, or my election of remedies which destroys or otherwise imp rm; the subrogation rights of Grmtor or the rights of Gramm to proud against FEC for reimbursement or both, (ii) the waiver by Secured Perry, either by action or inaction of Secured Party or by operation of law, of a deficiency judgment against PBC, and (iii) my election pumumt m m Insolvency Proceeding. (b) Demands and Notices. Except as provided in thus Agreement, Grantor urevocably waives all presrntmenm, demands for petforurance, protests, rich= of protest, entices of dishonor, notices of mceptmce of this Agreement and of the existence, common or incurring of new or additional FBC Obligations, nnticcs of defaults by FEC or any other Person liable for FBC's Obligations and demands and notices of every kind Naz may be required m be given by my starum or rule or law. (c) FBC Information. Grantor irrevocably waives (i) my duty of Seemed Party to advise Grantor of my information known to Secured Party regarding the drained condition of FBC (it being the obligation of Grantor to kap informed regarding such condition) and (ii) my defense based on my claim that Grantor's obligations exceed or are more burdensome then Nose of FBC. (d) Limitation of Liability. To the extent permitted by law, G ftw nrvorably waives any impairment modifimfion. change, relesseor Ilmitmion ofthe liabilityof. or sav of actions or lien enforcement proceedings agamaS FBC or Grantor, then property, o their estate in bankruptcy, restating form Ne opeoufien of my provision of the sham or federal bankruptcy laws, or from the decision of my court. (e) Lack of Whichco. Grantm irrevocably waves my toed all claims cr defenses based upon lack of diligence he (i) collection of my FBC Obligations; in (u) protection of my collateral or other security far FBC's Obligations. (f) Smnu of FBC. Counter inrrowbly waives my and all alarms or defeues based upon the lack of authority of FBC. (g) Consideration. Grantor iffevocably waives my and all claims or defenses based upon the lack of or indcquam consideration for this Agreement. (h) Revocation or Repudiation. Grmtor irrevocably waives my and ell claims or defenses based upon the revocation or repudiation herself by Grantor or the revocation or repudiation of the Sublease Agreement, the Parking Agreement or the Non -Relocation and Continuous Operation Agreement by FBC. srsasr>sw., (i) Unmforemblty. Grantor hrevocsbly waives any and all claims or defenses blood upon the unenforceability or whole or in part of the Sublease Agreement, the Parking Agreement or the Non-Relostion and Continuous Operation Agreement. 6) Risks to Grantor. Granter irrevocably waives my and all claims or defenses based upon any acts or emissions of Secured Perry relating to or in comectiom with he Sublease Agreement, Parking Agreement or Non-Relostion and Continuous Operation' Agreement which vary, increase or decrease the risk on Ganmr. (k) Offset Ril bts. Grantor irrevocably waives any and aB claims or defenses relating to the enforceability of this Agreement or its obligations haeumder based upon a right to offset by Grantor against any obligation now or hereafter owed to Grantor by FBC. 0) Oblieations of a Surety. Guntur irrevocably waives any and all claims or defenses based upon any sante or rule of law which provides that the obligation of a smarty must be neither larger in amount nor ur any other aspects more burdensome than that of be principal obligor. (m) Bankruptcy Code. Grantor irrevocably waives any and all claims or defemses based upon Samoan Party's election, in any proceeding instituted under the Bankruptcy Code, of be application of Bankruptcy Code Section I I I I(b)(2) or any successor statute and any borrowing or any grant of a security interest under Bankruptcy Code Section 364. (n) Other Counters. Grantur irrevocably waives any other defenses, set-oB's or mwterelalms which may be available to FBC or my other grantor if there is more than one, and any and all other defense now or at any time hereafter available to Grantor (including without limitation those given to somans) at law or is equity. Without limiting the generality of the foregoing, to the extent applicable, Grantor also waives (i) my defense based upon Secured Party's election to waive its bra as to all or my smmity for the Obligations purnmt to California Code of Civil Procedure ("CCP") Section )26.5 or otherwise, and (ii) my and all benefits which might otherwise be available an Guarantor mom California Civil Code ("Civil Code") 2787-2855, 28W and 3433, including without limitation, my and ell rights or defenses Grantor may have by reason of protection afforded to the principal with respect to my of the Obligations ser both heron or to my other guarantor, deny, of the Obligations set food herein, pursuant to the anti -deficiency or other laws of the sate of California limiting or discharging the principal's indebtedness or such other tormentor's obligations, including without tormentor, CCP Sections 580a, 580b, 5804 or 726. 28. Additional Cal ferma Waivers. Grantor understands and acknowledges Rte if Secured Party forecloses Judicially or nonlodicially egarment my real property actually for the Obligations, that foreclosure could impair or destroy my ability that Gunter may have to seek reimbursement, contribution or indenutifiation fiom FBC or others based on my right Grantor may have of subrogation, reimbursement, umtr)bution or indernmi cation for the value of the Pledged Collateral miler this Agreement Grantor funkier understands and acknowledges that in the absence of this provision, the potential impairment or destruction of Grantor's rights, if my, may winds Grantor to assert a defense to this Agreement based on CCP Section 5804 as sassusw.I interpreted in Union Bank vs. Gradsky. By oncoming Nis Agreement, Grantor freely, irrevocably and unconditionally. (a) waives and relinquishes that def S and nares Net Grantor will be fully liable under this Agreement, even though Secured Perry may foreclose judicially or nonjudicially against my real property semrity for the Obligations; (b) agrem that Grantor will not anent that defense in any action or proceeding Nat Secured Puny may commence to enforce this Agreement; (c) acknowledges and agrees that the nglits and defenses waived by Grantor under Nis Agreement include any right or defense that Grantor may have or be entitled to assert based upon or arising out of any one or more of the following: (i) CCP Sections 580x, 580b and 5804, or 726, or (ii) Civil Code Section 2848; and (d) acknowledges