Hall of Fame Resort & Entertainment Co (Form: 8-K, Received: 07/08/2020 17:17:21)

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): July 1, 2020

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.)

2626 Fulton Drive NW

Canton, OH 44718

(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: (330) 458-9176

Gordon Pointe Acquisition Corp.

780 Fifth Avenue South

Naples, FL 34102
(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 1.421333 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. ☐

INTRODUCTORY NOTE

On July 1, 2020, (the “Closing Date”), Hall of Fame Resort & Entertainment Company (formerly known as GPAQ Acquisition Holdings, Inc.), a Delaware corporation (the “Company” or “Hall of Fame Resort”), consummated the previously announced business combination with HOF Village, LLC, a Delaware limited liability company (“HOF Village”), pursuant to that certain Agreement and Plan of Merger dated September 16, 2019 (as amended on November 6, 2019, March 10, 2020 and May 22, 2020, the “Merger Agreement”), by and among the Company, Gordon Pointe Acquisition Corp., a Delaware corporation (“GPAQ”), GPAQ Acquiror Merger Sub, Inc., a Delaware corporation (“Acquiror Merger Sub”), GPAQ Company Merger Sub, LLC, a Delaware limited liability company (“Company Merger Sub”), HOF Village and HOF Village Newco, LLC, a Delaware limited liability company (“Newco”). The transactions contemplated by the Merger Agreement are referred to herein as the “Business Combination.”

Upon the consummation of the Business Combination: (i) Acquiror Merger Sub merged with and into GPAQ, with GPAQ continuing as the surviving entity (the “Acquiror Merger”) and (ii) Company Merger Sub merged with and into Newco, with Newco continuing as the surviving entity (the “Company Merger” and together with the Acquiror Merger, the “Mergers”). In advance of the Company Merger, HOF Village transferred all of its assets, liabilities and obligations to Newco pursuant to a contribution agreement. In connection with the closing of the Business Combination (the “Closing”), the Company changed its name from “GPAQ Acquisition Holdings, Inc.” to “Hall of Fame Resort & Entertainment Company.” As a result of the Business Combination, GPAQ and Newco will continue as wholly owned subsidiaries of the Company.

In connection with the consummation of the Business Combination and pursuant to the Merger Agreement, (a) each issued and outstanding unit of GPAQ, if not already detached, was detached and the holder thereof was deemed to hold one share of GPAQ Class A common stock and one GPAQ warrant (“GPAQ Warrant”), (b) each issued and outstanding share of GPAQ Class A common stock (excluding any shares held by a GPAQ stockholder that elected to have its shares redeemed pursuant to GPAQ’s organizational documents) was converted automatically into the right to receive 1.421333 shares of the Company’s common stock, par value $0.0001 (the “Common Stock”), following which all shares of GPAQ Class A common stock ceased to be outstanding and were automatically canceled and cease to exist; (c) each issued and outstanding share of GPAQ Class F common stock was converted automatically into the right to receive one share of Common Stock, following which all shares of GPAQ Class F common stock ceased to be outstanding and were automatically canceled and cease to exist; (d) each issued and outstanding GPAQ Warrant (including GPAQ private placement warrants) was automatically converted into one Company warrant (“Company Warrant”) to purchase 1.421333 shares of Common Stock per warrant, following which all GPAQ Warrants ceased to be outstanding and were automatically canceled and retired and cease to exist; and (e) each issued and outstanding membership interest in Newco converted automatically into the right to receive a pro rata portion of the Company Merger Consideration (as defined in the Merger Agreement), which was payable in shares of Common Stock.

The foregoing description of the Business Combination does not purport to be complete and is qualified in its entirety by the full text of the Merger Agreement and amendments thereto, which are attached hereto as Exhibits 2.1(a), 2.1(b), 2.1(c) and 2.1(d), respectively, and are incorporated herein by reference.

Unless the context otherwise requires, “we,” “us,” “our” and the “Company” refer to Hall of Fame Resort & Entertainment Company and its subsidiaries.

Certain terms used in this Current Report on Form 8-K have the same meaning as set forth in the Post-Effective Amendment No. 3 to Registration Statement on Form S-4 (File No. 333-234655) (the “Registration Statement”) declared effective by the Securities and Exchange Commission (the “Commission”) on June 2, 2020.

Item 1.01 Entry into a Material Definitive Agreement.

Note Purchase Agreement

On the Closing Date, concurrently with the Closing of the Business Combination, the Company entered into a Note Purchase Agreement (the “Note Purchase Agreement”) with certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto (together, the “Purchasers”), pursuant to which the Company agreed to issue and sell to the Purchasers in a private placement (the “Private Placement”) $20,721,293 in aggregate principal amount of the Company’s 8.00% Convertible Notes due 2025 (the “Notes”). Pursuant to the terms of the Note Purchase Agreement, the Notes may be converted into shares of Common Stock at the option of the holders of the Notes, and the Company may, at its option, redeem the Notes in exchange for cash and warrants to purchase shares of Common Stock (the “Note Redemption Warrants”). The Note Redemption Warrants, if issued, will be subject to the exercise terms described in Item 3.02 hereof.

The Private Placement was conducted pursuant to under section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), as a transaction by an issuer not involving any public offering. The offer and sale of the Notes have not been registered under the Securities Act or applicable state securities laws, and consequently, the Notes may not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from the registration requirements of the Securities Act and applicable state laws.

The Note Purchase Agreement contains representations and warranties by the Company and the Purchasers, and each of the Company and the Purchasers have agreed to indemnify the other for losses resulting from a breach of any of their respective representations or warranties.

Closing of the Private Placement and delivery of the Notes pursuant to the Note Purchase Agreement occurred on the Closing Date. The Company received cash proceeds from the issuance and sale of the Notes of approximately $7 million. The Company intends to use the proceeds of the Private Placement to fund the Company’s obligations related to the Merger Agreement, to satisfy the Company’s working capital obligations and to pay transaction fees and expenses.

The information regarding the Notes and the Note Redemption Warrants set forth in Item 3.02 hereof is incorporated by reference into this Item 1.01.

This summary of the Note Purchase Agreement and the Notes is qualified in its entirety by reference to the text of the Note Purchase Agreement, which is included as Exhibit 10.7 and is incorporated herein by reference.

Registration Rights Agreement

On the Closing Date, in connection with the Note Purchase Agreement and the closing of the Private Placement, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”), by and among the Company and the Purchasers.

Pursuant to the Registration Rights Agreement, the Company is required to prepare and file a registration statement (the “Registration Statement”) to permit the public resale of (i) the shares of Common Stock issued or issuable upon the exercise of the Note Redemption Warrants and (ii) the shares of Common Stock that are issuable pursuant to the terms of the Note Purchase Agreement upon conversion of the Notes. The Company is required to use its commercially reasonable efforts to cause the Registration Statement to become effective no later than 365 days after the Closing Date (the “Registration Statement Deadline”).

The Registration Rights Agreement provides that if the Registration Statement is not declared effective on or prior to the Registration Statement Deadline, the Company will be liable to the Purchasers for liquidated damages in accordance with a formula, subject to the limitations set forth in the Registration Rights Agreement. Such liquidated damages would be payable in cash. In addition, the Registration Rights Agreement grants the Purchasers piggyback registration rights. These registration rights are transferable to affiliates of the Purchasers and, in certain circumstances, to third parties.

This summary of the Registration Rights Agreement is qualified in its entirety by reference to the text of the Registration Rights Agreement which is included as Exhibit 10.8 and is incorporated herein by reference.

Note Redemption Warrant Agreement

On the Closing Date, pursuant to the Note Purchase Agreement, the Company entered into a Note Redemption Warrant Agreement by and among the Company and the Purchasers listed on the signature pages thereto (the “Note Redemption Warrant Agreement”). The terms of the Note Redemption Warrant Agreement set forth the terms of the Note Redemption Warrants that may be issued pursuant to the Note Purchase Agreement upon redemption of Notes. The information regarding the Note Redemption Warrants set forth in Item 3.02 hereof is incorporated by reference into this Item 1.01.

This summary of the Note Redemption Warrant Agreement and the Note Redemption Warrants is qualified in its entirety by reference to the text of the Note Redemption Warrant Agreement, which is included as Exhibit 10.9 and is incorporated herein by reference.`

Lock-Up Agreement

In connection with the Business Combination, each of the holders of Newco’s membership interests as of immediately prior to the Closing, Gordon Pointe Management, LLC (the “Sponsor”), Douglas L. Hein, Robert B. Cross, David Dennis, Joseph F. Mendel and Neeraj Vohra entered into a Lock-Up Agreement with the Company (the “Lock-Up Agreement”). Under the Lock-Up Agreement, each holder agrees not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, sell any option or contract to purchase, grant any option, right or warrant, make any short sale or otherwise transfer or dispose of or lend its portion of any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, or that represent the right to receive, shares of Common Stock) for a period after Closing ending on the date that is the later of (i) 180 days after the Closing and (ii) the expiration of the “Founder Shares Lock-up Period” under the Letter Agreement, dated January 24, 2018 among GPAQ, its officers and directors and initial shareholders and the Sponsor.

This summary of the Lock-Up Agreement is qualified in its entirety by reference to the text of the Lock-Up Agreement, the form of which is included as Exhibit 10.1 and is incorporated herein by reference.

Director Nominating Agreement

At the Closing, the Company, GPAQ, HOF Village, the Sponsor and National Football Museum, Inc., an Ohio nonprofit corporation doing business as the Pro Football Hall of Fame (“PFHOF”) entered into a Director Nominating Agreement (the “Director Nominating Agreement”), which provides that the Company shall take all necessary action to set the size of its board of directors at 11 members, a majority of whom shall be independent directors in accordance with Nasdaq requirements. The Company’s board of directors (the “Board”) will be made up of three classes: Class A Directors who shall serve for an initial one-year term, Class B Directors who shall serve for an initial two-year term, and Class C Directors who shall serve for an initial three-year term. The following individuals have been appointed to the Board as of the Effective Time (as defined in the Merger Agreement): (i) Michael Klein, Edward J. Roth III and Mary Owen, who are Class A Directors; (ii) Stuart Lichter, Karl Holz, Curtis Martin and David Dennis, who are Class B Directors; and (iii) James Dolan, Michael Crawford, Kimberly Schaefer and Anthony Buzzelli, who are Class C Directors. The Director Nominating Agreement further provides that (i) so long as the Sponsor beneficially owns 85% of the total number of shares of Common Stock held by it as of the Effective Time, the Sponsor will have the right to designate one individual to be appointed or nominated for election to the Board, (ii) so long as HOF Village beneficially owns at least 85% of the total number of shares of Common Stock held by it as of the Effective Time, HOF Village will have the right to designate up to four individuals to be appointed or nominated for election to the Board, one of whom must be Michael Klein and one of whom must qualify as an independent director under the Nasdaq rules (or up to (a) three individuals, if it owns less than 85% but at least 65%, (b) two individuals, if it owns less than 65% but at least 45%, or (c) one individual, if it owns less than 45% but at least 15%), and (iii) so long as PFHOF beneficially owns at least 85% of the total number of shares of Common Stock held by it as of the Effective Time, PFHOF will have the right to designate up to one individual to be appointed or nominated for election to the Board. HOF Village and PFHOF may each designate one individual to serve as a Board non-voting observer (in the case of HOF Village, so long as HOF Village beneficially owns at least 15% of the total number of shares of Common Stock held by it as of the Effective Time and, in the case of PFHOF, so long as PFHOF beneficially owns at least 85% of the total number of shares of Common Stock held by it as of the Effective Time), who will initially be Richard Klein and Randall C. Hunt, respectively. The parties to the Director Nominating Agreement have agreed to take certain actions to support those nominees for election and include the nominees in the proxy statements for the stockholders meetings at which directors are to be elected.

This summary of the Director Nominating Agreement is qualified in its entirety by reference to the text of the Director Nominating Agreement, the form of which is included as Exhibit 10.2 and is incorporated herein by reference.

Release Agreement

At the Closing, each of the members of HOF Village and PFHOF (each, a “Holder”) entered into a Release Agreement with the Company, GPAQ and Newco pursuant to which (i) each Holder generally releases all claims against the Company, GPAQ, the Merger Subs, Newco and their affiliates that such Holder may have prior to the Effective Time, except for certain Retained Claims, and (ii) each Holder consents to the termination of certain contracts to which it is a party with HOF Village and its affiliates effective immediately prior to the Effective Time without any cost or other liability to Newco, Holdings or its subsidiaries.

This summary of the Release Agreement is qualified in its entirety by reference to the text of the Release Agreement, the form of which is included as Exhibit 10.3 and is incorporated herein by reference.

Johnson Controls Inc. Sponsorship Agreement

On July 2, 2020, Newco entered into an Amended and Restated Sponsorship and Naming Rights Agreement (the “Amended Sponsorship Agreement”) among Newco, National Football Museum, Inc. d/b/a Pro Football Hall of Fame (“PFHOF”) and Johnson Controls, Inc. (“JCI”), that amends and restates the Sponsorship and Naming Rights Agreement, dated as of November 17, 2016 (the “Original Sponsorship Agreement”). The Amended Sponsorship Agreement is a closing condition to a co-terminus Technology as a Service Agreement (the “Technology as a Service Agreement”), for which the parties entered into a letter of intent on July 2, 2020. The Amended Sponsorship Agreement amends the Original Sponsorship Agreement as follows:

	●	reduces the total amount of fees payable to Newco during the term of the Amended Sponsorship Agreement from $135 million to $99 million;
	●	renames the Hall of Fame Village (the “Village”) to “Hall of Fame Village powered by Johnson Controls”;

●

clarifies that PFHOF will be responsible for the costs and expenses associated with the development, design and maintenance of certain marketing materials and signs related to the Pro Football Hall of Fame Museum;

●

updates certain representations and obligations of Newco related to the construction of the Village;

●

adds key performance indicators, including a minimum annual attendance at the Village each year of 2,500,000 (the “Minimum Footfall”) with (i) a mechanism for adjusting fees for failure to meet the Minimum Footfall and (ii) a termination right for JCI if Newco fails to achieve the Minimum Footfall for any two consecutive years;

●

refines the terms of the exclusivity provisions, indemnification obligations, insurance requirements and termination rights and fees; and

●

revises certain aspects of the Force Majeure clause, including the reduction of the fees JCI owes in connection with certain underpayments to JCI under the Technology as a Service Agreement.

Additional amendments include various conforming, stylistic and technical revisions. This summary of the Amended Sponsorship Agreement is qualified in its entirety by the text of the Amended Sponsorship Agreement, which is attached as Exhibit 10.10 and incorporated herein by reference.

Item 2.01

Completion of Acquisition or Disposition of Assets

The disclosure set forth in the “Introductory Note” above is incorporated into this Item 2.01 by reference. On June 30, 2020, GPAQ held a special meeting at which the GPAQ stockholders considered and approved, among other matters, the Merger Agreement (the “Special Meeting”). On July 1, 2020, the parties consummated the Business Combination.

In connection with the Business Combination, 852 shares of GPAQ common stock sold in its initial public offering were redeemed at a per share price of approximately $10.80.

As of the date of the Closing and following the completion of the Business Combination, the Company had the following outstanding securities:

●

31,819,076 shares of Common Stock; and

●

17,400,000 Company Warrants, each exercisable for 1.421333 shares of Common Stock at a price of $11.50 per share.

FORM 10 INFORMATION

Item 2.01(f) of Form 8-K states that, if the predecessor registrant was a shell company, as GPAQ was immediately before the Business Combination, then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10. Accordingly, the Company, as the successor issuer to GPAQ, is providing the information below that would be included in a Form 10 if the Company were to file a Form 10. Please note that the information provided below relates to the combined company after the consummation of the Business Combination, unless otherwise specifically indicated or the context otherwise requires.

Forward-Looking Statements

This Current Report contains forward-looking statements. Forward-looking statements provide the Company’s current expectations or forecasts of future events. Forward-looking statements include statements about the Company’s expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Forward-looking statements in this Current Report include, but are not limited to, statements about:

●

the benefits of the Business Combination;

●

the future financial performance of the Company and its subsidiaries, including Newco, following the Business Combination;

●

changes in the market in which Newco competes;

●

expansion and other plans and opportunities;

	●	the effect of the COVID-19 pandemic on the Company’s business;
	●	the Company’s ability to raise financing in the future;
	●	the Company ability to maintain the listing of its common stock on Nasdaq following the Business Combination;
	●	other factors detailed under the section titled “Risk Factors” of the Registration Statement and incorporated herein by reference; and
	●	other statements preceded by, followed by or that include the words “estimate,” “plan,” “project,” “forecast,” “intend,” “expect,” “anticipate,” “believe,” “seek” or “target,” or similar expressions.

These forward-looking statements are based on information available as of the date of this Current Report, and current expectations, forecasts and assumptions, and involve a number of risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date, and we do not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

In addition, statements that the Company “believes” and similar statements reflect its beliefs and opinions on the relevant subject. These statements are based upon information available to such party as of the date of this Current Report, and while the Company believes such information forms a reasonable basis for such statements, such information may be limited or incomplete, and these statements should not be read to indicate that the Company has conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.

You should not place undue reliance on these forward-looking statements. As a result of a number of known and unknown risks and uncertainties, the Company’s actual results or performance may be materially different from those expressed or implied by these forward-looking statements.

Business

The business of the Company is described in the Registration Statement in the section titled “The Business of HOF Village, LLC” and that information is incorporated herein by reference.

Risk Factors

The risks associated with the Company’s business are described in the Registration Statement in the section titled “Risk Factors” and are incorporated herein by reference.

Financial Information

Reference is made to the disclosure set forth in Item 9.01 of this Current Report concerning the financial information of the Company. Reference is further made to the disclosure contained in the Registration Statement in the section titled “Summary Financial and Other Data of HOFV,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations of HOFV,” “Summary Financial and Other Data of GPAQ,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations of GPAQ,” and is incorporated herein by reference.

Unaudited Pro Forma Condensed Financial Information

The information set forth in Exhibit 99.2 to this Current Report on Form 8-K is incorporated herein by reference.

Management’s Discussion and Analysis of Financial Condition and Operations

The information set forth in the Registration Statement in the sections entitled “GPAQ’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “HOFV’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” is incorporated herein by reference.

Properties

The properties of the Company are described in the Registration Statement in the section titled “The Business of HOF Village, LLC” and are incorporated herein by reference.

Security Ownership of Certain Beneficial Owners and Management

The following table sets forth information regarding the beneficial ownership of the Common Stock as of the Closing by:

●

each person known by the Company to be the beneficial owner of more than 5% of the Common Stock of the Company upon the closing of the Business Combination;

●

each of the Company’s officers and directors; and

●

all executive officers and directors of the Company as a group upon the closing of the Business Combination.

Beneficial ownership is determined according to the rules of the Commission, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.

The beneficial ownership percentages set forth in the table below are based on approximately 31,819,076 shares of Common Stock issued and outstanding as of July 1, 2020.

Unless otherwise indicated, the Company believes that all persons named in the table have sole voting and investment power with respect to all shares of Common Stock beneficially owned by them.

	Beneficial Ownership
Name and Address of Beneficial Owner	Number of Shares			Percentage
Directors and Officers
Michael Crawford		⸺	¹		*
Jason Krom		⸺			*
Mike Levy		⸺			*
Anne Graffice		⸺			*
James J. Dolan		5,093,115	²		14.4	%
Michael Klein		2,517,108	³		7.9	%
David Dennis		10,000			*
Edward J. Roth III		⸺			*
Stuart Lichter		22,799,835	⁴		64.6	%
Kimberly K. Schaefer		⸺			*
Karl L. Holz		⸺			*
Anthony J. Buzzelli		21,320			*
Mary Owen		⸺			*
Curtis Martin		⸺			*
All Directors and Officers as a Group (12 individuals)		30,441,378			87.1	%

Greater than 5% Stockholders
HOF Village, LLC		18,485,230	^{5, 6}		52.4	%
CH Capital Lending, LLC		4,314,605	⁷		13.6	%
IRG Canton Village Member, LLC		18,485,230	⁸		52.4	%
IRG Canton Village Manager, LLC		18,485,230	⁸		52.4	%
National Football Museum, Inc. d/b/a Pro Football Hall of Fame		6,309,721	^{6, 9}		20.3	%
Gordon Pointe Management, LLC		5,093,165	^6, 10		14.4	%

* Less than 1%.

¹In accordance with his employment agreement and the terms of the Company’s 2020 Omnibus Incentive Plan, Mr. Crawford is entitled to receive 715,929 restricted shares of Company Common Stock upon the effectiveness of a registration statement covering those shares. One-third of those restricted shares vest immediately after the effectiveness of that registration statement, upon the first anniversary of the closing of the Business Combination and upon the second anniversary of such closing.

²Mr. Dolan may be deemed to beneficially own 1,635,722 shares of Common Stock through his ownership of membership interests in Gordon Pointe Management, LLC and as the managing member of Gordon Pointe Management, LLC. Mr. Dolan may also be deemed to beneficially own 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by Gordon Pointe Management, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days. Does not include 325,000 shares of Common Stock granted by Mr. Dolan and Gordon Point Management, LLC to various trusts or estate planning vehicles for certain Dolan grandchildren and other Dolan family members that are managed by Mr. Dolan’s adult children, over which Mr. Dolan disclaims beneficial ownership.

³Mr. Klein may be deemed to beneficially own 1,078,984 shares of Common Stock through his ownership of membership interests in The Klein Group, LLC. Mr. Klein may also be deemed to beneficially own (i) 928,455 shares of Common Stock as a result of his ownership of M. Klein & Associates, Inc., which owns membership interests in HOF Village, LLC, and (ii) 509,669 shares of Common Stock as a result of his minority ownership interests in M. Klein and Company, LLC, which beneficially owns 509,669 shares. Mr. Klein disclaims beneficial ownership of the shares of Common Stock owned by HOF Village, LLC and M. Klein and Company, LLC except to the extent of any actual pecuniary interest.

⁴Mr. Lichter may be deemed to beneficially own 4,314,605 shares of Common Stock through his indirect ownership of membership interests in CH Capital Lending, LLC. Mr. Lichter may also be deemed to beneficially own 15,027,837 shares of Common Stock through his indirect ownership interest in IRG Canton Village Member, LLC, which in turn owns approximately a 76.8% interest in HOF Village, LLC. HOF Village, LLC owns 15,027,837 shares of Common Stock. He may also be deemed to beneficially own 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by HOF Village, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days. Mr. Lichter disclaims beneficial ownership of all shares held by IRG Canton Village Member, LLC, CH Capital Lending, LLC, and IRG Canton Village Manager, LLC, except to the extent of any actual pecuniary interest.

⁵HOF Village, LLC beneficially owns 15,027,837 shares of Common Stock. It also beneficially owns 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by HOF Village, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days.

⁶HOF Village, LLC, National Football Museum, Inc. and Gordon Pointe Management, LLC are parties to a director nominating agreement. See the discussion under “Director Nominating Agreement” in Item 1.01 of this Form 8-K.. As a result of these relationships, these persons may be deemed to be a group for purposes of Section 13(d) of the Exchange Act and therefore may be deemed to hold 27,258,245 shares of Common Stock.

⁷CH Capital Lending, LLC beneficially owns 3,237,473 shares of Common Stock.

⁸Each of IRG Canton Village Member, LLC and IRG Canton Village Manager, LLC may be deemed to beneficially own 15,027,837 shares of Common Stock through the former’s indirect (approximately 74.9%) ownership interest therein and the latter’s role as manager of it. For similar reasons, each may also be deemed to beneficially own 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by HOF Village, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days. Each of IRG Canton Village Member, LLC and IRG Canton Village Manager, LLC disclaims beneficial ownership of all shares held by HOF Village, LLC, except to the extent of any actual pecuniary interest.

⁹National Football Museum, Inc. beneficially owns 3,679,850 shares of Common Stock. National Football Museum, Inc. may also be deemed to beneficially own 2,629,871 shares of Common Stock as a result of its ownership of membership interests in HOF Village, LLC. National Football Museum, Inc. disclaims beneficial ownership of all shares held by HOF Village, LLC, except to the extent of any actual pecuniary interest.

¹⁰Gordon Pointe Management, LLC beneficially owns 1,635,722 shares of Common Stock. It also beneficially owns 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by it with an exercise price of $11.50 per share. The warrants are exercisable within 60 days.

Directors and Executive Officers

The Company’s directors and executive officers after the Closing are described in the Registration Statement in the section titled “Management After the Business Combination” and is incorporated herein by reference. Upon consummation of the Business combination, the Company adopted Corporate Governance Guidelines, which provide the basic framework for the Board’s operation and role in governance of the Company. The Corporate Governance Guidelines are available on the Company’s website at www.hofreco.com.

In addition to the directors and executive officers after the Closing described in the Registration Statement in the section titled “Management After the Business Combination,” the following two persons are also executive officers:

Name	Age	Position
Mike Levy	59	President of Operations
Anne Graffice	48	Executive Vice President of Public Affairs

Mike Levy. Mr. Levy has served as President of Operations of the Company since June 2020. From August 2014 until joining the Company, he served as President of the Canton Charge, the NBA G League franchise of the Cleveland Cavaliers, where he set numerous attendance records and revenue marks and was named the league’s Team Executive of the Year in 2016. Mr. Levy brings over 30 years of sports and entertainment management expertise to the Company, developed through extensive experience working with 11 professional franchises, 11 facilities and 10 sports leagues, including the NBA, MLB, WNBA, NFL, AFL and NHL. Mr. Levy has built a proven track record of driving excellent operational execution and successful start-ups with sports franchises over his extensive sports management career. Mr. Levy is a graduate of Duquesne University in Pittsburgh, Pennsylvania.

Ms. Graffice’s background is described in the Registration Statement in the section titles “Executive Officers of HOFV” and is incorporated herein by reference.

Director Independence

Nasdaq listing standards require that a majority of the Company’s Board be independent. An “independent director” is defined generally as a person other than an officer or employee of the Company or its subsidiaries or any other individual having a relationship that, in the opinion of the Company’s Board, would interfere with the director’s exercise of independent judgment in carrying out the responsibilities of a director. The board of directors of the Company has affirmatively determined that Kimberly Schaefer, Karl Holz, Anthony Buzzelli, Mary Owen, Curtis Martin and David Dennis qualify as independent directors in accordance with the Nadsaq listing rules.

Committees of the Board of Directors

Upon the consummation of the Business Combination, the Company established three board committees and adopted charters for such committees: audit committee, compensation committee, and nominating and corporate governance committee. Messrs. Buzzelli and Dennis and Ms. Schaefer were appointed to serve on the Company’s audit committee, with Mr. Buzzelli serving as the chair and qualifying as an audit committee financial expert, as such term is defined in Item 407(d)(5) of Regulation S-K. Ms. Schaefer and Mr. Holz were appointed to serve on the Company’s compensation committee, with Ms. Schaefer serving as the chair. Mr. Holz and Ms. Owen were appointed to serve on the Company’s nominating and corporate governance committee, with Mr. Holz serving as the chair. Each of the committee charters are available on the Company’s website at www.hofreco.com.

Code of Business Conduct and Ethics

Upon consummation of the Business Combination, the Company adopted a Code of Business Conduct and Ethics that applies to all the Company’s directors, officers and employees. The Code of Business Conduct and Ethics covers areas such as conflicts of interest, insider trading and compliance with laws and regulations. The Code of Business Conduct and Ethics is available on the Company’s website at www.hofreco.com.

Executive Compensation

The executive compensation of the Company’s executive officers and directors is described in the Registration Statement in the section titled “Executive Compensation of HOFV” and is incorporated herein by reference.

At the Special Meeting, the GPAQ stockholders approved the 2020 Omnibus Incentive Plan. The description of the 2020 Omnibus Incentive Plan is set forth in the Proxy section entitled “The Incentive Plan Proposal”, which is incorporated herein by reference. A copy of the full text of the 2020 Omnibus Incentive Plan is filed as Exhibit 10.4 to this Current Report on Form 8-K and is incorporated herein by reference. Following the consummation of the Business Combination, the Company expects that the Board or the Compensation Committee will make grants of awards under the 2020 Omnibus Incentive Plan to eligible participants.

Reference is made to the disclosure set forth under Item 5.02 of this Current Report concerning the Employment Agreement of Michael Crawford.

Mike Levy Employment Agreement

On June 22, 2020, HOF Village issued a press release announcing the appointment of Michael Levy as President of Operations of HOF Village effective June 15, 2020 (the “Levy Employment Effective Date”). Mr. Levy remains in that role with the Company. Mr. Levy, 59, brings over 30 years of sports and entertainment management expertise to HOF Village. Since August 2014, Mr. Levy served as President of the Canton Charge, the NBA G League franchise of the Cleveland Cavaliers, where he set numerous attendance records and revenue marks and was named the league’s Team Executive of the Year in 2016.

In connection with his appointment, Mr. Levy entered into an employment agreement with HOF Village, dated June 22, 2020 (the “Levy Employment Agreement”), providing that the initial term of Mr. Levy’s employment will be through the third anniversary of the Levy Employment Effective Date. Pursuant to the Levy Employment Agreement, Mr. Levy will receive an annual base salary equal to $300,000 and be eligible to receive an annual performance bonus of up to 40% of his base salary paid in cash and pro-rated for the calendar year 2020. In addition, on the Levy Employment Effective Date Mr. Levy was granted profits interests in HOF Village representing $600,000 of the future profits of HOF Village that will vest in three equal instalments on the first, second and third anniversary of the Levy Employment Effective Date. Following the Business Combination, if Mr. Levy is granted restricted stock of the Company, his profit interests will be cancelled without additional consideration as of the date Mr. Levy accepts the restricted stock grant. HOF Village contributed the Levy Employment Agreement to Newco in connection with the Business Combination.

This description of the Levy Employment Agreement is not complete and is qualified in its entirety by the Levy Employment Agreement, a copy of which is attached as Exhibit 10.6 and incorporated into this Item 2.01 by reference.

Director Compensation

The compensation of the Company’s directors is described in the Registration Statement in the section titled “Executive Compensation Following the Business Combination–Compensation Arrangements for Directors” and is incorporated herein by reference.

Certain Relationships and Related Transactions

Certain relationships and related party transactions of the Company are described in the Registration Statement in the section titled “Certain Relationships and Related Person Transactions” and are incorporated herein by reference. Upon consummation of the Business Combination, the Company adopted a Related Person Transaction Policy that governs the review, approval or ratification of related person transactions.

Legal Proceedings

Reference is made to the disclosure regarding legal proceedings in the section of the Registration Statement titled “Information About HOFV– Legal Proceedings” and is incorporated herein by reference.

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

The Company’s Common Stock began trading on the Nasdaq under the symbol “HOFV” and its warrants began trading on the Nasdaq under the symbol “HOFVW” on July 2, 2020, subject to ongoing review of the Company’s satisfaction of all listing criteria post-business combination. The Company has not paid any cash dividends on its Common Stock to date and does not intend to pay any cash dividends in the foreseeable future.

Information regarding the Company’s Common Stock, the Company Warrants and related stockholder matters are described in the Registration Statement in the section titled “Price Range and Dividends of Securities” and such information is incorporated herein by reference.

Recent Sales of Unregistered Securities

The disclosures in Item 1.01 of this Current Report under the headings “Note Purchase Agreement”, “Registration Rights Agreement” and “Note Redemption and Warrant Agreement” are incorporated into this Item 2.01 by reference.

Description of the Company’s Securities

The description of the Company’s securities is contained in the Registration Statement in the section titled “Description of Securities of Holdings” and is incorporated herein by reference.

Indemnification of Directors and Officers

The description of the indemnification provisions of the Company’s amended and restated certificate of incorporation is contained in the Registration Statement in the section titled “Certain Relationships and Related Person Transactions”, which is incorporated herein by reference.

Financial Statements and Supplementary Data

Reference is made to the disclosure set forth under Item 9.01 of this Current Report concerning the financial statements and supplementary data of the Company and its subsidiaries.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

Not applicable.

Financial Statements and Exhibits

Reference is made to the disclosure set forth under Item 9.01 of this Current Report concerning the financial information of the Company and its subsidiaries.

Item 3.02

Unregistered Sales of Equity Securities.

Convertible Notes

On the Closing Date, the Company completed the Private Placement of $20,721,293 in aggregate principal amount of Notes with certain funds managed by Magnetar Financial, LLC and the Purchasers. Pursuant to the terms of the Note Purchase Agreement, at the option of the holders thereof the Notes may be converted into shares of Common Stock at a conversion price initially equal to $11.50 per share, subject to formula-based adjustment based on specified events. Accordingly, the aggregate amount of Notes issued and sold in the Private Placement is convertible into 1,801,851 shares of Common Stock based on the conversion rate applicable on the Closing Date. The Private Placement was conducted pursuant to undersection 4(a)(2) of the Securities Act, as a transaction by an issuer not involving any public offering.

The information regarding the Note Purchase Agreement and the Notes set forth in Item 1.01 hereof is incorporated by reference into this Item 3.02.

Note Redemption Warrants

The Note Redemption Warrants that may be issued pursuant to the Note Purchase Agreement will be exercisable for a number of shares of Common Stock to be determined at the time any such Note Purchase Warrant is issued. The exercise price per share of Common Stock of any Note Purchase Warrant will be set at the time such Note Purchase Warrant is issued pursuant to the terms of the Note Purchase Agreement and the Note Redemption Warrant Agreement. The Note Redemption Warrants may be exercised from and after the date of issuance, subject to certain terms and conditions set forth in the Note Redemption Warrant Agreement. Unexercised Note Redemption Warrants will expire on the maturity date of the Notes. The Note Redemption Warrants will not participate in cash distributions by the Company. If issued upon redemption of Notes, the Note Redemption Warrants will be issued in reliance upon an exemption from the registration requirements of the Securities Act, pursuant to Section 4(a)(2) thereof, as a transaction by an issuer not involving any public offering.

The information regarding the Note Redemption Warrant Agreement and the Note Redemption Warrants set forth in Item 1.01 hereof is incorporated by reference into this Item 3.02.

Item 3.03

Material Modifications to Rights of Security Holders.

As disclosed below in Item 8.01, in accordance with Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is the successor issuer to GPAQ and has succeeded to the attributes of GPAQ as the registrant. In addition, the shares of Common Stock, as the successor to GPAQ, are deemed to be registered under Section 12(b) of the Exchange Act.

Amended and Restated Certificate of Incorporation

Upon the Closing of the Business Combination, the Company’s certificate of incorporation was amended and restated to implement the following changes:

	GPAQ Amended and Restated Certificate of Incorporation	Hall of Fame Resort’s Amended and Restated Certificate of Incorporation
Name	Gordon Pointe Acquisition Corp.	Hall of Fame Resort & Entertainment Company
Common Stock	GPAQ’s current charter authorizes two classes of common stock — Class A common stock and Class F common stock. GPAQ has 50,000,000 authorized shares of common stock, par value $0.0001 per share.	Hall of Fame Resort has one single class of common stock and 100,000,000 authorized shares of common stock, par value $0.0001 per share.
Preferred Stock	GPAQ’s current charter authorizes 5,000,000 shares of preferred stock.	Hall of Fame Resort has 5,000,000 authorized shares of preferred stock.
Number of Directors	GPAQ’s certificate of incorporation is silent on the number of directors.	The total number constituting the board of directors shall be 11, subject to change from time to time by resolution adopted by the affirmative vote of at least a majority of the board of directors then in office.
Classified Board	The board of directors of GPAQ consists of two classes with staggered two-year terms.	The board of directors of Hall of Fame Resort is divided into three classes with staggered three-year terms.
Forum Selection	GPAQ’s certificate of incorporation does not contain an exclusive forum provision.	The Hall of Fame Resort amended and restated certificate of incorporation provides that the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, another state or federal court located within the State of Delaware, shall be the exclusive forum for certain actions and claims.
Removal of Blank Check Company/Special Purpose Acquisition Corporation Provisions	GPAQ’s certificate of incorporation sets forth various provisions related to its operations as a blank check company/special purpose acquisition corporation prior to the consummation of an initial business combination.	The Hall of Fame Resort amended and restated certificate of incorporation does not include these blank check company/special purpose acquisition corporation provisions.

The amended and restated certificate of incorporation is filed as Exhibit 3.1 hereto and incorporated herein by reference.

Amended and Restated Bylaws

Upon the closing of the Business Combination, the Company’s bylaws were amended and restated to be consistent with the Company’s amended and restated certificate of incorporation and to make certain other changes that GPAQ, as shareholder of the Company prior to Closing, deemed appropriate for a public operating company. This summary of the Company’s amended and restated bylaws is qualified in its entirety by reference to the text of the amended and restated bylaws, which is included as Exhibit 3.2 hereto and incorporated herein by reference.

Item 5.01

Changes in Control of Registrant.

Reference is made to the disclosure in the Registration Statement in the section titled “The Business Combination Proposal” and “The Merger Agreement” which is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 to this Report, which is incorporated by reference.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Appointment of Directors and Officers

The following persons are serving as executive officers and directors of the Company following the Closing. For biographical information concerning the executive officers and directors, see the disclosure in the Registration Statement in the sections titled “Executive Officers and Directors of HOFV,” “GPAQ’s Management,” and “Management After the Business Combination” and the disclosure set forth under the heading “Directors and Executive Officers” under Item 2.01 of this Current Report concerning Mike Levy, in each case which are incorporated by reference.

Following the closing of the Business Combination, the officers and directors of the Company consist of the following:

Name	Age	Position
Michael Crawford⁽³⁾	52	Chief Executive Officer, Director
Jason Krom	39	Chief Financial Officer
Anne Graffice	48	Executive Vice President of Public Affairs
Mike Levy	59	President of Operations
James J. Dolan⁽³⁾	65	Director
Michael Klein⁽¹⁾	56	Director
Edward J. Roth III⁽¹⁾	63	Director
Stuart Lichter⁽²⁾	71	Director
Kimberly K. Schaefer⁽³⁾	54	Director
Karl L. Holz⁽²⁾	69	Director
Anthony J. Buzzelli⁽³⁾	70	Director
Mary Owen⁽¹⁾	42	Director
Curtis Martin⁽²⁾	46	Director
David Dennis⁽²⁾	62	Director

(1)

Class A directors

(2)

Class B directors

(3)

Class C directors

Employment Agreement of Michael Crawford

In connection with the consummation of the Business Combination, Mr. Crawford, the Company and Newco entered into an employment agreement, effective July 1, 2020 (the “Crawford Employment Agreement”). Under the terms of the Crawford Employment Agreement, Mr. Crawford serves as the President and Chief Executive Officer of the Company. The employment agreement will terminate on December 31, 2022 unless earlier terminated; however, the term will automatically renew for successive 12-month periods unless either party provides 90 days’ written notice of non-renewal. Under the terms of the Crawford Employment Agreement, Mr. Crawford will receive an annual base salary of $800,000 through December 31, 2020, and $850,000 for calendar year 2021, with a minimum annual salary of $850,000 for any subsequent years, as determined by the Compensation Committee of the Company’s board of directors. Mr. Crawford will also be entitled to receive a closing bonus of $400,000, payable in three installments in calendar year 2020. Additionally, Mr. Crawford will be eligible to receive an annual bonus. Mr. Crawford’s annual bonus for calendar year 2020 will be at least $400,000; however, his total annual salary and bonus for 2020 will not exceed $1,500,000 unless otherwise approved by the Company’s board of directors. In accordance with his employment agreement and the terms of the Company’s 2020 Omnibus Incentive Plan, Mr. Crawford is entitled to receive 715,929 restricted shares of Company Common Stock upon the effectiveness of a registration statement covering those shares. Additionally, the Crawford Employment Agreement provides Mr. Crawford with a vehicle allowance to reimburse Mr. Crawford for the lease expense of a vehicle with a retail value of up to $70,000.

This summary of the Crawford Employment Agreement is qualified in its entirety by reference to the text of the Crawford Employment Agreement, which is included as Exhibit 10.5 and is incorporated herein by reference.

Adoption of 2020 Omnibus Incentive Plan

At the Special Meeting, the GPAQ stockholders considered and approved the 2020 Omnibus Incentive Plan (the “Incentive Plan”). Subject to adjustment, the maximum number of shares of Common Stock to be authorized for issuance under the Incentive Plan is 3% of the outstanding shares of Common Stock on a fully-diluted basis on the date on which the transactions contemplated under the Merger Agreement were completed. The Incentive Plan was previously approved, subject to stockholder approval, by the board of directors of the Company. The Incentive Plan became effective immediately upon the Closing of the Business Combination.

A more complete summary of the terms of the Incentive Plan is set forth in the Registration Statement. That summary and the foregoing description is qualified in its entirety by reference to the text of the Incentive Plan, which is filed as Exhibit 10.4 hereto and incorporated herein by reference.

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information set forth in Item 3.03 is incorporated by reference into this Item 5.03.

Item 5.06

Change in Shell Company Status.

As a result of the Business Combination, the Company ceased being a shell company. Reference is made to the disclosure in the Registration Statement in the sections titled “The Business Combination Proposal” and “The Merger Agreement” and is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 to this Current Report.

Item 8.01.

Other Events.

By operation of Rule 12g-3(a) under the Exchange Act, the Company is the successor issuer to GPAQ and has succeeded to the attributes of GPAQ as the registrant, including GPAQ’s SEC file number (001-38363) and CIK Code (0001708176).

Amendment to Constellation Sponsorship Agreement

On June 15, 2020, HOF Village entered into an Amendment to Sponsorship and Services Agreement (the “Constellation Agreement Amendment”) with PFHOF and Constellation NewEnergy, Inc. that amends certain terms of the original Sponsorship and Services Agreement (the “Original Constellation Agreement”), dated December 19, 2018. The Constellation Agreement Amendment made the following amendments to the Original Constellation Agreement, among others:

●

updated provisions related to the impact of construction delays and ensures that any such delays will not impact the parties’ respective obligations or constitute an event of default;

●

extended the term of the Original Constellation Agreement for an additional year to December 31, 2029; and

●

updated terms related to the construction schedule, sponsorship rights, and sponsorship fees and activation fund proceeds.

HOF Village contributed the Constellation Agreement Amendment and the Original Constellation Agreement to Newco in connection with the Business Combination. This summary of the Constellation Agreement Amendment is qualified in its entirety by reference to the text of the Constellation Agreement Amendment, which is attached as Exhibit 10.14 and incorporated herein by reference.

JKP Financial, LLC Promissory Note

On June 24, 2020, HOF Village and HOF Village Hotel II, LLC (“HOFV Hotel II”) executed a loan evidenced by a Promissory Note (the “JKP Note”) in favor of JKP Financial, LLC (“JKP”) for the principal sum of $7,000,000, which will be due on December 31, 2020 (the “JKP Maturity Date”). The JKP Note bears interest at a rate of 12% annually, with interest due on the JKP Maturity Date using a 360-day year and 30-day month. In addition, HOF Village must pay JKP an origination fee equal to 1% of: (a) $7,000,000 minus (b) the amount needed to pay off, in full, the loan evidenced by the original promissory note, dated October 22, 2019, in the original principal amount of $1,807,338.99 (the “Refinanced JKP Note”), from HOFV Hotel II, as borrower, to CH Capital Lending, LLC (“CH Capital”), as lender. The JKP Note is secured by the membership interests in HOFV Hotel II held by HOF Village.

HOF Village intends to use the proceeds of the JKP Note to (i) repay the Refinanced Note, (ii) pay costs associated with the demolition, renovation, development, and construction of the real property owned by HOFV Hotel II, and (iii) for other properly authorize corporate uses. On June 24, 2020, $1,928,831 ($1,807,339 in principal plus $121,492 in accrued interest) was advanced to CH Capital out of the $7,000,000 principal amount of the Note in full satisfaction of the outstanding obligations under the Refinanced JKP Note. HOF Village contributed the JKP Note to Newco in connection with the Business Combination.

This summary of the JKP Note is qualified in its entirety by reference to the text of the JKP Note, which is attached as Exhibit 10.11 and incorporated herein by reference.

IRG Side Letter

On June 25, 2020, HOF Village entered into a Letter Agreement re Payment Terms (the “IRG Side Letter”) amending and restating a Letter Agreement re Payment Terms entered into on January 21, 2020 (the “January Letter”). The IRG Side Letter was entered into with respect to (i) the $65 million secured term loan agreement (as amended, the “Term Loan Agreement”) entered into on March 20, 2018 by HOF Village, the other borrowers party thereto (together with HOF Village, the “Borrowers”), the various lenders party thereto (the “Lenders”) and GACP Finance Co., LLC, as administrative agent (“GACP Finance”) (ii) the subordinated promissory note entered into on February 7, 2020, effective as of November 27, 2019, (as amended, the “IRG November Note”) between HOF Village, as borrower, and payable to the order of Industrial Realty Group, LLC, a Nevada limited liability company (“IRG”), in an amount up to $30,000,000, (iii) the Guaranty dated November 16, 2019 by IRG Master Holdings, LLC, a Delaware limited liability company (“IRGMH” and together with IRG and their respective affiliates, the “IRG Entities”) in favor of GACP Finance (the “IRGMH Guaranty”) and (iv) the Loan Purchase and Assumption Agreement (which may be entered into at a future date, but which has not, at this time, been agreed upon or executed by any party) by and among the Lenders, GACP Finance, the Borrowers and the purchasing lender party thereto (the “LPAA”, and together with the IRG November Note and the IRGMH Guaranty, the “Advancement Documents”).

Pursuant to the IRG Side Letter, if any IRG Entity advances funds pursuant to the Advancement Documents, the Term Loan Agreement, or any other instrument in order to pay certain specified lenders under the Term Loan Agreement, as a result of such advancement of funds, any IRG Entity becomes a Lender or has the rights of a Lender under the Term Loan Agreement, then (i) certain mandatory prepayment provisions will be deleted and no longer be applicable, (ii) the maturity date of the of the Term Loan Agreement will be extended to August 31, 2021 and (iii) HOF Village will not be required to pay to any IRG Entity any principal, interest, or other obligations due under the Term Loan Agreement if payment of such amounts would cause Borrowers to violate applicable Nasdaq or securities-law requirements. HOF Village contributed the IRG Side Letter and the Term Loan Agreement to Newco in connection with the Business Combination.

This summary of the IRG Side Letter is qualified in its entirety by reference to the text of the IRG Side Letter, which is included as Exhibit 10.12 and is incorporated herein by reference.

Amendment Number 8 to the Term Loan Agreement

On June 30, 2020, HOF Village entered into Amendment Number 8 to Term Loan Agreement (“Amendment Number 8”) among the Borrowers, the Lenders and GACP Finance to amend certain terms of the Term Loan Agreement and obtain the waiver and forbearance of the rights and remedies that GACP Finance and the Lenders could exercise under the Term Loan Agreement as a result of the existence and continuation of certain events of default under the Term Loan Agreement. Amendment Number 8 made the following amendments to the Term Loan Agreement, among others:

●

extended the maturity date to the earlier of (a) November 30, 2020 and (b) the dates that all loans become due and payable in full under the Term Loan Agreement;

●

updated certain defined terms to align with the final transaction structure;

●

specified the amount of proceeds from the Business Combination and Private Placement that were required to be paid towards amounts outstanding under the Term Loan Agreement (the “Gordon Pointe Transaction Prepayment Amount”);

●

added a fee payable to certain Lenders relative to the amounts owed after giving effect to the Gordon Pointe Transaction Prepayment Amount; and

●

amended various provisions related to mandatory prepayments of outstanding amounts owed under the Term Loan Agreement.

HOF Village contributed Amendment Number 8 and the Term Loan Agreement to Newco in connection with the Business Combination. This summary of Amendment Number 8 is qualified in its entirety by reference to the text of Amendment Number 8, which is included as Exhibit 10.13 and is incorporated herein by reference.

Item 9.01

Financial Statements and Exhibits.

(a)-(b) Financial Statements.

Information responsive to Item 9.01(a) and (b) of Current Report is set forth in the financial statements included in the Registration Statement beginning on page F-1, and under “Unaudited Pro Forma Combined Financial Information” and is incorporated herein by reference.

The unaudited pro forma financial statements are filed as Exhibit 99.2 to this Current Report and are incorporated herein by reference.

(d) Exhibits

Exhibit No.		Document
2.1(a) +		Agreement and Plan of Merger, dated as of September 16, 2019, by and among Gordon Pointe Acquisition Corp., GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, LLC and HOF Village Newco, LLC (incorporated by reference to Exhibit 2.1 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on September 17, 2019)
2.1(b)		First Amendment to Agreement and Plan of Merger, dated as of November 5, 2019, by and among Gordon Pointe Acquisition Corp., GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, LLC and HOF Village Newco, LLC (incorporated by reference to Exhibit 2.2 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on November 8, 2019)
2.1(c)		Second Amendment to Agreement and Plan of Merger, dated as of March 10, 2020, by and among Gordon Pointe Acquisition Corp., GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, LLC and HOF Village Newco, LLC (incorporated by reference to Exhibit 2.1 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on March 16, 2020)
2.1(d)		Third Amendment to Agreement and Plan of Merger, dated as of May 22, 2020, by and among Gordon Pointe Acquisition Corp., GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, LLC and HOF Village Newco, LLC (incorporated by reference to Exhibit 2.1 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on May 28, 2020)
3.1		Amended and Restated Certificate of Incorporation of Hall of Fame Resort & Entertainment Company
3.2		Bylaws of Hall of Fame Resort & Entertainment Company
4.1		Specimen Common Stock Certificate
4.2		Specimen Warrant Certificate
5.1		Form of Warrant Agreement (incorporated by reference to Exhibit 4.2 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on January 30, 2018)
10.1		Form of Lock-Up Agreement (incorporated by reference to Exhibit 10.1 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on November 12, 2019)
10.2		Form of Director Nominating Agreement (incorporated by reference to Exhibit 10.2 to Post-Effective Amendment No. 1 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on March 10, 2020)
10.3		Form of Release Agreement (incorporated by reference to Exhibit 10.3 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on November 12, 2019)
10.4		GPAQ Acquisition Holdings, Inc. 2020 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.4 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on November 12, 2019)
10.5		Employment Agreement, dated July 1, 2020, by and between Michael Crawford, HOFV Newco, LLC and Hall of Fame Resort & Entertainment Company
10.6		Employment Agreement, dated June 22, 2020, by and between Michael Levy and HOF Village, LLC
10.7+		Note Purchase Agreement, dated July 1, 2020, by and among Hall of Fame Resort & Entertainment Company and certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto
10.8		Registration Rights Agreement, dated July 1, 2020, by and among Hall of Fame Resort & Entertainment Company and certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto
10.9		Note Redemption and Warrant Agreement, dated July 1, 2020, by and among Hall of Fame Resort & Entertainment Company and certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto
10.10+		Amended and Restated Sponsorship and Naming Rights Agreement, dated July 2, 2020, by and among HOF Village, LLC, National Football Museum, Inc. and Johnson Controls, Inc.
10.11		Promissory Note, dated June 24, 2020, by HOF Village, LLC and HOF Village Hotel II, LLC in favor of JKP Financial, LLC
10.12		Letter Agreement re Payment Terms, dated June 25, 2020, by and among Industrial Realty Group, LLC, IRG Master Holdings, LLC, HOF Village, LLC and certain affiliates party thereto
10.13+		Amendment Number 8 to Term Loan Agreement, dated June 30, 2020, by and among HOF Village, LLC and certain affiliates party thereto, the Lenders party thereto and GACP Finance Co., LLC, as Administrative Agent
10.14+		Amendment to Sponsorship and Services Agreement, dated June 15, 2020, by and among HOF Village, LLC, National Football Museum, Inc. and Constellation NewEnergy, Inc.
21.1		Subsidiaries of Hall of Fame Resort & Entertainment Company
99.1		Press Release, dated July 1, 2020
99.2		Unaudited Pro Forma Combined Financial Statements

The exhibits and schedules to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant hereby agrees to furnish a copy of any omitted schedules to the Commission upon request.

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 AND ENTERTAINMENT COMPANY

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

Dated: July 8, 2020

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GPAQ ACQUISITION HOLDINGS, INC.

July 1, 2020

GPAQ Acquisition Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:

1. The name of the Corporation is “GPAQ Acquisition Holdings, Inc.”. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on August 29, 2019 (the “Original Certificate”).

2. This Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”), which both restates and amends the provisions of the Original Certificate, was duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).

3. The text of the Original Certificate is hereby amended and restated in its entirety to read as follows:

ARTICLE I
NAME

The name of the corporation is Hall of Fame Resort & Entertainment Company (the “Corporation”).

ARTICLE II
PURPOSE

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.

ARTICLE III
REGISTERED AGENT

The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, DE 19801, County of New Castle; and the name of the Corporation’s Registered Agent as such address is The Corporation Trust Company.

ARTICLE IV
CAPITALIZATION

Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 105,000,000, of which 100,000,000 shares shall be common stock of the par value $0.0001 per share (“Common Stock”) and 5,000,000 shares shall be preferred stock of the par value of $0.0001 per share (“Preferred Stock”).

Section 4.2 Preferred Stock. The board of directors of the Corporation (the “Board”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional and other special rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.

Section 4.3 Common Stock.

(a) Voting.

(i) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall possess all voting power with respect to the Corporation.

(ii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote.

(iii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) or the DGCL.

(b) Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.

(c) Liquidation, Dissolution or Winding Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.

(d) No Cumulative Voting Rights. No holder of shares of Common Stock shall have cumulative voting rights.

Section 4.4 Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to purchase shares of any class or series of the Corporation’s capital stock or other securities of the Corporation, and such rights, warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock subject thereto may not be less than the par value thereof.

ARTICLE V
BOARD OF DIRECTORS

Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws (“Bylaws”) of the Corporation, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate, and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

Section 5.2 Number, Election and Term.

(a) Upon the effectiveness of this Amended and Restated Certificate of Incorporation (the “Effective Time”), the total number of directors constituting the entire Board of Directors shall be eleven (11). Thereafter, the total number of directors constituting the entire Board of Directors shall be such number as may be fixed from time to time exclusively by resolution adopted by the affirmative vote of at least a majority of the Board of Directors then in office.

(b) Subject to the terms of any one or more series of Preferred Stock, and effective upon the Effective Time, the Board of Directors shall be divided into three classes: Class A, Class B and Class C. The number of directors in each class shall be as nearly equal as possible. The Board of Directors may assign members of the Board of Directors already in office to such classes as of the Effective Time. The directors in Class A shall be elected for a term expiring at the first Annual Meeting of Stockholders after the Effective Time, the directors in Class B shall be elected for a term expiring at the second Annual Meeting of Stockholders after the Effective Time, and the directors in Class C shall be elected for a term expiring at the third Annual Meeting of Stockholders after the Effective Time.

(c) Commencing at the first Annual Meeting of Stockholders after the Effective Time and at each annual meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the third succeeding Annual Meeting of Stockholders after their election. Except as the DGCL may otherwise require, in the interim between Annual Meetings of Stockholders or Special Meetings of Stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. If the number of directors is changed, any increase or decrease shall be apportioned among the classes in a manner as the Board of Directors shall determine so as to maintain the number of directors in each class as nearly equal as possible, but in no cases will an increase or decrease in the number of directors shorten the term of an incumbent.

(d) Election of directors need not be by written ballot unless the Bylaws so provide.

Section 5.3 Officers. Except as otherwise expressly delegated by resolution of the Board of Directors, the Board of Directors shall have the exclusive power and authority to appoint and remove officers of the Corp oration.

ARTICLE VI
BYLAWS

In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws; and provided further, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT

Section 7.1 Meetings. Subject to the terms of any one or more series or classes of Preferred Stock, special meetings of the stockholders of the Corporation may be called as prescribed by the Bylaws of the Corporation.

Section 7.2 Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

Section 7.3 Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, subsequent to the consummation of the Offering, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders.

ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION

Section 8.1 Limitation of Director Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless they violated their duty of loyalty to the Corporation or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from their actions as directors. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

Section 8.2 Indemnification and Advancement of Expenses.

(a) To the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.

(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.

(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.

ARTICLE IX
CORPORATE OPPORTUNITY

The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors in circumstances where the application of any such doctrine to a corporate opportunity would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Amended and Restated Certificate or in the future. In addition to the foregoing, the doctrine of corporate opportunity shall not apply to any other corporate opportunity with respect to any of the directors or officers of the Corporation unless such corporate opportunity is offered to such person solely in his or her capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue.

ARTICLE X
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Amended and Restated Certificate and the DGCL; and, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article X.

ARTICLE XI
MISCELLANEOUS

Section 11.1 Exclusive Forum. Unless the Corporation consents in writing to the selection of an alternative forum, any (i) derivative action or proceeding brought on behalf of the Corporation, (ii) action asserting a claim of breach of a fiduciary duty owed by any director, officer, stockholder or employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) action asserting a claim arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the Bylaws, or (iv) action asserting a claim governed by the internal affairs doctrine, shall, to the fullest extent permitted by law, be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, another state or federal court located within the State of Delaware. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 11.l. Notwithstanding anything otherwise to the contrary herein, the provisions of this Section 11.1 will not apply to suits brought to enforce a duty or liability created by the federal securities laws or any other claim for which the federal courts have exclusive jurisdiction.

Section 11.2 Enforceability. If any provision or provisions of this Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by law, the provisions of this Amended and Restated Certificate (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.

ARTICLE XII
EFFECTIVE TIME

This Amended and Restated Certificate shall become effective as of 5:00 PM (Eastern Time) on July 1, 2020.

IN WITNESS WHEREOF, GPAQ Acquisition Holdings, Inc. has caused this Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.

GPAQ ACQUISITION HOLDINGS, INC.

	By:	/s/ James J. Dolan
	Name:	James J. Dolan
	Title:	Chief Executive Officer

Exhibit 3.2

Bylaws
OF
Hall of fame resort & entertainment company
Dated as of july 1, 2020

ARTICLE I
STOCKHOLDERS

Section 1.01 Annual Meetings. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at such date and time, within or without the State of Delaware, as the Board of Directors shall determine. The Board of Directors may, in its sole discretion, determine that meetings of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication as described in Section 2.11 of these Bylaws in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware. The Board of Directors may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.

Section 1.02 Special Meetings.

(a) Special meetings of stockholders for the transaction of such business as may properly come before the meeting may be called by the Board of Directors pursuant to a resolution approved by a majority of the members of the Board of Directors or by stockholders holding together at least a majority of all the shares of the Corporation entitled to vote at the meeting (the “requisite percent”), and shall be held at such date and time, within or without the State of Delaware, as may be specified by such order. Whenever the directors shall fail to fix such place, the meeting shall be held at the principal executive office of the Corporation.

(b) Any stockholder seeking to request a special meeting shall first request that the Board of Directors fix a record date to determine the stockholders entitled to request a special meeting (the “ownership record date”) by delivering notice in writing to the Secretary of the Corporation at the principal executive offices of the Corporation (the “record date request notice”). A stockholder’s record date request notice shall contain information about the number of shares of the Corporation’s common stock (“Voting Stock”) that are owned of record and beneficially by the stockholder. Upon receiving a record date request notice, the Board of Directors may set an ownership record date. Notwithstanding any other provision of these Bylaws, the ownership record date shall not precede the date upon which the resolution fixing the ownership record date is adopted by the Board of Directors, and shall not be more than 10 days after the close of business on the date upon which the resolution fixing the ownership record date is adopted by the Board of Directors. If the Board of Directors, within 10 days after the date upon which a valid record date request notice is received by the Secretary of the Corporation, does not adopt a resolution fixing the ownership record date, the ownership record date shall be the close of business on the 10th day after the date upon which the valid record date request notice is received by the Secretary of the Corporation (or, if such 10th day is not a business day, the first business day thereafter).

(c) In order for a stockholder-requested special meeting to be called, one or more written requests for a special meeting signed by the stockholders (or their duly authorized agents) who own, as of the ownership record date, at least the requisite percent (the “special meeting request”), must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation. A special meeting request shall: (i) state the business proposed to be acted on at the meeting; (ii) bear the date of the signature of each stockholder (or duly authorized agent) submitting the special meeting request; (iii) set forth the name and address of each stockholder submitting the special meeting request, as they appear on the corporation’s books; (iv) include documentary evidence that the requesting stockholders own the requisite percent as of the ownership record date; provided, however, that if the requesting stockholders are not the beneficial owners of the Voting Stock representing the requisite percent, then to be valid, the special meeting request must also include documentary evidence of the number of shares of Voting Stock owned by the beneficial owners on whose behalf the special meeting request is made as of the ownership record date; and (v) be timely delivered to the Secretary of the Corporation. To be timely, the special meeting request must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation within 60 days after the ownership record date.

(d) After receiving a special meeting request, the Board of Directors shall determine in good faith whether the stockholders requesting the special meeting have satisfied the requirements for calling a special meeting of stockholders, and the Corporation shall notify the requesting stockholder of the Board of Director’s determination about whether the special meeting request is valid. The date, time and place of the special meeting shall be fixed by the Board of Directors, and the date of the special meeting shall not be more than 120 days after the date on which the valid special meeting request is delivered to the Secretary of the Corporation in accordance with this Section 1.02. The record date for the special meeting shall be fixed by the Board of Directors as set forth in Section 5.03of these Bylaws.

(e) A special meeting request shall not be valid, and the Corporation shall not call a special meeting if (i) the special meeting request relates to an item of business that is not a proper subject for stockholder action under, or that involves a violation of, applicable law, the Corporation’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) or these Bylaws or (ii) the special meeting request does not comply with the requirements of the Certificate of Incorporation or these Bylaws.

(f) Any stockholder who submitted a special meeting request may revoke its written request by written revocation delivered to the Secretary of the Corporation at the principal executive offices of the Corporation at any time prior to the stockholder-requested special meeting. A special meeting request shall be deemed revoked (and any meeting scheduled in response may be cancelled) if the stockholders submitting the special meeting request, and any beneficial owners on whose behalf they are acting (as applicable), do not continue to own at least the requisite percent at all times between the date the record date request notice is received by the Corporation and the date of the applicable stockholder-requested special meeting, and the requesting stockholder shall promptly notify the Secretary of the Corporation of any decrease in ownership of shares of Voting Stock that results in such a revocation. If, as a result of any revocations, there are no longer valid unrevoked written requests from the requisite percent, the Board of Directors shall have the discretion to determine whether or not to proceed with the special meeting (and may cancel such meeting).

(g) Business transacted at any stockholder-requested special meeting shall be limited to: (i) the purpose stated in the valid special meeting request received from the requisite percent and (ii) any additional matters that the Board of Directors determines to include in the Corporation’s notice of the meeting. If none of the stockholders who submitted the special meeting request appear at the stockholder-requested special meeting to present the matters to be presented for consideration that were specified in the special meeting request, the Corporation need not present such matters for a vote at such meeting, notwithstanding that proxies in respect of such matter may have been received by the corporation.

Section 1.03 Notice of Meetings. Written notice of all meetings of the stockholders, stating the place (if any), date, and hour of the meeting, the place within the city or other municipality or community at which the list of stockholders may be examined, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting of stockholders, the purpose(s) of the meeting and the person(s) by whom or at whose direction such meeting has been called and such notice is being issued, shall be given not less than 10 nor more than 60 days (or such other period of time as may be required by applicable law) before the date of the meeting, either by mail or by electronic transmission by or at the direction of the Chairman of the Board of Directors or the Secretary of the Corporation to each stockholder of record entitled to vote at such meeting. Notice of any stockholder meeting shall be deemed to be given (a) if the notice is mailed, when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder’s address as it appears on the stock transfer books of the Corporation, (b) if the notice is delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address and (c) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by law. Nothing herein contained shall preclude the stockholders from waiving notice as provided in Article XI hereof.

Section 1.04 Stockholder Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open during ordinary business hours to the examination of any stockholder, for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held, or such other place as permitted or required by statute. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present.

The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 1.05 Quorum. Except as otherwise provided by law or the Certificate of Incorporation, a quorum for the transaction of business at any meeting of stockholders shall consist of the holders of record of a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting, present in person or by proxy. At all meetings of the stockholders at which a quorum is present, all matters, except as otherwise provided by law or the Certificate of Incorporation, shall be decided by the vote of the holders of a majority of the shares entitled to vote thereon present in person or by proxy. If there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time, without further notice, until a quorum shall have been obtained. When a quorum is once present it is not broken by the subsequent withdrawal of any stockholder.

Section 1.06 Organization. Meetings of stockholders shall be presided over by the Chairman, if any, or if none or in the Chairman’s absence the President, if any, or if none or in the President’s absence a Vice-President, or, if none of the foregoing is present, by a chairman to be chosen by the stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary of the Corporation, or in the Secretary’s absence an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting shall appoint any person present to act as secretary of the meeting.

Section 1.07 Voting; Proxies; Required Vote.

(a) At each meeting of stockholders, every stockholder shall be entitled to vote in person or by proxy appointed by instrument in writing, subscribed by such stockholder or by such stockholder’s duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period), and, unless the Certificate of Incorporation provides otherwise, shall have one vote for each share of stock entitled to vote registered in the name of such stockholder on the books of the Corporation on the applicable record date fixed pursuant to these Bylaws. At all elections of directors the voting may but need not be by ballot and a plurality of the votes cast there shall elect. Except as otherwise required by law or the Certificate of Incorporation, any other action shall be authorized by the vote of the majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter.

(b) Any action required or permitted to be taken at any meeting of stockholders may, except as otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of record of the issued and outstanding capital stock of the Corporation having not less than a minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

Section 1.08 Inspectors. The Board of Directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each; the shares of stock represented at the meeting; the existence of a quorum, and the validity and effect of proxies; and shall receive votes, ballots, or consents; hear and determine all challenges and questions arising in connection with the right to vote; count and tabulate all votes, ballots, or consents; determine the result; and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors.

ARTICLE II
BOARD OF DIRECTORS

Section 2.01 General Powers. The business, property, and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors.

Section 2.02 Qualification; Number; Term; Remuneration.

(a) Each director shall be at least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware.

(b) Subject to the Certificate of Incorporation, the number of directors shall be fixed exclusively by resolution of the Board of Directors.

(c) Directors shall be elected by the stockholders at their annual meeting, and the term of each director so elected shall be as set forth in the Certificate of Incorporation. Directors need not be stockholders. The Board of Directors shall elect a Chairman of the Board, who shall have the powers and perform such duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe.

(d) Directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.

(e) The Board of Directors shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.

Section 2.03 Quorum and Manner of Voting. Except as otherwise provided by law, a majority of the directors shall constitute a quorum. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without notice. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

Section 2.04 Places of Meetings. Meetings of the Board of Directors may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of meeting.

Section 2.05 Annual Meeting. Following the annual meeting of stockholders, the newly elected Board of Directors shall meet for the purpose of the election of officers and the transaction of such other business as may properly come before the meeting. Such meeting may be held without notice immediately after the annual meeting of stockholders at the same place at which such stockholders’ meeting is held.

Section 2.06 Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall determine from time to time. Notice need not be given of regular meetings of the Board of Directors held at times and places fixed by resolution of the Board of Directors.

Section 2.07 Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board, the President, or by a majority of the directors then in office.

Section 2.08 Notice of Meetings. A notice of the place, date, and time and the purpose or purposes of each meeting of the Board of Directors shall be given to each director not less than one calendar day before the day of the meeting by mail, telephone, facsimile, e-mail, or by personal delivery.

Section 2.09 Organization. At all meetings of the Board of Directors, the Chairman, if any, or if none or in the Chairman’s absence or inability to act the President, or in the President’s absence or inability to act any Vice-President who is a member of the Board of Directors, or in such Vice-President’s absence or inability to act a chairman chosen by the directors, shall preside. The Secretary of the Corporation shall act as secretary at all meetings of the Board of Directors when present, and, in the Secretary’s absence, the presiding officer may appoint any person to act as secretary.

Section 2.10 Resignation; Removal. Any director may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation. Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.

Section 2.11 Vacancies. Unless otherwise provided in these Bylaws, vacancies on the Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in the authorized number of directors, or otherwise, may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director, or at a special meeting of the stockholders, by the holders of shares entitled to vote for the election of directors.

Section 2.12 Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all the directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.

Section 2.13 Remote Meeting. Any one or more members of the Board of Directors may participate in a meeting of the Board of Directors or committee by means of a conference telephone call, videoconference, via electronic communications portals or similar means of communications which enable all persons participating in the meeting to hear each other.

ARTICLE III
Committees

Section 3.01 Appointment. From time to time the Board of Directors by a resolution adopted by a majority of the entire Board may appoint any committee or committees for any purpose or purposes, to the extent lawful, which shall have powers as shall be determined and specified by the Board of Directors in the resolution of appointment.

