HOFV Hall of Fame Resort and Entertainment Company

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): December 8, 2023

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

(Exact name of registrant as specified in its charter)

 

Delaware		001-38363		84-3235695
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

2014 Champions Gateway

Canton, OH 44708

(Address of principal executive offices, including zip code)

 

(330) 458-9176

Registrant’s telephone number, including area code)

 

 

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.0001 par value per share		HOFV		Nasdaq Capital Market
Warrants to purchase 0.064578 shares of Common Stock		HOFVW		Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

First Amended and Restated Promissory Note

 

On December 8, 2023, Hall of Fame Resort & Entertainment Company (the “Company,” “we,” “our,” and “us”), HOF Village Retail I, LLC and HOF Village Retail II, LLC (collectively “Retail”) entered into a First Amended and Restated Promissory Note (“First A&R Promissory Note”) with CH Capital Lending, LLC (“Lender”), an affiliate of our director Stuart Lichter. The First A&R Promissory Note was entered to (i) set the interest rate at 12.5% per annum, compounded monthly, rather than the original variable rate, and PIK interest will continue through the maturity date; (ii) modifies the payment terms and maturity date to state interest is due and payable with the entire outstanding principal balance together with accrued unpaid interest on December 4, 2024 (the “Initial Maturity Date”), and if the borrower elects and qualifies for the Extension Option, the unpaid principal balance and all accrued and unpaid interest or other charges will be due on December 4, 2027 (the “Extended Maturity Date”); and (iii) adds a right to convert the Note into shares of common stock, par value $0.0001 per share (“Common Stock”), of the Company at an initial conversion price equal to $3.66.

 

The First A&R Promissory Note is attached hereto as Exhibit 10.1 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

Amendment Number 9 to Term Loan Agreement

 

On December 8, 2023, the Company, HOF Village Newco, LLC and HOF Village Youth Fields, LLC (collectively “Borrower”) entered into Amendment Number 9 to Term Loan Agreement (“Amendment Number 9”) with CH Capital Lending, LLC (“Lender”), an affiliate of our director Stuart Lichter.

 

Amendment Number 9 was entered to (i) amend the collateral, restate applicable definitions, and acknowledge the First A&R Promissory Note is permitted indebtedness and lender waived the required prepayment percentage as related to permitted indebtedness; (ii) increase the principal amount of the loan from $9,539,153.54 to $14,139,153.54, resulting in an increase of $4,600,000, to reflect the Lender loaning Borrower an additional $4,600,000; and (iii) to use commercially reasonable efforts to provide Lender with a junior mortgage on all real property, whether leasehold or fee simple, owned or held by Borrowers subject to any requisite consent from other lenders and/or landlords.

 

The Amendment Number 9 is attached hereto as Exhibit 10.2 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

First Amendment to Second Amended and Restated Secured Cognovit Promissory Note

 

On December 8, 2023, the Company, HOF Village Newco, LLC and HOF Village Youth Fields, LLC (collectively “Borrower”), entered into a First Amendment to Second Amended and Restated Secured Cognovit Promissory Note (“First Amendment to Second A&R Secured Cognovit Promissory Note”) with CH Capital Lending, LLC (“Lender”), an affiliate of our director Stuart Lichter.

 

The First Amendment to Second A&R Secured Cognovit Promissory Note was entered to (i) increase the principal amount of the loan from $9,539,153.54, outstanding as of November 30, 2023, to $14,139,153.54, resulting in an increase of $4,600,000, to reflect the Lender loaning Borrower an additional $4,600,000; and (ii) reset the price at which the loan is convertible into share of Common Stock to a conversion price equal to $3.66.

 

The First Amendment to Second A&R Secured Cognovit Promissory Note is attached hereto as Exhibit 10.3 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

 

Fifth Amendment to and Spreader of Pledge and Security Agreement

 

On December 8, 2023, the Company, HOF Village Newco, LLC and HOF Village Youth Fields, LLC (collectively “Grantor”) entered into a Fifth Amendment to and Spreader of Pledge and Security Agreement (“Fifth Amendment & Spreader”) with CH Capital Lending, LLC (“Administrative Agent”), IRG, LLC, Midwest Lender Fund, LLC, affiliates of our director Stuart Lichter, and JKP Financial, LLC (collectively “Secured Parties”).

 

The Fifth Amendment & Spreader was entered to (i) define the Additional Draw Permitted and JCI Funds Collateral; and (ii) add a subsection to the Security Agreement to memorialize the Secured Parties subordinate right, title and interest in the JCI proceeds.

 

The Fifth Amendment & Spreader is attached hereto as Exhibit 10.4 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing

 

On December 8, 2023, the HOF Village Youth Fields, LLC, HOF Village Parking, LLC and HOF Village Newco, LLC (collectively, “Grantor”) entered into a Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (“Third Amendment & Spreader“) with CH Capital Lending, LLC (“Administrative Agent” or “Secured Party”), an affiliate of our director Stuart Lichter.

 

The Third Amendment & Spreader was entered to (i) secure all obligations of the Grantors under the existing mortgage; (ii) restate that the mortgage secures all obligations of all the secured instruments; (iii) set forth the maximum principal indebtedness which shall be $66,003,898.56, exclusive of interest, taxes, legal fees and costs advanced for preservation of the property; and (iv) grant Secured Party a fee estate and all rights in the real property commonly known as Play-Action Plaza and a subleasehold estate in the Unity Parking Lot.

 

The Third Amendment & Spreader is attached hereto as Exhibit 10.5 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

Release

 

On December 8, 2023, in consideration of Lender’s agreement to advance additional capital, the Company, HOF Village Newco, LLC, HOF Village Youth Fields, LLC, HOF Village Retail I, LLC and HOF Village Retail II, LLC (collectively “Borrower”) entered into a Release (“Release”) for the benefit CH Capital Lending, LLC (“Administrative Agent” or “Lender”), an affiliate of our director Stuart Lichter, and Lender’s affiliates.

 

The Release is attached hereto as Exhibit 10.6 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

Fifth Amendment to Loan Agreement

 

On December 8, 2023, the Company, HOF Village Retail I, LLC and HOF Village Retail II, LLC (collectively “Retail”) entered into the Fifth Amendment to Loan Agreement (“Fifth Amendment”) with CH Capital Lending, LLC (“Lender”), an affiliate of our director Stuart Lichter. The Fifth Amendment was entered to (i) modify the rate of interest to 12.5% per annum, compounded monthly; (ii) increase the ability of Retail to use the full amount of the loan proceeds, up to $10,000,000, to pay costs of construction of the Hall of Fame Village Waterpark (the “Permitted Purpose”). An effect of the Fifth Amendment is to permit the Company to draw an additional $4,000,000 under the $10,000,000 Loan Agreement for the Permitted Purpose.

 

The Fifth Amendment is attached hereto as Exhibit 10.7 and incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to such exhibit.

 

 

Item 9.01 Financial Statements and Exhibits.

 

Exhibit No.		Document
10.1		First Amended and Restated Promissory Note, dated December 8, 2023 by Hall of Fame Resort & Entertainment Company, HOF Village Retail I, LLC, HOF Village Retail II, LLC, collectively as borrower, and CH Capital Lending, LLC, as lender
10.2		Amendment Number 9 to Term Loan Agreement, dated December 8, 2023 by Hall of Fame Resort & Entertainment Company, HOF Village Newco, LLC, HOF Village Youth Fields, LLC, collectively as borrower, and CH Capital Lending, LLC, as administrative agent and lender
10.3		First Amendment to Second Amended and Restated Secured Cognovit Promissory Note, dated December 8, 2023 by Hall of Fame Resort & Entertainment Company, HOF Village Newco, LLC, HOF Village Youth Fields, LLC, collectively as borrower, and CH Capital Lending, LLC, as lender
10.4		Fifth Amendment to and Spreader of Pledge and Security Agreement, dated December 8, 2023 by Hall of Fame Resort & Entertainment Company, HOF Village Newco, LLC, HOF Village Youth Fields, LLC, collectively as grantor, and CH Capital Lending, LLC as administrative agent/collateral agent and IRG, LLC, JKP Financial, LLC, and Midwest Lender Fund, LLC, collectively secured parties
10.5		Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated December 8, 2023 by HOF Village Youth Fields, LLC, HOF Village Parking, LLC, HOF Village Newco, LLC, collectively as grantor, and CH Capital Lending, LLC as administrative agent or secured party
10.6		Release, dated December 8, 2023 by Hall of Fame Resort & Entertainment Company, HOF Village Newco, LLC, HOF Village Youth Fields, LLC, HOF Village Retail I, LLC, HOF Village Retail II, LLC, collectively as borrower and CH Capital Lending, LLC as administrative agent and lender
10.7		Fifth Amendment to Loan Agreement, dated December 8, 2023 by and among Hall of Fame Resort & Entertainment Company, HOF Village Retail I, LLC, HOF Village Retail II, LLC, collectively as borrower, and CH Capital Lending, LLC, as lender
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	HALL OF FAME RESORT & ENTERTAINMENT COMPANY
	By:	/s/ Michael Crawford
		Name:	Michael Crawford
		Title:	President and Chief Executive Officer
Dated: December 14, 2023

 

 

4

 

Exhibit 10.1

 

FIRST AMENDED AND RESTATED PROMISSORY NOTE

 

$10,000,000.00

December 8, 2023 (“Effective Date”)

 

FOR VALUE RECEIVED HOF Village Retail I, LLC, a Delaware limited liability company (“Retail I”), HOF Village Retail II, LLC, a Delaware limited liability company (“Retail II”), and Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOFRECo”, and together with Retail I and Retail II, collectively the “Borrower”) jointly and severally promises to pay to the order of and CH Capital Lending LLC, Delaware limited liability company (the “Lender,” which term shall include any holder hereof) at its offices located at with a place of business and address at 11111 Santa Monica Blvd., Suite 800, Los Angeles, California 90025 or at such other place as the holder hereof may designate (the “Payment Office”), Ten Million and No/100 Dollars (U.S. $10,000,000.00) or so much thereof as shall have been advanced by the Lender, pursuant to the Loan Agreement (defined below) and this First Amended and Restated Promissory Note (as amended, restated, amended and restated, supplemented, waived, refinanced, renewed, replaced, extended or otherwise modified from time to time, this “Note”), with interest thereon to be computed in accordance with this Note, all to be paid in accordance with the terms of this Note (the “Loan”).

 

WHEREAS, reference is made to that certain Loan Agreement dated September 27, 2022 entered into by Retail I, Retail II, and The Huntington National Bank (“HNB”) under the terms of which HNB agreed to loan up to Ten Million Dollars ($10,000,000) (the “Maximum Principal Amount”) as amended by (i) that certain Joinder and First Amendment to Loan Agreement entered into by and between Borrower and Lender dated September 21, 2023, (ii) that certain Second Amendment to Loan Agreement by and between Borrower and Lender dated October 6, 2023, (iii) that certain Third Amendment to Loan Agreement by and between Borrower and Lender dated October 16, 2023, (iv) that certain Fourth Amendment to Loan Agreement by and between Borrower and Lender dated November 16, 2023 and effective September 21, 2023 and (v) that certain Fifth Amendment to Loan Agreement by and between Borrower and Lender dated as of the Effective Date (collectively, the “Loan Agreement”).

 

WHEREAS, Lender has succeeded to the rights and obligations of HNB under the Loan Agreement pursuant to that certain Assignment of Note, Security Instrument and Other Loan Documents dated as of September 21, 2023, and is now the holder of that certain Promissory Note dated September 27, 2022 (the “Original Note”) in the principal amount of $10,000,000 in which HNB was payee and Retail I and Retail II were makers.

 

WHEREAS, this Note is issued in connection with the Loan Agreement and the other agreements and documents executed and/or delivered in connection therewith or referred to therein, the terms of which are incorporated herein by reference (as amended, modified or renewed from time to time, collectively, the “Loan Documents”), and is secured by the property described in the Loan Documents and by such other collateral as previously may have been or may in the future be granted to the Lender to secure this Note. Capitalized terms not otherwise defined in this Note shall have the meaning ascribed to them in the Loan Agreement.

 

WHEREAS, the parties wish to amend and restate, in its entirety, the Original Note in accordance with the terms and provisions of this Note.

 

 

NOW, THEREFORE, in consideration of the foregoing premises and the other agreements and obligations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. Recitals; Joint and Several Liability. The foregoing recitals are hereby incorporated into this Note as if set forth in full herein. Each of the entities that comprise Borrower shall be jointly and severally liable for all obligations of Borrower under this Note, the Loan Agreement, and the other Loan Documents.

 

2. Amendment and Restatement Not a Novation. This Note amends, restates, and supersedes, in its entirety, the Original Note, but shall not be considered a novation of the obligations evidenced by the Original Note. In consideration of Lender’s agreement to amend and restate the Original Note pursuant to the terms hereof, Borrower hereby releases and discharges Lender and their respective members, managers, directors, officers, employees, attorneys, agents, affiliates, and subsidiaries, from any and all claims, demands, liabilities, and causes of action whatsoever, existing as of the Effective Date and arising out of or in any way related to the Original Note, the Loan Agreement, the other Loan Documents, any agreement or instrument executed in connection therewith, and/or any of the transactions contemplated thereby.

 

3. Defined Terms.

 

As used in this Note, the following initially capitalized terms shall have the meanings ascribed below.

 

“Business Day” means any day other than a Saturday, a Sunday, or other day on which the Lender is authorized or required by Law to be closed.

 

“Change in Law” means the occurrence, after the date of this Note, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Electronic System” means any electronic system, including e-mail, e-fax, web portal access for the Borrower, and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Lender and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.

 

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to the Lender or required to be withheld or deducted from payment to the Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of the Lender being organized under the laws of, or having its principal office or its lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of the Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) the Lender acquires such interest in the Loan or Commitment or (ii) the Lender changes its lending office, except in each case to the extent that, pursuant to Section 6, amounts with respect to such Taxes were payable either to the Lender’s assignor immediately before the Lender became a party hereto or to the Lender immediately before it changed its lending office and (c) any U.S. federal withholding Taxes imposed pursuant to FATCA.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of the Loan Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(l) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower or any Guarantor under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

“Interest Period” means a period of one (1) month; provided, that any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day. The initial Interest Period shall commence on the Loan Closing Date.

 

“Interest Rate” means twelve-and-one-half percent (12.50%) per annum, compounded monthly.

 

“Other Connection Taxes” means Taxes imposed as a result of a present or former connection between the Lender and the jurisdiction imposing such Tax (other than connections arising from the Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Documents).

 

 

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

4. Interest Rates; Rate Disclaimer.

 

(a) Interest Rate Generally. Subject to the terms and conditions of this Note, the outstanding amount of the Loan shall bear interest equal to the Interest Rate.

 

(b) Late Charge. If the Borrower fails to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Note or the Loan Documents within seven (7) calendar days of the date due and payable, the Borrower also shall pay to Lender a late charge equal to the lesser of five percent (5%) of the amount of such payment or $250 (the “Late Charge”); provided, however, that the Late Charge shall not apply to the payment due on the Initial Maturity Date or the Extended Maturity Date. Such seven (7) day period shall not be construed in any way to extend the due date of any such payment.

 

(c) Default Rate. Upon and after the occurrence and during the continuation of an Event of Default (defined below), at the election of Lender all interest accruing in respect of any loan or other obligation of Borrower under this Note shall be increased by a per annum percentage equal to five percent (5.00%) over the Interest Rate (the “Default Rate”). The Default Rate shall continue to apply whether or not judgment shall be entered on this Note.

 

(d) Liquidated Damages. Both the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying the Lender’s expenses incident to the handling of delinquent payments, but are in addition to, and not in lieu of, the Lender’s exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Lender may employ. In addition, the Default Rate reflects the increased credit risk to the Lender of carrying a loan that is in default. Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Lender, and that the actual harm incurred by the Lender cannot be estimated with certainty and without difficulty.

 

(e) Computation of Interest and Fees. All computations of interest on the unpaid principal and accrued interest due under this Note and the other obligations of Borrower and any and all fees due under the Loan Documents shall be computed on a 365/360 basis; that is, in the case of interest, by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Any reference in this Note to a “per annum” rate shall be based on a year of 360 days. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that any Loan that is repaid on the same day on which it is made shall, subject to Section 4(g), bear interest for one day.