and agrees that Secured Party is relying on this waiver in converting b the transfer and assignment td FBC of ell rights, title and interest in and to the Sublease Agreement, flue Perking Agreement and the Non -Relocation and Continuous Operation Agro nrnt, and that Nis waiver is a material Pmt of the consideration that Secured Party is receiving for such cogen. WITHOUT LMTING THE FOREGOING, GRANTOR WAIVES ALL RIGHTS AND DEFENSES THAT GRANTOR HAS BECAUSE FBC'S OBLIGATIONS MAYBESECUREDBYREALPROPERTY. THIS MEANS,"ONG OTHER THINGS: (i) SECURED PARTY MAY FORECLOSE ON THE PLEDGED COLLATERAL OR ENFORCE SECURED PARTY'S RIGHTS AGAINST GRANTOR HEREUNDER WITHOUT FIRST FORECLOSING ON ANY REAL OR PERSONAL PROPERTY COLLATERAL PLEDGED BY FBC; AND (ii) IF SECURED PARTY FORECLOSES ON ANY REAL PROPERTY COLLATERAL PLEDGED BY FBC: (A) THE AMOUNT OF THE DEBT MAY BE REDUCED ONLY BY THE PRICE FOR WHICH THAT COLLATERAL IS SOLD AT THE FORECLOSURE SALE, EVEN IF THE COLLATERAL IS WORTH MORE THAN THE SALE PRICE; AND (B) SECURED PARTY MAY FORECLOSE ON THE PLEDGED COLLATERAL OR ENFORCE SECURED PARTY'S RIGHTS AGAINST GRANTOR HEREUNDER EVEN IF SECURED PARTY, BY FORECLOSING ON THE REAL PROPERTY COLLATERAL, HAS DESTROYED ANY RIGHT GRANTOR MAY HAVE TO COLLECT FROM FBC. THIS IS AN UNCONDITIONAL AND IRREVOCABLE WAIVER OF ANY RIGHTS AND DEFENSES GRANTOR MAY HAVE BECAUSE PEGS OBLIGATIONS MAY BE SECURED BY REAL PROPERTY. THESE RIGHTS AND DEFENSES MCLUDE, BUT ARE NOT LIMITED TO, ANY RIGHTS OR DEFENSES BASED UPON CCP SECTIONS Sala, 5806, 580d OR 726. n ZRG'}l SIGNATURE PACE FOLLOWS W WITNESS WHEREOF, the parties hereto have executed this Agreement or have caused this ADccmmt to be executed by their duly authorized rTmsmtafive(s) as of the date fust above wnttm. -r; npVLb p'_ TL FC I, 6i1tiATT CRICt .: Ci Cmc PIlLY AT SC . BCL[CCA£ KUSCH, GMC l TNGL K c;, 4. / , L-, y LaM� smesnw.i Semrd Party: City of Fresno, a Municipal Corpomfinn By. Its: [i uo'r BT. Its: Ormtor: Fresno Baseball Club, LLLP, a Delaware Emitd liability limild parmmship By: FresnoBascbail Club Maragwmt, LLC Its: Gmcral Partner By: Cummings Baseball Group, LLC, a Delaware limi[d liability mmpmy to: Managing Member By: Chnstopl r P. Crmunings Its: Managing Manby FTC: Fresno Baseball Club, LLC BY Christopher P. Cummings /I b: P idmt V Attachment B STADIUM SUBLEASE AMENDMENT AND GLOBAL ASSIGNMENT AND ASSUMPTION AGREEMENT lav=CONSENT OF CITY AND REDEVELOPMENT AGENCY Tbu Statlium Sublease Amendment and Global Assignment and Assumption Agreement With Consent of City and Redevelopment Agency(IFie"AsslA�mo nt"), is dated as of Cb:blser 13. 2015 (hasi mher "Etfative Date 7, by and among Frano Diamond Group. LLC; a California limited liability contrary C'Sellaj, Fenno Griaalles, Ira., a California corporation ("Grhozl'), Frestm Giialie Hmldwg, Inc., m Arionit corpeatim formerly blown in the Tucson Twos, hen. (=); and Fre,m Baseball Club, LLC; o Delaware limited liability company C-Aasd�-). Sella, Brimlia and TTL and Wer mecasors and azsi®tea, are hereinafter refeeaf m wllatisly m tbe "tysipgtF" RECITALS A. 1M July 15, 2005, Sella, FDG Gd=bm Holdings, LLC, a California limited liability winpay, (We "Fmnchise Sella'), Assignee, es -'Buyer'. end the other parties 3amN therein mused iota a annin Assn Purchase Agrsmem (the "APA•') plvauad to witch Seller and Franchise Seller agre l to sell to Buyer a professional baseball GanGuse lmown as the Franc Onddia (the••Premo Grivl'a)and substantially all of We assets associated with the opemdon of the Fresno Gnidia. B. Pursuant to his APA, on or about Flrstive Date, Seller and Franchise Seller are, among other things, trmlafcrting, selling, and conveying We Acquired Ascots and the Franchise (as such mass are defend w the APA) to Assiguee, end Assigns is assuming We Assumed Liabilities (as nmh term is defined iv the APA), including the Stadium Subbsec, the Parlong Agreement, and Nan -Relocation Agsemem (mch as defined below). C. The "Sodium Sublease' mem, that "Agreement Between The City Of Foam, Fresno Gambia, Inc. and Fresno Diamond Group, LLC Concerning Construction and Subbase of a MWtiptupose Sodium" nude and mtaM into az ofJeouary 3, 2001, by and among the City of Ftano, a California municipal wilairo on ('Cid (Sella sad Gri lies bang national to therein, collectively as, the "Taman. As the same waa amended by the First Amendment To Agreement Communal Cowtruc[imn eM Subleaseof a MWti-Puryose Sodium made end entered intoes of Dazmha 26, 2001, by ad between the City said Tm,,t ("First Amendment'1, all of which provide fm the lease and demise of the I.casedPmntises(as defined below) and e¢oia other mattes. D. The "Non -Relocation Aviation ' mem,r that "Non-Relamtim ad Continuous Operation Agreement don! as oflmmery 3, 2001 by and among Sella,, Cilia, M and City. E. The "Tia_rlon l Ammmrnt" meads that "Agseanent Reporting Parking Frosts, Downtown Stadium Pmjou" by and among Seller, We City and We Redevelopment Agency of the City ofFtesm (the "Redevelooment AmemY). F. The'•Lmsed Premises" meow canoe lend, more particularly d bed in Exhibit W amexad to the First Armmdmmt, and improv®ents located Wneupw, including, without limimimn, a baseball sodium stnsesmu DOCOFra3MU2 G. Each of the Assigrrors desire to assign all of the rights, thee, uncrats, privileges anal benefits they each may have, if any, arising under the Stadium Subleau, Non -Relocation Agreement and Parking Agremrevt (oullectively, the "Ass fined C N Am'mrents'') to Assignee, and Assignec desires m acquire all such right ,title, intact privileges and h antis, end to assume all liabilities of Aasi®wrs nursing under the Assigned City Agreements on said after the Effective Date, with the comm[ of City and Redevelopment Agency. all in more particularly set forth herein. N. Aasignec and the City desvc to amend the Stadium Sublease on effct terrain clarifying ehmga to conform the Stadium Sublease as a result of the fomgming assignmmt. NOW, T�ORE,in consideration of the foregoing, the consummation of the closing under thc APA, the covenants set forth heein, sed ether good and valuable consideration paid by Assignor to Assignors, the receipt rood sufficiency of which are hereby acknowledged by each of the Assignor& it its hereby mutually agent follows: 1. Rest . The Recitals .ser fonh hereinabove are true and worried and arc ivwrporued herein by reference. 