Section 3.02 Procedures, Quorum, and Manner of Acting. Each committee shall fix its own rules of procedure, and shall meet where and as provided by such rules or by resolution of the Board of Directors. Except as otherwise provided by law, the presence of a majority of the then-appointed members of a committee shall constitute a quorum for the transaction of business by that committee, and in every case where a quorum is present the affirmative vote of a majority of the members of the committee present shall be the act of the committee. Each committee shall keep minutes of its proceedings, and actions taken by a committee shall be reported to the Board of Directors.

Section 3.03 Action by Written Consent. Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all the members of the committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.

Section 3.04 Remote Meeting. Any one or more members of any committee of the Board of Directors may participate in a meeting of the Board of Directors or committee by means of a conference telephone call, videoconference, via electronic communications portals or similar means of communications which enable all persons participating in the meeting to hear each other.

Section 3.05 Term; Termination. In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member of any committee appointed by the Board of Directors.

ARTICLE IV
OFFICERS

Section 4.01 Election and Qualifications. The Board of Directors shall elect the officers of the Corporation, which shall include a Chief Executive Officer, a President, a Chief Financial Officer and a Secretary, and may include, by election or appointment, one or more Vice-Presidents (any one or more of whom may be given an additional designation of rank or function), and such Assistant Secretaries, and such other officers as the Board may from time to time deem proper. Each officer shall have such powers and duties as may be prescribed by these Bylaws and as may be assigned by the Board of Directors or the President. Any number of offices may be held by the same person.

Section 4.01 Tenure and Removal. The officers of the Corporation shall be elected or appointed to hold office until their respective successors are elected or appointed. All officers shall hold office at the pleasure of the Board of Directors, and any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors for cause or without cause at any regular or special meeting.

Section 4.02 Vacancies. Any vacancy occurring in any office of the Corporation, whether because of death, resignation or removal, with or without cause, or any other reason, shall be filled by the Board of Directors.

Section 4.03 Compensation. The salaries and other compensation of all officers and agents of the Corporation shall be fixed by or in the manner prescribed by the Board of Directors.

Section 4.04 Resignation. Any officer may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation.

Section 4.05 Chairman of the Board. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the Board of Directors and shall have such other powers and duties as may from time to time be assigned by the Board of Directors.

Section 4.06 Chief Executive Officer/President. The Chief Executive Officer, who shall also be the President, subject to the determination of the Board of Directors, shall have such duties as customarily pertain to that office and shall have such other powers and duties as may from time to time be assigned by the Board of Directors. The Chief Executive Officer may appoint and remove assistant officers and other agents and employees, and may execute and deliver in the name of the Corporation powers of attorney, contracts, bonds, and other obligations and instruments.

Section 4.07 Vice-President. A Vice-President may execute and deliver in the name of the Corporation contracts and other obligations and instruments pertaining to the regular course of the duties of said office and shall have such other authority as from time to time may be assigned by the Board of Directors or the President.

Section 4.08 Chief Financial Officer. The Chief Financial Officer shall in general have all duties incident to the position of Chief Financial Officer and such other duties as may be assigned by the Board of Directors or the President.

Section 4.09 Secretary. The Secretary shall in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the Board of Directors or the President.

Section 4.10 Assistant Officers. Any assistant officer shall have such powers and duties of the officer such assistant officer assists as such officer or the Board of Directors shall from time to time prescribe.

ARTICLE V
Books and records

Section 5.01 Location. The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board of Directors or the respective officers in charge thereof may from time to time determine. The record books containing the names and addresses of all stockholders, the number and class of shares of stock held by each, and the dates when they respectively became the owners of record thereof shall be kept by the Secretary as prescribed in the Bylaws and by such officer or agent as shall be designated by the Board of Directors.

Section 5.02 Addresses of Stockholders. Notices of meetings and all other corporate notices may be delivered personally or mailed to each stockholder at the stockholder’s address as it appears on the records of the Corporation.

Section 5.03 Fixing Date for Determination of Stockholders of Record.

(a) So that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

(b) So that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and if no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by this article, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

(c) So that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted and if no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

ARTICLE VI
certificates representing stock

Section 6.01 Certificates; Signatures. The shares of the Corporation shall be represented by certificates, or all of such shares shall be uncertificated shares that may be evidenced by a book entry system maintained by the Corporation, or a combination of both. If share shares are represented by certificates, such certificates shall be in the form approved by the Board of Directors. The certificates representing shares shall be signed by or in the name of the Corporation by the Chairman of the Board of Directors, or the President or any Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares registered in certificate form. Any and all signatures on any such certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.

Section 6.02 Transfers of Stock. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be transferable on the books of the Corporation only by the holder of record thereof in person, or by a duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes due thereon.

Section 6.03 Fractional Shares. The Corporation may, but shall not be required to, issue certificates for fractions of a share where necessary to effect authorized transactions, or the Corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or it may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the Corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a stockholder except as therein provided.

The Board of Directors shall have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer, and registration of certificates representing shares of the Corporation.

Section 6.04 Lost, Stolen, or Destroyed Certificates. The Corporation may issue a new certificate of stock in place of any certificate, theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of any lost, stolen, or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate.

ARTICLE VII
Dividends

Subject always to the provisions of law and the Certificate of Incorporation, the Board of Directors shall have full power to determine whether any, and, if any, what part of any, funds legally available for the payment of dividends shall be declared as dividends and paid to stockholders; the division of the whole or any part of such funds of the Corporation shall rest wholly within the lawful discretion of the Board of Directors, and it shall not be required at any time, against such discretion, to divide or pay any part of such funds among or to the stockholders as dividends or otherwise; and before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

ARTICLE VIII
Ratification

Any transaction, questioned in any lawsuit on the ground of lack of authority; defective or irregular execution; adverse interest of director, officer, or stockholder; non-disclosure; miscomputation; or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board of Directors or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally duly authorized. Such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.

ARTICLE IX
Corporate Seal

The corporation may have a corporate seal. The corporate seal, if any, shall have inscribed thereon the name of the Corporation and the year of its incorporation, and shall be in such form and contain such other words or figures as the Board of Directors shall determine. The corporate seal may be used by printing, engraving, lithographing, stamping, or otherwise making, placing, or affixing, or causing to be printed, engraved, lithographed, stamped, or otherwise made, placed, or affixed, upon any paper or document, by any process whatsoever, an impression, facsimile, or other reproduction of said corporate seal.

ARTICLE X
Fiscal Year

The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the Corporation shall end on December 31.

ARTICLE XI
Waiver of Notice

Whenever notice is required to be given by these Bylaws or by the Certificate of Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.

ARTICLE XII
Bank Accounts, Drafts, Contracts, &c.

Section 12.01 Bank Accounts and Drafts. In addition to such bank accounts as may be authorized by the Board of Directors, the primary financial officer or any person designated by said primary financial officer, whether or not an employee of the Corporation, may authorize such bank accounts to be opened or maintained in the name and on behalf of the Corporation as he may deem necessary or appropriate, payments from such bank accounts to be made upon and according to the check of the Corporation in accordance with the written instructions of said primary financial officer, or other person so designated by the Treasurer.

Section 12.02 Contracts. The Board of Directors may authorize any person or persons, in the name and on behalf of the Corporation, to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts, and other obligations or instruments, and such authority may be general or confined to specific instances.

Section 12.03 Proxies; Power of Attorney; Other Instruments. The Chairman, the President, or any other person designated by either of them shall have the power and authority to execute and deliver proxies, powers of attorney, and other instruments on behalf of the Corporation in connection with the rights and powers incident to the ownership of stock by the Corporation. The Chairman, the President, or any other person authorized by proxy or power of attorney executed and delivered by either of them on behalf of the Corporation may attend and vote at any meeting of stockholders of any company in which the Corporation may hold stock, and may exercise on behalf of the Corporation any and all of the rights and powers incident to the ownership of such stock at any such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such person. The Board of Directors, from time to time, may confer like powers upon any other person.

Section 12.04 Financial Reports. The Board of Directors may appoint the primary financial officer or other fiscal officer or the Secretary or any other officer to cause to be prepared and furnished to stockholders entitled thereto any special financial notice or financial statement, as the case may be, that may be required by any provision of law.

ARTICLE XIII

INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS

The indemnification of directors, officers and other persons shall be as provided in the Certificate of Incorporation.

ARTICLE XIV
Amendments

The Board of Directors shall have the power to adopt, amend, or repeal these Bylaws. Bylaws adopted by the Board of Directors may be repealed or changed, and new Bylaws made, by the stockholders, and the stockholders may prescribe that any Bylaw made by them shall not be altered, amended or repealed by the Board of Directors.

* * * * *

Exhibit 4.1

NUMBER	NUMBER
	C-

	SHARES

	SEE REVERSE FOR CERTAIN DEFINITIONS

	CUSIP 40619L 102

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK

This Certifies that is the owner of

FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.0001 EACH OF THE COMMON STOCK OF

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

(THE “CORPORATION”)

transferable on the books of the Corporation in person or by duly authorized attorney upon surrender of this certificate properly endorsed.

This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.

Witness the seal of the Corporation and the facsimile signatures of its duly authorized officers.

Secretary	[Corporate Seal] Delaware	President

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Corporation), to all of which the holder of this certificate by acceptance hereof assents. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM	—	as tenants in common	UNIF GIFT MIN ACT	—	Custodian

TEN ENT	—	as tenants by the entireties			(Cust) (Minor)

JT TEN

—

as joint tenants with right of survivorship and not as tenants in common

under Uniform Gifts to Minors Act
(State)

Additional abbreviations may also be used though not in the above list.

For value received, hereby sells, assigns and transfers unto

(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))

(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))

Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitutes and appoints Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.

Dated:

NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

Signature(s) Guaranteed:

THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE).

Exhibit 4.2

Form of Warrant Certificate

[FACE]

Number

Warrants

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW

HALL OF FAME RESORT & ENTERTAINMENT COMPANY
Incorporated Under the Laws of the State of Delaware

CUSIP 40619L 110

Warrant Certificate

This Warrant Certificate certifies that , or registered assigns, is the registered holder of warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase shares of common stock, $0.0001 par value (“Common Stock”), of Hall of Fame Resort & Entertainment Company, a Delaware corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable shares of Common Stock as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

Each Warrant is initially exercisable for one fully paid and non-assessable share of Common Stock. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

The initial Exercise Price per share of Common Stock for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.

This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.

	HALL OF FAME RESORT & ENTERTAINMENT COMPANY

	By:
	Name:
	Title:

	CONTINENTAL STOCK TRANSFER
	& TRUST COMPANY, as Warrant Agent

	By:
	Name:
	Title:

Form of Warrant Certificate

[Reverse]

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to a Warrant Agreement dated as of January 24, 2018 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the shares of Common Stock is current, except through “cashless exercise” as provided for in the Warrant Agreement.

The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.

Election to Purchase

(To Be Executed Upon Exercise of Warrant)

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of Hall of Fame Resort & Entertainment Company (the “Company”) in the amount of $ in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Common Stock be registered in the name of , whose address is and that such shares of Common Stock be delivered to whose address is . If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of , whose address is and that such Warrant Certificate be delivered to , whose address is .

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement.

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of shares of Common Stock that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of , whose address is and that such Warrant Certificate be delivered to , whose address is .

[Signature Page Follows]

Date: , 20
	(Signature)




	(Address)


	(Tax Identification Number)


Signature Guaranteed:

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE)).

Exhibit 10.5

EXECUTION VERSION

EMPLOYMENT agreement

This Employment Agreement (this “Agreement”) is made and entered into by and between HOF Village Newco, LLC (“HOF Newco”) and GPAQ Acquisition Holdings, Inc., to be renamed Hall of Fame Resort & Entertainment Company as of the Effective Date (defined below) (“Hall of Fame Resort”) (Hall of Fame Resort, together with HOF Newco, the “Company”), on the one hand, and Michael Crawford (the “Executive”), on the other hand, and shall be effective on the Effective Date.

RECITALS

1. The Executive is currently engaged as the Chief Executive Officer of HOF Village, LLC, a Delaware limited liability company (“HOF Village”) pursuant to the Services Agreement between Executive and HOF Village dated December 6, 2019 (the “Services Agreement”).

2. Pursuant to the transactions set forth in that certain Agreement and Plan of Merger dated as of eptember 16, 2019, by and among Gordon Pointe Acquisition Corp, GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, and the Company, among other things, the assets and operations of HOF Village will be transferred to the Company, and the Company will merge with GPAQ Company Merger Sub, with the Company continuing as the surviving entity in the merger (the “Transaction”).

3. The Company desires to employ the Executive, and the Executive desires to be employed by the Company, on the terms and subject to the conditions set forth herein.

4. The Executive’s execution of this Agreement, which will take effect on the date on which the consummation of the Transaction occurs (the “Effective Date”), is a condition to the consummation of the Transaction.

5. The Executive is willing to enter into this Agreement in consideration of the terms, conditions, and benefits that the Executive will receive under the terms hereof, and the Company is willing to enter into this Agreement in consideration of the promises and covenants by Executive contained herein.

AGREEMENTS

In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

EMPLOYMENT OF EXECUTIVE.

1.1. Duties and Status. HOF Newco and Hall of Fame Resort hereby engage the Executive as President and Chief Executive Officer for the Employment Period, as defined in Section 3.1 hereof, and the Executive accepts such employment, on the terms and subject to the conditions set forth in this Agreement. The Executive shall faithfully exercise in good faith such authority and perform such duties on behalf of the Company that are typically associated with such positions and all other duties that may be assigned to the Executive by the Company’s Board of Directors (the “Board”) from time to time.

1.2. Time and Effort. During the Employment Period, the Executive shall devote the Executive’s entire working time, energy, and efforts to the performance of the Executive’s duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company. Notwithstanding the foregoing, this Section 1.2 shall not be interpreted to prohibit the Executive from making personal investments of time that do not require more than a de minimis time commitment, performing charitable or civic acts or services or serving on the board of a non-profit organization, or conducting private business affairs if those activities do not materially interfere with the services required under this Agreement or violate the provisions of Section 4.

COMPENSATION AND BENEFITS.

2.1. Annual Base Salary. For all of the services rendered by the Executive to the Company during the Employment Period, the Company shall pay the Executive an annual base salary (“Annual Base Salary”) equal to $800,000.00 through December 31, 2020 and $850,000.00 from January 1, 2021 through December 31, 2021. For any years thereafter during the Employment Period, the Annual Base Salary shall be at least $850,000.00 and shall be determined by the Compensation Committee of the Board based on the Company’s and the Executive’s achievement of performance metrics as agreed-upon in writing by the Executive and the Compensation Committee of the Board. The Annual Base Salary shall be pro-rated for any partial year of employment. The Annual Base Salary shall be payable in accordance with the practice of the Company in effect from time to time for the payment of salaries to employees of the Company and shall be subject to applicable withholdings and deductions.

2.2. Closing Bonus. The Company shall pay the Executive a Closing Bonus of $400,000.00, less applicable withholdings and deductions. The Closing Bonus shall be paid in three installments as follows: (1) $100,000.00, less applicable withholdings and deductions, on or before July 15, 2020; (2) $100,000.00, less applicable withholdings and deductions, on or before September 30, 2020; and (3) $200,000.00, less applicable withholdings and deductions, on or before December 31, 2020.

2.3. Annual Bonus. For the calendar year beginning January 1, 2020 and for each subsequent calendar year during the Employment Period thereafter, the Executive shall be eligible to receive an annual bonus (the “Annual Bonus”). The target for the Annual Bonus opportunity for each calendar year shall be 100% of the Executive’s Annual Base Salary for each such calendar year. Each Annual Bonus shall be payable based on the Company’s achievement of performance metrics as agreed-upon by the Executive and the Compensation Committee of the Board for each calendar year, such performance targets to be agreed in writing by Executive and approved by the Compensation Committee prior to February 15 of each year; provided, however, that the Executive’s Annual Bonus for calendar year 2020 shall not be less than $400,000 and provided further that the Executive’s Annual Base Salary (including the salary paid to the Executive by HOF Village from January 1, 2020 through the Effective Date) and Annual Bonus for calendar year 2020 shall not exceed $1,500,000.00 unless the Board approves otherwise. Each Annual Bonus shall be paid in a single cash payment and shall be paid no later than March 15 of the year after the calendar year for which the Annual Bonus is earned. To earn and be entitled to the Annual Bonus for any given calendar year, (a) the Executive must have been employed by the Company continuously throughout the calendar year for which the Annual Bonus is earned; (b) the Executive must not have been terminated by the Company for Cause after the end of the applicable calendar year but before the Annual Bonus is paid; and (c) the Executive must not have ended Executive’s employment with the Company without Good Reason (as defined below) after the end of the applicable calendar year but before the Annual Bonus is paid.

2.4. Common Stock Award. The Executive shall be granted shares of Hall of Fame Resort common stock (each such grant, a “Stock Award”) in accordance with this Section 2.4.

(a) On the Effective Date, the Executive shall receive a Stock Award for the number of whole shares of Hall of Fame Resort common stock that most nearly equals 2.25% of the outstanding shares of Hall of Fame Resort common stock on the Effective Date.

(b) The Stock Award shall be evidenced by an award agreement between Hall of Fame Resort and the Executive. The award agreement shall provide that the Executive’s rights in the Stock Award shall be vested and transferable in three (3) equal or nearly equal installments on (1) the Effective Date, (2) the first anniversary of the Effective Date, and (3) the second anniversary of the Effective Date, if the Executive remains in the continuous employ or service of the Company or an affiliate of the Company from the Effective Date until the applicable vesting date. The award agreement shall provide that any Stock Awards that have not vested on or before the date the Executive ceases to be an employee of, or providing services to, the Company or an affiliate shall be forfeited on the date that such employment or services ends for any reason.

2.5. Benefits. The Executive shall be entitled to participate in such benefit plans including, without limitation, any and all retirement, disability, group life, sickness, accident, vision, dental, and health insurance programs, as the Company may provide from time to time to its employees generally.

2.6. Vacation. The Executive shall be entitled to 25 days of paid vacation per calendar year. Unused vacation days for a particular calendar year shall roll over to, and be available for Executive’s use during, the first quarter of the following calendar year, and any such carry-over vacation days not used by the Executive during the first quarter of the following calendar year shall be paid out as compensation to the Executive on the first regularly-scheduled payroll date following the end of the applicable first quarter. Any unused vacation as of the Termination Date will not be paid out upon termination of the Executive’s employment by either party for any reason.

2.7. Vehicle Allowance. Upon presentation of an appropriate receipt or such other supporting information as the Company may require, the Company shall reimburse the Executive for the lease expense for a vehicle with a retail value of up to $70,000.00. Executive shall be solely responsible for any tax consequences associated with his receipt of the vehicle allowance payments under this Section 2.7.

2.8. Expenses. Subject to, and in accordance with, such policies as may, from time to time, be established by the Company, the Company shall pay or reimburse the Executive for all reasonable expenses actually incurred or paid by the Executive in the furtherance of or in connection with the performance of the Executive’s duties under this Agreement, upon presentation of expense statements or vouchers or such other supporting information as the Company may reasonably require.

TERM AND TERMINATION.

3.1. Employment Period. Subject to Section 3.2 hereof, the Executive’s employment under this Agreement (the “Employment Period”) shall commence on the Effective Date and shall terminate on the earlier of: (a) December 31, 2022 (such period, the “Initial Term”); provided, however, that on December 31, 2022 and December 31st of each year thereafter, the term shall automatically renew for successive 12-month periods unless either party provides written notice of non-renewal to the other party at least 90 days in advance of the expiration of the Initial Term or the then-current 12-month period (the Initial Term, as may be automatically extended as provided herein, the “Term”); or (b) termination of this Agreement and the Executive’s employment pursuant to Section 3.2 hereof. The Company and the Executive agree that, in the event that the Term is automatically renewed pursuant to Section 3.1(a), the parties will, at the request of either party during the 90-day period before the expiration of the then-current Term, negotiate in good faith over modifications to this Agreement to be applicable, if agreed to, during the 12-month period following the expiration of the then-current Term.

3.2. Termination of Employment. Each party shall have the right to terminate this Agreement and the Executive’s employment hereunder before the Term expires as permitted by this Section 3.2.

(a) By the Company.

(i) For Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder at any time upon delivery of written notice of termination for Cause (as defined below) to the Executive by the Company, such employment to terminate immediately upon delivery of such notice for a termination under 3.2(a)(i)(A) or (B), unless otherwise specified in such notice, or upon expiration of the notice and cure period described herein for a termination under 3.2(a)(i)(C) or (D). As used herein, “Cause” means that the Board has determined that the Executive: (A) has misappropriated, stolen, or embezzled funds or property from the Company or, without the permission of the Board, secured or attempted to secure personally any profit in connection with any transaction entered into on behalf of the Company; (B) has been charged with a felony which in the reasonable opinion of the Board brings the Executive into disrepute or is likely to cause material harm to the Company’s business, customer, or supplier relations, financial condition, prospects, or reputation; (C) has failed to perform the Executive’s duties to the Company in a manner reasonably satisfactory to the Board; or (D) has violated or breached any provision of this Agreement, any Company policy or written code of conduct, or any law or regulation, where, in the reasonable opinion of the Board, such violation or breach is to the material detriment of the Company or its business. A termination by the Company shall not be for Cause under Section 3.2(a)(i)(C) or (D) unless: (1) the Board gives the Executive written notice specifying the event or condition that the Board asserts authorizes termination for Cause under Section 3.2(a)(i)(C) or (D) and (2) during the 30 days following receipt of such notice, the Executive fails to remedy or cure the event or condition if such event or condition can be cured. Any termination of employment pursuant to this Section 3.2(a)(i) shall entitle the Executive to receive only the payments referred to in Section 3.3(a) hereof.

(ii) Without Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder without Cause after 60 days’ prior written notice by the Company to the Executive. Any termination of employment pursuant to this Section 3.2(a)(ii) shall entitle the Executive to receive the payments referred to in Section 3.3(a) and (b) hereof.

(iii) Upon Total Disability. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder upon 30 days’ prior written notice to the Executive if the Board determines that the Executive is unable to perform the Executive’s duties by reason of Total Disability. As used herein, “Total Disability” shall mean the inability of the Executive, due to physical or mental illness or injury, and with the benefit of any reasonable accommodation requested by and provided to the Executive, to perform the Executive’s essential duties hereunder for any period of 90 consecutive days. The return of the Executive to the Executive’s duties for periods of 30 days or less shall not interrupt such 90 day period. Upon any termination of employment pursuant to this Section 3.2(a)(iii), the Executive shall only be entitled to receive the payments referred to in Section 3.3(a) hereof.

(b) By the Executive.

(i) For Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder for Good Reason, such employment to terminate upon expiration of the notice and cure period described herein. As used herein, “Good Reason” shall mean: (A) any material failure by the Company to comply with any provision of this Agreement; (B) the relocation of the Executive’s principal place of employment to a location that is more than 50 miles from Canton, Ohio; or (C) substantial interference with the day to day operations of the Company by a director of the Company (or such director’s employer or affiliate) that is inconsistent with formal actions taken by the Board or that impairs the Executive’s ability to deliver agreed upon results for the Company. A termination by the Executive shall not be for Good Reason unless: (1) the Executive gives the Board written notice specifying the event or condition that the Executive asserts authorizes termination for Good Reason; (2) the Executive did not cause the event or condition that Executive asserts authorizes Executive’s termination for Good Reason or knowingly allow such event or condition to occur; (3) such notice is given no more than 30 days after the occurrence of the event or the initial existence of the condition that Executive asserts authorizes termination for Good Reason; (4) during the 30 days following receipt of such notice, the Company and/or the Board fail to remedy or cure the event or condition; and (5) Executive terminates Executive’s employment within 30 days after the end of such cure period. In the event that the Executive elects to terminate his employment pursuant to Section 3.2(b)(i)(A) or (B) and in accordance with the notice and cure requirements in subparts (1) through (5) above, the Executive shall be entitled to receive the payments referred to in Section 3.3(a) and (b) hereof. In the event that the Executive elects to terminate his employment pursuant to Section 3.2(b)(i)(C) and in accordance with the notice and cure requirements in subparts (1) through (5) above, the Executive shall be entitled to receive the payments referred to in Section 3.3(a) and (c) hereof.

(ii) Without Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder without Good Reason after 60 days’ prior written notice by the Executive to the Board. If the Executive gives 60 days’ notice of termination without Good Reason under this Section 3.2(b)(ii), the Board in its sole discretion can elect to make the Executive’s resignation of his employment effective immediately at any time during the 60-day notice period, and any such termination by the Board shall not convert Executive’s resignation into a termination by the Company without Cause. In the event the Executive elects to terminate his employment pursuant to Section 3.2(b)(ii), the Executive shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

(c) By Expiration of Agreement. This Agreement and the Executive’s employment hereunder shall terminate upon the date of the expiration of the then-current Term in the event either party elects not to renew the then-current Term pursuant to Section 3.1. In the event the employment of the Executive is terminated by the expiration of the then-current Term, the Executive shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

(d) Death of Executive. This Agreement and the Executive’s employment hereunder shall terminate upon the death of the Executive. In such an event, the Executive’s surviving spouse, or if none, the Executive’s estate shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

3.3. Compensation and Benefits Following Termination. Except as specifically provided in this Section 3.3, any and all obligations of the Company to make payments to the Executive under this Agreement shall cease as of the date the Employment Period expires under Section 3.1 or as of the date the Executive’s employment is terminated under Section 3.2, as the case may be (either such date, the “Termination Date”). From the date of any notice of termination through the Termination Date (to the extent they are different), the Executive shall continue to perform the normal duties of the Executive’s employment hereunder (unless waived by the Company) and shall be entitled to receive when due all compensation and benefits applicable to the Executive hereunder.

(a) Standard Termination Payments. In the event that the Executive’s employment terminates for any reason under any provision in Section 3.2, the Company shall, within the period prescribed by applicable State law but no later than 30 days after the Termination Date, pay the Standard Termination Payments (as defined below) to the Executive or, in the case of termination pursuant to Section 3.2(d) on account of the death of the Executive, to the Executive’s spouse or estate as appropriate. For purposes of this Section 3.3, “Standard Termination Payments” shall mean (i) a lump-sum amount equal to the sum of the Executive’s earned and unpaid Annual Base Salary through the Termination Date and (ii) any unreimbursed business and entertainment expenses that are reimbursable through the Termination Date. Moreover, for any such termination, the Executive shall be entitled to receive any vested benefits to which the Executive has a right under the Company’s benefit plans and programs, including without limitation continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, which benefits will be provided in accordance with the applicable plan terms.

(b) By Company Without Cause under Section 3.2(a)(ii) or by Executive for Good Reason Under Section 3.2(b)(i)(A) or (B). In the event that the Company elects to terminate this Agreement and the Executive’s employment hereunder without Cause under Section 3.2(a)(ii) or the Executive elects to terminate this Agreement and his employment hereunder for Good Reason under Section 3.2(b)(i)(A) or (B), in addition to the Standard Termination Payments provided in Section 3.3(a), and subject to the Executive’s execution of a release on or after the Termination Date that becomes effective and irrevocable as described in Section 3.4, the Company shall: (i) pay the Executive a severance payment in the amount of $850,000.00, less applicable deductions and withholdings, payable in a single lump-sum payment within 10 days after the date that the release described in Section 3.4 becomes effective and irrevocable and (ii) subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and the Executive’s copayment of premiums associated with such coverage, reimburse the Executive, on a monthly basis, for the excess of the premium for himself and his covered dependents over the amount paid by active employees for the same coverage during the period from the Termination Date through the 12-month anniversary of such date, or such earlier date on which COBRA coverage for the Executive and his covered dependents terminates in accordance with COBRA.

(c) By Executive for Good Reason Under Section 3.2(b)(i)(C). In the event that the Executive elects to terminate this Agreement and his employment hereunder for Good Reason under Section 3.2(b)(i)(C), in addition to the Standard Termination Payments provided in Section 3.3(a), and subject to the Executive’s execution of a release on or after the Termination Date that becomes effective and irrevocable as described in Section 3.4, the Company shall pay the Executive a severance payment in the amount of $2,000,000.00, less applicable deductions and withholdings, payable in a single lump-sum payment within 10 days after the date that the release described in Section 3.4 becomes effective and irrevocable.

3.4. Release. The Company will have no obligation to the Executive under Section 3.3(b) or (c) unless the Executive has executed, on or after the Termination Date, and delivered to the Company, on or before the 50th day following the Termination Date, an effective and irrevocable general release and waiver of claims that releases the Company and all of its related entities, affiliates, investors, owners, and employees from, and promises not to sue them for, all claims and liabilities arising on or before the date the Executive signs the release, including claims related to the Executive’s employment with and separation from the Company, in the form of Exhibit A attached hereto with such changes as may be necessary under applicable law or as agreed to by the parties.

3.5. Resignation. Upon termination of the Executive’s employment for any reason by either party, the Executive hereby agrees that the Executive shall automatically be treated as having resigned from any offices or positions related to the Company or any of its affiliates.

RESTRICTIVE COVENANTS.

4.1. Recitals. While employed with the Company, the Executive will be employed in a position of trust and confidence, and as a result, the Executive will be provided with the Company’s trade secrets and confidential or proprietary information, including but not limited to information related to (a) reports, pricing, selling, purchasing, and pricing procedures, and financing methods of the Company, and any specific and proprietary techniques utilized by the Company in designing, developing, testing, or marketing its products or in performing services for clients, customers, and accounts of the Company; (b) the business plans and financial statements, reports, and projections of the Company; (c) identities, addresses, contact persons, purchasing habits, and all other information related to the Company’s customers, clients, and investors, purchasers, lenders, or any other confidential information relating to or dealing with the business operations or activities of the Company; and (d) information concerning the licenses, permits, or other authorizations relevant to the Company’s business, made known to the Executive or acquired by the Executive in the course of the Executive’s employment at the Company (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or materials (a) that was or becomes generally available to the public other than as a result of breach of this Agreement by the Executive or (b) which the Executive had in his possession prior to disclosure by the Company or receives from a third party who, to the Executive’s knowledge, is not bound by a duty of confidentiality to the Company. The Executive acknowledges that the Company takes reasonable steps to protect its Confidential Information and to prevent disclosure of its Confidential Information to the public. Moreover, the Executive acknowledges that during Executive’s employment with the Company, the Executive will be put in a position of trust and confidence with the Company’s customers, employees, and consultants. The Executive agrees and acknowledges, therefore, that it is fair and reasonable for the Company to take steps necessary to protect its Confidential Information; protect against the risk of misappropriation of such Confidential Information; and protect the Company’s relationship with its customers, employees, and consultants.

4.2. Non-Recruitment. By and in consideration of the Company’s entering into this Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for a period of twelve (12) months after the Executive’s employment with the Company is terminated by either party for any reason: (a) directly or indirectly hire, induce, or solicit (or assist any person or entity to hire, induce, or solicit) for employment any person who is, or within twelve (12) months prior to the date of such hiring, inducement, or solicitation was, an employee of the Company or (b) induce or solicit (or assist any person or entity to induce or solicit) any person who is an employee of the Company to terminate his/her employment relationship with the Company. The foregoing does not apply to any employee who responds to any general public advertisement by the Executive or is referred by an employment agency, so long as the advertisement or agency search was not directed towards any such employee or group of employees of the Company.

4.3. Non-Competition. By and in consideration of the Company’s entering into this Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for a period of six (6) months after the Executive’s employment with the Company is terminated by either party for any reason, engage in Competition with the Company. In the event termination is pursuant to 3.2(b)(i) and the Company pays the amount prescribed in Section 3.2(b)(i) then the restricted period in the prior sentence shall be extended to twelve (12) months after such termination. “Competition” for purposes of this Section 4.3 shall mean owning, operating, or otherwise providing services to a pro sports themed destination resort that includes entertainment and media components.

4.4. Confidential Information. This covenant is independent of, and in addition to, those set forth above.

(a) To protect the Company’s Confidential Information, the Executive hereby covenants and agrees that the Executive will at all times hold the Confidential Information in confidence, will take all reasonable and necessary measures to prevent the disclosure of the Confidential Information, and will not use or disclose any Confidential Information, except for the benefit of the Company and to authorized representatives of the Company, to professional advisors (including without limitation attorneys, accountants, and financial advisors), or except as required by any governmental, regulatory, or judicial authority.

(b) The Executive acknowledges that all Confidential Information are and shall remain the sole, exclusive, and valuable property of the Company and that the Executive has and shall acquire no right, title, or interest therein. Any and all printed, typed, written, or other material that the Executive may have or obtain with respect to Confidential Information shall be and remain the exclusive property of the Company, and any and all material (including any copies) shall, upon request of the Board, be promptly delivered by the Executive to the Company.

(c) If the Executive becomes compelled by law, by regulatory or judicial process or by any other proceeding to make any disclosure that is prohibited by this Section 4.4, the Executive shall, to the extent legally permissible, provide the Board with prompt notice of such compulsion so that the Company may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Section 4.4. In the absence of a protective order or other remedy, the Executive may disclose that portion (and only that portion) of the Confidential Information that, based upon the opinion of the Executive’s counsel, the Executive is legally compelled to disclose; provided, however, that the Executive shall use commercially reasonable efforts to obtain written assurance that any person to whom any Confidential Information is so disclosed shall accord confidential treatment to such Confidential Information.

(d) Nothing in this Agreement prohibits Executive from (i) disclosing Confidential Information in confidence to a Federal, State, or local government official or law enforcement, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; (ii) cooperating with any government investigation, making a truthful statement or complaint to law enforcement or a government agency, or testifying under oath to law enforcement or a government agency; or (iii) disclosing Confidential Information in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Moreover, if Executive files a lawsuit for retaliation by an employer for reporting a suspected violation of law, Executive may disclose a Company trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.

4.5. Scope and Reasonableness.

(a) The parties agree that it is not their intention to violate any public policy, rule of public order, or statutory or common law. The parties intend that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If any provision of this Agreement is found by a court to be unenforceable, the parties authorize the court to amend or modify the provision to make it enforceable in the most restrictive fashion permitted by law.

(b) The Executive acknowledges that the restrictions contained in this Section 4, in view of the nature of the business in which the Company is engaged and in view of the Confidential Information to which the Executive will be exposed, are reasonable and necessary in order to protect the Confidential Information of the Company and the Company’s relationships with its customers, employees, and consultants, and that any violation thereof would result in irreparable injuries to the Company, and the Executive therefore acknowledges that, in the event of the Executive’s violation of any of these restrictions, the Company shall be entitled to seek from any court of competent jurisdiction (in any jurisdiction) preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits, and other rights or remedies to which the Company may be entitled. Notwithstanding the foregoing to the contrary, under no circumstances shall the Executive be liable for special, consequential, or punitive damages for any breach of this Agreement or otherwise. If the Executive violates any of the restrictions contained in the foregoing Sections 4.2 or 4.3, the restricted periods shall not run in favor of the Executive from the time of the commencement of any such violation until such violation shall be cured by the Executive to the reasonable satisfaction of Company.

4.6. Survival. Any provision of this Agreement to the contrary notwithstanding, if this Agreement is terminated for any reason, the provisions and covenants of this Section 4 shall nevertheless remain in full force and effect in accordance with their respective terms.

MISCELLANEOUS.

5.1. Code Section 409A.

(a) This Agreement and the amounts payable and other benefits provided under this Agreement are intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code (“Section 409A”), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12). This Agreement shall be administered, interpreted and construed in a manner consistent with the requirements and exemptions under Section 409A. If any provision of this Agreement is found not to comply with, or otherwise not be exempt from, the provisions of Section 409A, it shall be modified and given effect, in the sole reasonable discretion of the Employer and without requiring the Executive’s consent, in such manner as the Employer reasonably determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A; provided, however, that in exercising its discretion, the Employer shall modify this Agreement in the least restrictive manner necessary and provided further that the Employer have no obligation to indemnify the Executive or hold the Executive harmless from any adverse tax consequences related to any failure to comply with Section 409A. Each payment under this Agreement shall be treated as a separate identified payment for purposes of Section 409A.

(b) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Executive, as provided under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following limitations: (i) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Internal Revenue Code; (ii) the reimbursement of an eligible expense shall be made as specified in this Agreement and in accordance with Employer’s normal reimbursement procedures for senior management, and (iii) the right to reimbursement or in-kind benefit shall not be subject to liquidation or exchange for another benefit.

(c) If a payment obligation under this Agreement arises on account of the Executive’s termination of his employment and such payment obligation constitutes “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12)), it shall be payable only after the Executive’s “separation from service” (as defined under Treasury Regulation section 1.409A-1(h)); provided, however, that if the Executive is a “specified employee” (as defined under Treasury Regulation section 1.409A-1(i)), any such payment obligation that is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid on the first day of the seventh month beginning after the date of the Executive’s separation from service or, if earlier, within fifteen days after the appointment of the personal representative or executor of the Executive’s estate following the Executive’s death.

5.2. Applicable Law. This Agreement shall be construed and interpreted according to the laws of the State of Ohio, without regard to the conflicts of law rules thereof.

5.3. Headings. The headings and captions set forth herein are for convenience of reference only and shall not affect the construction or interpretation hereof.

5.4. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of successors and permitted assigns of the parties. This Agreement may not be assigned, nor may performance of any duty hereunder be delegated, by either party without the prior written consent of the other; provided, however, the Company may assign this Agreement to any successor to its business or to any affiliate.

5.5. Entire Agreement; Termination of Services Agreement. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and there are no other contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants not specifically referred to or contained herein. This Agreement specifically supersedes any and all prior agreements and understandings of the parties with respect to the subject matter hereof (including but not limited to the Services Agreement), all of which prior agreements and understandings (including but not limited to the Services Agreement) are hereby terminated and of no further force and effect. Moreover, this Agreement supersedes and replaces the Services Agreement.

5.6. Amendments. This Agreement may be amended, modified, or terminated only by a written instrument signed by the parties hereto.

5.7. Waiver. The Company’s failure to enforce any provision or provisions in this Agreement shall not in any way be construed as a waiver of any provision or provisions of this Agreement, or prevent the Company from thereafter enforcing each and every provision of this Agreement.

5.8. Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement. This Agreement may be delivered by facsimile transmission or email attachment of an originally executed copy.

5.9. Severability. If any section, provision, clause or part of this Agreement, or the applications thereof under certain circumstances, is held invalid or unenforceable for any reason, the remainder of this Agreement, or the application of such section, provision, clause or part under other circumstances, shall not be affected thereby.

5.10. Incorporation of Recitals. The Recitals to this Agreement are an integral part of, and by this reference are hereby incorporated into, this Agreement.

5.11. Withholdings. Each payment of compensation or benefits to or on behalf of the Executive under this Agreement shall be reduced by authorized deductions.

[Signatures on Following Page]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates below.

	HOF Village Newco, LLC

	By:	/s/ Jason Krom

	Name:	Jason Krom

	Title:	Chief Financial Officer

	Date:	July 1, 2020


	GPAQ Acquisition Holdings, Inc.

	By:	/s/ James J. Dolan

	Name:	James J. Dolan

	Title:	Chairman & CEO

	Date:	July 1, 2020


	MICHAEL CRAWFORD

	/s/ Michael Crawford
	Michael Crawford, Individually

	Date: July 1, 2020

[Signature Page to Crawford Employment Agreement]

Exhibit A

Form of Release

GENERAL RELEASE AND WAIVER

THIS GENERAL RELEASE AND WAIVER (this “Release”) is entered into by and between [___] (the “Company”) and [●] (the “Executive”). The Company and the Executive hereby agree as follows:

1. Employment Status. The Executive’s employment with the Company terminated effective as of [•].

2. Payment. The Company shall provide the Executive with the consideration specified in and subject to the provisions of [Section 3.3(b) or Section 3.3(c)] of the Employment Agreement dated as of [●], by and between the Company and the Executive (the “Employment Agreement”); provided, that such payment is subject to certain terms and conditions, including without limitation this Release becoming effective, as provided in the Employment Agreement.

3. No Liability. This Release does not constitute an admission by any of the Company Releasees (as defined below) of any unlawful acts or of any violation of federal, state, or local laws.

4. Release. In consideration of the benefits set forth in the Employment Agreement, the Executive, for the Executive, the Executive’s heirs, administrators, representatives, executors, successors, and assigns (collectively, the “Executive Releasors”), hereby irrevocably and unconditionally releases, acquits, and forever discharges the Company and its current and former parents, affiliates, subsidiaries, divisions, successors, assigns, trustees, officers, directors, partners, shareholders, agents, parents, employees, including without limitation all persons acting by, through, under, or in concert with any of them (collectively, the “Company Releasees”) from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, actions, causes of action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys’ fees and costs) of any nature whatsoever, known or unknown, whether in law or equity and whether arising under federal, state, or local law that the Executive Releasors had, now have, or may hereafter claim to have had against each or any of the Company Releasees by reason of any matter, cause, or thing occurring, done, or omitted to be done on or before the date of Executive’s execution of this Release. Without limitation, this Release includes a knowing and voluntary waiver of any and all rights, claims, and causes of action for discrimination based upon race, color, ethnicity, sex, national origin, religion, disability, and age (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ADEA”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962, the Americans with Disabilities Act of 1990, and any other federal, state, or local anti-discrimination law) or any other unlawful criterion or circumstance. Executive is not waiving or releasing any claims that may arise after the date that the Executive executes this Release. Moreover, Executive is not waiving or releasing his right to receive the Standard Termination Payments in the Employment Agreement. This Release does not cover the Executive’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company Releasees (with the understanding that any such filing or participation does not give the Executive the right to recover any monetary damages against the Company Releasees; the Executive’s release of claims herein bars the Executive from recovering such monetary relief from the Company Releasees).

In addition, for purposes of this Release, the Executive represents that the Executive is not aware of any claims against the Company Releasees.

5. Restrictive Covenants. The Executive expressly acknowledges and agrees that Executive will continue to be bound by the obligations set forth in Section 4 of the Employment Agreement for the periods set forth therein.

6. Company Property. By signing this Release, the Executive acknowledges that the Executive has returned to the Company all originals and copies of Company documents and all Company property, including without limitation, keys, computer files, diskettes, database information, client information, sales documents, financial statements, budgets and forecasts, and any similar information. The Executive further represents that the Executive has left intact all of the Company’s electronic files, including those that Executive developed or helped develop during the Executive’s employment with the Company.

7. Bar. The Executive acknowledges and agrees that, if the Executive should hereafter make any claim or demand or commence or threaten to commence any action, claim, or proceeding against the Company Releasees with respect to any cause, matter, or thing which is the subject of the release under Paragraph 4 of this Release, this Release may be raised as a complete bar to any such action, claim, or proceeding, and the applicable Company Releasee may recover from the Executive all expenses and costs incurred in connection with such action, claim, or proceeding, including attorneys’ fees.

9. Governing Law; Interpretation. This Release shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to the conflicts of law rules thereof. If for any reason any part of this Release shall be determined to be unenforceable, the remaining terms and conditions shall be enforced to the fullest extent possible.

10. Acknowledgments. The Executive acknowledges that the Executive has been advised in writing to consult with an attorney before signing this Agreement. The Executive further acknowledges that the Executive has been given sufficient time to review this Release, the Executive has read and fully understands its provisions, the Executive voluntarily accepts its terms, and the Executive has a period of twenty-one (21) days in which to consider entering into this Release. If the Executive executes the Release in less than twenty-one (21) days, the Executive acknowledges that the Executive is doing so voluntarily and that the Executive is waiving the Executive’s right to the full twenty-one (21) days to consider the Release.

11. Revocation. The Executive has a period of seven (7) days following the execution of this Release during which the Executive may revoke this Release, and this Release shall not become effective or enforceable until such revocation period has expired.

12. Counterparts. This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original. This Release may be delivered by facsimile transmission or email attachment of an originally executed copy.

THE UNDERSIGNED HAVE CAREFULLY READ THIS RELEASE; THEY KNOW AND UNDERSTAND ITS TERMS; THEY FREELY AND VOLUNTARILY AGREE TO ABIDE BY ITS TERMS; AND THEY HAVE NOT BEEN COERCED INTO SIGNING THIS AGREEMENT.


[____]


Date

[___]

By:

Title:


Date

Exhibit 10.6

EMPLOYMENT agreement

This Employment Agreement (this “Agreement”) is made and entered into by and between HOF Village, LLC (the “Company”), a Delaware limited liability company, and Michael Levy (the “Executive”) and shall be effective on the Effective Date (defined below).

RECITALS

A. The Company desires to employ the Executive on and after the Effective Date, and the Executive desires to be employed by the Company on and after the Effective Date, all on the terms and subject to the conditions set forth herein.

B. The Executive is willing to enter into this Agreement in consideration of the terms, conditions, and benefits that the Executive will receive under the terms hereof, and the Company is willing to enter into this Agreement in consideration of the promises and covenants by Executive contained herein.

AGREEMENT

In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1. ROLE OF EXECUTIVE.

1.1. Duties and Status. The Company hereby engages the Executive as President of Operations for the Employment Period, as defined in Section 3.1 hereof, and the Executive accepts such employment, on the terms and subject to the conditions set forth in this Agreement. The Executive shall faithfully exercise in good faith such authority and perform such duties on behalf of the Company that are typically associated with such position and all other duties that may be assigned to the Executive by the Company’s Chief Executive Officer (“CEO”) and/or Board of Directors (“Board”) from time to time.

1.3. Principal Place of Employment. The Executive’s principal work location shall be in Canton, Ohio.

2. COMPENSATION AND BENEFITS.

2.1. Annual Base Salary. For all of the services rendered by the Executive to the Company during the Employment Period, the Company shall pay the Executive an annual base salary (“Annual Base Salary”) equal to $300,000.00. The Annual Base Salary shall be payable in accordance with the practice of the Company in effect from time to time for the payment of salaries to employees of the Company and shall be subject to applicable withholdings and deductions. The Company and/or the Board will periodically review the Executive’s Annual Base Salary and implement an increase (but no decrease), if any, as the Company and/or the Board shall determine in its or their sole discretion is reasonable and appropriate.

2.2. Annual Bonus. For each calendar year during the Employment Period, the Executive shall be eligible to receive an annual bonus (the “Annual Bonus”). The target for the Annual Bonus opportunity shall be 40% of the Executive’s Annual Base Salary for each such calendar year and be based on the Company’s achievement of commercially-reasonable Key Performance Indicators (“KPI’s”) determined by Company in writing. The Annual Bonus for calendar year 2020 shall be pro-rated. The Annual Bonus shall be paid in cash and shall be paid no later than 70 days after the end of the calendar year for which the Annual Bonus is earned. In order to have earned the Annual Bonus for a particular calendar year, the Executive must remain employed through the end of that calendar year and must not (a) have been, as of the date of payment, terminated by the Company for Cause (as defined below) or (b) as of the date of payment, have ended Executive’s employment with the Company without Good Reason (as defined below), to be entitled to receive an Annual Bonus.

2.3. Profits Interest Grant.

(a) On the Effective Date, the Executive shall be granted profits interests in the Company representing $600,000.00 of the future profits of the Company generated after the time of such grant. The profits interests shall vest as follows: (i) 1/3rd of the profits interests shall vest on the first anniversary of the Effective Date; (ii) 1/3rd of the profits interests shall vest on the second anniversary of the Effective Date; and (iii) 1/3rd of the profits interests shall vest on third anniversary of the Effective Date, subject to the Executive’s continued employment by the Company on each such vesting date. All vesting of the profits interests shall cease immediately upon the termination of the Executive’s employment by either party for any reason, and the unvested portion of the profits interests will be automatically canceled without consideration and forfeited on the Termination Date.

(b) The Executive acknowledges and agrees that the Company’s goal in granting the profits interests in Section 2.3(a) is to provide the Executive with up to $600,000.00 in profits interests. Therefore, the Executive and the Company agree that, if at any time during the three-year vesting period set forth in Section 2.3(a) a valuation of the Company results in the value of Executive’s profits interests exceeding the $600,000.00 target, the number and/or percentage of the unvested profits interests as of the date of the valuation shall be reduced to ensure that the value of the profits interests (both vested and unvested) do not exceed $600,000.00.

(c) If (i) the Company consummates a merger or other business combination during the Term pursuant to which the Executive becomes employed by a publicly traded company (such company, a “Public Acquiror”), (ii) the board of directors or compensation committee of the Public Acquiror grants the Executive shares of restricted stock of the Public Acquiror, and (iii) the Executive accepts such grant, all of the Executive’s profits interests in Section 2.3(a) (including profits interests that have already vested) shall be canceled without additional consideration as of the date the Executive accepts the restricted stock grant.

2.4. Benefits. The Executive shall be entitled to participate in such benefit plans including, without limitation, any and all retirement, disability, group life, sickness, accident, vision, dental, and health insurance programs, as the Company may provide from time to time to its employees generally. The Executive shall be allowed to enroll in the health insurance benefits provided by the Company on the first day of Executive’s employment with the Company.

2.5. Vacation. The Executive shall be entitled to 15 days of paid vacation per year during the first and second year of the Employment Period and 25 days of paid vacation per year during the third year of the Employment Period and any year thereafter during the Employment Period. Unused vacation days for a particular year shall roll over to, and be available for Executive’s use during, the first twelve weeks of the following year, and any such carry-over vacation days not used by the Executive during the first twelve weeks of the following year shall be paid out as compensation to the Executive on the first regularly-scheduled payroll date following the end of the twelve-week period.

2.6. Expenses. Subject to, and in accordance with, such policies as may, from time to time, be established by the Company, the Company shall pay or reimburse the Executive for all reasonable expenses actually incurred or paid by the Executive in the furtherance of or in connection with the performance of the Executive’s duties under this Agreement, upon presentation of expense statements or vouchers or such other supporting information as the Company may reasonably require.

3. TERM AND TERMINATION.

3.1. Employment Period. Subject to Section 3.2 hereof, the Executive’s employment under this Agreement (the “Employment Period”) shall commence on June 15, 2020 (the “Effective Date”) and shall terminate on the earlier of: (a) the third anniversary of the Effective Date (such period, the “Initial Term”); provided, however, that on the third anniversary of the Effective Date and each subsequent anniversary thereafter, the term shall automatically renew for successive 12-month periods unless either party provides written notice of non-renewal to the other party at least 90 days in advance of the expiration of the Initial Term or the then-current 12-month period (the Initial Term, as may be automatically extended as provided herein, the “Term”); or (b) termination of this Agreement and the Executive’s employment pursuant to Section 3.2 hereof.

3.2. Termination of Employment. Each party shall have the right to terminate the Executive’s employment hereunder before the Term expires as permitted by this Section 3.2.

(a) By the Company.

(i) For Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder at any time upon delivery of written notice of termination for Cause (as defined below) to the Executive by the Company, such employment to terminate immediately upon delivery of such notice for a termination under 3.2(a)(i)(A) or (B), unless otherwise specified in such notice, or upon expiration of the notice and cure period described herein for a termination under 3.2(a)(i)(C) or (D). As used herein, “Cause” means that the Company has determined that the Executive: (A) has misappropriated, stolen, or embezzled funds or property from the Company or, without the permission of the Company, secured or attempted to secure personally any profit in connection with any transaction entered into on behalf of the Company; (B) has been charged with a felony which in the reasonable opinion of the Company brings the Executive into disrepute or is likely to cause material harm to the Company’s business, customer, or supplier relations, financial condition, prospects, or reputation; (C) has willfully failed to perform the Executive’s duties to the Company in a manner reasonably satisfactory to the Company; or (D) has willfully violated or breached any provision of this Agreement or any law or regulation, where, in the reasonable opinion of the Company, such violation or breach is to the material detriment of the Company or its business. A termination by the Company shall not be for Cause under Section 3.2(a)(i)(C) or (D) unless: (1) the Company gives the Executive written notice specifying the event or condition that the Company asserts authorizes termination for Cause under Section 3.2(a)(i)(C) or (D) and (2) during the 30 days following receipt of such notice, the Executive fails to remedy or cure the event or condition. Any termination of employment pursuant to this Section 3.2(a)(i) shall entitle the Executive to receive only the payments referred to in Section 3.3(a) hereof.

(iii) Upon Total Disability. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder upon five days’ prior written notice to the Executive if the Board determines that the Executive is unable to perform the Executive’s duties by reason of Total Disability. As used herein, “Total Disability” shall mean the inability of the Executive, due to physical or mental illness or injury, and with the benefit of any reasonable accommodation requested by and provided to the Executive, to perform the Executive’s essential duties hereunder for any period of 180 consecutive days. The return of the Executive to the Executive’s duties for periods of 30 days or less shall not interrupt such 180-day period. Upon any termination of employment pursuant to this Section 3.2(a)(iii), the Executive shall only be entitled to receive the payments referred to in Section 3.3(a) hereof.

(b) By the Executive.

(i) For Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder for Good Reason, such employment to terminate upon expiration of the notice and cure period described herein. As used herein, “Good Reason” shall mean: (A) any material failure by the Company to comply with any provision of this Agreement; (B) a material diminution in the Executive’s overall duties and responsibilities as a result of any merger or business combination to which the Company is a party; or (C) the relocation of the Executive’s principal place of employment to a location that is more than 50 miles from Canton, Ohio. A termination by the Executive shall not be for Good Reason unless: (1) the Executive gives the Company written notice specifying the event or condition that the Executive asserts authorizes termination for Good Reason; (2) the Executive did not cause the event or condition that Executive asserts authorizes Executive’s termination for Good Reason or knowingly allow such event or condition to occur (but only if Executive had the authority and power to cause the event not to occur and knowingly chose not to exercise such power or authority); (3) such notice is given no more than 30 days after the occurrence of the event or the initial existence of the condition that Executive asserts authorizes termination for Good Reason; (4) during the 30 days following receipt of such notice, the Company fails to remedy or cure the event or condition; and (5) Executive terminates Executive’s employment within 30 days after the end of such cure period. In the event that the Executive elects to terminate his employment pursuant to Section 3.2(b)(i) and in accordance with the notice and cure requirements in subparts (1) through (5) above, the Executive shall be entitled to receive the payments referred to in Section 3.3(a) and (b) hereof.

(a) Standard Termination Payments. In the event that the Executive’s employment terminates for any reason under any provision in Section 3.2, the Company shall, within the period prescribed by applicable State law but no later than 30 days of the Termination Date, pay the Standard Termination Payments (as defined below) to the Executive or, in the case of termination pursuant to Section 3.2(d) on account of the death of the Executive, to the Executive’s spouse or estate as appropriate. For purposes of this Section 3.3, “Standard Termination Payments” shall mean (i) a lump-sum amount equal to the sum of the Executive’s earned and unpaid Annual Base Salary through the Termination Date; (ii) any unreimbursed business and entertainment expenses that are reimbursable through the Termination Date; and (iii) any accrued but unused vacation as of the Termination Date. Moreover, for any such termination, the Executive shall be entitled to receive any vested benefits to which the Executive has a right under the Company’s benefit plans and programs, including without limitation continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, which benefits will be provided in accordance with the applicable plan terms.

(b) By Company Without Cause or by Executive for Good Reason. In the event that the Company elects to terminate this Agreement and the Executive’s employment hereunder without Cause under Section 3.2(a)(ii) or the Executive elects to terminate this Agreement and his employment hereunder for Good Reason under Section 3.2(b)(i), in addition to the Standard Termination Payments provided in Section 3.3(a), and subject to the Executive’s execution of a release on or after the Termination Date that becomes effective and irrevocable as described in Section 3.4, the Company shall continue to pay the Executive his then-current Annual Base Salary, less applicable deductions and withholdings, for twelve months after the Termination Date. The first salary continuation payment will be paid to the Executive on the first Company payroll date that is ten days after the date that the release described in Section 3.4 becomes effective and irrevocable and will include any salary continuation payments for payroll dates between the Termination Date and the first salary continuation payment date.

3.4. Release. The Company will have no obligation to the Executive for the severance continuation payments under Section 3.3(b) unless the Executive has executed, on or after the Termination Date, and delivered to the Company, on or before the 50th day following the Termination Date, an effective and irrevocable general release and waiver of claims that releases the Company and all of its related entities, affiliates, investors, owners, and employees from, and promises not to sue them for, all claims and liabilities arising on or before the date the Executive signs the release, including claims related to the Executive’s employment with and separation from the Company, in the form of Exhibit A attached hereto with such changes as may be necessary under applicable law or as agreed to by the parties.

3.5. Resignation. Upon termination of the Executive’s employment, the Executive hereby agrees that the Executive shall automatically be treated as having resigned from any offices or positions related to the Company or any of its affiliates.

4. RESTRICTIVE COVENANTS.

4.2. Non-Recruitment. By and in consideration of the Company’s entering into this Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for a period of six (6) months after the Executive’s employment with the Company is terminated by either party for any reason (the “Restricted Period”): (a) directly or indirectly hire, induce, or solicit (or assist any person or entity to hire, induce, or solicit) for employment any person who is, or within six (6) months prior to the date of such hiring, inducement, or solicitation was, an employee of the Company or (b) induce or solicit (or assist any person or entity to induce or solicit) any person who is an employee of the Company to terminate his/her employment relationship with the Company. The foregoing does not apply to any employee who responds to any general public advertisement by the Executive or is referred by an employment agency, so long as the advertisement or agency search was not directed towards any such employee or group of employees of the Company.

4.3. Confidential Information. This covenant is independent of, and in addition to, those set forth above.

(a) In order to protect the Company’s Confidential Information, the Executive hereby covenants and agrees that the Executive will at all times hold the Confidential Information in confidence, will take all reasonable and necessary measures to prevent the disclosure of the Confidential Information, and will not use or disclose any Confidential Information, except for the benefit of the Company and to authorized representatives of the Company, to professional advisors (including without limitation attorneys, accountants, and financial advisors), or except as required by any governmental, regulatory, or judicial authority.

(c) If the Executive becomes compelled by law, by regulatory or judicial process or by any other proceeding to make any disclosure that is prohibited by this Section 4.3, the Executive shall, to the extent legally permissible, provide the Board with prompt notice of such compulsion so that the Company may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Section 4.3. In the absence of a protective order or other remedy, the Executive may disclose that portion (and only that portion) of the Confidential Information that, based upon the opinion of the Executive’s counsel, the Executive is legally compelled to disclose; provided, however, that the Executive shall use commercially reasonable efforts to obtain written assurance that any person to whom any Confidential Information is so disclosed shall accord confidential treatment to such Confidential Information.

(d) Nothing in this Agreement prohibits Executive from disclosing a Company trade secret (i) in confidence to a Federal, State, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Moreover, if Executive files a lawsuit for retaliation by an employer for reporting a suspected violation of law, Executive may disclose a Company trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.

4.4. Scope and Reasonableness.

(b) The Executive acknowledges that the restrictions contained in this Section 4, in view of the nature of the business in which the Company is engaged and in view of the Confidential Information to which the Executive will be exposed, are reasonable and necessary in order to protect the Confidential Information of the Company and the Company’s relationships with its customers, employees, and consultants, and that any violation thereof would result in irreparable injuries to the Company, and the Executive therefore acknowledges that, in the event of the Executive’s violation of any of these restrictions, the Company shall be entitled to seek from any court of competent jurisdiction (in any jurisdiction) preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits, and other rights or remedies to which the Company may be entitled. Notwithstanding the foregoing to the contrary, under no circumstances shall the Executive be liable for special, consequential, or punitive damages for any breach of this Agreement or otherwise. If the Executive violates any of the restrictions contained in the foregoing Section 4.2, the Restricted Period shall not run in favor of the Executive from the time of the commencement of any such violation until such violation shall be cured by the Executive to the reasonable satisfaction of Company.

4.5. Survival. Any provision of this Agreement to the contrary notwithstanding, if this Agreement is terminated for any reason, the provisions and covenants of this Section 4 shall nevertheless remain in full force and effect in accordance with their respective terms.

5. MISCELLANEOUS.

5.1. Code Section 409A.

5.2. Applicable Law. This Agreement shall be construed and interpreted according to the laws of the State of Ohio, without regard to the conflicts of law rules thereof.

5.3. Headings. The headings and captions set forth herein are for convenience of reference only and shall not affect the construction or interpretation hereof.

5.5. Entire Agreement; Termination of Services Agreement. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and there are no other contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants not specifically referred to or contained herein. This Agreement specifically supersedes any and all prior agreements and understandings of the parties with respect to the subject matter hereof, all of which prior agreements and understandings (including but not limited to the Services Agreement) are hereby terminated and of no further force and effect.

5.6. Amendments. This Agreement may be amended, modified, or terminated only by a written instrument signed by the parties hereto.

5.10. Incorporation of Recitals. The Recitals to this Agreement are an integral part of, and by this reference are hereby incorporated into, this Agreement.

5.11. Withholdings. Each payment of compensation or benefits to or on behalf of the Executive under this Agreement shall be reduced by authorized deductions.

[Signatures on Following Page]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below.

HOF VILLAGE, LLC

	By:	/s/ Michael Crawford
	Name:	Michael Crawford
	Title:	Chief Executive Officer
	Date:	06/22/2020

MICHAEL LEVY

/s/ Michael Levy
Michael Levy, Individually

06/22/2020
Date

[Signature Page to Levy Employment Agreement]

Exhibit A

Form of Release

GENERAL RELEASE AND WAIVER

THIS GENERAL RELEASE AND WAIVER (this “Release”) is entered into by and between [___] (the “Company”) and [●] (the “Executive”). The Company and the Executive hereby agree as follows:

1. Employment Status. The Executive’s employment with the Company terminated effective as of [●].

2. Payment and Benefits. The Company shall provide the Executive with the salary continuation payments specified in and subject to the provisions of Section 3.3(b) of the Employment Agreement dated as of [●], by and between the Company and the Executive (the “Employment Agreement”); provided, that such payment is subject to certain terms and conditions, including without limitation this Release becoming effective, as provided in the Employment Agreement.

3. No Liability. This Release does not constitute an admission by any of the Company Releasees (as defined below) of any unlawful acts or of any violation of federal, state, or local laws.

4. Release. In consideration of the payments and benefits set forth in the Employment Agreement, the Executive, for the Executive, the Executive’s heirs, administrators, representatives, executors, successors, and assigns (collectively, the “Executive Releasors”), hereby irrevocably and unconditionally releases, acquits, and forever discharges the Company and its current and former parents, affiliates, subsidiaries, divisions, successors, assigns, trustees, officers, directors, partners, shareholders, agents, parents, employees, including without limitation all persons acting by, through, under, or in concert with any of them (collectively, the “Company Releasees”) from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, actions, causes of action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys’ fees and costs) of any nature whatsoever, known or unknown, whether in law or equity and whether arising under federal, state, or local law that the Executive Releasors had, now have, or may hereafter claim to have had against each or any of the Company Releasees by reason of any matter, cause, or thing occurring, done, or omitted to be done on or before the date of Executive’s execution of this Release. Without limitation, this Release includes a knowing and voluntary waiver of any and all rights, claims, and causes of action for discrimination based upon race, color, ethnicity, sex, national origin, religion, disability, and age (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ADEA”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962, the Americans with Disabilities Act of 1990, and any other federal, state, or local anti-discrimination law) or any other unlawful criterion or circumstance. Executive is not waiving or releasing any claims that may arise after the date that the Executive executes this Release or claims related to the Equity Award Agreement. Moreover, this Release does not cover the Executive’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company Releasees (with the understanding that any such filing or participation does not give the Executive the right to recover any monetary damages against the Company Releasees; the Executive’s release of claims herein bars the Executive from recovering such monetary relief from the Company Releasees).

In addition, for purposes of this Release, the Executive represents that the Executive is not aware of any claims against the Company Releasees.

8. Non-Disparagement. The Executive agrees not to make any statement, oral or written, that would reasonably be considered disparaging of the Company, its programs, or its services, or any of the Company Releasees. The Company agrees that then-current members of its executive management team acting in their capacity as employees of the Company will not make any statement, oral or written, that would reasonably be considered to be disparaging of the Executive. Nothing in this Section 8 shall prevent the Executive or the Company from providing truthful information if compelled to do so by law or by regulatory or judicial process.


[____]


Date

[___]

By:

Title:


Date

Exhibit 10.7

Execution Version

NOTE PURCHASE AGREEMENT

by and among

GPAQ ACQUISITION HOLDINGS, INC.

and

the Purchasers named herein

8.00% Convertible Notes due 2025

Dated as of July 1, 2020

TABLE OF CONTENTS

		Page

SECTION 1. PURCHASE AND SALE OF NOTES.		2
1.1	Issue of Notes.	2
1.2	Purchase and Sale of Notes.	3
1.3	Registration of Notes.	4
1.4	Delivery Expenses.	5
1.5	Issue Taxes.	5
1.6	Direct Payment.	5
1.7	Lost, Etc. Note.	5
1.8	Indemnification.	6
1.9	Further Actions.	8
1.10	Other Covenants.	8

SECTION 2. CLOSING CONDITIONS.		8
2.1	Delivery of Documents.	8
2.2	Consummation of the HOFV Acquisition.	10
2.3	Representations and Warranties.	10
2.4	Additional Equity Capital.	10
2.5	No Material Adverse Effect.	10

SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.		10
3.1	Authorization; Capitalization.	11
3.2	No Violation or Conflict; No Default.	11
3.3	Use of Proceeds.	12
3.4	No Material Adverse Change: Financial Statements.	12
3.5	Full Disclosure.	13
3.6	Third Party Consents.	13
3.7	No Violation of Regulations of Board of Governors of Federal Reserve System.	13
3.8	Private Offering.	13
3.9	Governmental Regulations.	14
3.10	Brokers.	14
3.11	Solvency.	14
3.12	Litigation.	14
3.13	Labor Relations.	15
3.14	Taxes.	15
3.15	ERISA.	16
3.16	Intellectual Property.	16
3.17	Compliance with Laws.	16
3.18	Consummation of the HOFV Acquisition.	17
3.19	HOFV Acquisition Agreement Representations.	17

SECTION 4. REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER.		17
4.1	Purchase for Own Account.	17
4.2	Accredited Investor.	17
4.3	Authorization.	18
4.4	Notes Restricted.	18
4.5	ERISA.	18

SECTION 5. COVENANTS.		19
5.1	Payment of Notes.	19
5.2	Stay, Extension and Usury Laws.	19
5.3	Reports.	20
5.4	Compliance Certificate.	21
5.5	Restricted Payments.	22
5.6	Dividend and other Payment Restrictions Affecting Subsidiaries.	25
5.7	Incurrence of Indebtedness and Issuance of Preferred Stock.	27
5.8	Asset Sales.	30
5.9	Transactions with Affiliates.	34
5.10	Liens.	36
5.11	Merger; Successor Corporation.	37
5.12	Subsidiary Guarantees.	37
5.13	Designation of Restricted and Unrestricted Subsidiaries.	37
5.14	Minimum Cash Equivalents.	38
5.15	Taxes.	38
5.16	Corporate Existence.	38
5.17	Limitation on Business.	39
5.18	Maintenance of Properties.	39
5.19	Maintenance of Insurance.	39

SECTION 6. REDEMPTION.		39
6.1	Optional Redemption.	39
6.2	Selection of Notes to Be Redeemed.	40
6.3	Notice of Redemption.	40
6.4	Effect of Notice of Redemption.	41
6.5	Payment of Redemption Price.	41
6.6	Purchase at the Option of Holders Upon a Fundamental Change	41
6.7	Effect of Fundamental Change Purchase Notice	43
6.8	Withdrawal of Fundamental Change Purchase Notice	43
6.9	Notes Purchased in Whole or in Part	44
6.10	Covenant to Comply With Applicable Laws Upon Purchase of Notes	44

SECTION 7. DEFAULTS AND REMEDIES.		44
7.1	Events of Default.	44
7.2	Acceleration of Notes; Remedies.	46
7.3	Other Remedies.	47
7.4	Waiver of Past Defaults.	47
7.5	Rights of Holders to Receive Payment.	47
7.6	Undertaking for Costs.	47

SECTION 8. CONVERSION		47
8.1	Right to Convert.	47
8.2	Conversion Procedures; Settlement Upon Procedure.	47
8.3	Adjustment of Conversion Rate.	50
8.4	Certain Other Adjustments.	59
8.5	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.	59
8.6	Shares to Be Fully Paid.	61
8.7	Taxes on Shares Issued.	61
8.8	Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock.	61
8.9	Notice to Holders Prior to Certain Actions.	62

SECTION 9. AMENDMENTS AND WAIVERS.		62
9.1	With Consent of Holders.	62
9.2	Revocation and Effect of Consents.	64
9.3	Notation on or Exchange of Notes.	64
9.4	Payment of Expenses.	64

SECTION 10. DEFINITIONS.		64
10.1	Definitions.	64
10.2	Rules of Construction.	90

SECTION 11. MISCELLANEOUS.		90
11.1	Notices.	90
11.2	Successors and Assigns.	90
11.3	Counterparts.	91
11.4	Headings.	91
11.5	Governing Law; Submission to Jurisdiction.	91
11.6	Entire Agreement.	92
11.7	Severability.	92
11.8	Further Assurances.	94
11.9	Disclosure of Financial Information	91
11.10	Survival	92

Annexes:

Annex A	Form of Note
Annex B	Wire Instructions
Annex C	Form of Opinion of Counsel to the Company
Annex D	Form of Guarantee
Annex E	Form of Warrant Agreement
Annex F	Form of Officers’ Certificate
Annex G	Form of Registration Rights Agreement

iii

NOTE PURCHASE AGREEMENT

This Note Purchase Agreement dated as of July 1, 2020 (this “Agreement”) is entered into by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), and the purchasers listed on the signature pages hereto (each a “Purchaser” and collectively, the “Purchasers” and, together with the Company, the “Parties”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Section 10.1.