 

 

(f) [Intentionally Deleted]

 

(g) Maximum Rate. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loan or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Lender exceeds the Maximum Rate, the Lender may, to the extent permitted by applicable Law, (i) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Loan hereunder.

 

(h) [Intentionally Deleted]

 

5. Increased Costs.

 

(a) Increased Costs Generally. If any Change in Law shall (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, the Lender, (ii) subject the Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (a) through (c) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto or (iii) impose on the Lender any other condition, cost or expense (other than Taxes) affecting this Note or the Loan made by the Lender, and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any Loan or of maintaining its obligation to make any Loan, or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount) then, upon request of the Lender, the Borrower will pay to the Lender such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction suffered.

 

(b) Capital Requirements. If the Lender determines that any Change in Law affecting the Lender or its lending office or its holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on the Lender’s capital or on the capital of the Lender’s holding company, if any, as a consequence of this Note, the commitments of the Lender or the Loan made by the Lender, to a level below that which the Lender or its holding company could have achieved but for such Change in Law (taking into consideration the Lender’s policies and the policies of the Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to the Lender such additional amount or amounts as will compensate the Lender or the Lender’s holding company for any such reduction suffered.

 

 

(c) Certificates for Reimbursement; Delay in Requests. A certificate of the Lender setting forth the amount or amounts necessary to compensate the Lender or its holding company as specified in the foregoing paragraph (a) or (b) and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay the Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof. Failure or delay on the part of the Lender to demand compensation pursuant to this Section 5 shall not constitute a waiver of the Lender’s right to demand such compensation: provided that the Borrower shall not be required to compensate the Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that the Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

6. Taxes.

 

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by Borrower, then Borrower shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 6) the Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b) Payment of Other Taxes by the Loan Parties. The Borrower and each Guarantor shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Lender timely reimburse it for the payment of, any Other Taxes.

 

(c) Indemnification by the Loan Parties. The Borrower and each Guarantor shall jointly and severally indemnify the Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 6) payable or paid by the Lender or required to be withheld or deducted from a payment to the Lender and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.

 

 

(d) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 6, Borrower shall deliver to the Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Lender.

 

(e) Treatment of Certain Refunds. If the Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 6 (including by the payment of additional amounts pursuant to this Section 6), it shall pay to Borrower an amount equal to such refund (but only to the extent of indemnity payments made under this Section 6 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). The Borrower, upon the request of the Lender, shall repay to the Lender the amount paid over pursuant to this Section 6(e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that the Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 6(e), in no event will the Lender be required to pay any amount to Borrower pursuant to this Section 6(e) the payment of which would place the Lender in a less favorable net after-Tax position than the Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 6(e) shall not be construed to require the Lender to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to Borrower or any other Person.

 

(f) Exemption Certificates. If the Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document it shall deliver to the Borrower, at the time or times reasonably requested by the Borrower, such properly completed and executed documentation reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding, or as will enable the Borrower to determine whether or not the Lender is subject to backup withholding or information reporting requirements.

 

7. [Intentionally Deleted]

 

8. Payment Terms and Maturity Date.

 

(a) Interest shall be due and payable with the entire outstanding principal balance together with accrued but unpaid interests on December 4, 2024 (the “Initial Maturity Date”). In the event Borrower elects and qualifies for the Extension Option, if not sooner paid as hereinafter permitted, the unpaid principal balance of this Note and all accrued and unpaid interest and other charges hereunder shall be due and payable in full on the Initial Maturity Date, or Extended Maturity Date, as the case may be.

 

 

(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, the due date shall be extended to the next succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided, however, that if such next succeeding Business Day occurs in the following calendar month, then the due date shall be the immediately preceding Business Day.

 

9. Prepayments.

 

Subject to Section 12(j), the Borrower may, upon notice by the Borrower to the Lender in writing (delivered by hand or fax) or through an Electronic System, if arrangements for doing so have been approved by the Lender, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that such notice shall be received by the Lender not later than 12:00 p.m. on the date of such prepayment. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the payment amount specified in such notice shall be due and payable on the date specified therein. All prepayments of the Loan shall be applied to the unpaid installments of principal thereof in the inverse order of scheduled maturities.

 

10. Events of Default.

 

(a) An “Event of Default” shall exist if any of the following occurs and is continuing:

 

(i)

Borrower fails to make any payment of interest and/or principal hereunder or any other payment required hereunder when and as the same becomes due, subject to any applicable notice and/or cure periods; or

 

(ii)

An Event of Default (as defined in the Loan Agreement) occurs and is continuing beyond any applicable notice and/or cure period under the Loan Agreement.

 

(b) Upon the occurrence and during the continuance of an Event of Default: (i) Lender shall be under no further obligation to make advances hereunder; (ii) the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder and under any other Loan Document shall be immediately due and payable without demand or notice of any kind; (iii) at Lender’s option, this Note will bear interest at the Default Rate (defined below) from the date of the occurrence of the Event of Default; and (iv) the Lender may exercise from time to time any of the rights and remedies available under the Loan Documents or under applicable law. Each of the foregoing remedies is distinct and cumulative to all the other rights or remedies under this Note or afforded by law or equity, and may be exercised concurrently, independently or successively, in any order whatsoever.

 

(c) No course of dealing on the part of the Lender and no delay or failure on the part of the Lender to exercise any right shall operate as a waiver of such right or otherwise prejudice the Lender’s rights, powers and remedies.

 

 

11. Right of Setoff.

 

Upon the occurrence of an Event of Default, Lender shall have, with respect to the Borrower’s obligations to the Lender under this Note and to the extent permitted by law, a contractual right of setoff against, all of the Borrower’s right, title and interest in and to, all of the Borrower’s deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with, Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, however, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Every such right of setoff may be exercised without demand upon or notice to the Borrower. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of the Lender, although the Lender may enter such setoff on its books and records at a later time.

 

12. Optional Conversion. At any time beginning January 10, 2024, and from time to time prior to the Note Maturity Date, Lender shall have the right, but not the obligation, to elect to convert all or any portion of the principal amount of this Note into shares of HOFRECo’s common stock, par value $0.0001 per share (“HOFRECo Common Stock”) on the terms and conditions in this Section 12 (any such conversion, an “Optional Conversion“).

 

(a) Lender may elect to convert all or any portion of the principal amount of this Note into that number of shares of HOFRECo Common Stock equal to the quotient of (A) the sum of (x) the principal amount of this Note being converted specified in the Conversion Notice (defined below), plus (y) all accrued and unpaid interest on such principal amount of this Note as of the applicable Conversion Election Effective Date (defined below), divided by (B) the Conversion Price (defined below) as of the applicable Conversion Election Effective Date, with fractional shares of HOFRECo Common Stock rounded up or down as provided in Section 12(g). “Conversion Price” means $3.66, as appropriately adjusted for stock splits, stock dividends, combinations, and subdivisions of HOFRECo Common Stock.

 

(b) In order to effectuate an Optional Conversion of all or any portion of the principal amount of this Note, Lender shall submit a written notice to HOFRECo, duly executed by Lender (a “Conversion Notice”), accompanied by this Note, stating that Lender irrevocably elects to convert the principal amount of this Note specified in such Conversion Notice. In the event that only a portion of this Note is being converted, Borrower shall issue a replacement Note representing the remaining principal amount of this Note that has not been converted. An election to convert all or any portion of the principal amount of this Note pursuant to an Optional Conversion shall be deemed to have been made as of the following dates (the “Conversion Election Effective Date”): (A) on the date of receipt, with respect to any Conversion Notice received by HOFRECo at or prior to 5:00 p.m., New York City time, on any Business Day, and (B) on the next Business Day following such receipt, with respect to any Conversion Notice received by HOFRECo on a non-Business Day or after 5:00 p.m., New York City time, on any Business Day. The conversion of the principal amount of this Note with respect to which an Optional Conversion election is made, and the issuance of all shares of HOFRECo Common Stock to be issued pursuant to such conversion, shall become effective as of the applicable Conversion Election Effective Date. Within three (3) Business Days after the applicable Conversion Election Effective Date, HOFRECo shall deliver to Lender (or, if applicable, in the name of Lender’s designee as stated in the Conversion Notice), by book-entry delivery, a number of shares of HOFRECo Common Stock equal to the number of shares to which such holder is entitled pursuant to such Optional Conversion.

 

 

(c) Upon any conversion of this Note, the rights of Lender with respect to the unpaid principal amount hereunder converted into shares of HOFRECo Common Stock shall cease and Lender shall be deemed to have become the owner of the shares of HOFRECo Common Stock into which such principal amount of this Note shall have been converted and such converted principal amount shall be extinguished and deemed to have been forgiven or repaid and shall no longer be outstanding and no future interest shall accrue on any such amount.

 

(d) All shares of HOFRECo Common Stock delivered upon any Optional Conversion will, upon such conversion, be duly and validly authorized and issued, fully paid and nonassessable, free from all preemptive rights, free from all taxes, liens, security interests, charges and encumbrances (other than liens, security interests, charges or encumbrances created by or imposed upon the holder or taxes in respect of any transfer occurring contemporaneously therewith).

 

(e) The issuance of shares of HOFRECo Common Stock upon conversion of all or any portion of the principal amount of this Note pursuant to any Optional Conversion shall be made without payment of additional consideration by, or other charge, cost or tax to, Lender in respect thereof; provided, however, that HOFRECo shall not be required to pay any tax or other governmental charge that may be payable with respect to the issuance or delivery of any shares of HOFRECo Common Stock in the name of any person other than Lender, and no such delivery shall be made unless and until the person requesting such issuance has paid to HOFRECo the amount of any such tax or charge, or has established to the satisfaction of HOFRECo that such tax or charge has been paid or that no such tax or charge is due.

 

(f) HOFRECo shall at all times reserve and keep available out of its authorized but unissued shares of HOFRECo Common Stock, solely for the purpose of issuance upon conversion of the principal amount of this Note in accordance with this Section 12, such number of shares of HOFRECo Common Stock issuable upon the conversion of all outstanding principal amount of this Note pursuant to any Optional Conversion at the Conversion Price. HOFRECo shall take all such actions as may be necessary to assure that all such shares of HOFRECo Common Stock may be so issued without violation of any applicable law or governmental regulation applicable to HOFRECo or any requirements of any securities exchange upon which shares of HOFRECo Common Stock may be listed (except for official notice of issuance, which shall be immediately delivered by HOFRECo upon each such issuance). HOFRECo shall not take any action which would cause the number of authorized but unissued shares of HOFRECo Common Stock to be less than the number of such shares required to be reserved hereunder for issuance upon conversion of the principal amount of this Note.

 

 

(g) No fractional shares of HOFRECo Common Stock shall be issued upon any Optional Conversion of all or any portion of the principal amount of this Note. In lieu of delivering a fractional share of HOFRECo Common Stock to any holder in connection with an Optional Conversion, any fractional share of HOFRECo Common Stock shall be rounded up or down to the next whole number or zero, as applicable (with one-half being closer to the next lower whole number for this purpose).

 

(h) The Conversion Price shall be subject to a weighted average anti-dilution adjustment from time to time as follows:

 

(i) If HOFRECo shall at any time or from time to time during the period from the date of this Note to the Note Maturity Date, issue any additional shares of HOFRECo Common Stock (or be deemed to have issued any shares of HOFRECo Common Stock as provided herein), other than Excluded Securities (as defined in Section 12(h)(iii)) and Excluded Transactions (as defined in Section 12(h)(iv)) (such additional shares, “Additional Shares”), without consideration or for a consideration per share less than the Conversion Price in effect immediately prior to the issuance of HOFRECo Common Stock, the Conversion Price in effect immediately prior to such issuance shall forthwith be lowered to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:

 

CP2 = CP1 * (A + B) ÷ (A + C)

 

For purposes of the foregoing formula, the following definitions shall apply:

 

●

“CP2” shall mean the Conversion Price in effect immediately after such issue of Additional Shares of HOFRECo Common Stock;

 

●

“CP1” shall mean the Conversion Price in effect immediately prior to such issue of Additional Shares of HOFRECo Common Stock;

 

●

“A” shall mean the number of shares of HOFRECo Common Stock outstanding immediately prior to such issue of Additional Shares of HOFRECo Common Stock (including any shares of HOFRECo Common Stock deemed to have been issued pursuant to Section 12(h)(ii)(D));

 

●

“B” shall mean the number of shares of HOFRECo Common Stock that would have been issued if such Additional Shares of HOFRECo Common Stock had been issued at the price per share equal to CP1 (determined by dividing the aggregate consideration received by HOFRECo in respect of such issue by CP1); and

 

●

“C” shall mean the number of such Additional Shares of HOFRECo Common Stock issued in such transaction.

 

 

(ii) For the purposes of any adjustment of the Conversion Price pursuant to Section 12 (h)(i), the following provisions shall be applicable:

 

(A) In the case of the issuance of HOFRECo Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting therefrom any discounts, commissions or other expenses allowed, paid or incurred by HOFRECo for any underwriting or otherwise in connection with the issuance and sale thereof.

 

(B) In the case of the issuance of HOFRECo Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors of HOFRECo, irrespective of any accounting treatment.

 

(C) In the case of the issuance of HOFRECo Common Stock without consideration, the consideration shall be deemed to be $0.01 per share.

 

(D) In the case of the issuance of (x) options or warrants to purchase or rights to subscribe for HOFRECo Common Stock, (y) debt or securities by their terms convertible into or exchangeable for HOFRECo Common Stock or (z) options to purchase rights to subscribe for such convertible or exchangeable securities:

 

(1) the aggregate maximum number of shares of HOFRECo Common Stock deliverable upon exercise of such options or warrants to purchase or rights to subscribe for HOFRECo Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in subdivisions (A), (B) and (C) above), if any, received by HOFRECo upon the issuance of such options, warrants or rights plus the minimum purchase price provided in such options, warrants or rights for the HOFRECo Common Stock covered thereby; and

 

(2) the aggregate maximum number of shares of HOFRECo Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable debt or securities or upon the exercise of options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or warrants or rights were issued and for a consideration equal to the consideration received by HOFRECo for any such securities and related options or warrants or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by HOFRECo upon the conversion or exchange of such securities or the exercise of any related options or warrants or rights (the consideration in each case to be determined in the manner provided in subdivisions (A), (B) and (C) above).

 

 

(iii) For purposes of this Section 12(h), the term “Excluded Securities” shall mean (i) shares of HOFRECo Common Stock issued to officers, employees, directors or consultants of HOFRECo and its subsidiaries, pursuant to any agreement, plan or arrangement approved by the Board of Directors of HOFRECo, or options or warrants to purchase or rights to subscribe for such HOFRECo Common Stock, or debt or securities by their terms convertible into or exchangeable for such HOFRECo Common Stock, or options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities pursuant to such agreement, plan or arrangement; (ii) shares of HOFRECo Common Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of HOFRECo Common Stock; or (iii) securities issued pursuant to the acquisition of another corporation or other entity by HOFRECo by merger or purchase of stock or purchase of all or substantially all of such other corporation’s or other entity’s assets whereby HOFRECo owns not less than a majority of the voting power of such other corporation or other entity following such acquisition or purchase.

 

(iv) For purposes of this Section 12(h), the term “Excluded Transactions” shall mean sales of shares of Common Stock issued under the Company’s “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act; provided, however, that each financial quarter during which the Company’s sales of such shares reaches a multiple of $5 million aggregate consideration beginning with sales occurring after the Effective Date for an average consideration per share for such multiple of $5 million aggregate consideration that is less than the Exercise Price then in effect at the end of such financial quarter, the Exercise Price in effect at the end of such financial quarter shall forthwith be lowered to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the formula set forth in Section 12(h)(i), with the following adjustments: (A) “A” shall mean the difference of (1) the number of shares of Common Stock outstanding immediately following the sale of a share under the Company’s “at the market offering” that reaches a multiple of $5 million (including any shares of Common Stock deemed to have been issued pursuant to Section 12(h)(ii)(D)), minus (2) the number of shares of Common Stock issued under the Company’s “at the market offering” for such multiple of $5 million and (B) “C” shall mean the number of such shares of Common Stock issued under the Company’s “at the market offering” for such multiple of $5 million.