1 �hmmeost. Effmtivemofthe Effmtive Dern,subjmtothecoms ofthe Cityadthe Redevelopment Agency, and the conditions me forth below, the Assignors; da hereby sell, essign, is her and set ova to Assigvcc all of Assignors' rights, title, interims, privileges used hmeEm in. to, and under the Assigned! City Agreenrtmm, including but trot limited to, the right to use and occupy the [eased Premises, prepaid rem or dep ails or any kind or nature relating b the use or oecupanry of the I.msd Previus, real all Assiamrs inmne, profits, evil revenue of every kind whatmever due or to become due or amusing from the aa4 occupancy, or operation of the Leased Premises, and all right, power and authority of Aaaipma to sheen, modify, or change the terms of the Assigned City Agreements, or to surrender, renew, weal, or tamdram the Aasipal City Agreements; provided Inw�a than Ptusomd m the APA Assignors retain all obligmions and gabRltim accruing or raising order the Assigned City Agrecmmrs prior to the Effective Date. I. Acceptance. Effective as of the Effective Daze. Assignee hereby sccWts the amalgamate and, m ddition, doe hereby uvvenant and agree, for the benefit of Assignors, the City and the Redevelopment Agency; to friddidly observe, kep. perforin and fulfill all of the trema, covenants. conditions and obligatioru [inured to he observed. kept, perfomtd and falflled by Mummers uncle the Auigooi City Agreements accruing or mixing on real aPc the Effective Date, including but not limited W, the obligation to nuke payments when due Nacuvder. d. Amendment to Nobleness. Ca and after the Effective Date, subject to the emlamt of the City and Rdevelopmmt Agency, the Stadium Suhlesse u hereby amended as follows: (a) Temvr. The tmn'Tenam" as defined in the Stadium Sublease star[[ mem "Fresno Dnsehall Cloth. LLC" and SeGion 1.25 of the Sodium Sublease shall he hereby aaeded to define Trivial as the "Fresno Baseball Club, LLC." (b) Grizzlies Pledge Asreemer[. The term "Grialim Pledge AgreemmY' slWl he replaced in the SYdium Sublime with the tem "FRC I.LLP Pledge Agreement". Section 1.15 of the Stadium Sublease shall be claimed in its entirely and replaced with the following. Mr,mu5619 "M l o l P Pimge Agremnent" memo the agfeement anlaN into beawem the City and the From Baseball Club I I , dated as ofgi imc ii, 2005 wherein Frwo Baseball Club LLLP pledges all of its membership inumos in Tenant W acus Tmunt's obliptrom under this Allurement " (c) The corm "Grizzlies^. The we of the capitalized term. "Grizzlies" used in Sentiom 41(g).13.1, and 14.1 shall man the"Fresno Cori Jin, a promern d baseball tam." (d) Section 9.1. Teneet's Pledge. The firm sentence of Section 9.1 of the Sublease mull be rWlaced in his ratio ey with the following: "Semim 9.1 FBC LLLP PIdae Ameemmt. Taiwan shall norm the Fresno Baseball Club LLLP to provide Ue MC LLLP Pledge Agreement as scuriry of Temat's obligations under this Agreement" The exisuag Pledge Agremem arched to the Stadium Sublease m Exhibit D sM1all be rmlacm w its mtifety, by the Pledge Agremoent attached to tots Assignment m Exhibit A. (a) Stadium Rental Form ne Stadium Rental Foem shamed to the Stadium Subleau as Exhibit C shall be replaced in its mtirty by a new vadium rmW for to be mmully agreed to by the City and Assignee, which form shall be substantially similar to the existing from. Nathm Ne City nor Assignee shall unseasonably withhold, delay or continue its ag gement as to the new stadium mord form 5. Awsiened City Agreements. Except as specifically ammdd above, the Assigod City Agreements shall morin in full from and effort and are hereby randred and conditioned, and the examior, delivery and effcuvenws of this Assilis arit mall not. except as expressly provided herein, operate as a waviver of my fight power, or remedy of the City, nor constitute a waiver of any provision of the Assigned City Allotments. 6. Assieoors Representations and Waroantim. Assignors hereby represent and warm to Use City, the Redevelopment Agency and Assignor as follows, which reprwemauam sed warranties ere effective as of she Effccuve Date: (a) The Assigned City Agrormems art wish legal, valid, bindin& and enforceable, and am in full issue and effect (b) A br and complete ropy of the Stadium Sublease is muchd hereto as Eyyip;, t. A true and complete copy of the Non -Relocation Agrammr is attached hereto as Exhibit . Awe and romplete copy of the ParAin6 Agoecnnt u astachd brown as Ex anO. The Assigned City Agreements am mempomtd hmin by reference, and none of which have been altered, pmdifld, amended or changed wompt for to Sublease Agreement by the First Ammdmm to the Sublease Agremnnt and this Auigmrrmt SIPa566R5 paCsaft. SHOD (e) To Assigoon' tmwledge, the Lamed Premises art env described foExhibit "A" doors amexd to the First Amcndmm4 a copy of wldch is aUache l henna as pert ofEehibit 1. (d) No pally to the Assigned City Agreement is in breach Or default, and to A IXOJrs' prowledge no event bas mounted that with notice or lapse of time, would constitute a brach or default or permit termination, modification, or mcclemdon Na umear (e) There are no disputes, oral agrecmma or 6hamvice pmgmms u ellen n to any of the Assig o d Ciy Agreements. (1) Assigoors have mWmdped the Lensed Premises in good condition and rgair (excepting nornal war and haw), and operated the Lwaed Proton, In the extra and in the manna required in she Sledlwn Sublease. (g) The Assignors have not exanted any other nsigtmm of any of the Assiped City Agreements except Nat reattain Aasitnums t of Sradiuo Design 6etwao Fresno Dimond Group And Td City Of Fresno dart SepranM 15, 2M by and between the City and Seller. (h) Except for the APA. radian the Stadium Sublease, the Non-Relwation Agremat nor the Parting AUts rand is subject to envy comma fool or written) for sale, lents, aasigomem, or otherwise. Funhemore, Ass inor repreeents anal warnthe Nat each of the Assigned City Agreement Is has and elm of any as. claim, mortgage, ancurvbhnec, sanity internal, pledge, liar, charge, many allies O motion on envy ofthe A Ilmrs'sighta,title,intents, privileges orbmefits in, to insider any of the Assigned City Agsement, and upon Closing, this AssitTment is expressly made an6 delivered fire not clear ofany ad all o(Assigmra.'snaind liabilities. ]. Further Assurances. Assipm, for themselves and their successors and assign, have coverianed and, by this A.i gnmmt, do covaanl with Auignn, it successors and assigns, and We City and ties Redevelopment Agency, Nat Assignors will do, execute ad deliver or will cause to be done, muted ad delivered all such further mo¢ nanafm, mslgrwent and mnveyanen, pewee of attorney and assurances, and will take such fuller amon. in order to better assure, convey ad mr5mr to Assignee, its smcese