In consideration of the premises, mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company agrees, and each of the Purchasers agrees, severally but not jointly, as follows:

SECTION 1. PURCHASE AND SALE OF NOTES.

1.1 Issue of Notes.

On or before the Closing, the Company will have authorized (a) the original issue and sale to the Purchasers (other than the Converting Founders), in the respective amounts set forth on the signature pages hereof, of $16,500,000 aggregate principal amount of its 8.00% Convertible Notes due 2025 (the “Notes”), to be issued substantially in the form attached hereto as Annex A and (b) the original issue to the Converting Founders, in the respective amounts set forth on the signature pages hereof, of $4,221,293 aggregate principal amount of the Notes, which shall be issued to the Converting Founders pursuant to the conversion of their Founders Notes described on the signature pages hereof. The aggregate principal amount of the Notes outstanding at any time may not exceed $20,721,293 plus the aggregate principal amount of PIK Interest issued pursuant to Section 1 of the Notes.

1.2 Purchase and Sale of Notes.

(a) Purchase and Sale. The Company agrees to sell and, subject to the terms and conditions set forth herein and in reliance on the representations and warranties of the Parties contained or incorporated herein, each of the Purchasers (other than the Converting Founders) agrees, severally but not jointly, to purchase the Notes set forth below such Purchaser’s name on the signature pages hereto at the purchase price indicated therein. As indicated on each such Purchaser’s signature page, such purchase price will be paid either in the form of cash or an exchange of or reduction or cancellation of indebtedness owed to such Purchaser by HOF Village. In addition, the Company shall issue to the Converting Founders, in the respective principal amounts set forth on their respective signature pages hereof, Notes into which like principal amounts of Founder Notes are being converted pursuant to the terms thereof.

(b) Closing. The purchase, sale and issuance of the Notes shall take place at a closing (the “Closing”) at the offices of Hunton Andrews Kurth LLP, 200 Park Avenue, New York, NY 10166, at 10:00 a.m. Eastern Time on July 1, 2020, or such other Business Day as may be agreed upon by the Purchasers and the Company (the “Closing Date”). At the Closing, the Company will deliver to each of the Purchasers the Notes to be purchased by (or issued upon conversion of Founder Notes to) such Purchaser (in such denomination or denominations and registered in such Purchaser’s name or the name of such nominee or nominees as such Purchaser may request), dated the Closing Date. In the case of Notes being issued and sold to Purchasers (other than Converting Founders) such delivery of Notes by the Company shall be made against payment of the purchase price therefor by either (i) in the case of a cash payment, intra-bank or Federal funds bank wire transfer of same day funds to such bank account which is identified on Annex B hereto or such other account as the Company shall designate at least two Business Days prior to the Closing or (ii) in the case of payment in the form of an exchange of or reduction or cancellation of indebtedness owed to such Purchaser by HOF Village, the delivery by such Purchaser of documentation, in a form and substance reasonably satisfactory to the Company, evidencing such exchange or reduction or cancellation of such indebtedness, as applicable. In the case of Notes being issued to each of the Converting Founders, such delivery of Notes by the Company to such Converting Founder shall be made upon (i) conversion of the Founder Notes held by such Converting Founder, as indicated on its signature page hereof and (ii) delivery to the Company by such Converting Founder of documentation, in a form and substance reasonably satisfactory to the Company, evidencing such conversion (including without limitation, the conversion election notice required pursuant to the terms of such Founder Notes).

(c) Fees and Expenses. Regardless of whether the Notes are sold, the Company agrees to pay or reimburse all reasonable and documented expenses relating to this Agreement in an amount not to exceed $500,000, including but not limited to:

(i) each Purchaser’s reasonable expenses incurred in connection with the transactions contemplated by this Agreement including, without limitation, travel and lodging expenses and all costs incurred in connection with such Purchaser’s review of the Company’s business and operations;

(ii) the reasonable fees and expenses of the Purchasers’ counsel, K&L Gates LLP, in connection herewith;

(iii) the reasonable fees and expenses (including the reasonable fees and expenses of counsel) in connection with any registration or qualification of the Notes required in connection with the offer and sale of the Notes pursuant to this Agreement under the securities or “blue sky” laws of any jurisdiction requiring such registration or qualification or in connection with obtaining any exemptions from such requirements;

(iv) each Purchaser’s reasonable expenses (including the reasonable fees and expenses of counsel) relating to any amendment to, or modification of, or any waiver or consent or preservation of rights under, this Agreement; and

(v) all other expenses, including without limitation reasonable counsel’s fees, accountants’ fees and any rating agency fees incurred by the Company in connection with the transactions contemplated by this Agreement.

The Company shall deliver to each of the Purchasers or to such other persons as such Purchaser shall direct, concurrently with the Closing, by intra-bank or Federal funds bank wire transfer of same day funds in the amounts and pursuant to the wire instructions set forth on Annex B hereto, payment for any documented out-of-pocket expenses for which such Purchaser is entitled to reimbursement pursuant to this Section 1.2(c), including, without limitation, the documented fees and expenses of such Purchaser’s counsel.

(d) Other Purchasers. Each Purchaser’s obligations hereunder are subject to the execution and delivery of this Agreement by the other Purchasers listed on the signature pages hereof. The obligations of each Purchaser shall be several and not joint, and no Purchaser shall be liable or responsible for the acts of any other Purchaser under this Agreement.

1.3 Registration of Notes.

The Company shall cause to be kept at its principal office a register for the registration and transfer of the Notes (the “Notes Register”). The names and addresses of the Holders of Notes, the payment of PIK Interest, the transfer of Notes and the names and addresses of the transferees of the Notes shall be registered in the Notes Register.

The Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes of this Agreement, and the Company shall not be affected by any notice to the contrary, until due presentment of such Note for registration of transfer as provided in this Section 1.3. Payment of or on account of the principal, premium, if any, and interest on any registered Note shall be made to or upon the written order of such registered holder.

When Notes are presented to the Company with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Company shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met.

1.4 Delivery Expenses.

If a Holder surrenders any Note to the Company for any reason, the Company shall pay the cost of delivering to such Holder’s home office or to the office of such Holder’s designee from the Company, insured to such Holder’s satisfaction, the surrendered Note and each Note issued in substitution, replacement or exchange for the surrendered Note.

1.5 Issue Taxes.

The Company agrees to pay all documentary stamp taxes and other governmental charges (other than taxes in the nature of income, franchise, property, estate, inheritance, gift or similar taxes) and governmental fees in connection with the issuance or delivery by the Company to each Holder of the Notes, and any modification of any of such Notes and will save such Holder harmless without limitation as to time against any and all liabilities with respect to all such taxes and fees. The obligations of the Company under this Section 1.5 are in addition to any other obligations of the Company contained elsewhere in this Agreement and shall survive the payment or prepayment of the Notes, at maturity, upon redemption or otherwise and the termination of this Agreement.

1.6 Direct Payment.

The Company will pay or cause to be paid all amounts payable with respect to any Note (without any presentment of such Note and without any notation of such payment being made thereon) by crediting (before 12:00 Noon, Eastern Time), by Federal funds bank wire transfer in same day funds to each Holder’s account in any bank in the United States of America as may be designated and specified in writing by such Holder at least two Business Days prior thereto. Each Purchaser’s initial bank account for this purpose is on Annex B hereto. In the event that the Company elects to make a PIK Interest Payment, then, in addition to making the wire transfer of the cash portion of the PIK Interest Payment, the Company shall make a record in the Note Register of the corresponding increase in the principal amount of the applicable Notes.

1.7 Lost, Etc. Note.

If a mutilated Note is surrendered to the Company or if the Holder of a Note claims and submits an affidavit or other evidence, reasonably satisfactory to the Company, to the effect that the Note has been lost, destroyed or wrongfully taken, the Company shall issue a replacement Note if the customary requirements relating to replacement securities are reasonably satisfied. If required by the Company, such Holder must provide an indemnity bond, or other form of indemnity, sufficient in the reasonable judgment of the Company to protect the Company from any loss which it may suffer if a Note is replaced. If any Purchaser or any other institutional Holder (or nominee thereof) is the owner of any such lost, stolen or destroyed Note, then the affidavit of an authorized officer of such owner, setting forth the fact of loss, theft or destruction and of its ownership of the Note at the time of such loss, theft or destruction shall be accepted as satisfactory evidence thereof, and no further indemnity shall be required as a condition to the execution and delivery of a new Note other than the unsecured written agreement of such owner reasonably satisfactory to the Company, to indemnify the Company or at the option of the Purchaser, an indemnity bond in the amount of the Note remaining outstanding.

Every replacement Note is an obligation of the Company.

1.8 Indemnification.

(a) Indemnification by the Company. The Company agrees to indemnify each of the Purchasers (i) from all costs, losses, liabilities, damages, or expenses, and (ii) hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action as a result of, arising out of, or in any way related to the breach of any of the representations or warranties of the Company contained herein or in any certificate or instrument delivered by or on behalf of the Company hereunder, and in connection therewith, and promptly upon demand, pay or reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them (regardless of whether a party thereto), provided that such claim for indemnification relating to a breach of the representations or warranties is made prior to the expiration of such representations or warranties to the extent applicable; and provided further, that no Purchaser shall be entitled to recover special, consequential (including lost profits) or punitive damages under this Section 1.8(a) (other than any such damages to the extent that such damages arise from Third Party Claims).

(b) Indemnification by each Purchaser. Each Purchaser agrees, severally and not jointly, to indemnify the Company from, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation, or inquiries), demands and causes of action and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to the breach of any of the representations, warranties or covenants of such Purchaser contained herein or in any certificate or instrument delivered by such Purchaser hereunder; provided that such claim for indemnification relating to a breach of a representation or warranty is made prior to the expiration of such representation or warranty; and provided further, that the Company shall not be entitled to recover special, consequential (including lost profits) or punitive damages under this Section 1.8(b) (other than any such damages to the extent that such damages arise from Third Party Claims); provided further, that in no event will such Purchaser be liable under this Section 1.8(b) for any amount in excess of the sum total of the purchase price set forth on such Purchaser’s signature page to this Agreement.

(c) No Indemnification for Covenant Breach. Notwithstanding any other provision in this Agreement, no indemnification shall be available for any costs, losses, liabilities, damages, or expenses as a result of, arising out of, or in any way related to the breach by the Company of any of the covenants set forth in this Agreement.

(d) Indemnification Procedures. Promptly after any Company or Purchaser (hereinafter, the “Indemnified Party”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third party, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (each a “Third Party Claim”), the Indemnified Party shall give the indemnitor hereunder (the “Indemnifying Party”) written notice of such claim or the commencement of such action, suit or proceeding, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such claim to the extent then known. The Indemnifying Party shall have the right to defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (i) at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (B) if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from those available to the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, involves no admission of wrongdoing or malfeasance by, and includes a complete release from liability of, the Indemnified Party.

(e) Tax Treatment. All indemnification payments under this Section 1.8 shall be adjustments to the purchase price set forth on such applicable Purchaser’s signature page to this Agreement except as otherwise required by applicable Law.

1.9 Further Actions.

During the period from the date hereof to the Closing Date, the Company shall (i) take all actions necessary or appropriate to cause its representations and warranties contained in Section 3 hereof to be true and correct as of the Closing Date (unless stated to refer to another date), both before and after giving effect to the transactions contemplated by this Agreement, as if made on and as of such date, and (ii) take, or cause to be taken, all action, and do, or cause to be done, all things necessary, proper or advisable under applicable law and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, obtaining all consents and approvals of all Persons and removing all injunctive or other impediments or delays, legal or otherwise, which are necessary to the consummation of the transactions contemplated by this Agreement.

1.10 Other Covenants.

The Company covenants and agrees to not, and will ensure that no affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Purchasers of the Notes.

SECTION 2. CLOSING CONDITIONS.

The obligations of each Purchaser to purchase and pay for the Notes to be delivered to such Purchaser at the Closing shall be subject to the satisfaction of each of the following conditions on or before the Closing Date:

2.1 Delivery of Documents.

The Company shall have delivered to each Purchaser, in form and substance satisfactory to such Purchaser, the following:

(a) The Notes being purchased by such Purchaser, duly executed by an officer of the Company, in the aggregate principal amount set forth below such Purchaser’s name on the signature pages hereto.

(b) A legal opinion, dated the Closing Date and addressed to the Purchasers, from Hunton Andrews Kurth LLP, counsel for the Company, substantially in the form attached hereto as Annex C.

In rendering such opinions described in this Subsection (b), counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Company (copies of which shall be delivered to such Purchaser) and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion.

(d) The Warrant Agreement, duly executed by an officer of the Company.

(e) Resolutions of the Board of Directors of the Company, certified by the Secretary or Assistant Secretary of the Company, to be duly adopted and in full force and effect on such date, authorizing (i) the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the consummation of the transactions contemplated hereby, (ii) the issuance of the Notes and shares of Common Stock issuable upon conversion of the Notes, (iii) the issuance of any warrants pursuant to the terms hereof upon redemption of any Notes and the issuance of shares of Common Stock issuable upon exercise of such warrants and (iv) specific officers of the Company to execute and deliver this Agreement, the Registration Rights Agreement and the Notes.

(f) Certificates of the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date, certifying that (i) all of the conditions set forth in Sections 2.2, 2.3, 2.4 and 2.5 are satisfied on and as of such date and specifying as to each such condition the satisfaction thereof, (ii) all of the representations and warranties of the Company, as the case may be, contained or incorporated by reference herein are true and correct on and as of such date as though made on and as of such date (unless stated to relate to another date), and (iii) as to such other matters as any Purchaser may reasonably request.

(g) The Purchasers shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing in such other jurisdictions as the Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.

(h) Copies of the Charter Documents of the Company, certified as of a recent date by the Secretary of State of the relevant state of incorporation and certified by the Secretary or Assistant Secretary of the Company, as true and correct as of the Closing Date.

(i) Certificates of the Secretary or an Assistant Secretary of the Company as to the incumbency and signatures of the officers or representatives of such Company executing this Agreement, the Registration Rights Agreement, the Notes and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the incumbency of such Secretary or Assistant Secretary.

(j) Such additional information and materials as any Purchaser may reasonably request, including, without limitation, copies of any debt agreements, security agreements and other contracts to which the Company is a party.

2.2 Consummation of the HOFV Acquisition.

All conditions to the closing of the HOFV Acquisition pursuant to the terms of the HOFV Acquisition Agreement shall be reasonably satisfied such that the Closing shall occur immediately prior to the closing of the HOFV Acquisition.

2.3 Representations and Warranties.

Unless stated to relate to another date, all of the representations and warranties of the Company contained or incorporated by reference herein shall be true and correct in all material respects (except that such phrase “in all material respects” shall be disregarded to the extent that any such representation and warranty is qualified by “material,” “Material Adverse Effect” or any similar terms or by any phrase using any of such terms) on and as of the Closing Date.

2.4 Additional Equity Capital.

The Company shall have sold newly issued Common Stock for gross proceeds of at least $20,000,000.

2.5 No Material Adverse Effect.

Subsequent to September 30, 2019: (a) the Company shall not have suffered any adverse change in its properties, business, operations, assets, condition (financial or otherwise) or prospects which could reasonably be expected to result in a Material Adverse Effect; and (b) (i) except as described the Company’s Registration Statement on Form S-4 filed on November 12, 2019 (as amended to date) there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of any of the Company and (ii) the Company shall not have incurred any liability or obligation, direct or contingent, that is material to the Company or, is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest balance sheet previously provided to the Purchasers.

SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

The Company represents and warrants, on the date hereof and as of the Closing, as follows:

3.1 Authorization; Capitalization.

The Company has taken all actions necessary to authorize it (i) to execute, deliver and perform all of its obligations under the Agreement, and (ii) to consummate the transactions contemplated thereby. Without limiting the generality of the preceding sentence, the Company has taken all actions necessary to authorize it to issue and perform all of its obligations under the Notes. The Agreement is a legally valid and binding obligation of the Company, enforceable against it in accordance with its respective terms, except for (a) the effect thereon of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally and (b) limitations imposed by equitable principles upon the specific enforceability of any of the remedies, covenants or other provisions thereof and upon the availability of injunctive relief or other equitable remedies.

Except as disclosed in the SEC Filings, on the Closing Date, there are no outstanding (i) securities convertible into or exchangeable for any Equity Interests of the Company, (ii) options, warrants or other rights to purchase or subscribe to Equity Interests of the Company or securities convertible into or exchangeable for Equity Interests of the Company, (iii) contracts, commitments, agreements, understandings, arrangements, calls or claims of any kind relating to the issuance of any Equity Interests of the Company, any such convertible or exchangeable securities or any such options, warrants or rights or (iv) voting trusts, agreements, contracts, commitments, understandings or arrangements with respect to the voting of any of the Equity Interests of the Company.

Other than the Registration Rights Agreement, the Company has not entered into an agreement to register its securities under the Securities Act. Other than this Agreement or as disclosed in the SEC Filings, the Company has not entered into any agreement to issue, purchase or sell any of its securities.

3.2 No Violation or Conflict; No Default.

(a) Neither the execution, delivery or performance of this Agreement, the Registration Rights Agreement or the Notes by the Company, nor the compliance with its respective obligations hereunder or thereunder, nor the consummation of the transactions contemplated hereby and thereby, nor the issuance, sale or delivery of the Notes will:

(i) violate any provision of the Charter Documents of the Company;

(ii) violate any statute, law, rule or regulation or any judgment, decree, order, regulation or rule of any court or governmental authority or body to which the Company or any of its respective properties may be subject;

(iii) permit or cause the acceleration of the maturity of any debt or obligation of the Company; or

(iv) violate, or be in conflict with, or constitute a default under, or permit the termination of, or require the consent of any Person under, or result in the creation or imposition of any Lien (other than Permitted Liens) upon any property of the Company under, any mortgage, indenture, loan agreement, note, debenture, agreement for borrowed money or any other agreement to which the Company is a party or by which the Company (or its properties) may be bound, other than such violations, conflicts, defaults, terminations and Liens, or such failures to obtain consents, which could not reasonably be expected to result in a Material Adverse Effect.

(b) The Company is not in default (without giving effect to any grace or cure period or notice requirement) under any agreement for borrowed money or under any agreement pursuant to which any of its securities were sold.

3.3 Use of Proceeds.

The proceeds from the sale of the Notes pursuant to this Agreement will be to (i) fund the Company’s obligations pursuant to the HOFV Acquisition Agreement, (ii) to satisfy working capital obligations and (iii) to pay transaction fees and expenses.

3.4 No Material Adverse Change: Financial Statements.

(a) No Material Adverse Change. Since September 30, 2019 the Company has not suffered any material adverse change in its properties, business, operations, assets, condition (financial or otherwise) or prospects which could reasonably be expected to result in a Material Adverse Effect.

(b) Financial Statements. The Company previously provided to you (i) the audited consolidated balance sheet of the Company as of December 31, 2018 and 2017, (ii) related audited consolidated statements of income, changes in shareholders’ equity and cash flows for the fiscal years ended December 31, 2018 and 2017 and (iii) a consolidated unaudited balance sheet for the Company as of September 30, 2019 and 2018 and related statements of income, changes in shareholders’ equity and cash flows for the three-month periods ended September 30, 2019 and 2018. Such financial statements present fairly the consolidated financial position, results of operations, shareholders’ equity and cash flows of the Company at the respective dates or for the respective periods to which they apply. Except as disclosed therein, such statements and related notes have been prepared in accordance with GAAP consistently applied throughout the periods involved. All financial statements concerning the Company and its Subsidiaries that will hereafter be furnished by the Company to the Purchasers or any Holder pursuant to this Agreement will be prepared in accordance with GAAP (except as disclosed therein) and will present fairly in all material respects the financial condition of the corporations covered thereby as at the dates thereof and the results of their operations for the periods then ended.

(c) Projections. True and complete copies of (i) projections of the consolidated revenues, earnings before depreciation, interest and taxes, net income and capital expenditures of the Company and its Subsidiaries for each of the fiscal years ending December 31, 2020, 2021, 2022, 2023, 2024 and 2025 as furnished on the Company’s Current Report on Form 8-K filed on January 8, 2020, prepared by senior management of the Company (the “Projections”) and (ii) the assumptions and supplemental data used in preparing the Projections (collectively, the “Supplemental Data”) have been delivered by the Company to the Purchasers. The Projections were prepared on the basis of the Supplemental Data which represent a reasonable basis for such preparation. The Projections and the Supplemental Data reflect the best currently available estimates and judgment of the Company’s senior management as to the expected future financial performance of the Company and its Subsidiaries; provided that it is understood that there can be no assurances that suitable acquisition candidates can be found as shown in the acquisition model of the Projections.

3.5 Full Disclosure.

Neither this Agreement (including without limitation the representations and warranties incorporated herein by reference), the financial statements referred to in Section 3.4, nor any other document, certificate or written statement furnished by or on behalf of the Company to any Purchaser in connection with the negotiation and sale of the Notes, when taken as a whole, contains any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no material fact known to the Company that has had or could reasonably be expected to have a Material Adverse Effect and that has not been disclosed herein or in such other documents, certificates and written statements furnished to the Purchasers for use in connection with the transactions contemplated hereby.

3.6 Third Party Consents.

Neither the nature of the Company nor of any of its businesses or properties, nor any relationship between the Company and any other Person, nor any circumstance in connection with the offer, issuance, sale or delivery of the Notes at the Closing nor the performance by the Company of its other obligations hereunder or thereunder, or the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Notes, as the case may be, is such as to require a consent, approval or authorization of, or notice to, or filing, registration or qualification with, any governmental authority or other Person on the part of the Company as a condition to the execution and delivery of this Agreement.

3.7 No Violation of Regulations of Board of Governors of Federal Reserve System.

None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Notes) will violate or result in a violation of Section 7 of the Exchange Act or any regulation issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.

3.8 Private Offering.

(a) Assuming the truth and correctness of the representations and warranties set forth in Section 4, the sale of the Notes hereunder is exempt from the registration and prospectus delivery requirements of the Securities Act.

(b) In the case of each offer or sale of the Notes, no form of general solicitation or general advertising was used by any of the Company or any of its Subsidiaries or their respective representatives, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

(d) Except as disclosed in the SEC Filings, no securities have been issued and sold by the Company within the six-month period immediately prior to the date hereof. None of the securities issued within such six-month period could be integrated with the issuance of the Notes as a single offering for purposes of the Securities Act, and the Company agrees that neither it, nor anyone acting on its behalf, will offer or sell the Notes, or any portion of them, if such offer or sale might bring the issuance and sale of the Notes to any Purchaser hereunder within the provisions of Section 5 of the Securities Act nor offer any similar securities for issuance or sale to, or solicit any offer to acquire any of the same from, or otherwise approach or negotiate with respect thereto with, anyone if the sale of the Notes and any such securities could be integrated as a single offering for the purposes of the Securities Act, including without limitation Regulation D thereunder.

(e) It is not necessary, in connection with the transactions contemplated hereby, to qualify an indenture under the Trust Indenture Act of 1939, as amended.

3.9 Governmental Regulations.

None of the Company or any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940, as amended, the Federal Power Act, the Interstate Commerce Act, the Commodity Exchange Act or to any Federal or state statute or regulation limiting its ability to incur indebtedness for borrowed money or consummate the transactions contemplated hereby.

3.10 Brokers.

The Company has not dealt with any broker, finder, commission agent or other such intermediary other than Maxim Group, LLC in connection with the sale of the Notes and the transactions contemplated by this Agreement, and the Company is not under any obligation to pay any broker’s or finder’s fee or commission or similar payment in connection with such transactions other than fees payable to Maxim Group, LLC in an amount not greater than $200,000.

3.11 Solvency.

Immediately prior to and after giving effect to the issuance of the Notes and the execution, delivery and performance of this Agreement, the Company is Solvent.

3.12 Litigation.

(a) There is no action, claim, suit, citation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced, or to the knowledge of the Company, threatened (“Proceedings”) against or affecting the Company or any of its properties or assets, except for such Proceedings that, if finally determined adversely to the Company, could not reasonably be expected to have a Material Adverse Effect, and there is no Proceeding seeking to restrain, enjoin, prevent the consummation of or otherwise challenge this Agreement or the transactions contemplated hereby or thereby.

(b) The Company is not subject to any judgment, order, decree, rule or regulation of any court, governmental authority or arbitration board or tribunal that has had a Material Adverse Effect or that could reasonably be expected to have a Material Adverse Effect.

3.13 Labor Relations.

Neither the Company, nor any Person for whom the Company is or may be responsible by law or contract, is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice charge or complaint pending or threatened against the Company, or any Person for whom the Company is or may be responsible by law or contract, before the National Labor Relations Board or any corresponding state, local or foreign agency, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending or threatened, (b) no strike, labor dispute, slowdown or stoppage pending or threatened against the Company, or any Person for whom the Company is or may be responsible by law or contract, and (c) no union representation claim or question existing with respect to the employees of the Company, or any Person for whom the Company is or may be responsible by law or contract, and no union organizing activities taking place. Neither the Company, nor any Person for whom the Company is or may be responsible by law or contract, is a party to any collective bargaining agreement.

Except such as could not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiaries has violated any applicable Federal, state, provincial or foreign law relating to employment or employment practices or the terms and conditions of employment, including, without limitation, discrimination in the hiring, promotion or pay of employees, wages, hours of work, plant closings and layoffs, collective bargaining, and occupational safety and health, or any provisions of ERISA or the rules and regulations promulgated thereunder or any other applicable law (whether foreign or domestic) relating to or governing the operation or maintenance of any plan or arrangement falling within the definition of an “employee benefit plan” (as such term is defined in Section 3 of ERISA) or any other employee benefit plan or arrangement.

3.14 Taxes.

All material Tax Returns required to be filed by the Company have been timely filed and such returns are true, complete and correct in all material respects. All material Taxes due or claimed to be due from the Company that are due and payable have been paid, other than those (i) being contested in good faith and for which an adequate reserve or accrual has been established in accordance with GAAP or (ii) those currently payable without penalty or interest and for which an adequate reserve or accrual has been established or extensions duly filed. The Company is not aware of (a) any actual or proposed material additional tax assessments or (b) any probable basis for the imposition of any material additional tax assessments for any fiscal period against the Company.

3.15 ERISA.

None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (“ERISA”) with respect to a Plan determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal, state or foreign governmental or regulatory agency with respect to the employment or compensation of employees by the Company that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (1) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company compared to the amount of such contributions made in the most recently completed fiscal year of the Company; (2) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company compared to the amount of such obligations in the most recently completed fiscal year of the Company; (3) any event or condition giving rise to a liability under Title IV of ERISA that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or (4) the filing of a claim by one or more employees or former employees of the Company related to its or their employment that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. For purposes of this paragraph and the definition of ERISA, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company may have any liability.

3.16 Intellectual Property.

The Company owns or possesses adequate licenses or other rights to use all trademarks, service marks, trade names, copyrights, and know-how necessary to conduct the business now conducted by them, and the Company has not received any notice of infringement of or conflict with (or knows of such infringement of or conflict with) asserted rights of others with respect to trademarks, service marks, trade names, copyrights, or know-how which, individually or in the aggregate, could reasonably be expected to result in any Material Adverse Effect. The Company does not in the conduct of its business as now conducted, infringe or conflict with any right of any third party, known to the Company, where such infringement or conflict could reasonably be expected to result in any Material Adverse Effect.

3.17 Compliance with Laws.

The Company has maintained in good standing any licenses, permits, consents and authorizations required to be obtained by it under all laws or regulations relating to its business (collectively, the “Laws”), the absence of which (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect, and any such licenses, permits, consents and authorizations remain in full force and effect, except as to any of the foregoing the absence of which (individually or in the aggregate) could not reasonably be expected to have a Material Adverse Effect. The Company is in compliance with the Laws except for such noncompliance which, singly or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and there is no pending or, to the Company’s knowledge, threatened, action or proceeding against the Company under any of the Laws, other than any such actions or proceedings which, individually or in the aggregate, if adversely determined, could not reasonably be expected to have a Material Adverse Effect.

3.18 Consummation of the HOFV Acquisition.

The HOFV Acquisition will be, on the Closing Date, duly consummated in accordance with the terms of the HOFV Acquisition Agreement without material amendment or waiver of any material term or provision thereof. On or prior the Closing Date, the Company shall have provided to each Purchaser copies of any material amendment or waiver to the HOFV Acquisition Agreement entered into or granted on or prior to the Closing Date. True and correct copies of the HOFV Acquisition Agreement have been delivered to each Purchaser. The Company is not in default under the HOFV Acquisition Agreement or under any instrument or document to be delivered in connection therewith.

3.19 HOFV Acquisition Agreement Representations.

Except as could not reasonably be expected to have a Material Adverse Effect, the representations and warranties of HOF Village contained in Sections 3.01, 3.02, 3.03, 3.06, 3.10, 3.11, 3.15, 3.17, 3.18 and 3.19 of the HOFV Acquisition Agreement are true and correct.

SECTION 4. REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER.

Each Purchaser (as to itself only) and each Account Manager (as to the managed accounts of Purchasers) represents and warrants to the Company that:

4.1 Purchase for Own Account.

Such Purchaser or such Account Manager is purchasing the Notes to be purchased by it solely for its own account (or in the case of Account Managers, on behalf of managed accounts) and not as nominee or agent for any other person (other than for such managed accounts, if applicable) and not with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States of America or any state thereof, without prejudice, however, to its right at all times to sell or otherwise dispose of all or any part of said Notes pursuant to a registration statement under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act, and subject, nevertheless, to the disposition of its property being at all times within its control.

4.2 Accredited Investor.

Such Purchaser or such Account Manager is knowledgeable, sophisticated and experienced in business and financial matters; it has previously invested in securities similar to the Notes and it acknowledges that the Notes have not been registered under the Securities Act and understands that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement; it (or, in the case of an Account Manager, the managed account on behalf of which the Account Manager is acting) is able to bear the economic risk of its investment in the Notes and is presently able to afford the complete loss of such investment; it (or, in the case of an Account Manager, the managed account on behalf of which the Account Manager is acting) is an “accredited investor” as defined in Regulation D promulgated under the Securities Act; and it has been afforded access to information about the Company and its financial condition and business sufficient to enable it to evaluate its investment in the Notes.

4.3 Authorization.

Each Purchaser has taken all actions necessary to authorize it (or, in the case of an Account Manager, such Account Manager is duly authorized by the managed account for which it is acting) (i) to execute, deliver and perform all of its obligations under this Agreement, (ii) to perform all of its obligations under the Notes and (iii) to consummate the transactions contemplated hereby and thereby. This Agreement is a legally valid and binding obligation of each Purchaser enforceable against it in accordance with its terms, except for (a) the effect thereon of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally and (b) limitations imposed by Federal or state law or equitable principles upon the specific enforceability of any of the remedies, covenants or other provisions thereof and upon the availability of injunctive relief or other equitable remedies.

4.4 Notes Restricted.

Each Purchaser acknowledges that the Notes have not been registered under the Securities Act and understands that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement.

No transfer or sale (including, without limitation, by pledge or hypothecation) of the Notes by any Holder which is otherwise permitted hereunder, other than a transfer or sale to the Company, shall be effective unless such transfer or sale is made (a) pursuant to an effective registration statement under the Act and a valid qualification under applicable state securities or “blue sky” laws or (b) without such registration or qualification as a result of the availability of an exemption therefrom, and, if reasonably requested by the Company, counsel for such Holder shall have furnished the Company with an opinion, reasonably satisfactory in form and substance to the Company, to the effect that no such registration is required because of the availability of an exemption from the registration requirements of the Securities Act; provided, however, that with respect to transfers by Holders to their Affiliates, no such opinion shall be required. A transfer made by a Holder which is a state-sponsored employee benefit plan to a successor trust or fiduciary pursuant to a statutory reconstitution shall be expressly permitted and no opinions of counsel shall be required in connection therewith.

4.5 ERISA.

Such Purchaser represents that either:

(a) it is not acquiring the Notes for or on behalf of any Plan;

(b) the assets used to acquire the Notes are assets of an insurance company general account and the purchase of the Notes would be exempt under the provisions of the Prohibited Transaction Class Exemption (“PTCE”) 95-60; or

(c) if it is acquiring the Notes on behalf of a Plan, either directly or through an investment fund (such as a “bank collective investment fund” as defined in PTCE 91-38 or an “insurance company pooled separate account” as defined in PTCE 90-1), then, assuming that the plans listed in Schedule 3.17 are the only employee benefit plans (as defined in Section 3 of ERISA) or Plans with respect to which NFC is a “party in interest” or “disqualified person” (as such terms are defined in Section 3 of ERISA and Section 4975 of the Internal Revenue Code, respectively), either

(i) no part of the funds to be used to purchase the Notes constitutes assets allocable to any trust that contains assets of the employee benefit plans listed in Schedule 3.17, or

(ii) an exemption from the prohibited transaction rules applies such that the use of such funds does not constitute a non-exempt prohibited transaction in violation of Section 406 of ERISA or Section 4975 of the Internal Revenue Code, which could be subject to a civil penalty assessed pursuant to Section 502 of ERISA or a tax imposed under Section 4975 of the Internal Revenue Code.

The representations contained in this Section 4.5 are made in express reliance on the list of employee benefit plans contained in Schedule 3.17.

SECTION 5. COVENANTS.

So long as any of the Notes remain unpaid and outstanding, the Company covenants to the Holders of outstanding Notes as follows:

5.1 Payment of Notes.

The Company shall pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. To the extent lawful, the Company shall pay interest (including interest accruing after the commencement of any proceeding under any Bankruptcy Law) on all due and unpaid amounts outstanding under the Notes (including overdue installments of principal or interest) at a rate equal to 8.00% per annum, compounded quarterly, except as provided in Section 1 of the Notes. PIK Interest paid pursuant to Section 1 of the Notes shall not constitute due and unpaid amounts outstanding under the Notes.

5.2 Stay, Extension and Usury Laws.

The Company covenants and agrees (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, and will use its best efforts to resist any attempts to claim or take the benefit of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of its obligations under this Agreement or the Notes; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holders, but will suffer and permit the execution of every such power as though no such law has been enacted.

5.3 Reports.

(a) Regardless of whether required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the Holders of Notes to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations:

(i) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and

(ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.

All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports and shall certified by the chief financial officer of the Company that they fairly present in all material respects the consolidated financial condition of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments. Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s certified independent accountants.

(b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by paragraph (a) of this Section 5.3 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

(c) The Company will be deemed to have furnished the reports required by paragraphs (a) and (b) of this Section 5.3 to the Holders of the Notes if it has filed such reports or information, respectively, with the SEC using the EDGAR filing system (or any successor filing system of the SEC) or, if the Company has posted such reports or information, respectively, on its website, and such reports, certifications or information, respectively, are available to the Holders of the Notes through internet access.

(d) Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or certification required by this Section 5.3 shall be deemed cured (and the Company shall be deemed to be in compliance with this Section 5.3) upon furnishing or filing such report or certification as contemplated by this Section 5.3 (but without regard to the date on which such report or certification is so furnished or filed); provided that such cure shall not otherwise affect the rights of the Holders under Section 7 hereof if the principal, premium, if any, and interest, if any, have been accelerated in accordance with the terms of this Agreement and the Notes and such acceleration has not been rescinded or cancelled prior to such cure.

5.4 Compliance Certificate.

(a) The Company shall deliver to the Holders, within forty-five (45) days after the end of each fiscal quarter and within ninety (90) days after each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Restricted Subsidiaries during the preceding fiscal quarter or fiscal year, as the case may be, has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Agreement and the Notes, and further stating, as to each such Officer signing such certificate, that to his or her knowledge, the Company has kept, observed, performed and fulfilled each and every covenant contained in this Agreement (or, if a violation or event that, with notice or the passage of time or both would be a violation shall have occurred, describing all such violations or prospective violations of which he or she may have knowledge) and that to his or her knowledge no event has occurred and remains in existence by reason of which payments of interest, principal or premium on the Notes are prohibited or if such event has occurred, a description of the event. The Officers’ Certificate shall set forth all financial calculations for such fiscal quarter or fiscal year necessary to demonstrate compliance with the covenants contained in this Section 5.

(b) The Company shall deliver to the Holders, forthwith upon becoming aware of (i) any Default or Event of Default or (ii) any default or event of default under any other loan agreement, mortgage, indenture or instrument referred to in Section 7.1(e), an Officers’ Certificate specifying in reasonable detail such Default, Event of Default or default or event of default and the nature of any remedial or corrective action the Company proposes to take with respect thereto.

5.5 Restricted Payments.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

(i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);

(ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;

(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or

(iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”),

unless, at the time of and after giving effect to such Restricted Payment:

(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and

(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of:

(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus

(2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus

(3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation.

(b) The provisions of Section 5.5(a) hereof will not prohibit:

(i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes;

(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof;

(iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof;

(iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests;

(v) the payment of any dividend on the EB-5 Preferred Stock;

(vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights;

(vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof;

(viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations;

(ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date;

(x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and

(xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date.

The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

5.6 Dividend and other Payment Restrictions Affecting Subsidiaries.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

(i) (x) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or (y) pay any indebtedness owed to the Company or any of its Restricted Subsidiaries;

(ii) make loans or advances to the Company or any of its Restricted Subsidiaries; or

(iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

(b) The restrictions in Section 5.6(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

(i) agreements or instruments governing Existing Indebtedness as in effect on the Issue Date and any amendments, restatements, modifications, increases, renewals, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the amendments, restatements, modifications, increases, renewals, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the Issue Date;

(ii) this Agreement, the Notes and the Subsidiary Guarantees;

(iii) applicable law, rule, regulation or order;

(iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;

(v) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;

(vi) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 5.6(a) hereof;

(vii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;

(viii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(ix) Liens permitted to be incurred under the provisions of Section 5.10 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;

(x) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, security agreements, mortgages, purchase money agreements and other similar agreements or instruments entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;

(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and

(xii) any EB-5 Preferred Stock; provided that the restrictions contained in the agreements or instruments governing such EB-5 Preferred Stock (x) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (y) will not materially affect the Company’s ability to make principal, interest and premium, if any, on the Notes, as determined in the reasonable good faith judgment of the Chief Financial Officer of the Company.

5.7 Incurrence of Indebtedness and Issuance of Preferred Stock.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur;” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and the Company’s Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued, as the case may be, would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

(b) Notwithstanding the foregoing, the provisions of Section 5.7(a) hereof will not prohibit the incurrence of any of the following (the items of Indebtedness described below in this paragraph (b) being referred to collectively as “Permitted Debt”):

(i) the incurrence by the Company and any Restricted Subsidiary of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the greater of (1) $275.0 million or (2) 25% of Consolidated Tangible Assets; provided, that the maximum amount permitted to be outstanding under this clause (i) shall not be deemed to limit additional Indebtedness under the Credit Facilities to the extent the incurrence of such additional Indebtedness is permitted pursuant to any of the other provisions of this Section 5.7;

(ii) the incurrence of Existing Indebtedness;

(iii) the incurrence by the Company of Indebtedness represented by the Notes and the related Subsidiary Guarantees to be issued on the Issue Date;

(iv) the incurrence by the Company or any Restricted Subsidiary of the Company of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction, installation, improvement, deployment, refurbishment, modification or lease of property, plant or equipment or furniture, fixtures and equipment, in each case used in the business of the Company or such Restricted Subsidiary, in an aggregate amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $25.0 million at any time outstanding;

(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge, any Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 5.7(a) hereof or clauses (ii), (iii), (iv), (v), (xiii), (xv) or (xvi) of this Section 5.7(b);

(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:

(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company; and

(2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);

(vii) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:

(1) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and

(2) any sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company,

will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);

(viii) the incurrence of a Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 5.7; provided that if the Indebtedness being guaranteed is Subordinated Indebtedness, then the Guarantee shall be subordinated to the same extent as the contractual subordination applicable to the Indebtedness guaranteed;

(ix) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within one year following such drawing or incurrence;

(x) the incurrence by the Company of Indebtedness to the extent that the net proceeds thereof are promptly deposited to fully defease or to fully satisfy and discharge the Notes;

(xi) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and its Restricted Subsidiaries in the ordinary course of business;

(xii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Subsidiary; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;

(xiii) the incurrence of Permitted Public Finance Instruments not to exceed $175.0 million in aggregate principal amount at any one time outstanding;

(xiv) the incurrence of the EB-5 Preferred Stock; provided that if the EB-5 Preferred Stock constitutes Disqualified Stock, the aggregate liquidation preference EB-5 Preferred Stock that may be incurred pursuant to this clause 5.7(b)(xiv) shall not exceed $50.0 million;

(xv) the incurrence of Permitted Acquisition Indebtedness; and

(xvi) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xvi), not to exceed (a) the greater of $25.0 million or (b) 10% of the Company’s Consolidated Tangible Assets.

(c) Notwithstanding the foregoing provisions of this Section 5.7, the Company will not at any time permit Consolidated Net Funded Debt to exceed the sum of (i) $300.0 million plus (ii) the aggregate principal amount of the Exempt Funded Debt.

For purposes of determining compliance with this Section 5.7, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvi) above or is entitled to be incurred pursuant to Section 5.7(a) hereof, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 5.7. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Agreement will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (i) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 5.7; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this Section 5.7, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 5.7 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.

The amount of any Indebtedness outstanding as of any date will be:

(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

(ii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

(A) the Fair Market Value of such asset at the date of determination; and

(B) the amount of the Indebtedness of the other Person; and

(iii) the principal amount of the Indebtedness, in the case of any other Indebtedness.

5.8 Asset Sales.

The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

(a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration in respect of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

(b) either (x) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or (y) the Fair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of the Consolidated Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:

(i) any liabilities, as shown on the Company’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities, Indebtedness that is by its terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets or Equity Interests pursuant to (1) a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor or (2) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability;

(ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 270 days after the date of the Asset Sale, to the extent of the cash received in that conversion;

(iii) any stock or assets of the kind referred to in clauses (ii) or (iv) of the next paragraph of this Section 5.8; and

(iv) accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business, provided, that such accounts receivable are not past due more than 90 days and do not have a payment date greater than 120 days from the date of the invoice creating such accounts receivable.

Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or its Restricted Subsidiaries, as the case may be) may apply an amount equal to such Net Proceeds at its option:

(i) to repay, redeem or repurchase any Senior Debt;

(ii) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary of the Company;

(iii) to make a capital expenditure; or

(iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;

provided, however, that if, during such 360-day period, the Company and/or any of its Restricted Subsidiaries enters into a binding contract with a Person other than an Affiliate of the Company to apply such amount pursuant to clauses (ii) or (iii) above, then such 360-day period shall be extended until the earlier of (a) the date on which such acquisition or expenditure is consummated, and (b) the 180th day following the expiration of the aforementioned 360-day period.

Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Agreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 5.8 will constitute “Excess Proceeds.”

If on any date, the aggregate amount of Excess Proceeds exceeds $20.0 million, then within ten Business Days after such date, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Agreement with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Agreement or the Notes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Holders shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

Notwithstanding anything in this Section 5.8 to the contrary, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, considered as a single enterprise, will be governed by Section 5.11 hereof and not by this Section 5.8.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.8, or compliance with the provisions of this Section 5.8 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 5.8 by virtue of such compliance.

In the event that, pursuant to the preceding provisions of this Section 5.8, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below.

The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Agreement with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:

(i) that the Asset Sale Offer is being made pursuant to this Section 5.8 and the length of time the Asset Sale Offer will remain open;

(ii) the Offer Amount, the purchase price and the Purchase Date;

(iii) that any Note not tendered or accepted for payment will continue to accrue interest;

(iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;

(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;

(vi) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company;

(vii) that Holders will be entitled to withdraw their election if the Company receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;

(viii) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof, will be purchased); and

(ix) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Holders the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 5.8. The Company will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, will promptly issue a new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.

5.9 Transactions with Affiliates.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”), unless:

(1) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and

(2) the Company delivers to the Holders:

(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million but less than or equal to $10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 5.9; and

(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this this Section 5.9 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by either a conflicts committee of the Board of Directors of the Company (so long as the members of such conflicts committee approving the Affiliate Transaction or series of related Affiliate Transactions are disinterested) or a majority of the disinterested members of the Board of Directors of the Company, if any.

(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.9(a) hereof:

(1) any employment, consulting or similar agreement or arrangement, employee benefit plan, equity award, equity option, equity appreciation, officer or director indemnification agreement, restricted unit agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities made pursuant thereto;

(2) transactions between or among the Company and/or its Restricted Subsidiaries;

(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;

(4) payment of reasonable fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of, and compensation paid to, and indemnity or insurance provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries, including, but not limited to, reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;

(5) any issuance of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;

(6) Restricted Payments that do not violate the provisions of Section 5.5 hereof or any Permitted Investments;

(7) transactions between the Company or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Company on any transaction with such other Person;

(8) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries;

(9) payments to an Affiliate in respect of the Notes or the Subsidiary Guarantees or any other Indebtedness of the Company or any Restricted Subsidiary on the same basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;

(10) payment of loans or advances to employees not to exceed $1.0 million in the aggregate at any one time outstanding;

(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;

(12) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to the Company and its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated person, in the good faith determination of the Company’s Board of Directors or any Officer of the Company involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and

(13) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Holders a letter from an accounting, appraisal, advisory or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of Section 5.9(a) hereof.

5.10 Liens.

The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien securing Indebtedness, upon any asset now owned or hereafter acquired, except Permitted Liens.

5.11 Merger; Successor Corporation.

(a) The Company shall not consolidate with or merge with or into, or transfer all or substantially all of its assets to, any Person, and the Company will not permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis to any other Person or Persons, unless either the Company is the surviving entity or, if such other Person is the resulting or surviving entity, such Person is a corporation organized and existing under the laws of the United States of America, a State thereof or the District of Columbia, and such Person expressly assumes all the obligations of the Company to the Holders of the Notes. Additionally, immediately before and immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation as a result of the transaction as having been incurred by the Company at the time of such transaction, no default or event of default (or with notice or passage of time or both) shall have occurred and be continuing under the Company’s Indebtedness, the obligations of the Company with respect to the Notes or any material contracts, agreements or arrangements to which the Company is a party. Moreover, immediately after giving effect to such transaction the Consolidated Net Worth of such surviving entity must be equal to or greater than that of the Company’s immediately prior to giving effect to such transaction.

(b) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of Section 5.11(a) hereof, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement and the Notes referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Agreement and the Notes with the same effect as if such successor Person had been named as the Company in this Agreement and in the Notes; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest on the Notes, except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.11(a) hereof.

5.12 Subsidiary Guarantees.

If, on any date after the Issue Date, any Domestic Restricted Subsidiary that is not already a Guarantor, Guarantees (or otherwise becomes liable for) any Obligations under any Credit Agreement, then, within 20 Business Days after such date, such Domestic Restricted Subsidiary will unconditionally Guarantee the Notes and concurrently become a Guarantor by executing a Subsidiary Guarantee (or joinder thereto) in substantially the form specified in Annex D hereto. Each Subsidiary Guarantee of a Guarantor will be released automatically at such time as such Guarantor is discharged or otherwise released from all its Obligations in respect of its Guarantee of (or other liability for) any Obligations under any Credit Facility; provided that such discharge or other release did not result directly from payment by such Guarantor in satisfaction of (a) its liability as a guarantor pursuant to such Guarantee, or (b) its primary liability for such Obligations (after demand or default under such Credit Facility).

5.13 Designation of Restricted and Unrestricted Subsidiaries.

The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 5.5 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.

Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced by a resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate delivered to the Holders certifying that such designation complied with the preceding conditions and was permitted by Section 5.5 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and the Notes and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 5.7 hereof, the Company will be in default of such Section 5.7. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 5.7 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

5.14 Minimum Cash Equivalents.

The Company will not have less than $1.0 million in Cash Equivalents on hand for a period of 30 consecutive calendar days.

5.15 Taxes.

The Company shall, and shall cause the Restricted Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges or levies and (2) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a lien upon the property of the Company or any Restricted Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge, levy or claim (a) whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which reserves have been established in accordance with GAAP or (b) where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

5.16 Corporate Existence.

Subject to Section 5.11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its company existence, and the corporate, limited liability company, partnership or other existence of the Restricted Subsidiaries, in accordance with their respective organizational documents (as the same may be amended from time to time), and (ii) its (and the Restricted Subsidiaries’) rights (charter and statutory), licenses and franchises; provided that the Company shall not be required to preserve any such right, license or franchise, if the Board of Directors of the Company on behalf of the Company shall determine in good faith that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries considered as a single enterprise and that the loss thereof is not adverse in any material respect to the Holders.

5.17 Limitation on Business.

The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than Permitted Business, except to such extent as would not be material to the Company and its Restricted Subsidiaries considered as a single enterprise.

5.18 Maintenance of Properties.

The Company shall, and shall cause each of the Restricted Subsidiaries to, maintain their properties and assets in normal working order and condition (reasonable wear and tear excepted) and make all necessary repairs, renewals, replacements, additions, betterments and improvements thereto, as shall be reasonably necessary for the proper conduct of the business of the Company and the Restricted Subsidiaries taken as a whole; provided that nothing herein shall prevent the Company or any of the Restricted Subsidiaries from discontinuing any maintenance of any such properties or assets if (i) the Company determines that such discontinuance is desirable in the conduct of the business of the Company and the Restricted Subsidiaries considered as a single enterprise or (ii) in connection with or related to any disposition of property or assets the Company or a Restricted Subsidiary determines is no longer needed for the conduct of the business of the Company or such Restricted Subsidiary.

5.19 Maintenance of Insurance.

The Company shall, and shall cause the Restricted Subsidiaries to, maintain liability, casualty and other insurance with a reputable insurer or insurers in such amounts and against such risks as is carried by responsible companies engaged in similar businesses and owning similar assets.

SECTION 6. REDEMPTION.

6.1 Optional Redemption.

The Company may, in its sole discretion, redeem all or any amount of the Notes outstanding, in whole or in part, at any time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest on the Notes to be redeemed to the Redemption Date; provided that the Redemption Price shall be payable by the Company in cash, or in the case of redemption of Notes held by any Holder that has provided written notice to the Company at least two Business Days prior to the applicable Redemption Date of its election to receive the Redemption Price for its Notes in the form of Common Stock, in the form of a number of shares of Common Stock equal to the quotient of (a) the Redemption Price payable for such Notes being redeemed divided by (b) the Daily VWAP for the 30 trading days immediately preceding the second Business Day preceding the Redemption Date; provided, further, that in the event of a redemption of Notes, upon payment of the redemption price (whether in cash or Common Stock, the Company shall issue to each Holder of the Notes being redeemed a number of warrants (pursuant to the Warrant Agreement and having an exercise price equal to the Conversion Price of such Notes in effect immediately prior to such redemption) equal to the number of shares of Common Stock that such Holder would receive if such Holder were to convert such Notes in full on the Redemption Date pursuant to Section 8 hereof; provided, further, that the Company shall not redeem Notes pursuant to this Section 6.1 unless the Company has on file with the SEC an effective registration statement under the Securities Act registering the resale of the shares of Common Stock issuable upon conversion of the Notes and exercise of the warrants by each Holder that has, after written request from the Company, provided information pertaining to such shares of Common Stock required to be included in such registration statement in order for such Holder to sell such shares of Common Stock thereunder.

6.2 Selection of Notes to Be Redeemed.

If fewer than all of the Notes are to be redeemed, the Company shall redeem the Notes pro rata, in such manner as complies with applicable legal requirements, if any. Notes in denominations of $1,000 may be redeemed only in whole. The Company may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of Notes that have denominations larger than $1,000. Provisions of this Agreement that apply to Notes called for redemption also apply to portions of Notes called for redemption.

6.3 Notice of Redemption.

At least thirty (30) days but not more than sixty (60) days before any Redemption Date, the Company shall mail a notice of redemption (“Notice of Redemption”) by first-class mail to each Holder whose Notes are to be redeemed at such Holder’s registered address. Each Notice of Redemption shall identify the Notes to be redeemed and shall state:

(a) the Redemption Date;

(b) the Redemption Price;

(d) that Notes called for redemption must be surrendered to the Company to collect the Redemption Price;

(e) that, unless the Company defaults in making the Redemption Price, interest on Notes called for redemption ceases to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Company of the Notes redeemed;

(f) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, and upon surrender of such Note, a new Note or Notes in aggregate principal amount equal to the unredeemed portion thereof will be issued; provided, however, that any portion of a Note redeemed by the Company and any new Note issued to the Holder in respect of the unredeemed portion thereof shall be in the principal amount of $1,000 or an integral multiple thereof;

(g) if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion(s) thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Note(s) to be outstanding after such partial redemption; and

(h) the paragraph of the Notes pursuant to which the Notes are to be redeemed.

6.4 Effect of Notice of Redemption.

Once Notice of Redemption is mailed in accordance with Section 6.3 above, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price.

6.5 Payment of Redemption Price.

On presentation and surrender of any Notes with respect to which a notice of redemption has been given, at a place of payment specified in such notice, such Notes or specified portions thereof shall be paid and redeemed by the Company at the applicable Redemption Price.

If, on or prior to the Redemption Date, the Company deposits in a segregated account or otherwise sets aside funds sufficient to pay the Redemption Price of the Notes called for redemption, then, unless the Company defaults in the payment of such Redemption Price, interest on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, regardless of whether such Notes are presented for payment.

6.6 Purchase at the Option of Holders Upon a Fundamental Change

(a) Fundamental Change Purchase Option. If a Fundamental Change occurs at any time, then each Holder of Notes shall have the right, at such Holder’s option, to require the Company to purchase for cash any or all of such Holder’s Notes, or any portion of the principal amount thereof, that is equal to $1,000 or a multiple of $1,000, on a date specified by the Company that is no earlier than the 20th calendar day following the date of, and no later than the 35th calendar day following the date of, delivery of the Fundamental Change Company Notice (the “Fundamental Change Purchase Date”), at a purchase price equal to 101% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”); provided, however, that if a Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which such Regular Record Date relates, the interest payable in respect of such Interest Payment Date shall be payable to the Holders of record as of the corresponding Regular Record Date and the Fundamental Change Purchase Price shall be equal to 101% of the principal amount of the Notes to be purchased pursuant to this Section 6. The requirement for the Company to purchase any Notes on the Fundamental Change Purchase Date will be subject to extension to comply with applicable law.

Purchases of Notes under this Section shall be made, at the option of the Holder thereof, upon:

(i) delivery to the Company by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note, prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date; and

(ii) delivery of the Notes to the Company (together with all necessary endorsements for transfer), or book-entry transfer of the Notes, in compliance with the procedures of the Company, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.

The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:

(i) the certificate numbers of such Notes;

(ii) the portion of the principal amount of such Notes, which must be $1,000 or a multiple thereof; and

(iii) that such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and this Agreement.

Notwithstanding anything herein to the contrary, any Holder delivering to the Company the Fundamental Change Purchase Notice contemplated by this Section 6.6 shall have the right to withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Company in accordance with Section 6.8 below.

(b) Fundamental Change Company Notice. On or before the 20th calendar day after the occurrence of a Fundamental Change, the Company shall provide to all Holders a notice (the “Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders arising as a result thereof. Such notice shall be sent by first class mail. Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in New York, New York or shall publish such information on the Company’s website or through such other public medium as the Company may use at such time. Each Fundamental Change Company Notice shall specify:

(i) the events causing a Fundamental Change;

(ii) the date of the Fundamental Change;

(iii) the last date on which a Holder of Notes may exercise the repurchase right pursuant to this Section 6;

(iv) the Fundamental Change Purchase Price;

(v) the Fundamental Change Purchase Date;

(vi) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;

(vii) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with this Agreement; and

(viii) the procedures that Holders must follow to require the Company to purchase their Notes.

No failure of the Company to give the foregoing notices and no defect therein shall limit the purchase rights of the Holders of Notes or affect the validity of the proceedings for the purchase of the Notes pursuant to this Section 6.6.

(c) No Payment During Events of Default. There shall be no purchase of any Notes pursuant to this Section 6.6 if there has occurred and is continuing an Event of Default with respect to the Notes (other than an Event of Default that is cured by the payment of the Fundamental Change Purchase Price of the Notes). The Company will promptly return to the respective Holders thereof any Notes held by it during the continuance of an Event of Default (other than an Event of Default that is cured by the payment of the Fundamental Change Purchase Price with respect to the Notes) and shall deem canceled any instructions for book-entry transfer of the Notes, in which case, upon such return and cancelation, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

6.7 Effect of Fundamental Change Purchase Notice.

Upon receipt by the Company of the Fundamental Change Purchase Notice specified in Section 6.6 hereof, the Holder of the Notes in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 6.8 hereof) thereafter be entitled to receive solely the Fundamental Change Purchase Price in cash with respect to such Note. Such Fundamental Change Purchase Price shall be paid to such Holder, on the later of (x) the Fundamental Change Purchase Date with respect to such Notes (provided, the conditions in Section 6.6 hereof have been satisfied) and (y) the time of delivery or book-entry transfer of such Note to the Company by the Holder thereof in the manner required by Section 6.6 hereof.

6.8 Withdrawal of Fundamental Change Purchase Notice

A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Company in accordance with the Fundamental Change Company Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, specifying:

(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;

(ii) the certificate numbers of the withdrawn Notes; and

(iii) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000.

The Company will promptly return to the respective Holders thereof any Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 6.8.

6.9 Notes Purchased in Whole or in Part

Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the office of the Company and the Company shall execute and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Notes so surrendered that is not purchased.

6.10 Covenant to Comply With Applicable Laws Upon Purchase of Notes

In connection with any offer to purchase Notes under Section 6.6 hereof, the Company shall, in each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required schedule under the Exchange Act and (iii) otherwise comply with all federal and state securities laws so as to permit the rights and obligations under Section 6.6 to be exercised in the time and in the manner specified in Section 6.6.

SECTION 7. DEFAULTS AND REMEDIES.

7.1 Events of Default.

An “Event of Default” occurs if:

(a) the Company defaults in the payment of the principal of or premium, if any, on any Note when the same becomes due and payable at maturity, upon redemption or otherwise (including, without limitation, the failure to make a payment to purchase Notes tendered pursuant to an Asset Sale Offer);

(b) the Company defaults in the payment of interest on any Note or any other amount payable hereunder when the same becomes due and payable and the Default continues for a period of thirty (30) days (it being understood that making a PIK Interest Payment in accordance with the provisions of Section 1 of the Notes shall not constitute any Event of Default under this paragraph (b));

(c) the Company fails to comply with any of the covenants set forth in Section 5, 6 or 8 of this Agreement or the Notes and the Default under this clause (c) continues for the period and after the notice specified below;

(d) this Agreement or the Notes become unenforceable;

(e) if (i) the Company or any of its Subsidiaries defaults in the payment of principal or interest payments under any loan agreement, note, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any other Indebtedness of the Company or any of its Subsidiaries for borrowed money (or the payment of which is guaranteed by the Company or any of its Subsidiaries), whether such indebtedness or guarantee now exists or shall be created hereafter, and the principal amount of such indebtedness, together with the principal amount of any other such indebtedness for which there is a default in the payment of interest, premium, if any, or principal, aggregates $10.0 million or more, or (ii) an event of default occurs under any loan agreement, note, mortgage, indenture or instrument which shall represent a default in payment upon final maturity or otherwise result in the acceleration of such indebtedness prior to its expressed maturity and the principal amount of such indebtedness, together with the principal amount of any other such indebtedness with respect to which there has been a default in payment upon final maturity or the maturity of which has been so accelerated and has not been paid, aggregates $10.0 million or more;

(f) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any Subsidiary of the Company and such remains undischarged for a period (during which execution shall not be effectively stayed) of thirty (30) days, provided that the aggregate of all such judgments exceeds $10.0 million;

(g) the filing by the Company or any of its Subsidiaries (any such person, a “Debtor”) of a petition commencing a voluntary case under section 301 of title 11 of the United States Code, or the commencement by a Debtor of a case or proceeding under any other Bankruptcy Law seeking the adjustment, restructuring, or discharge of the debts of such Debtor, or the liquidation of such Debtor, including without limitation the making by a Debtor of an assignment for the benefit of creditors; or the taking of any corporate action by a Debtor in furtherance of or to facilitate, conditionally or otherwise, any of the foregoing;

(h) the filing against a Debtor of a petition commencing an involuntary case under section 303 of title 11 of the United States Code, with respect to which case (a) such Debtor consents or fails to timely object to the entry of, or fails to seek the stay and dismissal of, an order of relief, (b) an order for relief is entered and is pending and unstayed on the 60th day after the filing of the petition commencing such case, or if stayed, such stay is subsequently lifted so that such order for relief is given full force and effect, or (c) no order for relief is entered, but the court in which such petition was filed has not entered an order dismissing such petition by the 60th day after the filing thereof; or the commencement under any other Bankruptcy Law of a case or proceeding against a Debtor seeking the adjustment, restructuring, or discharge of the debts of such Debtor, or the liquidation of such Debtor, which case or proceeding is pending without having been dismissed on the 60th day after the commencement thereof;

(i) the entry by a court of competent jurisdiction of a judgment, decree or order appointing a receiver, liquidator, trustee, custodian or assignee of a Debtor or of the property of a Debtor, or directing the winding up or liquidation of the affairs or property of a Debtor, and (a) such Debtor consents or fails to timely object to the entry of, or fails to seek the stay and dismissal of, such judgment, decree, or order, or (b) such judgment, decree or order is in full force and effect and is not stayed on the 60th day after the entry thereof, or, if stayed, such stay is thereafter lifted so that such judgment, decree or order is given full force and effect;

(j) failure by the Company to comply with its obligation to convert any Note in accordance with this Agreement upon exercise of a Holder’s conversion right in accordance with Section 8 hereof;

(k) at any time prior to the first anniversary of the Issue Date, the representation set forth in Section 3.19 proves to have been false on the date as of which made and the Default under this clause (k) continues for the period and after the notice specified below and the result thereof is a Material Adverse Effect;

The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

A Default under clause (c) of this Section 7.1 shall be an Event of Default without any notice or passage of time in the case of a breach of any of Sections 5.8 or 5.11 and in the case of any other agreement, covenant or provision of this Agreement or the Notes, when the Holders of 25% of the aggregate principal amount of the then outstanding Notes notify the Company of the Default and the Company does not cure the Default within thirty (30) days after receipt of the notice. A Default under clause (e) of this Section 7.1 (other than a Default resulting from the acceleration of any indebtedness described therein, which Default shall be an Event of Default without the notice specified in this paragraph) shall not be an Event of Default until the Holders of 25% of the aggregate principal amount of the then outstanding Notes notify the Company of the Default. A Default under clause (k) of this Section 7.1 shall be an Event of Default, when the Holders of 25% of the aggregate principal amount of the then outstanding Notes notify the Company of such Default and the Company does not cure the Default within thirty (30) days after receipt of the notice. Each notice referred to in this paragraph must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.”

7.2 Acceleration of Notes; Remedies.

Subject to the following paragraph, if an Event of Default (other than an Event of Default specified in clause (g), (h) or (i) of Section 7.1) occurs and is continuing, the Holders of 25% of the aggregate principal amount of the then outstanding Notes, by notice to the Company, may declare the unpaid principal of and any accrued and unpaid interest on all the Notes to be due and payable, and immediately upon such declaration, the principal and accrued but unpaid interest shall be due and payable. If an Event of Default specified in clause (g), (h) or (i) of Section 7.1 occurs, such an amount shall ipso facto become and be immediately due and payable without any declaration or other act on the part of any Holder.

The Majority Holders, by notice to the Company, may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration.

7.3 Other Remedies.

If an Event of Default occurs and is continuing, Holders of the Notes may pursue any available remedy to collect the payment of principal or interest on the Notes or to enforce the performance of any provision of the Notes or this Agreement.

A delay or omission by any Holder of any Notes in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

7.4 Waiver of Past Defaults.

The Majority Holders, by notice to the Company, may waive an existing Default or Event of Default and its consequences except a continuing Default or Event of Default in the payment of the principal of or interest on any Notes.

7.5 Rights of Holders to Receive Payment.

Notwithstanding any other provision of this Agreement, the right of any Holder of a Note to receive payment of principal and interest on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of the Holder.

7.6 Undertaking for Costs.

In any suit for the enforcement of any right or remedy under this Agreement, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.

SECTION 8. Conversion

8.1 Right to Convert.

Subject to and upon compliance with the provisions of this Agreement, each Holder of Notes shall have the right, at such Holder’s option, to convert the principal amount of any such Notes, or any portion of such principal amount equal to $1,000 or a multiple of $1,000 thereof, at the Conversion Rate in effect on the Conversion Date for such Notes.

8.2 Conversion Procedures; Settlement Upon Procedure.

Subject to this Section 8.2 and Section 8.5, upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, shares of Common Stock (“Settlement”).

(a) The shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, together with cash in lieu of fractional shares as set forth in Section 8.2(l);

(b) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Holders of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock.

(d) In order to exercise the conversion privilege with respect to any interest in any Note, the Holder must complete the appropriate instruction form for conversion attached to the Note, furnish appropriate endorsements and transfer documents if required by the Company, and pay the funds, if any, required by Section 8.2(i) and any taxes or duties if required pursuant to Section 8.7. In order to exercise the conversion privilege with respect to any Notes, the Holder of any such Notes to be converted, in whole or in part, shall:

(i) complete and manually sign the conversion notice provided on the back of the Note (the “Conversion Notice”) or a facsimile of the Conversion Notice;

(ii) deliver the Conversion Notice, which is irrevocable, and the Note to the Company;

(iii) if required, furnish appropriate endorsements and transfer documents,

(iv) make any payment required under Section 8.2(d); and

(v) if required, pay all transfer or similar taxes as set forth in Section 8.7.

The date on which the Holder satisfies all of the applicable requirements set forth above is the Conversion Date (the “Conversion Date”). Except as set forth in Section 8.5, the Company shall pay or deliver, as the case may be, the consideration due in respect of any conversion of the Notes on the third Business Day immediately following the relevant Conversion Date. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Company for the full number of shares of Common Stock to which such Holder shall be entitled.

(e) Each Conversion Notice shall state the name or names (with address or addresses) in which any certificate or certificates for shares of Common Stock which shall be issuable on such conversion shall be issued. All such Notes surrendered for conversion shall, unless the shares issuable on conversion are to be issued in the same name as the registration of such Notes, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the Holder or his duly authorized attorney.

(f) In case any Notes of a denomination greater than $1,000 shall be surrendered for partial conversion, the Company shall execute deliver to the Holder of the Notes so surrendered, without charge, new Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Notes.

(g) Upon the conversion of an interest in any Notes, the Company shall make a notation on such Notes as to the reduction in the principal amount represented thereby.

(h) Notwithstanding the foregoing, a Note in respect of which a Holder has delivered a Fundamental Change Purchase Notice exercising such Holder’s option to require the Company to purchase such Note may be converted only if such notice of exercise is withdrawn in accordance with Section 8 hereof prior to the close of business on the Business Day prior to the relevant Fundamental Change Purchase Date.

(i) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s delivery to the Holder Common Stock into which a Note is convertible shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date (as defined in the Note) notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (2) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.

(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.

(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date.

(l) Solely for purposes of determining the payments and deliveries due upon conversion under this Section 8.2, “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in the Common Stock generally occurs on The NASDAQ Capital Market or, if the Common Stock is not then listed on The NASDAQ Capital Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or traded, “Trading Day” means a Business Day.