 

 

(i) Nasdaq 19.99% Cap. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents (defined below), HOFRECo and Lender agree that the total cumulative number of shares of HOFRECo Common Stock that may be issued to Lender hereunder and under the other Transaction Documents may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the number of shares of HOFRECo Common Stock issued to Lender under this Note and the other Transaction Documents reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), HOFRECo, at its election, will use reasonable commercial efforts to obtain stockholder approval of this Note and the issuance of additional shares of HOFRECo Common Stock upon the conversion of the portion of the Loan under this Note, if necessary, in accordance with the requirements of Nasdaq Listing Rule 5635(d) (the “Approval”). For purposes hereof, “Transaction Documents” means, collectively (A) this Note, and (B) all other securities issued, effective as of the Effective Date, by HOFRECo in connection with the transactions contemplated by this Note.

 

(j) Prepayment Notice. Prior to the prepayment of all or any portion of the loan evidenced by this Note, Borrower shall provide at least ten (10) days’ written notice to Lender. Within twenty (20) Business Days after Lender’s receipt of such notice, Lender shall have the right (but not the obligation) to convert all or any portion of the loan evidenced by this Note, in accordance with this Section 12, at the Conversion Price then in effect.

 

13. Miscellaneous.

 

(a) Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder shall be given in the manner prescribed in the Loan Agreement.

 

(b) Delay Not Prejudicial to Lender. No delay or omission on the Lender’s part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will the Lender’s action or inaction impair any such right or power.

 

(c) Lender’s Remedies Cumulative. The Lender’s rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Lender may have under other agreements, at law or in equity.

 

(d) No Oral Modification. No modification, amendment or waiver of, or consent to any departure by the Borrower from, any provision of this Note will be effective unless made in a writing signed by the Lender.

 

 

(e) Lender’s Costs/Expenses. The Borrower agrees to pay on demand, to the extent permitted by law, all costs and expenses incurred by the Lender in the enforcement of its rights in this Note and in any security therefore, including without limitation reasonable fees and expenses of the Lender’s counsel.

 

(f) Partial Invalidity; Severability. If any provision of this Note is found to be invalid, illegal or unenforceable in any respect by a court, all the other provisions of this Note will remain in full force and effect.

 

(g) Waivers. Borrower and all other makers and indorsers of this Note hereby forever waive presentment, protest, notice of dishonor and notice of non-payment, and demand, with respect to any and all instruments, notice of acceptance hereof, notice of loans or advances made, credit extended, collateral received or delivered, or any other action taken in reliance hereon, and all other demands and notices of any description, except such as are expressly provided for herein. The Borrower also waives all defenses based on suretyship or impairment of collateral.

 

(h) Successors and Assigns Bound. This Note shall bind the Borrower and its heirs, executors, administrators, successors and assigns, and the benefits hereof shall inure to the benefit of the Lender and its successors and assigns; provided, however, that the Borrower may not assign this Note in whole or in part without the Lender’s written consent and the Lender at any time may assign this Note in whole or in part.

 

(i) Governing Law,· Jurisdiction. This Note has been delivered to and accepted by the Lender and will be deemed to be made in the State of Ohio. THIS NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE LENDER AND THE BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in Stark or Cuyahoga County, Ohio; provided that nothing contained in this Note will prevent the Lender from bringing any action, enforcing any award or judgment or exercising any rights against the Borrower individually, against any security or against any property of the Borrower within any other county, state or other foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the venue provided above is the most convenient forum for both the Lender and the Borrower. The Borrower waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Note.

 

(j) Index Value. This Note expresses an initial interest rate and an initial index value to two (2) places to the right of the decimal point. This expression is done solely for convenience. The reference sources for the index used by Lender, as stated in this Note, may actually quote the index on any given day to as many as five (5) places to the right of the decimal point. Therefore, the actual index value used to calculate the interest rate on and the amount of interest due under this Note will be to five (5) places to the right of the decimal point.

 

 

(k) Posting and Application of Payments.

 

(i) All payments of principal, interest and other amounts payable hereunder, or under any of the other Loan Documents must be made to Lender not later than 11:00 a.m. (EST) on the due date to ensure credit on the due date. All credits shall be provisional, subject to verification and final settlement. Lender may charge the Operating Account for the amount of any item of payment or other payment that is returned to Lender unpaid or otherwise not collected.

 

(ii) Prior to an Event of Default under this Note, payments shall be applied first to interest, then to principal, then to any fees or other amounts due and owing to Lender in connection with the Loan. After an Event of Default under this Note, payments may be applied, at Lender’s option, as follows: first to any collection costs or expenses (including reasonable attorneys’ fees), then to any late charges or other fees owing under the Loan Documents, then to accrued interest, then to principal. To the extent that Borrower makes a payment or Lender receives any payment or proceeds of the Collateral (as defined in the Loan Agreement) for Borrower’s benefit, which are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver, custodian or any other party under any bankruptcy law, common law or equitable cause, then, to such extent, the Loan, or part thereof intended to be satisfied, shall be revived and continue as if such payment or proceeds had not been received by Lender.

 

(iii) Borrower shall pay principal, interest, and all other amounts payable hereunder, or under any other Loan Document, without any deduction whatsoever, including any deduction for any setoff or counterclaim.

 

(l) IMPORTANT INFORMATION ABOUT PROCEDURES REQUIRED BY THE USA PATRIOT ACT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each entity or person who opens an account or establishes a relationship with Lender.

 

What this means: When an entity or person opens an account or establishes a relationship with Lender, Lender may ask for the name, address, date of birth, and other information that will allow the Lender to identify the entity or person who opens an account or establishes a relationship with Lender. Lender may also ask to see identifying documents for the entity or person.

 

(m) Compensation for Losses. Upon demand of the Lender from time to time, the Borrower shall promptly compensate the Lender for and hold the Lender harmless from any loss, cost or expense incurred by it as a result of (i) any payment or prepayment of any Loan accruing interest on a day other than the last day of an Interest Period (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise) or (ii) any failure by the Borrower (for a reason other than the failure of the Lender to make a Loan) to prepay or borrow any Loan accruing interest on the date or in the amount notified by the Borrower, including any loss or expense arising from the liquidation or reemployment of funds.

 

 

(n) Survival. All of the Borrower’s obligations under Sections 5 through 7 hereof shall survive termination of the Lender’s commitment to make the Loan and repayment of the Loan.

 

(o) Joint and Several Liability. In the event that this Note is made by more than one Borrower, the promises and agreements herein shall be construed to be and are hereby declared to be the joint and several promises and agreements of all Borrowers and shall constitute the joint and several obligations of each of Borrowers and shall be fully binding upon and enforceable against each of Borrowers. Neither the death nor release of any person or party to this Note shall affect or release the joint and several liability of any other person or party. Lender may at its option enforce this Note against one or all of Borrowers, and Lender shall not be required to resort to enforcement against each of Borrowers and the failure to proceed against or join any Borrower shall not affect the joint and several liability of any other Borrower.

 

14. Power To Confess Judgment.

 

Borrower authorizes any attorney at law to appear in any court of record in the State of Ohio or in any other state or territory of the United States of America after the loan evidenced by this Note becomes due, whether by acceleration or otherwise, to waive the issuing and service of process, and to confess judgment against Borrower in favor of Lender for the amount then appearing due on this Note, together with costs of suit, and thereupon to waive all errors and all rights of appeal and stays of execution. Borrower waives any conflict of interest that an attorney hired by Lender may have in acting on Borrower’s behalf in confessing judgment against Borrower while such attorney is retained by Lender. Borrower expressly consents to such attorney acting for Borrower in confessing judgment and to such attorney’s fee being paid by Lender or deducted from the proceeds of collection of this Note or collateral security therefor.

 

15. WAIVER OF JURY TRIAL.

 

BORROWER ACKNOWLEDGES AND AGREES THAT THERE MAY BE A CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY CLAIM, DISPUTE OR LAWSUIT ARISING BETWEEN OR AMONG BORROWER AND LENDER, BUT THAT SUCH RIGHT MAY BE WAIVED. ACCORDINGLY, THE BORROWER AGREES THAT, NOTWITHSTANDING SUCH CONSTITUTIONAL RIGHT, IN THIS COMMERCIAL MATTER, BORROWER BELIEVES AND AGREES THAT IT SHALL BE IN THEIR BEST INTERESTS TO WAIVE SUCH RIGHT, AND, ACCORDINGLY, HEREBY WAIVES SUCH RIGHT TO A JURY TRIAL, AND FURTHER AGREES THAT THE BEST FORUM FOR HEARING ANY CLAIM, DISPUTE, OR LAWSUIT, IF ANY, ARISING IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS, OR THE RELATIONSHIP AMONG THE BORROWER, LENDER, AND ANY OTHER PARTY TO THE LOAN DOCUMENTS, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, OR WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, SHALL BE A COURT OF COMPETENT JURISDICTION SITTING WITHOUT A JURY.

 

 

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SIGNATURE PAGE TO IMMEDIATELY FOLLOW]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, Borrower has executed and delivered this Note in Stark County, Ohio, as of the day and year first set forth above.

 

BORROWER:

 

WARNING–BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

HALL OF FAME RESORT &
ENTERTAINMENT COMPANY,
a Delaware corporation
By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

The Borrower acknowledges that it has read and understood all the provisions of this Note, including the confession of judgment and waiver of jury trial, and has been advised by counsel as necessary or appropriate.

 

Signature Page to First Amended and Restated Promissory Note (HNB/Retail)

 

 

IN WITNESS WHEREOF, Borrower has executed and delivered this Note in Stark County, Ohio, as of the day and year first set forth above.

 

BORROWER:

 

WARNING–BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

HOF Village Retail I, LLC, a Delaware limited liability company
By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

The Borrower acknowledges that it has read and understood all the provisions of this Note, including the confession of judgment and waiver of jury trial, and has been advised by counsel as necessary or appropriate.

 

Signature Page to First Amended and Restated Promissory Note (HNB/Retail)

 

 

BORROWER:

 

WARNING–BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

HOF Village Retail II, LLC, a Delaware limited liability company
By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

The Borrower acknowledges that it has read and understood all the provisions of this Note, including the confession of judgment and waiver of jury trial, and has been advised by counsel as necessary or appropriate.

 

Signature Page to First Amended and Restated Promissory Note (HNB/Retail)

 

 

Lender:
CH CAPITAL LENDING, LLC,
a Delaware limited liability company
By:	Holdings SPE Manager, LLC,
	a Delaware limited liability company,
	its Manager
	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

Reference is made to certain Term Loan Agreement (as amended, restated, supplemented, waived, or otherwise modified from time to time, the “Term Loan Agreement”), dated as of December 1, 2020, among the entities identified therein as co borrowers, and Aquarian Credit Funding LLC, as lead arranger, administrative agent, collateral agent and representative of the lenders party thereto, as assigned to CH Capital Lending, LLC, a Delaware limited liability company (in its capacity as Administrative Agent and in its capacity as Lender), on March 1, 2022, and all agreements, instruments, and promissory notes executed in connection with the Term Loan Agreement (in such capacity, “Administrative Agent”).

 

Although CH Capital Lending, LLC, in its capacity as Administrative Agent under the Term Loan Agreement is not a party to this Note, Administrative Agent, by its signature below, hereby consents to the provisions of this Note. Without limiting the foregoing, (a) the indebtedness evidenced by this Note shall be considered “Permitted Indebtedness” under the Term Loan Agreement, (b) the shares of HOFRECo Common Stock to be issued upon conversion of all or any portion of the indebtedness evidenced by this Note shall be considered “Permitted Equity Issuances” under the Term Loan Agreement, and (c) Administrative Agent hereby consents to the Security Interests granted to Lender under this Note.

 

Administrative Agent:
CH CAPITAL LENDING, LLC,
a Delaware limited liability company,
in its capacity as Agent
By:	Holdings SPE Manager, LLC,
	a Delaware limited liability company,
	its Manager
	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

Signature Page to First Amended and Restated Promissory Note (HNB/Retail)

 

 

 

Exhibit 10.2

 

 

 

AMENDMENT NUMBER 9 TO TERM LOAN AGREEMENT

 

among

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY AND THE OTHER PERSONS SIGNATORY HERETO AS BORROWERS

 

as Borrowers

 

and

 

THE LENDER PARTY HERETO,

 

as Lender

 

and

 

CH CAPITAL LENDING, LLC,

 

as Administrative Agent and Lender

 

dated as of December 8, 2023

 

 

 

AMENDMENT NUMBER 9 TO TERM LOAN AGREEMENT

 

This AMENDMENT NUMBER 9 TO TERM LOAN AGREEMENT (this “Amendment”) dated as of December 8, 2023 (the “Effective Date”) is made by and among Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOF Resort & Entertainment”, HOF Village Newco, LLC, a Delaware limited liability company (“HOF Newco”), and HOF Village YOUTH FIELDS, LLC, a Delaware limited liability company (“HOF Youth Fields”; each of HOF Resort & Entertainment, Newco, and HOF Youth Fields is individually referred to herein as a “Borrower,” and they are collectively referred to herein as “Borrowers”), CH CAPITAL LENDING, LLC, a Delaware limited liability company, in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, “Administrative Agent”), and CH CAPITAL LENDING, LLC, a Delaware limited liability company, (together with its successors and/or assigns in its capacity as a Lender under the Loan Agreement (as defined below), “Lender”).

 

PRELIMINARY STATEMENTS:

 

A. Borrowers, Administrative Agent, and Lender are parties to that certain Term Loan Agreement dated December 1, 2020, (a) as amended by Amendment Number 1 to Term Loan Agreement dated January 28, 2021, Amendment Number 2 to Term Loan Agreement dated February 15, 2021, Amendment Number 3 to Term Loan Agreement dated August 30, 2021, Amendment Number 4 to Term Loan Agreement dated August 30, 2021, and Amendment Number 5 to Term Loan Agreement dated December 15, 2021, (b) as assigned to Administrative Agent and Lender pursuant to that certain Assignment of Loan and Loan Documents, dated March 1, 2022, by and among Aquarian Credit Funding LLC, as the previous Administrative Agent, Investors Heritage Life Insurance Company, as the previous Lender, and CH Capital Lending, LLC, as the new Administrative Agent and the new Lender, (c) as affected by that certain Assumption and Joinder Agreement to Loan Agreement, dated as of March 1, 2022, executed and delivered by HOFV Youth Fields to Administrative Agent, and (d) as further amended by Amendment Number 6 to Term Loan Agreement dated March 1, 2022, Amendment Number 7 to Term Loan Agreement dated July 31, 2022, and Amendment Number 8 to Term Loan Agreement dated November 7, 2022, as modified by that certain Modification Agreement effective as of October 6, 2023 (all of the foregoing, collectively, the “Existing Loan Agreement”). The Existing Loan Agreement, as amended by this Amendment, and as it may be further amended, restated, supplemented, waived, assigned, or otherwise modified from time to time is referred to herein as the “Loan Agreement”. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

 

B. Administrative Agent and Lender have agreed to increase the principal amount of the Loan and Borrowers have agreed to amend the Collateral under the Loan Agreement.

 

C. The outstanding principal balance of the Loan, as of November 30, 2023, but prior to the additional advance described in Section 2 of this Amendment, is $9,539,153.54;

 

Amendment Number 9 to Term Loan Agreement

 

 

D. Administrative Agent, Borrowers, and Lender desire to amend the Loan Agreement as set forth in this Amendment and in connection with this Amendment are entering into (i) that certain Fifth Amendment to and Spreader of Pledge and Security Agreement dated as of the Effective Date, (ii) that certain Third Amendment to and Spreader of Mortgage dated as of the Effective Date, and (iii) that certain First Amendment to the Second Amended and Restated Promissory Note dated as of the Effective Date (collectively, the “HOF/Newco Loan Modification Documents”).

 

E. The First Amendment to the Second Amended and Restated Promissory Note dated as of the Effective Date reflects the updated principal balance and the modification to the conversion option. For the avoidance of doubt, all conversion options previously stated in the Loan Agreement, including that certain Amendment Number 6, were superseded by the conversion provisions contained in the Second Amended and Restated Note executed on March 16, 2023 and effective as of November 7, 2022, as amended as it may be further amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, including as it is amended by the First Amendment to the Second Amended and Restated Promissory Note dated as of the Effective Date.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

 

1. Definitions Restated. Section 1.01 of the Loan Agreement is hereby amended by deleting the following terms in their entirety and replacing them with the following:

 

“Mortgaged Properties” shall mean (a) the estate in those certain parcels of real property described on Exhibit A attached to this Amendment and made a part hereof, and (b) all other collateral encumbered by the Mortgages, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time.