ns ad asai®vs, all ad singular, each of rhe Assigned City Agreements and all of the rights, title, interests, privilege and benefit hereby couvtyed, assigned, trmeRned and delivaat unto Assignee m Assignee, the City, ad the Redevelopmm Agency story reavonably rmi 9. Authotty and AwnmvaL Aanigoorn sol As.iyoee have the requisite pawn and authanty to execnte, deliver and perfom this A ignmm, and all actions of tach anch party, accessary for such execution, delivery and perfommc<have been duly taken. Assigmrs and Assignee do warrant each unto the other, ad to the City ad the Redevelopment Agency. that the pawn axing his siQneoue hereto on belalf of Assignors and Assimm, respectively, was dWy authorized as the offca or roanger to execute and deliver @r Asvigmnm. Assignee represents and wannon to the City and the Redevclopniem Agency Nat it has the power and autwrity to aswme the obligations under rhe Amigsed City Agreement and has all naacss'ary licesaes and paswt to Operate the Fresco Grizzlies. 9. Viddist Thies Assigswtat, when mutt ad delivered by both Assigners ad Assignee, ad eonsmed m by the Cityand the Redevelopment Agency (whether byjolder heeiu m by sepereh wsVument), shell mmtitute the legal, valid ad binding obligation of Assiloors and Aails[M enforeable th mwNarccwith the temv bermf. arvxsasmu 10. Ratification: Constractian. lfxcepl as assisind, as mod, or modified by this Assignment, the turns of the Assigned City Agnements are ratified and c0e ed. 11. Soccela ra and Maims This Aasigrmsmt shall inure to the benefit of the AsslgnOrs' and Assignee's respective stuiressors and assign. The City and the Redevelopnenl Agency shall be third pang beneficiaries of the Alamment. IE. Couutarrams. Tris Assigomem may be exmmd in my rumba of wumerpms, each of which shall for all purposes b<deaaed an original, and all such counterparts "I together wmtimte do one dwumcnt 13. Goverdnn Law. This Assignment shell be governed by and coosWedmaosrdawz with the laws of the Stun of California applicable to connote entered into and wholly performed N the State of California by California viondents. 14. Amendment. This Assig,went may = he amended or modified axcept in writing sigod by cath of the parres m this Assignment and the City and the RdevelopmaLL Agency. 'this Assignment stall be wriatnsd as to its fin mining ad not strictly for or against tither party Tire headings heawfare descriptive only and not to be centennial m interpreting the pmvlslona herwf SIGNATGRFPAGEPFOLLOW SmIaSS111 IXXTSFF. S%0131 W WITNESS WHEREOF, Assignors and Assignee have caused this Assignment to be duly executed on me day first above written. "ASSIGNORS' FRESNO DNMOND GROUP. LLC. a Columbia limited liability company By: iituaer%/ Narran I)mr,"/ Ca ler Its: mmi"Ae.i STATEOFCALIFORNIA COUNTY OF FRESNO Personally appeafad before me as manager of FRESNO OIAMO R) GROUP. LLC, a California heater liability company. signer and sealer of the foregoing instrument, and acknowledged the same to be his bre act and deed as such officer of such company and the free act and deed of said company before me. Nomry Public My Commission Expires FRESNO GRIZZLfES. MC a California mrpomuon By: STATE OF CALIFORN C% COUNTY OF FRESNO Personally appeared before Prosdow of FRESNO (REnIES INC a Udionnia cotpsyncrawn, signer'd seater - f IN foregoing Instrument. and acknowledged the - to be his Ire, act and deed as Inch officer of such company and the fico act and deed of said company before Ins Notary Public My Commission Expires FRESNO GRIZZLIES HOLDING. INC.. smsnsmo.a CALIFORNIA ALL.PURPOSE ACKNOWLEDGEMENT State of California County of LOS ANGELES On November 16200'. before me, V. Maryann Neiman Notary Public personally appeared •""DAVID CEE CATES":."mear.".l Description of Attached Document AMENDMENT' Title or Type of Document [STADIUM SUBLEASE AMEND Document Date. ^^'NOt Number of pages: 1a PAGES Signer(s) other Than Named Above: •^••^•••••••••••••••••'•NONE••••••'•••••'•'•••'••"• CarroltyQesl Claimed by Signer Individual Signers Name: "David Care Cates".. % Individual _Corporate Officer-Title(s): •^^•^•^^•••• _Partner Limited General ^^• Aftonney-J-­Ead ..... 7 _Trustee Guardian or Conservator ••^ —Other SignerIs Representing. ... ............ ........ .................... ................................. a.,,.l.lasa,.x , 3p -is ails 6 b me QProved to me on the basis of satisfactory evidence to be the person whose nam isla[E Macau ranyr OamlYb�naMrn subscribed to th thin insimm tan acknowledged to me that hels executed the samein hi=honzed ®v rxM wc. capu capachilieirand that by histgeMhei+( �xrpiYi o^^'' wcm. a' signature(pirtn Me instrument the persoyW, - - or the entity upon behalf of which the persanyy'acted, executed the instrument. WITNESS my hand an`d%official seat. bnrwl ui�ii Pwill V.MARV�LIAN Description of Attached Document AMENDMENT' Title or Type of Document [STADIUM SUBLEASE AMEND Document Date. ^^'NOt Number of pages: 1a PAGES Signer(s) other Than Named Above: •^••^•••••••••••••••••'•NONE••••••'•••••'•'•••'••"• CarroltyQesl Claimed by Signer Individual Signers Name: "David Care Cates".. % Individual _Corporate Officer-Title(s): •^^•^•^^•••• _Partner Limited General ^^• Aftonney-J-­Ead ..... 7 _Trustee Guardian or Conservator ••^ —Other SignerIs Representing. ... ............ ........ .................... ................................. an Acacia corporation iormmly kmwo as the Tumon Toms, Inc. Name: Its: STATE OF CALIFORNIA COUNTY OF FRESNO Personally append before me u President of FRESNO GRP9.IES HOLDING, INC., m Arazonst coryomYdn, signer and scaler of Ne fomgobtg inanwtrnl, atW aeknowlt0ged Ne same to be his five w and deco as such officer of such compmy and the flee act and deed of said company before me. Notary Politic My Co®tiuion Expires "ASSIGNEE" FRESNO BASEBALL CLUB. LLC, a Delawsre limited liabl4tvnEsuty By. CbcsmpFar P. Cummwgs, As its President STATE OF CALIFORMA COUNTY OF FRESNO ParsomaRy appearM heforc me C stopha P. Cumming; the President of FRESNO BASEBALL CLUB, LLC, a Delaware limited IubJity company, sagest arW seals of the foregoing itumwmt, and scknowledged the same to be hu fine act eM dad as such officer of such company staid We free act and dad of and company b mov% 9 KVWOM b COMM.