8.3 Adjustment of Conversion Rate.

The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company will not make any adjustment to the Conversion Rate if Holders of Notes participate at the same time and on the same terms as holders of Common Stock and solely, as a result of holding the Notes, in any of the transactions described under Section 8.3(a) (but only with respect to stock dividends or distributions), Section 8.3(b), Section 8.3(c), and Section 8.3(d), at the same time as holders of the Common Stock participate, without having to convert their Notes as if such Holders held a number of shares of Common Stock equal to (i) the Conversion Rate in effect for such Notes immediately prior to the Ex-Dividend Date for such event multiplied by (ii)(x) the principal amount of Notes held by such a Holder divided by (y) $1,000.

(a) If the Company issues shares of its Common Stock as a dividend or distribution on shares of Common Stock, or if the Company effects a share split or share combination, then the Conversion Rate shall be adjusted based on the following formula:

where

CR₀	=	The Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable;
CR₁	=	The Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or such effective date;
OS₀	=	The number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or such effective date; and
OS₁	=	The number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution or the effective date for such share split or share combination. If any dividend or distribution of the type described in this Section 8.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.

(b) If the Company issues to all or substantially all holders of the Common Stock any rights or warrants entitling them for a period of not more than 60 calendar days after the announcement date of such issuance to subscribe for or purchase shares of the Common Stock at a price per share less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be adjusted based on the following formula:

where

CR₀	=	The Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR₁	=	The Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS₀	=	The number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X	=	The total number of shares of Common Stock issuable pursuant to such rights or warrants; and
Y	=	The number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights or warrants.

To the extent such rights or warrants are not exercised prior to their expiration or termination, the Conversion Rate shall be readjusted to the Conversion Rate that would be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. For the purposes of this Section 8.3(b), in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on the exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors.

(c) If the Company distributes shares of any class of Capital Stock of the Company, evidences of its indebtedness, other assets or property of the Company or rights or warrants to acquire the Company’s Capital Stock or other securities to all or substantially all holders of its Common Stock, excluding:

(i) dividends or distributions and rights or warrants as to which an adjustment was effected pursuant to Section 8.3(a) or Section 8.3(b);

(ii) dividends or distributions paid exclusively in cash; and

(iii) Spin-Offs to which the provisions set forth below in this Section 8.3(c) shall apply;

then the Conversion Rate shall be adjusted based on the following formula:

where

CR₀	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR₁	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP₀	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV	=	the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights or warrants distributed with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If the Company’s Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 8.3(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the average of the Last Reported Sale Prices of the Common Stock. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP₀” (as defined above), in lieu of the foregoing adjustment, each Holder shall receive, in respect of each $1,000 principal amount of its Notes at the same time and upon the same terms as holders of the Common Stock, the amount and kind of securities, assets and other property such Holder would have received if such Holder owned on the relevant Regular Record Date for such distribution a number of shares of Common Stock equal to the Conversion Rate in effect on such Regular Record Date for the distribution of the securities or assets.

With respect to an adjustment pursuant to this Section 8.3(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit and such dividend or distribution is listed for trading on a securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:

where

CR0	=	the Conversion Rate in effect immediately prior to the end of the Valuation Period (as defined below);
CR1	=	the Conversion Rate in effect immediately after the end of the Valuation Period;
FMV0	=	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0	=	the average of the Last Reported Sale Prices of Common Stock over the Valuation Period.

The adjustment to the Conversion Rate under the preceding paragraph will occur on the last day of the Valuation Period; provided, that in respect of any conversion during the Valuation Period, references above to ten Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the applicable Conversion Rate; provided further that if the Ex-Dividend Date for the Spin-Off is less than 10 consecutive Trading Days before, and including, the end of the Observation Period in respect of any conversion, references in this clause (c) related to Spin-Offs to 10 consecutive Trading Days shall be deemed replaced, for purposes of calculating the Daily Conversion Values or Daily Settlement Amounts in respect of that conversion, with such lesser numbers of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of such Observation Period.

(d) If the Company pays any cash dividend or distribution to all or substantially all holders of Common Stock, the Conversion Rate shall be adjusted based on the following formula:

where

CR₀	=	The Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
CR₁	=	The Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP₀	=	The Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
C	=	The amount in cash per share the Company distributes to holders of the Common Stock

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP₀” (as defined above), in lieu of the foregoing adjustment, each Holder of Notes shall receive, in respect of each $1,000 principal amount of its Notes at the same time and upon the same terms as holders of the Common Stock, the amount of the cash dividend or distribution such Holder would have received if such Holder owned on the relevant Regular Record Date for such dividend or distribution a number of shares of Common Stock equal to the Conversion Rate in effect on such Regular Record Date.

(e) If the Company or any of its Subsidiaries make a payment in respect of a tender offer or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:

where

CR₀	=	the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires;
CR₁	=	the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires;
AC	=	the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for shares purchased in such tender or exchange offer;
OS₀	=	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires;
OS₁	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and
SP₁	=	the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires.

The adjustment to the Conversion Rate under this Section 8.2(c) will be determined immediately after the close of business on the Trading Day next succeeding the date such tender or exchange offer expires, but will be given effect immediately after the open of business on such Trading Day.

(f) If the Company issues shares of Common Stock for a consideration per share less than the Specified Value per share on the date the Company fixes the offering price of such additional shares, the Conversion Rate shall be adjusted in accordance with the following formula:

where:

CR₁	=	the adjusted Conversion Rate.
CR₀	=	the Conversion Rate immediately prior to any such issuance.
OS₀	=	the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares of Common Stock.
AC	=	the aggregate consideration received for the issuance of such additional shares of Common Stock.
SV₁	=	the Specified Value per share of Common Stock on the date of issuance of such additional shares of Common Stock.
	=	the number of shares of Common Stock outstanding immediately after the issuance of such additional shares of Common Stock.

This Subsection 8.3(f) shall not apply to any of the transactions for which an adjustment has been made pursuant to other provisions of this Section 8.3.

“Specified Value” per share of Common Stock or per unit or share of any other security (herein collectively referred to as a “Security”) at any date shall be:

(i) if the Security is not registered under the Exchange Act, (1) the value of the Security determined in good faith by the Board of Directors of the Company and certified in a board resolution, based on the most recently completed arm’s-length transaction between the Company and a person other than an Affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, (2) if no such transaction shall have occurred on such date or within such six-month period, the value of the Security most recently determined as of a date within the six months preceding such date by an Independent Financial Expert or (3) if neither clause (1) nor (2) is applicable, the value of the Security as mutually agreed by the Company and Holders of a majority of the warrants outstanding; provided, however, that if the Company and such Holders are unable to mutually agree upon such value, the Company shall select an Independent Financial Expert who shall determine the value of such Security;

(ii) if the Security is registered under the Exchange Act, the average of the daily market prices (as hereinafter defined) for each business day during the period commencing 10 Business Days before such date and ending on the date one day prior to such date or, if the Security has been registered under the Exchange Act for less than 30 consecutive business days before such date, then the average of the daily market prices for all of the business days before such date for which daily market prices are available. If the market price is not determinable for at least 15 Business Days in such period, the Specified Value of the Security shall be determined as if the Security was not registered under the Exchange Act; or

(iii) if the Security is registered under the Exchange Act and is being sold in a firm commitment underwritten public offering registered under the Securities Act, the public offering price of such Security set forth on the cover page of the prospectus relating to such offering.

The “market price” for any Security on each business day means: (A) if such Security is listed or admitted to trading on any securities exchange, the closing price, regular way, on such day on the principal exchange on which such Security is traded, or if no sale takes place on such day, the average of the closing bid and asked prices on such day or (B) if such Security is not then listed or admitted to trading on any securities exchange, the last reported sale price on such day, or if there is no such last reported sale price on such day, the average of the closing bid and the asked prices on such day, as reported by a reputable quotation source designated by the Company. If there are no such prices on a Business Day, then the market price shall not be determinable for such Business Day.

In the case of Common Stock, if more than one subclass of Common Stock is outstanding, the “Specified Value” shall be the highest of the Specified Values per share of such subclasses of Common Stock.

“Independent Financial Expert” shall mean a nationally recognized investment banking firm selected by the Company that (i) does not (and whose directors, officers, employees and Affiliates do not) have a direct or indirect financial interest in the Company or any of its Affiliates, (ii) has not been, and, at the time it is called upon to serve as an Independent Financial Expert under this Agreement is not (and none of whose directors, officers, employees or Affiliates is), a promoter, director or officer of the Company, (iii) has not been retained by the Company or any of its Affiliates for any purpose, other than to perform an equity valuation, within the preceding 12 months, and (iv) in the reasonable judgment of the Board of Directors of the Company, is otherwise qualified to serve as an independent financial advisor. Any such person may receive customary compensation and indemnification by the Company for opinions or services it provides as an Independent Financial Expert.

(g) Notwithstanding the above, certain listing standards of The NASDAQ Capital Market may limit the amount by which the Company may increase the conversion rate pursuant to the events described in clauses (b) through (f) in this Section. These standards generally require the Company to obtain the approval of its stockholders before entering into certain transactions that potentially result in the issuance of 20% or more of the Common Stock outstanding on the Issue Date unless the Company obtains stockholder approval of issuances in excess of such limitations. In accordance with these listing standards, these restrictions will apply at any time when the Notes are outstanding, regardless of whether the Company then has a class of securities listed on The NASDAQ Capital Market. Accordingly, in the event of an increase in the Conversion Rate above that which would result in the Notes, in the aggregate, becoming convertible into shares in excess of such limitations, the Company shall, at its discretion, either obtain stockholder approval of such issuances or deliver cash in lieu of any shares otherwise deliverable upon conversions in excess of such limitations based on the daily VWAP on each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section 8.3(g).

(h) The Company from time to time may increase the Conversion Rate by any amount for any period of time of at least 20 Business Days, so long as the Company’s Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to this Section 8.3(h), the Company shall mail to Holders of record of the Notes a notice of the increase at least one day prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

(i) The Company may (but shall not be required to) increase the Conversion Rate, in addition to any adjustments pursuant to Sections 8.3(a) – Section 8.3(f), if the Company’s Board of Directors considers such increase to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or similar event.

(j) All calculations under this Section 8 shall be made by the Company and shall be made to the nearest cent (including, in the case of any adjustment to the Conversion Rate, the resulting adjustment to the Conversion Price) or to the nearest one ten-thousandth of a share. No adjustment shall be required to be made for the Company’s issuance of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or rights to purchase shares of Common Stock or such convertible or exchangeable securities, other than as provided in this Section 8.3 and in Section 8.5 hereof.

(k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly provide to the Holders an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until the Holders shall have received such Officers’ Certificate, the Holders shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to each Holder. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

(l) For purposes of this Section 8.3, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

(m) Notwithstanding anything in this Section 8.3 or any other provision in this Agreement or the Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Regular Record Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 8.2(k) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 8.3, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

(n) Notwithstanding the foregoing, if the application of the foregoing formulas set forth in this Section 8.3 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made (other than as a result of a share combination).

(o) Notwithstanding anything to the contrary in this Section 8, no adjustment to the Conversion Rate shall be made:

(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;

(ii) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries in an amount not to exceed 10.0% of the outstanding shares of Common Stock on the Issue Date;

(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the Issue Date;

(iv) for a change in the par value of the Common Stock; or

(v) for accrued and unpaid interest on the Notes.

(p) The Company shall not be required to make an adjustment in the Conversion Rate unless the adjustment would require a change of at least 1% in the Conversion Rate. However, the Company will carry forward any adjustments that are less than 1% of the Conversion Rate and make such carried forward adjustment, regardless of whether the aggregate adjustment is less than 1%, (i) upon any Conversion Date for any Notes and (ii) on each Trading Day of any Observation Period.

8.4 Certain Other Adjustments.

Whenever a provision of this Agreement requires the calculation of Last Reported Sale Prices or Daily VWAP over a span of multiple days, the Board of Directors will make appropriate adjustments to such Last Reported Sale Prices or Daily VWAP, the Conversion Rate, or the amount due upon conversion to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period from which such Last Reported Sale Prices or Daily VWAP are to be calculated.

8.5 Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.

(a) If any of the following events occur:

(i) any recapitalization or reclassification of, or change in, the Common Stock (other than changes resulting from a subdivision or combination);

(ii) a consolidation, merger or combination involving the Company;

(iii) a sale, lease or other transfer to a third party of the consolidated assets of the Company and its Restricted Subsidiaries substantially as an entirety; or

(iv) any statutory share exchange;

in each case as a result of which the Common Stock would be converted into, or exchanged for, or would be reclassified or changed into, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute an agreement providing that at and after the effective time of such Merger Event, the right to convert a Note will be changed into a right to convert such Note as set forth in this Agreement into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference Property” meaning the type and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 8.2 and (B) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 8.2 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.

If, as a result of the Merger Event, each share of Common Stock is converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (x) the Reference Property into which the Notes will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election, and (y) the unit of Reference Property for purposes of the foregoing sentence shall refer to the consideration referred to in clause (x) attributable to one share of Common Stock. If the holders receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any additional Shares pursuant to Section 8.3), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the conversion obligation by paying cash to converting Holders on the third Business Day immediately following the Conversion Date. The Company shall notify the Holders of such weighted average as soon as practicable after such determination is made.

The Company shall not become a party to any such Merger Event unless its terms are consistent with this Section 8.5. Such agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 8 in the judgment of the Company’s Board of Directors or the Board of Directors of the successor Person. If, in the case of any such recapitalization, reclassification, change, consolidation, merger, combination, sale, lease, other transfer or statutory share exchange, the Reference Property receivable thereupon by a holder of Common Stock includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing Person, as the case may be, in such reorganization, reclassification, change, consolidation, merger, combination, sale, lease, other transfer or statutory share exchange, then such agreement shall also be executed by such other Person. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into shares of Common Stock, as set forth in Section 8.1 and Section 8.2 prior to the effective date of such Merger Event

(b) The Company shall cause notice of the execution of such agreement to be mailed to each Holder, at the address of such Holder as it appears on the register of the Notes maintained by the Company, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such agreement. The above provisions of this Section 8.5 shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 8.5 applies to any Merger Event, Section 8.3 shall not apply.

8.6 Shares to Be Fully Paid.

The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming that at the time of computation of such number of shares, all such Notes would be converted by a single Holder).

8.7 Taxes on Shares Issued.

The Company will pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of shares of Common Stock on conversion of Notes pursuant hereto; provided, however, that if such documentary, stamp or similar issue or transfer tax is due because the Holder of such Notes has requested that shares of Common Stock be issued in a name other than that of the Holder of the Notes converted, then such taxes will be paid by the Holder, and the Company shall not be required to issue or deliver any stock certificate evidencing such shares unless and until the Holder shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.

8.8 Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock.

The Company shall reserve, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to satisfy conversion of the Notes from time to time as such Notes are presented for conversion (assuming that, at the time of the computation of such number of shares or securities, all such Notes would be converted by a single Holder).

The Company covenants that all shares of Common Stock that may be issued upon conversion of Notes shall be newly issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and non-assessable and shall be free from preemptive rights and free from any tax, lien or charge (other than those created by the Holder).

The Company shall list or cause to have quoted any shares of Common Stock to be issued upon conversion of Notes on each national securities exchange or over-the-counter or other domestic market on which the Common Stock is then listed or quoted.

8.9 Notice to Holders Prior to Certain Actions.

In case:

(a) the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Conversion Rate pursuant to Section 8.3; or

(b) the Company shall authorize the granting to the holders of all or substantially all of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants that would require an adjustment in the Conversion Rate pursuant to Section 8.3 or Section 8.9 hereof; or

(c) of any reclassification or reorganization of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale, lease or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries; or

(d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company or any of its Restricted Subsidiaries;

then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Agreement or the Notes), the Company shall cause to be delivered to each Holder at such Holder’s address appearing on the Note Register, as promptly as practicable but in any event at least 10 days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend (or any other distribution) or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights or warrants are to be determined, or (y) the date on which such reclassification, reorganization, consolidation, merger, sale, lease, transfer, dissolution, liquidation or winding up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend (or any other distribution), reclassification, reorganization, consolidation, merger, sale, transfer, dissolution, liquidation or winding up.

SECTION 9. AMENDMENTS AND WAIVERS.

9.1 With Consent of Holders.

The Company, when authorized by a resolution of its Board of Directors, with the written consent of the Majority Holders, may amend this Agreement or the Notes, provided that each Holder shall have received prior notice of such proposed amendment. The Majority Holders may waive compliance by the Company with any provision of this Agreement or the Notes, provided that each Holder shall have received prior notice of such proposed waiver. Without the consent of each Holder affected, however, no amendment or waiver may (with respect to any Notes held by a nonconsenting Holder of Notes):

(a) reduce the principal amount of Notes whose Holders must consent to an amendment or waiver of any provision of this Agreement or the Notes;

(b) reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to the redemption of Notes, reduce the purchase price payable in connection with repurchases of the Notes pursuant to Section 5.8;

(d) waive a Default or an Event of Default in the payment of principal of or premium, if any, or interest on the Notes or that resulted from a failure to comply with Section 5.8(except a rescission of acceleration of the Notes by the Majority Holders and a waiver of the payment default that resulted from such acceleration);

(e) make the principal of, premium, if any, or the interest on, any Note payable in any manner other than that stated in this Agreement and the Notes;

(f) make any change in the provisions of this Agreement relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, premium (if any) or interest on the Notes;

(g) waive the payment of the Redemption Price with respect to any Note;

(h) make any change that adversely affects the conversion rights of any Holder; or

(i) make any change in the foregoing amendment and waiver provisions.

It shall not be necessary for the consent of the Holders under this Section 9 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

After an amendment or waiver under this Section 9 becomes effective, the Company shall provide to the Holders affected thereby a notice briefly describing the amendment or waiver. Any failure of the Company to provide such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment or waiver. The Company shall provide a copy of such amendment or waiver upon request by any Holder.

In connection with any amendment under this Section 9, the Company may offer, but shall not be obligated to offer, to any Holder who consents to such amendment or waiver, consideration for such Holder’s consent.

9.2 Revocation and Effect of Consents.

Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice the Company received before the date on which the Majority Holders have consented (and not theretofore revoked such consent) to the amendment or waiver.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment or waiver, which record date shall be at least thirty (30) days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to revoke any consent previously given, regardless of whether such persons continue to be Holders after such record date. No such consent shall be valid or effective for more than ninety (90) days after such record date.

After an amendment or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (a) through (h) of Section 9.1, in which case, the amendment or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of, premium (if any) and interest on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver, consent or amendment, Notes owned by the Company or any Affiliate of the Company shall be considered as though not outstanding.

9.3 Notation on or Exchange of Notes.

If an amendment or waiver changes the terms of a Note, the Company may require the Holder of the Note to deliver it to the Company so that it may place an appropriate notation on the Note that reflects the amendment or waiver and return it to the Holder.

9.4 Payment of Expenses.

The Company shall pay or reimburse each Purchaser’s out-of-pocket expenses (including the reasonable fees and expenses of counsel) relating to any amendment or modification of, or any waiver or consent under, this Agreement and the Notes.

SECTION 10. DEFINITIONS.

10.1 Definitions.

As used in this Agreement, the following terms shall have the following meanings:

“Account Manager” means each Purchaser, if any, duly authorized to act as attorney in-fact on behalf of any Person in purchasing, in the name of and using funds provided by such Person, Notes hereunder.

“Acquired Debt” means, with respect to any specified Person:

(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, regardless of whether such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person, but excluding Indebtedness which is extinguished, retired or repaid in connection with such Person merging with or becoming a Subsidiary of such specified Person; and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

“Acquired Subordinated Indebtedness” means Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, that is Acquired Debt and was not incurred in connection with, or in contemplation of, another Person merging with or into, or becoming a Restricted Subsidiary of, the Company or any of its Subsidiaries.

“Affiliate” means, with respect to any referenced Person, a Person (i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such referenced Person, (ii) which directly or indirectly through one or more intermediaries beneficially owns or holds 10% or more of the combined voting power of the total Voting Securities of such referenced Person or (iii) of which 10% or more of the combined voting power of the total Voting Securities directly or indirectly through one or more intermediaries is beneficially owned or held by such referenced Person or a Subsidiary of such referenced Person. When used herein without reference to any Person, Affiliate means an Affiliate of the Company. For purposes of this definition, “control” when used with respect to any person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of Voting Securities, by agreement or otherwise; and the terms “affiliated,” “controlling” and “controlled” have meanings correlative to the foregoing. Notwithstanding the foregoing, for purposes of this Agreement, the Purchasers and their Affiliates shall not be considered Affiliates of the Company or any of its Subsidiaries.

“Affiliate Transaction” has the meaning given to such term in Section 5.9.

“Agreement” means this Note Purchase Agreement dated as of July 1, 2020, by and among the Company and the Purchasers.

“Asset Sale” means:

(1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries considered as a single enterprise will be governed by the provisions Section 5.11 hereof and not by Section 5.8; and

(2) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any of its Subsidiaries.

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $5.0 million;

(2) a transfer of assets between or among the Company and its Restricted Subsidiaries;

(3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;

(4) the sale, lease or other disposition of (a) products, services, inventory or accounts receivable in the ordinary course of business or (b) equipment or other assets pursuant to a program for the maintenance or upgrading of such equipment or assets, including, without limitation, the disposition of either obsolete equipment or equipment that is damaged or worn out;

(5) the sale or other disposition of cash or Cash Equivalents;

(6) a surrender or waiver of contract rights or settlement, release or surrender of contract, tort or other claims in the ordinary course of business or a grant of a Lien not prohibited by this Agreement;

(7) a Restricted Payment that does not violate Section 5.5, including the issuance or sale of Equity Interests or the sale, lease or other disposition of products, services, equipment, inventory, accounts receivable or other assets pursuant to any such Restricted Payment;

(8) the consummation of a Permitted Investment, including, without limitation, the issuance or sale of Equity Interests or the sale, lease or other disposition of products, services, equipment, inventory, accounts receivable or other assets pursuant to any such Permitted Investment;

(9) the creation or perfection of a Permitted Lien and the exercise by any Person in whose favor a Permitted Lien is granted of any of its rights in respect of that Permitted Lien, so long as no Default has occurred or is continuing as a result thereof; and

(10) the conveyance, licensing or sublicensing of intellectual property rights, airspace rights, rights of way and other similar rights, in each case, that does not materially interfere with the business of the Company and its Restricted Subsidiaries.

“Asset Sale Offer” shall have the meaning set forth in Section 5.8(a).

“Board of Directors” means, as to any Person, the board of directors of such Person or any duly authorized committee thereof.

“Business Day” means any day which is not a Legal Holiday.

“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

“Capital Stock” means:

(1) in the case of a corporation, corporate stock;

(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, regardless of whether such debt securities include any right of participation with Capital Stock.

“Cash Equivalents” means:

(1) United States dollars;

(2) Government Securities having maturities of not more than one year from the date of acquisition;

(3) marketable general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating of “A” or better from either S&P or Moody’s;

(4) certificates of deposit, demand deposit accounts and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better;

(5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) and (4) above entered into with any financial institution meeting the qualifications specified in clause (4) above;

(6) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within one year after the date of acquisition; and

(7) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (6) of this definition.

“Charter Documents” means the Articles of Incorporation or Certificate of Incorporation and Bylaws (or any similar organizational documents), as amended or restated (or both) to date, of the Company, or any of their respective Subsidiaries, as applicable.

“Closing” has the meaning given to such term in Section 1.2(b).

“Closing Date” has the meaning given to such term in Section 1.2(b).

“Common Stock” means the common stock, par value $0.0001 per share, of the Company.

“Consolidated” or “consolidated,” when used with reference to any accounting term, means the amount described by such accounting term, determined on a consolidated basis in accordance with GAAP, after elimination of intercompany items.

“Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(1) any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent deducted in computing such Consolidated Net Income; plus

(2) all extraordinary, unusual or non-recurring items of loss or expense to the extent deducted in computing such Consolidated Net Income; plus

(3) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(4) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

(5) depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period, to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; plus

(6) all non-cash charges related to restricted stock and redeemable stock interests granted to officers, directors and employees, to the extent deducted in computing such Consolidated Net Income; plus

(7) for any acquisitions which are consummated on or after the Issue Date, add-backs calculated in accordance with the provisions of clause (1) of the definition of “Fixed Charge Coverage Ratio”; plus

(8) non-cash charges for accretion on closure and post-closure obligations; plus

(11) non-cash charges (or minus non-cash benefits, if applicable) reflecting the adoption of SFAS No. 123 (and all amendments thereto); minus

(12) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP.

“Consolidated Net Funded Debt” means, as of any date of determination, the greater of (a) zero and (b) total of (i) all Funded Debt of the Company and its Restricted Subsidiaries outstanding on such date, after eliminating all offsetting debits and credits between the Company and its Restricted Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Company and its Restricted Subsidiaries in accordance with GAAP minus (ii) the sum, without duplication, of all Cash Equivalents held by the Company or any of its Restricted Subsidiaries on such date.

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

(2) the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders; provided, however, that the operation of this clause (2) shall be suspended with respect to any Restricted Subsidiary that is acquired by the Company or any of its Subsidiaries (regardless of whether such acquisition is effected pursuant to a merger or otherwise), but such suspension shall cease immediately after the first six months following such acquisition;

(3) the cumulative effect of a change in accounting principles will be excluded;

(4) any non-cash mark-to-market adjustments to assets or liabilities resulting in unrealized gains or losses in respect of Hedging Obligations (including those resulting from the application of SFAS No. 133) shall be excluded;

(5) all non-cash charges related to restricted stock and redeemable stock interests granted to officers, directors and employees, shall be excluded;

(6) any charges associated with any write-down, amortization or impairment of goodwill or other tangible or intangible assets shall be excluded; and

(7) to the extent deducted in the calculation of Net Income, any non-cash or nonrecurring charges associated with any premium or penalty paid, write-off of deferred financing costs or other financial recapitalization charges in connection with redeeming or retiring any Indebtedness will be excluded.

“Consolidated Net Worth” with respect to any Person, means, as at any date of determination, the sum of (i) the consolidated equity of the common stockholders of such Person and its consolidated Subsidiaries determined in accordance with GAAP plus (ii) the respective amounts reported on such Person’s most recent balance sheet with respect to any series of preferred stock (other than Disqualified Stock) that by its terms is not entitled to the payment of dividends unless such dividends may be declared and paid only out of net earnings in respect of the year of such declaration and payment, but only to the extent of any cash received by such Person upon issuance of such preferred stock, provided that the consolidated net worth of any Person shall exclude the effect of any non-cash charges relating to the acceleration of stock options or similar securities of such Person or another Person with which such Person is merged or consolidated; provided further that for purposes of calculating consolidated equity of the common stockholders all liabilities in respect of Permitted Public Finance Instruments and the Johnson Controls Agreement shall not be included as a liability (regardless of GAAP).

“Consolidated Tangible Assets” means, with respect to any Person as of any date, the amount which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries, less all goodwill, patents, tradenames, trademarks, copyrights, customer contracts, customer lists, covenants not to compete, organization expenses and any other amounts classified as intangible assets in accordance with GAAP.

“Conversion Price” means, in respect of each Note, as of any date, $1,000, divided by the Conversion Rate as of such date.

“Conversion Rate” means 86.9565 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein; provided that if the Last Reported Sale Price of the Common Stock is less than or equal to $6.00 for any 10 Trading Days within any 30 Trading Day period preceding the Maturity Date, then the Conversion Rate shall be adjusted to a number of shares of Common Stock equal to the Conversion Rate in effect immediately prior to such adjustment multiplied by 1.6667, subject to further adjustment as set forth herein.

“Converting Founders” means the holders of Founder Notes who, pursuant to the terms thereof, and as indicated on their signature pages hereof, have elected to convert Founder Notes into Notes.

“Credit Facilities” means, with respect to the Company or any of its Restricted Subsidiaries, one or more Indebtedness facilities, commercial paper facilities or Debt Issuances with banks, investment banks, insurance companies, mutual funds, other institutional lenders, institutional investors or any of the foregoing providing for revolving credit loans, term loans, sale leaseback arrangements, receivables financing (including through the sale of receivables to such lenders, other financiers or to special purpose entities formed to borrow from (or sell such receivables to) such lenders or other financiers against such receivables), letters of credit, bankers’ acceptances, other borrowings or Debt Issuances, in each case, as amended, restated, modified, renewed, extended, refunded, replaced or refinanced (in each case, without limitation as to amount), in whole or in part, from time to time (including through one or more Debt Issuances) and any agreements and related documents governing Indebtedness or Obligations incurred to refinance amounts then outstanding or permitted to be outstanding, regardless of whether with the original administrative agent, lenders, investment banks, insurance companies, mutual funds, other institutional lenders, institutional investors or any of the foregoing and whether provided under the original agreement, indenture or other documentation relating thereto).

“Daily Conversion Value” means, for each of the 30 consecutive Trading Days during the Observation Period, one thirtieth (1/30th) of the product of (1) the Conversion Rate on such Trading Day and (2) the Daily VWAP on such Trading Day.

“Daily Measurement Value” means the Specified Dollar Amount (if any) divided by 30.

“Daily Settlement Amount” means, for each of the 30 consecutive Trading Days during the Observation Period:

(1) cash equal to the lesser of (i) the Daily Settlement Value and (ii) the Daily Conversion Value; and

(2) if the Daily Conversion Value exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.

“Daily VWAP” means, for each of the 30 consecutive Trading Days during the applicable Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GPAQ.Q <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for such purpose by the Company). The “Daily VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

“Debt Issuances” means, with respect to the Company or any Restricted Subsidiary, one or more issuances after the Issue Date of Indebtedness evidenced by notes, debentures, bonds or other similar securities or instruments.

“Default” means any event which is, or after notice or passage of time would be, an Event of Default.

“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 5.5 hereof. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

“Domestic Restricted Subsidiary” means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the Company.

“EB-5 Preferred Stock” means the preferred stock or other preferred Equity Interests issued to ADC American Football & GY Lender, LLC, a Delaware limited liability company, or an affiliate thereof.

“Equity Interest” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

“ERISA” has the meaning given to such term in Section 3.15.

“Event of Default” has the meaning given to such term in Section 7.1.

“Ex-Dividend Date” means, in respect of any dividend or distribution, the first date upon which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such dividend or distribution.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, from time to time, and any successor statute or law thereto.

“Excess Proceeds” has the meaning given to such term in Section 5.8(a).

“Exempt Funded Debt” means, (a) the Notes issued and outstanding on the Issue Date, (b) up to $175.0 million in aggregate principal amount of Permitted Public Finance Instruments and (c) all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness referred to in clauses (a) or (b) of this definition, or to refund, refinance or replace any Permitted Refinancing Indebtedness described in this clause (c).

“Existing Indebtedness” means the aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries (other than Indebtedness under the Notes and the related Subsidiary Guarantees) in existence on the Issue Date, until such amounts are repaid.

“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company (unless otherwise provided in this Agreement), which determination will be conclusive for all purposes under this Agreement.

“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, repays, repurchases or redeems any Indebtedness (other than the incurrence or repayment of revolving credit borrowings, except to the extent that a repayment is accompanied by a permanent reduction in revolving credit commitments) or issues, repurchases or redeems Disqualified Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of such period.

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

(1) acquisitions and dispositions of business entities or property and assets constituting a division or line of business of any Person that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period, and Consolidated Cash Flow for such reference period will be calculated on a pro forma basis in good faith on a reasonable basis by a responsible financial or accounting Officer of the Company; provided, that such Officer may in his discretion include any pro forma changes to Consolidated Cash Flow, including any pro forma reductions of expenses and costs, and other operating improvements that have occurred or are reasonably expected by such Officer to occur (regardless of whether such pro forma changes or adjustments could then be reflected properly in pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act or any other regulation or policy of the SEC);

(2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, will be excluded;

(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

(4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period; and

(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period.

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

(1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus

(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

(3) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, regardless of whether such Guarantee or Lien is called upon; plus

(4) all dividends, whether paid or accrued and regardless of whether in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company.

“Founder Notes” means 10% Convertible Subordinated Notes due November 5, 2025 issued by HOF Village.

“Fundamental Change” will be deemed to have occurred at the time after the Issue Date if any of the following occurs:

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, its Subsidiaries and its and their employee benefit plans, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s common equity representing more than 50% of the voting power of the Company’s common equity;

(2) consummation of any share exchange, consolidation or merger of the Company or any other transaction or series of transactions pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Restricted Subsidiaries, considered as a single enterprise, to any Person other than one of its Subsidiaries; provided, however, that a transaction where the holders of all classes of the Company’s common equity immediately prior to such transaction that is a share exchange, consolidation or merger own, directly or indirectly in substantially the same proportion as such ownership immediately before such transaction, more than 50% of all classes of common equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such event shall not be a Fundamental Change;

(3) the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or

(4) the Common Stock (or other common stock into which the Securities are then convertible) ceases to be listed or quoted on a national securities exchange in the United States.

A Fundamental Change as a result of clause (2) above will not be deemed to have occurred, however, if 100% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares, in connection with the transaction or transactions constituting the Fundamental Change consists of shares of common stock traded on the New York Stock Exchange or the NASDAQ Capital Market (or any of their respective successors) or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change (“publicly traded securities”) and as a result of such transaction or transactions the Securities become convertible into such publicly traded securities, excluding cash payments for fractional shares, subject to the provisions regarding payment upon conversion set forth in Section 8 of this Agreement.

“Fundamental Change Company Notice” has the meaning specified in Section 6.6.

“Fundamental Change Purchase Date” has the meaning specified in Section 6.6.

“Fundamental Change Purchase Notice” has the meaning specified in Section 6.6.

“Fundamental Change Purchase Price” has the meaning specified in Section 6.6.

“Funded Debt” means, with respect to any Person, all Indebtedness of such Person that by its terms or by the terms of any instrument or agreement relating thereto matures, or which is otherwise payable or unpaid, one year or more from, or is directly or indirectly renewable or extendible at the option of the obligor in respect thereof to a date one year or more (including, without limitation, an option of such obligor under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more) from, the date of the creation thereof.

“GAAP” means generally accepted accounting principles in the United States, that are in effect from time to time. All ratios and computations based on GAAP contained in this Agreement will be computed in conformity with GAAP. At any time after the Issue Date, the Company may elect to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company shall give notice of any such election made in accordance with this definition to the Holders of Notes.

“Government Body” means any Federal, state, local or foreign governmental authority or regulatory body, any subdivision, agency, commission or authority thereof or any quasi-governmental or private body exercising any governmental regulatory authority thereunder and any Person directly or indirectly owned by and subject to the control of any of the foregoing, or any court, arbitrator or other judicial or quasi-judicial tribunal.

“Government Securities” means direct obligations of, or obligations Guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise). When used as a verb, “Guarantee” has a correlative meaning.

“Guarantor” means any Restricted Subsidiary of the Company that Guarantees the Notes in accordance with the provisions of this Agreement and the provisions of the Subsidiary Guarantee, and its successors and assigns, in each case, until the Subsidiary Guarantee of such Person has been released in accordance with the provisions of this Agreement and the provisions of the Subsidiary Guarantee.

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

“Holder” or “Holders” means each Purchaser (so long as it holds any Notes) and any other registered holder of any of the Notes.

“HOFV Acquisition” shall mean the acquisition of HOF Village by the Company pursuant to the HOFV Acquisition Agreement.

“HOFV Acquisition Agreement” shall mean the Agreement and Plan of Merger, by and between the Company, Gordon Pointe Acquisition Corp., a Delaware corporation, GPAQ Acquiror Merger Sub, Inc., a Delaware corporation, GPAQ Company Merger Sub, LLC, a Delaware limited liability company, and HOF Village, LLC, a Delaware limited liability company and HOFV Village NewCo LLC, a Delaware limited liability company.

“HOF Village” means HOF Village, LLC, a Delaware limited liability company.

“Indebtedness” means, with respect to any Person, the aggregate amount of, without duplication, the following:

(a) all obligations for borrowed money;

(b) all obligations evidenced by bonds, debentures, notes or other similar instruments;

(c) all obligations to pay the deferred purchase price of property or services due more than six months after such property is acquired or such services are completed (except Trade Payables, accrued commissions and other similar accrued current liabilities in respect of such obligations, in any case, not overdue, arising in the ordinary course of business);

(d) all Capital Lease Obligations;

(e) all obligations of such Person or Persons, contingent or otherwise, in respect of any letters of credit or bankers’ acceptances; and

(f) all Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes (a) all Indebtedness of others secured by a Lien on any asset of the specified Person (regardless of whether such Indebtedness is assumed by the specified Person); provided, that the amount of such Indebtedness will be the lesser of (i) the Fair Market Value of such asset at such date of determination and (ii) the amount of such Indebtedness of such other Person, and (b) to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving effect to the effects of FASB ASC 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

Notwithstanding the foregoing, the following shall not constitute “Indebtedness:”

(i) accrued expenses and trade accounts payable arising in the ordinary course of business;

(ii) any indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Government Securities (in an amount sufficient to satisfy all such indebtedness obligations at maturity or redemption, as applicable, and all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such indebtedness, and subject to no other Liens, and the other applicable terms of the instrument governing such indebtedness;

(iii) any unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of the FASB ASC 815);

(iv) any obligations in respect of (a) bid, performance, completion, surety, appeal and similar bonds, (b) bankers’ acceptances, (c) workers’ compensation claims, health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation and statutory obligations and (d) any guarantees or standby letters of credit functioning as or supporting any of the foregoing bonds or obligations, to the extent not drawn; provided, however, that such bonds or obligations mentioned in subclause (a), (b), (c) or (d) of this clause (v) are incurred in the ordinary course of the business of the Company and its Restricted Subsidiaries and do not relate to obligations for borrowed money;

(v) any obligation arising from any agreement providing for indemnities, guarantees, purchase price adjustments, holdbacks, earnouts, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of any business, assets or Capital Stock;

(vi) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such obligation is extinguished within five Business Days of its incurrence;

(vii) any Treasury Management Arrangement; and

(viii) any obligation arising out of advances on trade receivables, factoring of receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice.

“Indemnified Party” has the meaning given to such term in Section 1.8(d).

“Indemnifying Party” has the meaning given to such term in Section 1.8(d).

“Investment” means, with respect to any Person, any direct, indirect or beneficial investment by such Person, whether by means of share purchase, loan, advance, extension of credit (other than accounts receivable and trade credits arising in the ordinary course of business), capital contribution or otherwise, in or to any other Person, the guaranty by such Person of any Indebtedness of any other Person or the subordination of any claim against any other Person to other Indebtedness of such other Person.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute or law thereto.

“Issue Date” means the first date on which Notes are issued under this Agreement.

“Johnson Controls Agreement” means the secured loan with a financial institution entered into by a subsidiary of the Company, JCIHOFV Financing, LLC, that is collateralized by the entire payment stream of the Johnson Controls Naming Rights Agreement dated November 17, 2016.

“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share of Common Stock (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

“Laws” has the meaning given to such term in Section 3.17.

“Legal Holiday” means a Saturday, Sunday or day on which banks and trust companies in the principal place of business of the Company or in New York are not required to be open.

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, regardless of whether filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

“Majority Holders” means, at any time, the Holder or Holders of at least a majority in aggregate principal amount of the then outstanding Notes.

“Market Disruption Event” means (i) a failure by the primary U.S. national securities or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 pm., New York City time, on any Trading Day for the Common Stock for more than a one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock.

“Material Adverse Effect” means (a) a material adverse effect upon the business, operations, properties, assets or condition (financial or otherwise) of the Company and its Restricted Subsidiaries considered as a single enterprise or (b) a material adverse effect on the ability of the Company to perform its obligations under this Agreement or of any Purchaser or Holder to enforce or collect any of the obligations hereunder. In determining whether any individual event could reasonably be expected to result in a Material Adverse Effect, notwithstanding that such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then existing events could reasonably be expected to result in a Material Adverse Effect.

“Maturity Date” means March 31, 2025.

“Merger Event” has the meaning given to such term in Section 8.5.

“Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

(1) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

(2) any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss.

“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that were the subject of such Asset Sale.

“Non-Recourse Debt” means Indebtedness:

(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender; and

(2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity.

“Notes” has the meaning given to such term in Section 1.1.

“Notes Register” has the meaning given to such term in Section 1.3.

“Notice of Redemption” has the meaning given to such term in Section 6.3.

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Observation Period” with respect to any Note surrendered for conversion the 30 consecutive Trading Day period beginning on and including the second Trading Day after such Conversion Date.

“Offer Amount” has the meaning given to such term in Section 5.8(a).

“Offer Period” has the meaning given to such term in Section 5.8(a).

“Officer” of a Person mean its Chairman of the Board, Chief Executive Officer, President, Treasurer, any Vice President, Secretary or any Assistant Secretary.

“Officers’ Certificate” means a certificate in the form attached hereto as Annex F signed by any two Officers, one of whom must be the Chairman of the Board, the Chief Executive Officer, Chief Financial Officer, the President, the Treasurer or a Vice President of the Company.

“Permitted Acquisition Indebtedness” means Indebtedness or Disqualified Stock of the Company or any of the Company’s Restricted Subsidiaries to the extent such Indebtedness or Disqualified Stock was Indebtedness or Disqualified Stock of (1) a Subsidiary prior to the date on which such Subsidiary became a Restricted Subsidiary or (2) a Person that was merged, consolidated or amalgamated into the Company or a Restricted Subsidiary, provided that, in the case of clause (1) or (2), on the date such Subsidiary became a Restricted Subsidiary or the date such Person was merged, consolidated and amalgamated into the Company or a Restricted Subsidiary, as applicable, after giving pro forma effect thereto, either (a) the Restricted Subsidiary or the Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in Section 5.7 hereof or (b) the Company would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, have a Fixed Charge Coverage Ratio that is greater than or equal to the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction.

“Permitted Business” means any business conducted or proposed to be conducted by the Company and its Restricted Subsidiaries on the Issue Date and other businesses reasonably related or ancillary thereto.

“Permitted Investments” means:

(1) any Investment in the Company or in a Restricted Subsidiary of the Company;

(2) any Investment in Cash Equivalents;

(3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

(a) such Person becomes a Restricted Subsidiary of the Company; or

(b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;

(4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 5.8 hereof;

(5) any Investment in any Person solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company or any of its Subsidiaries;

(6) any Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B) litigation, arbitration or other disputes with Persons who are not Affiliates;

(7) Investments represented by Hedging Obligations;

(8) advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;

(9) loans or advances to employees in the ordinary course of business or consistent with past practice;

(10) repurchases of the Notes;

(11) advances, deposits and prepayments for purchases of any assets, including any Equity Interests;

(12) advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Company or its Restricted Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business;

(13) receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances;

(14) Investments received as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment in default;

(15) surety and performance bonds and workers’ compensation, utility, lease, tax, performance and similar deposits and prepaid expenses in the ordinary course of business;

(16) Guarantees of Indebtedness permitted under Section 5.7 hereof;

(17) Investments existing on the Issue Date; and

(18) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (18) that are at the time outstanding not to exceed $10.0 million.

“Permitted Liens” means:

(1) Liens securing Indebtedness incurred under Credit Facilities that is permitted to be incurred pursuant to clause (i) of the definition of Permitted Debt in Section 5.7(b);

(2) Liens in favor of the Company or any Restricted Subsidiary;

(3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company or the Subsidiary;

(4) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to such acquisition, and not incurred in contemplation of, such acquisition;

(5) bankers’ Liens, rights of setoff and Liens to secure the performance of bids, tenders, trade or governmental contracts, leases, licenses, statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 5.7(b)(iv) covering only the assets acquired with or financed by such Indebtedness;

(7) Liens existing on the Issue Date;

(8) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

(9) Liens imposed by law, such as carriers’, warehousemen’s, repairmen’s, landlord’s and mechanics’ Liens or other similar Liens, in each case, incurred in the ordinary course of business;

(10) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(11) Liens securing Hedging Obligations and/or Obligations with respect to Treasury Management Arrangements;

(12) Liens created for the benefit of (or to secure) the Notes (or the Subsidiary Guarantees);

(13) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Agreement; provided, however, that:

(a) the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and

(b) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

(14) Liens arising by reason of a judgment, decree or court order, to the extent not otherwise resulting in an Event of Default, and any Liens that are required to protect or enforce any rights in any administrative, arbitration or other court proceedings in the ordinary course of business;

(15) Liens contained in purchase and sale agreements limiting the transfer of assets pending the closing of the transactions contemplated thereby;

(16) Liens that may be deemed to exist by virtue of contractual provisions that restrict the ability of the Company or any of its Subsidiaries from granting or permitting to exist Liens on their respective assets;

(17) Liens securing liabilities associated with any Permitted Public Finance Instruments and Liens in favor of governmental entities to secure payments under any contract or statute to secure progress or advance payments;

(18) Liens securing liabilities associated with the Johnson Controls Agreement;

(19) Liens securing obligations that, at any one time outstanding, do not exceed $25.0 million; and

(20) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned by the Company or any Restricted Subsidiary to the extent securing Non-Recourse Debt of such Unrestricted Subsidiary or joint venture.

“Permitted Public Finance Instruments” means any Tourism Development District Bonds or Tax Increment Financing Bonds issued to the Company that have a Stated Maturity after the Maturity Date.

“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries, any Disqualified Stock of the Company or any preferred stock of any Restricted Subsidiary issued (a) in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of ((a) and (b) above, collectively, a “Refinancing”), any other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), any Disqualified Stock of the Company or any preferred stock of a Restricted Subsidiary in a principal amount or, in the case of Disqualified Stock of the Company or preferred stock of a Restricted Subsidiary, liquidation preference, not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with a Refinancing) the lesser of:

(1) the principal amount or, in the case of Disqualified Stock or preferred stock, liquidation preference, of the Indebtedness, Disqualified Stock or preferred stock so Refinanced (plus, in the case of Indebtedness, the amount of premium, if any paid in connection therewith); and

(2) if the Indebtedness being Refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Refinancing.

Notwithstanding the preceding, no Indebtedness, Disqualified Stock or preferred stock will be deemed to be Permitted Refinancing Indebtedness, unless:

(1) such Indebtedness, Disqualified Stock or preferred stock has a final maturity date or redemption date, as applicable, later than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or preferred stock being Refinanced;

(2) if the Indebtedness, Disqualified Stock or preferred stock being Refinanced is contractually subordinated or otherwise junior in right of payment to the Notes, such Indebtedness, Disqualified Stock or preferred stock has a final maturity date or redemption date, as applicable, later than the final maturity date or redemption date, as applicable, of, and is contractually subordinated or otherwise junior in right of payment to, the Notes, on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness, Disqualified Stock or preferred stock being Refinanced at the time of the Refinancing; and

(3) such Indebtedness or Disqualified Stock is incurred or issued by the Company or such Indebtedness, Disqualified Stock or preferred stock is incurred or issued by the Restricted Subsidiary who is the obligor on the Indebtedness being Refinanced or the issuer of the Disqualified Stock or preferred stock being Refinanced.

“Person” means an individual, partnership, corporation, limited liability company, trust or unincorporated organization or a government or agency or political subdivision thereof.

“PIK Interest” means interest paid pursuant to a PIK Interest Payment in accordance with the provisions of Section 1 of the Notes.

“PIK Interest Payment” means the payment of all or a portion of a payment of interest on the Notes by increasing the principal amount of each Note by the amount of such payment on the applicable Interest Payment Date in accordance with the provisions of Section 1 the Notes.

“Plan” has the meaning given to such term in Section 3.15.

“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.

“Proceedings” has the meaning given to such term in Section 3.12.

“Purchase Date” has the meaning given to such term in Section 5.8(a).

“Purchasers” means the purchasers on the signature pages hereto.

“Redemption Date” means, when used with respect to any Note to be redeemed, the date fixed for such redemption pursuant to this Agreement and the Notes.

“Redemption Price” means, when used with respect to any Note to be redeemed, the price fixed for such redemption pursuant to this Agreement and the Notes.

“Reference Property” has the meaning given to such term in Section 8.5.

“Registration Rights Agreement” means the agreement between the Purchasers and the Company granting registration rights to the Purchasers substantially in the form attached hereto as Annex G.

“Regular Record Date” for the interest payable on any Interest Payment Date means the 15th day of the calendar month during which such Interest Payment Date occurs.

“Restricted Investment” means an Investment other than a Permitted Investment.

“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

“SEC” means the United States Securities and Exchange Commission and any successor thereto.

“SEC Filings” means the Company’s publicly available documents filed with the SEC under the EDGAR filing system (or any successor filing system of the SEC).

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute or law thereto.

“Senior Debt” means:

(1) all Indebtedness of the Company or any of its Restricted Subsidiaries outstanding under Credit Facilities and all Hedging Obligations with respect thereto;

(2) the Notes and any other Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any Subsidiary Guarantee; and

(3) all Obligations with respect to the items listed in the preceding clauses (1) and (2) of this definition.

Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will not include:

(A) any intercompany Indebtedness of the Company or any of its Subsidiaries to the Company or any of its Affiliates;

(B) any Indebtedness that is incurred in violation of this Indenture; or

“Solvent” means, with respect to any Person on a particular date, that on such date, (a) the fair saleable value of the assets of such Person exceeds its probable liability on its debts as they become absolute and mature; (b) all of such Person’s assets, at a fair valuation, exceed the sum of such Person’s debts; (c) such Person is able to pay its debts or liabilities as such debts and liabilities mature; and (d) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person’s assets would constitute an unreasonably small capital.

“Specified Dollar Amount” means the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified in the Settlement Notice related to any converted Notes.

“Spin-Off” has the meaning specified in Section 8.3(c).

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“Subordinated Indebtedness” means Indebtedness of the Company or a Guarantor that is contractually subordinated in right of payment (by its terms or the terms of any document or instrument relating thereto), to the Notes or the Subsidiary Guarantee of such Guarantor, as applicable.

“Subsidiary” means, with respect to any Person, (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly, owned by such Person, by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person or (ii) a partnership in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but, in the case of a limited partner, only if such Person or its Subsidiary is entitled to receive more than 50% of the assets of such partnership upon its dissolution, or (iii) any limited liability company or any other Person (other than a corporation or a partnership) in which such Person, a Subsidiary of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination, has (a) at least a majority ownership interest or (b) the power to elect or direct the election of a majority of the directors or other governing body of such Person.

“Subsidiary Guarantee” means any Guarantee of the Company’s obligations under this Agreement and the Notes by any Guarantor in accordance with the provisions of this Agreement.

“Taxes” means all Federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto.

“Tax Returns” means all Federal, state, local and foreign tax returns, declarations, statements, reports, schedules, forms and information returns and any amended Tax Return relating to Taxes.

“Third Party Claim” has the meaning given to such term in Section 1.8(d).

“Trade Payables” means, with respect to any Person, accounts payable and other similar accrued current liabilities in respect of obligations or indebtedness to trade creditors created, assumed or guaranteed by such Person or any of its Subsidiaries in the ordinary course of business in connection with the obtaining of property or services.

“Trading Day” has the meaning given to such term in Section 8.2(l).

“Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“U.S. Legal Tender” means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.

“Unrestricted Subsidiary” means (i) JCIHOFV FINANCING, LLC, a Delaware limited liability company, so long as it constitutes a Subsidiary of the Company, unless and until designated by the Board of Directors of the Company as a Restricted Subsidiary in compliance with Section 5.13 and (ii) any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

(1) has no Indebtedness other than Non-Recourse Debt;

(2) except as permitted by Section 5.9 hereof, is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

(3) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results, except to the extent permitted by Section 5.5 hereof; and

(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation.

“Voting Securities” means any class of Equity Interests of a Person pursuant to which the holders thereof have, at the time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers, trustees or general partners of such Person (regardless of whether at the time any other class or classes will have or might have voting power by reason of the happening of any contingency).

“Warrant Agreement” means the agreement between the Purchasers and the Company providing for the possible issuance of warrants to the Purchasers in connection with a redemption of the Notes substantially in the form attached hereto as Annex E.

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2) the then outstanding principal amount of such Indebtedness.

10.2 Rules of Construction.

Unless the context otherwise requires:

(a) a term has the meaning assigned to it;

(b) “or” is not exclusive;

(d) provisions apply to successive events and transactions;

(e) “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; and.

(f) any reference to a “Section,” “Annex” or “Schedule” refers to a Section of, an Annex to, or a Schedule to this Agreement, respectively.

SECTION 11. MISCELLANEOUS.

11.1 Notices.

All notices and other communications provided for or permitted hereunder shall be made by hand-delivery, first-class mail, telex, telecopier, or overnight air courier guaranteeing next day delivery:

(a) if to any Purchaser at the address or telecopy number set forth on Annex B hereto, with a copy to counsel for such Purchaser; and

(b) if to the Company, to GPAQ Acquisition Holdings, Inc., 2626 Fulton Dr., Canton, OH 44718, Attn: Michael Crawford, with a copy to Hunton Andrews Kurth LLP, 2200 Pennsylvania Avenue NW, Washington, DC 20037, Attention: J. Steven Patterson.

All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; at the time of transmittal, if sent via electronic mail prior to 5:00 p.m., Eastern Time on the date submitted; on the next succeeding Business Day, if sent via electronic mail at or after 5:00 p.m., Eastern Time on the date submitted; upon actual receipt if sent by certified mail, return receipt requested, or regular mail, if mailed; when receipt acknowledged, if sent via facsimile; and upon actual receipt when delivered to an air courier guaranteeing overnight delivery.

11.2 Successors and Assigns.

Except as expressly contemplated by Section 5.11 hereof, the Company may not assign any of its rights, or delegate any of its obligations, under this Agreement without the prior written consent of the Majority Holders, and any such purported assignment by the Company without the written consent of the Majority Holders shall be null and void ab initio and of no force or effect. Subject to the foregoing restriction, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto.

11.3 Counterparts.

This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record) hereto or to any other certificate, agreement or document related to the transactions contemplated hereby, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, and the parties hereby waive any objection to the contrary.

11.4 Headings.

The headings in this Agreement are for convenience of reference only-and shall not limit or otherwise affect the meaning hereof.

11.5 Governing Law; Submission to Jurisdiction.

THIS AGREEMENT, THE NOTES AND ALL ISSUES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEEDING AGAINST THE COMPANY IN ANY OTHER JURISDICTION.

11.6 Entire Agreement.

This Agreement, together with the Registration Rights Agreement and the Notes, is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. This Agreement, together with the Registration Rights Agreement and the Notes, supersedes all prior agreements and understandings between the parties with respect to such subject matter.

11.7 Severability.

In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected, it being intended that each Purchaser’s rights and privileges shall be enforceable to the fullest extent permitted by law.

11.8 Further Assurances.

The Company shall, and shall cause each of their Subsidiaries to, at its cost and expense, upon request of any Purchaser or Holder, duly execute and deliver, or cause to be duly executed and delivered, to such Purchaser or Holder such further instruments and do or cause to be done such further acts as may be necessary or proper in the reasonable opinion of such Purchaser or Holder to carry out more effectually the provisions and purposes of this Agreement.

11.9 Disclosure of Financial Information

Each Holder is hereby authorized to deliver a copy of any financial statement or any other information relating to the business, operations or financial condition of the Company and each of its Subsidiaries which may be furnished to it hereunder or otherwise, to any other Holder, any court, Government Body having jurisdiction over such Holder, as may be required or appropriate in response to any summons or subpoena in connection with any litigation, to the extent necessary to comply with any law, order, regulation or ruling applicable to such Holder, to any rating agency, in order to protect its investment hereunder, or to any Person which shall, or shall have any right or obligation to, succeed to all or any part of such Holder’s interest in any of the Notes and this Agreement or to any actual or prospective purchaser or assignee thereof.

11.10 Survival

The representations and warranties set forth in Sections 3.1, 3.4, 3.8, 3.10, 4.1, 4.2, 4.3 and 4.4 of this Agreement shall survive the execution and delivery of this Agreement indefinitely, and the other representations and warranties set forth in this Agreement shall survive until the date that is 60 days following the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 regardless of any investigation made by or on behalf of the Company or any Purchaser.

(Signature pages follow)

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties set forth below as of the date first written above.

	GPAQ ACQUISITION HOLDINGS, INC.

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

	MAGNETAR CONSTELLATION MASTER FUND, LTD.
	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Principal amount of Notes to be purchased: $2,290,000

Aggregate purchase price of Notes to be purchased: $2,290,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	MAGNETAR STRUCTURED CREDIT FUND, LP.
	By: Magnetar Financial, LLC, its general manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Principal amount of Notes to be purchased: $865,000

Aggregate purchase price of Notes to be purchased: $865,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	MAGNETAR XING HE MASTER FUND LTD
	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Principal amount of Notes to be purchased: $780,000

Aggregate purchase price of Notes to be purchased: $780,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	MAGNETAR XING HE MASTER FUND LTD
	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Principal amount of Notes to be purchased: $600,000

Aggregate purchase price of Notes to be purchased: $600,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	PURPOSE ALTERNATIVE CREDIT FUND – T LLC
	By: Magnetar Financial, LLC, investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Principal amount of Notes to be purchased: $310,000

Aggregate purchase price of Notes to be purchased: $310,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	PURPOSE ALTERNATIVE CREDIT FUND – F LLC
	By: Magnetar Financial, LLC, investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Principal amount of Notes to be purchased: $155,000

Aggregate purchase price of Notes to be purchased: $155,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	TIMKEN FOUNDATION OF CANTON

	By:	/s/ Ward J. Timken
	Name:	Ward J. Timken
	Title:	President

Principal amount of Notes to be purchased: $1,000,000

Aggregate purchase price of Notes to be purchased: $1,000,000

Form of payment of such aggregate purchase price: Cash in U.S. dollars.

	STARK COMMUNITY FOUNDATION

	By:	/s/ Mark J. Samolcyzk
	Name:	Mark J. Samolcyzk
	Title:	President and CEO

Principal amount of Notes to be purchased: $1,000,000

Aggregate purchase price of Notes to be purchased: $1,000,000

Form of payment of such aggregate purchase price: The cancellation in full of indebtedness in the amount of $1,000,000 owed to such purchaser by HOF Village under the promissory note dated June 22, 2020 issued by HOF Village and payable to Stark Community Foundation.

	CH Capital Lending, LLC,
	a Delaware limited liability company

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

	By:	/s/ Richard H. Klein
	Name:	Richard H. Klein
	Title:	Chief Financial Officer

Principal amount of Notes to be purchased: $9,000,000

Aggregate purchase price of Notes to be purchased: $9,000,000

Form of payment of such aggregate purchase price: A reduction, in the amount of $9,000,000, of the principal component of the indebtedness owed to Industrial Realty Group, LLC, a Nevada limited liability company (“Industrial Realty Group”) under the Promissory Note, dated as of November 27, 2019 (the “IRG November Note”), from the Borrowers listed on Exhibit B thereto and payable to Industrial Realty Group. Industrial Realty Group has assigned to CH Capital Lending, LLC, a Delaware limited liability company, its right to receive Notes in exchange for the reduction of the principal balance of the IRG November Note.

	Gordon Pointe Management, LLC

	By:	/s/ James J. Dolan
	Name:	James J. Dolan
	Title:	Manager

Principal amount of Notes to be purchased: $500,000

Aggregate purchase price of Notes to be purchased: $500,000

Form of payment of such aggregate purchase price: A reduction in the amount of $500,000 of the principal component of the indebtedness owed to such Purchaser by Gordon Pointe Acquisition Corp. under loan agreements and related promissory notes issued by the Borrowers listed therein and payable to Gordon Pointe Management, LLC or an affiliate of Gordon Pointe Management, LLC.

	JMJS Group, LLLP

	By:	/s/ Jerre Stead
	Name:	Jerre Stead
	Title:	General Partner

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $1,158,806

	Glenn R. August

	By:	/s/ Glenn R. August
	Name:	Glenn R. August

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $1,158,806

	michael s. Gross

	By:	/s/ Michael S. Gross
	Name:	Michael S. Gross

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $869,104

	Bradley M. Chase and Judith E. Chase, as Tenants-in-Common

	By:	/s/ Bradley M. Chase
	Name:	Bradley M. Chase

	By:	/s/ Judith E. Chase
	Name:	Judith E. Chase

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $284,577

	Kevin O'Callaghan

	By:	/s/ Kevin O’Callaghan
	Name:	Kevin O'Callaghan

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $250,000

	John and kelly warner

	By:	/s/ John Warner
	Name:	John Warner

	By:	/s/ Kelly Warner
	Name:	Kelly Warner

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $250,000

	Jeffrey Slovin

	By:	/s/ Jeffery Slovin
	Name:	Jeffrey Slovin

Principal amount of Founder Notes held by such Purchaser and being converted into like principal amount of Notes: $250,000

ANNEX A

[FORM OF NOTE]

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION THEREFROM UNDER THE ACT, THE RULES AND REGULATIONS THEREUNDER AND APPLICABLE STATE LAWS. THE TRANSFER OF THIS NOTE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE NOTE PURCHASE AGREEMENT DATED AS OF JULY 1, 2020 BY AND GPAQ ACQUISITION HOLDINGS, INC. AND THE PURCHASERS PARTY THERETO.

8.00% Convertible Note due 2025

No. ____

$________

GPAQ ACQUISITION HOLDINGS, INC.

promises to pay to __________________ or registered assigns, the principal sum of _________ Dollars ($________) on March 31, 2025 (the “Maturity Date”) plus accrued and unpaid interest as provided below.

Interest Payment Dates: March 31, June 30, September 30 and December 31 of each year; provided, that the first Interest Payment Date shall be September 30, 2020.

Record Dates: 15th day of each calendar month during which each Interest Payment Date occurs.

Capitalized terms used herein shall have the meanings ascribed to them in the Agreement (as defined below) unless otherwise indicated.

1. INTEREST. GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 8.00% per annum from September 30, 2020 until maturity. The Company will pay interest quarterly on March 31, June 30, September 30 and December 31 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”). In lieu of paying all of such installment of interest on the Notes in cash, the Company may pay all of such installment (or a portion thereof) by payable by increasing the principal amount of each Note by the amount of such installment (with such increased amount accruing interest as well) on the applicable Interest Payment Date (such interest, “PIK Interest”; provided, however, that in the event all or a portion of any installment of interest on the Notes is so paid in PIK Interest, the interest rate used to calculate the amount of such payment of PIK Interest shall be 10.00%. Interest on the Notes will accrue from the most recent date on which interest has been paid or, if no interest has been paid, from the date of issuance; provided, that the first Interest Payment Date shall be September 30, 2020. Upon the occurrence of an Event of Default, and as long as such Default continues, interest to be paid in PIK Interest shall accrue at a rate of 12.00%. PIK Interest paid in accordance with the terms hereof shall not constitute unpaid amounts hereunder. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

2. METHOD OF PAYMENT. The Company will pay interest on the Notes to the Persons who are registered Holders of Notes at the close of business on the March 15, June 15, September 15, or December 15, as applicable, next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date. The Notes will be payable both as to principal and interest by Federal funds wire transfer of U.S. Legal Tender to each Holder’s account in any bank in the United States of America as may be designated and specified in writing by such Holder at least two Business Days prior thereto; provided, however, that if, pursuant to Section 1 hereof, the Company elects to pay a portion of an interest payment on the Notes in the form of a PIK Interest Payment, then the Company shall make a record on in the Note Register of the corresponding increase in the principal amount of the Notes.

3. SECURITIES PURCHASE AGREEMENT. The Company issued the Notes under the Note Purchase Agreement dated as of July 1, 2020 (the “Agreement”) by and among the Company the purchasers party thereto (the “Purchasers”). The Notes are subject to, and qualified by, all such terms, certain of which are summarized herein, and Holders of Notes are referred to the Agreement for a statement of such terms. The Notes are general senior obligations of the Company. The Notes are limited to $20,721,293 in aggregate principal amount plus the aggregate principal amount of any additional Notes issued in accordance with Section 1 hereof in lieu of a portion of any cash interest payments.

4. CONVERSION. As provided in and subject to the provisions of the Agreement, the Holder hereof has the right, at its option, to convert this Note or a portion thereof that is $1,000 or an integral multiple thereof, into shares of Common Stock, at the applicable Conversion Rate specified in the Agreement, as adjusted from time to time as provided in the Agreement.

5. REDEMPTION.

(a) The Company may, in its sole discretion, redeem all or any amount of the Notes outstanding, in whole or in part, at any time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest on the Notes to be redeemed to the Redemption Date.

(b) Immediately upon any redemption of the Notes prior to the Maturity Date, a redemption of Notes prior to the Maturity Date, the Company shall issue to each Holder of the Notes being redeemed a number of warrants (pursuant to the Warrant Agreement substantially in the form attached hereto as Annex E), equal to the number of shares of Common Stock that such Holder would receive if such Holder were to convert such Notes on the Redemption Date pursuant to Section 8 hereof.

(c) The Company shall redeem all the outstanding Notes on the Maturity Date at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date.

6. OFFERS TO REPURCHASE. Following the occurrence of any Fundamental Change, a Holder may elect to require the Company to offer to purchase the Notes held by the Holder upon the terms set forth in the Agreement. Following the occurrence of an Asset Sale, the Company will be required to apply the Excess Proceeds therefrom to an offer to purchase outstanding Notes upon the terms set forth in the Agreement.

7. NOTICE OF REDEMPTION. Written notice of redemption shall be provided at least thirty (30) days but not more than sixty (60) days before a Redemption Date to each Holder whose Notes are to be redeemed at such Holder’s registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. If, on or prior to the Redemption Date, the Company deposits in a segregated account or otherwise sets aside funds sufficient to pay the Redemption Price of the Notes called for redemption, then, on and after the Redemption Date, interest ceases to accrue on Notes or portions thereof called for redemption, unless the Company defaults in paying the redemption price.

8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are without coupons in the principal amount of $1,000 or integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Agreement. The Company may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Agreement. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of fifteen (15) days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

9. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

10. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Agreement and the Notes may be amended or supplemented and any existing Default under, or compliance with any provision of, the Agreement may be waived with the written consent of the Majority Holders. The right of any Holder to participate in any consent required or sought pursuant to any provision of the Agreement (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Notes with respect to which such consent is required or sought as of a date identified by the Company in a notice furnished to Holders in accordance with the terms of this Agreement.

11. DEFAULTS AND REMEDIES. An Event of Default is, in general: default in the payment of the principal of or premium, if any, of any Note when the same becomes due and payable at maturity, upon redemption or otherwise (including, without limitation, the failure to make a payment to purchase Notes tendered pursuant to an Asset Sale Offer); default in the payment of interest on any Note or any other amount payable hereunder when the same becomes due and payable and such default continues for a period of thirty (30) days (it being understood that making a PIK Interest Payment in accordance with the terms hereof shall not constitute any Event of Default under the terms hereof); failure by the Company for thirty (30) days after notice to it to comply with any of the covenants or provisions of the Agreement or the Notes; if any of the representations or warranties of the Company made in the Agreement are untrue in any respect, the result of which could reasonably be expected to have a Material Adverse Effect; if the Agreement or the Notes become unenforceable; certain defaults under and/or acceleration prior to maturity of certain other indebtedness of the Company; certain final judgments which remain undischarged after notice; and certain events of bankruptcy or insolvency. If an Event of Default occurs and is continuing, the Holders of 25% of the aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. The Company is obligated to furnish a monthly compliance certificate to the Holders.

12. NO RECOURSE AGAINST OTHERS. A director, officer, employee or stockholder of the Company, as such, shall not have any liability for any obligations of the Company under the Notes or the Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

13. ASSIGNMENT. A Note may be assigned in whole or in part only with the written consent of the Company, which shall not be unreasonably withheld, and by registration of such assignment or sale on the Note Register upon receipt from the Holder of a completed Assignment Form substantially in the form attached hereto. Upon its receipt of a satisfactory request to assign all or part of any Note by a Holder and the physical surrender of this Note to the Company, the Company shall record the information contained therein in the Note Register and issue one or more new Notes, the aggregate outstanding principal balance of which shall be the same as the entire outstanding principal balance of the surrendered Note, to the designated assignee or transferee.

14. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

15. GOVERNING LAW, SUBMISSION TO JURISDICTION. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE COMPANY HEREBY IRREVOCABLY SUBMIT T^-0 THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEEDING AGAINST THE COMPANY ANY OTHER JURISDICTION.

The Company will furnish to any Holder upon written request and without charge a copy of the Agreement. Requests may be made to GPAQ Acquisition Holdings, Inc., 2626 Fulton Dr NW, Canton, OH 44718, Attn: Michael Crawford.

	GPAQ ACQUISITION HOLDINGS, INC.

	By:
	Name:	Michael Crawford
	Title:	Chief Executive Officer

Date: , 2020

Assignment Form

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:

(Insert assignee’s legal name)

(Insert assignee’s soc. sec. or tax I.D. no.)