 

“Mortgages” shall mean (a) that certain Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of December 1, 2020, from HOF Village Youth Fields, LLC and certain other parties in favor of Administrative Agent, recorded on December 2, 2020 as Instrument No. 202012020053155 in the Stark County, Ohio Records, as partially released by (b) that certain Partial Release of Mortgage, dated as of December 15, 2021, recorded on December 17, 2021 as Instrument No. 202112170065680 in the Stark County, Ohio Records, as assigned by (c) that certain Assignment of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of March 1, 2022, recorded on March 3, 2022 as Instrument No. 202203030009630 in the Stark County, Ohio Records, as amended by (d) that certain First Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of March 1, 2022, recorded on March 3, 2022 as Instrument No. 202203030009751 in the Stark County, Ohio Records, as partially released by (e) that certain Partial Release of Mortgage, dated as of November 7, 2022, recorded on November 18, 2022 as Instrument No. 202211180047984 in the Stark County, Ohio Records, as amended by (f) that certain Second Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, effective as of November 7, 2022, recorded on March 23, 2023 as Instrument No. 202303230008694 in the Stark County, Ohio Records, (g) that certain Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, effective as the Effective Date to be recorded in the real property records of Stark County, Ohio, and (h) as it may be further amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, encumbering the Mortgaged Properties.

 

Amendment Number 9 to Term Loan Agreement

 

 

“Note” means that certain Second Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $8,786,700.61, from Borrowers to Lender, as amended by First Amendment to the Second Amended and Restated Promissory Note dated as of the Effective Date, increasing the principal amount to $14,139,153.54, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time.

 

“Security Agreement” shall mean the Pledge and Security Agreement, dated as of December 1, 2020, as affected and amended by (i) that certain Joinder Agreement to Pledge and Security Agreement dated as of February 17, 2021, (ii) that certain First Amendment to Pledge and Security Agreement dated as of December 15, 2021, (iii) that certain Joinder Agreement to Pledge and Security Agreement dated as of March 1, 2022, (iv) that certain Second Amendment to Pledge and Security Agreement dated as of July 31, 2022, (v) that certain Third Amendment to Pledge and Security Agreement dated as of November 7, 2022, (vi) that certain Fourth Amendment and Spreader to Pledge and Security Agreement dated effective as of November 7, 2022, and (vii) that certain Fifth Amendment and Spreader to Pledge and Security Agreement dated as of the Effective Date, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time.

 

2. Increase in Loan Amount; Acknowledgement of Permitted Debt and Permitted Equity. The Lender and Borrowers hereby agree that the Loan Amount shall be increased by up to an additional amount of $4,600,000 from $9,539,153.54 to $14,139,153.54 as evidenced by the First Amendment to the Second Amended and Restated Promissory Note dated as of the Effective Date, and that Lender shall advance funds to Borrowers on the Effective Date up to the maximum amount of principal described in said Note (the “Additional Advance Amount”). The Administrative Agent is the successor lender under that certain Loan Agreement dated September 27, 2022, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time initially by and between HOF Village Retail I, LLC, a Delaware limited liability company, HOF Village Retail II, LLC, a Delaware limited liability company and The Huntington National Bank, as assigned to Lender pursuant to that certain Assignment of Note, Security Instrument and Other Loan Documents dated as of September 21, 2023 and joined by HOF Resort & Entertainment as a borrower pursuant to that certain Joinder and First Amendment to Loan Agreement entered into by and between Borrower and Lender dated September 21, 2023 (the “HNB/Retail Loan”). The parties acknowledge the HNB/Retail Loan is Permitted Indebtedness and that the Lender has waived the Required Prepayment Percentage as related to Permitted Indebtedness under the Loan Agreement. The parties further acknowledge that the shares that may be issued in consideration for the HNB/Retail Loan are Permitted Equity under the Loan Agreement.

 

Amendment Number 9 to Term Loan Agreement

 

 

3. Junior Mortgages. As a part of the consideration for the Additional Advance Amount and the agreement of Lender to enter into the HOF/Newco Loan Modification Documents, Borrowers agreed to provide Lender with mortgages on all real property, whether leasehold or fee simple, owned or held by Borrowers or their subsidiaries in Hall of Fame Village, subject to any requisite consents, required notice periods or similar provisions set forth in existing agreements. At the closing and delivery of the HOF/Newco Loan Modification Documents, Borrowers shall deliver a mortgage on the real property listed on Exhibit A, but Borrowers were unable to deliver any other mortgages due to the requirement for consent from existing lenders and/or landlords and holders of mortgages on other parcels within Hall of Fame Village. As a material inducement for Lender to execute and deliver the HOF/Newco Loan Modification Documents, Borrowers hereby agree to use their commercially reasonable efforts, during the period ending on February 29, 2024 (the “Post-Closing Period”), to obtain consents from holders of mortgages and/or landlords, as applicable, on all of the Hall of Fame Village parcels permitting the granting of junior mortgages on all such parcels in favor of Lender (Lender agrees to execute reasonable subordination or intercreditor agreements in favor of such senior lenders).

 

4. Electronic Signatures. Transmission of a signature by facsimile or email or in .pdf format shall bind the signing party to the same degree as the delivery of a signed original or electronic signature. This Amendment may be executed by way of electronic signatures (including, but not limited to, by way of electronic signatures generated by “DocuSign,” “Adobe Sign” or similar programs or replacements thereto) and that neither this Amendment, nor any part or provision of this Amendment, shall be challenged or denied any legal effect, validity and/or enforceability solely on the grounds that it is in the form of an electronic record.

 

5. No Other Changes; Ratification. Except as specifically amended hereby, the terms, provisions and conditions of the Loan Agreement and the other Loan Documents shall remain unmodified and continue in full force and effect and, except as amended hereby, all of the terms, provisions and conditions of the Loan Agreement and the Loan Documents are hereby ratified and confirmed in all respects.

 

6. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract.

 

7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to any conflicts of law principles that would direct the application of the laws of any jurisdiction.

 

[Signature Page Follows]

 

Amendment Number 9 to Term Loan Agreement

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

	HALL OF FAME RESORT & ENTERTAINMENT COMPANY,
	a Delaware corporation
	HOF VILLAGE NEWCO, LLC
	HOF VILLAGE YOUTH FIELDS, LLC
	each, a Delaware limited liability company
	By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

[Signatures Continue on Next Page]

 

[Signature Page to Amendment Number 9 to Term Loan Agreement]

 

 

Administrative Agent:
CH CAPITAL LENDING, LLC,
a Delaware limited liability company, in its capacity as Administrative Agent
By: Holdings SPE Manager, LLC,
a Delaware limited liability company, its Manager
By:	/s/ John A. Mase
Name:	John A. Mase
Title:	Chief Executive Officer
Lender:
CH CAPITAL LENDING, LLC,
a Delaware limited liability company, in its capacity as Lender
By: Holdings SPE Manager, LLC,
a Delaware limited liability company, its Manager
By:	/s/ John A. Mase
Name:	John A. Mase
Title:	Chief Executive Officer

 

[Signature Page to Amendment Number 9 to Term Loan Agreement]

 

 

Exhibit A

 

Additional Mortgaged Properties

 

Play Action Plaza

 

Situated in the City of Canton, Stark County, Ohio, and known as O.L. 1479 on that certain HOF Village Replat recorded in the Office of the Recorder of Stark County as Instrument No. 202203250013418, containing 3.10 acres, more or less.

 

Parcel No. 10015054

 

The Property address is:  2101 Champions Gtwy NW, Canton, OH 44708

 

 

Parking Leasehold

 

Situated in the City of Canton, Stark County, and State of Ohio, also known as being part of Out Lot No. 1380 in the Replat of Canton City Lots 34196-34207, part of Lot 34965, Out Lot 536, 705 recorded in instrument number 201602170005863 of the Stark County Records and bounded and described as follows:

 

Commencing at an iron pin at the intersection of the Northerly line of 17th Street (50 feet wide) and the easterly line of Clarendon Avenue (50 feet wide), thence North 01° 28’47” East along the said easterly line of Clarendon Avenue, a distance of 162.00 feet to an iron pin set thereon and being the Place of Beginning of the parcel of land herein described;

 

Thence North 01° 28’47” East continuing along the said easterly line of Clarendon Avenue, a distance of 328.86 feet to the southwesterly corner of Fulton Heights Addition as recorded in Plat Volume 9 Page 54 of the Stark County Records, said point being referenced by a 3/4 inch iron pin found 0.65 feet north and 1.17 feet east;

 

Thence South 88°34’05” East along the southerly line of Fulton Heights Addition, a distance of 580.00 feet to a 3/4 inch iron pin found 0.09 feet north of a northwesterly corner of Out Lot 1379 as recorded in Instrument Number 201602170005863 of the Stark County Records;

 

Thence South 01°37’34” West along a westerly line of said Out Lot 1379, a distance of 496.21 feet to an iron pin set on the said northerly line of 17th Street;

 

Thence North 88°02’18” West along the said northerly line of 17th Street, a distance of 370.76 feet to an iron pin set at a point thereon;

 

Thence North 01°28’47” East along a new division line, a distance of 162.00 feet to an iron pin set;

 

Thence North 88°02’18” West along a new division line, a distance of 209.00 feet to the place of beginning of the parcel of land herein described and containing 5.7870 acre of land according to a survey by Atwell, LLC under the supervision of Alex E. Marks PS 8616 and being the same more or less and being subject to all legal highways.

 

All iron pins set are 5/8 inch iron pins 30 inches in length and capped “ATWELL”

 

Parcel Nos. 10011071, 243225, 1000719

 

LESS AND EXCEPT the following:

 

Situated in the City of Canton, Stark County, and State of Ohio, and being part of OL 1380 and 705 as shown on the replat recorded in Instrument Number 201602170005863 of the Stark County Records, and being more fully bounded and described as follows:

 

Beginning at a point on the northerly line of 17^th Street (50 feet) at the southeasterly corner of said OL 1380;

 

Course No. 1: thence North 88°02’18” West along the northerly line of said 17^th Street, a distance of 60.19 feet to a point;

 

Course No. 2: thence North 01°37’34” East, a distance of 495.65 feet to a point on the northerly line of OL 1380;

 

Course No. 3: thence South 88°34’05” East along the northerly line of OL 1380, a distance of 60.19 feet to a point;

 

Course No. 4: thence South 01°37’34” West, a distance of 496.21 feet to the Place of Beginning of the parcel of land herein described, containing 0.6853 acre of land according to a survey by Atwell LLC under the supervision of Alex E. Marks PS 8616 and being the same more or less and being subject to all legal highways and easements.

 

(Such exception parcel being a portion of Parcel Nos. 10011071 and 243225.)

 

 

 

Exhibit 10.3

 

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
SECURED COGNOVIT PROMISSORY NOTE

 

$14,139,153.54

Effective as of November 30, 2023 (the “Effective Date”) Executed on December 8, 2023

 

THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED SECURED COGNOVIT PROMISSORY NOTE (this “Amendment”) is made as of December 8, 2023 between Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOFREC”), HOF Village Newco, LLC, a Delaware limited liability company (“HOFV Newco”), and HOF Village Youth Fields, LLC, a Delaware limited liability company (“HOFV Youth Fields”; HOFREC, HOFV Newco, and HOFV Youth Fields, are referred to herein, individually or collectively as the context may require, as “Borrower”), as makers, hereby unconditionally promise to pay to CH Capital Lending, LLC, a Delaware limited liability company (together with its successors and/or assigns in its capacity as a Lender under the Loan Agreement (as defined below), “Lender”), pursuant to the Loan Agreement (as defined below) and the Second Amended and Restated Secured Cognovit Promissory Note executed by Borrower and Lender on March 17, 2023 and effective as of November 7, 2022 (the “Second A&R Note”) with interest thereon to be computed in accordance with that certain Modification Agreement dated October 6, 2023 (collectively with the Second A&R Note, as amended, restated, amended and restated, supplemented, waived, refinanced, renewed, replaced, extended or otherwise modified from time to time, the “Note”), all to be paid in accordance with the terms of the Note.

 

RECITALS

 

WHEREAS, Lender is the holder of the Second A&R Note in the principal amount of Eight Million Seven Hundred Fifty Eight Thousand Six Hundred Twenty Eight and 29/100 Dollars ($8,758,628.89) secured by certain liens against certain real property and certain assets, as cross-collateralized with certain other debt instruments.

 

WHEREAS, Lender is the Administrative Agent pursuant to that certain Term Loan Agreement dated December 1, 2020 by and among Borrower, certain affiliates of Borrower, and Aquarian Credit Funding LLC, as the previous administrative agent (a) as amended by Amendment Number 1 to Term Loan Agreement dated January 28, 2021, Amendment Number 2 to Term Loan Agreement dated February 15, 2021, Amendment Number 3 to Term Loan Agreement dated August 30, 2021, Amendment Number 4 to Term Loan Agreement dated August 30, 2021, and Amendment Number 5 to Term Loan Agreement dated December 15, 2021, (b) as assigned to Administrative Agent and Lender pursuant to that certain Assignment of Loan and Loan Documents, dated March 1, 2022, by and among Aquarian Credit Funding LLC, as the previous Administrative Agent, Investors Heritage Life Insurance Company, as the previous Lender, and CH Capital Lending, LLC, as the new Administrative Agent and the new Lender, (c) as affected by that certain Assumption and Joinder Agreement to Loan Agreement, dated as of March 1, 2022, executed and delivered by HOFV Youth Fields to Administrative Agent, and (d) as further amended by Amendment Number 6 to Term Loan Agreement dated March 1, 2022, Amendment Number 7 to Term Loan Agreement dated July 31, 2022, Amendment Number 8 to Term Loan Agreement dated as of November 7, 2022, as modified by that certain Modification Agreement effective as of October 6, 2023, and Amendment Number 9 to Term Loan Agreement dated as of the Effective Date (all of the foregoing and as it may be further amended, restated, supplemented, waived, assigned, or otherwise modified from time to time is referred to herein as the, collectively, the “Loan Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

WHEREAS, concurrently with the execution of this Amendment, Administrative Agent, Borrower, and Lender are entering into (i) that certain Amendment Number 9 to Term Loan Agreement dated as of the Effective Date, (ii) that certain Fifth Amendment to and Spreader of Pledge and Security Agreement dated as of the Effective Date, and (ii) that certain Third Amendment to and Spreader of Mortgage dated as of the Effective Date.

 

NOW, THEREFORE, in consideration of the above and of the mutual agreements herein contained, the undersigned parties agree to the following:

 

1. Maximum Principal Amount. The Maximum Principal Amount under the Note, as stated in the Second Amended and Restated Secured Cognovit Promissory Note is hereby increased from Eight Million Seven Hundred Fifty Eight Thousand Six Hundred Twenty Eight and 29/100 Dollars ($8,758,628.89) to Fourteen Million One Hundred Thirty Nine Thousand One Hundred Fifty Three and 54/100 Dollars ($14,139,153.54), constituting an increase of $4,600,000 in the Loan Amount of $9,539,153.54 outstanding as of November 30, 2023 (prior to such increase).

 

2. Optional Conversion. Section 17 of the Note is hereby deleted in its entirety and replaced with the following:

 

“17. Optional Conversion. At any time following January 10, 2024, and from time to time prior to the Note Maturity Date, Lender shall have the right, but not the obligation, to elect to convert all or any portion of the principal amount of this Note into shares of HOFREC Common Stock on the terms and conditions in this Section 17 (any such conversion, an “Optional Conversion”).

 

(a) Lender may elect to convert all or any portion of the principal amount of this Note into that number of shares of HOFREC Common Stock equal to the quotient of (A) the sum of (x) the principal amount of this Note being converted specified in the Conversion Notice (defined below), plus (y) all accrued and unpaid interest on such principal amount of this Note as of the applicable Conversion Election Effective Date (defined below), divided by (B) the Conversion Price (defined below) as of the applicable Conversion Election Effective Date, with fractional shares of HOFREC Common Stock rounded up or down as provided in Section 17(g). “Conversion Price” means $3.66, as appropriately adjusted for stock splits, stock dividends, combinations, and subdivisions of HOFREC Common Stock.