#1385729 K /l � WT'19 C CMS Na Pub4c l MvEms ox nest, ioo66 MY rtmiuicv Expires u-ILI/.pG SRXsa5siu nocssnsaaoera IN WfINF3S WHEREOF, Assipmm and �gyx have cans! this Asagn ent to be dWy aerocame! on the day 5mt above written. `ASSIGNORS" FRESNO DIAMOND GROUP, LLC, a Calif is limimd liability company By: David Cahn, Manage STATE OF CALIFORNIA COUNTY OF FRESNO Personally appe®ed bef me Dmid Can; as manager ofFMNO DIAMOND GROUP, LLC, e Celifaroia limited Liability company, siper and xeler of 0e foregoing eamoment end aelmowtedged We some to be his lix W and Brod as swit ofxr of wa wmpaay and We fine act and dad of said company before me. Noury Public My Commixica Fapves FRESNO GRIZZLIES, INC., eC� 'a corymadan By: STATE OFJp Cl1NTY OOFF ('CAOys`rLLvsGwZrN\ Pesonally append before me John Cmbmy, n President of FRESNO GRIZZLIES, INC- a Califie wrporaum ugya and sealer of We foregoing Wanumeat and aclaowldged the sane to be Ms Ero = and dad m such officer of such company and the fine am and deed of said company before me &!R*O�UrAr.6 Nclay Public My Commisaon Fe s aW5 14a d1ENMUENLSX me runt 6 ran mwnca rµa°N10 Mrm n Am FRESNO GRIZZLIES HOLDING. INC., an Atvnna cotpmadan fomenly Imown eslbe Tucson Tom%lac. BY: J Cm ray. c STATEOF M Cw&6 COI OF f M_ I ChW PemoruMy eppemad hefne me John Cmbray, no Presidmt of FRESNO GMZLJES HOLDING. INC. an Ancone cogwafion, signer and seder of the foregoing msoomwn and acknowledged the ems to he his bee act and deed as such olficef of suck company and the free act and dced of said company before ma Notary Public My fouenisdon app BPENQk UENASH NnMnP RArry Npgw "ASBJGNRR^w^'14�_ h NOBASEBALLCLUB,LLC, a Oelewme limtad bhbJiy company By: Chns"her P. Cummings, As its Pmsidml STATE OF CALIFORNIA COUNTY OF FRESNO Po eondly spp oo[ before me Cbriuopke P. Cummings the President of FRESNO BASEBALL CLUB. LLC, a Delaware lbnoW hshility company. shomr and sneer of the foregoing firemen, and ackaowladgad We scone m be his fico ace and dned m such officer ofsuch tympany and the free act and dead of said company before me. Nomry Public My Conmusvon Erpims smasm1u uocassl:awcata ACRliOWLEDGEMW, CONSENT, AND AOREEh1ENT OF TBE CITY OF FRESNO TRE CITY OF FRESNO, a California municipal corporation, (the hereby acknowledges, approves, common, and agrees as follows, all of which are eRwSive ss of the Effective Date has defied below): 1. Reference is hereby made ne that cednin Stadium Sublease Ameodmmt and Global A igmmt and Assumption Ageemet With Consort of City and the Redevelopment Agexy (rhe ..Assi�_mt'I deuM as of LLc*� i3 .2W5 (hereinaAa "Effbe ive Date'), by and among Fiction Diaterd Group, LLC, a Cal brim bound liability, company ("byeO, Fresno Grbslies, 4e., a Cadforca impetration C'Sn]8L4'9. Fresco Gnslim Holding, Inc., an Aamm corporation 2nraly Imowa as the Tmmn Tome, Inc. (=J; and Fremo Baseball Club, LLC, a Delaware lldtd liability empmy Saler. Grinlies and TTI, and tbar meesents and anigaees, are hereirefter referred to mllesively as the "AssimgD." M termer not othmvise defied herein sbau have the meeting set fond in the Assigmnmt. 2. Thr City is the sublmmrunder rhe Sodium Sublease, 3. A nue and complete copy of the Stadium Sublease is ahacbed berero ssxhr�J "A" and is incorporated hone ri by referee, and such Sodium Sublease has not bee modified, amended or charged except by the Four Amendment and flue Aaigmet. a. The Lessd Premises are u described in Exhibit "A" to the Fat Amendment, which is macho harem as pen or a IP ptih 5. To City's knowledge, Team is not Formerly in breach or default, ed no existing event has Occtmd to the City's Winwldge, which, with etice or lapse of time, would cessation a beech or default or pemuurmimtieM modiica err, marederation miler my ofine Avignd City Agreements. 6, The City Windy agrees Naz Awant in Order sums due and payable through the day before the Effective Date make the Asrignd City Agenneats, rad all node obligations to be perfotmd by Tmma under the Stadium Sublease through the day before the b5sctive Date undo the Smaium Sublease, those been My paid and sdallmody pm sed J. The rights of the Amignom order the Maitland City Agement hoe in had farce trod effect. S. Subject m pm Ia 9 below, the City homy (a) approves and obmvise consorts to the asdgmmt ad assumption of the Assigned City Agwments by Assignors to Assignee, (b) consents m the mvmdmets to the Smtium Sublease a act forth iia the Assigommt. (c) fully and mmditiondly televisor and dismarges akwigno s, and thew managers, embers, &=am, mucholdes and officers, for obligations or liabilities rasing under the A signed City Agremmu on ad after We Effective Date end grants Assignors a uevation with reseed to, all such liabilitim and obligations arising or acmaung under the Assigned City Ageemmts for obbpatiwu or liabilities ansing Wenatchee an and after the Effective Date. Notwitbamding the foregoing, the foregoing release and onvaton tlms not in any way releere or aovate Asugoors &am my liabilities or obligations under or relating to she Mapped City Agemmers which arose prier to the Etfemive Done but me claimed or noticed on or aflerdte Ef[ctive Date. srvnaaata3 9. This Consent shall become effective on closing of the APA subject to ncdpt by the City on On prior to the Effc5ve Date of be following, each in to= and substance reasonably salisfulory o be City and its ooumel: (a) The AssigmnM duly executed by each party, (b) The closing of the APA: (e) The execution and delivery by the Fremo Haieball Club, LLLP of the Fresno Baseball Club LV Pledge Agteem in in farm and substance accepuble m the City; (d) The execution and delivery by be Aseigrree of a Sobokination Agreement inform and substance arrceptable to the City; (e) Evidence of insurance from Assignors satisfying. the mqul¢mmb of Section 6.4 of me Stadium Sublease; (f) Wimem opinion from Carlon Fields, PA., counsel for We Assignor addressed to the City savamrg such Icgel met¢mas Ne Citymay membably raryest; (g) All fees and exporting payable o the City sod its coansel stall have been Find on or poor to the Effective Date;and (h) Such other evidence as the City may reasonably request to esmbiish the umcy and complaen®a of the representations and anomalies and the compliance with the terms and conditions embalmed in the A sigmne d Amendment. NOT The turns of the Assigned City Agreements, as assilmed, assumed but amended by the Assignment, are hereby amici and combined. P WITNESS WOEEEOF, the City him caused this Acknowledgement, COMI soar Agreemeot to be duly executed an the day fust above wimum TFIE"CITY^ CRY OF FRESNO, e Calif s municipal corporation APPROVED ASI pPld CITY A11OgNEYTICE � By BY �� AssIE ANTI DUNtr Its. Ass Sl�br♦-C,�„ ]Ilat+a tlev i snasassa3 vocisatumua IU: mtieuw STATE OF CALWORMA CON OF FRESNO Faemoly app bcf me Gm of the City of Fseaw, a Califomis mwiapal w�mtm and the of We