(Print or type assignee’s name, address and zip code)

and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.

Date: _______________

Your Signature:

(Sign exactly as your name appears on the face of this Note)

Signature Guarantee*: _________________________

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Company).

Option of Holder To Elect Purchase

If you want to elect to have all or part of the Note purchased by the Company pursuant to Section 5.8 of the Agreement, state the amount you elect to have purchased:

$ ______________

Date: ___________

Your

Signature: _____________________________________

(Sign exactly as your name appears on the face of this Note)

Tax Identification No.: _______________________________

Signature Guarantee*: ____________________________________

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Company).

[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]

To: GPAQ Acquisition Holdings, Inc.

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from GPAQ Acquisition Holdings, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Purchase Date and requests and instructs the Company to repay to the registered holder hereof in accordance with the applicable provisions of this Note and the Agreement referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Fundamental Change Purchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest thereon to, but excluding, such Fundamental Change Purchase Date.

In the case of certificated Notes, the certificate numbers of the Notes to be repurchased are as set forth below:

Dated:_____________

	_____________________________________
	Signature(s)
	_____________________________________
	Social Security or Other Taxpayer Identification Number
	Principal amount to be repaid (if less than all): $__________, 000
	NOTICE: The signature on the Fundamental Change Purchase Notice must correspond with the name as written upon the face of the Security in every particular without alteration or enlargement or any change whatever.

[FORM OF NOTICE OF CONVERSION]

To: GPAQ Acquisition Holdings, Inc.

The undersigned registered Holder of this Note hereby irrevocably exercises the option to convert this Note, or a portion hereof (which is $1,000 or an integral multiple hereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, and directs that cash payable and any shares of Common Stock issuable and deliverable upon conversion, together with any check in payment for fractional shares of Common Stock, and any Notes representing any unconverted principal amount hereof, be paid or issued and delivered, as the case may be, to the registered Holder hereof unless a different name has been indicated below. Subject to certain exceptions set forth in the Agreement, if this notice is being delivered on a date after the close of business on a Regular Record Date and prior to the opening of business on the related Interest Payment Date, this notice is accompanied by payment of an amount equal to the interest payable on such Interest Payment Date of the principal of this Note to be converted. If any shares of Common Stock or any portion of this Security not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect hereto. Any amount required to be paid by the undersigned on account of interest accompanies this Note.

Principal amount to be converted (in an integral multiple of $1,000, if less than all):


	______________________________
	Signature(s)

	Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:

Fill in for registration of any shares of Common Stock and Notes if to be issued otherwise than to the registered Holder.

____________________________
(Name)

____________________________
(Address)

ANNEX D

Subsidiary Guarantee

Dated as of ________ __, 202__

[Name of Guarantor(s)]

Table of Contents

		Page

Section 1.	Guarantee.	1
Section 2.	Obligations Absolute.	2
Section 3.	Waiver.	3
Section 4.	Subrogation.	3
Section 5.	Merger, Consolidation, etc.	4
Section 6.	Representations and Warranties of Each Guarantor.	5
6.1	Authorization, Etc	5
6.2	No Violation or Conflict	5
6.3	Governmental Authorizations, Etc	5
6.4	Solvency	5
Section 7.	Term and Release of Guarantee.	6
Section 8.	Additional Guarantors.	6
Section 9.	Amendment and Waiver.	6
9.1	Requirements	6
9.2	Binding Effect	7
Section 10.	Miscellaneous.	7
10.1	Notices	7
10.2	Successors and Assigns	7
10.3	Entire Agreement	7
10.4	Severability	7
10.5	Headings	8
10.6	Governing Law	8
10.7	Counterparts	8

Exhibit A - Guarantee Joinder

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Subsidiary Guarantee

This Subsidiary Guarantee, dated as of ________ __, 202__ (this “Guarantee”), is made by each of the undersigned (each, a “Guarantor” and, together with each of the other signatories hereto and any other entities from time to time parties hereto pursuant to Section 10.2 hereof, the “Guarantors”) in favor of the Holders from time to time of the Notes (as defined below), including without limitation each Purchaser (as defined below).

Capitalized terms used herein have the meanings specified in the Note Agreement (as defined below), unless otherwise defined herein.

Preliminary Statements:

WHEREAS, GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), entered into a Note Purchase Agreement dated as of July 1, 2020 (as amended, modified, supplemented or restated from time to time, the “Note Agreement”) with the Persons listed on the signature pages thereto (each, a “Purchaser” and collectively, the “Purchasers”); and

WHEREAS, the Company has authorized the issuance and sale, pursuant to the Note Agreement, of 8.00% Convertible Notes due 2025 in the aggregate principal amount of $20,721,293 (the “Notes”). The Notes and any other notes that may from time to time be issued pursuant to the Note Agreement (including any notes issued in substitution for any of the aforementioned notes) are herein collectively called the “Notes” and individually a “Note;”

Now Therefore, each Guarantor hereby covenants and agrees with, and represents and warrants to, each of the Holders as follows:

Section 1. Guarantee.

(a) Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors, if any, guarantees to each Holder, the due and punctual payment in full of the principal of, interest on (including, without limitation, to the fullest extent permitted by applicable law, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, regardless of whether a claim for post-filing or post-petition interest is allowed in such proceeding), and any other amounts due under, the Notes or the Note Agreement when and as the same shall become due and payable (whether at stated maturity or upon redemption or by acceleration or otherwise) (all such payment obligations being collectively hereinafter referred to as the “Guaranteed Obligations”). The guarantee in the preceding sentence is an absolute, present and continuing guarantee of payment and not of collectability and is in no way conditioned or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any such Guaranteed Obligations, each Guarantor agrees to pay the same when due to the Holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Agreement. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guarantee.

(b) Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors, if any, and any other Person(s) who may guarantee any of the Guaranteed Obligations.

(c) To the fullest extent permitted by applicable law, each Guarantor, promptly after demand, will pay to the Holders the reasonable costs and expenses of collecting such amounts or otherwise enforcing or defending this Guarantee, including, without limitation, the reasonable fees and expenses of counsel and all expenses resulting from any legal action commenced to challenge the validity or enforceability of this Guarantee or any other instrument referred to herein. To the fullest extent permitted by applicable law, and notwithstanding the foregoing provisions or any other provision of this Guarantee, if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount (as defined below) determined as of such time with regard to such Guarantor, then this Guarantee shall be automatically amended to reduce the Guaranteed Obligations to the Maximum Guaranteed Amount. Such amendment shall not require the written consent of any Guarantor or any Holder and shall be deemed to have been automatically consented to by each Guarantor and each Holder. Each Guarantor agrees that the Guaranteed Obligations may at any time exceed the Maximum Guaranteed Amount without affecting or impairing the obligation of such Guarantor. “Maximum Guaranteed Amount” means, as of the date of determination with respect to a Guarantor, the lesser of (i) the amount of the Guaranteed Obligations outstanding on such date and (ii) the maximum amount that would not render such Guarantor’s liability under this Guarantee subject to avoidance under Section 548 of the United States Bankruptcy Code (or any successor provision) or any comparable provisions of applicable state law.

Section 2. Obligations Absolute.

The obligations of each Guarantor hereunder shall be absolute, irrevocable and unconditional, shall not be subject to any counterclaim, setoff, deduction or defense based upon any claim such Guarantor may have against the Company or any Holder or otherwise, and, to the fullest extent permitted by applicable law, shall remain in full force and effect (subject to Section 7 hereof) without regard to, and shall not be released, discharged or in any way affected by, any circumstance or condition whatsoever (regardless of whether such Guarantor shall have any knowledge or notice thereof), including, without limitation: (a) any amendment, modification or restatement of or deletion from or addition or supplement to any of the Notes or the Note Agreement (it being agreed that the obligations of each Guarantor hereunder shall apply to the Notes and the Note Agreement as so amended, modified or restated) or any assignment or transfer of any thereof or of any interest therein; (b) the addition, substitution or release of any other Guarantor or any other entity or other Person primarily or secondarily liable in respect of the Guaranteed Obligations; (c) any waiver, consent, extension, indulgence or other action or inaction under or in respect of the Notes or the Note Agreement; (d) any bankruptcy, insolvency, arrangement, reorganization, readjustment, composition, liquidation or similar proceeding with respect to the Company or its property; (e) any merger, amalgamation or consolidation of any Guarantor or of the Company into or with any other Person or any sale, lease or transfer of any or all of the assets of any Guarantor or of the Company to any Person; (f) any failure on the part of the Company for any reason to comply with or perform any of the terms of any agreement with any Guarantor; or (g) any other event or circumstance that might otherwise constitute a legal or equitable discharge or defense of a Guarantor (regardless of whether similar to the foregoing), and in any event however material or prejudicial it may be to any Guarantor or to any subrogation, contribution or reimbursement rights any Guarantor may otherwise have. Each Guarantor covenants to the fullest extent permitted by applicable law that (subject to Section 7 hereof) its obligations hereunder will not be discharged except by indefeasible payment in full in cash of all of the Guaranteed Obligations and all other obligations hereunder.

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Section 3. Waiver.

Each Guarantor unconditionally waives, to the fullest extent permitted by applicable law, (a) notice of acceptance of this Guarantee, of any action taken or omitted in reliance hereon and of any default by the Company in the payment of any amounts due under the Notes or the Note Agreement, and of any of the matters referred to in Section 2 hereof, (b) all notices that may be required by statute, rule of law or otherwise to preserve any of the rights of any Holder against such Guarantor, including, without limitation, presentment to or demand for payment from the Company or any Guarantor with respect to any Note, notice to the Company or to any Guarantor of default or protest for nonpayment or dishonor, (c) any right to require any Holder to enforce, assert or exercise any right, power or remedy including, without limitation, any right, power or remedy conferred in the Note Agreement or the Notes, (d) any requirement for diligence on the part of any Holder and (e) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release (other than a release of such Guarantor from its guarantee of the Guaranteed Obligations hereunder pursuant to Section 5.12 of the Note Agreement or pursuant to Section 7 hereof) or defense of a guarantor (other than the defense of payment) or that might otherwise limit recourse against such Guarantor.

Section 4. Subrogation.

(a) Each Guarantor covenants to the fullest extent permitted by applicable law that it will not exercise any rights that it may have acquired by way of subrogation under this Guarantee, by any payment made hereunder or otherwise, or accept any payment on account of such subrogation rights, or any rights of reimbursement, contribution or indemnity pursuant to the Notes or this Guarantee, unless and until all of the Guaranteed Obligations shall have been indefeasibly paid in full in cash.

(b) So long as any of the Guaranteed Obligations remain outstanding, if any amount shall be paid by or on behalf of the Company to any Guarantor on account of any of the rights waived in Section 4(a), such amount shall be held by such Guarantor in trust for the benefit of the Holders and shall, forthwith upon receipt by such Guarantor, be turned over to the Holders, in the form received (together with any necessary endorsements) to be applied against the Guaranteed Obligations, whether matured or unmatured, as may be directed by the Majority Holders.

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(c) Each Guarantor hereby agrees that, to the extent that a Guarantor shall have paid an amount hereunder to any Holder that is greater than the net value of the benefits received, directly or indirectly, by such paying Guarantor as a result of the issuance and sale of the Notes (such net value, its “Proportionate Share”), such paying Guarantor shall, subject to Section 4(a), be entitled to contribution from any Guarantor that has not paid its Proportionate Share of the Guaranteed Obligations. Any amount payable as a contribution under this Section 4(c) shall be determined as of the date on which the related payment is made by such Guarantor seeking contribution and each Guarantor acknowledges that the right to contribution hereunder shall constitute an asset of such Guarantor to which such contribution is owed. Notwithstanding the foregoing, the provisions of this Section 4(c) shall in no respect limit the obligations and liabilities of any Guarantor to the Holders hereunder or under the Notes or the Note Agreement, and each Guarantor shall remain jointly and severally liable for the full payment and performance of the Guaranteed Obligations.

Section 5. Merger, Consolidation, etc.

(a) Each Guarantor hereby agrees that it shall not consolidate with or merge with any other Person or convey, transfer, lease or otherwise dispose of all or substantially all of its assets in a single transaction or series of transactions to any Person unless:

(i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of any such Guarantor as an entirety, as the case may be, shall be a corporation, limited partnership or limited liability company organized and existing under the laws of the United States of America or any state thereof (including the District of Columbia), and, if such Guarantor is not such corporation, limited partnership or limited liability company, such corporation, limited partnership or limited liability company shall have executed and delivered to each Holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Guarantee; and

(ii) immediately before and immediately after giving effect to such transaction or each transaction in any such series of transactions, no Default or Event of Default shall have occurred and be continuing.

(b) Upon any consolidation or merger, or any conveyance, transfer, lease or other disposition of all or substantially all of the properties or assets of a Guarantor in a transaction that is subject to, and that complies with the provisions of Section 5(a) hereof, the successor Person formed by such consolidation or into or with which such Guarantor is merged or to which such conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, conveyance, transfer, lease or other disposition, the provisions of this Guarantee referring to such Guarantor shall refer instead to the successor Person and not to such Guarantor), and may exercise every right and power of such Guarantor under this this Guarantee with the same effect as if such successor Person had been named as such Guarantor herein.

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(c) Notwithstanding any contrary provision of this Guarantee, the Note Agreement or the Notes, nothing contained in this Guarantee, the Note Agreement or the Notes will in any way prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale, transfer or conveyance of all or substantially all of the assets of a Guarantor as an entirety to the Company or another Guarantor.

Section 6. Representations and Warranties of Each Guarantor.

Each Guarantor represents and warrants to each Holder as follows:

6.1 Authorization, Etc. Such Guarantor has taken all actions necessary to authorize it to execute, deliver and perform all of its obligations under this Guarantee. This Guarantee is a legally valid and binding obligation of such Guarantor, enforceable against it in accordance with its terms, except for (a) the effect thereon of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally and (b) limitations imposed by equitable principles upon the specific enforceability of any of the remedies, covenants or other provisions hereof and upon the availability of injunctive relief or other equitable remedies.

6.2 No Violation or Conflict. Neither the execution, delivery or performance of this Guarantee by such Guarantor, nor the compliance with its obligations hereunder, will:

(a) violate any provision of the Charter Documents of such Guarantor;

(b) violate any statute, law, rule or regulation or any judgment, decree, order, regulation or rule of any court or governmental authority or body to which such Guarantor or any of its respective properties may be subject;

(d) violate, or be in conflict with, or constitute a default under, or permit the termination of, or require the consent of any Person under, or result in the creation or imposition of any Lien (other than Permitted Liens) upon any property of such Guarantor under, any mortgage, indenture, loan agreement, note, debenture, agreement for borrowed money or any other agreement to which such Guarantor is a party or by which such Guarantor (or its properties) may be bound, other than such violations, conflicts, defaults, terminations and Liens, or such failures to obtain consents, which could not reasonably be expected to result in a Material Adverse Effect.

6.3 Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any governmental authority or body is required in connection with the execution, delivery or performance by such Guarantor of this Guarantee.

6.4 Solvency. After giving effect to the transactions contemplated herein and in the Note Agreement, such Guarantor will be Solvent.

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Section 7. Term and Release of Guarantee.

This Guarantee and all guarantees, covenants and agreements of the Guarantors contained herein shall continue in full force and effect and shall not be discharged until such time as all of the Guaranteed Obligations shall be indefeasibly paid in full in cash; provided that notwithstanding any other provision hereof to the contrary, each Guarantor shall automatically, completely and immediately be released from its guarantee hereunder of the Guaranteed Obligations without any further act by any Person upon the occurrence of any of the following events:

(a) any sale or other disposition of all or substantially all of the properties or assets of such Guarantor, by way of merger, consolidation or otherwise, to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company;

(b) any sale or other disposition of the Capital Stock of such Guarantor (by way of merger, consolidation or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company; provided that the Guarantor ceases to be a Restricted Subsidiary as a result of such sale or other disposition;

(c) the designation of such Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of the Note Agreement;

(d) the liquidation or dissolution of such Guarantor: provided that no Default or Event of Default occurs as a result thereof or has occurred or is continuing;

(e) such Guarantor consolidating with, merging into or transferring all of its properties or assets to the Company or another Guarantor, and as a result of, or in connection with, such transaction such Guarantor dissolves or otherwise ceases to exist; or

(f) as provided in (and subject to) Section 5.12 of the Note Agreement, the discharge or other release of such Guarantor from all its Obligations in respect of its Guarantee of (or other liability for) any Obligations under any Credit Facility.

Section 8. Additional Guarantors.

Subsequent to the date hereof, any Person may become a Guarantor under this Guarantee by executing a Guarantee Joinder substantially in the form of Exhibit A attached hereto and delivering the same to the Holders. Any such Person shall thereafter be a “Guarantor” for all purposes under this Guarantee.

Section 9. Amendment and Waiver.

9.1 Requirements. Except as otherwise provided in Section 1(c) hereof, this Guarantee may be amended, and the observance of any term hereof may be waived (either retroactively or prospectively), with (and only with) the written consent of each Guarantor and the Majority Holders, except that no amendment or waiver that results in the limitation of the liability of any Guarantor hereunder (except to the extent provided in Section 1(c) hereof) will be effective as to any Holder, unless consented to by such Holder in writing.

-6-

9.2 Binding Effect. Any amendment or waiver consented to as provided in this Section 9 applies equally to all Holders and is binding upon them and upon each future Holder and upon each Guarantor without regard to whether any Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant or agreement not expressly amended or waived or impair any right consequent thereon. No course of dealing between a Guarantor and the Holder nor any delay in exercising any rights hereunder or under any Note shall operate as a waiver of any rights of any Holder. As used herein, the term this “Guarantee” and references thereto shall mean this Guarantee as it may be amended, modified, supplemented or restated from time to time, including without limitation pursuant to any Guarantee Joinder.

Section 10. Miscellaneous.

10.1 Notices. All notices and communications provided for hereunder shall be in writing and sent (i) by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (ii) by registered or certified mail with return receipt requested (postage prepaid), or (iii) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent:

(a) if to any Guarantor, to such Guarantor at the address specified immediately under its executed signature block hereto or in any Guarantee Joinder, or such other address as such Guarantor shall have specified to the Holders in writing; or

(b) if to any Holder, to such Holder at the address specified for such communications set forth in the Note Agreement, or such other address as such Holder shall have specified to the Guarantors in writing.

10.2 Successors and Assigns. Except as expressly contemplated by Section 5 hereof, each Guarantor may not assign any of its rights, or delegate any of its obligations, under this Guarantee without the prior written consent of the Majority Holders, and any such purported assignment by any Guarantor without the written consent of the Majority Holders shall be null and void ab initio and of no force or effect. Subject to the foregoing restriction, this Guarantee shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto.

10.3 Entire Agreement. This Guarantee and the Note Agreement embody the entire agreement and understanding between each Holder and the Guarantors and supersedes all prior agreements and understandings relating to the subject matter hereof.

10.4 Severability. Any provision of this Guarantee that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the fullest extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

-7-

10.5 Headings. The headings in this Guarantee are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

10.6 Governing Law. THIS GUARANTY AND ALL ISSUES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, EACH GURANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEEDING AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.

10.7 Counterparts. This Guarantee may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

(Signature page(s) follow)

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IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be duly executed and delivered as of the date and year first above written.

	[Name of Guarantor]

	By:
		Name:
		Title:

	Notice Address for such Guarantor




	Attn:

Exhibit A

Guarantee Joinder

This Guarantee Joinder (this “Guarantee Joinder”), dated as of ________ __, 202__ is made by ______________________, a ____________ (the “Additional Guarantor”), in favor of the Holders from time to time of the Notes issued pursuant to the Note Agreement (as defined below).

Capitalized terms used and not otherwise defined herein have the definitions set forth in the Note Agreement or the Guarantee (as defined below).

Preliminary Statements:

WEHEREAS, pursuant to the Note Purchase Agreement dated as of July 1, 2020 (as amended, modified, supplemented or restated from time to time, the “Note Agreement”), by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), and the Purchasers listed on the signature pages thereto (the “Purchasers”), the Company has issued and sold $20,726,047 aggregate principal amount of its 8.00% Convertible Notes due 2025 (the “Notes”);

WHEREAS, prior to the date hereof, one or more Subsidiaries of the Company have entered into the Subsidiary Guarantee dated as of ________ __, 202__ (the “Guarantee”), pursuant to which such Subsidiary or Subsidiaries guaranteed all the Company’s obligations under the Notes and the Note Agreement; and

WHEREAS, the Company is required pursuant to the Note Agreement to cause the Additional Guarantor to deliver this Guarantee Joinder in order to cause the Additional Guarantor to become a Guarantor of the Notes pursuant to a Subsidiary Guarantee;

NOW THEREFORE, the Additional Guarantor hereby becomes a Guarantor (as defined in the Guarantee) for all purposes of the Guarantee and accordingly assumes all obligations as such. Without limiting the foregoing, the Additional Guarantor hereby (a) jointly and severally with the other Guarantors under the Guarantee, guarantees to the Holders the prompt payment in full when due (whether at stated maturity, upon redemption, by acceleration or otherwise) and the full and prompt performance and observance of all of the Guaranteed Obligations in the same manner and to the same extent as is provided in the Guarantee, (b) accepts and agrees to perform and observe all of the covenants set forth therein, (c) waives the rights set forth in Section 3 of the Guarantee, (d) agrees to perform and observe the covenants contained in the Guarantee and (e) makes the representations and warranties set forth in Section 6 of the Guarantee.

The address for notices and other communications to be delivered to the Additional Guarantor pursuant to 10.1 of the Guarantee is set forth below the signature of the Additional Guarantor on this Guarantee Joinder.

In Witness Whereof, the Additional Guarantor has caused this Guarantee Joinder to be duly executed and delivered as of the date first above written.

(Signature page follows)

A-2

	[Name of Guarantor]

	By:
		Name:
		Title:

	Notice Address for such Guarantor

A-3

ANNEX F

[Form of Officer’s Certificate]

GPAQ ACQUISITION HOLDINGS, INC.

_______, ______

Pursuant to Section 2.1(f) of the Note Purchase Agreement by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), and each of the Purchasers party thereto, dated July 1, 2020 (the “Purchase Agreement”), the undersigned, being the Chief Executive Officer of the Company hereby certifies as follows:

1. All of the conditions set forth in Sections 2.2, 2.3, 2.4 and 2.5 of the Purchase Agreement are satisfied on and as of the date hereof.

2. The representations and warranties of the Company contained or incorporated by reference in the Purchase Agreement were true and correct on and as of such date as though made on and as of the date hereof (unless stated to relate to another date).

3. Hunton Andrews Kurth LLP is entitled to rely on this certificate in connection with the legal opinions that they are rendering on the date hereof.

Capitalized terms used but not defined in this Officer’s Certificate shall have the respective meanings ascribed to them in the Purchase Agreement.

(Signature page follows)

The undersigned has executed this Officer’s Certificate as of the date first written above, in his capacity as Chief Executive Officer of GPAQ Acquisition Holdings, Inc.


	Name:
	Title:

Exhibit 10.8

Execution Version

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement dated as of July 1, 2020 (this “Agreement”), is made and entered into by and between GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), and each of the purchasers set forth on the signature pages hereto (each, a “Purchaser” and collectively, the “Purchasers”).

WHEREAS, this Agreement is being entered into pursuant to the Note Purchase Agreement dated as of July 1, 2020 (the “Purchase Agreement”) at the Closing (as defined in the Purchase Agreement) at which the Purchasers are purchasing, and the Company is issuing and selling, $20,721,293 in aggregate principal amount of the Company’s 8.00% Convertible Notes due 2025 (the “Notes”), which may be converted into shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), on the terms and subject to the conditions set forth in the Purchase Agreement;

WHEREAS, in connection with its obligations under the Purchase Agreement, the Company may issue to the Purchasers warrants to purchase shares of Common Stock (the “Warrants”) on the terms and subject to the conditions set forth in the Warrant Agreement (as defined in the Purchase Agreement); and

WHEREAS, in connection with its purchase of the Notes pursuant to the Purchase Agreement, the Purchasers wish to receive certain registration rights related to the shares of Common Stock issuable upon conversion of the Notes and the shares of Common Stock issuable upon exercise of the Warrants, and the Company desires to grant such rights on the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

Section 1. Definitions. As used herein, the following terms have the indicated meanings, unless the context otherwise requires:

“Affiliate” has the meaning given to such term in the Purchase Agreement.

“Agreement” has the meaning given to such term in the preamble hereto.

“Beneficially Own,” “Beneficially Owned,” “Beneficial Ownership” and “Beneficial Owner” with respect to any securities means a Holder having such ownership, control or power to direct the voting with respect to, or which otherwise enables a Holder to legally act with respect to, such securities as contemplated hereby, including without limitation pursuant to any agreement, arrangement or understanding, regardless of whether in writing. Securities “Beneficially Owned” shall include securities Beneficially Owned by all other persons with whom a Holder would constitute a “group” as within the meaning of Section 13(d) of the Exchange Act.

“Blackout Period” means, with respect to a Registration Statement, a period in each case commencing on the day immediately after the Company notifies the Holders pursuant to Section 3(e) that they are required to suspend offers and sales of Registrable Securities because the Company, in the good faith judgment of the Board, determines that the registration and distribution of (and/or the registration of the offer and sale of) the Registrable Securities covered or to be covered by such Registration Statement would be seriously detrimental to the Company and its stockholders (by requiring disclosure of material non-public information) and ending on the earlier of (x) the date upon which the material non-public information to which the Blackout Period relates is disclosed to the public or ceases to be material and (y) such time as the Company notifies the selling Holders that the Company will no longer delay such filing of such Registration Statement, recommence taking steps to make such Registration Statement effective, or allow sales pursuant to such Registration Statement to resume; provided that no Blackout Period may last for more than 90 consecutive days; and provided, further, that during any period of 365 consecutive days, Blackout Periods may not, in the aggregate, last for more than the result of 120 days minus the number of days that Holders were previously required pursuant to Section 3(e) to discontinue and suspend disposition of Registrable Securities because of the happening of any event described in Section 3(d)(vi).

“Board” means the board of directors of the Company.

“Business Day” means any day of the year, other than a Saturday, Sunday, or other day on which the SEC is required or authorized to close.

“Common Stock” has the meaning given to such term in the recitals hereto.

“Company” has the meaning given to such term in the preamble hereto.

“Effectiveness Deadline” means the first anniversary of the Closing Date (as defined in the Purchase Agreement).

“Effectiveness Period” has the meaning given to such term in Section 3(d)(i).

“Equity Securities Offering” means any underwritten registered offering of Relevant Securities, and any offering or placement of any Relevant Securities pursuant to Rule 144A under the Securities Act.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

“Family Member” means (a) with respect to any individual, such individual’s spouse, any descendants (whether natural or adopted), any trust all of the beneficial interests of which are owned by any of such individuals or by any of such individuals together with any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any such individual, and any corporation, association, partnership, limited liability company or other entity all of the equity interests of which are owned by those above described individuals, trusts or organizations and (b) with respect to any trust, the owners of the beneficial interests of such trust.

“FINRA” means the Financial Industry Regulatory Authority.

“Form S-1” means such form under the Securities Act as in effect on the date of this Agreement or any successor registration form thereto under the Securities Act subsequently adopted by the SEC.

“Form S-3” means such form under the Securities Act as in effect on the date of this Agreement or any successor registration form thereto under the Securities Act subsequently adopted by the SEC.

“Form S-4” means such form under the Securities Act as in effect on the date of this Agreement or any successor registration form thereto under the Securities Act subsequently adopted by the SEC.

“Form S-8” means such form under the Securities Act as in effect on the date of this Agreement or any successor registration form thereto under the Securities Act subsequently adopted by the SEC.

“Holder” means the Purchasers or any Purchaser’s successors and Permitted Assignees who acquire rights in accordance with this Agreement with respect to the Registrable Securities directly or indirectly from a Purchaser or another Holder (including from any Permitted Assignee) and “Holders” means all of the foregoing individuals or entities.

“Inspector” means any attorney, accountant or other agent retained by a Holder or any underwriter for the purposes provided in Section 3(d)(x).

“Market Standoff Period” means, with respect to each Equity Securities Offering, the period beginning on the date of first sale of securities pursuant to such Equity Securities Offering and ending on the date that shall be requested by the Company or the underwriters or initial purchasers retained by the Company to facilitate such Equity Securities Offering; provided, however, that each such period shall not be more than 120 days; and provided further that (a) such period shall be no longer than the shortest period imposed by the Company or the underwriters or initial purchasers upon any other person or entity (including any lockup period imposed upon the Company) and (b) if any other person or entity receives a waiver with respect to any such matters, the Holders shall be given a waiver with respect to their Relevant Securities as well.

“Notes” has the meaning given to such term in the recitals hereto.

“Permitted Assignee” means any person or entity holding Registrable Securities, to whom rights to cause the Company to register the resale of Registrable Securities granted to the Purchasers by the Company under Section 3 have been assigned in compliance with Section 4(a).

“Piggyback Offering” has the meaning given to such term in Section 3(b)(i).

“Piggyback Registration Statement” has the meaning given to such term in Section 3(b)(i).

“Piggyback Supplement” has the meaning given to such term in Section 3(b)(i).

“Purchase Agreement” has the meaning given to such term in the recitals hereto.

“Purchaser” has the meaning given to such term in the preamble hereto.

“register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness, or automatic effectiveness, of such registration statement.

“Registrable Securities” means (a) the Shares of Common Stock received by any Purchaser upon conversion of any Notes acquired by such Purchaser pursuant to the Purchase Agreement and (b) the Shares of Common Stock received by any Purchaser upon exercise of any Warrants acquired by such Purchaser pursuant to the Purchase Agreement and the Warrant Agreement. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (w) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement, (x) such securities shall have been otherwise transferred (other than to a Permitted Assignee who becomes a Holder in accordance with this Agreement), new certificates for such securities that do not bear a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act, (y) such securities are held by the Company or shall have ceased to be outstanding, or (z) such securities are sold under Rule 144 or may be sold under Rule 144 free from volume limitations under such rule.

“Registration Expenses” has the meaning given to such term in Section 3(f).

“Registration Statement” means any Piggyback Registration Statement, the Shelf Registration Statement and, if offers of Registrable Securities are included in any other registration statement filed by the Company by means of a Piggyback Supplement, such other registration statement, and “Registration Statements” means all such registration statements collectively.

“Relevant Security” means the Shares, any other equity security of the Company or any of its subsidiaries and any security convertible into, or exercisable or exchangeable for, any Shares or other such equity security.

“Rule 144” means Rule 144 under the Securities Act.

“SEC” means the United States Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

“SEC Effective Date” means, with respect to a Registration Statement, the date as of which such Registration Statement is originally declared effective by the SEC or otherwise becomes effective in accordance with the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute promulgated in replacement thereof, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

“Selling Expenses” has the meaning given to such term in Section 3(f).

“Shares” means the shares of Common Stock received by a Holder upon conversion of any Notes acquired by a Purchaser pursuant to the Purchase Agreement and the shares of Common Stock received by a Holder upon exercise of any Warrants acquired by the Purchaser and (a) any and all shares of capital stock or other equity securities of the Company that are added to or exchanged or substituted for such shares of Common Stock by reason of the declaration of any stock dividend or stock split, the issuance of any distribution or the reclassification, readjustment, recapitalization or other such modification of the capital structure of the Company; and (b) any and all shares of capital stock or other equity securities of any other corporation (now or hereafter organized under the laws of any state or other governmental authority) with which the Company is merged, which results from any consolidation or reorganization to which the Company is a party, or to which is sold all or substantially all of the shares or assets of the Company, for which such shares of Common Stock are exchanged or substituted in connection with such merger, consolidation, reorganization or sale, if immediately after such merger, consolidation, reorganization or sale, the Company or the stockholders of the Company own equity securities having in the aggregate more than 50% of the total voting power of such other corporation.

“Shelf Registration Statement” has the meaning given to such term in Section 3(a)(i).

“Transfer” has the meaning given to such term in Section 2(a).

“VWAP Price” means, for any period of measurement, the volume weighted average closing price of a share of Common Stock on the national securities exchange on which the Common Stock is then listed (or admitted to trading).

“Warrants” has the meaning given to such term in the recitals hereto.

Section 2. Market Standoff. Notwithstanding anything to the contrary set forth in this Agreement, with respect to each Equity Securities Offering conducted after the date hereof, the following provisions of this Section 2 shall apply, if and only if (x) the underwriters or initial purchasers retained by the Company to facilitate such offering request, in connection with such offering, that the officers or directors or significant stockholders of the Company refrain from selling any Relevant Security during any period, and (y) the Holders Beneficially Own shares of Common Stock representing at least 5% of the fully diluted equity interests in the Company (calculated giving effect to the conversion of all Notes and the exercise of all Warrants, and the exercise of all outstanding options, warrants and other rights to purchase or acquire any Common Stock of the Company):

(a) Following notice of the applicability of this Section 2, during the Market Standoff Period applicable to such Equity Securities Offering, each Holder will not, without the prior written consent of the Company, (i) directly or indirectly offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or purchase any put option with respect to, pledge, borrow or otherwise dispose of any Relevant Security, or (ii) establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act) with respect to any Relevant Security, or otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security (each of the transactions described in the immediately preceding clauses (i) and (ii), being referred to as a “Transfer”), regardless of whether such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; provided, however, that a transfer to a Permitted Assignee will not be subject to this Section 2 and provided, further, that this Section 2(a) will not prohibit transfers of Relevant Securities included in such Equity Securities Offering.

(b) Furthermore, each Holder hereby authorizes the Company during the Market Standoff Period to cause any transfer agent for the Relevant Securities to decline to transfer, and to note stop transfer restrictions on the stock register and other records relating to, any Relevant Securities for which such Holder is the record holder and, in the case of Relevant Securities for which such Holder is the Beneficial Owner but not the record holder, agrees during the Market Standoff Period to cause the record holder thereof to cause the relevant transfer agent to decline to transfer, and to note stop transfer restrictions on the stock register and other records relating to, such Relevant Securities.

(c) Subject to the provisions of Section 3(b), without the prior written consent of the Company, during the Market Standoff Period such Holder (i) will not participate in the filing with the SEC of any registration statement, or circulate or participate in the circulation of any preliminary or final prospectus or other disclosure document with respect to any proposed offering or sale of a Relevant Security and (ii) will not exercise any rights the undersigned may have to require registration with the SEC of any proposed offering or sale of a Relevant Security (including without limitation pursuant to this Agreement).

Section 3. Registration Rights.

(a) Shelf Registration Statement.

(i) Registration of Resales. The Company shall (i) file with the SEC a shelf registration statement on Form S-1 (or, if the Company is eligible to use such form, Form S-3) relating to the registration of the offer and resale by the Holders of all of the Registrable Securities (the “Shelf Registration Statement”) and (ii) use its commercially reasonable efforts to cause the Shelf Registration Statement to be declared effective by the SEC no later than the Effectiveness Deadline; provided, however, that the Company shall not be obligated to effect any such registration pursuant to this Section 3(a), or keep such registration or the Shelf Registration Statement effective pursuant to Section 3(d)(i), during any Blackout Period. Any such Shelf Registration Statement on Form S-1 may be converted to Form S-3 upon or after the Company becoming eligible to use Form S-3.

(ii) Liquidated Damages. If the Shelf Registration Statement is not declared effective on or prior to the Effectiveness Deadline, then each Holder shall be entitled to a payment (with respect to each outstanding Registrable Security held by the Holder), as liquidated damages and not as a penalty, of 0.25% of the Liquidated Damages Multiplier per 30-calendar-day period, which shall accrue daily, for the first 60 calendar days immediately following the Effectiveness Deadline, increasing by an additional 0.25% of the Liquidated Damages Multiplier per 30-calendar-day period, which shall accrue daily, for each subsequent 30-calendar-day period (i.e., 0.50% for 61-90 calendar days, 0.75% for 91-120 calendar days and 1.00% thereafter), up to a maximum of 1.00% of the Liquidated Damages Multiplier per 30-calendar-day period, until such time as such Shelf Registration Statement is declared effective or when the Registrable Securities covered by such Shelf Registration Statement cease to be Registrable Securities (the “Liquidated Damages”). As used herein, the term “Liquidated Damages Multiplier” means the product of the VWAP Price calculated for the consecutive 5 trading day period beginning on and including the Closing Date (as defined in the Purchase Agreement) times the number of issued and outstanding Shares held by such Holder. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within 10 Business Days after the end of each such 30-calendar-day period. Any Liquidated Damages shall be paid to each Holder in immediately available funds. The accrual of Liquidated Damages to a Holder shall cease (an “LD Termination Date,” and, each such period beginning on an Effectiveness Deadline and ending on an LD Termination Date being, an “LD Period”) at the earlier of (1) the Shelf Registration Statement being declared effective and (2) when the Holder’s Registrable Securities covered by the Shelf Registration Statement cease to be Registrable Securities. Any amount of Liquidated Damages shall be prorated for any period of less than 30 calendar days accruing during an LD Period. If the Company is unable to cause a Shelf Registration Statement to be declared effective on or prior to the Effectiveness Deadline as a result of an acquisition, merger, reorganization, disposition or other similar transaction, then the Company may request a waiver of the Liquidated Damages, and each Holder may individually grant or withhold its consent to such request in its discretion.

(b) Piggyback Registration Rights.

(i) Piggyback Registration. If after the date hereof, the Company shall determine to (A) file a registration statement to register the offer and sale for cash of any of its Common Stock for its own account in an underwritten offering, other than (i) a registration relating solely to employee benefit plans or securities issued or issuable to employees, directors or consultants (to the extent the securities owned or to be owned by such consultants could be registered on Form S-8) or any of their Family Members (including a registration on Form S-8), (ii) a registration on Form S-4 in connection with a merger, acquisition, divestiture, reorganization, exchange offer or similar event, (iii) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered or (iv) a shelf registration statement on Form S-3 or (B) file a prospectus supplement to an effective shelf registration statement with respect to an underwritten public offering in which Holders may be included (either by inclusion in the registration statement without the filing of a post-effective amendment thereto or because the Shelf Registration Statement is effective) (an offering pursuant to clause (A) or (B), a “Piggyback Offering”), then the Company shall promptly give to the Holders written notice thereof, and in no event shall such notice be given less than (X) twenty (20) calendar days prior to the filing of a registration statement contemplated by clause (A) (a “Piggyback Registration Statement”) or (Y) five (5) calendar days prior to the filing of a prospectus supplement contemplated by clause (B) ( a “Piggyback Supplement”) and the Company shall, subject to Section 3(b)(ii), include in such Piggyback Offering all of the Registrable Securities specified in a written request or requests, made within ten (10) calendar days (three (3) calendar days in the case of a Piggyback Supplement) after receipt of such written notice from the Company, by any Holder or Holders. However, the Company may, without the consent of the Holders, abandon such Piggyback Offering and withdraw such Piggyback Registration Statement or Piggyback Supplement.

(ii) Underwriting Procedures. The right of any Holder to be included in a Piggyback Offering pursuant to Section 3(b)(i) shall be conditioned upon such Holder’s participation in, and the inclusion of such Holder’s Registrable Securities in, the underwriting arrangements with respect to such Piggyback Offering to the extent provided herein. All Holders proposing to sell their securities through such Piggyback Offering shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Piggyback Offering by the Company. No Holder may participate in such Piggyback Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. No Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder and its ownership of the securities being registered on its behalf, its intended method of distribution and any other representation required by law, and no Holder shall be required to agree to indemnify any person beyond the scope of the indemnification provided to the Company under Section 3(h). Notwithstanding any other provision of this Section 3(b)(ii), if the managing underwriter or the Company determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriters may exclude from such Piggyback Offering the number of shares in excess of such limitation. The Company shall so advise all Holders (except those Holders who failed to timely elect to sell their Registrable Securities through such Piggyback Offering or have indicated to the Company their decision not to do so), and the number of shares that may be included in the underwriting shall be allocated:

(A) first, to the Company;

(B) second, to the Holders who have requested to sell their Registrable Securities in the Piggyback Offering and all other selling stockholders who have rights of registration on parity with the Holders and have requested to sell securities in the Piggyback Offering, on a pro rata basis according to the number of shares requested to be included; and

(C) then, to any other selling stockholders who have registration rights and have requested to sell securities in the Piggyback Offering.

No Registrable Securities excluded from the underwriting by reason of the underwriters’ marketing limitation shall be included in the Piggyback Offering. If any Holder disapproves of the terms of the underwriting arrangements with respect to a Piggyback Offering, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter; provided, however, that such withdrawal must be made at a time prior to the time of the pricing of the Piggyback Offering. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such Piggyback Offering; provided, however, that, if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such Piggyback Offering (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the Piggyback Offering the right to include additional Registrable Securities pursuant to the terms and limitations set forth herein in the same proportions described above.

(iii) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be obligated to effect, or take any action to effect, any Piggyback Offering pursuant to Section 3(b) after the Company has initiated two (2) such Piggyback Offerings (counting for this purpose only Piggyback Offerings pursuant to which securities have been sold).

(i) In the event that one or more Holders elects to sell $15 million or more of Registrable Securities pursuant to an underwritten public offering under the Shelf Registration Statement, the Company shall, upon request by such Holders, retain underwriters in order to permit such Holders to effect such offering. The obligation of the Company to retain underwriters shall include entering into an underwriting agreement in customary form with the underwriters or initial purchasers, which shall include, among other provisions, indemnities to the effect and to the extent provided in Section 3(h) and taking all reasonable actions as are requested by the underwriters or initial purchaser to expedite or facilitate the disposition of such Registrable Securities. The Company shall, upon request of the Holders, cause its management to participate in a roadshow or similar marketing effort on behalf of the Holders.

(ii) In no event shall the Company be required to participate in more than one underwritten offering requested by the Holders.

(iii) In connection with an underwritten offering pursuant to this Section 3(b)(iii), (A) Holders holding a majority of the Registrable Securities being sold in such underwritten offering shall be entitled to select the managing underwriter or initial purchaser, subject to the approval of the Company, which approval shall not be unreasonably withheld and (B) each Holder participating in the underwritten offering and the Company shall be obligated to enter into an underwriting agreement in customary form. No Holder may participate in such underwritten offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. No Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder and its ownership of the securities being registered on its behalf, its intended method of distribution and any other representation required by law, and no Holder shall be required to agree to indemnify any person beyond the scope of the indemnification provided to the Company under Section 3(h). If any Holder disapproves of the terms of the underwriting arrangements with respect to such underwritten offering, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter; provided, however, that such withdrawal must be made at a time prior to the time of pricing of such underwritten offering. Neither the Company nor any selling stockholders who have registration rights shall have any right to include securities in an underwritten offering by the Holders pursuant to this Section 3(b)(iii) and the Company shall not purport to grant any current or future shareholder such right.

(d) Registration Procedures. In the case of each registration, offering, qualification, or compliance effected by the Company pursuant to Section 3(a), Section 3(b) or Section 3(c), the Company will keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as to the initiation of each registration, offering, qualification, and compliance and as to the completion thereof. In addition, the Company hereby agrees as follows:

(i) The Company will use its commercially reasonable efforts to cause the Shelf Registration Statement to become and remain effective at least for a period ending with the first to occur of (A) the sale by the Holders of all Registrable Securities covered by such Registration Statement, (B) the sale of such Registrable Securities under Rule 144, or (C) the date that is three years after the SEC Effective Date of the Shelf Registration Statement; provided, however, that if the Company files the Shelf Registration Statement on Form S-1, subsequently becomes eligible to use Form S-3, and files a post-effective amendment to such Form S-1 on Form S-3 prior to the end of such period, the Company will use its commercially reasonable efforts to cause such Shelf Registration Statement as amended to remain effective until the end of such period (in any such case, the “Effectiveness Period”).

(ii) If any Registration Statement becomes subject to review by the SEC, the Company will promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the SEC.

(iii) The Company (A) will prepare and file with the SEC such amendments and supplements to each Shelf Registration Statement and any prospectus used in connection therewith as may be reasonably necessary to keep such Shelf Registration Statement effective during the applicable Effectiveness Period and (B) will comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during such period in accordance with the intended method(s) of disposition by the sellers thereof set forth in such Shelf Registration Statement.

(iv) The Company will furnish, without charge, to each Holder (A) a reasonable number of copies of each Registration Statement (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may request, (B) such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and any other prospectus filed under Rule 424 under the Securities Act) as each Holder may request, in conformity with the requirements of the Securities Act, and (C) such other documents as each Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder, but only during the applicable Effectiveness Period.

(v) The Company will use its commercially reasonable efforts to register or qualify the Registrable Securities under the applicable securities or blue sky laws of such jurisdictions as the Holders of a majority of the Registrable Securities reasonably requests as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the relevant Registration Statement is deemed effective by the SEC) and do any and all other acts and things which may be reasonably necessary or advisable to enable the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Holders; provided, however, that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (v), (B) subject itself to taxation in any such jurisdiction, or (C) consent to general service of process in any such jurisdiction.

(vi) As promptly as practicable after becoming aware of such event, the Company will notify each Holder of Registrable Securities being offered or sold pursuant to each Registration Statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event which comes to the Company’s attention if as a result of such event the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company shall promptly prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in the event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the termination of such suspension or Blackout Period.

(vii) The Company will comply, and continue to comply during the period that each Registration Statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the SEC with respect to the disposition of all securities covered by such Registration Statement.

(viii) As promptly as practicable after becoming aware of such event, the Company will notify each Holder of Registrable Securities being offered or sold pursuant to each Registration Statement of the issuance by the SEC of any stop order or other suspension of effectiveness of such Registration Statement.

(ix) The Company will permit the Holders of Registrable Securities being offered or sold pursuant to each Registration Statement and their legal counsel, at such Holders’ sole cost and expense, to review and have a reasonable opportunity to comment on such Registration Statement and all amendments and supplements thereto (unless such Registration Statement, amendments and supplements are filed without inclusion of any Registrable Securities therein) at least two (2) Business Days prior to their filing with the SEC.

(x) The Company will make available for inspection by the Holders and any Inspector retained by the Holders, at the Holders’ sole expense, all records as shall be reasonably necessary to enable the Holders and any underwriters to exercise their due diligence responsibility, and cause the Company’s officers, directors, and employees to supply all information which the Holders, any Inspector or any underwriter may reasonably request for purposes of such due diligence; provided, however, that the Holders shall hold in confidence and shall not make any disclosure of any information which the Company determines in good faith to be confidential, and of which determination the Holders are so notified at the time the Holders receive such information, unless (A) the Holders have, or obtained, knowledge of such information without violation of or protection under any agreements with the Company or, to its knowledge any third party, (B) the disclosure of such information is reasonably necessary to avoid or correct a misstatement or omission in each Registration Statement and a reasonable time prior to such disclosure the Holders shall have informed the Company of the need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement of omission, (C) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (D) the information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company shall not be required to disclose any confidential information to any Holder, Inspector or underwriter until and unless such Holder, Inspector or underwriter shall have entered into a confidentiality agreement with the Company with respect thereto, containing terms substantially similar to those set forth in this Section 3(d)(x), which agreement shall permit an Inspector retained by any Holder to disclose information to such Holder. Each Holder agrees that it shall, upon learning that disclosure of such information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the information deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning the Holders provided to the Company pursuant to this Agreement unless (1) disclosure of such information is reasonably necessary to comply with federal or state securities laws, (2) disclosure of such information to the SEC’s Staff of the Division of Corporation Finance is reasonably necessary to respond to comments raised by such staff in its review of such Registration Statement, (3) disclosure of such information is reasonably necessary to avoid or correct a misstatement or omission in such Registration Statement, (4) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (5) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Holders is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Holders and allow the Holders, at the Holders’ expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.

(xi) The Company will use its commercially reasonable efforts to cause all the Registrable Securities covered by each Registration Statement to be listed or quoted on the principal securities market on which securities of the same class or series issued by the Company are then listed or traded.

(xii) The Company will provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times.

(xiii) The Company will cooperate with the Holders of Registrable Securities being offered pursuant to each Registration Statement to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to such Registration Statement and enable such certificates to be in such denominations or amounts as the Holders may reasonably request.

(xiv) The Company will take all other reasonable actions necessary to expedite and facilitate disposition by the Holders of the Registrable Securities pursuant to each Registration Statement, including without limitation making its chief executive officer, president, chief financial officer and other appropriate officers and personnel available to participate in marketing efforts with respect to any registered underwritten public offering.

(xv) In the case of an underwritten offering, the Company shall furnish to the participating Holders signed counterparts, addressed to such Holders, of (i) any opinion of counsel to the Company delivered to any underwriter and (ii) any comfort letter from the Company’s independent public accountants (or accountants for any entity acquired by the Company whose financial statements are included in a Registration Statement) delivered to any underwriter. In the event no legal opinion is delivered to any underwriter, or in non-underwritten transactions, the Company shall furnish to participating Holders, at any time that such Holders elect to use a prospectus, an opinion of counsel to the Company stating only that the Registration Statement containing such prospectus has been declared effective and that no stop order is in effect.

(xvi) The Company shall comply with all applicable rules and regulations of the SEC and the Securities Act.

(e) Suspension of Offers and Sales. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(d)(vi) or of the commencement of a Blackout Period, such Holder shall discontinue and suspend disposition of Registrable Securities pursuant to any Registration Statement until the Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(d)(vi) or notice of the end of the Blackout Period, and, if so directed by the Company, such Holder shall deliver to the Company (at the Company’s expense) all copies (including, without limitation, any and all drafts), other than permanent file copies, then in such Holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice.

(f) Registration Expenses. All expenses incident to the Company’s performance of or compliance with this Agreement, including without limitation all registration and filing fees, messenger and delivery expenses, printing expenses, internal expenses (including without limitation all salaries and expenses of its officers and employees performing legal or accounting duties), all fees and expenses associated with filings required to be made with FINRA, as may be required by the rules and regulations of FINRA, fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), rating agency fees, the fees and expenses incurred in connection with the listing of the securities to be registered on all securities exchanges on which similar securities issued by the Company are then quoted or listed, reasonable fees and disbursements of counsel for the Company and its independent certified public accountants, and the reasonable fees and expenses of any other persons retained by the Company, in connection with the registration hereunder (collectively, the “Registration Expenses”) will be borne by the Company, but not including any roadshow expenses of the Holders, fees and expenses of counsel for the Holders and any underwriting, broker or dealer discounts or commissions attributable to the sale of Registrable Securities (which are hereinafter referred to as “Selling Expenses”). All Selling Expenses shall be borne solely by the Holders.

(g) Information by the Holder. The Holder or Holders of Registrable Securities included in any Registration Statement shall furnish to the Company such information required under Regulation S-K under the Securities Act regarding such Holder or Holders and the distribution proposed by such Holder or Holders as the Company may request in writing. No Holder of Registrable Securities will be entitled to have such Registrable Securities included in a Registration Statement if such Holder does not furnish such information requested by the Company.

(h) Indemnification.

(i) In the event of the offer and sale of Registrable Securities under the Securities Act, the Company shall, and hereby does, indemnify and hold harmless, to the fullest extent permitted by law, each Holder, its directors, officers and partners, each other person who participates as an underwriter in the offering or sale of such securities, and each other person, if any, who controls or is under common control with such Holder or any such underwriter within the meaning of Section 15 of the Securities Act, against any losses, claims, damages, liabilities (joint or several), and expenses to which such Holder or any such director, officer or partner, underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in (A) any Registration Statement, any preliminary prospectus, final prospectus, summary prospectus or free writing prospectus, or any amendment or supplement thereto, or (B) in any materials or information provided to investors by, or with the written approval of, the Company in connection with the marketing of the offering of the Registrable Securities, including any road show or investor presentations made to investors by the Company (whether in person or electronically), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or free writing prospectus, in light of the circumstances in which they were made) not misleading, and the Company shall reimburse the Holder, and each such director, officer, partner, underwriter and controlling person for any legal or any other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, damage, liability, action or proceeding; provided that the foregoing shall not apply, and the Company shall not be liable, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding, whether commenced or threatened, in respect thereof) or expense arises out of or is based upon (X) an untrue statement or alleged untrue statement in or omission or alleged omission from such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus or free writing prospectus, or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by or on behalf of such Holder specifically stating that it is for use in the preparation thereof, or (Y) such Holder’s failure to comply with the terms of the plan of distribution mechanics described in the applicable prospectus. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holders, or any such director, officer, partner, underwriter or controlling person, and shall survive the transfer of such shares by the Holders.

(ii) As a condition to including any Registrable Securities to be offered by a Holder in any Registration Statement, such Holder agrees to be bound by the terms of this Section 3(h) and to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors and officers, each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, legal counsel and accountants for the Company, any underwriter, any other Holder selling securities in such Registration Statement (or any other registration statement filed by the Company to which a Piggyback Supplement relates) and any controlling person within the meaning of the Securities Act of any such underwriter or other Holder, against any losses, claims, damages, liabilities (joint or several), and expenses to which the Company, any of its directors, officers, controlling persons, legal counsel or accountants, any underwriter, any other Holder, or any controlling person of such underwriter or other Holder may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) or expenses arise out of or are based upon (A) an untrue statement or alleged untrue statement in or omission or alleged omission from any Registration Statement (or any other registration statement filed by the Company to which a Piggyback Supplement relates), any preliminary prospectus, final prospectus, summary prospectus or free writing prospectus, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by or on behalf of such Holder specifically stating that it is for use in the preparation thereof, or (B) such Holder’s failure to comply with the terms of the plan of distribution mechanics described in the applicable prospectus. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company, any such director, officer or controlling person, any such underwriter or other Holder, or any controlling person of any such underwriter or other Holder, and shall survive the transfer of such shares by the Holder, and such Holder shall reimburse the Company, any of its directors, officers, controlling persons, legal counsel or accountants, any underwriter, any other Holder, or any controlling person of such underwriter or other Holder for any legal or other expenses reasonably incurred by them in connection with investigating, defending, or settling such loss, claim, damage, liability, action, or proceeding; provided, however, that such indemnity agreement found in this Section 3(h)(ii) shall in no event exceed the gross proceeds from the offering received by such Holder.

(iii) Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in Section 3(h)(i) or Section 3(h)(ii) (including any governmental action), such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the indemnifying party of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under Section 3(h)(i) or Section 3(h)(ii), except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. If any such action is brought against an indemnified party, unless in the reasonable judgment of counsel to such indemnified party a conflict of interest between such indemnified and indemnifying parties may exist (including situations in which the indemnified party may have defenses not available to the indemnifying party) in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties arises in respect of such claim after the assumption of the defenses thereof or the indemnifying party fails to defend such claim in a diligent manner, other than reasonable costs of investigation. Neither an indemnified nor an indemnifying party shall be liable for any settlement of any action or proceeding effected without its consent. No indemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement, which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. Notwithstanding anything to the contrary set forth herein, and without limiting any of the rights set forth above, in any event any party shall have the right to retain, at its own expense, counsel with respect to the defense of a claim.

(iv) In the event that an indemnifying party does or is not permitted to assume the defense of an action pursuant to Section 3(h)(iii) or in the case of the expense reimbursement obligation set forth in Section 3(h)(i) and Section 3(h)(ii), the indemnification required by Section 3(h)(i) and Section 3(h)(ii) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills received or expenses, losses, damages, or liabilities are incurred.

(v) If the indemnification provided for in this Section 3(h) is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall (A) contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense as is appropriate to reflect the proportionate relative fault of the indemnifying party on the one hand and the indemnified party on the other (determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission), or (B) if the allocation provided by clause (A) above is not permitted by applicable law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, not only the proportionate relative fault of the indemnifying party and the indemnified party, but also the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other, as well as any other relevant equitable considerations; provided, however, that in no event shall any Holder be required to contribute an aggregate amount in excess of the gross proceeds from the offering received by such Holder. No indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any indemnifying party who was not guilty of such fraudulent misrepresentation.

(vi) Indemnification similar to that specified in the preceding subsections of this Section 3(h) (with appropriate modifications) shall be given by the Company and each Holder of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority other than the Securities Act.

Section 4. Miscellaneous.

(a) Assignment of Rights; Successors and Assignees. The rights to cause the Company to register the resale of Registrable Securities granted to the Purchasers by the Company under Section 3 may be assigned by any Purchaser to one or more transferee(s) of such Registrable Securities; provided, however, that (i) such transfer of Registrable Securities is effected in accordance with applicable securities laws, (ii) unless such transferee of Registrable Securities is an Affiliate of such Purchaser, such transferee holds Registrable Securities representing at least $2.5 million of the Registrable Securities (immediately after giving effect to such transfer), (iii) the Company is given written notice prior to any said transfer or assignment, stating the name and address of each such transferee and assignee and identifying the Registrable Securities with respect to which such registration rights are being assigned, and (iv) each such transferee and assignee assumes in writing responsibility for its portion of the obligations of such Purchaser under this Agreement and accordingly agrees in writing to become subject to the terms of this Agreement as a Holder. The Company may not assign any of its rights, or delegate any of its obligations, under this Agreement without the prior written consent of the Holders of a majority of the Registrable Securities outstanding as of the date of such assignment, and any such purported assignment by the Company without the written consent of such Holders shall be null and void ab initio and of no force or effect. This Agreement shall inure to the benefit of, and be binding upon, the successors and the assignees (permitted pursuant under this Section 4(a)) of each of the parties hereto, including subsequent Holders of Registrable Securities (to the extent permitted herein).

(b) Notices. All notices or other communications which are required or permitted under this Agreement shall be in writing and sufficient if delivered by hand, by facsimile transmission, by registered or certified mail, postage pre-paid, by electronic mail, or by courier or overnight carrier, to the persons at the addresses set forth below (or at such other address as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:

If to the Company:		GPAQ Acquisition Holdings, Inc. 2626 Fulton Dr NW, Canton, OH 44718 Attn: Michael Crawford

with a copy (which shall not constitute notice) to:		Hunton Andrews Kurth LLP 2200 Pennsylvania Avenue NW Washington, DC 20037 Attention: J. Steven Patterson Facsimile: (202) 778-2201

If to a Holder:		to such address specified on the signature page for such Holder attached hereto or in the notice required by Section 4(a)

or at such other address as any party shall have furnished to the other party in writing.

(c) Rule 144. The Company covenants that it shall use its reasonable commercial efforts to file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as the Holders may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

(d) Specific Performance. Each party to this Agreement agrees that any breach by it of any provision of this Agreement would irreparably injure the other party and that money damages would be an inadequate remedy therefor. Accordingly, each such party agrees that the other parties hereto shall be entitled to one or more injunctions enjoining any such breach and requiring specific performance of this Agreement and consents to the entry thereof, in addition to any other remedy to which such other party is entitled at law or in equity.

(e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.

(f) Amendments. The provisions of this Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be waived, with and only with an agreement or consent in writing signed by the Company and by the Holders of a majority of the Registrable Securities outstanding as of the date of such amendment or waiver. The Purchasers acknowledge that by the operation of this Section 4(f), the Holders of a majority of the outstanding Registrable Securities may have the right and power to diminish or eliminate all rights of the Holders under this Agreement.

(g) Obligations Limited to Parties to Agreement. Each of the parties hereto covenants, agrees and acknowledges that no person other than the Company and the Holders shall have any obligation hereunder and that, notwithstanding that one or more of the Holders may be a corporation, partnership or limited liability company, no recourse under this Agreement or under any documents or instruments delivered in connection herewith shall be had against any former, current or future director, officer, general or limited partner, manager, member, stockholder or Affiliate of any of the Holders or any former, current or future director, officer, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise by incurred by any former, current or future director, officer, general or limited partner, manager, member, stockholder or Affiliate of any of the Holders or any former, current or future director, officer, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of the Holders under this Agreement or any documents or instruments delivered in connection herewith or for any claim based on, in respect of or by reason of such obligation or its creation, except in each case for any assignee of a Holder hereunder.

(h) Headings and Cross References. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement. Unless the context requires otherwise, all cross references in this Agreement refer to sections and subsections of this Agreement.

(i) Severability. In the case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(j) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter of this Agreement.

(k) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(Remainder of Page Intentionally Left Blank)

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

	THE COMPANY:

	GPAQ ACQUISITION HOLDINGS, INC.

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

	PURCHASERS:

	MAGNETAR CONSTELLATION MASTER FUND, LTD.

	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name: Michael Turro
	Title: Chief Compliance Officer

MAGNETAR STRUCTRED CREDIT FUND, L.P.

By: Magnetar Financial, LLC, its general partner

	By:	/s/ Michael Turro
	Name: Michael Turro
	Title: Chief Compliance Officer

	MAGNETAR XING HE MASTER FUND LTD.

	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name: Michael Turro
	Title: Chief Compliance Officer

	MAGNETAR SC FUND LTD

	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name: Michael Turro
	Title: Chief Compliance Officer

	PURPOSE ALTERNATIVE CREDIT FUND – T LLC

	By: Magnetar Financial, LLC, its manager

	By:	/s/ Michael Turro
	Name: Michael Turro
	Title: Chief Compliance Officer

	PURPOSE ALTERNATIVE CREDIT FUND – F LLC

	By: Magnetar Financial, LLC, its manager

	By:	/s/ Michael Turro
	Name: Michael Turro
	Title: Chief Compliance Officer

	TIMKEN FOUNDATIO OF CANTON

	By:
	Name:	Ward J. Timken
	Title:	President

	STARK COMMUNITY FOUNDATION

	By:
	Name:	Mark J. Samolcyzk
	Title:	President and CEO

	ch capital lending, LLC

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

	By:
	Name:	Richard H. Klein
	Title:	Chief Financial Officer

	Gordon Pointe Management, LLC

	By:	/s/ James J. Dolan
	Name: James J. Dolan
	Title: Manager

	JMJS Group, LLLP

	By:	/s/ Jerre Stead
	Name: Jerre Stead
	Title: General Partner

	glenn r. august


	Glenn R. August

	MICHAEL S. GROSS


	Michael S. Gross

	Bradley M. Chase and Judith E. Chase, as Tenants-in-Common


	Bradley M. Chase


	Judith E. Chase

	Kevin O'Callaghan

	/s/ Kevin O’Callaghan
	Kevin O’Callaghan

	JOHN AND KELLY WARNER


	John Warner


	Kelly Warner

	JEFFREY SLOVIN

	/s/ Jeffrey Slovin
	Jeffrey Slovin

Exhibit 10.9

GPAQ ACQUISITION HOLDINGS, INC.
WARRANT AGREEMENT

This Warrant Agreement dated as of July 1, 2020 (this “Agreement”) is entered into by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), and the purchasers party hereto (each, a “Purchaser” and collectively, the “Purchasers”). All capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Note Purchase Agreement dated as of the date hereof (the “Note Purchase Agreement”) by and among the Company and the Purchasers.

WHEREAS, pursuant to the Note Purchase Agreement, in the event of a redemption of the Notes issued thereunder, upon payment of the redemption price for such Notes being redeemed, the Company shall issue to each Holder of the Notes being redeemed a number of warrants, as hereinafter described (the “Warrants”), to purchase the number of shares of common stock of the Company that such Holder would have received if such Holder were to have converted the redeemed Notes in full on the Redemption Date (such shares of common stock of the Company, the “Common Stock,” and together with any other securities issuable upon exercise of the Warrants, the “Warrant Shares”);

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows:

Section 1. Warrant Certificates. In connection with any redemption of the Notes, upon payment of the redemption price for such Notes being redeemed, the Company will issue and deliver a certificate or certificates evidencing the Warrants (the “Warrant Certificates”) pursuant to the terms of the Note Purchase Agreement. Such Warrant Certificates shall be substantially in the form set forth as Exhibit A attached hereto. Each Warrant Certificate shall be dated the date of issuance by the Company.

Section 2. Execution of Warrant Certificates. Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board, Chief Executive Officer, President or any Vice President. The signature upon the Warrant Certificates may be in the form of a facsimile signature of the present or any future Chairman of the Board, Chief Executive Officer, President or Vice President of the Company, and may be imprinted or otherwise reproduced on the Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been Chairman of the Board, Chief Executive Officer, President or Vice President of the Company, notwithstanding the fact that at the time the Warrant Certificates shall be delivered or disposed of by the Holders thereof he shall have ceased to hold such office.

Section 3. Registration. The Company shall number and register the Warrant Certificates and the Warrant Shares in registers (the “Warrant Register” and the “Warrant Shares Register,” respectively) as they are issued. The Company may deem and treat the registered holder(s) from time to time of the Warrant Certificates (the “Holders”) as the absolute owner(s) thereof (notwithstanding any notation of ownership or other writing thereon made by anyone) for all purposes and shall not be affected by any notice to the contrary.

Section 4. Restrictions on Transfer; Registration of Transfers. Prior to any proposed transfer of the Warrants or the Warrant Shares, unless such transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”), the transferring Holder will, if requested by the Company, deliver to the Company an opinion of counsel, reasonably satisfactory in form and substance to the Company, to the effect that the Warrants or Warrant Shares, as applicable, may be sold or otherwise transferred without registration under the Securities Act; provided, however, that with respect to transfers by Holders to their Affiliates, no such opinion shall be required. Upon original issuance thereof, and until such time as the same shall have been registered under the Securities Act or sold pursuant to Rule 144 promulgated thereunder (or any similar rule or regulation), each Warrant Certificate shall bear the legend included on the first page of Exhibit A, unless in the opinion of such counsel, such legend is no longer required by the Securities Act.

The Company shall from time to time register the transfer of any outstanding Warrant Certificates in the Warrant Register to be maintained by the Company upon surrender thereof accompanied by a written instrument or instruments of transfer in form reasonably satisfactory to the Company, duly executed by the registered Holder or Holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney. Upon any such registration of transfer, a new Warrant Certificate shall be issued to the transferee Holder(s) and the surrendered Warrant Certificate shall be canceled and disposed of by the Company.

Section 5. Warrants; Exercise of Warrants.

(a) Subject to the terms of this Agreement, each Holder shall have the right, which may be exercised commencing on the date of issuance of the Warrants and until 5:00 p.m., Eastern Time, on the Maturity Date of the Notes (such date being referred to in this Agreement as the “Expiration Date”), to receive from the Company the number of fully paid and nonassessable Warrant Shares (and such other consideration) that the Holder may at the time be entitled to receive on exercise of such Warrants and payment of the Exercise Price then in effect for such Warrant Shares. Each Warrant not exercised prior to 5:00 p.m., Eastern Time, on the Expiration Date shall become void and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time. No adjustments as to dividends will be made upon exercise of the Warrants, except as otherwise expressly provided herein.

(b) The initial price at which each Warrant shall be exercisable (the “Exercise Price”) shall equal the Conversion Price for the corresponding redeemed Notes that was in effect immediately prior to the redemption of such Notes, subject to adjustment after issuance of such Warrant pursuant to the terms hereof.

(c) A Warrant may be exercised upon surrender to the Company at its office designated for such purpose (as provided for in Section 12 hereof) of the Warrant Certificate or Certificates to be exercised with the form of election to purchase attached thereto duly filled in and signed, and upon payment to the Company of the Exercise Price for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be made in cash or by certified or official bank check payable to the order of the Company.

(d) Subject to the provisions of Section 6 hereof, upon such surrender of Warrant Certificates and payment of the Exercise Price, the Company shall issue and cause to be delivered, as promptly as practicable, to or upon the written order of the Holder and in such name or names as such Holder may designate a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants (and such other consideration as may be deliverable upon exercise of such Warrants) together with cash for fractional Warrant Shares as provided in Section 10 hereof. The certificate or certificates for such Warrant Shares shall be deemed to have been issued and the person so named therein shall be deemed to have become a holder of record of such Warrant Shares as of the date of the surrender of such Warrants and payment of the Exercise Price, irrespective of the date of delivery of such certificate or certificates for Warrant Shares. The Company shall register the Warrant Shares in the Warrant Shares Register, as provided in Section 3 hereof, and shall from time to time register the transfer of any outstanding Warrant Shares in the Warrant Shares Register.

(e) Each Warrant shall be exercisable, at the election of the Holder thereof, either in full or from time to time in part and, in the event that a Warrant Certificate is exercised in respect of fewer than all of the Warrant Shares issuable on such exercise at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants will be issued and delivered pursuant to the provisions of this Section 5 and of Section 2 hereof.

(f) All Warrant Certificates surrendered upon exercise of Warrants shall be cancelled and disposed of by the Company. The Company shall keep copies of this Agreement and any notices given or received hereunder shall be available for inspection by the Holders during normal business hours at the Company’s office.