 

(b) In order to effectuate an Optional Conversion of all or any portion of the principal amount of this Note, Lender shall submit a written notice to HOFREC, duly executed by Lender (a “Conversion Notice”), accompanied by this Note, stating that Lender irrevocably elects to convert the principal amount of this Note specified in such Conversion Notice. In the event that only a portion of this Note is being converted, Borrower shall issue a replacement Note representing the remaining principal amount of this Note that has not been converted. An election to convert all or any portion of the principal amount of this Note pursuant to an Optional Conversion shall be deemed to have been made as of the following dates (the “Conversion Election Effective Date”): (A) on the date of receipt, with respect to any Conversion Notice received by HOFREC at or prior to 5:00 p.m., New York City time, on any Business Day, and (B) on the next Business Day following such receipt, with respect to any Conversion Notice received by HOFREC on a non-Business Day or after 5:00 p.m., New York City time, on any Business Day. The conversion of the principal amount of this Note with respect to which an Optional Conversion election is made, and the issuance of all shares of HOFREC Common Stock to be issued pursuant to such conversion, shall become effective as of the applicable Conversion Election Effective Date. Within three (3) Business Days after the applicable Conversion Election Effective Date, HOFREC shall deliver to Lender (or, if applicable, in the name of Lender’s designee as stated in the Conversion Notice), by book-entry delivery, a number of shares of HOFREC Common Stock equal to the number of shares to which such holder is entitled pursuant to such Optional Conversion.

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

(c) Upon any conversion of this Note, the rights of Lender with respect to the unpaid principal amount hereunder converted into shares of HOFREC Common Stock shall cease and Lender shall be deemed to have become the owner of the shares of HOFREC Common Stock into which such principal amount of this Note shall have been converted and such converted principal amount shall be extinguished and deemed to have been forgiven or repaid and shall no longer be outstanding and no future interest shall accrue on any such amount.

 

(d) All shares of HOFREC Common Stock delivered upon any Optional Conversion will, upon such conversion, be duly and validly authorized and issued, fully paid and nonassessable, free from all preemptive rights, free from all taxes, liens, security interests, charges and encumbrances (other than liens, security interests, charges or encumbrances created by or imposed upon the holder or taxes in respect of any transfer occurring contemporaneously therewith).

 

(e) The issuance of shares of HOFREC Common Stock upon conversion of all or any portion of the principal amount of this Note pursuant to any Optional Conversion shall be made without payment of additional consideration by, or other charge, cost or tax to, Lender in respect thereof; provided, however, that HOFREC shall not be required to pay any tax or other governmental charge that may be payable with respect to the issuance or delivery of any shares of HOFREC Common Stock in the name of any person other than Lender, and no such delivery shall be made unless and until the person requesting such issuance has paid to HOFREC the amount of any such tax or charge, or has established to the satisfaction of HOFREC that such tax or charge has been paid or that no such tax or charge is due.

 

(f) HOFREC shall at all times reserve and keep available out of its authorized but unissued shares of HOFREC Common Stock, solely for the purpose of issuance upon conversion of the principal amount of this Note in accordance with this Section 17, such number of shares of HOFREC Common Stock issuable upon the conversion of all outstanding principal amount of this Note pursuant to any Optional Conversion at the Conversion Price. HOFREC shall take all such actions as may be necessary to assure that all such shares of HOFREC Common Stock may be so issued without violation of any applicable law or governmental regulation applicable to HOFREC or any requirements of any securities exchange upon which shares of HOFREC Common Stock may be listed (except for official notice of issuance, which shall be immediately delivered by HOFREC upon each such issuance). HOFREC shall not take any action which would cause the number of authorized but unissued shares of HOFREC Common Stock to be less than the number of such shares required to be reserved hereunder for issuance upon conversion of the principal amount of this Note.

 

(g) No fractional shares of HOFREC Common Stock shall be issued upon any Optional Conversion of all or any portion of the principal amount of this Note. In lieu of delivering a fractional share of HOFREC Common Stock to any holder in connection with an Optional Conversion, any fractional share of HOFREC Common Stock shall be rounded up or down to the next whole number or zero, as applicable (with one-half being closer to the next lower whole number for this purpose).

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

(h) The Conversion Price shall be subject to a weighted average anti-dilution adjustment from time to time as follows: 

 

(i) If HOFREC shall at any time or from time to time during the period from the date of this Note to the Note Maturity Date, issue any additional shares of HOFREC Common Stock (or be deemed to have issued any shares of HOFREC Common Stock as provided herein), other than Excluded Securities (as defined in Section 17(h)(iii)) and Excluded Transactions (as defined in Section 17(h)(iv)) (such additional shares, “Additional Shares”), without consideration or for a consideration per share less than the Conversion Price in effect immediately prior to the issuance of HOFREC Common Stock, the Conversion Price in effect immediately prior to such issuance shall forthwith be lowered to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:

 

CP2 = CP1 * (A + B) ÷ (A + C)

 

For purposes of the foregoing formula, the following definitions shall apply:

 

●

“CP2” shall mean the Conversion Price in effect immediately after such issue of Additional Shares of HOFREC Common Stock;

 

●

“CP1” shall mean the Conversion Price in effect immediately prior to such issue of Additional Shares of HOFREC Common Stock;

 

●

“A” shall mean the number of shares of HOFREC Common Stock outstanding immediately prior to such issue of Additional Shares of HOFREC Common Stock (including any shares of HOFREC Common Stock deemed to have been issued pursuant to Section 17(h)(ii)(D));

 

●

“B” shall mean the number of shares of HOFREC Common Stock that would have been issued if such Additional Shares of HOFREC Common Stock had been issued at the price per share equal to CP1 (determined by dividing the aggregate consideration received by HOFREC in respect of such issue by CP1); and

 

●

“C” shall mean the number of such Additional Shares of HOFREC Common Stock issued in such transaction.

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

(ii) For the purposes of any adjustment of the Conversion Price pursuant to Section 17 (h)(i), the following provisions shall be applicable:

 

(A) In the case of the issuance of HOFREC Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting therefrom any discounts, commissions or other expenses allowed, paid or incurred by HOFREC for any underwriting or otherwise in connection with the issuance and sale thereof.

 

(B) In the case of the issuance of HOFREC Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors of HOFREC, irrespective of any accounting treatment.

 

(C) In the case of the issuance of HOFREC Common Stock without consideration, the consideration shall be deemed to be $0.01 per share.

 

(D) In the case of the issuance of (x) options or warrants to purchase or rights to subscribe for HOFREC Common Stock, (y) debt or securities by their terms convertible into or exchangeable for HOFREC Common Stock or (z) options to purchase rights to subscribe for such convertible or exchangeable securities:

 

(1) the aggregate maximum number of shares of HOFREC Common Stock deliverable upon exercise of such options or warrants to purchase or rights to subscribe for HOFREC Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in subdivisions (A), (B) and (C) above), if any, received by HOFREC upon the issuance of such options, warrants or rights plus the minimum purchase price provided in such options, warrants or rights for the HOFREC Common Stock covered thereby; and

 

(2) the aggregate maximum number of shares of HOFREC Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable debt or securities or upon the exercise of options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or warrants or rights were issued and for a consideration equal to the consideration received by HOFREC for any such securities and related options or warrants or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by HOFREC upon the conversion or exchange of such securities or the exercise of any related options or warrants or rights (the consideration in each case to be determined in the manner provided in subdivisions (A), (B) and (C) above).

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

(iii) For purposes of this Section 17(h), the term “Excluded Securities” shall mean (i) shares of HOFREC Common Stock issued to officers, employees, directors or consultants of HOFREC and its subsidiaries, pursuant to any agreement, plan or arrangement approved by the Board of Directors of HOFREC, or options or warrants to purchase or rights to subscribe for such HOFREC Common Stock, or debt or securities by their terms convertible into or exchangeable for such HOFREC Common Stock, or options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities pursuant to such agreement, plan or arrangement; (ii) shares of HOFREC Common Stock issued as a stock dividend or upon any stock split or other subdivision or combination of shares of HOFREC Common Stock; or (iii) securities issued pursuant to the acquisition of another corporation or other entity by HOFREC by merger or purchase of stock or purchase of all or substantially all of such other corporation’s or other entity’s assets whereby HOFREC owns not less than a majority of the voting power of such other corporation or other entity following such acquisition or purchase.

 

(iv) For purposes of this Section 17(h), the term “Excluded Transactions” shall mean sales of shares of Common Stock issued under the Company’s “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act; provided, however, that each financial quarter during which the Company’s sales of such shares reaches a multiple of $5 million aggregate consideration beginning with sales occurring after the Effective Date for an average consideration per share for such multiple of $5 million aggregate consideration that is less than the Exercise Price then in effect at the end of such financial quarter, the Exercise Price in effect at the end of such financial quarter shall forthwith be lowered to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the formula set forth in Section 17(h)(i), with the following adjustments: (A) “A” shall mean the difference of (1) the number of shares of Common Stock outstanding immediately following the sale of a share under the Company’s “at the market offering” that reaches a multiple of $5 million (including any shares of Common Stock deemed to have been issued pursuant to Section 15(h)(ii)(D)), minus (2) the number of shares of Common Stock issued under the Company’s “at the market offering” for such multiple of $5 million and (B) “C” shall mean the number of such shares of Common Stock issued under the Company’s “at the market offering” for such multiple of $5 million.

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

(i) Nasdaq 19.99% Cap. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents (defined below), HOFRECo and Lender agree that the total cumulative number of shares of HOFRECo Common Stock that may be issued to Lender hereunder and under the other Transaction Documents may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the number of shares of HOFRECo Common Stock issued to Lender under this Note and the other Transaction Documents reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), HOFRECo, at its election, will use reasonable commercial efforts to obtain stockholder approval of this Note and the issuance of additional shares of HOFRECo Common Stock upon the conversion of the portion of the Loan under this Note, if necessary, in accordance with the requirements of Nasdaq Listing Rule 5635(d) (the “Approval”). For purposes hereof, “Transaction Documents” means, collectively (A) this Note, and (B) all other securities and warrants issued, effective as of the Effective Date, by HOFRECo in connection with the transactions contemplated by this Note.

 

(j) Prepayment Notice. Prior to the prepayment of all or any portion of the loan evidenced by this Note, Borrower shall provide at least ten (10) days’ written notice to Lender. Within twenty (20) Business Days after Lender’s receipt of such notice, Lender shall have the right (but not the obligation) to convert all or any portion of the loan evidenced by this Note, in accordance with this Section 17, at the Conversion Price then in effect.”

 

3. No Other Change. Except as modified herein, all of the terms, covenants and conditions of the Note, the Loan Agreement and other Loan Documents shall remain as originally written. The Note shall remain in full force and effect in all respects as if the unpaid balance of the principal, with the interest accrued thereon, had originally been payable as provided for herein. Nothing herein shall affect or impair any rights and powers which Lender may have thereunder. Except as modified herein, all of the terms, covenants and conditions of the Note shall remain as originally written.

 

4. No Setoffs. Borrower hereby declares that Borrower has no setoffs, counterclaims, defenses or other causes of action against Lender arising out of the Loan or any documents mentioned herein; and to the extent any such setoffs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are hereby waived by Borrower.

 

5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, and all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (e.g. “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

6. Captions. The captions and headings of various sections of this Amendment and exhibits pertaining hereto are for convenience only and not to be considered as defining or limiting in any way the scope or intent of the provisions hereof.

 

7. Warrant of Attorney. Borrower authorizes any attorney at law to appear in any court of record in the State of Ohio or in any other state or territory of the United States of America after the loan evidenced by the Note becomes due, whether by acceleration or otherwise, to waive the issuing and service of process, and to confess judgment against Borrower in favor of Lender for the amount then appearing due on the Note, together with costs of suit, and thereupon to waive all errors and all rights of appeal and stays of execution. Borrower waives any conflict of interest that an attorney hired by Lender may have in acting on Borrower’s behalf in confessing judgment against Borrower while such attorney is retained by Lender. Borrower expressly consents to such attorney acting for Borrower in confessing judgment and to such attorney’s fee being paid by Lender or deducted from the proceeds of collection of this Note or collateral security therefor.

 

[Remainder of page intentionally left blank;

Signatures commence on following page.]

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

IN WITNESS WHEREOF, this Amendment has been executed by the undersigned as of the date and year first above written.

 

Borrower:

 

WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON ITS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

HALL OF FAME RESORT &
ENTERTAINMENT COMPANY,
a Delaware corporation

 

By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

Borrower, cont.:

 

WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON ITS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

HOF VILLAGE NEWCO, LLC,
a Delaware limited liability company

 

By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

Borrower, cont.:

 

WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON ITS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

 

HOF VILLAGE YOUTH FIELDS, LLC,
a Delaware limited liability company

 

By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

Lender:

 

CH CAPITAL LENDING, LLC,
a Delaware limited liability company,
in its capacity as Agent

 

By:

Holdings SPE Manager, LLC, a Delaware limited liability company, its Manager

 

	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

Agent, by its signature below, hereby consents to the provisions of this Amendment. Without limiting the foregoing, (a) the indebtedness evidenced by this Note and Amendment shall be considered “Permitted Indebtedness” under the Loan Agreement, (b) the shares of HOFREC Common Stock to be issued upon conversion of all or any portion of the indebtedness evidenced by this Note shall be considered “Permitted Equity Issuances” under the Term Loan Agreement, and (c) Agent hereby consents to the Security Interests granted to Agent and Lender.

 

Agent:

 

CH CAPITAL LENDING, LLC,
a Delaware limited liability company,
in its capacity as Agent

 

By:

Holdings SPE Manager, LLC, a Delaware limited liability company, its Manager

 

	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

Agreed and accepted by cross-collateralized lenders:

 

IRG, LLC,
a Nevada limited liability company

 

By:

S.L. Properties, Inc., a Delaware corporation, its Manager

 

	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

JKP FINANCIAL, LLC,
a Delaware limited liability company

 

By:	/s/ John A. Mase
	Name:	John A. Mase
	Title:	Chief Executive Officer

 

MIDWEST LENDER FUND, LLC,
a Delaware limited liability company

 

By:

S.L. Properties, Inc., a Delaware corporation, its Manager

 

By:	/s/ Stuart Lichter
Name:	Stuart Lichter
Title:	President

 

First Amendment to Second A&R Note CH Capital Lending (former Aquarian)

 

 

13

 

Exhibit 10.4

 

FIFTH AMENDMENT TO AND SPREADER OF
PLEDGE AND SECURITY AGREEMENT

 

This FIFTH AMENDMENT TO AND SPREADER OF PLEDGE AND SECURITY AGREEMENT (this “Amendment”) is effective as of December 8, 2023 (the “Effective Date”), by (i) Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOFREC”), HOF Village Newco, LLC, a Delaware limited liability company (“HOF Newco”), and HOF Village Youth Fields, LLC, a Delaware limited liability company (“HOF Youth Fields”; HOFREC, HOF Newco, and HOF Youth Fields are collectively referred to herein as “Grantors”); and (ii) CH CAPITAL LENDING, LLC, a Delaware limited liability company, in its role as Administrative Agent/Collateral Agent (in such capacity, “Administrative Agent/Collateral Agent”) for (a) CH Capital Lending, LLC, a Delaware limited liability company (“CH Capital Lending”), (b) IRG, LLC, a Nevada limited liability company (“IRG, LLC”), (c) JKP Financial, LLC, a Delaware limited liability company (“JKP Financial”), and (d) Midwest Lender Fund, LLC, a Delaware limited liability company (“Midwest Lender Fund”; CH Capital Lending, IRG, LLC, JKP Financial, and Midwest Lender Fund are referred to herein, collectively, as the “Secured Parties”).

 

RECITALS:

 

A. Grantors and Administrative Agent/Collateral Agent are the current parties to that certain Pledge and Security Agreement, dated as of December 1, 2020, as affected and amended by (i) that certain Joinder Agreement to Pledge and Security Agreement dated as of February 17, 2021, (ii) that certain First Amendment to Pledge and Security Agreement dated as of December 15, 2021, (iii) that certain Joinder Agreement to Pledge and Security Agreement dated as of March 1, 2022, (iv) that certain Second Amendment to Pledge and Security Agreement dated as of July 31, 2022 (the “Second Amendment”), (v) that certain Third Amendment to Pledge and Security Agreement dated as of November 7, 2022, and (vi) that certain Fourth Amendment and Spreader to Pledge and Security Agreement dated effective as of November 7, 2022 (as so affected and amended, the “Existing Security Agreement”). The Existing Security Agreement, as amended by this Amendment and as it may further be amended, restated, amended and restated, supplemented, refinanced, renewed, replaced, extended or otherwise modified from time to time, is referred to herein as the “Security Agreement.”