City of Fmoo. a caifomia municipal Co t m sipm and warm of t foregoing inmumeot ao acknowlogo the same mbe of sw Cip actanddeo as such oEicem of such municipal coryontioo end We Gee acreo dcd said mmicipel rpomtioo bcfcacvk. Nowy Poblic My Comadmm Eapu mweassue W SSI-SIWala ACKNOWLEDGEMENT, CONSENT, AND AGREEMENT OF THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO THE REDEVELOPDH?NT AGENCY OF THE CRY OF FRESNO, a California Public Body, Canaria and Politic They "Redevaeommt AgmcJ') hereby ackrmwledges, approves, coosmM azulagrees as follows, all otwhich are eRative es of Ne Effective Dme (es defined below): 1. Reference is hereby made to that certain Stadium Sublease ArvmMlert and Global Assignment and Assumption Agreement With Corsmt of City and Redevelopment Agency (We 'Ansi mmmt••), dated as of Ct+r ,r n 2005 (herarafta •'Effative DidC'), by wad among Fenno Diamond Group, LLC, a California United liability company ("Sella"), Fremo Grizzlies, Ise. a Csfifomla cooperation ('•Grizzdiet'0, Fresno Gro ries Holding. Inc, an Arimoa corporation broadly known as the Tucson Toros, Inc. (" ); end Frear Baseball Club, LLC, a Delaware limited 1ph ly coronary f'Ama 1, Sella, Grialies and TTL and their vacation and assignees, art ha oafter refereed to collectively as the "&-didn rs.^ All tams wt otherwise defined haein shall have the morning am forth in the Assignment. 2. The Redevelopment Agency is a party to the Parking Agreement. ]. A We and complete copy of the Parking Ancearm is attached luno as Exhibit J, and is ineoryormad herein by refermre, sed such Parking Agreement hes not ben madifird. amended or changed 0. The Stadium Per king Ara is described in Eabibit"A" to the Panting Agremeal. 5. To the Redevelopmem Agency's knowledge, the Assignors we not presently in branch or default under the Parting AgremrmL and no existing event has occurred to the Agency's Imowleige, which, with notice or lapse of time, would eotwtimte a breach or default or limon twounition, modification, or acceleretwn under the Parking Agreement. 6. The Redcvaopmmt Agency hereby agrees that all not or other scion due and payable through the day before the Effective Date under the Parking Agreement, and all other obligations m be performed by the Assignors through the day before the Effective Date under the Parking Agreement, have bem tally paid and satisfactorily performed. ]. The rights of the Aspows wda the Pning Agreement an: in full force and effect. B. Subject to pangruph 9 below, We Redevelopment Agency hereby (a) appoi and othawine interim to the assignment of the Parking Agroanen by Anignors m Anllum and (b) [BEY end unconditionally remas and discharges Aingmrs, and than maoagen, m®bas, draws. shareholders and otLcm, for oblil9tions or IiabJitiv nosing tender the Parking Agreement an and alta the Effective Date and grants Assiguo s a novation with respect to, all such liabilities and obligations sing or arramart under the Parking Agreement for obligation; or liabilities arising tlmmmda on and after the Effective Date. Norwithsnndep; the foregoing, the foregoing relate and novation does not in any way relase or mode Assigmrs Gam any Iiablities or obligations under or relating to the Pricing Agreement which arose prior to the Effative Dam but ere claimed or radical on or aper the Effective Dale. SrN5af611) 9. This Coastal shill bmome etpmlive on closing of the APA, sobjed to reccpt by be Redevelopment Agency on or prior in be Effective Date of the following, each w fosm and subnance reawmbly mtisfadory to be Redevelopment Agency vud itammuel: (a) The Aaigmnml duly executed by mch parry, (b) The closing of the APA (c) The execution and delivery by Frmm Baseball Club, LLLP of the Frmoo Baseball Club LLP Pledge Agreement in from toad substance acceptable to be City; (d) Wrium opinion from Carlton Fields, P,&, counsel fun the Asignm addressed to the Redevelopment Agency covering such legal matters as Six Redevelopment Agency may rmsombly raryer; end (d) Such ober evidence m the RNevelopment Agency may Va nobly request to establish the Accuracy and complmmma of du: representations and warranties and the mmPlienm with the rami and moditiooa mataiaed lathe Assigimimt Amendment. 10. The temu of the Parking Agree amt as assigned and mentioned by be Assigrvneot, are renful and conf rn� IN WITNESS W9F.REOF, be Redevelopment Agency has caused flus Acgmwled6ment, Consent and Agreement to be duly executed an be day first above wrhrm. TILE "REDEVELOPMENT AGENCY^ REDEVELOPMENT AGENCY OF Teff CITY OF FRESNO, a California Public Body, Corporate W Politic APPROVED AS ID FORM // BY WY\I�A�Q(A9 /I cin Ayia NF 's aFFlcJ>/>' i Its: d GUS" ✓i`. IIi /P (_tn S dr+a'A SiANi OflNEY us: STATE OF CALIFORNIA sraasesnu WCssFLa]0.Y1r COU OF FRESNO Personally appea before em , the of Ne Rol wloymerd Agency of the CityOf Fr¢no, a CalffOMa Nblie Body,COTon end Politic, avd We of dye Rdicatlopmml Agency Of the Ciry of Fresno, a Cam mia Public Body, Co Mw end Folidb, Rgads and a®lers Of the foregoing wsn®ee4 and acknowledged the same no be their 4u ad aM dwl as such officers of such Public Body and the five an and deed of add Public Baby befam me. Notary Public MyCommission Expitea S 5a%1<.5 ALLPURPOSE. ACKNOWLEDGEMENT State of California. Countyof h�1'PS00 ) On 1 before me, T{Jtl(z=54 �I Oar /1r s �a yli l��V r Date Name and TYrle ofOJ/4zr lLe.�Your personally appeared Nome(s/ofDoament5 x/ personally known to me (or proved to me on the basis of satisfactory evidence) to be the pen on(4 whose name(o�) isie�c subscribed to the within instrument and acknowledged to me that he/shelthby executed the same in bfsrher/tb)!ir authorized capacity(ies), and the by Ws/her/their signarmai(s) on the instrument the person(b�, or the entity upon behalf of which the person(s) acted, executed the instrument WYINESS my hand and official seal. Signature ofNei a (Affix sant lv the above blank ryace) ALL-PURPOSE ACKNOWLEDGEMENT Stare of California. Counryof FITS na 1 on 1,2')5-ZC)05 befomme, IL U �� L, Dam .Nome and Tla'e ofOffcer (i.e:, ou.N e, tory Pablie) personally appeared Jo k I Name(v) fDaS nene Signer() personally (mown to me (or proved to me on the basis of satisfactory evidence) to be the persoq(s) whose nonvoA is/a* subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/herhheh authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the permn(s), or the entity upon behalf of which the person(s) acted, executed the instmmettL (Ago reef in the above blank..wwe) i-- i WITNESS my hand and official seal.Cram RIM617 Signmure ofNorary (Ago reef in the above blank..wwe) Attachment C SUB(YRDINATION AGBEEMENi Tlfls AGREE 41 r is entered into as of C Lta ht.