(g) In addition to and without limiting the rights of the Holder under the terms hereof, at a Holder’s option, a Warrant Certificate may be exercised by being exchanged in whole or in part at any time or from time to time prior to the Expiration Date for a number of shares of Common Stock having an aggregate Specified Value (as defined in Section 9(h) hereof) on the date of such exercise equal to the difference between (x) the Specified Value of the number of Warrant Shares in respect of which such Warrant Certificate is then exercised and (y) the aggregate Exercise Price for such shares in effect at such time. The following equation illustrates how many Warrant Shares would then be issued upon exercise pursuant to this subsection:

where:

SV	=	Specified Value per Warrant Share at date of exercise.

PSP	=	Per share Exercise Price at date of exercise.

N	=	Number of Warrant Shares in respect of which the Warrant Certificate is being exercised by exchange.

X	=	Number of Warrant Shares issued upon exercise by exchange.

Upon any such exercise, the number of Warrant Shares purchasable upon exercise of such Warrant Certificate shall be reduced by the number of Warrant Shares so exchanged and, if a balance of purchasable Warrant Shares remain after such exercise, the Company shall execute and deliver to the Holder thereof a new Warrant for such balance of Warrant Shares.

No payment of any cash or other consideration to the Company shall be required from the Holder of a Warrant in connection with any exercise thereof by exchange pursuant to this subsection. Such exchange shall be effective upon the date of receipt by the Company of the original Warrant Certificate surrendered for cancellation and a written request from the Holder thereof that the exchange pursuant to this subsection be made, or at such later date as may be specified in such request. No fractional shares arising out of the above formula for determining the number of Warrant Shares issuable in such exchange shall be issued, and the Company shall in lieu thereof make payment to the Holder of cash in the amount of such fraction multiplied by the Specified Value of a Warrant Share on the date of the exchange.

Section 6. Taxes.

(a) Withholding and Reporting Requirements. The Company shall comply with all applicable tax withholding and reporting requirements imposed by any governmental authority, and all distributions, including deemed distributions, pursuant to the Warrants or Warrant Shares will be subject to applicable withholding and reporting requirements. Notwithstanding any provision to the contrary, the Company will be authorized to (i) take any actions that may be necessary or appropriate to comply with such withholding and reporting requirements, (ii) apply a portion of any cash distribution to be made under the Warrants or Warrant Shares to pay applicable withholding taxes, (iii) liquidate a portion of any non-cash distribution to be made under the Warrants or Warrant Shares to generate sufficient funds to pay applicable withholding taxes or (iv) establish any other mechanisms the Company believes are reasonable and appropriate, including requiring Holders to submit appropriate tax and withholding certifications (such as IRS Forms W-9 and the appropriate IRS Forms W-8, as applicable) as a condition of receiving the benefit of any adjustment pursuant to Section 9.

(b) Payment of Taxes. The Company will pay all documentary stamp taxes and other governmental charges (excluding all foreign, federal or state income, franchise, property, estate, inheritance, gift or similar taxes) in connection with the issuance or delivery of the Warrants hereunder, as well as all such taxes attributable to the initial issuance or delivery of Warrant Shares upon the exercise of Warrants and payment of the Exercise Price. The Company shall not, however, be required to pay any tax that may be payable in respect of any subsequent transfer of the Warrants or any transfer involved in the issuance and delivery of Warrant Shares in a name other than that in which the Warrants to which such issuance relates were registered, and, if any such tax would otherwise be payable by the Company, no such issuance or delivery shall be made unless and until the person requesting such issuance has paid to the Company the amount of any such tax, or it is established to the reasonable satisfaction of the Company that any such tax has been paid.

Section 7. Mutilated or Missing Warrant Certificates. If a mutilated Warrant Certificate is surrendered to the Company, or if the Holder of a Warrant Certificate claims and submits an affidavit or other evidence satisfactory to the Company to the effect that the Warrant Certificate has been lost, destroyed or wrongfully taken, the Company shall issue a replacement Warrant Certificate. If required by the Company such Holder must provide an indemnity bond, or other form of indemnity, sufficient in the judgment of the Company to protect the Company from any loss that it may suffer if a Warrant Certificate is replaced. If any institutional Holder (or nominee thereof) is the owner of any such lost, stolen or destroyed Warrant Certificate, then the affidavit of an authorized officer of such owner, setting forth the fact of loss, theft or destruction and of its ownership of the Warrant Certificate at the time of such loss, theft or destruction shall be accepted as satisfactory evidence thereof and no further indemnity shall be required as a condition to the execution and delivery of a new Warrant Certificate other than the unsecured written agreement of such owner to indemnify the Company or, at the option of institutional Holder, provide an indemnity bond in the amount of the Specified Value of the Warrant Shares for which such Warrant Certificate was exercisable.

Section 8. Reservation of Warrant Shares. For so long as the Company is a corporation with any Warrants outstanding, the Company shall at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Common Stock or its authorized and issued Common Stock held in its treasury, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the maximum number of shares of Common Stock that may then be deliverable upon the exercise of all outstanding Warrants. The Company or, if appointed, the transfer agent for the Common Stock and each transfer agent for any shares of the Company’s capital stock issuable upon the exercise of any of the Warrants (collectively, the “Transfer Agent”), will be irrevocably authorized and directed at all times to reserve such number of authorized shares as shall be required for such purpose. The Company shall keep a copy of this Agreement on file with any such Transfer Agent. The Company will supply any such Transfer Agent with duly executed certificates for such purposes and will provide or otherwise make available all other consideration that may be deliverable upon exercise of the Warrants. The Company will furnish any such Transfer Agent a copy of all notices of adjustments and certificates related thereto, transmitted to each Holder pursuant to Section 11 hereof.

Before taking any action that would cause an adjustment pursuant to Section 9 hereof to reduce the Exercise Price below the then par value (if any) of the Warrant Shares, the Company shall take any action that may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares at the Exercise Price as so adjusted.

The Company covenants that all Warrant Shares and other capital stock issued upon exercise of Warrants will, upon payment of the Exercise Price therefor and issue thereof, be validly authorized and issued, fully paid, nonassessable, free of preemptive rights and free, subject to Section 6 hereof, from all taxes (other than income taxes), liens, charges and security interests with respect to the issue thereof.

Section 9. Adjustment of Exercise Price and Warrant Number. The number of shares of Common Stock issuable upon the exercise of each Warrant (the “Warrant Number”) is initially one. The Warrant Number is subject to adjustment from time to time upon the occurrence of the events enumerated in, or as otherwise provided in, this Section 9.

(a)

Adjustment for Change in Capital Stock. If the Company:

(i) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock;

(ii) subdivides its outstanding shares of Common Stock into a greater number of shares; or

(iii) combines its outstanding shares of Common Stock into a smaller number of shares;

then the Warrant Number shall be adjusted based on the following formula:

Where

Wʹ	=	the adjusted Warrant Number in effect immediately after the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately after the open of business on the effective date of such share split or share combination, as applicable.

W	=	the Warrant Number immediately prior to the open of business on such Ex-Dividend Date or such effective date.

OSʹ	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

OS	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or such effective date.

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution or the effective date for such share split or share combination. If any dividend or distribution of the type described in this Section 9(a) is declared but not so paid or made, the Warrant Number shall again be adjusted to the Warrant Number which would then be in effect if such dividend or distribution had not been declared.

Such adjustment shall be made successively whenever any event listed above shall occur. If the occurrence of any event listed above results in an adjustment under subsection (b) or (c) of this Section 9, no further adjustment shall be made under this subsection (a).

(b) Adjustment for Rights or Warrants Issue. If the Company issues to all or substantially all holders of the Common Stock any rights or warrants entitling them for a period of not more than 60 calendar days after the announcement date of such issuance to subscribe for or purchase shares of the Common Stock at a price per share less than the average of the Last Reported Sale Price of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, the Warrant Number shall be adjusted based on the following formula:

Where

Wʹ	=	the adjusted Warrant Number immediately after the open of business on the Ex-Dividend Date for such issuance.
W	=	the Warrant Number immediately prior to the open of business on such Ex-Dividend Date.
OS	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date.
X	=	the total number of shares of Common Stock issuable pursuant to such rights or warrants.
Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Price of the Common Stock over the 10 consecutive Trading period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights or warrants.

To the extent such rights or warrants are not exercised prior to their expiration or termination, the Warrant Number shall be readjusted to the Warrant Number that would be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Warrant Number shall again be adjusted to be the Warrant Number that would then be in effect if the date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. For the purposes of this Section 9(b), in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Price of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on the exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the board of directors of the Company.

(c) Adjustment for Other Distributions. If the Company distributes to all or substantially all holders of its Common Stock (i) shares of any class of Capital Stock of the Company, (ii) any evidences of indebtedness of the Company, (iii) other assets or property of the Company, or (iv) any rights or warrants to acquire the Company’s Capital Stock or other securities (in each case of clauses (i) through (iv), excluding (x) dividends or distributions and rights or warrants as to which an adjustment was effected pursuant to Section 9(a) or Section 9(b), (y) dividends or distributions paid exclusively in cash and (z) Spin-Offs to which the provisions set forth below in this Section 9(c) shall apply), then, except to the extent the Holders participate in such distribution, the Warrant Number shall be adjusted based on the following formula:

Where

Wʹ	=	the adjusted Warrant Number in effect immediately after the open of business on the Ex-Dividend Date for such distribution.

W	=	the Warrant Number immediately prior to the open of business on such Ex-Dividend Date.

SP	=	The average of the Last Reported Sale Price of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution.

FMV	=	the fair market value (as determined by the board of directors of the Company) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights or warrants distributed with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If the board of directors of the Company determines the “FMV” (as defined above) of any distribution for purposes of this Section 9(c) by reference to the actual or when-issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the average of the Last Reported Sale Price of the Common Stock. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP” (as defined above), in lieu of the foregoing adjustment, each Holder shall receive, in respect of each Warrant at the same time and upon the same terms as holders of the Common Stock, the amount and kind of securities, assets and other property such Holder would have received if such Holder owned on the relevant Record Date for such distribution a number of shares of Common Stock equal to the Warrant Number in effect on such Record Date for the distribution of the securities or assets.

With respect to an adjustment pursuant to this Section 9(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit and such dividend or distribution is listed for trading on a securities exchange (a “Spin-Off”), the Warrant Number shall be increased based on the following formula:

Where

Wʹ	=	the adjusted Warrant Number in effect immediately after the end of the Valuation Period (as defined below).

W	=	the Warrant Number immediately prior to the end of the Valuation Period.

FMV	=	the average of the Last Reported Sale Price of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”).

MP	=	the average of the Last Reported Sale Price of Common Stock over the Valuation Period.

The adjustment to the Warrant Number under the immediately preceding paragraph will occur on the last day of the Valuation Period; provided, that in respect of any exercise of Warrants during the Valuation Period, references above to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and such exercise date in determining the applicable Warrant Number.

This subsection does not apply to any transaction described in subsection (a) of this Section 9 or to rights or warrants referred to in subsection (b) of this Section 9.

(d) Adjustment for Common Stock Issue. If the Company issues shares of Common Stock for a consideration per share less than the Specified Value per share on the date the Company fixes the offering price of such additional shares, the Warrant Number shall be adjusted in accordance with the following formula:

where:

Wʹ	=	the adjusted Warrant Number.

W	=	the Warrant Number immediately prior to any such issuance.

O	=	the number of shares of Common Stock outstanding immediately prior to the issuance of such additional shares of Common Stock.

P	=	the aggregate consideration received for the issuance of such additional shares of Common Stock.

M	=	the Specified Value per share of Common Stock on the date of issuance of such additional shares.

A	=	the number of shares of Common Stock outstanding immediately after the issuance of such additional shares of Common Stock.

The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance.

This subsection (d) shall not apply to any of the transactions described in subsection (a) of this Section 9 or for which an adjustment has been made pursuant to other provisions of this Section 9.

(e) Adjustment for Dividends or Distributions of Cash. If the Company pays any cash dividend or distribution to all or substantially all holders of Common Stock, the Warrant Number shall be adjusted based on the following formula:

Where

Wʹ

the adjusted Warrant Number immediately after the open of business on the Ex-Dividend Date for such dividend or distribution.

W	=	the Warrant Number immediately prior to the open of business on such Ex-Dividend Date.

SP	=	the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution.

C	=	the amount in cash per share the Company distributes to holders of the Common Stock.

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP” (as defined above), in lieu of the foregoing adjustment, each Holder of Notes shall receive, in respect of each Warrant at the same time and upon the same terms as holders of the Common Stock, the amount of the cash dividend or distribution such Holder would have received if such Holder owned on the relevant Record Date for such dividend or distribution a number of shares of Common Stock equal to the Warrant Number in effect on such Record Date.

(f) Adjustment for Tender or Exchange Offers. If the Company or any of its Subsidiaries make a payment in respect of a tender offer or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Warrant Number shall be increased based on the following formula:

Where

Wʹ	=	the adjusted Warrant Number immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires.

W	=	the Warrant Number immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires.

AC	=	the aggregate value of all cash and any other consideration paid or payable for shares purchased in such tender or exchange offer.

OS	=	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires.

OSʹ	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer).

SP	=	the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires.

The adjustment to the Warrant Number under this Section 9(f) will be determined immediately after the close of business on the Trading Day next succeeding the date such tender or exchange offer expires, but will be given effect immediately after the open of business on such Trading Day.

(g) Notwithstanding the above, certain listing standards of The NASDAQ Capital Market may limit the amount by which the Company may increase the Warrant Number pursuant to the events described in clauses (b) through (f) in this Section 9. These standards generally require the Company to obtain the approval of its stockholders before entering into certain transactions that potentially result in the issuance of 20% or more of the Common Stock outstanding on the Issue Date of the Notes unless the Company obtains stockholder approval of issuances in excess of such limitations. In accordance with these listing standards, these restrictions will apply at any time when the Warrants are outstanding, regardless of whether the Company then has a class of securities listed on The NASDAQ Capital Market. Accordingly, in the event of an increase in the Warrant Number above that which would result in the Warrants, in the aggregate, becoming exercisable for shares of Common Stock in excess of such limitations, the Company shall, at its discretion, either obtain stockholder approval of such issuances or on the exercise date of each Warrant deliver cash in lieu of any shares otherwise deliverable upon exercise of such Warrant in excess of such limitations (based on the Daily VWAP on each Trading Day of the 30 consecutive Trading Day period (the “Observation Period”) beginning on and including the second Trading Day after the date of exercise of such Warrant) in respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section 9(g).

(h) Whenever a provision of this Agreement requires the calculation of Last Reported Sale Price or Daily VWAP over a span of multiple days, the board of directors of the Company will make appropriate adjustments to such Last Reported Sale Price or Daily VWAP, the Warrant Number, or the amount due upon exercise of the Warrants to account for any adjustment to the Warrant Number that becomes effective, or any event requiring an adjustment to the Warrant Number where the Ex-Dividend Date of the event occurs, at any time during the period from which such Last Reported Sale Price or Daily VWAP are to be calculated.

(i) “Specified Value” per share of Common Stock or per unit or share of any other security (herein collectively referred to as a “Security”) at any date shall be:

(i) if the Security is not registered under the Exchange Act, (1) the value of the Security determined in good faith by the board of directors of the Company and certified in a board resolution, based on the most recently completed arm’s-length transaction between the Company and a person other than an Affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, (2) if no such transaction shall have occurred on such date or within such six-month period, the value of the Security most recently determined as of a date within the six months preceding such date by an Independent Financial Expert or (3) if neither clause (1) nor (2) is applicable, the value of the Security as mutually agreed by the Company and Holders of a majority of the Warrants outstanding; provided, however, that if the Company and such Holders are unable to mutually agree upon such value, the Company shall select an Independent Financial Expert who shall determine the value of such Security;

(ii) if the Security is registered under the Exchange Act, the average of the daily market prices (as hereinafter defined) for each business day during the period commencing 10 business days before such date and ending on the date one day prior to such date or, if the Security has been registered under the Exchange Act for less than 30 consecutive business days before such date, then the average of the daily market prices for all of the business days before such date for which daily market prices are available. If the market price is not determinable for at least 15 business days in such period, the Specified Value of the Security shall be determined as if the Security was not registered under the Exchange Act; or

The “market price” for any Security on each business day means: (A) if such Security is listed or admitted to trading on any securities exchange, the closing price, regular way, on such day on the principal exchange on which such Security is traded, or if no sale takes place on such day, the average of the closing bid and asked prices on such day or (B) if such Security is not then listed or admitted to trading on any securities exchange, the last reported sale price on such day, or if there is no such last reported sale price on such day, the average of the closing bid and the asked prices on such day, as reported by a reputable quotation source designated by the Company. If there are no such prices on a business day, then the market price shall not be determinable for such business day.

“Independent Financial Expert” shall mean a nationally recognized investment banking firm selected by the Company that (i) does not (and whose directors, officers, employees and Affiliates do not) have a direct or indirect financial interest in the Company or any of its Affiliates, (ii) has not been, and, at the time it is called upon to serve as an Independent Financial Expert under this Agreement is not (and none of whose directors, officers, employees or Affiliates is), a promoter, director or officer of the Company, (iii) has not been retained by the Company or any of its Affiliates for any purpose, other than to perform an equity valuation, within the preceding 12 months, and (iv) in the reasonable judgment of the board of directors of the Company, is otherwise qualified to serve as an independent financial advisor. Any such person may receive customary compensation and indemnification by the Company for opinions or services it provides as an Independent Financial Expert.

(j) Consideration Received. For purposes of any computation respecting consideration received pursuant to subsections (e) and (f) of this Section 9, the following shall apply:

(1) in the case of the issuance of shares of Common Stock for cash, the consideration shall be the amount of such cash (without any deduction being made for any commissions, discounts or other expenses incurred by the Company for any underwriting of the issue or otherwise in connection therewith);

(2) in the case of the issuance of shares of 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 (irrespective of the accounting treatment thereof) as determined in good faith by the board of directors of the Company; and

(3) in the case of the issuance of options, warrants or other securities convertible into or exchangeable or exercisable for shares of Common Stock, the aggregate consideration received therefor shall be deemed to be the consideration received by the Company for the issuance of such securities plus the additional minimum consideration, if any, to be received by the Company upon the conversion, exchange or exercise thereof (the consideration in each case to be determined in the same manner as provided in clauses (1) and (2) of this subsection).

(k) When De Minimis Adjustment May Be Deferred. No adjustment in the Warrant Number need be made unless the adjustment would require an increase or decrease of at least 1.0% in the Warrant Number. Any adjustment that is not made shall be carried forward and taken into account in any subsequent adjustment, provided that no such adjustment shall be deferred beyond the date on which a Warrant is exercised.

All calculations under this Section 9 shall be made to the nearest 1/100th of a share.

(l) Adjustment to Exercise Price. Upon each adjustment to the Warrant Number pursuant to this Section 9, the Exercise Price shall be adjusted so that it is equal to the Exercise Price in effect immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Warrant Number in effect immediately prior to such adjustment, and the denominator of which is the Warrant Number in effect immediately after such adjustment.

(m) When No Adjustment Required. If an adjustment is made upon the establishment of a record date for a distribution subject to subsection (a), (b) or (c) of this Section 9 and such distribution is subsequently cancelled, the Warrant Number and Exercise Price then in effect shall be readjusted, effective as of the date when the board of directors of the Company determines to cancel such distribution, to that Warrant Number and Exercise Price that would have been in effect if such record date had not been fixed.

In addition, notwithstanding anything to the contrary in this Section 9, no adjustment to the Warrant Number shall be made:

(iii) upon the issuance of any shares of Common Stock upon exercise of any Warrants or conversion or redemption of any Notes or pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the Issue Date of the Notes;

(iv) for a change in the par value of the Common Stock; or

(v) for accrued and unpaid interest on the Notes.

To the extent the Warrants become convertible into cash, no adjustment need be made thereafter as to the amount of cash into which such Warrants are exercisable. Interest will not accrue on the cash.

Furthermore, if the application of the foregoing formulas of this Section 9 would result in a decrease in the Warrant Number, no adjustment to the Warrant Number shall be made (other than as a result of a share combination).

Notwithstanding anything in this Section 9 or any other provision in this Agreement or the Warrants, if a Warrant Number adjustment becomes effective on any Ex-Dividend Date, and a Holder that has exercised its Warrants on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of the shares of Common Stock as of the related exercise date as described under Section 9(r) based on an adjusted Warrant Number for such Ex-Dividend Date, then, notwithstanding the Warrant Number adjustment provisions in this Section 9, the Warrant Number adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

(n) Notice of Adjustment. Whenever the Warrant Number or Exercise Price is adjusted, the Company shall provide the notices required by Section 11 hereof.

(o) Voluntary Reduction. The Company from time to time may reduce the Exercise Price by any amount for any period of time (including, without limitation, permanently) if the period is at least 20 days and if the reduction is irrevocable during the period.

Whenever the Exercise Price is reduced, the Company shall mail to the Holders a notice of the reduction. The Company shall mail the notice at least 15 days before the date the reduced Exercise Price takes effect. The notice shall state the reduced Exercise Price and the period it will be in effect.

A reduction of the Exercise Price under this subsection (o) (other than a permanent reduction) does not change or adjust the Exercise Price otherwise in effect for purposes of subsections (a), (b), (c), (e), or (f) of this Section 9.

(p) Merger Events. If any Merger Event occurs, other than in the cases referred to in subsections (a), (b), (c), (d), (e) or (f) of this Section 9, then at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute an agreement providing that at and after the effective time of such Merger Event, the right to exercise the Warrants will be changed into a right to exercise the Warrants as set forth in this Agreement into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate prior to such Merger Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference Property” meaning the type and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event that a holder of a number of shares of Common Stock would have been entitled to receive upon such Merger Event; provided, however, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon exercise of the Warrants in accordance with this Agreement and (B) any shares of Common Stock that the Company would have been required to deliver upon exercise of the Warrants as provided herein shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event.

As used herein, the term “Merger Event” means (a) a recapitalization or reclassification of, or change in, the Common Stock (other than changes resulting from a subdivision or combination), (b) a consolidation, merger or combination involving the Company, (c) a sale, lease or other transfer to a third party of the consolidated assets of the Company and its Restricted Subsidiaries substantially as an entirety or (d) a statutory share exchange, in each case (of any of the events mentioned in clauses (a), (b), (c) or (d) of this definition) as a result of which the Common Stock would be converted into, or exchanged for, or would be reclassified or changed into, stock, other securities, other property or assets (including cash or any combination thereof).

If, as a result of the Merger Event, each share of Common Stock is converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (x) the Reference Property into which the Warrants will be exercisable will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election, and (y) the unit of Reference Property for purposes of the foregoing sentence shall refer to the consideration referred to in clause (x) attributable to one share of Common Stock. If the holders receive only cash in such Merger Event, then for all exercises of Warrants that occur after the effective date of such Merger Event (x) the consideration due upon exercise shall be solely cash in an amount equal to the Warrant Number in effect on the exercise date (as may be increased by any additional Shares pursuant to this Section 9), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the exercise obligation by paying cash to exercising Holders on the third Business Day immediately following the such exercise date. The Company shall notify the Holders of such weighted average as soon as practicable after such determination is made.

The Company shall not become a party to any such Merger Event unless its terms are consistent with this Section 9(p). Such agreement shall provide for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 9 in the judgment of the Company’s board of directors or the board of directors of the successor Person. If, in the case of any such recapitalization, reclassification, change, consolidation, merger, combination, sale, lease, other transfer or statutory share exchange, the Reference Property receivable thereupon by a holder of Common Stock includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing Person, as the case may be, in such reorganization, reclassification, change, consolidation, merger, combination, sale, lease, other transfer or statutory share exchange, then such agreement shall also be executed by such other Person. None of the foregoing provisions shall affect the right of a holder of Warrants to exercise its Warrants prior to the effective date of such Merger Event.

The Company shall cause notice of the execution of such agreement to be mailed to each Holder, at the address of such Holder as it appears on the Warrant Register, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such agreement. The above provisions of this Section 9(p) shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 9(p) applies to any Merger Event, Section 9(a) through Section 9(f) shall not apply.

(q) Form of Warrants. Irrespective of any adjustments in the Exercise Price or the number or kind of units or shares purchasable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of units or shares as are stated in the Warrants initially issuable pursuant to this Agreement.

For purposes of this Section 9, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of common Stock held in the treasury of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

Section 10. Fractional Interests. The Company shall not be required to issue fractional Warrant Shares on the exercise of Warrants. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full Warrant Shares which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of Warrant Shares purchasable on exercise of the Warrants so presented. If any fraction of a Warrant Share would, except for the provisions of this Section 10, be issuable on the exercise of any Warrants (or specified portion thereof), the Company shall, pay an amount in cash equal to the fair market value of the Warrant Share so issuable (as determined in good faith by the board of directors of the Company), multiplied by such fraction.

Section 11. Notices to Holders. Upon any adjustment pursuant to Section 9 hereof, the Company shall promptly thereafter (i) cause to be filed with the Company a certificate of an officer of the Company setting forth the Warrant Number and Exercise Price after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based, and (ii) cause to be given to each of the Holders at its address appearing on the Warrant Register written notice of such adjustments. Such notice may be given in advance.

Section 12. Notices to the Company and Holders. All notices and other communications provided for or permitted hereunder shall be made by hand-delivery, first-class mail, facsimile transmission, e-mail transmission or overnight air courier guaranteeing next day delivery using the information under “Address for Notices” set forth on each party’s signature page hereto.

All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed (so long as a fax copy is sent and receipt confirmed within two business days after mailing); when receipt is confirmed, if faxed or e-mailed; and the next business day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. The parties may change the addresses to which notices are to be given by giving five days’ prior written notice of such change in accordance herewith.

Section 13. Successors. The Company may not assign any of its rights, or delegate any of its obligations, under this Agreement without the prior written consent of the approval of Holders of a majority of the then outstanding Warrants, and any such purported assignment by the Company without the written consent of such Holders shall be null and void ab initio and of no force or effect. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Holders shall bind and inure to the benefit of their respective successors and assigns hereunder.

Section 14. Termination. This Agreement shall terminate if all Warrants have been exercised pursuant to this Agreement.

Section 15. Governing Law; Submission To Jurisdiction. This Agreement and all issues hereunder shall be governed by and construed in accordance with the laws of the State of New York. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York sitting in the Borough of Manhattan in the City of New York or any federal court of the United States sitting in the Borough of Manhattan in the City of New York, and by execution and delivery of this Agreement, each party hereto consents to the non-exclusive jurisdiction of those courts. Each party hereto irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement or any issue hereunder. Each party hereto waives personal service of any summons, complain or other process, which may be made by any other means permitted by the law of such state. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 12 hereof. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.

Section 16. Jury Trial Waiver. As permitted by applicable law, each party hereto waives its respective rights to a trial before a jury in connection with any claim, dispute or controversy arising between the parties hereto with respect to this Agreement or any issue hereunder, and such claim, dispute or controversy shall be resolved by a judge sitting without a jury.

Section 17. Benefits of this Agreement. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company and the Holders any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company and the Holders.

Nothing contained in this Agreement or in any Warrant Certificate shall be construed as conferring upon the Holders (prior to the exercise of such Warrants) the right to vote or to consent or to receive notice as an equityholder in respect of the meetings of equityholders or the election of members of the board of directors of the Company or any other matter, or any rights whatsoever as equityholders of the Company.

Section 18. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

Section 19. Amendments and Waivers. This Agreement and the Warrants may be amended, or their provisions waived, by the Company and the approval of Holders of a majority of the then outstanding Warrants; provided that, to the extent applicable, the Company and any individual Holder may amend this Agreement or the Warrants held by such Holder solely with respect to such Holder’s own rights and obligations (and without amending any other Holder’s rights or obligations or the rights or obligations of the Company with respect to such other Holder) without the approval of any other Holder.

Section 20. Entire Agreement. This Agreement, together with the Note Purchase Agreement and the Registration Rights Agreement, constitute the entire agreement and understanding of the parties hereto and with respect to the subject matter contained herein, and there are no restrictions, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof, other than as expressly set forth or referred to herein or therein. This Agreement, the Note Purchase Agreement and the Registration Rights Agreement supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

	GPAQ ACQUISITION HOLDINGS, INC.

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

Address for Notices:

GPAQ Acquisition Holdings, Inc.

2626 Fulton Dr NW

Canton, OH 44718
Attn: Michael Crawford
E-mail: michael.crawford@HOFvillage.com

with a copy (which shall not constitute notice) to:

Hunton Andrews Kurth LLP
2200 Pennsylvania Avenue NW
Washington, D.C. 20037
Attn: J. Steven Patterson
Facsimile No.: (202) 778-7435
E-mail: spatterson@HuntonAK.com

Purchasers:

	MAGNETAR CONSTELLATION MASTER FUND, LTD.

	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Address for Notices:

c/o Magnetar Financial LLC

1603 Orrington Avenue, 13th Floor

Evanston, Illinois 60201

Attention: Chief Legal Officer

Email: fisecuritynotices@magnetar.com

Fax: 847-869-2064

with a copy (which shall not constitute notice) to:

K&L Gates LLP

70 West Madison Street, Suite 3100

Chicago, Illinois 60602

Attention: Todd R. Southwell

Email: Todd.Southwell@klgates.com

Fax: 312-345-9965

	MAGNETAR STRUCTRED CREDIT FUND, L.P.

	By: Magnetar Financial, LLC, its general partner

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Address for Notices:

c/o Magnetar Financial LLC

1603 Orrington Avenue, 13^th Floor

Evanston, Illinois 60201

Attention: Chief Legal Officer

Email: fisecuritynotices@magnetar.com

Fax: 847-869-2064

with a copy (which shall not constitute notice) to:

K&L Gates LLP

70 West Madison Street, Suite 3100

Chicago, Illinois 60602

Attention: Todd R. Southwell

Email: Todd.Southwell@klgates.com

Fax: 312-345-9965

	MAGNETAR XING HE MASTER FUND LTD.

	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Address for Notices:

c/o Magnetar Financial LLC

1603 Orrington Avenue, 13^th Floor

Evanston, Illinois 60201

Attention: Chief Legal Officer

Email: fisecuritynotices@magnetar.com

Fax: 847-869-2064

with a copy (which shall not constitute notice) to:

K&L Gates LLP

70 West Madison Street, Suite 3100

Chicago, Illinois 60602

Attention: Todd R. Southwell

Email: Todd.Southwell@klgates.com

Fax: 312-345-9965

	MAGNETAR SC FUND LTD

	By: Magnetar Financial, LLC, its investment manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Address for Notices:

c/o Magnetar Financial LLC

1603 Orrington Avenue, 13^th Floor

Evanston, Illinois 60201

Attention: Chief Legal Officer

Email: fisecuritynotices@magnetar.com

Fax: 847-869-2064

with a copy (which shall not constitute notice) to:

K&L Gates LLP

70 West Madison Street, Suite 3100

Chicago, Illinois 60602

Attention: Todd R. Southwell

Email: Todd.Southwell@klgates.com

Fax: 312-345-9965

	PURPOSE ALTERNATIVE CREDIT FUND – T LLC

	By: Magnetar Financial, LLC, its manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Address for Notices:

c/o Magnetar Financial LLC

1603 Orrington Avenue, 13^th Floor

Evanston, Illinois 60201

Attention: Chief Legal Officer

Email: fisecuritynotices@magnetar.com

Fax: 847-869-2064

with a copy (which shall not constitute notice) to:

K&L Gates LLP

70 West Madison Street, Suite 3100

Chicago, Illinois 60602

Attention: Todd R. Southwell

Email: Todd.Southwell@klgates.com

Fax: 312-345-9965

	PURPOSE ALTERNATIVE CREDIT FUND – F LLC

	By: Magnetar Financial, LLC, its manager

	By:	/s/ Michael Turro
	Name:	Michael Turro
	Title:	Chief Compliance Officer

Address for Notices:

c/o Magnetar Financial LLC

1603 Orrington Avenue, 13^th Floor

Evanston, Illinois 60201

Attention: Chief Legal Officer

Email: fisecuritynotices@magnetar.com

Fax: 847-869-2064

with a copy (which shall not constitute notice) to:

K&L Gates LLP

70 West Madison Street, Suite 3100

Chicago, Illinois 60602

Attention: Todd R. Southwell

Email: Todd.Southwell@klgates.com

Fax: 312-345-9965

	TIMKEN FOUNDATION OF CANTON

	By:
	Name:	Ward J. Timken
	Title:	President

	STARK COMMUNITY FOUNDATION

	By:
	Name:	Mark J. Samolcyzk
	Title:	President and CEO

	ch capital lending, LLC

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

	By:
	Name:	Richard H. Klein
	Title:	Chief Financial Officer

	GORDON POINTE MANAGEMENT, LLC

	By:	/s/ James J. Dolan
	Name:	James J. Dolan
	Title:	Manager

	JMJS Group, LLLP

	By:	/s/ Jerre Stead
	Name:	Jerre Stead
	Title:	General Partner

	glenn r. august


	Glenn R. August

	MICHAEL S. GROSS


	Michael S. Gross

	Bradley M. Chase and Judith E. Chase, as Tenants-in-Common


	Bradley M. Chase


	Judith E. Chase

	Kevin O'Callaghan

	/s/ Kevin O’Callaghan
	Kevin O’Callaghan

	JOHN AND KELLY WARNER


	John Warner


	Kelly Warner

	JEFFREY SLOVIN

	/s/ Jeffrey Slovin
	Jeffrey Slovin

EXHIBIT A

[Form of Warrant Certificate]

THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON ● 2020, AND THE OFFER AND SALE OF SUCH SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR IN COMPLIANCE WITH RULE 144 OR PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A WARRANT AGREEMENT AND A NOTE PURCHASE AGREEMENT, EACH DATED AS OF ● 2020, AMONG THE ISSUER OF SUCH SECURITIES (THE “COMPANY”) AND THE PURCHASERS REFERRED TO THEREIN. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN SUCH AGREEMENTS AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF THIS CERTIFICATE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH AGREEMENTS WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.

THE SHARES ISSUABLE UPON EXERCISE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PREFERENCES, POWERS, QUALIFICATIONS AND RIGHTS OF EACH CLASS AND SERIES AS SET FORTH IN THE COMPANY’S CERTIFICATE OF INCORPORATION AND BYLAWS, [AS AMENDED]. THE COMPANY WILL FURNISH A COPY OF THE CERTIFICATE OF INCORPORATION, BYLAWS AND ANY RELEVANT AMENDMENTS THERETO TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST.

No. _____

______ Warrants

Warrant Certificate

GPAQ ACQUISITION HOLDINGS, INC.

This Warrant Certificate certifies that ___________________________, or registered assigns, is the registered holder of the number of Warrants (the “Warrants”) set forth above to purchase Common Stock, $0.0001 par value (the “Common Stock”), of GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”). Each Warrant entitles the holder upon exercise to receive from the Company one fully paid and nonassessable share of the Common Stock of the Company (such shares of the Common Stock, a “Warrant Share”), at the initial exercise price (the “Exercise Price”) equal to the Conversion Price for the corresponding redeemed Notes that was in effect immediately prior to the redemption of such Notes, payable in lawful money of the United States of America, upon surrender of this Warrant Certificate and payment of the Exercise Price at the office of the Company designated for such purpose, but only subject to the conditions set forth herein and in the Warrant Agreement referred to hereinafter. The Exercise Price and number of Warrant Shares issuable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events, as set forth in the Warrant Agreement. Each Warrant is exercisable at any time prior to 5:00 p.m., Eastern time, on ● 2025.

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants, and are issued or to be issued pursuant to a Warrant Agreement dated as of ● 2020 (the “Warrant Agreement”), duly executed and delivered by the Company, which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the holders (the words “holders” or “holder” meaning the registered holders or registered holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Capitalized terms used and not defined herein shall have the meanings ascribed thereto in the Warrant Agreement.

A-1

The holder hereof may exercise the Warrants evidenced hereby under and pursuant to the terms and conditions of the Warrant Agreement by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon (and by this reference made a part hereof) properly completed and executed, and, to the extent the Warrants are not being exchanged pursuant to the Warrant exchange provisions of Section 5 of the Warrant Agreement, together with payment of the Exercise Price in cash or by certified or bank check at the office of the Company designated for such purpose. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued by the Company to the holder hereof or its registered assignee a new Warrant Certificate evidencing the number of Warrants not exercised.

The Warrant Agreement provides that upon the occurrence of certain events the number of Warrant Shares issuable upon exercise of a Warrant and the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted.

Warrant Certificates, when surrendered at the office of the Company by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

Subject to the terms and conditions of the Warrant Agreement, upon due presentation for registration of transfer of this Warrant Certificate at the office of the Company, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

The Company may deem and treat the registered holder(s) thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and the Company shall not be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.

IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be signed by its Chairman of the Board, Chief Executive Officer, President or any Vice President.

Dated: ● 2020

(Signature Page Follows)

A-2

	GPAQ ACQUISITION HOLDINGS, INC.

	By:
	Name:
	Title:

A-3

FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise of Warrant)

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to:

(Check Applicable Box)

☐

receive ______________ shares of Common Stock and herewith tenders payment for such shares to the order of GPAQ Acquisition Holdings, Inc. in the amount of $____________ in accordance with the terms hereof.

☐

exchange Warrants for shares of Common Stock and herewith tenders Warrants to purchase _______________ shares of Common Stock as payment for such number of shares of Common Stock as determined in accordance with the Warrant exchange procedures of Section 5 of the Warrant Agreement.

The undersigned requests that a certificate for such shares be registered in the name of ____________________________, whose address is _______________________________ and that such shares be delivered to ____________________________, whose address is _______________________________.

If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of ____________________________, whose address is _______________________________, and that such Warrant Certificate be delivered to ____________________________, whose address is _______________________________.

Signature(s):

NOTE:

The above signature(s) must correspond with the name written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. If this Warrant is held of record by two or more joint owners, all such owners must sign.

Date:

A-4

FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant Certificate)

FOR VALUE RECEIVED, ____________________________ hereby sells, assigns and transfers unto ____________________________ whose address is _________________________________ and whose social security number or other identifying number is _________________________, the within Warrant Certificate, together with all right, title and interest therein and to the Warrants represented thereby, and does hereby irrevocably constitute and appoint ____________________________, attorney, to transfer said Warrant Certificate on the books of the within-named corporation, with full power of substitution in the premises.

Signature(s):

NOTE:

Date:

A-5

Exhibit 10.10

CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. [***] OR [REDACTED] INDICATES THAT INFORMATION HAS BEEN REDACTED.

AMENDED AND RESTATED SPONSORSHIP AND NAMING RIGHTS AGREEMENT

This Amended and Restated Sponsorship and Naming Rights Agreement (this “Agreement”) is made as of the 2nd day of July, 2020 (the “Effective Date”) by and among HOF Village, LLC, a Delaware limited liability company (“HOFV”), National Football Museum, Inc. d/b/a Pro Football Hall of Fame, an Ohio corporation (“PFHOF” and, together with HOFV, the “HOF Entities”), and Johnson Controls, Inc., a Wisconsin corporation (the “Company” and, together with the HOF Entities, the “Parties”).

RECITALS

WHEREAS, HOFV is developing the Hall of Fame Village, a development in Canton, Ohio which will be adjacent to the Pro Football Hall of Fame Museum (the “Museum”) and be located on approximately 100 acres of real estate bounded generally on the South border by Helen Place, on the North border by Fulton Avenue, on the East border by Harrison Avenue, and on the West border by Clarendon Avenue (collectively, the “Village”);

WHEREAS, the Parties entered into a Sponsorship and Naming Rights Agreement dated as of November 17, 2016 (the “Original Agreement”) pursuant to which the Company acquired from the HOF Entities certain sponsorship and naming rights, and the HOF Entities granted such rights to the Company, all on the terms and subject to the conditions set forth in the Original Agreement;

WHEREAS, the Parties desire to enter into a Technology as a Service Agreement contemporaneously with this Agreement, for a term co-terminus with this Agreement, pursuant to which the Company will provide to HOFV or HOFV’s general contractor for the benefit of HOFV (i) certain equipment design consulting, equipment sales, and equipment installations for the Village, (ii) certain operations and maintenance services at the Village, and (iii) certain equipment repair and replacement services at the Village, all as more particularly set forth in the Technology as a Service Agreement; and

WHEREAS, it is a condition precedent to the Parties’ execution and delivery of the Technology as a Service Agreement that the Parties amend and restate the Original Agreement in its entirety on the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the Technology as a Services Agreement and for such other consideration stated in this Agreement, the Parties hereby agree as follows (the definitions for certain defined terms contained herein and other definitional and interpretative provisions are set forth in Exhibit B attached hereto):

ARTICLE 1

SPONSORSHIP RIGHTS AND BENEFITS

1.1 Naming Rights Generally.

1.1.1 The HOF Entities hereby grant the Company the exclusive right to designate the name of the Village throughout the Term.

1.1.2 The Parties acknowledge that the Original Agreement contemplates that the initial Village Name shall be “Johnson Controls Hall of Fame Village.” The Parties agree that the Village Name shall be revised to be “Hall of Fame Village powered by Johnson Controls.” In connection therewith, the Parties shall (a) work diligently in good faith to develop replacement Co-Branded Village Marks reflecting the revised Village Name that are reasonably acceptable to the Parties and (b) upon a date mutually agreed upon by the Parties (subject to Section 7.3, which shall apply solely with respect to use of the former Co-Branded Village Marks from such date as though this Agreement had been terminated as of such date), cease use of the former Village Name and the former Co-Branded Village Marks and thereafter use (and the HOF Entities shall use commercially reasonable efforts to cause all third parties promoting, presenting or producing performances or events at the Village to use), including in all Village Websites and Branded Social Media Accounts, the revised Village Name and replacement Co-Branded Village Marks. HOFV shall be responsible for all direct and indirect expenses and costs incurred in connection with revising the Village Name and replacing the Co-Branded Village Marks pursuant to this Section 1.1.2; provided that PFHOF shall be responsible for such costs to the extent such costs relate to the Museum or the business of PFHOF.

1.1.3 Except as set forth in Sections 1.1.2 and 1.1.4, the Company shall not be entitled to change the name of the Village without the prior written approval of each of the HOF Entities, which approval will not be unreasonably withheld, conditioned or delayed, and each Governmental Authority or other Person whose approval is required under Law.

1.1.4 If a Person whose primary line of business consists of a business included in the then-existing Category (the “Acquiror”) acquires or otherwise owns more than fifty percent (50%) of the voting shares of the Company on a non-diluted basis and elects to change the Village Name, then Acquiror may effect a change of the Village Name (the “Proposed Name Change”), provided that (i) the Proposed Name Change must be to a name which is reasonably acceptable to the HOF Entities, (ii) there is no material breach of this Agreement by the Company or the Acquiror on the date on which the Proposed Name Change is submitted by the Acquiror, (iii) the Acquiror and the Parties shall work in good faith to develop replacement Co-Branded Village Marks reflecting the Proposed Name Change which are reasonably acceptable to the Parties and (iv) the Acquiror and the Company shall provide to the HOF Entities such rights, licenses, representations, warranties, covenants and indemnification with respect to the Intellectual Property of the Acquiror as shall be reasonably required by the HOF Entities (consistent with the rights, licenses, representations, warranties, covenants and indemnification with respect to the Company included in this Agreement) in order to allow the Company to perform its obligations pursuant to this Agreement and to enjoy all of the benefits thereof with respect to the replacement Co-Branded Village Marks to the same extent as it was able to perform its obligations hereunder and enjoy the benefits thereof with respect to the former Co-Branded Village Marks prior to the request for the Proposed Name Change. If such conditions are satisfied, then in such event the Parties shall work together to change the Co-Branded Village Marks to reflect the Proposed Name Change, at which time (subject to Section 7.3, which shall apply solely with respect to use of the former Co-Branded Village Marks from the effective date of the change in Co-Branded Village Marks, as determined by the Parties in good faith, as though this Agreement had been terminated as of such effective date) the Parties shall cease use of the former Co-Branded Village Marks. Notwithstanding anything to the contrary in this Agreement, the Company shall pay or cause to be paid by the Acquiror all direct and indirect expenses and costs incurred by the HOF Entities (or either of them or any of their respective Affiliates) in modifying the Co-Branded Village Marks and any other direct or indirect actual expenses and costs incurred by the HOF Entities (or either of them or any of their respective Affiliates) to effect such renaming.

1.1.5 Subject to the terms of this Agreement, including this Section 1.1.5 and Section 1.10, the Company hereby acknowledges and agrees that certain areas within the Village (as it is currently designed or in the future) may be named by a third party, and that the HOF Entities may grant certain other naming rights, in each case not in violation of any of the provisions of this Agreement (collectively, the “Other Naming Rights”). Throughout the Term, neither HOF Entity shall enter into a definitive agreement with a third party with respect to naming rights for any material area within the Village (a) without first offering to the Company a 15-day right of first negotiation to enter into a naming rights agreement for such area (it being agreed that, for a period of (15) fifteen days following the Company’s notice of such opportunity, the HOF Entities and the Company shall negotiate exclusively and in good faith regarding such naming rights agreement unless the Company notifies the HOF Entities in writing prior to the conclusion of such period that the Company is not interested in entering into a naming rights agreement for such area or unless a naming rights agreement for such area shall have been executed by the Parties during such 15-day period, and subject to subsection (b) hereof, the HOF Entities shall thereafter be permitted to enter into a definitive agreement with a third party with respect to naming rights for such area) or (b) in violation of any of the provisions of this Agreement, including Section 1.10; provided, however, that nothing in this Agreement shall restrict the ability of the HOF Entities to grant any naming or sponsorship rights for philanthropic purposes without receipt of any naming or sponsorship fees.

1.2 Logos. The HOF Entities have developed or shall develop, at their own expense, one or more logos (including those logos listed on Exhibit P, each, a “Village Logo”), which when used in connection with any of the Company Marks, shall constitute and serve as a “Co-Branded Village Logo.” The Parties shall work together in good faith in connection with the development of one or more Co-Branded Village Logos, with fifty percent (50%) of the cost of such development to be borne by each of the Company, on the one hand, and the HOF Entities, on the other hand. Upon the completion of the development of any logo which is acceptable to each of the Parties for such purpose, such logo shall be added to Exhibit C and shall serve as a Co- Branded Village Logo. One or more of the HOF Entities shall own all right, title and interest in and to each Village Logo, subject to the license of same to the Company pursuant to Section 3.2. The Company has the right to license the Company Marks to the HOF Entities pursuant to Section 3.3.

1.3 Village Branding and Advertising Signage. In addition to the naming rights granted to the Company pursuant to Section 1.1 above, throughout the Term, the HOF Entities shall use and promote the Village Name and Co-Branded Village Logos (collectively, the “Co- Branded Village Marks”), including (from and after the construction of the Village) through the use of signage in the Village as set forth in Exhibit D (such branding contemplated by Exhibit D, the “Village Branding”). In addition, throughout the Term (from and after the construction of the Village), the HOF Entities shall place certain advertising signage for the Company throughout the Village as set forth in Exhibit D (such signage contemplated by Exhibit D, the “Advertising Signs”).

1.4 Advertising and Sponsorship Rights. The HOF Entities shall provide to the Company throughout the Term (and, to the extent such construction is a precondition to the HOF Entities’ ability to perform certain specific obligations as set forth on such Exhibit, from and after the construction of the Village) those advertising and sponsorship rights set forth in Exhibit D (together with the naming rights set forth in Section 1.1, the “Assets”). If the HOF Entities are unable to provide the Company with any Asset in accordance with this Agreement at any time during the Term, then the HOF Entities shall propose a credit against the Fees or a substitute right or benefit having a value that shall fully compensate the Company for the benefit not so provided (each such credit or substitute right or benefit, a “Make Good”). If such proposal is not reasonably acceptable to the Company, the Parties shall work together in good faith to mutually agree upon a Make Good. If the Parties are unable to agree upon a Make Good within thirty (30) days and if either Party so elects, the Parties shall designate an appraiser which is reasonably acceptable to both Parties, has no material relationship to either of the Parties or their respective Affiliates and has experience in valuing rights and benefits similar to the Assets to determine a Make Good. The determination of such appraiser with respect to the Make Good shall be final, binding and non- appealable, and fifty percent (50%) of the costs and expenses charged by the appraiser for such services rendered shall be paid by each of the Company, on the one hand, and the HOF Entities, on the other hand. Promptly following the final determination in accordance with this Section 1.4 of the Make Good, the HOF Entities shall pay or provide to the Company such Make Good.

1.5 Branding and Advertising Signs; Costs and Maintenance; Prominence.

1.5.1 Subject to Section 1.5.3, HOFV shall build and install, or cause to be built and installed, at HOFV’s sole cost and expense, the Village Branding and Advertising Signs in accordance with the terms of this Agreement; provided that PFHOF shall be responsible for such costs and expenses to the extent such costs and expenses relate to the Museum or the business of PFHOF .

1.5.2 Subject to Section 1.5.3, the Company shall arrange for, in consultation with the HOF Entities and at HOFV’s sole cost and expense, the creative development and design of the Advertising Material/Artwork; provided that PFHOF shall be responsible for such costs and expenses to the extent such costs and expenses relate to the Museum or the business of PFHOF. The creative content of any and all advertising material displayed on or affixed to the Advertising Signs (the “Advertising Material/Artwork”) shall be subject to the approval of the HOF Entities, not to be unreasonably withheld, conditioned or delayed. All such Advertising Material/Artwork (including any intellectual property rights related thereto) shall remain at all times property of the HOF Entities (subject to the HOF Entities’ license thereof to the Company as set forth in Section 3.2 and subject to the retention by the Company of any intellectual property in such Advertising Material/Artwork which is owned by the Company as of the creation of such Advertising Material/Artwork).

1.5.3 Notwithstanding anything to the contrary in this Agreement, including in Section 1.5.1 or Section 1.5.2 hereof, if the aggregate costs associated with the initial build and installation pursuant to Section 1.5.1, together with the aggregate costs associated with the creative development and design of the Advertising Material/Artwork pursuant to Section 1.5.2 (such costs collectively, the “Initial Signage Costs”), shall exceed [***] (the “Initial Signage Credit”), (i) the Company shall be responsible for, and promptly following its receipt of an invoice with respect thereto shall promptly reimburse HOFV for, [***] of any Initial Signage Costs in excess of [***], up to [***], payable by the Company pursuant to this subsection (i), and (ii) the Company shall be responsible for, and promptly following its receipt of an invoice with respect thereto shall promptly reimburse HOFV for, any Initial Signage Costs in excess of [***]. In no event will the HOF Entities (or either of them) be obligated to pay more than [***] with respect to the Initial Signage Costs.

1.5.4 HOFV shall conduct, or cause to be conducted, all repair and maintenance, including routine and preventative repair and maintenance, of the Village Branding and Advertising Signs after installation as are necessary to keep the Village Branding and Advertising Signs in good condition and repair; provided that PFHOF shall be responsible for such costs and expenses to the extent such costs and expenses relate to the Museum or the business of PFHOF. In the first calendar quarter of each of 2027 and 2032, a representative of each of the Parties shall tour the Village to evaluate signage positions within the Village (including permanent, digital and media) to determine if they believe any update or refurbishment is required to the Village Branding and/or Advertising Signs. Any Party shall be entitled, at any time and from time to time, to request any change to the Village Branding and/or Advertising Signs. If such change is necessary to keep the Village Branding and Advertising Signs in good condition and repair or the Parties agree to such change, then (i) the HOF Entities shall take such steps as are necessary to effect such requested changes as soon as reasonably practicable and (ii) all costs associated with such change which are necessary to address issues of normal wear and tear (as mutually agreed by the Parties or, failing such agreement, as reasonably determined by an independent third party professional signage company which is reasonably acceptable to the Parties) shall be borne by HOFV and all excess costs (i.e., costs in excess of those which are necessary to address issues of normal wear and tear) associated therewith shall be borne equally by HOFV, on the one hand, and the Company, on the other hand; provided that PFHOF shall be responsible for such costs and expenses to the extent such costs and expenses relate to the Museum or the business of PFHOF. If such change is unnecessary to keep the Village Branding and Advertising Signs in good condition and repair but a Party nonetheless requests such change, such change shall be made only with the approval (which shall not be unreasonably withheld, conditioned or delayed) of the Company, if the change was requested by an HOF Entity, or the HOF Entities, if the change was requested by the Company, and, if such change is made, all costs associated with such change shall be borne by HOFV or by PFHOF to the extent such change relates to the Museum or the business of PHFHOF (if the change was requested by an HOF Entity) or the Company (if the change was requested by the Company).

1.5.5 The Company shall have, in the aggregate, the most prominent signage (both permanent and digital) at the Village in comparison to each other sponsor, whether a Founding Sponsor or otherwise, of the Village. The HOF Entities shall come into compliance with these requirements by either decreasing the signage of any sponsor, including any Founding Sponsor, of the Village having more prominent signage at the Village than the Company or increasing the signage of the Company. In no event will the Company or any of its Affiliates be required to purchase additional signage to enable the HOF Entities to comply with this Section 1.5.5.

1.6 Construction and Operation of the Village.

1.6.1 The Company acknowledges that the Village is currently under construction and that, as of the Effective Date, HOFV has informed the Company that (i) Phase I is complete, (ii) Phase II is under development and anticipated to be completed by December 31, 2023, and (iii) Phase III remains to be developed and is anticipated to be completed by December 31, 2025.

1.6.2 HOFV represents and warrants that it has provided to the Company before the Effective Date current and complete copies of (i) the budget and schedule with respect to the construction of Phase II and (ii) the budget with respect to the construction of Phase III, in each case only as such relates to the work to be performed by the Company under the Technology as a Service Agreement (the “TaaS Work”). HOFV shall provide to the Company, promptly following the same being developed, a current and complete copy of the schedule with respect to the construction of Phase III as such relates to the TaaS Work. HOFV shall not amend any such budget or schedule as to the TaaS Work without the prior written approval of the Company, such approval not to be unreasonably withheld, conditioned or delayed.

1.6.3 HOFV shall provide (i) evidence reasonably satisfactory to the Company on or before October 31, 2021, subject to day-for-day extension due to Force Majeure, that HOFV has secured sufficient debt and equity financing to complete Phase II; and (ii) thereafter, no later than the twentieth (20th) of each calendar month, evidence reasonably satisfactory to the Company that HOFV has sufficient funds to achieve the then-current construction schedule in accordance with the then-current construction budget as it relates to the TaaS Work. The evidence provided to the Company by HOFV under this Section 1.6.3 shall be deemed reasonably satisfactory to the Company if such evidence shows equity and/or debt proceeds available to HOFV equal to the projected costs to complete the applicable project(s).

1.6.4 HOFV shall ensure that (i) construction of Phase II and Phase III is diligently prosecuted to completion once commenced, (ii) Phase II is Open for Business no later than January 2, 2024, subject to day-for-day extension due to Force Majeure; and (iii) all construction of the Village is performed in accordance with all applicable Laws and this Agreement.

1.6.5 HOFV shall keep the Company reasonably apprised of the progress of construction of the Village and meaningfully consult with the Company or PFHOF, as applicable, on all decisions regarding the construction of the Village that would reasonably be expected to affect the Company’s rights or the HOF Entities’ obligations under this Agreement in any material respect; provided that the foregoing shall not be deemed to provide to the Company or PFHOF any approval rights or decision making authority with respect to the construction of the Village. The Company shall have the right to engage third party professionals at its own cost and expense to inspect the Village from time to time to ensure HOFV’s compliance with its obligations in Section 1.6.1 and this Section 1.6.2, and HOFV shall provide reasonable access to the Village to such professionals upon the Company’s request; provided, however, that all such inspections by the Company or its third party professionals shall be conducted (i) only during normal business hours and upon at least forty-eight (48) hours’ prior notice to HOFV, (ii) subject to HOFV’s then-current security and insurance requirements and (iii) so as to minimize interference with the use, operation, construction and other activities then-occurring at the Village.

1.6.6 HOFV shall cause the Village (including all Village Branding and Advertising Signs) to be maintained and operated in a good, clean, tenantable and safe repair, order and condition. HOFV shall manage and operate, or cause to be managed and operated, the Village (including all Village Branding and Advertising Signs) in compliance with all applicable Laws and the requirements of this Agreement. Without limiting the generality of the foregoing, HOFV shall have the right to take such actions, including temporarily covering or not displaying any permanent or digital signage, as is reasonably necessary for the safe and orderly operation of the Village.

1.6.7 The HOF Entities agree that, in performing their obligations under this Agreement, there shall be no discrimination against or segregation of any Person on account of race, color, religion, creed, national origin, ancestry, sex, sexual preference/orientation, age, disability, medical condition, Acquired Immune Deficiency Syndrome (AIDS) – acquired or perceived, retaliation for having filed a discrimination complaint, or marital status, in the operation, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Village (except to the extent required by applicable Law), nor shall either HOF Entity, or any Person claiming under or through either HOF Entity, establish or permit (to the extent that it is within the HOF Entities’ control) any such practice or practices of discrimination or segregation.

1.7 Village Materials and Announcements.

1.7.1 Throughout the Term, the HOF Entities shall cause any materials produced by the HOF Entities referring to the Village to refer to the Village exclusively as the Village Name and to have the Village Name and/or a Co-Branded Village Logo be included in all advertising, promotional and publicity materials produced by the HOF Entities relating to the Village to the extent that it is reasonable and customary to include the name or logo on such materials.

1.7.2 Throughout the Term, the HOF Entities shall use commercially reasonable efforts to cause all other third parties promoting, presenting or producing performances or events at the Village to refer to the Village exclusively as the Village Name and to have the Village Name and/or a Co-Branded Village Logo be included in all advertising, promotional and publicity materials relating to the Village to the extent that it is reasonable and customary to include the name or logo on such materials.

1.7.3 Throughout the Term, the HOF Entities shall use commercially reasonable efforts to cause any and all announcements relating to the Village in broadcast media to identify the Village as the Village Name.

1.8 Co-Branded Village Merchandise. The HOF Entities may produce, or have produced or manufactured by third party licensees, manufacturers or vendors, Co-Branded Village Merchandise in commercially reasonable quantities, as determined by the HOF Entities in their sole discretion. As between the Parties, and except as otherwise agreed in writing among the Parties, all expenses associated with the production, manufacture and sale of the Co-Branded Village Merchandise shall be borne by the HOF Entities, and all revenues related to the sale of the Co-Branded Village Merchandise shall be for the account and benefit of the HOF Entities. Co- Branded Village Merchandise may be sold by the HOF Entities at the Village, via the Village Websites or as otherwise determined by the HOF Entities and, without limiting the generality of the foregoing, the HOF Entities may permit third parties to sell and distribute the Co-Branded Village Merchandise through customary industry channels for such products, including gift shops, retail stores and through e-commerce channels. As between the Parties, the HOF Entities shall have the sole right to set the retail price for the Co-Branded Village Merchandise, and nothing contained herein shall prevent the HOF Entities from offering Co-Branded Village Merchandise in the form of giveaways, prizes or premiums, without charge.

1.9 Annual Meeting. The HOF Entities, within ninety (90) days following each Agreement Year, shall present to the Company at an in-person meeting (the “Annual Meeting”) the HOF Entities’ analysis of the Assets received by the Company under this Agreement during such Agreement Year, with the information included in such presentation to (a) be both qualitative and quantitative, (b) include attendance metrics reasonably sufficient to determine whether the Minimum Footfall (as defined in Section 1.12) was achieved, brand surveys, raw and equivalent media value, earned media for the applicable year and web, digital, social, and mobile impressions and engagement and (c) be verified, to the extent reasonably practicable, by an independent third party designated by the HOF Entities and reasonably acceptable to the Company to conduct an independent study (the “Valuation Auditor”), which study shall be designed, developed and implemented as directed by the Parties or (failing agreement of the Parties with respect thereto) as reasonably determined by the Valuation Auditor consistent with industry standards. The HOF Entities, on the one hand, and the Company, on the other hand, shall bear equally the costs and expenses of engaging the Valuation Auditor; provided, however, that if the aggregate costs and expenses associated therewith exceed [***] in any calendar year, the Company shall bear all of such costs and expenses in excess of [***]. The Company shall in all events reasonably cooperate with the HOF Entities in connection with the gathering of information regarding, and the presentation of, the HOF Entities’ analysis required under this Section 1.9.

1.10 Exclusivity.

1.10.1 Except as otherwise mutually agreed by the Parties and except as otherwise set forth in this Agreement, throughout the Term, (a) the Company shall have the exclusive right to have its name as part of the name of the Village as provided in Section 1.1.2 or as otherwise mutually agreed by the Parties and (b) the Company (and its Designated Affiliates) shall be the exclusive sponsor of the Village in the Category, including with respect to all naming rights, sponsorship, marketing, advertising, promotional and publicity rights granted for the Village and for all events held at the Village.

1.10.2 Except as otherwise mutually agreed by the Parties and except as otherwise set forth in this Agreement, without limiting the generality of Section 1.10.1, neither the HOF Entities nor any of their Affiliates will (ii) promote any products or services in the Category in connection with the Village other than the Company’s or its Affiliate’s products and services or (ii) enter into any naming rights, sponsorship, marketing, advertising, promotional or publicity relationship, agreement, or arrangement with respect to the Village and in the Category (other than with the Company or the Company’s Affiliates).

1.10.3 Except as otherwise mutually agreed by the Parties and except as otherwise set forth in this Agreement, without limiting the generality of Section 1.10.1, neither the HOF Entities nor any of their Affiliates shall authorize or permit any Person (other than the Company, any Person listed on Exhibit E and any of their respective Affiliates, none of whom shall be treated as an Excluded Sponsor) whose business primarily relates to the provision of goods or services in the Category (each, an “Excluded Sponsor”) to use any Co-Branded Village Mark or sponsor, market, advertise, promote or publicize in, upon or in association with the Village (such sponsorship, marketing, advertising, promotion or publicity, “Third Party Sponsorship”), including on any Village Website, social media channels and platforms and mobile applications related to the Village and owned by any HOF Entity or any of their respective Affiliates, and any other medium through which an Excluded Sponsor may sponsor, market, advertise, promote or publicize in, upon or in association with the Village (whether now existing or hereafter developed). As of the Effective Date, each of the Persons listed on Exhibit F is an Excluded Sponsor, and no other Person shall be deemed an Excluded Sponsor, subject to the terms of this Section 1.10.3 below. At each Annual Meeting (and for a 30-day period thereafter if the Parties are unable to agree during such Annual Meeting), the Parties shall discuss in good faith any amendments to Exhibit F that are necessary to remove any Excluded Sponsor whose business no longer primarily relates to the provision of goods or services in the Category or add any Excluded Sponsor whose business currently primarily relates to the provision of goods or services in the Category. If the Parties are unable to agree on all such amendments before the expiration of such 30-day period, either Party may initiate non-binding mediation as to those amendments on which the Parties are unable to agree as provided for in Section 9.8 and, if resolution as to such amendments is not reached within ninety (90) days of the commencement of such non-binding mediation, either Party may initiate a dispute resolution process as provided for in Section 9.8 with respect to such amendments. The Parties shall (i) promptly following each such Annual Meeting, amend Exhibit F to reflect any such mutually agreed upon amendments and (ii) promptly following conclusion of such mediation or dispute resolution process, further amend Exhibit F to reflect any such amendments determined through such mediation or dispute resolution process. The Parties agree that any sponsorship or naming rights agreement (each, an “Earlier Agreement”) between the HOF Entities or any of their Affiliates, on the one hand, and any Person which is not an Excluded Sponsor but which is later deemed to be an Excluded Sponsor, on the other hand, shall remain in full force and effect for the remainder of the term of such Earlier Agreement (without any extension or renewal thereof unless such extension or renewal is automatic or occurs as a result of the Person exercising a renewal option that the HOF Entities or their Affiliates cannot reject), and the HOF Entities shall not be deemed in breach of this Agreement as a result of such Earlier Agreement.

1.10.4 “Category” shall mean, collectively, the subcategories identified on Exhibit G. For the avoidance of doubt, the Category shall not include any of the subcategories identified on Exhibit E. At each Annual Meeting , the Parties shall discuss in good faith any amendments to Exhibit E and/or Exhibit G which are necessary to reflect any material change, whether resulting from an acquisition, disposition, use of new and emerging technologies, failure to use old or obsolete technologies and/or changes in business direction, in the business of the Company and to ensure that the “Category” covers the core business of the Company, as the core business of the Company may change from time to time throughout the Term.

1.10.5 Notwithstanding anything to the contrary in this Agreement, the HOF Entities and any of their Affiliates may authorize or permit a temporary Third Party Sponsorship, with an Excluded Sponsor or otherwise, but only during (including normal set up and take down periods) (i) bona fide events held at the Village to the extent required by a third party promoter, producer or organizer of such event, (ii) private events held at the Village that are not open to the general public and for which tickets are not sold; and (iii) to the extent held at the Village, the Olympic Games, the Olympic Trials, the Super Bowl, FIFA sanctioned international soccer matches (including World Cup soccer matches), and any other event of significant international or national importance to the extent specifically required by the applicable sanctioning or governing body (e.g., NFL, MLS, NCAA, FIFA, US Olympic Committee, International Olympic Committee, U.S. Invictus Send-Off, and Department of Defense Warrior Games) of such event (the events described in clauses (i), (ii), and (iii), collectively, “Special Events”); provided that (x) neither the HOF Entities nor any of their Affiliates shall remove or intentionally obstruct any material portion of the Company’s signage at the Village unless, and only to the extent, specifically required by the applicable sanctioning or governing body of such Special Event; (y) the HOF Entities shall use commercially reasonable efforts to limit the adverse effect of Special Events on the Company’s rights under this Agreement (including using commercially reasonable efforts to cause the promoters, producers, organizers, and operators of such Special Events to refer, and to cause their sponsors and broadcasters to refer, to the Village by the Village Name in connection with such Special Events); and (z) the HOF Entities shall provide reasonable prior notice to the Company of any Special Event that will involve a temporary Third Party Sponsorship.

1.10.6 Notwithstanding anything to the contrary in this Agreement, neither of the HOF Entities shall be in default under this Agreement if the Company is prohibited or otherwise prevented from receiving any Asset or if one or more Excluded Sponsors or other Persons otherwise prohibited from such promotion by the terms of this Section 1.10 is able to promote such Person (or such Person’s goods or services) under limited circumstances in connection with one or more Village Events in a manner which would otherwise be in violation of the terms of this Section 1.10 as a result, in either case, of rules or regulations of a sanctioning or governing body, Laws, or orders or decrees by any Governmental Authority to the extent that either (i) the existence or the adoption of such rules, regulations, Laws, orders or decrees was not the result of the acts or omissions of either HOF Entity or any of their Affiliates; (ii) the avoidance of implementation or the application of such rules, regulations, Laws, orders or decrees satisfying the requirements of (i) above is beyond the “commercially reasonable control” of the HOF Entities and their Affiliates; or (iii) the existence or adoption of such rules, regulations, Laws, orders or decrees resulted from the affirmative actions of the HOF Entities or one or more of their Affiliates, but such affirmative actions were not within the commercially reasonable control of the HOF Entities or such Affiliates to avoid taking (such rules, regulations, Laws, orders and decrees that satisfy (i), (ii) or (iii) above are individually a “Permitted Restriction” and are collectively “Permitted Restrictions”). For purposes of this Section 1.10.6, the term “commercially reasonable control” shall mean the level of control exercised in the normal course of business by a similar party in a similar situation. Without limiting the scope of what may constitute Permitted Restrictions, the Assets are subject to each of the following, each of which is and shall be deemed a Permitted Restriction:

(a) League, Conference and Governing Body Rules. Rules and regulations imposed by (i) leagues (e.g., the National Football League), the National Collegiate Athletic Association (“NCAA”) or NCAA conferences (e.g., the Big 10) whose teams participate in Village Events, or (ii) other governing bodies (e.g., USA Rugby) for certain events (e.g., rugby matches). It is expressly acknowledged and agreed that, by way of example and not limitation, rights of the NCAA may supersede rights of the Company under this Agreement for NCAA event advertising and logos on college football and other events.

(b) National or Regional Television or Radio Limitations. Rules and regulations imposed on the HOF Entities (or either of them) by a national or regional television network or radio station with the right to broadcast one or more of the Village Events.

(c) Local Television or Radio. Limitations imposed by local television or radio broadcasters with the right to broadcast one or more of the Village Events on local television or radio.

(d) Blackout Rights. Blackout rights or other prevention of public display required by a league, conference or other governing body, or which are otherwise required by a third party promoter, producer, organizer or operator of a Village Event.

(e) Events. The HOF Entities rights described in Section 1.10.5.

(f) Applicable Laws. All applicable Laws.