 

B. Reference is further made to the following agreements and instruments (collectively, amended, restated, amended and restated, supplemented, refinanced, renewed, replaced, extended or otherwise modified from time to time, the “Secured Instruments”):

 

(i) That certain Term Loan Agreement (as amended, restated, supplemented, waived, or otherwise modified from time to time, including by an amendment dated effective as of the Effective Date, the “Term Loan Agreement”), dated as of December 1, 2020, among the entities identified therein as co-borrowers, and Aquarian Credit Funding LLC, as lead arranger, administrative agent, collateral agent and representative of the lenders party thereto, as assigned to CH Capital Lending (in its capacity as Administrative Agent and in its capacity as Lender), on March 1, 2022, and all agreements, instruments, and promissory notes executed in connection with the Term Loan Agreement, including that certain Second Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $8,786,700.61, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, including that certain First Amendment to Second Amended and Restated Secured Cognovit Promissory Note, dated as of the Effective Date (“First Amendment to Term Loan Note”);

 

Fifth Amendment to Pledge and Security Agreement (former Aquarian)

 

 

(ii) That certain Joinder and First Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $10,504,940.89, from Grantors to CH Capital Lending, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time;

 

(iii) That certain Joinder and Second Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $4,273,543.46, from Grantors to IRG, LLC, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time;

 

(iv) That certain Joinder and Second Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $4,273,543.46, from Grantors to JKP Financial, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time;

 

(v) That certain Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $9,097,203.95, from Grantors to JKP Financial, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time; and

 

(vi) That certain Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $4,000,000.00, from Grantors to Midwest Lender Fund, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time.

 

C. Grantors and Administrative Agent/Collateral Agent (on its own behalf and on behalf of the Secured Parties) wish to amend the Existing Security Agreement, upon the terms and conditions set forth in this Amendment.

 

D. The First Amendment to Term Loan Note increasing the outstanding principal balance from $8,786,700.61 to $14,139,153.54 is part of the consideration for this Amendment.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors and Administrative Agent/Collateral Agent hereby agree as follows:

 

1. Recitals; Definitions. The foregoing Recitals are hereby incorporated into this Amendment as if set forth in full herein. Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same meanings herein as ascribed to such terms in the Security Agreement.

 

Fifth Amendment to Pledge and Security Agreement (former Aquarian)

 

 

2. Additional Draw Permitted. Grantors as borrowers shall have the right to make additional draws on the Loan up to the amount of $4,600,000 and, to the extent such draws are made, that amount plus the balance of the amounts due under the terms of the Secured Instruments, shall be secured by the security interest granted in Section 3 below.

 

3. JCI Funds Collateral. Section 3.01 of the Existing Security Agreement is hereby amended by adding a new subsection (a-4), immediately following subsection (a-3) and before the paragraph beginning with “Furthermore” as previously amended in the Second Amendment as follows:

 

(a-4) Subject to the rights of SC230063, LLC and as set forth in that certain Consent, Partial Release and Subordination Agreement dated May 9, 2023 executed and delivered by HOF Newco, CH Capital Lending, LLC, IRG, LLC, Midwest Lender Fund, LLC, and JKP Financial, LLC, in favor of SC230063, LLC, as security for the payment or performance, as the case may be, in full of the Obligations, HOF Newco hereby assigns and pledges to the Administrative Agent, for the benefit of the Secured Parties, and hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a Lien on and security interest in all right, title or interest in or to the rights of HOF Newco in and to (a) any judgment obtained by or granted to them against Johnson Controls International PLC and/or its subsidiaries (collectively, “Johnson Controls”), (b) any settlement proceeds received or to be received by them from Johnson Controls, and (c) the proceeds arising out of any of the foregoing (collectively, the “JCI Funds Collateral”).

 

4. Security Interest Under HNB/Retail Loan. The parties acknowledge that the JCI Funds Collateral is also subject to that certain Security Agreement executed on November 21, 2023 and effective September 21, 2023, by HOFREC and HOF Newco in favor of CH Capital Lending in connection with a loan for up to $10,000,000.

 

5. Miscellaneous.

 

(a) Except as expressly modified by this Amendment, the terms and provisions of the Security Agreement are hereby ratified and confirmed and shall continue in full force and effect. The Security Agreement shall continue to be legal, valid, binding and enforceable, in accordance with its terms, on all of the Grantors and Administrative Agent/Collateral Agent.

 

(b) The provisions of this Amendment are independent of and separable from each other. If any provision hereof shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof, but this Amendment shall be construed as if such invalid or unenforceable provision had never been contained herein.

 

(c) This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.

 

[Remainder of page intentionally left blank; signature pages follow]

 

 

Fifth Amendment to Pledge and Security Agreement (former Aquarian)

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment effective as of the Effective Date first written above.

 

Grantors:
HALL OF FAME RESORT &
ENTERTAINMENT COMPANY,
a Delaware corporation
By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

HOF VILLAGE NEWCO, LLC,
a Delaware limited liability company
By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

HOF VILLAGE YOUTH FIELDS, LLC,
a Delaware limited liability company
By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

Fifth Amendment to Pledge and Security Agreement (former Aquarian)

 

 

Administrative Agent/Collateral Agent:

 

CH CAPITAL LENDING, LLC,
a Delaware limited liability company,
as Administrative Agent/Collateral Agent

 

By:	Holdings SPE Manager, LLC,
	a Delaware limited liability company,
	its Manager

 

	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

Agreed and accepted by cross-collateralized lenders:

 

IRG, LLC,
a Nevada limited liability company

 

By:	S.L. Properties, Inc.,
	a Delaware corporation,
	its Manager

 

	By:	/s/ John A. Mase
		Name:	John A. Mase
		Title:	Chief Executive Officer

 

JKP FINANCIAL, LLC,
a Delaware limited liability company

 

By:	/s/ John A. Mase
	Name:	John A. Mase
	Title:	Chief Executive Officer

 

MIDWEST LENDER FUND, LLC,
a Delaware limited liability company

 

By:	S.L. Properties, Inc.,
	a Delaware corporation,
	its Manager

 

	By:	/s/ Stuart Lichter
		Name:	Stuart Lichter
		Title:	President

 

 

Fifth Amendment to Pledge and Security Agreement (former Aquarian)

 

Exhibit 10.5

 

THIRD AMENDMENT TO AND SPREADER OF OPEN-END FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING

 

THIS THIRD AMENDMENT TO AND SPREADER OF OPEN-END FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Third Amendment”) is made as of December 8, 2023 (the “Effective Date”) by and between HOF VILLAGE YOUTH FIELDS, LLC, a Delaware limited liability company (“Leasehold Grantor”), HOF VILLAGE PARKING, LLC, a Delaware limited liability company (“Parking Grantor”), and HOF VILLAGE NEWCO, LLC, a Delaware limited liability company (the “Fee Grantor”) (Leasehold Grantor and Fee Grantor, collectively, “Grantor”), and CH CAPITAL LENDING, LLC, a Delaware limited liability company, as administrative agent for the Lenders (together with its successors and assigns in such capacity hereinafter referred to as “Administrative Agent” or “Secured Party”) having an address of 11111 Santa Monica Blvd., Suite 800, Los Angeles, California 90025.

 

PRELIMINARY STATEMENTS

 

A. Reference is hereby made to (i) that certain Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of December 1, 2020, from Grantor and certain other parties in favor of Administrative Agent, recorded on December 2, 2020 as Instrument No. 202012020053155 in the Stark County, Ohio Records (“Original Mortgage”), as partially released by (ii) that certain Partial Release of Mortgage, dated as of December 15, 2021, recorded on December 17, 2021 as Instrument No. 202112170065680 in the Stark County, Ohio Records (“First Release”), as assigned by (iii) that certain Assignment of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of March 1, 2022, recorded on March 3, 2022 as Instrument No. 202203030009630 in the Stark County, Ohio Records, as amended by (iv) that certain First Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of March 1, 2022, recorded on March 3, 2022 as Instrument No. 202203030009751 in the Stark County, Ohio Records (“First Amendment to Mortgage”), as partially released by (v) that certain Partial Release of Mortgage, dated as of November 7, 2022, recorded on November 18, 2022 as Instrument No. 202211180047984 in the Stark County, Ohio Records, and (vi) that certain Second Amendment to and Spreader of Open-End Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, executed on March 17, 2023, effective as of November 7, 2022, recorded on March 23, 2023 as Instrument No. 202303230008694 in the Stark County, Ohio Records (as so partially released, assigned, and amended, collectively, the “Existing Mortgage”)

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

B. Fee Grantor is the owner in fee simple of those certain parcels of real property described on Exhibit A-1 attached hereto and made a part hereof (collectively, the “Fee Premises”).

 

C. Leasehold Grantor is the owner of a subleasehold estate in those certain parcels of real property described on Exhibit A-2 attached hereto and made a part hereof (the “YF Leasehold Premises”). The YF Leasehold Premises were part of the real property encumbered by the Original Mortgage, then removed in the First Release, then reinstated in the First Amendment.

 

D. Parking Grantor is the owner of a subleasehold estate in that certain parcel of real property described on Exhibit A-3 attached hereto and made a part hereof (the “Parking Leasehold Premises”)

 

E. Reference is hereby made to Fee Grantor, Leasehold Grantor and Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOFREC” along with Fee Grantor and Leasehold Grantor, collectively the “Borrowers”), along with Administrative Agent as parties to that certain Term Loan Agreement dated December 1, 2020, (a) as amended by Amendment Number 1 to Term Loan Agreement dated January 28, 2021, Amendment Number 2 to Term Loan Agreement dated February 15, 2021, Amendment Number 3 to Term Loan Agreement dated August 30, 2021, Amendment Number 4 to Term Loan Agreement dated August 30, 2021, and Amendment Number 5 to Term Loan Agreement dated December 15, 2021, (b) as assigned to Administrative Agent and Lender pursuant to that certain Assignment of Loan and Loan Documents, dated March 1, 2022, by and among Aquarian Credit Funding LLC, as the previous Administrative Agent, Investors Heritage Life Insurance Company, as the previous Lender, and CH Capital Lending, LLC, as the new Administrative Agent and the new Lender, (c) as affected by that certain Assumption and Joinder Agreement to Loan Agreement, dated as of March 1, 2022, executed and delivered by HOFV Youth Fields to Administrative Agent, and (d) as further amended by Amendment Number 6 to Term Loan Agreement dated March 1, 2022, Amendment Number 7 to Term Loan Agreement dated July 31, 2022, Amendment Number 8 to Term Loan Agreement dated November 7, 2022, as modified by that certain Modification Agreement effective as of October 6, 2023, and Amendment Number 9 to Term Loan Agreement dated as of the Effective Date (all of the foregoing, collectively, the “Term Loan Agreement”.) To the extent a capitalized term is not defined herein such term shall have the meaning given to it in the Term Loan Agreement.

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

F. Reference is further made to the following agreements and instruments (collectively, the “Secured Instruments”):

 

(i) that certain Second Amended and Restated Secured Cognovit Promissory Note (the “Note”), dated effective as of November 7, 2022, in the original principal amount of $8,786,700.61 made in connection with the Term Loan Agreement, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, including that certain First Amendment to Second Amended and Restated Secured Cognovit Promissory Note made by Borrowers to Administrative Agent, dated effective as of the Effective Date, increasing the principal amount of the Note to $14,139,153.54;

 

(ii) That certain Joinder and First Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $10,504,940.89, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, from Borrowers to CH Capital Lending, LLC, a Delaware limited liability company (“CH Capital Lending”);

 

(iii) That certain Joinder and Second Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $4,273,543.46, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, from Borrowers to IRG, LLC, a Nevada limited liability company (“IRG, LLC”);

 

(iv) That certain Joinder and Second Amended and Restated Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $4,273,543.46, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, from Borrowers to JKP Financial, LLC, a Delaware limited liability company (“JKP Financial”),

 

(v) That certain Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $9,097,203.95, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, from Borrowers to JKP Financial; and

 

(vi) That certain Secured Cognovit Promissory Note, dated effective as of November 7, 2022, in the original principal amount of $4,000,000.00, as amended, restated, supplemented, waived, assigned, or otherwise modified from time to time, from Borrowers to Midwest Lender Fund, LLC, a Delaware limited liability company (“Midwest Lender Fund”; CH Capital Lending (in its capacity as a Lender), IRG, LLC, JKP Financial, and Midwest Lender Fund are collectively referred to herein as “Lenders”).

 

G. Grantor and the other entities that comprise Borrowers are jointly and severally liable for all obligations under the Secured Instruments.

 

H. Pursuant to the terms of the Secured Instruments, all of the obligations of Borrower under the Secured Instruments are secured by the Existing Mortgage, as amended by this Third Amendment.

 

I. Grantor will directly benefit from the loans evidenced by the Secured Instruments, since the real property interests held by Grantor, which are encumbered by the Existing Mortgage, are part of the Hall of Fame Village, the continuing development of which is being financed partially by the loans evidenced by the Secured Instruments.

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

J. Grantor has therefore agreed, in consideration for the loans evidenced by the Secured Instruments, to amend the Existing Mortgage such that (i) the Existing Mortgage shall secure all obligations under all of the Secured Instruments, (ii) the maximum principal indebtedness secured by the Existing Mortgage (as amended by this Third Amendment) shall be Sixty-Six Million Three Thousand Eight Hundred Ninety-Eight and 56/100 Dollars ($66,003,898.56), exclusive of interest, taxes, legal fees and costs advanced for preservation of the Property, as fully and completely as though said amount were stated in the Existing Mortgage.

 

K. Borrowers and Administrative Agent, in its capacity as the Administrative Agent under the Loan Agreement and the Lender under the Loan Agreement, have entered into that certain Amendment Number 9 to Term Loan Agreement dated as of the Effective Date and pursuant to the terms set forth therein, including an increase of the principal amount under the Note, the parties have agreed to enter into this Third Amendment.

 

AGREEMENT

 

In consideration of the mutual promises hereinafter contained and of other valuable consideration, the receipt and sufficiency of which are acknowledged, the parties acknowledge the preliminary statements and agree as follows:

 

1. Preliminary Statements. The foregoing Preliminary Statements are hereby incorporated into this Third Amendment as if set forth in full herein.

 

2. Additional Property.

 

a. Play Action Plaza and Parking Parcel. To secure to Administrative Agent the Indebtedness, (a) Fee Grantor does hereby mortgage and warrant, grant and convey to Administrative Agent the fee estate and all rights related thereto in the real property commonly known as the Play Action Plaza Parcel located in the City of Canton, County of Stark, State of Ohio, and more particularly described on Exhibit A-1 attached hereto and the same is hereby added to Exhibit A attached to the Existing Mortgage, and (b) Parking Grantor does hereby mortgage and warrant, grant and convey to Administrative Agent the subleasehold estate and all rights related thereto in the Parking Parcel located in the City of Canton, County of Stark, State of Ohio, and more particularly described on Exhibit A-2 attached hereto and the same is hereby added to Exhibit A attached to the Existing Mortgage. All defined terms within the Existing Mortgage shall also include the Play Action Plaza fee estate and the Parking Parcel subleasehold estate, to the extent applicable. The effect of the foregoing is that the Existing Mortgage shall (i) encumber the Play Action Plaza Parcel fee estate, (ii) the Parking Parcel subleasehold estate, and (iii) continue, without interruption, to encumber the YF Leasehold Premises, as more particularly described on Exhibit A-2.

 

(b) Each reference to the Mortgage in any other Loan Document is deemed to refer to the Existing Mortgage as amended and modified by this Third Amendment. This Third Amendment is deemed incorporated into each of the Loan Documents by reference. To the extent that any term or provision of this Third Amendment is or may be inconsistent with any term or provision in the Existing Mortgage, the term or provision of this Third Amendment will control.

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

(c) Grantor hereby confirms that the Existing Mortgage, as amended and modified by this Third Amendment, and the Property pledged therein, continue as collateral for, without limitation, the Indebtedness, unimpaired and in full force and effect.