✓ 13 , 2005, by rnd among Fremo Baseball Club, LLLP, a Delaware limiter) liability limited partnership ("Parent"), Fremo Baseball Club, LLC, a Delaware limited liability company ('PBC"), and the City of Fireman, a Municipal Corporation ("City"). RECITALS A. FBC may from time to time mum indebtedness to Parent, and FBC proposes to assume obligations to the City w further defined hereunder, and B. City has indicated that it willing to permit the indebtedness to Parent under the Pldge Agreement dated as of IJ(ro L� r 1 , 2005 by and among the Parent, FBC ad the City (the "Pledge Agrewevt'j. All cepitalrzed. terns not defined hereunder shall have the meaning ad forth N the Pledge Agreement. Now, THEREFORE, as an inducement in City to permit FBC to incur such indebtedness to Parent under the Pledge Agremlevt and for other valuable consideration, the parties hereto agree M follows: Section 1. INDEBTEONE4S SUBORDINATED. Parent subordinates all Indebtedness (including, without limimtion, interest therwn which may accrue subsequent to FBC becoming subject to any nate or federal debtor-rebef satute) ("Junior Debt 'j to all Obligations now or at any Gene hereafter owing fiom FBC to City ("Sen or Debt'). Parent irrevocably cosent; and directs that all Senior Debt shall be paid N fail prior to FEC making any payment on any Junior Debt, except such payments as are expressly permitted by Section 3 of this Agreement. Parent will, and City is authorized in the name of Parent from time to time to, execute and file s ult financing statements and other documents as City may require in order to give notice to other persons and entities of the terms and provisions of this Agreement. As long as this Agreement is in effect, Parent will not take any action or initiate any proceedings, judicial or otherwise, to enforce Parent's rights or remedies with respen to any labor Debt, bubbling without limitation, any action to enforce remedies with respect lD any collateral becoming any Junior Debt or to obtain my judgment or prejudgment remedy against FBC or any such collatcaL Section 2. INDEBTEDNESS DEFINED. The wind "la ndandaeati' is man herein in its most comprehensive most and includes any and all advances, debts, obligations and liabilities of FBC heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary rod however arising whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether FBC may be liable individually mjvintly with others, including without limitation, obligations mdliabilitles arising from notes, repurchase agreements and trust receipts. S,mufi 1011a, Agrsmmt (Cn )55&161 MCa5F1,7616E91 Sdtion 1. RESTRICTION OF PAYE OF Jf OF D®T; DISPl MON OF PAPA S RECEIVED By PARENT. FBC win am entire, and Parent will not accept or receive, any payment or benefit in cash, by smoff or otherwise, directly or indirectly, on mmunt of principal, Warren or my ether wounds owing on any Junior Debt, except such payments as are expressly permitted herein. FBC is permitted to make and Parent is penninN to receive payments due under any audit agreement promissory note, or other loan agreement, if any, between FBC and Parent, now existing or created in the future (collm ively, the "Grath Agreement"); provided however, that no payment under any such Credit Agreement shall be made by FBC, or received by Parent after notice from City an Permit that a default or any condition, event or act which with the giving of notice or the passage of time or both would constitute a default, has occurred under the more; of my Senior Debt If any payment is made in violation of this Agreement Parent than promptly deliver the same to City in the form received, with any ndomanw or assignment necessary for me transfer of such payment or amounts setoff from Parent m City, to be either (tri City's sale discretion) held as cash collateral screening the Senior Debt or applied in reduction of the Senior Debt m such order U City shall determine, and until m delivered, Parent shall hold such payment in bust for and an behalf of, and as the pmpmty of, City. Section 4. DISPoSRION OF EVNENCE OF WOEBTEDNFSS If there IS My existing promissory nate or orb" evidence of my of the Junior Debt, or if my mummory note or other evidence of Indebtedness is deemed at my time hereafter with respect therein, Nen FBC and Parent will mark the same with a legend stating that it is subject to this Agreement and if asked to do so, will deliver the same to City N the event of a default under the terms of my y.) Senior Debt Parent shall not without City's prior wrinen consent, ensign, tma9f , hypothecate r otherwise dispose of my claim it now hes or may at my time banisher have against FBC at my time that my Senior Debt rwairs outstanding indoor City remains commined to extend my credit to FBC Stchm5. AGREEN.ENT TO BE CONTVJOING APPLIES To FBCs E%ISi1NG WE)E3nDNESS AND ANY INDEBTEDNESS HEREAFTER ARISWG. ileus Agreement shall be a continuing agement and shell apply to any and all Indebtedness of FBC b City or Parent now existing or hereafter Mine& including my Indebtedness arising under successive Iramacmea, related or amended, and mtwidutmding that from time to time all Indebtedness theretofore existing may have ben paid in full. Section E. Riu,MS NTATIONS AND WARRANTIES; INFORMATION. FBC and Patent represent and warrent to City Mm: (a) no interest m the Junior Debt has been assigned or otherwise nansfmed to my person or Mail (b) payment of the Joiner Debt hen not beat heretofore subordinated to my other creditor of FBC; and (c) Parent has the requisite power and authority to ants into and perform its obligation under this Agreement. Parent funds represents and warrants to City that forced has established adequate, independent means of obtaining Bram FBC on a continuing basis financial and other information pertaining w FBC's Summit condition. Parent agrees to keep adequately informed from such means of my facts, events or cvemnstances which might in my way inflect Parent's risks hereunder, and Parent agents that City shall have no obligation to disclose to Patent infornation or material about FBC which is acquired by City m my resume. City may, at City's sole option and without obligation 2- Wree't767Q9I to do so, disclose to Parent any information or material relating in FBC which is acquired by City by any means, and FBC hereby agrees to and authorizes any such disclosure by City - Section ]. TRANSFER of Assets OR REORGANP.ATION of