1.10.7 If there is any change in any Permitted Restriction after the Effective Date, or any change in the implementation or application of any Permitted Restriction after the Effective Date, the effect of which is to materially reduce the value of the rights and benefits to be provided to the Company hereunder, the provisions of Section 1.4 with respect to determining a Make Good shall apply.

1.10.8 Notwithstanding anything to the contrary in this Agreement, no Excluded Sponsor or other Person shall be restricted or prohibited from procuring or receiving any hospitality elements, including tickets and access to suites, for any Village Event or from visiting the Village or any portion thereof, including the Museum.

1.11 Required Approvals; Compliance with Applicable Laws. The Parties shall use commercially reasonable efforts to obtain, as promptly as reasonably practicable following the Effective Date, all approvals required by Law in connection with this Agreement. Each Party shall comply with applicable Laws in all material respects in exercising its rights and performing its obligations under this Agreement.

1.12 Key Performance Indicators. From and after the date that both Phase II and Phase III are Open for Business, but subject to Force Majeure, HOFV shall ensure the minimum annual attendance at the Village in each Agreement Year will be 2,500,000 (the “Minimum Footfall”). If HOFV fails to achieve the Minimum Footfall in any given Agreement Year, the Parties shall negotiate in good faith an appropriate equitable adjustment to the Fees for the immediately subsequent Agreement Year. If the Parties are unable to agree upon such equitable adjustment within thirty (30) days and if either Party so elects, the Parties shall designate an appraiser which is reasonably acceptable to both Parties, has no material relationship to either of the Parties or their respective Affiliates and has experience in valuing rights and benefits similar to the Assets to determine such equitable adjustment. The determination of such appraiser with respect to such equitable adjustment shall be final, binding and non-appealable, and fifty percent (50%) of the costs and expenses charged by the appraiser for such services rendered shall be paid by each of the Company, on the one hand, and the HOF Entities, on the other hand. Subject to Force Majeure, if HOFV fails to achieve the Minimum Footfall in any two (2) consecutive Agreement Years, JCI will have the right to terminate this Agreement upon thirty (30) days’ prior written notice to the HOF Entities.

ARTICLE 2

PAYMENT

2.1 Payment of Fees. The Company shall make payments to HOFV in the amounts and on the dates set forth in Exhibit H (collectively, the “Fees”). The Company shall promptly pay the Fees as and when the same shall become due and payable and, if the Company fails to pay same when due, the HOF Entities shall have all of the rights and remedies provided for in this Agreement or, subject to the terms of this Agreement, at law or in equity in the case of nonpayment of amounts thereunder. The Company’s obligation to pay any Fees due and payable through the date of expiration or sooner termination (as applicable) shall survive the expiration or sooner termination of this Agreement (as applicable). All payments due hereunder by the Company shall be payable when due by wire transfer pursuant to instructions from HOFV. The Company acknowledges and agrees that HOFV has the right to assign the receipt of any payments payable by the Company hereunder to a Lender or other Person and the Company shall accept and act in accordance with such payment instructions from HOFV with respect to any such assignment. HOFV acknowledges that, as of the Effective Date, there are no accrued and unpaid Fees.

2.2 Currency for Payments. All payments due hereunder shall be made in United States dollars.

ARTICLE 3

INTELLECTUAL PROPERTY

3.1 Ownership of Marks.

3.1.1 HOF Entity Marks. The Company accepts and acknowledges that the Intellectual Property licensed to or owned directly or indirectly by the HOF Entities (or either of them), including the HOF Entity Marks (which shall include the Village Logos), are Intellectual Property and important assets of the HOF Entities. The Company will not use any trademark (other than the Co-Branded Village Marks) that is confusingly similar to the HOF Entity Marks (or any of them). As between the Company and the HOF Entities, the HOF Entities (or the applicable HOF Entity) shall at all times be the sole and exclusive owner of all rights in and to the HOF Entity Marks, subject to the rights of the Company with respect to the use thereof as set forth in this Agreement. Any use by the Company of any HOF Entity Mark beyond the use expressly authorized in this Agreement requires the additional express written consent of the HOF Entities (or the applicable HOF Entity). Throughout the Term and thereafter: (i) all right, title and interest in and to the HOF Entity Marks and any derivatives thereof, including the goodwill associated therewith, shall remain vested in the HOF Entities (or the applicable HOF Entity), subject to the rights of the Company with respect to the use thereof as set forth in this Agreement, and (ii) all use of the HOF Entity Marks shall inure to the benefit of the HOF Entities (or the applicable HOF Entity). At the HOF Entities’ expense, the Company shall take such action as the HOF Entities may reasonably request to effect, perfect or confirm the HOF Entities’ (or the applicable HOF Entity’s) ownership of, and any other rights in, the HOF Entity Marks.

3.1.2 Company Marks. The HOF Entities accept and acknowledge that the Intellectual Property licensed to or owned directly or indirectly by the Company, including the Company Marks, are Intellectual Property and important assets of the Company. The HOF Entities will not use any trademark (other than the Co-Branded Village Marks) that is confusingly similar to the Company Marks (or any of them). As between the Company and the HOF Entities, the Company shall at all times be the sole and exclusive owner of all rights in and to the Company Marks, subject to the rights of the HOF Entities with respect to the use thereof as set forth in this Agreement. Any use by the HOF Entities of any Company Mark beyond the use expressly authorized in this Agreement requires the additional express written consent of the Company. Throughout the Term and thereafter: (i) all right, title and interest in and to the Company Marks and any derivatives thereof, including the goodwill associated therewith, shall remain vested in the Company, subject to the rights of the HOF Entities with respect to the use thereof as set forth in this Agreement, and (ii) all use of the Company Marks shall inure to the benefit of the Company. At the Company’s expense, the HOF Entities shall take such action as the Company may reasonably request to effect, perfect or confirm the Company’s ownership of, and any other rights in, the Company Marks.

3.1.3 Co-Branded Village Marks. The Parties acknowledge and agree that the Co-Branded Village Marks constitute composite trademarks, a constituent element of which includes wording that constitutes a discrete trademark that is owned by the Company and wording and a design element that constitutes discrete trademarks that are owned by the HOF Entities (or either of them). The Parties acknowledge that nothing in this Agreement shall confer on the Company any ownership interest or other rights in or to any HOF Entity Mark, apart from any rights granted explicitly herein, nor shall this Agreement confer on the HOF Entities any ownership interest or other rights in or to any Company Mark, apart from any rights granted explicitly herein. Except as explicitly set forth herein, nothing in this Agreement shall be deemed to limit or restrict the right of the HOF Entities to use or license to any Person any HOF Entity Mark nor shall it be deemed to limit or restrict the right of the Company to use or license to any Person any Company Mark.

3.2 The HOF Entities’ License to the Company. Subject to the terms and conditions set forth in this Agreement, the HOF Entities hereby grant to the Company a limited, non-exclusive, non-sublicensable (except to Designated Affiliates or as otherwise provided herein), non-assignable (except to Designated Affiliates or as otherwise provided herein), royalty- free license to use the HOF Entity Marks, throughout the world, in any media now known or not yet existing, solely for purposes of promoting the Company’s sponsorship of the Village throughout the Term. For purposes of clarity, the foregoing license shall expressly include use of the Village Logos as part of the Co-Branded Village Marks. Upon notice by the HOF Entities to the Company of any use of the HOF Entity Marks by the Company, a Designated Affiliate or any Person claiming a right thereto by, through or under the Company or a Designated Affiliate not in compliance with this Section 3.2, the Company shall, as promptly as possible, use commercially reasonable efforts to withdraw any violating materials that use any HOF Entity Mark. Upon notice of any other objection by the HOF Entities to any use of the HOF Entity Marks by the Company, a Designated Affiliate or any Person claiming a right thereto by, through or under the Company or a Designated Affiliate of the HOF Entity Marks, the Company shall work with the HOF Entities in good faith to resolve such objection promptly and to the satisfaction of the HOF Entities, including, if appropriate and practicable, taking commercially reasonable steps to withdraw any such objectionable materials that use the HOF Entity Marks. All use of the HOF Entity Marks anywhere by the Company, a Designated Affiliate or any Person claiming a right thereto by, through or under the Company or a Designated Affiliate shall inure solely to the benefit of the HOF Entities (or the applicable HOF Entity) and to no one else. All goodwill accrued by, and due to, use of the HOF Entity Marks anywhere by the Company, a Designated Affiliate or any Person claiming a right thereto by, through or under the Company or a Designated Affiliate shall be the sole and exclusive property of the HOF Entities (or the applicable HOF Entity). The Company shall submit to the HOF Entities for prior written approval all materials bearing any HOF Entity Mark which the Company or its Designated Affiliates or any other Person to whom the Company or a Designated Affiliate is permitted hereunder to sublicense or assign its rights to the HOF Entity Marks proposes to use, and the Company, such Designated Affiliates and such Persons shall not use any such material without the prior written approval of the HOF Entities, which shall not be unreasonably withheld. If the HOF Entities fail to respond to the Company’s submission (or resubmission) within five (5) business days of submission by the Company, then the HOF Entities shall be deemed to have approved such submitted (or resubmitted) materials. If either of the HOF Entities disapproves any of the Company’s submissions (or resubmissions), the Company shall have the right to make modifications consistent with those specified by the HOF Entities or HOF Entity and resubmit the relevant materials to the HOF Entities for approval. Following the HOF Entities’ initial approval of such use, the Company shall have the right to use the HOF Entity Marks without further permissions so long as a subsequent use does not materially deviate from a previously approved use and such use is consistent with the “style guides” attached hereto as Exhibits J and L, as applicable. The Parties acknowledge and agree that the rights granted by the HOF Entities pursuant to this Section 3.2 are non-exclusive and similar rights may also be provided by the HOF Entities to other Persons except to the extent prohibited under this Agreement. Subject to the terms and conditions set forth in this Agreement, the HOF Entities hereby grant to the Company a non-exclusive, non-sublicensable (except to Designated Affiliates or as otherwise provided herein), non-assignable (except to Designated Affiliates or as otherwise provided herein), royalty-free license to use the Advertising Material/Artwork solely to the extent necessary to perform its obligations under this Agreement or as contemplated by Section 1.5.2.

3.3 Company License to the HOF Entities. Subject to the terms and conditions set forth in this Agreement, the Company hereby grants to the HOF Entities a non-exclusive, non- sublicensable (except to Affiliates of the HOF Entities or as otherwise provided herein), non- assignable (except to Affiliates of the HOF Entities or as otherwise provided herein), royalty-free license to use the Company Marks throughout the world, in any media now known or not yet existing, solely (i) in connection with the operation, management, advertisement, marketing and promotion of the Village and (ii) in connection with the manufacture, sale, advertisement, marketing and promotion of Co-Branded Village Merchandise, such licensed use in (ii) subject to the approval of the Company pursuant to Section 3.3.1, not to be unreasonably withheld, conditioned or delayed. For purposes of clarity, the foregoing license shall expressly include use of the Company Marks as part of the Co-Branded Village Marks as well as in connection with the Village Domain Names and the Branded Social Media Accounts. Notwithstanding anything herein, the Company acknowledges and agrees that the Co-Branded Village Marks will be used in connection with Village Events, and may be used by third parties performing services in connection therewith, by permitted third party sponsors of the Village and third party manufacturers, suppliers and licensees of Co-Branded Village Merchandise and that the HOF Entities are hereby authorized to grant to third parties the right to use the Co-Branded Village Marks in connection with (i) Village Events, (ii) performance of services in connection with Village Events, (iii) permitted third party sponsorship of the Village and (iv) subject to Section 3.3.1, third party manufacture, supply and license of the Co-Branded Village Merchandise, in each case subject to an agreement that incorporates the limitations which apply to use thereof by the HOF Entities. Upon notice by the Company to the HOF Entities of any use of the Company’s Marks by an HOF Entity, any Affiliate thereof or any Person claiming a right thereto by, through or under an HOF Entity or any Affiliate thereof not in compliance with this Section 3.3, the HOF Entities shall, as promptly as possible, use commercially reasonable efforts to withdraw or cause to be withdrawn any violating materials that use the Company Marks. All use of the Company Marks anywhere by the HOF Entities, any Affiliate thereof or any Person claiming a right thereto by, through or under an HOF Entity or any Affiliate thereof shall inure solely to the benefit of the Company and to no one else. All goodwill accrued by, and due to, the use of the Company Marks anywhere by the HOF Entities, any Affiliate thereof or any Person claiming a right thereto by, through or under an HOF Entity or any Affiliate thereof shall be the sole and exclusive property of the Company.

3.3.1 Trademark Approval and Other IP Approvals. The HOF Entities shall submit to the Company for prior written approval all samples of materials that the HOF Entities receive for approval from third party manufacturers, suppliers and licensees of Co- Branded Village Merchandise. If the Company fails to respond to the HOF Entities’ submission (or resubmission) within five (5) business days of submission by the HOF Entities, then the Company shall be deemed to have approved such submitted (or resubmitted) materials. If the Company disapproves any of the HOF Entities’ submissions (or resubmissions), the HOF Entities shall have the right to make modifications consistent with those specified by the Company and resubmit the relevant materials to the Company for approval. Following the Company’s initial approval of such use or proposed Co-Branded Village Merchandise, the HOF Entities (and their third party manufacturers, suppliers and licensees of Co-Branded Village Merchandise) shall have the right to use the Co-Branded Village Marks in connection with Co-Branded Village Merchandise without further permissions so long as a subsequent use does not materially deviate from a previously approved use and such use is consistent with the “style guide” attached hereto as Exhibit L.

3.3.2 For the avoidance of doubt, and except as otherwise expressly set forth herein, (a) the Company shall not have the right to use any trademarks, copyright protected materials or other intellectual property owned by the HOF Entities (or either HOF Entity) without the prior written consent of the HOF Entities (or the applicable HOF Entity) and (b) neither HOF Entity shall have the right to use any trademarks, copyright protected materials or other intellectual property owned by the Company without the prior written consent of the Company.

3.4 Registration and Protection of the Co-Branded Village Marks.

3.4.1 Domestic Registration and Protection of Certain Marks. Throughout the Term, the Company shall, at its expense, use commercially reasonable efforts to obtain and maintain in its own name or in the name of an Affiliate trademark registrations for the Company Marks with the United States Patent and Trademark Office, for goods and services as may be mutually agreed by the Parties. Throughout the Term, an HOF Entity shall, as applicable and at its own expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the Village Logo(s) and HALL OF FAME VILLAGE and PRO FOOTBALL HALL OF FAME marks, as applicable, with the United States Patent and Trademark Office, for goods and services as may be mutually agreed by the Parties. Each Party acknowledges and agrees that no other Party makes any warranty or representation on its ability to successfully register or maintain any registration hereunder and that, except as otherwise expressly set forth herein, decisions pertaining to the filing, prosecution, and maintenance of each Party’s respective marks resides solely with that respective Party. Each Party also agrees to provide reasonable assistance to the other Parties, at the requesting Party’s sole expense, in protecting, obtaining and/or maintaining applications for registration or registrations pursuant to this Section 3.4.1.

3.4.2 International Registration and Protection of Certain Marks. Throughout the Term, the Company shall, at its expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the Company Marks for goods and services as may be mutually agreed by the Parties, in jurisdictions that may be mutually agreed upon by the Parties. Throughout the Term, an HOF Entity shall, as applicable and at its own expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the Village Logo(s) and/or HALL OF FAME VILLAGE and/or PRO FOOTBALL HALL OF FAME marks, as applicable, for goods and services as may be mutually agreed by the Parties, in jurisdictions that may be mutually agreed upon by the Parties. Each Party acknowledges and agrees that no other Party makes any warranty or representation on its ability to successfully register or maintain any registration hereunder and that, except as otherwise expressly set forth herein, decisions pertaining to the filing, prosecution, and maintenance of each Party’s respective marks resides solely with that respective Party. Each Party also agrees to provide reasonable assistance to the other Parties, at the requesting Party’s sole expense, in protecting, obtaining and/or maintaining applications for registration or registrations pursuant to this Section 3.4.2.

3.4.3 Restrictions on Registration of and Challenge to the Co-Branded Village Marks, Company Marks and HOF Entity Marks. The Parties agree that neither the HOF Entities (in the case of (b) and (c), with respect to the Company Marks) nor the Company (in the case of (b) and (c), with respect to the HOF Entity Marks) shall, during the Term or at any time thereafter, (a) make application for or aid or abet others to seek trademark registration for any Co- Branded Village Mark, (b) make application for or aid or abet others (except to aid the Company or the HOF Entities, as the case may be) to seek trademark registrations or recordings of trade names or company names in any state within the United States, in the United States Patent and Trademark Office or other United States governmental agencies or in any foreign country of, or claim, directly or indirectly, any right, title or interest in or to, any Company Mark or HOF Entity Mark, respectively, or variations thereof; or (c) directly or indirectly challenge or assist any Person in challenging, in any jurisdiction, or take any other action adverse to, (i) the Company’s or the HOF Entities’ (or the applicable HOF Entity’s) exclusive right, title and/or interest in and to the Company Marks or the HOF Entity Marks, respectively, or (ii) the validity or enforceability of the Company Marks or the HOF Entity Marks, respectively, or any applications or registrations therefor.

3.5 Policing and Enforcement of Co-Branded Village Marks, Company Marks and HOF Entity Marks. The Company shall have the exclusive right to control all aspects of policing and enforcement of the Company Marks. The HOF Entities and each HOF Entity, individually, shall have the exclusive right to control all aspects of policing and enforcement of the HOF Entity Marks (including the Village Logo). If any Party discovers any third-party uses of marks that potentially infringe, dilute or tarnish the Co-Branded Village Marks (or any of them), it shall promptly notify the other Parties of all known particulars, and the Parties shall proceed as follows:

3.5.1 The HOF Entities shall have the primary right with respect to enforcement of rights to the Co-Branded Village Marks, and any decision whether or not to take any enforcement action in any case shall, except as otherwise set forth in this Section 3.5, lie exclusively and at the sole discretion of the HOF Entities. The HOF Entities shall have the exclusive right to issue any cease and desist, demand or similar letters to any third party infringers or violators of the Co-Branded Village Marks, and (except as set forth in Section 3.5.3) the Company shall not issue any such letters or other threats or demands without the prior written consent of the HOF Entities.

3.5.2 If the HOF Entities (or either of them) institutes a legal proceeding or similar action to enforce its (or their) rights in any of the Co-Branded Village Marks, it (or they) may do so in its (or their) own name, with the choice of counsel and control of the action, and with all expenses therefor, lying exclusively with the HOF Entities or the HOF Entity instituting such action. To the extent that the Company is a necessary party for the HOF Entities to have standing to bring such legal proceeding, the Company agrees to join the legal proceeding as a party at the HOF Entities’ expense or the expense of the HOF Entity instituting such action, whichever is applicable, and to comply with any reasonable instructions provided by the HOF Entities in connection with the HOF Entities’ control of the action. Any economic or other benefit obtained in such action shall be retained by the HOF Entities. If there is any such enforcement action by the HOF Entities (or either of them), the HOF Entities (or the applicable HOF Entity) shall confer with the Company regularly regarding the progress of the action, and the Company shall, at the HOF Entities’ expense, cooperate reasonably and in good faith in the conduct of such action, including by way of example, the furnishing of documents or witnesses. In addition, the Company may, at its own expense and upon execution of an appropriate joint defense agreement, participate in such litigation in a subordinate role, including attending depositions, court events and meetings (including settlement negotiations), assisting in the drafting of pleadings and briefs, and consulting with the HOF Entities (or the applicable HOF Entity) on strategy and tactics, provided that the Company will not be allowed to participate in any court event or meeting or in any other manner related to the Co-Branded Village Marks (or any of them) if such participation is not allowed under any applicable Law. The HOF Entities shall, prior to filing any lawsuits related to the Co-Branded Village Marks (or any of them), consider in good faith any input on strategy and tactics offered by the Company, but the Parties understand and agree that at all times ultimate control of any litigation related to the Co-Branded Village Marks (or any of them) not filed under Section 3.5.3 herein shall remain exclusively with the HOF Entities.

3.5.3 If neither HOF Entity decides to institute enforcement actions (which may include cease and desist letters or other formal demands) against such an adverse use for a period of thirty (30) days after notification of such adverse use from the Company, the Company may initiate and prosecute enforcement actions (including cease and desist letters and legal proceedings) in its own name, with the choice of counsel and control of the action, and with all expenses therefor, lying exclusively with the Company (subject to the last sentence of this Section 3.5.3). To the extent that an HOF Entity is a necessary party for the Company to have standing to bring such legal proceedings, the HOF Entities agree to join the legal proceedings as a party at the Company’s expense and to comply with any reasonable instructions provided by the Company in connection with the Company’s control of the action. Any economic or other benefit obtained in such action shall be retained by the Company. If there is any such enforcement action by the Company, the Company shall confer with the HOF Entities regularly regarding the progress of the action, and the HOF Entities shall, at the expense of the Company, cooperate reasonably and in good faith in the conduct of such action, including by way of example, the furnishing of documents or witnesses. In addition, the HOF Entities may, at their own expense and upon execution of an appropriate joint defense agreement, participate in such litigation in a subordinate role, including attending depositions, court events and meetings (including settlement negotiations), assisting in the drafting of pleadings and briefs, and consulting with the Company on strategy and tactics, provided that the HOF Entities will not be allowed to participate in any court event or meeting or in any other manner related to the Co-Branded Village Marks (or any of them) if such participation is not allowed under any applicable Law. The Company shall, prior to filing any lawsuits related to the Co-Branded Village Marks (or any of them), attend to and consider in good faith any input on strategy and tactics offered by the HOF Entities, but the Parties understand and agree that at all times ultimate control of any litigation related to the Co-Branded Village Marks (or any of them) filed by the Company under this Section 3.5.3 shall remain exclusively with the Company.

3.5.4 Nothing herein shall preclude the Parties from bringing any enforcement action jointly, if they so choose, all expenses and benefits thereof being shared equally (i.e., 50% by the Company, on the one hand, and 50% by the HOF Entities, on the other hand), or as otherwise agreed to, by the Parties. Notwithstanding anything in this Section 3.5 to the contrary, no Party shall settle any proceeding or litigation described in this Section 3.5 without the other Parties’ prior written consent. Each Party shall also ensure that each other Party is allowed full disclosure of all relevant settlement terms and conditions in any settlement agreement.

3.6 Domain Names; Social Media Accounts.

3.6.1 Domain Names. The Parties agree that the HOF Entities (or one of them) shall, at their expense, obtain, register and, at their sole discretion, maintain the domain names listed on Exhibit I (“Village Domain Names”). All Village Domain Names shall be registered by and in the name of the HOF Entities (or one of them) on behalf of and for the benefit of the Company and shall remain registered in such manner throughout the Term. Throughout the Term, the HOF Entities shall, as between the Parties, be exclusively responsible for the design, content, hosting, operation, maintenance and support of, and all transactions conducted via, any website at the Village Domain Names (each, a “Village Website”), and shall pay all costs and expenses relating thereto. As between the Parties, except as otherwise set forth herein, the HOF Entities (or the appropriate HOF Entity) will own all rights in the content of any Village Website, other than the Company Marks and any content provided by the Company, and the Company hereby provides the HOF Entities a non-exclusive, paid-up license to use all such Company content. The HOF Entities will operate, or cause to be operated, each Village Website, each of which shall feature the Company Marks and include a Co-Branded Village Mark. The HOF Entities shall determine, in their reasonable discretion, the initial design, functionality, aesthetic and content of any Village Website and any material changes thereto, but will take into consideration the Company’s requests and preferences in this regard; provided that if the Company notifies the HOF Entities that it objects, in its reasonable discretion, to any design or content on a Village Website, then the HOF Entities shall promptly remove or modify, or cause to be removed or modified, such design or content and the Parties shall work in good faith on mutually agreed upon design, functionality and aesthetics of the Village Website.

3.6.2 Social Media Accounts. The Parties agree that the HOF Entities (or one of them) shall, at their expense, obtain, register and, at their sole discretion, maintain one or more social media and other online accounts and profiles for the purpose of promoting or marketing the Village, which accounts and profiles shall feature or display the Co-Branded Village Marks or derivatives thereof (“Branded Social Media Accounts”). All Branded Social Media Accounts shall be registered in the name of the HOF Entities (or one of them) on behalf of and for the benefit of the Company and shall remain registered in such manner throughout the Term. Throughout the Term, the HOF Entities shall, as between the Parties, be exclusively responsible for the design, content, hosting, operation, maintenance and support of, and all transactions conducted via, any Branded Social Media Accounts and shall pay all costs and expenses relating thereto. As between the Parties, except as otherwise set forth herein, the HOF Entities (or the appropriate HOF Entity) will own all rights in the content of any Branded Social Media Accounts, other than any the Company Marks and content provided by the Company, and the Company hereby provides the HOF Entities a non-exclusive, paid-up license to use all such Company content. The HOF Entities will operate, or cause to be operated, each Branded Social Media Account, which shall feature the Company Marks and include a Co-Branded Village Mark. The HOF Entities shall determine, in their reasonable discretion, the initial design, functionality, aesthetic and content of any Branded Social Media Accounts and any material changes thereto, but will take into consideration the Company’s requests and preferences in this regard; provided that if the Company notifies the HOF Entities that it objects, in its reasonable discretion, to any design or content on a Branded Social Media Account, then the HOF Entities shall promptly remove or modify, or cause to be removed or modified, such design or content and the Parties shall work in good faith on mutually agreed upon design, functionality and aesthetics of the Branded Social Media Accounts. The Company agrees that it will not create, develop or maintain any Branded Social Media Accounts without the express prior authorization of the HOF Entities.

3.7 Quality Standards.

3.7.1 Style Guides. All use, promotions, marketing and advertising under, in connection with, and/or associated with the HOF Entity Marks by the Company or a permitted designee shall be conducted in accordance with the standards, rules and procedures set by the HOF Entities as set forth in the “style guides” attached hereto as Exhibits J and L, as applicable. All use, promotions, marketing and advertising under, in connection with, and/or associated with the Company Marks by the HOF Entities or a permitted designee shall be conducted in accordance with the standards, rules and procedures set by the Company as set forth in the “style guide” attached hereto as Exhibit K. All use, promotions, marketing and advertising under, in connection with, and/or associated with the Co-Branded Village Marks by the Parties or a permitted designee shall be conducted in accordance with the standards, rules and procedures as set forth in the “style guide” attached hereto as Exhibit L. If the “style guide” for the Co-Branded Village Marks is not finalized as of the Effective Date, the Parties shall work together in good faith to finalize such “style guide” (which shall be reasonably acceptable to each of the Parties) as promptly as reasonably practicable, which “style guide” shall be attached hereto as Exhibit L once it has been finalized and approved by the Parties.

3.7.2 Products. The HOF Entities agree that they shall use commercially reasonable efforts to ensure that (a) all Co-Branded Village Merchandise shall be of good quality and free of defects in design, material and workmanship and shall be suitable for their intended purpose, (b) no injurious, poisonous, deleterious or toxic substance, material, paint or dye will be used in or on the Co-Branded Village Merchandise; and (c) the Co-Branded Village Merchandise will be manufactured, packaged, marketed, sold and distributed in compliance with all applicable Laws and the then-prevailing industry standards.

3.7.3 Advertising. Each Party agrees that it shall not use or authorize the use of any Company Mark, HOF Entity Mark or Co-Branded Village Mark in any manner that is contrary to public morals, deceptive, or defamatory, or that would reasonably be expected to reflect unfavorably on the good name, goodwill, reputation and/or image of any Party or the Village.

3.8 Restrictions on Use of “Gold Jacket”. If the Company or any of its Affiliates desires to use the term “Gold Jacket” in connection with football, the National Football League (“NFL”), any of the NFL’s thirty two Member Clubs, any former or current NFL player, coach or owner, or any former NFL player, coach or owner that has been inducted into the National Football Museum Pro Football Hall of Fame, whether in connection with any advertising, marketing, media or promotional activities or otherwise, including in connection with any media, marketing or communications materials or collateral, any such use shall be subject to the prior written approval of PFHOF. The Parties acknowledge and agree that nothing in this Agreement shall be deemed a grant by either HOF Entity of any rights in or to the term “Gold Jacket.”

3.9 Trademark Notices. Each Party shall comply with the other Parties’ reasonable requests to include appropriate trademark legends, copyright notices and photography credits with respect to any materials provided by one Party to any other.

ARTICLE 4

REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

4.1 Mutual Warranties. Each Party represents and warrants to the other Parties that (a) this Agreement has been duly authorized, executed and delivered by such Party, (b) such Party has the full power and authority and is free to enter into this Agreement and to perform its obligations hereunder, (c) such Party is in good standing under the laws of its state of formation, (d) this Agreement constitutes such Party’s valid and binding obligation, enforceable in accordance with its terms (except to the extent enforceability is limited by bankruptcy, reorganization and other similar laws affecting the rights of creditors generally and by general principles of equity), (e) except as otherwise set forth herein, no consent of a third party is necessary for such Party to execute or deliver, or perform its obligations under, this Agreement and (f) except as otherwise set forth herein, the making of, and performance of its obligations under, this Agreement by such Party do not violate any material agreement, right or obligation existing between such Party and any other third party.

4.2 Company Warranties. The Company represents and warrants to the HOF Entities that (a) the Company has the right and authority to license to the HOF Entities the rights to use the Company Marks as expressly authorized in this Agreement, (b) the HOF Entities’ use of the Company Marks as expressly authorized in this Agreement shall not require the payment by the HOF Entities (or either of them) of any fees, royalties or other payment of any kind, or the grant by the HOF Entities (or either of them) of any right or interest, to any third party, (c) to the Company’s knowledge, the use of the Company Marks by the HOF Entities as contemplated in this Agreement will not infringe the copyright, trademark or other rights of any third party, (d) there is no litigation, action or other proceeding pending or threatened in writing against the Company or any of its assets, properties or rights that relates to this Agreement or would reasonably be expected to impair, restrict or prohibit the Company’s ability to perform its obligations hereunder and (e) except for IdeaQuest LLC (whose fees related to this Agreement shall be paid by the Company), the Company has not dealt with or engaged, directly or indirectly, any brokers, finders, consultants or like agents who will be entitled to any fees in connection with this Agreement.

4.3 The HOF Entity Warranties. The HOF Entities represent and warrant to the Company that (a) the HOF Entities (or an HOF Entity) has the right and authority to license to the Company the rights to use the HOF Entity Marks as expressly authorized in this Agreement, (b) the Company’s use of the HOF Entity Marks as expressly authorized in this Agreement shall not require the payment by the Company of any fees, royalties or other payment of any kind, or the grant by the Company of any right or interest, to any third party, (c) to the knowledge of the HOF Entities, the use of the HOF Entity Marks by the Company as contemplated in this Agreement will not infringe the copyright, trademark or other rights of any third party, (d) there is no litigation, action or other proceeding pending or threatened in writing against the HOF Entities (or either of them) or any of their respective assets, properties or rights that relates to this Agreement or would reasonably be expected to impair, restrict or prohibit the HOF Entities’ ability to perform their respective obligations hereunder and (e) except for Premier Partnerships and TSAV (whose fees related to this Agreement shall be paid by the HOF Entities), neither HOF Entity has dealt with or engaged, directly or indirectly, any brokers, finders, consultants or like agents who will be entitled to any fees in connection with this Agreement.

4.4 Indemnification.

4.4.1 The HOF Entities shall jointly and severally indemnify, defend and hold the Company (and the Company’s Affiliates and the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates) harmless from and against all liabilities, damages, costs, fees, fines, penalties, and other expenses of any and every kind and nature (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by the indemnified party in connection with any third party claim, demand, suit, proceeding, action, or cause of action (each, a “Claim”) arising out of or as a result of:

(a) any breach by the HOF Entities (or either of them) of any of their representations, warranties or covenants under, or gross negligence or willful misconduct by the HOF Entities in connection with, this Agreement;

(b) any use of the HOF Entity Marks as authorized herein (including with respect to the infringement or alleged infringement of any third party intellectual property) by the Company, any Designated Affiliate or any Person to whom under the terms of this Agreement the Company or any Designated Affiliate is permitted to sublicense or assign its rights under this Agreement; and

(c) any use by the HOF Entities (or either of them) or any of their sublicensees or assignees of the Company Marks other than as authorized herein (including with respect to the infringement or alleged infringement of any third party intellectual property).

In no event shall the HOF Entities’ obligations in this Section 4.4.1 be construed as requiring the HOF Entities (or either of them) to indemnify or hold harmless the Company (or the Company’s Affiliates or the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates) with respect to any Claim to the extent caused by the negligence or willful misconduct of the Company (or any of the Company’s Affiliates or any of the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates).

4.4.2 In addition to its indemnification obligations under Section 4.4.1, HOFV shall indemnify, defend and hold the Company (and the Company’s Affiliates and the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates) harmless from and against all Losses incurred by the indemnified party in connection with any Claim arising out of or as a result of:

(a) any advertising by HOFV (except to the extent such Claim relates to the use by HOFV in such advertising of the Company Marks as authorized in this Agreement);

(b) the ownership or operation of the Village, or the operation or production of any Village Event, including any bodily injury, personal injury (including death) or property damage suffered at the Village, including any environmental claim and any claim with respect to the collection, use, disclosure, or transfer of personally identifiable information; and

(c) the production, manufacture, sale, and distribution of Co-Branded Village Merchandise by HOFV, including any bodily injury, personal injury (including death) or property damage suffered as a result of such Co-Branded Village Merchandise (except to the extent such Claim relates to the use of the Company Marks in such Co-Branded Village Merchandise as authorized in this Agreement).

In no event shall HOFV’s obligations in this Section 4.4.2 be construed as requiring HOFV to indemnify or hold harmless the Company (or the Company’s Affiliates or the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates) with respect to any Claim to the extent caused by the negligence or willful misconduct of the Company (or any of the Company’s Affiliates or any of the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates).

4.4.3 In addition to its indemnification obligations under Section 4.4.1, PFHOF shall indemnify, defend and hold the Company (and the Company’s Affiliates and the officers, directors, equity holders, agents, employees and representatives of the Company or any of the Company’s Affiliates) harmless from and against all Losses incurred by the indemnified party in connection with any Claim arising out of or as a result of:

(a) any advertising by PFHOF (except to the extent such Claim relates to the use by HOFV in such advertising of the Company Marks as authorized in this Agreement);

(b) the operation or production of any Village Event, in each case to the extent operated or produced by PFHOF, including any bodily injury, personal injury (including death) or property damage suffered at the Village arising out of such Village Event, including any environmental claim and any claim with respect to the collection, use, disclosure, or transfer of personally identifiable information; and

(c) the production, manufacture, sale, and distribution of Co-Branded Village Merchandise by PFHOF, including any bodily injury, personal injury (including death) or property damage suffered as a result of such Co-Branded Village Merchandise (except to the extent such Claim relates to the use of the Company Marks in such Co-Branded Village Merchandise as authorized in this Agreement).

In no event shall PFHOF’s obligations in this Section 4.4.3 be construed as requiring PFHOF to indemnify or hold harmless the Company or HOFV (or the Company’s or HOFV’s Affiliates or the officers, directors, equity holders, agents, employees and representatives of the Company or HOFV or any of the Company’s or HOFV’s Affiliates) with respect to any Claim to the extent caused by the negligence or willful misconduct of the Company or HOFV (or any of the Company’s or HOFV’s Affiliates or any of the officers, directors, equity holders, agents, employees and representatives of the Company or HOFV or any of the Company’s or HOFV’s Affiliates).

4.4.4 The Company shall indemnify, defend and hold the HOF Entities (and their Affiliates and the officers, directors, managers, equity holders, agents, employees and representatives of the HOF Entities or any of their Affiliates) harmless from and against all Losses in connection with any Claim arising out of or as a result of (a) a breach by the Company of its representations, warranties or covenants under, or gross negligence or willful misconduct by the Company in connection with, this Agreement, (b) the use by the HOF Entities (or either of them) of the Company Marks as authorized herein (including with respect to the infringement or alleged infringement of any third party intellectual property) or (c) any use by the Company, its Designated Affiliates or any of their respective sublicensees or assignees of the HOF Entity Marks other than as authorized herein (including with respect to the infringement or alleged infringement of any third party intellectual property). In no event shall the Company’s obligations in this Section 4.4.4 be construed as requiring the Company to indemnify or hold harmless the HOF Entities (or either of them or their Affiliates or the officers, directors, managers, equity holders, agents, employees or representatives of the HOF Entities or any of their Affiliates) with respect to any Claim to the extent caused by the negligence or willful misconduct of the HOF Entities (or either of them or any of their Affiliates or any of the officers, directors, managers, equity holders, agents, employees or representatives of the HOF Entities (or either of them) or any of their Affiliates).

4.4.5 Any Party asserting any claim to indemnification under this Section 4.4 (the Company, on the one hand, or the HOF Entities, on the other hand, as applicable, the “Indemnified Party”) shall promptly notify the other Party (the HOF Entities, on the one hand, or the Company, on the other hand, as applicable, the “Indemnifying Party”) of such claim, provided that any delay or failure to so notify the Indemnifying Party shall only relieve the Indemnifying Party of its indemnification obligations to the extent, if at all, that it is prejudiced by reason of such delay or failure. The Indemnifying Party shall, using qualified counsel, investigate, defend, contest or settle the Claim. The Indemnified Party may participate in (but not control) the defense and/or settlement of such Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party fails to diligently defend such Claim, the Indemnified Party shall have the right, at its option upon written notice to the Indemnifying Party, to assume and control defense and/or settlement of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense and/or settlement thereof and the Indemnifying Party may participate in (but not control) the defense and/or settlement of such action, with its own counsel at its own expense. The Parties shall make available to each other all relevant information in their possession relating to such Claim and shall reasonably cooperate in the defense thereof.

ARTICLE 5

INSURANCE

5.1 Throughout the Term, the HOF Entities shall maintain in full force and effect, at its own cost and expense, the insurance policies described in this Section 5.1:

5.1.1 Commercial general liability insurance applicable to liability arising out of premises, operations, products, completed operations, contractual liability (including tort liability of another assumed in a business contract), including bodily injury (including death), property damage, independent contractors, personal injury, advertising injury, and athletic participants bodily injury coverage, along with associated defense costs, with a limit not less than the greater of (x) One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate and which insurance shall name as additional insureds each of the Persons listed on Exhibit M-1.

5.1.2 Workers’ compensation coverage with statutory limits, as required by applicable Law in the State of Ohio.

5.1.3 Employer’s liability insurance with a limit of not less than $1,000,000) per accident, $1,000,000 for each employee by disease, and $1,000,000 policy limit by disease.

5.1.4 Business automobile liability insurance for any vehicle licensed for public road use, including owned, non-owned, and hired autos, with a $1,000,000 combined single limit per occurrence on vehicles owned, leased, or rented by any HOF Entity or by any of their respective subcontractors, and including appropriate endorsements if hazardous wastes are transported (such as Insurance Service Office MCS 90 and CA 9948).

5.1.5 Liquor liability insurance with a limit of not less than $5,000,000 per claim, which insurance shall name as additional insureds each of the Persons listed on Exhibit M-1.

5.1.6 An umbrella liability policy with a minimum policy limit of $5,000,000 each occurrence and in the aggregate, which insurance shall name as additional insureds each of the Persons listed on Exhibit M-1.

All of the insurance policies required under this Section 5.1 shall (a) be written by insurers that are licensed to do business in the State of Ohio; (b) be written by insurers that have a policyholder’s rating of not less than A VIII in the most current edition of Best’s Rating Guide; (c) provide that the Company will be given at least thirty (30) days’ advance written notice of any cancellation or material reduction in coverage; (d) if available, upon commercially reasonable terms, contain a waiver of the insurer’s rights of subrogation; and (e) be primary with respect to any insurance or self-insurance programs maintained by the Company. The limits specified in this Section 5.1 (x) may be achieved through a combination of primary and umbrella policies and (y) do not limit the liability of the HOF Entities under this Agreement.

Upon the renewal of any insurance policy required under this Section 5.1 and otherwise promptly following the Company’s written request, the HOF Entities shall furnish the Company with a current certificate of insurance for each insurance policy required under this Section 5.1. Each such certificate shall evidence the most recent AM Best rating of each insurer and contain the required additional insured endorsement. Failure by the HOF Entities to provide any such certificate does not constitute a waiver by the Company of any of the insurance requirements in this Section 5.1. In addition, promptly following the written request by the Company if there is a dispute about the applicability of coverage to a specific loss or claim, the HOF Entities shall provide a copy of the applicable insurance policy; provided that the HOF Entities may redact proprietary business information from such copy before providing it to the Company.

5.2 Throughout the Term, the Company shall maintain in full force and effect, at its own cost and expense, commercial general liability insurance applicable to liability arising out of this Agreement, including bodily injury (including death), property damage, personal injury, advertising injury and contractual liability, with a commercially reasonable limit, but in any event not less than such insurance coverage as is required by applicable Law, which insurance shall name as additional insureds each of the Persons listed on Exhibit M-2. All of the insurance policies required under this Section 5.2 shall (a) be written by insurers that have a policyholder’s rating of not less than A VIII in the most current edition of Best’s Rating Guide; (b) provide that the HOF Entities will be given at least thirty (30) days’ advance written notice of any cancellation or material reduction in coverage; (c) if available, upon commercially reasonable terms, contain a waiver of the insurer’s rights of subrogation; and (e) be excess to the HOF Entities’ insurance. The limits of such insurance do not limit the liability of the Company under this Agreement. Upon the renewal of any insurance policy required under this Section 5.2 and otherwise promptly following the HOF Entities’ written request, the Company shall furnish the HOF Entities with a current certificate of insurance for each insurance policy required under this Section 5.2. Each such certificate shall evidence the most recent AM Best rating of each insurer and contain the required additional insured endorsement. Failure by the Company to provide any such certificate does not constitute a waiver by the HOF Entities of any of the insurance requirements in this Section 5.2. In addition, promptly following the written request by the HOF Entities if there is a dispute about the applicability of coverage to a specific loss or claim, the Company shall provide a copy of the applicable insurance policy; provided that the Company may redact proprietary business information from such copy before providing it to the HOF Entities. Nothing in this Section 5.2 shall be deemed to reduce or eliminate any obligation of the Company with respect to insurance under the Design Assist Services Agreement.

ARTICLE 6

TERM OF AGREEMENT

6.1 Term. Subject to Section 9.11, the term of this Agreement commenced on November 17, 2016 and shall expire, without the need for notice or further action from either Party, on December 31, 2034 (the “Expiration Date”), unless terminated earlier in accordance with the terms of this Agreement or extended pursuant to Section 9.11 or otherwise as provided for in this Agreement (the term of this Agreement, as the same shall expire or be terminated or extended in accordance with the provisions of this Agreement, the “Term”). Except as otherwise expressly provided herein, the rights granted to, and the obligations imposed on, any Party hereto under this Agreement shall be effective and enforceable during the Term only.

ARTICLE 7

TERMINATION

7.1 The HOF Entities’ Termination Rights. The HOF Entities may terminate this Agreement by delivering written notice to the Company in accordance herewith if:

7.1.1 The Company breaches any of its covenants or agreements hereunder, including any failure by the Company to pay when due any amount due hereunder, which breach remains uncured for thirty (30) days after the Company’s receipt of written notice of such breach from the HOF Entities; provided, however, that as long as the Company is diligently attempting to cure such breach (if curable), such thirty (30) day cure period shall be extended by an additional period, not to exceed ninety (90) days, as may be required to cure such breach; and/or

7.1.2 The Company (i) applies for or consents to the appointment of a custodian of any kind, whether in bankruptcy, common law, or equity proceedings, with respect to all or substantially all of its assets; (ii) becomes insolvent or is unable, or admits in writing its inability, to pay its debts generally as they become due; (iii) makes a general assignment for the benefit of its creditors; or (iv) files a petition seeking relief under the United States Bankruptcy Code or, if such a petition is filed by any of its creditors, such petition is approved by a court of competent jurisdiction and such approval is not vacated within ninety (90) days.

7.2 The Company’s Termination Rights.

This Agreement will terminate immediately without notice if:

7.2.1 The Technology as a Service Agreement, on substantially the same terms as the Letter of Intent – Johnson Controls Hall of Fame Village Technology as a Service Agreement dated as of the Effective Date (the “Letter of Intent”) and otherwise in the form agreed to by the Parties, is not fully executed by July 31, 2020 (other than due to the Company’s failure to (i) execute the same, (ii) participate in weekly teleconferences with HOFV with regard to finalizing the Technology as a Service Agreement, or (iii) otherwise negotiate the same in good faith); provided that, if the Company does not provide to HOFV an initial draft of the Technology as a Service Agreement on substantially the same terms as the Letter of Intent on or before June 15, 2020, then such July 31, 2020 date will be extended by the number of days between June 15, 2020 and the date the Company provides to HOFV an initial draft of the Technology as a Service Agreement on substantially the same terms as the Letter of Intent.

7.2.2 If any party, including HOFV or its estate or a court-ordered trustee or representative, seeks to reject or rejects the Technology as a Service Agreement pursuant to Section 365 of the United States Bankruptcy Code; and/or

7.2.3 Either HOF Entity (i) applies for or consents to the appointment of a custodian of any kind, whether in bankruptcy, common law, or equity proceedings, with respect to all or substantially all of its assets; (ii) becomes insolvent or is unable, or admits in writing its inability, to pay its debts generally as they become due; (iii) makes a general assignment for the benefit of its creditors; or (iv) files a petition seeking relief under the United States Bankruptcy Code or, if such a petition is filed by any of its creditors, such petition is approved by a court of competent jurisdiction and such approval is not vacated within ninety (90) days.

The Company may terminate this Agreement by delivering written notice to the HOF Entities in accordance herewith if:

7.2.4 HOFV is in default beyond applicable notice and cure periods under the Technology as a Service Agreement (unless such default has been waived by the Company in writing) and the Company terminates the Technology as a Service Agreement as a result thereof to the extent the terms of the Technology as a Service Agreement permit termination as a remedy for such default;

7.2.5 Phase II is not Open for Business by January 2, 2024, subject to day- for-day extension due to Force Majeure;

7.2.6 Intentionally omitted;

7.2.7 HOFV is in default beyond applicable notice and cure periods under any loan document evidencing or securing any construction loan to HOFV with respect to the Village and the lender has either instituted foreclosure proceedings or accepted a deed in lieu of foreclosure;

7.2.8 HOFV is in default beyond all applicable cure periods under the agreement between HOFV and its general contractor with respect to the construction of the Village and such general contractor terminates such agreement and stops all work due to such default; and/or

7.2.9 The HOF Entities (or either of them) breach any of their covenants or agreements hereunder (other than those addressed in Section 7.2.1 through 7.2.8), which breach remains uncured for thirty (30) days after the HOF Entities’ receipt of written notice of such breach from the Company; provided, however, that as long as the HOF Entities (or either of them) are diligently attempting to cure such breach (if curable), such thirty (30) day cure period shall be extended by an additional period, not to exceed ninety (90) days, as may be required to cure such breach.

7.3 Effect of Termination. At the end of the Term, or upon any sooner termination of this Agreement:

7.3.1 In the case of expiration of the Term on the Expiration Date or a termination of this Agreement prior to the Expiration Date pursuant to Section 7.1, and except as set forth in Section 7.3.3 or 7.3.4, the HOF Entities shall have the right to continue then-existing uses of the Co-Branded Village Marks, in typed or any then-current stylized form, without alteration, for a period not to exceed four (4) months; provided that the HOF Entities shall use commercially reasonable efforts to cease using the Co-Branded Village Marks as soon as practicable. For purposes of such transitional use of the Co-Branded Village Marks at the end of the Term, the quality control provisions set forth in Section 3.7 shall survive expiration of this Agreement. After expiration of the transitional period provided in this Section 7.3.1, the HOF Entities shall have no right to use the Co-Branded Village Marks, except as set forth in Section 7.3.3 or 7.3.4.

7.3.2 In the case of a termination of this Agreement prior to the Expiration Date pursuant to Section 7.2, and except as set forth in Section 7.3.3 or 7.3.4, the HOF Entities shall have the right to continue then-existing uses of the Co-Branded Village Marks, in typed or any then current stylized form, without alteration, for a period not to exceed sixty (60) days; provided that the HOF Entities shall use commercially reasonable efforts to cease using the Co- Branded Village Marks as soon as practicable. For purposes of such transitional use of the Co- Branded Village Marks, the quality control provisions set forth in Section 3.7 shall survive termination of this Agreement. After expiration of the transitional period provided in this Section 7.3.2, the HOF Entities shall have no right to use the Co-Branded Village Marks, except as set forth in Section 7.3.3 or 7.3.4.

7.3.3 The Parties may use the Co-Branded Village Marks indefinitely after the Term for informational, archival and historical reference purposes including for (i) retrospective or commemorative events taking place at the Village and (ii) the preparation, publication, sale or distribution of any material (including any literary, photographic, video, digital or any other works) that discuss or otherwise depict the Village (including the depiction by the HOF Entities of any events that took place at the Village) and its history.

7.3.4 Notwithstanding anything to the contrary in this Agreement, the HOF Entities shall be free to market and sell or otherwise dispose of then-existing inventory containing the Co-Branded Village Marks until all of such inventory has been depleted; provided, however, that the HOF Entities’ rights to sell any such inventory containing the Co-Branded Village Marks shall expire nine (9) months after the expiration or termination of the Term.

7.3.5 Except as otherwise set forth in this Section 7.3, no Party shall have the right to use the Co-Branded Village Marks, any confusingly similar marks (excluding any parts thereof that constitute marks owned by such Party which are not Co-Branded Village Marks) after the Term.

7.3.6 If this Agreement expires upon the Expiration Date or upon the termination of this Agreement pursuant to Section 7.2, the HOF Entities shall bear all costs and expenses associated with the removal and destruction of the Co-Branded Village Marks from the Village and collateral and marketing materials. Upon the termination of this Agreement pursuant to Section 7.1, the Company shall bear all costs and expenses associated with the removal and destruction of the Co-Branded Village Marks from the Village and collateral and marketing materials.

7.3.7 Upon termination or expiration of this Agreement (but following any transitional period provided for in Sections 7.3.1, 7.3.2 or 7.3.4), the HOF Entities shall promptly inactivate any Village Domain Names and Branded Social Media Accounts. For a period of one year following the termination or expiration of this Agreement (but following any transitional period provided for in Sections 7.3.1, 7.3.2 or 7.3.4), the HOF Entities shall maintain all registrations for any such (inactive) Village Domain Names and (inactive) Branded Social Media Accounts and, after expiration of the one year period, shall cancel any such registrations with the appropriate registrars and social media providers. Thereafter, no Party may register or use any of the Village Domain Names or Branded Social Media Accounts.

7.3.8 Upon termination of this Agreement for any reason, the Company shall have the right to continue then-existing uses of the Co-Branded Village Marks, in typed or any then current stylized form, without alteration, for a period not to exceed sixty (60) days; provided that the Company shall use commercially reasonable efforts to cease using the Co- Branded Village Marks as soon as practicable. For purposes of such transitional use of the Co- Branded Village Marks, the quality control provisions set forth in Section 3.7 shall survive termination of this Agreement. After expiration of the transitional period provided in this Section 7.3.8, the Company shall have no right to use the Co-Branded Village Marks.

7.3.9 Upon the expiration or termination of this Agreement for any reason, (i) the Company will thereafter have no right to use in any manner any Intellectual Property of either HOF Entity and (ii) neither HOF Entity will thereafter have any right to use in any manner any Intellectual Property of the Company, in each case except as set forth in this Agreement.

7.3.10 If this Agreement is terminated pursuant to Section 7.2, HOFV shall, within thirty (30) days after the effective date of such termination, pay to the Company the applicable amount set forth below:

Effective Date of Termination	Amount
Effective Date through 1/31/2021	$	6,250,000
2/1/2021 through 1/31/2022	$	5,500,000
2/1/2022 through 1/31/2023	$	4,750,000
2/1/2023 through 1/31/2024	$	4,000,000
2/1/2024 through 1/31/2025	$	1,750,000
2/1/2025 through 1/31/2026	$	1,575,000

The Company’s acceptance of such amount will be deemed a waiver of any claim by the Company against the HOF Entities under this Agreement other than (i) any Claim for which the HOF Entities are liable under the terms of Section 4.4 hereof, and (ii) any claim for direct damages incurred by the Company resulting from any breach by the HOF Entities of this Agreement (other than (x) a Claim for which the HOF Entities are liable under the terms of Section 4.4 hereof, which is governed by the immediately preceding clause (i) and (y) a failure of the HOF Entities to deliver any Asset to the Company). For the avoidance of doubt, the Company acknowledges and agrees that PFHOF has no obligation to pay the Company any amount set forth in this Section 7.3.10.

7.4 Survival. Without limiting any provisions of this Agreement which, by their express terms, survive expiration or termination of this Agreement, the following articles and sections shall survive any termination or expiration of this Agreement: ARTICLE 9 (other than Section 9.11), Exhibit B, and Sections 3.1, 4.4 (with respect to any matters or occurrences taking place prior to termination), 7.3 and 7.4, along with any other section which by its nature would be intended to survive such termination or expiration.

ARTICLE 8

FINANCING PROVISIONS

8.1 Notice and Right to Cure HOF Entity Defaults.

8.1.1 If the Company receives a written notice complying with Section 9.2 of this Agreement signed by a HOF Entity and a Lender identifying such Lender (a “Notifying Lender”) as holding a security interest in this Agreement or the Village, the Company shall give to each Notifying Lender, at the address of the Notifying Lender stated in the notice given by the Notifying Lender and a HOF Entity to the Company, and otherwise in the manner pursuant to the provisions of Section 9.2 hereof, a copy of each notice given under Section 7.2.9 (“Default Notice”) at the same time as it gives a Default Notice to the HOF Entities, and the Company shall not exercise its right to terminate this Agreement under Section 7.2.9 unless and until the Company shall have given to each Notifying Lender notice and time to cure in accordance with this Section 8.1. The initial written notice by a HOF Entity and a Notifying Lender shall specifically identify this Agreement by name and execution date, and specifically reference that the notice is provided under Section 8.1.1 of this Agreement.

8.1.2 Each Notifying Lender shall, in the case of any default by the HOF Entities (or either of them) under this Agreement under Section 7.2.9, have a concurrent period of thirty (30) days more than is given the HOF Entities, under the provisions of this Agreement, to cure such default or cause it to be cured or to proceed under Section 8.1.4(ii).

(i) If a Notifying Lender elects to proceed under Section 8.1.4(ii), such Lender shall provide the Company with written notice of such election complying with Section 9.2 of this Agreement. Such written notice shall specifically identify this Agreement by name and execution date, and specifically reference that the notice is provided under Section 8.1.2(i) of this Agreement. The Company shall have the right, exercisable in its sole discretion within forty-five (45) days of receipt of such written notice, to terminate this Agreement and/or to take any other action it deems appropriate by reason of any default or “event of default” hereunder which occurred prior to the Company’s delivery of notice of the termination of this Agreement.

(ii) At any time after commencing to proceed in the manner described in Section 8.1.4(ii), a Notifying Lender may notify the Company, in writing, that it has relinquished possession of the Village or that it will not institute foreclosure proceedings or, if such proceedings shall have been commenced, that it has discontinued such proceedings, and, in either event the Notifying Lender shall have no liability in connection therewith from and after the date on which it delivers notice to the Company. Thereupon, the Company shall have the unrestricted right to terminate this Agreement and to take any other action it deems appropriate by reason of any default or “event of default” hereunder which occurred prior to or after the Company’s delivery of notice of the termination of this Agreement.

8.1.3 The Company shall not object to performance by the Notifying Lender of any covenant, condition or agreement on the HOF Entities’ part (or either HOF Entity’s part) to be performed hereunder, with the same force and effect as though performed by the HOF Entities.

8.1.4 8.1.4

(i) No default by the HOF Entities (or either of them) under Section 7.2.9 shall be deemed to have occurred if, within the period set forth in Section 8.1.2, any such default shall in fact be cured by a Notifying Lender.

(ii) If there is a default under Section 7.2.9 where possession of the Village is required in order to cure such default, the Notifying Lender may proceed promptly to institute foreclosure proceedings, and prosecute the foreclosure proceedings in good faith and with reasonable diligence to obtain possession of the Village and, upon obtaining possession of the Village, promptly commence to cure the default and prosecute such cure to completion with reasonable diligence, provided that, if such cure is not completed on or before 90 days after the date of such default, the Company’s payment obligations under Section 2.1 of this Agreement shall be suspended until such date as the Notifying Lender completes such cure or such default is otherwise cured (and upon such cure the Company shall promptly pay to the Notifying Lender all amounts payable by the Company under Section 2.1 of this Agreement for the period in which the Company’s payment obligations under Section 2.1 of this Agreement were suspended). This Section 8.1.4(ii) is subject to the Company’s termination right and right to take any other action it deems appropriate by reason of any default or “event of default” hereunder which occurred prior to or after the Company’s delivery of notice of the termination as more particularly set forth in Section 8.1.2(i). For the avoidance of doubt, the Notifying Lender shall not have any right to cure any default under Section 7.2 other than under Section 7.2.9.

8.2 Execution of New Agreement.

8.2.1 If this Agreement is terminated pursuant to Section 7.2.9 and the Notifying Lender has not had the opportunity to cure set forth in Section 8.1, and the default leading to such termination is curable, the Company shall give prompt notice thereof to each Notifying Lender. Such notice shall set forth in reasonable detail a description of all defaults, to the actual knowledge of the Company, in existence at the time the Agreement was terminated by the Company.

8.2.2 If, within one hundred twenty (120) days of the notice referred to in Section 8.2.1, a Notifying Lender shall request a new agreement (which shall take the form of a direct agreement between the Company and a Lender or its designee), then within thirty (30) days after the Company shall have received such request, provided the Notifying Lender has prosecuted foreclosure proceedings and obtained ownership of the Village and the Technology as a Service Agreement remains in full force and effect, the Company shall enter into good faith negotiations with the Notifying Lender to enter into a new agreement for the Village for the remainder of the term with such Notifying Lender or its designee, which new agreement shall contain all of the covenants, conditions, limitations and agreements contained in this Agreement.

8.2.3 The Company shall not be obligated to enter into a new agreement with a Notifying Lender or its designee pursuant to Section 8.2.2 unless the Notifying Lender, shall promptly after receipt from the Company of a statement of the default required to be cured, cure all defaults then existing under this Agreement and the Technology as a Service Agreement.

8.2.4 The execution of a new agreement shall not constitute a waiver of any default existing immediately before termination of this Agreement.

8.3 Modifications. If, in connection with obtaining financing, a Notifying Lender shall request reasonable modifications in this Agreement as a condition to such financing, the Company shall not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not increase the obligations of the Company hereunder or decrease the Company’s rights and remedies hereunder other than to a de minimis extent, and provided further that any attorneys’ fees and disbursements reasonably incurred by the Company in connection with such modifications to the Agreement shall be paid by the HOF Entities.

8.4 Estoppel Certificates. The Parties hereby agree, at any time and from time to time, upon not less than ten (10) business days’ prior notice from any other Party, to execute, acknowledge and deliver to the other Parties, a statement in writing addressed to such Party certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the Fees and other charges have been paid, stating whether or not to the actual knowledge of the signer of such certificate, there exists any default in the performance of any covenant, agreement, term, provision or condition contained in this Agreement, and, if so, specifying each such default of which the signer has actual knowledge, and certifying as to such other matters as the requesting Party, as well as any Lender or any ground lessor may reasonably request, it being intended that any such statement delivered pursuant hereto may be relied upon by such Party and by any Lender or prospective Lender, and by any landlord under a ground or underlying lease affecting the Village.

8.5 Non-Disturbance and Direct Recognition. Notwithstanding anything to the contrary in this Agreement, it is the intention of the Parties that foreclosure against the HOF Entities (or either of them) or the Village shall not be deemed a basis on which this Agreement may be terminated by Lender. If requested by the Company if such foreclosure occurs, the HOF Entities shall use commercially reasonable efforts to assist the Company in its efforts to cause this Agreement and the Technology as a Service Agreement to survive foreclosure against the HOF Entities or the Village, as applicable. In addition, notwithstanding anything to the contrary set forth in Section 9.3.2, the HOF Entities agree that prior to encumbering the Village with a security interest or otherwise transferring, assigning, conveying, pledging or encumbering, in whole or in part, any and all of its rights under this Agreement or the Technology as a Service Agreement or interests in the HOF Entities to any Lender, the HOF Entities shall exercise commercially reasonable efforts to obtain a direct recognition agreement in form reasonably acceptable to the Company whereby such Lender agrees that the Company’s rights under this Agreement and the Technology as a Service Agreement shall not be terminated so long as the Company is not in default of its obligations hereunder beyond the expiration of applicable notice and cure periods.

8.6 Certain Limitations. Nothing in this Agreement shall be deemed to authorize or permit any HOF Entity or Lender to put, impose or secure any lien, claim or encumbrance on or against any asset or right of the Company or any of its Affiliates.

ARTICLE 9

MISCELLANEOUS PROVISIONS

9.1 Confidentiality.

9.1.1 Except as expressly set forth herein, neither the HOF Entities nor the Company shall, and each Party shall cause its Affiliates and the directors, officers, managers, employees, representatives, advisors and agents of such Party or any of its Affiliates not to, without the written consent of the other Parties, make any announcement or other public disclosure, or private disclosure to any Person other than the disclosing Party’s directors, officers, managers, employees, representatives, advisors or agents (each of whom shall be advised of, and caused to comply with, the restrictions of this Section 9.1 by the disclosing Party), relating to the matters contemplated herein, unless otherwise required by Law or applicable stock exchange rule. If any Party determines that it is required to make such an announcement or disclosure required by Law or applicable stock exchange rule, it shall consult with the other Parties in advance, to the extent reasonably practicable or permissible by Law. Notwithstanding any provision herein to the contrary, each Party (and its Affiliates and the directors, officers, managers, employees, representatives, advisors and agents of such Party or any of its Affiliates) may make any announcement or other public disclosure, or private disclosure to any Person, of (a) the existence of a definitive agreement between the Parties with respect to the naming rights and sponsorship of the Village, (b) the approximate aggregate fees contemplated to be paid in connection therewith, (c) the duration of the contemplated term of this Agreement and (d) such other terms as the Parties shall agree in writing may be so announced or disclosed, in each case consistent with the terms set forth in this Agreement or as the Parties may otherwise agree. In addition, the Parties may disclose, without restriction, this Agreement and information concerning the transactions contemplated hereby to their respective lenders, investors and prospective investors under confidentiality obligations, accountants and legal counsel and representatives of any of the foregoing. The Parties acknowledge and agree that nothing in this Section 9.1 shall prohibit or preclude a Party from complying with its obligations under applicable Law.

9.1.2 Each party (“Receiving Party”) acknowledges that it has received or may receive proprietary and confidential information, information constituting trade secrets and other information concerning the business, products, personnel, personally identifiable information, property, organizational structure, financial affairs, customers, sales and marketing plans, strategies or operations (collectively, “Confidential Information”) from the other party (“Disclosing Party”) under this Agreement, regardless of whether such information is marked or identified as confidential. The Receiving Party agrees (a) to keep all Confidential Information of the Disclosing Party in strict confidence, (b) not to disclose such Confidential Information to any Person other than the Receiving Party’s Affiliates, officers, directors, managers, employees, agents, advisors and representatives for use as contemplated by subsection (c) hereof, and (c) to use, and to cause its Affiliates, officers, directors, managers, employees, agents, advisors and representatives to use, such Confidential Information only for the purpose of performing its obligations under this Agreement and/or enjoying its rights as contemplated by this Agreement. The obligations under this Section 9.1.2 will survive the expiration or termination of this Agreement and will continue indefinitely with respect to Confidential Information constituting a trade secret of each Party, and for five (5) years from the expiration or termination of this Agreement with respect to all other Confidential Information. The restrictions and obligations set forth in this Section 9.1.2 will not apply: (a) to information that is already publicly known at the time of its disclosure; (b) after such information becomes publicly known through no fault of the Receiving Party; or (c) to information that the Receiving Party can establish by written documentation was independently developed by or known to such Party without use of or reference to the Disclosing Party’s Confidential Information.

9.2 Notices. All notices to be sent to the Parties shall be addressed to the Parties at the addresses set forth below or at such other address as the Parties shall designate in writing from time to time in accordance with this Section 9.2. All notices, demands, requests, consents, approvals and other communications hereunder shall be in writing and shall be deemed to have been duly given if (a) personally delivered with proof of delivery thereof, (b) sent by United States certified mail, return receipt requested, postage prepaid or (c) sent by reputable overnight courier service, charges prepaid, in each case addressed to the respective Parties as follows.

All such notices to the HOF Entities (or either of them) shall be sent to:

National Football Museum, Inc. d/b/a Pro Football Hall of Fame

2121 George Halas Drive Northwest

Canton, Ohio 44708

Attention: David Baker and Pat Lindesmith

with a copy to:

Krugliak, Wilkins, Griffiths & Dougherty, Co., L.P.A.

4775 Munson Street NW

P.O. Box 36963

Canton, Ohio 44735

Attention: Christopher R. Hunt

and

HOF Village, LLC

2626 Fulton Drive NW

Canton, Ohio 44718

Attention: John Regas

with a copy to:

Hunton Andrews Kurth, LLP

2200 Pennsylvania Ave. NW

Washington, D.C. 20037

Attention: J. Steven Patterson

All such notices to the Company shall be sent to:

Johnson Controls, Inc.

Corporate Brand & Marketing

5757 North Green Bay Avenue

Milwaukee, Wisconsin 53209

Attention: Phil Clement

with a copy to:

Johnson Controls, Inc. – BSNA Legal Department

507 East Michigan Street

Milwaukee, Wisconsin 53202

Attention: Chris Osborne

Notices shall be deemed given when received if delivered personally or by overnight courier, or if mailed then two (2) business days after such mailing in the United States, with failure to accept delivery to constitute delivery for purposes hereof.

9.3 Assignment; Affiliates; Operators; Managers.

9.3.1 No Party shall have the right to assign, transfer or convey any of its rights or obligations hereunder without the prior written consent of the other Parties; provided, however, that each Party shall have the right to assign, transfer or convey this Agreement to the resulting entity in connection with a sale of all or substantially all of such Party’s assets without the prior written consent of, but subject to notice to, the other Parties. A transfer of any or all of the equity interests (directly or indirectly) in a Party (whether by sale, merger or otherwise) shall not be considered an assignment, transfer and conveyance by such Party of any of its rights or obligations under this Agreement. Any assignment, transfer or other conveyance in violation of this Section 9.3.1 shall be null and void. This Agreement shall be binding upon and inure to the benefit of all successors and permitted assigns of the Parties.

9.3.2 Notwithstanding anything in Section 9.3.1 to the contrary, the HOF Entities (or either of them) may, without a requirement to obtain the Company’s (or the other HOF Entity’s) consent, transfer, assign, convey, pledge or encumber, in whole or in part, any and all of its rights under this Agreement or interests in the HOF Entities (or such HOF Entity) to a Person (a “Lender”) as security in connection with a loan transaction.

9.4 Entire Agreement; Amendments. The entire understanding between the Parties relating to the subject matter hereof is contained in this Agreement and the Exhibits attached hereto are hereby made a part of this Agreement. This Agreement supersedes all prior and contemporaneous communications and agreements with respect to such subject matter, including all drafts of the Johnson Controls Village Non-Binding Term Sheet dated before the date of the Original Agreement, the Binding Short-Form Sponsorship and Naming Rights Agreement dated October 20, 2016 among the Parties, and the Original Agreement, each of which is hereby terminated and of no further force or effect. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, among the Parties with respect to the subject matter of this Agreement, other than as expressly set forth in this Agreement. This Agreement cannot be changed, modified, or amended except by an instrument in writing executed by all of the Parties.

9.5 Waiver. No waiver of any term or condition of this Agreement shall be effective unless executed in writing by the waiving Party. No written waiver shall excuse the performance of any act other than those specifically referred to therein and shall not be deemed or construed to be a waiver of such term or condition for the future or any subsequent breach thereof.

9.6 Relationship of Parties. There is no relationship of agency, partnership, joint venture, employment, or franchise among the Parties as a result of this Agreement. No Party shall have any right, power or authority to obligate or bind any other in any manner whatsoever as a result of this Agreement, and except as provided for in this Agreement, nothing herein contained shall give or is intended to give any rights of any kind to any third persons.