 

3. Amendment and Spreader. The Existing Mortgage is amended such that (a) it shall in each and every instance and respect be deemed to secure the obligations under all of the Secured Instruments; (b) the maximum principal amount under the Existing Mortgage (as amended by this Third Amendment) shall be deemed amended and spread to include the principal amounts of all of the Secured Instruments, and the total principal indebtedness outstanding shall not exceed Sixty-Six Million Three Thousand Eight Hundred Ninety-Eight and 56/100 Dollars ($66,003,898.56), exclusive of interest, taxes, legal fees and costs advanced for preservation of the Property (collectively, the “Indebtedness”); and (c) an Event of Default under the Existing Mortgage (as amended by this Third Amendment) shall be deemed to include the failure to pay timely under, or to perform the other obligations under, any of the Secured Instruments, in accordance with the terms and conditions of said Loan Documents.

 

4. Collateral Continues Unimpaired. Grantor hereby confirms that the Existing Mortgage, as amended and modified by this Third Amendment, and the Property pledged therein, continue as collateral for, without limitation, the Indebtedness and the other obligations under the Secured Instruments, unimpaired and in full force and effect.

 

5. Incorporation by Reference; Definitional Matters.

 

(a) This Third Amendment is deemed incorporated into each of the Secured Instruments by reference. Each reference in any Secured Instrument to the Existing Mortgage or to the “Mortgage” is deemed to refer to the Existing Mortgage as amended and modified by this Third Amendment. Each reference in the Existing Mortgage to the “Loan Documents” is deemed to include the Existing Mortgage, this Third Amendment, all of the Secured Instruments, and all agreements, instruments, and documents executed and delivered in connection therewith.

 

(b) Each reference in the Existing Mortgage to the “Note” is deemed to refer, collectively, to all of the Secured Instruments. Each reference in the Existing Mortgage to the “Debt” is deemed to refer, collectively, to all amounts payable by Grantor and by the other entities that comprise Borrower under all of the Secured Instruments.

 

(c) In the event of any inconsistency between any term or provision of the Existing Mortgage and any term or provision of this Third Amendment, the term or provision of this Third Amendment will control. In the event of any inconsistency between any term or provision of the Existing Mortgage (as amended by this Third Amendment) and any term or provision of the other Secured Instruments, the term or provision of the other Secured Instruments will control.

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

6. Representations. Grantor hereby represents and warrants to Administrative Agent and Lenders that (a) Grantor has the legal power and authority to execute and deliver this Third Amendment; (b) the persons executing this Third Amendment on behalf of Grantor have been duly authorized to execute and deliver the same and bind Grantor with respect to the provisions hereof; (c) the execution and delivery hereof by Grantor and the performance and observance by Grantor of the provisions hereof do not violate or conflict with the organizational documents of Grantor or any law applicable to Grantor, nor result in a breach of any provisions of or constituting default under any agreement, instrument or document binding upon or enforceable against Grantor; (d) this Third Amendment constitutes a valid and binding obligation upon Grantor in every respect; and (e) no default exists under or as defined in any of the Secured Instruments, and no event currently exists that, given the passage of time or the giving of notice or both, would constitute such a default.

 

7. Counterparts. This Third Amendment may be executed in any number of counterparts, all of which shall constitute a single agreement.

 

8. Successors and Assigns. This Third Amendment is binding upon, and inures to the benefit of, Grantor and Administrative Agent, and their respective heirs, executors, administrators, successors and assigns.

 

9. Governing Law. This Third Amendment is deemed made in the State of Ohio, and shall be governed by the laws of the State of Ohio.

 

10. Effect of Third Amendment; Ratification. Except as amended and modified by this Third Amendment, the terms and provisions of the Existing Mortgage remain unchanged, and will remain in full force and effect unless and until modified or amended in writing in accordance with the provisions of the Existing Mortgage (as amended by this Third Amendment), and are hereby ratified and confirmed. Except as expressly provided in this Third Amendment, this Third Amendment does not constitute an amendment, waiver, consent, or release with respect to any provision of any Secured Instrument or other Loan Document, a waiver of any default or event of default under any Secured Instrument or other Loan Document, or a waiver or release of any of Administrative Agent’s rights or remedies (all of which are hereby reserved). To the extent not specifically amended in this Third Amendment, Grantor ratifies and confirms all the terms and conditions, representations and warranties set forth in the Existing Mortgage, the Secured Instruments and other Loan Documents, and every other document delivered by Grantor to Administrative Agent and Lenders.

 

11. No Claim. Grantor agrees that Grantor has no defense, set off, counterclaim, discount, or charge of any kind against Administrative Agent or any of the Lenders, or their officers, directors, employees, agents or attorneys with respect to the Existing Mortgage and the other Secured Instruments.

 

12. Section Headings. All Section headings, footers, and headers in this Third Amendment are for reference only and are not a part of the substantive provisions of this Third Amendment.

 

(No further text on this page-Signature page follows)

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

 

IN WITNESS WHEREOF, Grantor has executed this Third Amendment as of the day and year first above written.

 

	GRANTOR:
	HOF VILLAGE NEWCO, LLC,
	HOF VILLAGE YOUTH FIELDS, LLC,
	HOF VILLAGE PARKING, LLC
	each a Delaware limited liability company
	By:	/s/ Michael Crawford
		Name:	Michael Crawford
		Title:	Chief Executive Officer

 

STATE OF OHIO	)
	) ss
COUNTY OF _____________	)

 

BEFORE ME, a Notary Public in and for said County and State, personally appeared Michael Crawford, in his capacity as (i) President and Chief Executive Officer of HOF VILLAGE NEWCO, LLC, a Delaware limited liability company, and (ii) President and Chief Executive Officer of HOF VILLAGE YOUTH FIELDS, LLC, a Delaware limited liability company, and (iii) President and Chief Executive Officer of HOF VILLAGE PARKING, LLC, a Delaware limited liability company, who acknowledged that he did sign the foregoing Third Amendment and that the same is his free act and deed and the free act and deed of said limited liability company. This is an acknowledgement clause. No oath or affirmation was administered to the signer.

 

IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal, this _____ the day of ____________, 2023.

 

	Notary Public

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

IN WITNESS WHEREOF, Administrative Agent has executed this Third Amendment as of the day and year first above written.

 

	ADMINISTRATIVE AGENT:
	CH CAPITAL LENDING, LLC, a Delaware limited liability company
	By:	Holdings SPE Manager, LLC
		a Delaware limited liability company,
		its Manager
	By:	/s/ John Mase
	Name:	John Mase
	Title:	Chief Executive Officer

 

ACKNOWLEDGMENT

 

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

 

STATE OF CALIFORNIA	)
	) ss.
COUNTY OF LOS ANGELES	)

 

On _______________________, 2023, before me, ____________________________________, Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

(Seal)

 

 

 

Prepared by:
John W. Waldeck, Jr., Esq.
Walter | Haverfield LLP
The Tower at Erieview
1301 E. Ninth Street, Suite 3500
Cleveland, Ohio 44114

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

EXHIBIT A-1

 

Legal Description

for HOF Village Newco Fee Estate

 

Play Action Plaza

 

Situated in the City of Canton, Stark County, Ohio, and known as O.L. 1479 on that certain HOF Village Replat recorded in the Office of the Recorder of Stark County as Instrument No. 202203250013418, containing 3.10 acres, more or less.

 

Parcel No. 10015054

 

The Property address is:  2101 Champions Gtwy NW, Canton, OH 44708

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

EXHIBIT A-2

 

Legal Description

for HOF Village Youth Fields

Leasehold Estate

 

[See Attached]

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

EXHIBIT A-3

 

Legal Description

for HOF Village Parking Subleasehold Estate

 

 

 

Situated in the City of Canton, Stark County, and State of Ohio, also known as being part of Out Lot No. 1380 in the Replat of Canton City Lots 34196-34207, part of Lot 34965, Out Lot 536, 705 recorded in instrument number 201602170005863 of the Stark County Records and bounded and described as follows:

 

Commencing at an iron pin at the intersection of the Northerly line of 17th Street (50 feet wide) and the easterly line of Clarendon Avenue (50 feet wide), thence North 01° 28’47” East along the said easterly line of Clarendon Avenue, a distance of 162.00 feet to an iron pin set thereon and being the Place of Beginning of the parcel of land herein described;

 

Thence North 01° 28’47” East continuing along the said easterly line of Clarendon Avenue, a distance of 328.86 feet to the southwesterly corner of Fulton Heights Addition as recorded in Plat Volume 9 Page 54 of the Stark County Records, said point being referenced by a 3/4 inch iron pin found 0.65 feet north and 1.17 feet east;

 

Thence South 88°34’05” East along the southerly line of Fulton Heights Addition, a distance of 580.00 feet to a 3/4 inch iron pin found 0.09 feet north of a northwesterly corner of Out Lot 1379 as recorded in Instrument Number 201602170005863 of the Stark County Records;

 

Thence South 01°37’34” West along a westerly line of said Out Lot 1379, a distance of 496.21 feet to an iron pin set on the said northerly line of 17th Street;

 

Thence North 88°02’18” West along the said northerly line of 17th Street, a distance of 370.76 feet to an iron pin set at a point thereon;

 

Thence North 01°28’47” East along a new division line, a distance of 162.00 feet to an iron pin set;

 

Thence North 88°02’18” West along a new division line, a distance of 209.00 feet to the place of beginning of the parcel of land herein described and containing 5.7870 acre of land according to a survey by Atwell, LLC under the supervision of Alex E. Marks PS 8616 and being the same more or less and being subject to all legal highways.

 

All iron pins set are 5/8 inch iron pins 30 inches in length and capped “ATWELL”

 

Parcel Nos. 10011071, 243225, 1000719

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

LESS AND EXCEPT the following:

 

Situated in the City of Canton, Stark County, and State of Ohio, and being part of OL 1380 and 705 as shown on the replat recorded in Instrument Number 201602170005863 of the Stark County Records, and being more fully bounded and described as follows:

 

Beginning at a point on the northerly line of 17^th Street (50 feet) at the southeasterly corner of said OL 1380;

 

Course No. 1: thence North 88°02’18” West along the northerly line of said 17^th Street, a distance of 60.19 feet to a point;

 

Course No. 2: thence North 01°37’34” East, a distance of 495.65 feet to a point on the northerly line of OL 1380;

 

Course No. 3: thence South 88°34’05” East along the northerly line of OL 1380, a distance of 60.19 feet to a point;

 

Course No. 4: thence South 01°37’34” West, a distance of 496.21 feet to the Place of Beginning of the parcel of land herein described, containing 0.6853 acre of land according to a survey by Atwell LLC under the supervision of Alex E. Marks PS 8616 and being the same more or less and being subject to all legal highways and easements.

 

(Such exception parcel being a portion of Parcel Nos. 10011071 and 243225.)

 

Third Amendment to and Spreader of Open-End Fee and Leasehold Mortgage (CHCL former Aquarian)

 

 

17

Exhibit 10.6

 

RELEASE

 

THIS RELEASE (“Release”) is made effective December 8, 2023 (“Effective Date”) by and among HALL OF FAME RESORT & ENTERTAINMENT COMPANY, a Delaware corporation (“HOF Resort & Entertainment”), HOF VILLAGE NEWCO, LLC, a Delaware limited liability company (“HOF Newco”), HOF VILLAGE YOUTH FIELDS, LLC, a Delaware limited liability company (“HOF Youth Fields”), HOF VILLAGE RETAIL I, LLC, a Delaware limited liability company (“Retail I”), and HOF VILLAGE RETAIL II, LLC, a Delaware limited liability company (“Retail II” ; each of HOF Resort & Entertainment, Newco, HOF Youth Fields, Retail I, and Retail II is individually referred to herein as a “Borrower,” and they are collectively referred to herein as “Borrowers”), in favor of CH CAPITAL LENDING, LLC, a Delaware limited liability company, in its capacity as administrative agent for the Lenders under the Loan Agreement and HOF/Newco Loan Modification Documents (together with its successors and assigns in such capacity, “Administrative Agent”), and CH CAPITAL LENDING, LLC, a Delaware limited liability company, (together with its successors and/or assigns in its capacity as a Lender under the Loan Agreement, the HOF/Newco Loan Modification Documents, and the Retail I/II Loan Documents (as defined below), “Lender”).

 

PRELIMINARY STATEMENTS:

 

A. HOF Resort & Entertainment, HOF Newco, HOF Youth Fields, Administrative Agent, and Lender are parties to that certain Term Loan Agreement dated December 1, 2020, (a) as amended by Amendment Number 1 to Term Loan Agreement dated January 28, 2021, Amendment Number 2 to Term Loan Agreement dated February 15, 2021, Amendment Number 3 to Term Loan Agreement dated August 30, 2021, Amendment Number 4 to Term Loan Agreement dated August 30, 2021, and Amendment Number 5 to Term Loan Agreement dated December 15, 2021, (b) as assigned to Administrative Agent and Lender pursuant to that certain Assignment of Loan and Loan Documents, dated March 1, 2022, by and among Aquarian Credit Funding LLC, as the previous Administrative Agent, Investors Heritage Life Insurance Company, as the previous Lender, and CH Capital Lending, LLC, as the new Administrative Agent and the new Lender, (c) as affected by that certain Assumption and Joinder Agreement to Loan Agreement, dated as of March 1, 2022, executed and delivered by HOFV Youth Fields to Administrative Agent, and (d) as further amended by Amendment Number 6 to Term Loan Agreement dated March 1, 2022, Amendment Number 7 to Term Loan Agreement dated July 31, 2022, and Amendment Number 8 to Term Loan Agreement dated November 7, 2022, as modified by that certain Modification Agreement effective as of October 6, 2023 (all of the foregoing, collectively, the “Loan Agreement”).

 

B. HOF Resort & Entertainment, HOF Newco, HOF Youth Fields and Lender entered into (i) that certain Amendment Number 9 To Term Loan Agreement dated as of the Effective Date, (ii) that certain Fifth Amendment to and Spreader of Pledge and Security Agreement dated as of the Effective Date, (iii) that certain Third Amendment to and Spreader of Mortgage dated as of the Effective Date, and (iv) that certain First Amendment to the Second Amended and Restated Promissory Note dated as of the Effective Date (collectively, the “HOF/Newco Loan Modification Documents” and, together with the Loan Agreement, collectively the “HOF/Newco Loan Documents”), which, among other items, had the effect of increasing the amount available to be advanced from Lender to Borrowers by Four Million Six Hundred Thousand Dollars ($4,600,000) (the “Additional Advance Amount”).

 

 

C. Retail I, Retail II, and The Huntington National Bank (“HNB”) entered into that certain Loan Agreement dated September 27, 2022 (the “Original Retail I/II Loan Agreement”), under the terms of which HNB agreed to loan up to Ten Million Dollars ($10,000,000) for the purpose of financing improvements to two certain leasehold parcels of real property in the project commonly referred to as Hall of Fame Village located in the City of Canton, Stark County, Ohio, as more fully described in the Loan Agreement.

 

D. Lender has succeeded to the rights and obligations of HNB under the Original Retail I/II Loan Agreement pursuant to that certain Assignment of Note, Security Instrument and Other Loan Documents dated as of September 21, 2023 (the “Assignment”), and is now the holder of that certain Promissory Note dated September 27, 2022 (the “Original Retail I/II Note”) in the principal amount of $10,000,000 in which HNB is payee and Retail I and Retail II are makers.

 

E. The Original Retail I/II Loan Agreement was modified pursuant to the terms of (i) that certain Joinder and First Amendment to Loan Agreement entered into by and between HOF Resort & Entertainment, Retail I, Retail II and Lender dated September 21, 2023 (the “First Amendment”), (ii) that certain Second Amendment to Loan Agreement by and between HOF Resort & Entertainment, Retail I, Retail II and Lender dated October 6, 2023 (the “Second Amendment”), (iii) that certain Third Amendment to Loan Agreement by and between HOF Resort & Entertainment, Retail I, Retail II and Lender dated October 16, 2023 (the “Third Amendment”), and (iv) that certain Fourth Amendment to Loan Agreement by and between HOF Resort & Entertainment, Retail I, Retail II and Lender dated November 21, 2023 and effective September 21, 2023 (all of the foregoing, collectively, the “Retail I/II Loan Agreement”).

 

F. The Retail I/II Loan Agreement is secured by certain collateral as set forth in that certain Security Agreement by and between HOF Resort & Entertainment, Retail I, Retail II and Lender dated November 16, 2023 and effective September 21, 2023 (the “Retail I/II Security Agreement”) and the secured interests under the Retail I/II Security Agreement were incorporated into the Retail I/II Loan Agreement by the Fourth Amendment.