FBC. If any petition is Sled or my proceeding is instituted by or against FBC under my provisions of the Bankruptcy Reform Act, Title 11 of the United States Code, or any other or similar law relating to bankruptcy, insolvency, reorganization or other relief for debtors, or generally affecting matters' rights, or seeking the appointment of a receiver, tmslee, custodim or liquidator of or for FBC or my of its assets, my payment or distribution of my of FBC-s assets, whether in coh, sewntes or my other property, which would be payable or deliverable with =Net to any Junior Debt. mail be paid or delivered to City until all Senior Debt is paid in MI. Parent grants to City the right to enforce, collect and receive my such payment or distribution and In give releases or acquittances therefor, and Prawn mthor eco City as its morwt-ft fact to vote and prove the Junior Debt in my of the aboy"wonbed preceedings or in my meeting of credibm of FBC relating therein. Section S. OittaR AaREFMFMs; No TxmB PxRW B[NEFTMA Es. City shall have no direct or indirect obligations in Parent of my kind with respect to the mama or time in which City. exorcises (or refrains door exercising) my of its rights or remedies with respect In the Senior Debt. PBC or any of FBC'samins. Parent mdemtmds that there may be various agreements between City and FBC evidencing and governing the Senior Deb, and Parent acknowledge and agrees that such agreements are not inertial to cotd'er my benefits on Parent. Parent further acknowledges that City may administer the Senior Debt and my of City's agreements with FBC in my way City deems appropriate, without regard to Parrot or the Junior Debt. Parent waives my right Parent might otherwise have in require a marshalling of my security held by City for all or my pm of the Same Debt or to direct or effect the mamer or Being with which City enforces my of its security. Nothing in this Agreement shall impair or adversely affect any right, privilege, power or remedy of City with respect to the Senior Debt FBC or my assets of FBC, including without limitation, City's right to: (a) waive, release or subordinate my of City's security or rights; (b) wove or ignore my defects by FBC; or (c) restructure, renew, modify or supplement the Swim Debt, or my portion thetmf or any agement with FBC misting to my Senior Debt All rights, privileges, powers and =cities of City may be exertisal from time to time by City without entice to or reason of Parent Seaton 9. BRACH OF AGRBBxm rr BY FBC OR PARENT. In the event of my breach of this Ageemmt by FBC or Parent, than and at my time Barroom City shall have the right to declare immediately due and payable ell or my portion of the Senior Debt without presentment, demand, notice of mnperfomunce, prones, notice of protest m notice of dishonor, all of which are bereby expressly waived by FBC and Parent No delay, failure or discontinuxnw of City in exercising my right, privilege, power or remedy hereunder shall be deemed a waiver of such right privilege, power or remedy; nor shell my single or partial exercise of my inch nigh, privilege, power or remedy, preclude, waive or otherwise affect the father exercise thereof or the exercise of my other right, privilege, power or remedy. Any waiver, permit, mnsentor approval of my kind by City with respect to this Agreement must be Be writing and shall be effective only to the extol set forth in such writing smasea 31 -3 - mosanrua.I Section 10. LIQUIDATPD DAMAGES. Inasmuch m the actual danages which could mutt from a breach by Parent of its duties under Section hermf are =carom and would be impar tical or extmnely difficult to fix, Parent shall pay to City, in due event of any such breach by Parent as liquidated and agreed damages, and not m a penalty, all sums receival by Pmmt in violation of this Agreement on account of the Junior Debt, which sums represent a reasonable endeavor to estimate a fair compensation for the foreseeable losses that might must from such a breach - Section 11. COSTS, EXPENSES AND ATroRNEys' FEES. If any pent' hereto ins ituta my arbitration or judicial or administrative action or proceeding to emfO¢e any provisions Of Itis Agreement, or alleging any breach of my provision hereof or seeking damages Or any remedY, the losing party m parties shall pay to the prevailing party or parties all costs and expenses, including mousnable artomeys' fees (m include among counsel foes and all allocated costs of such preventing party's in-house counsel), cap tided or incurred by the prevailing party or parties in connection therewith, whether incurred at the and or appellate level, in an arbitration proceeding or otherwise, and including any of the foregoing mcund in connection with any badrruptcy, proceeding Gncluding without limitation, any advesary proceeding, contested matter or motion brought by City or my other person) relating to FBC, Parent or my other person or entity. Section 12. Successors; ASRIGNs; Ah1ENDMreNf. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, admimstmOrs, legal represenmtiva, monesmas and assigns of the parties. Thu Agreement may be amendd or modified Only TO writing signed by all parties harem. Section 13. OBLIGATIONS JOINT AND SEVERAL: CONSTRUCTION. If This Agrtvnmt is executed by more than one Parent it slWl bind them jointly and severally All words used herein in the singular shall be damnd to have been used he the plural where the context an reclaims. Section 14. SEYERA MDY Of PROVISIONS. If any provision of dun Agreement shall be held to be prohibited by or invalid uder applicable law, Such provision shall be inetfecove only to the extent of such prohibition or invalidity, without invalidating the remainder of such waiver or other provision or my remaining provisions of this Agreement Section 15. CAVERNING LAW. This Agreement shall be governed by and constmed in accordance with the laws of the State of California STV595vo -4- wasn:n7629.1 Lu Wm S WHsaWl', the paries hereto have caused this Almeement to he executed M ofthe day and year first written above. City: PPPR'O 0 AS TO "RM Cltt Ail ORI a !•twFA55 PN1C NNET ATTEST: RCBECCA E. KUSCH, CMC J CTWC RK By 1, -d Deputy/Oma 5- City of Fnasno, a MmdciPal Corpmdfim By. Its:S1 1, f C ril�%oz ziu By: Its: Parent: Fresno Baseball Club. LLLP, a Delaware limited liability limited pa mcrship By: Fresno Baseball Club Management, LLC Its: General Partner By: Cu mings Baseball Gmup,LLC,e Delaware limited liability company Its: Managing Member FSC: Frame Baseball Club, LLC By: Christoldler P. Cummings Its: President