 

G. HOF Resort & Entertainment, Retail I, Retail II and Lender entered into that certain (i) Fifth Amendment to Loan Agreement as of the Effective Date (the “Retail I/II Fifth Amendment”) , and (ii) First Amended and Restated Promissory Note as of the Effective Date (the Retail I/II A&R Note” which, together with the Retail I/II Loan Agreement, the Retail I/II Fifth Amendment, the Original Retail I/II Note, and the Retail I/II A&R Note, collectively, the “Retail I/II Loan Documents”) which, among other items, had the effect of further waiving the conditions to disbursement under the terms of the Retail I/II Loan Agreement and Original Retail I/II Note up to the maximum amount of $10,000,000 (the “Retail I/II Advance Amount”).

 

H. In connection with the Lender’s agreement to the Additional Advance Amount and the Retail I/II Advance Amount, Lender has required that Borrowers and their affiliates and subsidiaries execute this Release in order to evidence the release of Lender and all of their affiliates and subsidiaries of any claims and liability.

 

Release Agreement

 

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

 

1. Lender Release; Additional Matters. In consideration of Lender’s agreement to advance the Additional Advance Amount and the Retail I/II Advance Amount, Borrowers, on behalf of themselves and their respective members, shareholders, managers, directors, officers, employees, attorneys, agents, fiduciaries, affiliates, and subsidiaries (collectively, the “Borrower Parties”), hereby release and forever discharge Lender and its and their respective members, shareholders, managers, directors, officers, employees, attorneys, agents, fiduciaries, affiliates, and subsidiaries including, without limitation, (a) Midwest Lender Fund, LLC, (b) JKP Financial, LLC, (c) Industrial Realty Group, LLC, (d) IRG, LLC, (e) IRG Canton Village Member, LLC, (f) IRG Canton Village Manager, LLC, and (g) Industrial Realty Group, Inc. (collectively, the “Lender Parties”), from any and all claims, demands, liabilities, judgments, executions, suits, debts, obligations, damages and expenses of any and every character, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature (collectively, the “Released Claims”), for or because of any matter or things done, omitted or suffered to be done by any of the Lender Parties prior to and including the Effective Date (the “Release Period”) and whether the Released Claims are asserted or brought before or after the expiration of the Release Period, and in any way directly or indirectly arising out of, connected with or related to the Borrower Parties and the entire Hall of Fame transaction in any manner whatsoever, including, without limitation, any agreement or instrument executed in connection therewith and all of the foregoing documents and instruments.

 

Notwithstanding the foregoing, Industrial Realty Group, LLC (“Guarantor”) agreed to provide a completion guaranty for construction of the waterpark as described in that certain Financing Proposal dated November 7, 2022, clarified by and subject to the following terms and conditions: (1) the entire capital stack for the completion of the waterpark to a full operable condition must be irrevocably committed and closed as a condition to the effectiveness of the completion guaranty; (2) Guarantor must be provided all due diligence and budgets to the same extent as provided to capital stack participants; (3) no payment guaranty will be provided by Guarantor; (4) capital stack participants shall in fact disburse all funds, whether equity, debt or other form, as a condition to effectiveness of the completion guaranty; and (5) a fully executed fixed or guaranteed maximum price contract with any applicable amendments thereto (“GMP”) in a form reasonably approved by Guarantor and containing customary contingency reserves and also including all required waterpark equipment, machinery and business fixtures, shall be effective on the closing date for the entire capital stack in order for the completion guaranty to be effective. Any changes to the foregoing including any amendments to the GMP after the date hereof may be approved by Guarantor in its reasonable discretion. Nothing contained herein shall release Industrial Realty Group, Inc. (“IRG Inc.”) from any obligations it may have under that certain commitment letter, dated October 24, 2022, originally issued to provide financing for the hotel project, subject to standard and customary lending criteria and IRG Inc.’s right to complete due diligence in its reasonable discretion.

 

Release Agreement

 

 

Borrowers do hereby ratify, affirm, reaffirm, acknowledge, confirm, and agree that the HOF/Newco Loan Documents and the Retail I/II Loan Documents represent the valid, enforceable and collectible obligations of Borrowers. To the extent that any payment or payments made to (i) Administrative Agent for Lenders or to Lender under the HOF/Newco Loan Documents, or to (ii) Lender under the Retail I/II Loan Documents, as each may be amended, are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, to Borrowers, whether directly or indirectly as a debtor-in-possession, or to a receiver or any other party under any bankruptcy law, or other state or federal law, then the portion of the indebtedness of Borrowers intended to have been satisfied by such payment or payments will be revived and will continue in full force and effect as if such payment or payments had never been received by Administrative Agent or Lender.

 

2. Electronic Signatures. Transmission of a signature by facsimile or email or in .pdf format shall bind the signing party to the same degree as the delivery of a signed original or electronic signature. This Release may be executed by way of electronic signatures (including, but not limited to, by way of electronic signatures generated by “DocuSign,” “Adobe Sign” or similar programs or replacements thereto) and that neither this Release, nor any part or provision of this Release, shall be challenged or denied any legal effect, validity and/or enforceability solely on the grounds that it is in the form of an electronic record.

 

3. Integration.  This Release constitutes an integrated contract expressing the final, entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, negotiations, representations, communications and understandings of the parties, oral or written. Each party has made such investigation of the facts pertaining to this Release and all matters pertaining hereto as it has determined necessary. No representation, promise, inducement or statement of intention has been made by any party of any manner or type whatsoever which is not set forth herein, and no party shall be bound by or liable for any alleged representation, promise, inducement or statement of intention not set forth herein.

 

4. Authority.  Each person executing this Release on behalf of a party hereto represents and warrants that he or she has the authority to bind his or her principal or party to this Release.

 

5. Counterparts. This Release may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract.

 

6. Governing Law. This Release shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to any conflicts of law principles that would direct the application of the laws of any jurisdiction.

 

(the next pages are the signature pages)

 

Release Agreement

 

 

IN WITNESS WHEREOF, the undersigned has caused this Release to be executed as of the Effective Date for the sole and only purpose of acknowledging its obligation to provide the Completion Guaranty described in the second paragraph of Section 1 of this Release, subject to all of the terms and conditions of said second paragraph of Section 1.

 

	Industrial Realty Group, LLC
	By:	/s/ John A. Mase
		John A. Mase, Chief Executive Officer

 

Release Agreement

 

 

IN WITNESS WHEREOF, the parties have caused this Release to be executed as of the Effective Date.

 

	BORROWERS:
	HALL OF FAME RESORT & ENTERTAINMENT COMPANY,
	a Delaware corporation
	HOF VILLAGE NEWCO, LLC
	HOF VILLAGE YOUTH FIELDS, LLC
	HOF VILLAGE RETAIL I, LLC
	HOF VILLAGE RETAIL II, LLC
	each, a Delaware limited liability company
	By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

Release Agreement

 

 

IN WITNESS WHEREOF, the parties have caused this Release to be executed as of the Effective Date.

 

	In consideration for the extension of additional credit to Borrowers which are affiliates or parent entities of each of the following limited liability companies, and which will benefit directly or indirectly from such additional credit for the operation of their own business matters, the undersigned hereby execute this Release for the purpose of agreeing to the provisions, terms and conditions of this Release:
	HOF VILLAGE CENTER FOR PERFORMANCE, LLC
	HOF VILLAGE CONCESSIONS LLC
	HOF VILLAGE HOTEL II, LLC
	HOF VILLAGE HOTEL I, LLC
	HOF VILLAGE HOTEL WP, LLC
	HOF VILLAGE LAND, LLC
	HOF VILLAGE MEDIA GROUP, LLC
	HOF VILLAGE PARKING, LLC
	HOF VILLAGE PARKING MANAGEMENT I, LLC
	HOF VILLAGE PLAY ACTION PLAZA, LLC
	HOF VILLAGE RESIDENCES I, LLC
	HOF VILLAGE RESTAURANT MANAGEMENT, LLC
	HOF VILLAGE SPORTS BUSINESS, LLC
	HOF VILLAGE STADIUM, LLC
	HOF VILLAGE WATERPARK, LLC
	HOF VILLAGE CENTER FOR EXCELLENCE, LLC
	HOF EXPERIENCE, LLC
	YOUTH SPORTS MANAGEMENT, LLC

 

	By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	President and Chief Executive Officer

 

Release Agreement

 

 

7

 

 

Exhibit 10.7

 

FIFTH AMENDMENT TO LOAN AGREEMENT

 

This Fifth Amendment to Loan Agreement (“Fifth Amendment”) is made and entered into as of the 8^th day of December, 2023 (the “Effective Date”), by and among HOF Village Retail I, LLC, a Delaware limited liability company (“Retail I”), HOF Village Retail II, LLC, a Delaware limited liability company (“Retail II”), and Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOFRECo”, and together with Retail I and Retail II, collectively the “Borrower”) and CH Capital Lending LLC, Delaware limited liability company (“Lender”).

 

RECITALS:

 

A. Retail I, Retail II, and The Huntington National Bank (“HNB”) entered into that certain Loan Agreement dated September 27, 2022 (the “Original Loan Agreement”), under the terms of which HNB agreed to loan up to Ten Million Dollars ($10,000,000) for the purpose of financing improvements to two certain leasehold parcels of real property in the project commonly referred to as Hall of Fame Village located in the City of Canton, Stark County, Ohio, as more fully described in the Loan Agreement.

 

B. Lender has succeeded to the rights and obligations of HNB under the Loan Agreement pursuant to that certain Assignment of Note, Security Instrument and Other Loan Documents dated as of September 21, 2023 (the “Assignment”), and is now the holder of that certain Promissory Note dated September 27, 2022 (the “Original Note”) in the principal amount of $10,000,000 in which HNB is payee and Retail I and Retail II are makers.

 

C. The Original Loan Agreement and Original Note were modified pursuant to the terms of (i) that certain Joinder and First Amendment to Loan Agreement entered into by and between Borrower and Lender dated September 21, 2023 (the “First Amendment”), (ii) that certain Second Amendment to Loan Agreement by and between Borrower and Lender dated October 6, 2023 (the “Second Amendment”), (iii) that certain Third Amendment to Loan Agreement by and between Borrower and Lender dated October 16, 2023 (the “Third Amendment”), and (iv) that certain Fourth Amendment to Loan Agreement by and between Borrower and Lender dated November 21, 2023 and effective September 21, 2023 (the “Fourth Amendment”) (the Original Loan Agreement, together with the First Amendment, the Second Amendment, the Third Amendment, and the Fourth Amendment, collectively, the “Loan Agreement”; the Original Note and the First Amendment, collectively the “Note”).

 

D. The Loan Agreement is secured by certain collateral as set forth in that certain Security Agreement by and between Borrower and Lender dated November 16, 2023 and effective September 21, 2023 (the “Security Agreement”) and the secured interests under the Security Agreement were incorporated into the Loan Agreement by the Fourth Amendment.

 

E. Lender and Borrower have agreed upon certain modifications to the Loan Agreement and Note as hereinafter set forth.

 

Fifth Amendment to Loan Agreement (HNB/Retail)

 

 

NOW, THEREFORE, for and in consideration of the foregoing, the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Borrower agree, effective as of the Effective Date, as follows:

 

1. Capitalized Terms. Capitalized terms not otherwise defined herein shall have the same definition as set forth in the Loan Agreement or Note, as applicable.

 

2. Interest Rate. Wherever in the Loan Agreement (as amended by the First Amendment) the rate of interest is specified or described, same shall be deleted and substituted therefor shall be the following: twelve and one half percent (12.50%) per annum, compounded monthly.

 

3. Maturity Date. The definition of “Initial Maturity Date” in Section 1.1 of the Loan Agreement is hereby deleted the definition entirely and replacing it with the following:

 

“Initial Maturity Date: December 4, 2024, unless accelerated sooner or extended pursuant to the terms hereof.”

 

4. Use of Loan Proceeds. Section 5.17(c) of the Loan Agreement (as added in the First Amendment, and amended in the Second Amendment and the Third Amendment) is hereby amended by deleting the subsection entirely and replacing it with the following:

 

“(c) Notwithstanding the foregoing provisions of this Section 5.17, Borrower shall have the right to use up to $10,000,000 of the Loan Proceeds for the purpose of paying the costs of construction of the Hall of Fame Village Waterpark which will be owned by HOFRECo or its affiliates or subsidiaries (the “Permitted Purposes”).”

 

5. Conditions to Loan Funding. Section 6.2(c) of the Loan Agreement (as added in the First Amendment, and amended by the Second Amendment and Third Amendment) is hereby amended by deleting the subsection entirely and replacing it with the following:

 

“(c) Notwithstanding the foregoing provisions of this Section 6.2, so long as Loan Proceeds are used solely for Permitted Purposes, Lender hereby waives the conditions to Loan funding set forth in subsections 6.2(a) and 6.2(b) up to the amount of $10,000,000 as described in Section 5.17(c), except for the issuance of a date down endorsement as described in subsection 6.2(b)(i) of the Loan Agreement. Borrower shall pay all costs, expenses and fees arising out of, related to, or otherwise incurred by Lender in connection with the Assignment, the Loan Agreement and this Fifth Amendment and all associated documentation and services including, but not limited to, title insurance, swap breakage fees, and attorney’s fees.”

 

Fifth Amendment to Loan Agreement (HNB/Retail)

 

 

6. Effect of Fifth Amendment; Further Amendments. This Fifth Amendment shall be binding upon Lender, Borrower, and their successors and assigns. Except as otherwise amended herein, the terms and conditions of the Loan Agreement shall remain in full force and effect. In the event of any conflict between the terms and conditions hereof and the terms and conditions of the Loan Agreement, the terms and conditions hereof shall control. Any further amendments to the Loan Agreement or to this Fifth Amendment must be in writing and signed by the parties hereto in order to be effective.

 

7. Governing Law. This Fifth Amendment shall be governed by and controlled in accordance with the laws of the State of Ohio.

 

8. Counterparts; Electronic Signature. This Fifth Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. This Fifth Amendment may be executed by electronic means and methods, including DocuSign and portable document format (PDF), and shall when transmitted electronically or in paper format, be deemed binding on the signatories thereto.

 

[remainder of page intentionally left blank]

 

Fifth Amendment to Loan Agreement (HNB/Retail)

 

 

IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to be signed as of the Effective Date.

 

	BORROWER:
	HOF VILLAGE RETAIL I, LLC, a Delaware
	limited liability company
	By:	/s/ Michael Crawford
		Michael Crawford
		President and Chief Executive Officer
	HOF VILLAGE RETAIL II, LLC, a Delaware
	limited liability company
	By:	/s/ Michael Crawford
		Michael Crawford
		President and Chief Executive Officer
	HALL OF FAME RESORT & ENTERTAINMENT COMPANY, a Delaware corporation
	By:	/s/ Michael Crawford
		Michael Crawford
		President and Chief Executive Officer

 

Fifth Amendment to Loan Agreement (HNB/Retail)

 

 

	CH CAPITAL LENDING, LLC,
	a Delaware limited liability company,
	in its capacity as Agent
	By:	Holdings SPE Manager, LLC,
		a Delaware limited liability company,
		its Manager
		By:	/s/ John A. Mase
			Name:	John A. Mase
			Title:	Chief Executive Officer

 

Fifth Amendment to Loan Agreement (HNB/Retail)

 

 

5

v3.23.3

Cover	Dec. 08, 2023
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 08, 2023
Entity File Number	001-38363
Entity Registrant Name	HALL OF FAME RESORT & ENTERTAINMENT COMPANY
Entity Central Index Key	0001708176
Entity Tax Identification Number	84-3235695
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	2014 Champions Gateway
Entity Address, City or Town	Canton
Entity Address, State or Province	OH
Entity Address, Postal Zip Code	44708
City Area Code	330
Local Phone Number	458-9176
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false
Common Stock, $0.0001 par value per share
Title of 12(b) Security	Common Stock, $0.0001 par value per share
Trading Symbol	HOFV
Security Exchange Name	NASDAQ
Warrants to purchase 0.064578 shares of Common Stock
Title of 12(b) Security	Warrants to purchase 0.064578 shares of Common Stock
Trading Symbol	HOFVW
Security Exchange Name	NASDAQ

---