9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

9.8 Dispute Resolution. Except as provided in this Section 9.8 and subject to Section 1.10.3, any dispute arising out of or relating to this Agreement or the breach or termination hereof (each, a “Dispute”) shall be addressed and resolved only as follows:

9.8.1 If any Party provides written notice to all other Parties of the existence of a Dispute, the Parties shall first negotiate for a period of not less than thirty (30) days following delivery of such notice in a good faith attempt to resolve such Dispute.

9.8.2 If such good faith negotiations do not result in resolution, any Party may, by notice to all other Parties, then refer the Dispute to an independent facilitator or mediator for non-binding mediation. The independent mediator shall be designated by agreement of the Parties. If the Parties cannot agree on a mediator, each of the Company, on the one hand, and the HOF Entities, on the other hand, shall designate a mediator and such two designated mediators will jointly select the mediator (which jointly selected mediator shall serve as the sole mediator with respect to such Dispute). If the two designated mediators are unable to agree on a mediator, then the President of the JAMS in the State of Ohio (or his/her designee) will select the independent mediator. Each Party shall bear its respective mediation expenses and costs, including attorneys’ fees, and shall share the mediator’s fees and expenses as determined by the mediator.

9.8.3 If the mediation is unsuccessful within sixty (60) days of the commencement of such non-binding mediation, any Party may, by notice to all other Parties, then refer the Dispute to binding arbitration in the State of Ohio in accordance with the comprehensive arbitration rules and the optional expedited arbitration procedures and the appeal procedures then in effect of JAMS. For Disputes with a value less than $10,000,000, the sole arbitrator shall be designated by agreement of the Parties. If the Parties cannot agree on an arbitrator, each of the Company, on the one hand, and the HOF Entities, on the other hand, shall designate an arbitrator and such two designated arbitrators will jointly select the arbitrator (which jointly selected arbitrator shall serve as the sole arbitrator with respect to such Dispute). If the two designated arbitrators are unable to agree on an arbitrator, then the President of JAMS in the State of Ohio (or his/her designee) will select the arbitrator. For Disputes with a value of $10,000,000 or more, a panel of three arbitrators will be selected by the President of JAMS in the State of Ohio (or his/her designee). Each arbitrator shall have reasonable experience with respect to sponsorship transactions and valuing sponsorship rights. The Parties consent to the jurisdiction of the State Courts of the State of Ohio and of the United States District Court for the Northern District of the State of Ohio for injunctive, specific enforcement or other relief in connection with the arbitration proceedings or to enforce judgment of the award in such arbitration proceeding, but not otherwise. The decision issued by the arbitrator(s) must include reasonable detail of the reasoning behind such decision. The award entered by the arbitrator shall be final and binding on all of the Parties except in the case of manifest error or disregard of the law. Each Party shall bear its respective arbitration expenses and costs, including attorneys’ fees, and shall share the arbitrator fees and expenses as determined by the arbitrator(s). The arbitrator(s) shall not award punitive, exemplary, special, indirect or consequential damages. Nothing contained in this Section 9.8 is intended to expand any substantive rights any Party may have under other Sections of this Agreement.

9.9 Waiver of Jury Trial. EACH PARTY HEREBY ACKNOWLEDGES THAT IT HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing of any and all disputes, including contract claims, tort claims, and all other common law and statutory claims. This waiver is irrevocable, and shall apply to any subsequent amendments, renewals, or modifications to this Agreement or any exhibit to this Agreement.

9.10 Severability. If any provision of this Agreement or any part, portion or the scope of any such provision is or becomes or is deemed invalid, illegal or unenforceable under the applicable laws or regulations of any jurisdiction, then either such provision or part, portion or scope shall be deemed amended to conform to such laws or regulations without materially altering the intention of the Parties or it shall be stricken and the remainder of this Agreement shall remain in full force and effect.

9.11 Casualty and Condemnation; Force Majeure.

9.11.1 Fire or Other Damage to Village. If (after its construction is Substantially Completed) the Village is damaged by Force Majeure or other casualty or is condemned by a Governmental Authority exercising the powers of eminent domain or the Village is transferred in lieu of the exercise of such power so as to render the Village unusable for its intended purpose at any time during the Term, then the HOF Entities shall repair the damage or loss if such repair can be completed within one hundred eighty (180) days. If such repair cannot be completed within one hundred eighty (180) days, the HOF Entities shall have the option, but not the obligation, to repair the damage or loss. The HOF Entities shall notify the Company as to whether the HOF Entities elect to effect such repair and restoration within forty-five (45) days after the casualty or condemnation (or transfer in lieu thereof). If the HOF Entities are obligated to effect such repairs and restoration or notify the Company that the HOF Entities are electing to effect such repairs and restoration, this Agreement shall continue in full force and effect; provided, however, that (unless the Parties otherwise agree in writing to a Make Good in lieu of an extension of the Term) the Term shall be extended by such number of days as equals the length of the period from the date of the event until such repairs and restoration are complete pursuant to Section 9.11.3. If the HOF Entities notify the Company that the HOF Entities are electing not to effect such repairs and restoration, or if the HOF Entities are obligated to effect such repairs and restoration or notify the Company that the HOF Entities are electing to effect such repairs and restoration but do not complete such repairs and restoration within one hundred eighty (180) days, subject to a day-for-day extension due to Force Majeure, then this Agreement and all rights granted hereunder shall terminate as of the date of such fire or other casualty.

9.11.2 Other. Except as otherwise set forth in Section 9.11.1 hereof, no Party shall be liable or responsible for any failure to perform its obligations hereunder if such failure is caused or brought about by Force Majeure.

9.11.3 Tolling. If (a) both Phase II and Phase III are not Open for Business on or before January 2, 2026, subject to day-for-day extension due to Force Majeure or (b) the Village is not usable for a period of at least one hundred eighty (180) days as a result of the events described under Section 9.11.1 or Section 9.11.2, and unless this Agreement shall have been terminated in accordance with its terms (or unless the Parties otherwise agree in writing to a Make Good in lieu of an extension of the Term), the Term shall be extended (a) for that period of time after January 2, 2026 for which both Phase II and Phase III are not Open for Business or (b) for that period of time which the Village was not usable, as applicable, and the start and end dates of each period shall be adjusted to reflect the number of days (a) after January 2, 2026 (subject to day-for-day extension due to Force Majeure) for which both Phase II and Phase III are not Open for Business or (b) which the Village was not usable for all purposes of this Agreement. For the avoidance of doubt, if (i) both Phase II and Phase III are not Open for Business on or before January 2, 2026, subject to day-for-day extension due to Force Majeure or (ii) the Village is not usable for a period of at least one hundred eighty (180) days as a result of the events described under Section 9.11.1 or Section 9.11.2, and unless this Agreement shall have been terminated in accordance with its terms (or unless the Parties otherwise agree in writing to a Make Good in lieu of an extension of the Term), the Company’s payment obligations pursuant to Section 2.1 hereof shall be suspended during the period (i) commencing on January 1, 2026, subject to day-for-day extension due to Force Majeure, and concluding on the date on which both Phase II and Phase III are Open for Business or (ii) commencing one hundred eighty (180) days after the date as of which the Village is not usable as a result of the events described under Section 9.11.1 or Section 9.11.2 and concluding thereafter on the date as of which the Village is usable following such event, as applicable, and shall be restored immediately upon the conclusion of the applicable period described in this sentence. In addition, the Company’s payment obligations pursuant to Section 2.1 hereof shall be suspended (x) commencing on October 31, 2020, subject to day-for-day extension due to Force Majeure, if the proposed merger of HOFV and Gordon Pointe Acquisition Corp. (“GPAC”) does not close on or before October 31, 2020, subject to day-for-day extension due to Force Majeure; (y) commencing on the date the stockholders of GPAC vote not to authorize the merger of HOVF and GPAC; or (z) commencing on December 31, 2020, subject to day-for-day extension due to Force Majeure, if HOFV has not provided evidence reasonably satisfactory to the Company on or before December 31, 2020, subject to day-for-day extension due to Force Majeure, that HOFV has secured sufficient debt and equity financing to complete Phase II (the “Financing Evidence”). In the case of each of clause (x), (y), and (z), the Company’s payment obligations pursuant to Section 2.1 hereof shall be suspended until such time that HOFV provides the Financing Evidence; provided that in the case of clause (z), if HOFV provides the Financing Evidence on or before March 31, 2021, the Company shall pay to HOFV the aggregate amount of the payments suspended under clause (z) on the first day of the calendar month following the Company receiving the Financing Evidence (unless such day is less than ten (10) days following the Company’s receipt of the Financing Evidence, in which case the Company shall pay to HOFV the aggregate amount of the payments suspended under clause (z) on the first day of the next succeeding calendar month). The Financing Evidence provided to the Company by HOFV under this Section 9.11.3 shall be deemed reasonably satisfactory to the Company if such Financing Evidence shows equity and/or debt proceeds available to HOFV equal to the projected costs to complete Phase II.

9.11.4 Equitable Adjustment for TaaS Underpayment. If JCI has not been paid by January 2, 2026, subject to day-for-day extension due to Force Majeure, at least $81 million for design assist services relating to Phase III as contemplated under the Technology as a Service Agreement (the “TaaS Spend”), then, in addition to any liquidated damages that are paid or payable under the Technology as a Service Agreement, the Sponsorship Fees will be reduced in accordance with the following schedule for each of Agreement Years 2026 through 2034, until such time that JCI has been paid the full TaaS Spend:

TaaS Spend	Annual Reduction
> $61 million ≤ $71 million	$	222,222.22
> $51 million ≤ $61 million	$	444,444.44
> $41 million ≤ $51 million	$	666,666.67
> $31 million ≤ $41 million	$	888,888.89
> $21 million ≤ $31 million	$	1,111,111.11
> $11 million ≤ $21 million	$	1,333,333.33
> $1 million ≤ $11 million	$	1,555,555.56
≤ $1 million	$	1,777,777.78

9.12 Not a Lease or License of the Village. This Agreement will not constitute a lease or license of any part of the Village.

9.13 Approvals. All approval rights granted to any Party hereunder may be exercised in the sole discretion of the Party exercising such approval right unless otherwise expressly provided herein.

9.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all purposes and which collectively shall constitute one and the same agreement. A facsimile or electronic copy of any such executed counterpart shall be deemed an executed original.

9.15 Expenses. Except as otherwise provided herein, all fees, costs and expenses (including fees, costs and expenses of legal counsel and/or financial advisors) incurred in connection with this Agreement shall be paid by the Party incurring such fees, costs or expenses.

9.16 Headings. The headings used in this Agreement are solely for convenience and shall not affect the meaning or interpretation of the provisions set forth herein.

9.17 Third Party Beneficiaries. Except as otherwise expressly set forth in this Agreement, including in Section 4.4 hereof, (i) this Agreement is intended only for the benefit of the Parties, the Designated Affiliates, the Affiliates of the HOF Entities and any successors or permitted assigns as expressly provided for in this Agreement, (ii) no other Person is intended to be benefited in any way by this Agreement and (iii) this Agreement shall not be enforceable by any other Person. Any claim by any third party beneficiary is subject to all defenses available to a Party for any breaches or other failures to perform by another Party to this Agreement.

9.18 HOF Entity Rights and Obligations. The Parties acknowledge and agree that rights vested in the HOF Entities collectively under this Agreement shall be deemed vested in each HOF Entity and its Affiliates and that obligations of the HOF Entities collectively under this Agreement may be satisfied by either HOF Entity or any of their Affiliates. Without limiting the generality of the foregoing, while certain rights set forth in this Agreement are contemplated to be provided by HOFV and other rights set forth in this Agreement are contemplated to be provided by PFHOF (or by both HOF Entities), each of such rights may be provided, but with no obligation, by HOFV, PFHOF and/or any of their respective Affiliates.

9.19 Remedies Cumulative. Subject to the terms of Section 7.3.10, all remedies available at law or in equity to any Party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies, provided, however, that, notwithstanding anything to the contrary in this Agreement, no Party shall be liable to or otherwise responsible to any other Person pursuant to this Agreement for consequential, incidental, punitive, exemplary or special damages or for diminution in value or lost profits that arise out of or relate to this Agreement or the performance or breach hereof. It is understood and agreed that money damages would not be a sufficient remedy for any breach or threatened breach of Section 9.1 by any Party and that the Parties will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach by any Party of Section 9.1 but will be in addition to all other remedies available at law or equity to the non-breaching Parties. The Parties agree that no Party will be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.19, and the Parties waive any rights they may have to require any other Party to obtain, furnish or post any such bond or similar instrument.

9.20 Relationship to Technology as a Service Agreement. This Agreement and the Technology as a Service Agreement are intended to be, and shall be, integrated and indivisible, together being essential to consummating a single underlying transaction necessary to the Village. The Parties intend, acknowledge, and understand that (i) HOFV’s performance under the Technology as a Service Agreement is essential to, and a condition to the Company’s performance under, this Agreement; and (ii) the Company’s performance under this Agreement is essential to, and a condition to HOFV’s performance under, the Technology as a Service Agreement. The Parties represent, warrant, and agree that the transactions, agreements, and obligations contemplated under this Agreement and the Technology as a Service Agreement are interrelated and the material part of one integrated transaction.

9.21 Time is of the Essence. Time is of the essence with respect to the Parties’ obligations under this Agreement. The immediately preceding sentence shall not preclude the operation of any day-for-day extension due to Force Majeure set forth in this Agreement, including in Sections 1.6.3, 1.6.4, 7.2.5, 7.2.6, 9.11.1, 9.11.3, and 9.11.4.

[Remainder of page intentionally left blank; signature page attached.]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

	HOFV:

	HOF VILLAGE, LLC,
	a Delaware limited liability company

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

	PFHOF:

	NATIONAL FOOTBALL MUSEUM, INC., D/B/A PRO FOOTBALL HALL OF FAME,
	an Ohio corporation

	By:	/s/ David Baker
	Name:	David Baker
	Title:	President and Chief Executive Officer

	COMPANY:

	JOHNSON CONTROLS, INC.,
	a Wisconsin corporation

	By:	/s/ George R. Oliver
	Name:	George R. Oliver
	Title:	Chief Executive Officer

EXHIBIT B

DEFINITIONS

Acquiror has the meaning provided in Section 1.1.4.

Activation Proceeds has the meaning provided in Exhibit D.

Advertising Material/Artwork has the meaning provided in Section 1.5.2.

Advertising Signs has the meaning provided in Section 1.3.

Affiliate means, with respect to any Person, any other Person that Controls, is Controlled by, or is under common Control with, such Person.

Agreement has the meaning provided in the preamble.

Annual Meeting has the meaning provided in Section 1.9.

Asset has the meaning provided in Section 1.4.

Branded Social Media Accounts has the meaning provided in Section 3.6.2.

Branded Takeover Proceeds has the meaning provided in Exhibit D.

Category has the meaning provided in Section 1.10.4.

Claim has the meaning provided in Section 4.4.1.

Co-Branded Village Logos means the logos for the Village as agreed to by the Parties from time to time pursuant to the terms of this Agreement.

Co-Branded Village Marks has the meaning provided in Section 1.3.

Co-Branded Village Merchandise means merchandise and apparel of the type commonly sold at venues similar to the Village and gift shops, including, solely by way of example, tag-on merchandise, t-shirts and other clothing, key chains, miniature forms of the Village, desk accessories and toys, that bear or display the Village Name or a Co-Branded Village Logo. Without limiting the generality of the foregoing, Co-Branded Village Merchandise shall include any merchandise, photographs or other items produced and sold which bears the Village Name or a Co-Branded Village Logo. For the avoidance of doubt, no merchandise, photograph or other item produced and sold which does not bear the Village Name or a Co-Branded Village Logo shall be deemed Co-Branded Village Merchandise.

Company has the meaning provided in the preamble.

Company Marks means the Intellectual Property set forth on Exhibit N.

Confidential Information has the meaning provided in Section 9.1.2.

B-1

Control means, with respect to any Person, either (a) the direct or indirect ownership of, or beneficial interest in, more than fifty percent (50%) of the ownership interests in such Person or (b) the power directly or indirectly to direct the management and affairs of such Person, whether through the ability to exercise voting power, by contract or otherwise, including the right to make (or approve) substantially all of the major decisions to be made by such Person.

Default Notice has the meaning provided in Section 8.1.1.

Design Assist Services Agreement means that certain Design Assist Services Agreement dated as of October 20, 2016 by and between HOFV and the Company, as the same shall be amended from time to time.

Designated Affiliates means any of the Affiliates of the Company (i) whose products and services are integrated into the Village or (ii) whose core business is within the subcategories listed on Exhibit G.

Disclosing Party has the meaning provided in Section 9.1.2.

Dispute has the meaning provided in Section 9.8.

Earlier Agreement has the meaning provided in Section 1.10.3.

Effective Date has the meaning set forth in the preamble.

Excluded Sponsor has the meaning provided in Section 1.10.3.

Expiration Date has the meaning provided in Section 6.1.

Fees has the meaning provided in Section 2.1.

Financing Evidence has the meaning provided in Section 9.11.3.

Force Majeure means any event or condition (with respect to either Party) that is caused by facts and circumstances that are beyond the reasonable control of such Party, which wholly or partially prevents or delays the performance of any of the duties, responsibilities, or obligations of such Party, including labor strikes, lockouts, work stoppage, acts of God, national emergency, war (whether war be declared), riots, acts or threats of terrorism, floods, fire, earthquake, epidemic, pandemic, and acts or failures to act of Governmental Authorities.

Founding Sponsor means a Person who entered into a sponsorship or similar agreement with the HOF Entities (or either of them) before the Village is Substantially Completed (i) having a term of not less than 10 years, (ii) providing such Person with sponsorship rights across the Village and the Museum, (iii) providing such Person with the right to a landmark or entitlement within the Village and (iv) providing such Person exclusivity within any of the following categories: airline, alcoholic beverage, automotive, banking, consumer electronics/technology, insurance, jewelry, non-alcoholic beverage, nutrition, retail, sports apparel, telecom and/or tire.

B-2

Governmental Authority means any federal, state, local or regional governmental or quasi- governmental authority, instrumentality, court, commission, tribunal or agency, or any political or other subdivision, department or branch of any of the foregoing having jurisdiction over any Person or the Village.

GPAC has the meaning provided in Section 9.11.3.

HOF Entities has the meaning provided in the preamble.

HOF Entity Marks means the Intellectual Property set forth on Exhibit P.

HOFV has the meaning provided in the preamble.

Indemnified Party has the meaning provided in Section 4.4.5.

Indemnifying Party has the meaning provided in Section 4.4.5.

Initial Signage Costs has the meaning provided in Section 1.5.3.

Initial Signage Credit has the meaning provided in Section 1.5.3.

Intellectual Property means trademarks, service marks, trade dress, logos, trade names, internet domain names and corporate names, together with all translations, adaptations, derivations and combinations thereof, and all other identifying indicia; all works of authorship and copyrights; all inventions (whether patentable or unpatentable) and all patents; all trade secrets and confidential business information; all software and firmware (including data, databases and related documentation); and all documents, records and files relating to all intellectual property described herein

Laws means all laws, ordinances, orders, rules, regulations and requirements of all federal, state and municipal governments and appropriate departments, boards and officers thereof, and of the insurance organization having jurisdiction thereof.

Lender has the meaning provided in Section 9.3.2.

Make Good has the meaning provided in Section 1.4.

Minimum Footfall has the meaning provided in Section 1.12.

Museum has the meaning provided in the recitals.

NCAA has the meaning provided in Section 1.10.6.

Notifying Lender has the meaning provided in Section 8.1.1.

Open for Business means (i) with respect to the components of Phase II other than the office building, such component is Substantially Completed and open to the general public; (ii) with respect to the office building component of Phase II, such space is Substantially Completed and ready for occupancy, and (iii) with respect to Phase III, the first component is Substantially Completed and open to the general public (or, if such first component is office space or multi- family housing, such component is Substantially Completed and ready for occupancy).

B-3

Original Agreement has the meaning provided in the recitals.

Other Naming Rights has the meaning provided in Section 1.1.5.

Parties has the meaning provided in the preamble.

Permitted Restrictions has the meaning provided in Section 1.10.6.

Person means an individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association or other entity; any federal, state, county or municipal government or any bureau, department or agency thereof; and any fiduciary acting in such capacity on behalf of any of the foregoing.

PFHOF has the meaning provided in the preamble.

Phase I means (i) the stadium and (ii) the youth sports complex, in each case located in the Village and depicted on the final renderings for Phase I attached hereto as Exhibit A.

Phase II means (i) the Hall of Fame indoor waterpark, (ii) one premium hotel, (iii) the Constellation Center for Excellence (office building, auditorium, and dining), (iv) the Center for Performance (Field House and Convention Center), and (v) the Hall of Fame retail promenade, in each case located or to be located in the Village and depicted on the current renderings for Phase II attached hereto as Exhibit A.

Phase III means (i) additional attraction-based experiences and (ii) additional lodging and retail facilities, in each case located or to be located in the Village.

Proposed Name Change has the meaning provided in Section 1.1.4.

Receiving Party has the meaning provided in Section 9.1.2.

Special Event has the meaning provided in Section 1.10.5.

Substantially Completed means that a temporary certificate of occupancy or permanent certificate of occupancy with respect to the entire Village, or the accumulation of partial certificates of occupancy aggregating to substantially the entire Village, has been issued by the appropriate Governmental Authority, which certificate of occupancy may contain a “punchlist.”

TaaS Spend has the meaning provided in Section 9.11.4.

TaaS Work has the meaning provided in Section 1.6.2.

Technology as a Service Agreement means the Technology as a Service Agreement dated as of the Effective Date by and between HOFV and the Company, as the same shall be amended from time to time.

B-4

Term has the meaning provided in Section 6.1.

Third Party Sponsorship has the meaning provided in Section 1.10.3.

Valuation Auditor has the meaning provided in Section 1.9.

Village has the meaning provided in the recitals.

Village Branding has the meaning provided in Section 1.3.

Village Domain Names has the meaning provided in Section 3.6.1.

Village Events means a sporting activity, exhibition or game, musical concert, theater event, convention, trade show, tour, charitable event, political event, religious gathering or any other event which takes place at the Village.

Village Logo has the meaning provided in Section 1.2.

Village Name means the name for the Village designated by the Company from time to time pursuant to the terms of this Agreement.

Village Website has the meaning provided in Section 3.6.1.

The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, and Exhibits are to Articles, Sections and Exhibits of this Agreement unless otherwise specified. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

John Madden

Bill Parcells

Roger Staubach

Steve Young

Dan Fouts

Marcus Allen

Ronnie Lott

B-5

Exhibit 10.11

SECURED COGNOVIT PROMISSORY NOTE

$7,000,000.00

June 25, 2020

FOR VALUE RECEIVED, the undersigned (together “Makers”), jointly and severally promise to pay to JKP Financial, LLC, a Delaware limited liability company (“Holder”), at any place designated by Holder, the principal sum of Seven Million Dollars ($7,000,000.00), or such lesser amount advanced by Holder to Makers in Holder’s discretion, with interest on the unpaid principal balance from the date funds are advanced until paid in full as set forth below.

1. Term. The term (the “Term”) of this Secured Cognovit Promissory Note (as it may be modified, amended, renewed, extended, restated, and/or replaced time to time, this “Note”) shall commence on the date set forth above and shall terminate on December 31, 2020 (“Maturity”), at which time the entire unpaid principal balance of this Note, together with any accrued and unpaid interest thereon, shall be all due and payable.

2. Interest Rate. This Note shall bear interest at the rate of twelve percent (12%) per annum (the “Interest Rate”) from the date set forth above until paid in full.

3. Payment Amount. Interest shall be due and payable at Maturity. Interest shall be calculated on outstanding principal by multiplying the actual number of days elapsed in the applicable period by a daily rate based upon a three hundred sixty (360)-day year and thirty (30)-day months.

4. Origination Fee. In addition to the payments required hereunder, Makers shall also pay Holder an origination fee (“Origination Fee”) in an amount equal to one percent (1%) of: (a) the maximum principal amount of this Note, minus (b) the amount needed to pay off, in full, the Refinanced Note (as defined in Paragraph 5). The Origination Fee shall be due and payable on the date set forth above; provided, however, that, notwithstanding the foregoing, Makers may elect to pay the Origination Fee, or any portion thereof, at Maturity, in which event the Origination Fee shall be added to principal and accrue interest thereon at the Interest Rate from the date set forth above until paid.

5. Use of Proceeds. The proceeds of the loan evidenced by this Note shall be used only (a) to repay, in full, the loan evidenced by that certain Secured Cognovit Promissory Note, dated as of October 22, 2019, in the original stated principal amount of $1,807,338.99 (the “Refinanced Note”), from HOF Village Hotel II, LLC, a Delaware limited liability company (“HOFV Hotel II”), as borrower, to CH Capital Lending, LLC, a Delaware limited liability company (“CH Capital”), as lender, (b) to pay costs associated with the demolition, renovation, development, and construction of the real property owned by HOFV Hotel II, and (c) for such other purposes as may be approved by Lender in its sole discretion. Makers acknowledge and agree that, as of the date hereof, $1,928,831 (i.e., $1,807,339 in principal plus $121,492 in accrued interest) has been advanced directly by Holder to CH Capital, in full satisfaction of the outstanding obligations under the Refinanced Note.

6. Security. This Note shall be secured by the membership interests in HOFV Hotel II held by HOF Village, LLC, a Delaware limited liability company (“HOF Village”), and certain related collateral, as set forth in that certain Pledge Agreement, dated as of the date hereof, by HOF Village to and for the benefit of Holder.

7. Nature of Note. The loan evidenced by this Note is not primarily for a personal, educational, or household purpose, is not a consumer loan, and is not part of a consumer transaction.

8. Payment Provision. Principal and interest shall be paid without deduction or offset in lawful money of the United States. Makers shall have the right to prepay all or any portion of the principal amount of this Note at any time before Maturity without penalty or premium for prepayment. Payments shall be applied first to interest, late charges, and other costs due to Holder hereunder, and the balance to principal.

9. Late Charge Provision. Makers acknowledge that late payment to Holder will cause Holder to incur costs not contemplated by this loan. Such costs include, without limitation, processing and accounting charges and loss of use of funds. Therefore, if any installment is not received by Holder within ten (10) days following its due date, Makers shall pay to Holder an additional sum equal to four percent (4%) of the overdue amount as a late charge. The late fee shall be paid to Holder within ten (10) days after the date incurred, and any failure to pay such late charge shall be a default hereunder. The parties agree that this late charge represents a reasonable sum considering all the circumstances existing on the date of this agreement and represents a fair and reasonable estimate of the costs that Holder will incur by reason of late payment. The parties further agree that proof of actual damages would be costly or inconvenient. Acceptance of any late charge will not consist of a waiver of the default with respect to the overdue amount and shall not prevent Holder from exercising any other rights and remedies available to Holder.

10. Waiver, Presentment, Demand, Protest Provision. Presentment, demand, protest, notices of protest, dishonor and nonpayment of this Note and all notices of every kind are hereby waived.

11. Default Interest Rate. In the event Makers are in default of this Note, or if this Note is not paid in full when due at Maturity, notwithstanding any other provision of this Note, Makers agree to pay interest on the outstanding principal and interest at an interest rate equal to eighteen percent (18%) per annum, provided such interest rate shall not exceed the maximum interest rate permitted by law. Makers recognize that any default in making the payments as provided for herein, or in any of the other documents executed or delivered in connection herewith, when due, or by otherwise causing a default to occur hereunder, or under any document executed or delivered in connection herewith, will require Holder to incur additional expense and loss to Holder of the use of the money due and in frustration to Holder in meeting its other financial and loan commitments and that damages caused thereby would be extremely difficult and impractical to ascertain. Holder hereby agrees that after any such acceleration, or after Maturity, as the case may be, the payment of interest at the rate described in this Paragraph on any amounts described in this Paragraph, together with the additional charge described above, is a reasonable estimate of the damage to Holder if any such event should occur.

12. Single or Partial Exercise Shall Not Preclude Other Provisions. No single or partial exercise by Holder of any power hereunder, or any other document executed in connection with this Note, shall preclude other or further exercise thereof or the exercising of any power. Holder shall at all time have the right to proceed against any portion of the security held for this Note in such order and in such manner as Holder may deem fit, without waiving any rights with respect to any other security. No delay or omission on the part of Holder in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note.

13. Joint and Several Liability. The obligations of Makers under this Note are joint and several.

14. Severance or Unenforceable Provisions. Should any part, term or provision of this Note or any other documents securing it be declared invalid, void or unenforceable, such provision shall be severed from the remaining provisions hereof and/or thereof and shall not invalidate such remaining provisions, and all such remaining provisions shall remain in full force and effect, valid and enforceable.

15. Powers Cumulative. No right, power, or remedy given Holder by the terms of this Note or other documents securing this Note is intended to be exclusive of any other right, power or remedy, and each and every such right, power or remedy shall be cumulative and in addition to every other right, power or remedy given to Holder by the terms of any instrument or by any statute or otherwise against any Maker or any other person.

16. Usury. If, from any circumstances whatsoever, fulfillment of any provision of this Note, at the time performance of such provision shall be due, shall involve transcending the limit on interest presently prescribed by any applicable usury statute or any other applicable law, with regard to obligations of like character and amount, then Holder may at his option (i) declare the entire indebtedness evidenced hereby, including interest, if any, and any other sums owing, immediately due and payable, (ii) reduce the obligations to be fulfilled to such limit on interest, or (iii) apply the amount that would exceed such limit on interest to the reduction of the outstanding principal balance of this Note, and not to the payment of interest, with the same force and effect as though the undersigned have specifically designated such sums to be so applied to principal and Holder had agreed to accept such extra payment(s) as a premium free prepayment, so that in no event shall any extraction be possible under this Note that is excess of the applicable limit on interest. It is the intention of the undersigned and Holder not to create any obligation in excess of the amount allowable by applicable law. The provisions of this paragraph shall control every other provision of this Note.

17. Waiver of Jury Trial. MAKERS AND HOLDER, TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS NOTE OR THE OTHER LOAN DOCUMENTS. MAKERS AND HOLDER AGREE THAT ANY PARTY MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF MAKERS AND HOLDER, IRREVOCABLY, TO WAIVE THEIR RESPECTIVE RIGHTS RIGHT TO TRIAL BY JURY, AND THAT, TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN MAKERS AND HOLDER SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

18. Governing Law and Venue. This Note shall be governed by and construed in accordance with the laws of the State of Ohio. The venue for resolution of any dispute between any Maker and Holder shall be in the Federal or state courts in Cuyahoga County, Ohio.

19. Attorneys’ Fees. If action be instituted on this Note, Makers promise to pay reasonable attorneys’ fees and costs incurred by Holder.

20. Confession of Judgment. To the extent permitted by applicable law, Makers, and any endorser hereof, authorize any attorney-at-law to appear in any state or federal court of record in the State of Ohio or any other state of the United States at any time after this Note is due, whether by acceleration or otherwise, and to waive the issuing and service of process and confess a judgment in favor of the legal holder hereof against Makers and any endorsers, or either or any one or more of them, for the amount then due under this Note, together with costs of suit and to release all errors and waive all right of appeal.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the undersigned have executed this Note at Canton, Stark County, Ohio as of the date first written above.

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, LLC,
a Delaware limited liability company

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

HOF VILLAGE HOTEL II, LLC,
a Delaware limited liability company

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

Exhibit 10.12

June 25, 2020

HOF Village, LLC

2626 Fulton Drive, NW

Canton, Ohio 44718

Re:	Letter Agreement re Payment Terms

Reference is made to that certain “Letter Agreement re Payment Terms as a result of the Gordon Point Merger” dated January 21, 2020 by and between the undersigned parties (the “January Letter”). This letter hereby amends and restates the January Letter.

Reference is also made to that certain Loan Agreement, dated as of March 20, 2018, by, among others, HOF VILLAGE, LLC, a Delaware limited liability company, the other Borrowers thereto, the Lenders from time to time party thereto, and GACP FINANCE CO., LLC, in its capacity as Administrative Agent (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”), as amended by: (i) that certain Delayed Draw Joinder Agreement Number 1, dated as of April 11, 2018, (ii) that certain Delayed Draw Joinder Agreement Number 2, dated as of May 18, 2018, (iii) that certain Amendment Number 3 to Term Loan Agreement, dated as of September 14, 2018, (iv) that certain Amendment Number 4 to Term Loan Agreement, dated as of February 19, 2019, (v) that certain Amendment Number 5 to Term Loan Agreement, dated as of June 28, 2019, (vi) that certain Amendment Number 6 to Term Loan Agreement, dated as of August 15, 2019, (vii) that certain Amendment Number 7 to Term Loan Agreement, dated as of November 16, 2019 (the “7th Amendment”) and (viii) as further amended, restated, supplemented, waived or otherwise modified from time to time, the “Loan Agreement”; capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Loan Agreement).

Further reference is made to (i) that certain Promissory Note (as amended from time to time, the “IRG November Note”) entered into by Borrowers and payable to the order of Industrial Realty Group, LLC, a Nevada limited liability company (“Industrial Realty Group”), (ii) the IRGMH Guaranty, (iii) that certain Loan Purchase and Assumption Agreement (which may be entered into at a future date, but which has not, at this time, been agreed upon or executed by any party) by and among Lenders, Administrative Agent, Borrowers and Purchasing Lender (as defined in the LPAA), a copy of which has been furnished to each of the undersigned parties (the “LPAA”, and together with the IRG November Note and the IRGMH Guaranty, the “Advancement Documents”), and (iv) the Gordon Pointe Merger Agreement.

Borrowers, Industrial Realty Group and IRGMH, on behalf of themselves and each of their respective affiliates (each of Industrial Realty Group, IRGMH, and their respective affiliates is referred to herein as an “IRG Entity,” and they are collectively referred to herein as the “IRG Entities”), hereby agree that, to the extent that any IRG Entity advances funds pursuant to the Advancement Documents, the Loan Agreement, or any other instrument in order to pay off GACP II, L.P. and/or DemoMode Marketing, LLC, in full pursuant to the requirements of Section 2.10(e) of the Loan Agreement, and as a result of the advancement of such funds, any IRG Entity becomes a Lender or shall have the rights of a Lender pursuant to the Loan Agreement, then (i) Sections 2.10(b) through 2.10(e) (inclusive) of the Loan Agreement shall be deleted in their entirety and shall no longer be applicable, (ii) notwithstanding the terms of the Loan Agreement, the Maturity Date shall be extended and shall occur on August 31, 2021, and (iii) Borrowers shall not be required to pay to any IRG Entity any principal, interest, or other Obligations due under the Loan Agreement if payment of such amounts would cause Borrowers to violate applicable Nasdaq or securities-law requirements. For purposes of clarification, with respect to clause (iii) of this paragraph: (A) if payment to any IRG Entity of any principal, interest, or other Obligations is delayed due to the application of clause (iii), then such unpaid amounts shall be added to the then-outstanding principal balance of the Loan and shall accrue interest at the rates set forth in the Loan Agreement and other Loan Documents, (B) if (and to the extent that) payment to any IRG Entity of principal, interest, or other Obligations would not cause Borrowers to violate applicable Nasdaq or securities-law requirements, then such amounts shall be due and payable at the times set forth in the Loan Agreement and other Loan Documents, and (C) in any event, all principal, interest, and other Obligations shall be due and payable on or before the Maturity Date (i.e. August 31, 2021).

[SIGNATURES ON FOLLOWING PAGES]

	Industrial Realty Group:

	INDUSTRIAL REALTY GROUP, LLC,
	a Nevada limited liability company

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

	IRGMH:

	IRG MASTER HOLDINGS, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON FOLLOWING PAGES]

	Borrowers:

	HOF VILLAGE, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE PARKING, LLC,
	a Delaware limited liability company

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

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

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

	HOF VILLAGE STADIUM, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON FOLLOWING PAGES]

	Borrowers, cont.:

	HOF VILLAGE LAND, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE HOTEL I, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE SPORTS BUSINESS, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE PARKING MANAGEMENT I, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON FOLLOWING PAGES]

	Borrowers, cont.:

	HOF VILLAGE RESIDENCES I, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE CENTER FOR EXCELLENCE, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE CENTER FOR PERFORMANCE, LLC,
	a Delaware limited liability company

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

	HOF EXPERIENCE, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON FOLLOWING PAGE]

	Borrowers, cont.:

	HOF VILLAGE MEDIA GROUP, LLC,
	a Delaware limited liability company

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

[END OF SIGNATURES]

Exhibit 10.13

AMENDMENT NUMBER 8 TO TERM LOAN AGREEMENT

Dated as of June 30, 2020

among

HOF VILLAGE, LLC; HOF VILLAGE YOUTH FIELDS, LLC; HOF VILLAGE PARKING, LLC;
HOF VILLAGE STADIUM, LLC AND THE OTHER PERSONS SIGNATORY HERETO AS
BORROWERS

and

THE LENDERS PARTY HERETO,

and

GACP FINANCE CO., LLC, as Administrative Agent

AMENDMENT NUMBER 8 TO TERM LOAN AGREEMENT

This AMENDMENT NUMBER 8 TO TERM LOAN AGREEMENT (this “Amendment Number 8”) dated as of June 30, 2020 is made by and among: (i) HOF VILLAGE, LLC, a Delaware limited liability company (the “Lead Borrower”); HOF VILLAGE YOUTH FIELDS, LLC, a Delaware limited liability company; HOF VILLAGE PARKING, LLC, a Delaware limited liability company; HOF VILLAGE STADIUM, LLC, a Delaware limited liability company; HOF VILLAGE LAND, LLC, a Delaware limited liability company; HOF VILLAGE HOTEL I, LLC, a Delaware limited liability company; HOF VILLAGE SPORTS BUSINESS, LLC, a Delaware limited liability company; HOF VILLAGE PARKING MANAGEMENT I, LLC, a Delaware limited liability company; HOF VILLAGE RESIDENCES I, LLC, a Delaware limited liability company; HOF VILLAGE CENTER FOR EXCELLENCE, LLC, a Delaware limited liability company; HOF VILLAGE CENTER FOR PERFORMANCE, LLC, a Delaware limited liability company; HOF EXPERIENCE, LLC, a Delaware limited liability company; HOF VILLAGE MEDIA GROUP, LLC, a Delaware limited liability company; and the other Persons signatory hereto as “Borrowers” (collectively, the “Borrowers”, and each individually, a “Borrower”); (ii) the Lenders party hereto; and (iii) GACP FINANCE CO., LLC, as administrative agent (in such capacity, the “Administrative Agent”).

PRELIMINARY STATEMENTS:

(1) The Borrowers, the Lenders party thereto from time to time, the Administrative Agent, and the other parties named therein are parties to the Term Loan Agreement, dated as of March 20, 2018 (as amended by (i) that certain Delayed Draw Joinder Agreement Number 1, dated as of April 11, 2018, (ii) that certain Delayed Draw Joinder Agreement Number 2, dated as of May 18, 2018, (iii) that certain Amendment Number 3 to Term Loan Agreement, dated as of September 14, 2018, (iv) that certain Amendment Number 4 to Term Loan Agreement, dated as of February 19, 2019, (v) that certain Amendment Number 5 to Term Loan Agreement, dated as of June 28, 2019, (vi) that certain Amendment Number 6 to Term Loan Agreement, dated as of August 15, 2019, (vii) that certain Amendment Number 7 to Term Loan Agreement, dated as of November 16, 2019 and (viii) as further amended, restated, supplemented, waived or otherwise modified from time to time, the “Loan Agreement”; capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement, as amended hereby).

(2) The Administrative Agent, the Borrowers, and the Lenders desire to amend the Loan Agreement as set forth below, such amendment, except as set forth herein, to become effective on the Amendment Number 8 Effective Date (as defined in Section 7 of this Amendment Number 8).

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:

SECTION 1. Acknowledgments:

(a) Each Borrower acknowledges: (i) the existence and continuation without waiver, consent or cure of the following Events of Default under the Loan Agreement (the “Specified Events of Default” or “Specified Defaults”): (x) Events of Default arising under Sections 7.01(b) and (c) of the Loan Agreement as a result of the Borrowers’ failure to make payments with respect to the Loans and other Obligations under Section 2.08(b)(i) of the Loan Agreement on or before April 30, 2020, (y) Events of Default arising under Section 6.09 of the Loan Agreement with respect to the formation of the following Subsidiaries: (A) Hotel II, a wholly- owned subsidiary of the Lead Borrower and (B) Newco, a wholly-owned subsidiary of the Lead Borrower, in each case, without the consent of the Administrative Agent and the Lenders, and (z) Events of Default arising under Section 6.06 of the Loan Agreement in connection with the Hotel II Indebtedness; and (ii) that as a result of the existence of the Specified Events of Default, the Administrative Agent and the other Secured Parties may exercise all rights and remedies available to them under the Loan Documents or applicable law.

(b) Each Borrower acknowledges that on and as of the date hereof, each of the Specified Defaults and the Specified Events of Default is continuing.

(c) Each Borrower hereby acknowledges and agrees that, as of the date hereof, the outstanding principal amount of all Loans (exclusive of interest, costs, fees and other expenses payable by the Borrowers to the Administrative Agent and the other Secured Parties under the Loan Agreement and the other Loan Documents) is $65,000,000 and the foregoing amount is not subject to any offset, counterclaim or defense by any of the Borrowers.

(d) Each Borrower acknowledges that as a result of the Specified Defaults and the Specified Events of Default, interest is accruing on the Loans at the Default Rate.

SECTION 2. Notwithstanding the continuation of the Specified Defaults and the Specified Events of Default, the Borrowers have requested that the Administrative Agent and the Lenders party hereto forbear from exercising certain of the rights and remedies that, solely by reason of the Specified Defaults and of the Specified Events of Default, would otherwise be available to the Secured Parties under the Loan Agreement, the other Loan Documents and applicable law. The Administrative Agent (at the direction of Required Lenders) and the Lenders party hereto have agreed to accommodate certain requests of the Borrowers, in each instance to the extent set forth in this Amendment Number 8 and subject to Borrowers’ full and timely compliance with the limitations, terms, conditions and covenants contained in this Amendment Number 8, the Loan Agreement and the other Loan Documents. In addition, the Administrative Agent, the Borrowers, and the Lenders desire to amend the Loan Agreement as set forth below, such amendment, except as set forth herein, to become effective on the Amendment Number 8 Effective Date.

SECTION 3. Waiver and Forbearance.

(a) Waiver. In reliance upon the representations, warranties and covenants of the Borrowers contained in this Amendment Number 8, and subject to the terms and conditions of this Amendment Number 8 and any documents or instruments executed in connection herewith, the Administrative Agent (at the direction of the Required Lenders) and the Lenders party hereto agree to waive and forbear from and after the Amendment Number 8 Effective Date their respective rights and remedies under the Loan Agreement and the other Loan Documents in respect of or arising solely out of the Specified Defaults and the Specified Events of Default, subject to the terms and conditions hereof.

(b) Notwithstanding the foregoing, the Borrowers expressly acknowledge and agree that:

(i) the waiver and forbearance granted pursuant hereto shall not constitute, and shall not be deemed to constitute, a waiver of any other Default or Event of Default under the Loan Documents (including any Default or Event of Default resulting from any Borrower’s failure to perform, comply with and satisfy any covenant, condition or agreement contained in this Amendment Number 8) or (except as specifically set forth in this Amendment Number 8) a waiver of any of the rights and remedies provided thereunder, under law, at equity or otherwise; and

(ii) the waiver and forbearance granted pursuant hereto is solely with respect to the Borrowers and not any other party or Person and the Administrative Agent, the Lenders and other Secured Parties are not waiving their rights to exercise their rights and remedies against any other party or Person (other than the Borrowers), including with respect to any guaranty or credit support by such other party or Person (other than the Borrowers); provided that from and after the Amendment Number 8 Effective Date, and so long as the Gordon Pointe Transaction Prepayment Amount is received by the Administrative Agent on behalf of the Tranche 1 Lender and the Tranche 2 Lender on or before July 15, 2020 and there is no Default and/or Event of Default other than the Specified Defaults and the Specified Events of Default, the Administrative Agent, the Lenders and other Secured Parties shall not seek payment of amounts due from IRGMH under Section 2(b)(iii) of the IRGMH Guaranty until the Maturity Date (or, if earlier, the date on which amounts due from IRGMH under Section 2(b)(iv) of the IRGMH Guaranty are payable).

SECTION 4. Each Borrower represents and warrants that no Default or Event of Default other than the Specified Defaults and the Specified Events of Defaults have occurred and/or is continuing.

SECTION 5. Amendments. The Loan Agreement is amended as follows:

(a) Section 1.01 thereof is amended by:

(i) amending and restating the defined term “Gordon Pointe Merger Agreement” to read as follows:

“Gordon Pointe Merger Agreement” shall mean the Agreement and Plan of Merger, dated as of September 19, 2019 (as amended on November 6, 2019, March 10, 2020 and May 22, 2020), by and among (a) GPAQ, the Acquiror, (b) Holdings, (c) Acquiror Merger Sub, (d) Company Merger Sub, (e) the Lead Borrower and (f) Newco, pursuant to which (i) Acquiror Merger Sub, will be merged with and into GPAQ, with GPAQ continuing as the surviving entity and a wholly-owned subsidiary of Holdings (the “Acquiror Merger”), and (ii) Company Merger Sub will be merged with and into Newco, with Newco continuing as the surviving entity and a wholly-owned subsidiary of Holdings.

(ii) amending and restating the defined term “Gordon Pointe Transaction” to read as follows:

“Gordon Pointe Transaction” shall mean collectively and individually, the Acquiror Merger, the HOFV Merger and the Contribution Transaction and the other transactions contemplated by the Gordon Pointe Merger Agreement, including, but not limited to, the PIPE Transaction that is consummated and proceeds of which are received on the date of HOFV Merger.

(iii) amending and restating the defined term “HOFV Merger” to read as follows:

“HOFV Merger” shall mean the merger whereby Company Merger Sub will be merged with and into Newco, with Newco continuing as the surviving entity and a wholly-owned subsidiary of Holdings, and with the members of Newco receiving shares of common stock of Holdings.

(iv) amending and restating the defined term “Maturity Date” to read as follows:

“Maturity Date” shall mean the earlier of (a) October 31, 2020 (or, if the Gordon Pointe Transaction is consummated and the Administrative Agent shall have received the Gordon Pointe Transaction Prepayment Amount, November 30, 2020) and (b) the date that all Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

(v) amending and restating the defined term “Net Cash Proceeds” to read as follows:

“Net Cash Proceeds” shall mean (a) with respect to any Asset Sale by any HOFV Party (excluding than any Excluded Asset Sale or the Gordon Pointe Transaction) or Recovery Event in respect of any HOFV Party, the proceeds thereof in the form of Cash and Cash equivalents (including any such proceeds subsequently received (as and when received) in respect of non-Cash consideration initially received), net of (i) reasonable selling expenses (including reasonable and customary closing apportionments in favor of the applicable purchaser, broker’s fees or commissions, legal fees, transfer and similar taxes incurred by the applicable Borrower in connection therewith and income taxes paid and reasonably anticipated to be payable in connection with such sale, after taking into account any available tax credits or deductions and any tax sharing arrangements, in each case to the extent attributable to such sale, (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such asset), (iv) reserves for withdrawal liability or severance reasonably anticipated to be payable arising from such Asset Sale, and (v) amounts required to be paid to any Person (other than a Borrower) owning a beneficial interest in the subject asset; (b) with respect to any issuance or disposition of Indebtedness by any HOFV Party, the Cash proceeds thereof, net of all taxes and reasonable and customary fees, commissions, costs and other expenses incurred by a Borrower in connection therewith (excluding the Gordon Pointe Transaction); (c) with respect to any Equity Issuance by any HOFV Party (including any Permitted Loan/Equity Raise) (but excluding as a result of the Gordon Pointe Transaction), the gross proceeds thereof net of any applicable selling expenses (including reasonable and customary broker’s fees or commissions, legal fees, transfer and similar taxes incurred by the issuer in connection therewith and the income taxes paid or reasonably anticipated to be payable in connection with any such issuance); (d) with respect to the Sculptor Transaction, an amount equal to the lesser of (i) the Cash proceeds thereof and (ii) $33,000,000; (e) with respect to Gordon Pointe Transaction, an amount equal to the Available Closing Date Cash; (f) with respect to debt or equity issuances by any HOFV Party under or in connection with the U.S. Department of Homeland Security’s EB-5 Immigrant Investor Program, an amount equal to the gross proceeds thereof.”

(vi) amending and restating the defined term “Obligations” to read as follows:

“Obligations” shall mean (a) obligations of the Borrowers from time to time arising under or in respect of the due and punctual payment of (i) the principal of any Loan, the Exit Fee, the Consent Fee, any premium, if any, and interest (including any Exit Fee, the Consent Fee, any premium and interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers under this Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to this Agreement and the other Loan Documents and (c) all fees, costs and expenses incurred (including during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) (i) to maintain, protect or preserve the Collateral and/or the Secured Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Secured Parties, (ii) to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation, or (iii) is made to pay any other amount chargeable to any Borrower hereunder.

(vii) amending and restating the defined term “Required Prepayment Percentage” to read as follows:

“Required Prepayment Percentage” shall mean: (a) in the case of any Asset Sale by any HOFV Party or Recovery Event of any HOFV Party (excluding the Gordon Pointe Transaction), 100%; (b) in the case of any issuance or other incurrence of Indebtedness by any HOFV Party (other than Indebtedness (i) issued on the date of HOFV Merger pursuant to the Gordon Pointe Transaction in connection with the PIPE Transaction completed on such date, or (ii) permitted under Section 6.01 except as set forth in the following clause (d)), 100%; (c) in the case of any Equity Issuance by any HOFV Party (including, without limitation, under or in connection with the U.S. Department of Homeland Security’s EB-5 Immigrant Investor Program and any Permitted Loan/Equity Raise (but excluding the Gordon Pointe Transaction)), 100% (or, after the date the Gordon Pointe Transaction are consummated, 50% (but 100% with respect to any private investment in public equity transaction after the date of HOFV Merger)); (d) in the case of any (i) Permitted Loan/Equity Raise, 100% and/or (ii) issuance or other incurrence of Indebtedness by any HOFV Party under the U.S. Department of Homeland Security’s EB- 5 Immigrant Investor Program, 100% or after the date the Gordon Pointe Transaction are consummated, 50%.

(b) The following new defined terms are added to Section 1.01 in alphabetical order:

(i) “Amendment Number 8” shall mean the Amendment Number 8 to this Agreement dated as of June 30, 2020.

(ii) “Acquiror” or “GPAQ” shall mean Gordon Pointe Acquisition Corp., a Delaware corporation.

(iii) “Acquiror Certificate of Incorporation” shall mean the Amended and Restated Certificate of Incorporation of Acquiror, filed with the Secretary of State of the State of Delaware on January 24, 2018.

(iv) “Acquiror Common Stock” shall mean Acquiror’s Class A common stock, par value $0.0001 per share.

(v) “Acquiror Merger” shall have the meaning given in the definition of Gordon Pointe Merger Agreement.

(vi) “Acquiror Merger Sub” shall mean GPAQ Acquiror Merger Sub, Inc., a Delaware corporation, a wholly-owned subsidiary of Holding.

(vii) “Acquiror Organizational Documents” shall mean the Acquiror Certificate of Incorporation and Acquiror’s bylaws.

(viii) “Acquiror Stockholder” shall mean a holder of Acquiror Common Stock or Acquiror Class F Common Stock.

(ix) “Available Closing Date Cash” shall mean, as of immediately prior to the closing of the Gordon Pointe Transaction, an aggregate amount equal to the result of (without duplication) (i) the cash available to be released from the Trust Account, plus (ii) the net proceeds raised by Acquiror or any other HOFV Party in any PIPE Transaction, minus (iii) the sum of all payments to be made as a result of the completion of the Offer and any redemptions of Acquiror Common Stock by any Redeeming Acquiror Stockholders.

(x) “Company Merger Sub” shall mean GPAQ Company Merger Sub, LLC, a Delaware limited liability company, a wholly-owned subsidiary of Holdings.

(xi) “Consent Fee” shall mean a fee payable by the Borrowers to: (i) GACP II, L.P., as the Tranche 1 Lender in an aggregate amount equal to 1% of the principal amount of the Tranche 1 Loan that remains outstanding after giving effect to the Gordon Pointe Transaction Prepayment Amount and (ii) Demomode Marketing, LLC, as the Tranche 2 Lender in an aggregate amount equal to 1% of the principal amount of the Tranche 2 Loan that remains outstanding after giving effect to the Gordon Pointe Transaction Prepayment Amount. The Consent Fee shall be earned in full, due and payable on the Amendment Number 8 Effective Date; however 50% of it shall be paid in cash on the date the Gordon Pointe Transaction (or, if earlier, the HOFV Merger) is consummated with the remaining balance to be payable on the Maturity Date (or, if earlier, the date of prepayment in full of the Tranche 1 Loan and/or the Tranche 2 Loan).

(xii) “Contribution Transaction” shall mean the contribution by the Lead Borrower of all of its assets, liabilities and obligations to Newco pursuant to the terms and conditions set forth in a “Contribution Agreement”.

(xiii) “GPAQ IPO” shall have the meaning given in the Gordon Pointe Merger Agreement.

(xiv) “Gordon Pointe Transaction Prepayment Amount” shall mean an amount equal to the (a) if the Available Closing Date Cash with respect to Gordon Pointe Transaction is equal to or less than $40,000,000, $15,500,000 (plus unpaid interest, and all other fees and costs on the Tranche 1 Loan and the Tranche 2 Loan) and (b) if the Available Closing Date Cash with respect to Gordon Pointe Transaction is greater than $40,000,000, the sum of $15,500,000 (plus unpaid interest, and all other fees and costs on the Tranche 1 Loan and the Tranche 2 Loan) plus 100% of the Available Closing Date Cash in excess of $40,000,000. For the avoidance of doubt, Gordon Pointe Transaction Prepayment Amount shall not be less than $15,500,000 (plus unpaid interest, and all other fees and costs on the Tranche 1 Loan and the Tranche 2 Loan).

(xv) “HOFV Parties” shall mean Acquiror, Acquiror Merger Sub, Company Merger Sub, Holdings, Newco, Lead Borrower and each other Borrower and, in each case, any Subsidiary of any of the foregoing (other than Hotel II, JCIHOFV Financing, LLC and Mountaineer GM, LLC) and each an “HOFV Party”.

(xvi) “Holdings” shall mean GPAQ Acquisition Holdings, Inc., a Delaware corporation, wholly-owned subsidiary of GPAQ.

(xvii) “Hotel II” shall mean HOF Village Hotel II, LLC, a Delaware limited liability company.

(xviii) “Hotel II Construction Loan” shall have the meaning ascribed to such term in Section 6.18(a) of the Loan Agreement.

(xix) “Hotel II Indebtedness” shall mean the following Indebtedness obtained by Hotel II as borrower: (a) a mortgage loan from Home Federal Savings and Loan Association of Niles in the amount of $1,9000,000 pursuant to loan documents executed on October 22, 2019; (b) a loan from the City of Canton, Ohio in the amount of $3,500,000 pursuant to loan documents executed on December 30, 2019; (c) a loan from CH Capital Lender LLC in the amount of $1,807,338.99 pursuant to loan documents executed on October 22, 2019; and (d) a loan from JKP Financial, LLC in the amount of $7,000,000 pursuant to loan documents executed on June 19, 2020.

(xx) “Newco” shall mean HOF Village Newco, LLC, a Delaware limited liability company.

(xxi) “Offer” shall have the meaning given in the Gordon Pointe Merger Agreement.

(xxii) “PIPE Transaction” shall mean any issuance, or transaction calling for the issuance, of equity securities (or debt securities convertible into equity securities) of Acquiror or Holdings effected during the period from the date hereof to the closing date of the Gordon Pointe Transaction.

(xxiii) “Redeeming Acquiror Stockholder” means an Acquiror Stockholder who demands that Acquiror convert its Acquiror Common Stock into cash in connection with the transactions contemplated hereby and in accordance with the Acquiror Organizational Documents.

(xxiv) “Trust Account” shall mean the trust account of GPAQ, which holds the net proceeds of the GPAQ IPO and the sale of the placement warrants, plus such additional amounts as GPAQ has deposited into such trust account in connection with extensions of time for GPAQ to consummate an initial business combination, together with interest earned thereon, less amounts released to pay franchise and income tax obligations and up to $100,000 of any remaining interest for dissolution expenses.

(i) On or prior to July 15, 2020, with respect to the Tranche 1 Loan and the Tranche 2 Loan, the Borrowers shall pay to the Administrative Agent, for the sole account and benefit of the Tranche 1 Loan and Tranche 1 Lender and the Tranche 2 Loan and Tranche 2 Lender, 50% of the original principal amount of the Tranche 1 Loan and the Tranche 2 Loan (or, if the Gordon Pointe Transaction is consummated on or before July 15, 2020, an amount equal to the Gordon Pointe Transaction Prepayment Amount together with unpaid interest, and all other fees and costs (including 50% of the Consent Fee) (for the avoidance of doubt, the original principal amount of the (x) Tranche 1 Loan is, $40,000,000 and (y) Tranche 2 Loan is, $10,000,000)). To the extent the Gordon Pointe Transaction is consummated on or prior to July 15, 2020, the Exit Fee due and payable to GACP II, L.P. and DemoMode Marketing, LLC on the Gordon Pointe Transaction Prepayment Amount, if any, shall be due and payable on the Maturity Date (or, if earlier, any Exit Fee due hereunder shall be due and payable on the date of any prepayment in full of the Tranche 1 Loan and/or the Tranche 2 Loan).

(d) Section 2.10 of the Loan Agreement is amended and restated to read as follows:

“SECTION 2.10 MANDATORY PREPAYMENTS.

(a) Not later than one Business Day following the completion of (i) any Asset Sale by any HOFV Party (other than an Excluded Asset Sale or the Gordon Pointe Transaction) or (ii) the occurrence of any Recovery Event in respect of any HOFV Party; provided that with respect to any Recovery Event (or series of related Recovery Events), the Borrowers may elect by written notice to Administrative Agent (and with respect to any Recovery Event (or series of related Recovery Events) resulting in Net Cash Proceeds in excess of $10,000,000, subject to the Administrative Agent’s and GACP II, L.P.’s prior written consent) to use such Net Cash Proceeds to repair or replace or restore the Property subject to such Recovery Event, in which event such Net Cash Proceeds shall be held in the Loan Proceeds Account for any such repair, replacement or restoration; provided further that if a Borrower has not consummated such repair, restoration or replacement on or prior to the earlier of (x) 3-months following receipt of such Net Cash Proceeds and (y) the Maturity Date, the Borrowers shall apply an amount equal to the Required Prepayment Percentage of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.11.

(b) On the date any HOFV Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any such HOFV Party other than (i) Indebtedness issued pursuant to the PIPE Transaction completed on the date of the HOFV Merger or (ii) Indebtedness permitted pursuant to Section 6.01 (other than any Permitted Loan/Equity Raise or such Indebtedness is under or in connection with the U.S. Department of Homeland Security’s EB-5 Immigrant Investor Program, in each case, the proceeds of which shall be required to prepay the Loans) the Borrowers (or other HOFV Party) shall apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.11; provided that so long as no Default or Event of Default exists and the Gordon Pointe Transaction is consummated on or prior to July 15, 2020 the HOFV Parties may retain 100% of the proceeds of any Permitted Loan/Equity Raise in an aggregate amount for all such Permitted Loan/Equity Raise transactions not to exceed $1,000,000.

(c) On the date of (i) any Equity Issuance by any HOFV Party or other equity contribution to either Borrower or any other HOFV Party (excluding the Gordon Pointe Transaction, but for the avoidance of doubt including any or Permitted Loan/Equity Raise or issuances under or in connection with the U.S. Department of Homeland Security’s EB-5 Immigrant Investor Program, in each case, the proceeds of which shall be required to prepay the Loans) the Borrowers shall apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.11.

(d) On the date of the completion of any Sculptor Transaction by any HOFV Party, the Borrowers shall cause the Net Cash Proceeds of the Sculptor Transaction (i.e. the lesser of (i) the actual amount received by the Borrowers and (ii) $33,000,000) to prepay in the outstanding amount of Obligations owed to Tranche 1 Lender and Tranche 2 Lender (including an amount equal to the aggregate outstanding principal amount of the Tranche 1 Loan and the Tranche 2 Loan, together with unpaid interest and all other fees and costs (including amounts required to be paid under Section 2.04(e)) in accordance with Section 2.11. For the avoidance of doubt, nothing herein should be deemed to be the Lenders’ consent to the Sculptor Transaction or the waiver of any Default or Event of Default that may arise as a result of the Sculptor Transaction.

(e) On the date on which any of the Gordon Pointe Transaction is consummated and/or announced as completed and/or made effective (or, if earlier, the date of HOFV Merger), the Administrative Agent, Tranche 1 Lender and Tranche 2 Lender shall have received in cash the Gordon Pointe Transaction Prepayment Amount to prepay the outstanding amount of Obligations owed to Tranche 1 Lender and Tranche 2 Lender in accordance with Section 2.11(b).

(f) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.10, (i) a certificate signed by a Responsible Officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three days prior written notice (except that no such notice shall be required in connection with prepayments required under clauses (d) and (e) above). Each notice of prepayment shall specify the prepayment date and the principal amount of each Loan (or portion thereof) to be prepaid, in each case in accordance with Section 2.11. In the event that the Borrowers shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans in accordance with Section 2.11 in an amount equal to such excess, and the Borrowers shall concurrently therewith deliver to the Administrative Agent a certificate of a Financial Officer demonstrating the derivation of such excess

(g) Except as set forth in Section 2.08(b)(i), any such prepayment or repayment of Loans shall be accompanied by the applicable Exit Fee then due. Failure to make any of the foregoing payments when due shall be an immediate Event of Default under Section 7.01(b)(i) of the Loan Agreement.

Notwithstanding anything to the contrary, Tranche 3 Lender shall not receive (and shall not be entitled to receive) or retain any mandatory payment, including on account of the Tranche 3 Loan, until the date that is two (2) Business Days after the Tranche 1/Tranche 2 Full Payment Date.”

(e) Section 2.11(a) of the Loan Agreement is amended as follows: reference to “clause (d)” in the second line thereof is replaced with “clauses (d) and/or (e)”.

(f) Section 2.11(b) of the Loan Agreement is amended as follows: reference to “Section 2.10(d)” in the first line thereof is replaced with “Sections 2.10(d) and/or (e)”.

(g) A new Section 6.01(g) is added to the Loan Agreement to read as follows:

“Any unsecured Indebtedness issued pursuant to the PIPE Transaction that is consummated and proceeds of which are received on the date of HOFV Merger; provided (i) the applicable HOFV Party that is the obligor (whether as an issuer or a guarantor) under the Indebtedness issued pursuant to the PIPE Transaction will, so long as the Obligations are outstanding, make an election under such Indebtedness that all interest payments due thereunder shall be paid in kind and not in cash, (ii) there shall be no “voluntary” prepayments or redemptions of such Indebtedness in cash that are not mandated or mandatorily required by the terms of the PIPE Transaction documents and (iii) such Indebtedness shall not have a scheduled “maturity date” or scheduled amortization earlier than March 31, 2025.”

(h) A new Section 6.18 is added to the Loan Agreement to read as follows:

“Section 6.18 Restrictions on HOF Village Hotel II, LLC and Mountaineer GM, LLC.

(a) Hotel II. (i) Section 6.09 shall not be applicable to Hotel II, (ii) Hotel II shall not incur any Indebtedness other than the Hotel II Indebtedness or Indebtedness with respect to construction of or renovation to real property assets of Hotel II secured only by the assets of Hotel II and no other HOFV Party (each a “Hotel II Construction Loan”), (iii) Hotel II shall not permit any Lien for borrowed money to remain on any of its assets or property other than in connection with the Hotel II Indebtedness or Hotel II Construction Loans, (iv) no HOFV Party shall guaranty (and shall not be liable for or in connection with) any Indebtedness or any other obligation (under contract, by operation of law or otherwise) of Hotel II other than in connection with the Hotel II Indebtedness, (v) from and after the Amendment Number 8 Effective Date, no HOFV Party shall make any Investment in or loan to Hotel II, (vi) from and after the Amendment Number 8 Effective Date, Hotel II shall not acquire any asset or property of any HOFV Party, (vii) from and after the Amendment Number 8 Effective Date, no HOFV Party shall sell, assign, pledge or dividend out any Capital Stock of Hotel II owned by it, except as contemplated by the Gordon Pointe Transaction or in connection with Hotel II Construction Loans and (viii) from and after the Amendment Number 8 Effective Date, no HOFV Party shall enter into any contract or agreement with Hotel II that would require such HOFV Party to make any payment to, make any Investment in or guaranty any Indebtedness of Hotel II.

(b) Mountaineer GM, LLC. From and after the Amendment Number 8 Effective Date (i) no HOFV Party shall make any Investment in or loan to Mountaineer GM, LLC, (ii) Mountaineer GM, LLC shall not acquire any asset or property of any HOFV Party and (iii) no HOFV Party shall enter into any contract or agreement with Mountaineer GM, LLC that would require such HOFV Party to make any payment to, make any Investment in or guaranty any Indebtedness of Mountaineer GM, LLC.”

SECTION 6. Notice to the Principal and IRGMH of Events of Default. The Borrowers, the Principal (by his execution of a reaffirmation of the Recourse Guaranty) and IRGMH (by its execution of a reaffirmation of the IRGMH Guaranty) acknowledge that this Amendment Number 8 is a notice of the Specified Defaults and Specified Events of Default by the Administrative Agent and Lenders to the Borrowers, the Principal and IRGMH of a written notice of the Specified Defaults and Specified Events of Default under the Loan Documents.

SECTION 7. Conditions to Effectiveness. This Amendment Number 8 shall become effective on the date (the “Amendment Number 8 Effective Date”), when each of the conditions set forth in this Section 7 shall have been satisfied (or waived by the Lenders):

(a) the Administrative Agent shall have received counterparts of this Amendment Number 8, duly executed and delivered on behalf of (i) each Borrower, (ii) each Lender, and (iii) the Administrative Agent;

(b) the Administrative Agent shall have received a certificate of a Responsible Officer of Borrower, dated the Amendment Number 8 Effective Date and certifying:

(i) that attached thereto is a true and correct copy of the resolutions of the board of directors or equivalent governing body of each Borrower, approving this Amendment Number 8 and the transactions contemplated hereby;

(ii) that, as of the Amendment Number 8 Effective Date, (1) each representation and warranty set forth in each Loan Document is true and correct in all material respects with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date (provided that, if a representation and warranty contains a materiality or Material Adverse Effect qualification, such representation and warranty is true and correct in all respects), and (2) each Borrower is in compliance with all the terms and provisions set forth in each Loan Document on its part to be observed or performed, and, immediately after giving effect to this Amendment Number 8, no Event of Default or Default (other than the Specified Defaults and the Specified Events of Default) shall have occurred and be continuing;

(iii) that, as of the Amendment Number 8 Effective Date, the Borrowers are in compliance with the terms and conditions of the Letter of Representations; and

(iv) that, as of the Amendment Number 8 Effective Date, the Borrowers are in compliance with the terms and conditions of each Ground Lease (to the extent applicable to the Borrowers) and each Project Lease;

(c) as of the Amendment Number 8 Effective Date, (x) the representations and warranties of Borrowers contained in Article III of the Loan Agreement shall be true and correct in all material respects on the Amendment Number 8 Effective Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall have been true and correct in all material respects on and as of such earlier date, and (y) no Default or Event of Default (other than the Specified Defaults and the Specified Events of Default) shall have occurred and be continuing, or would occur immediately after giving effect to the transactions contemplated by this Amendment Number 8;

(d) the Administrative Agent shall have received, on account of the Tranche 1 Lender and Tranche 2 Lender, a cash payment in an amount equal to the interest due on the Tranche 1 Loan and the Tranche 2 Loan for the Interest Payment Date ending June 30, 2020; and

(e) the Administrative Agent and the Lenders shall have received reaffirmation agreements in the forms provided by Administrative Agent and the Lenders on or prior to the date of this Amendment Number 8 (or in such other form acceptable to the Administrative Agent and the Lenders), in respect of each of the Recourse Guaranty, IRGMH Guaranty, the Debt and Lien Subordination Agreement executed between the Administrative Agent and Industrial Realty Group, LLC, the Mezzanine Subordination Agreement and the subordination agreements executed by each of CH Capital Lending, LLC, Michael Eck and M. Klein and Company, LLC.

SECTION 8. Subsequent Events.

(a) On or prior to the earlier of date the (i) of the HOFV Merger and/or (ii) on which any other Gordon Pointe Transaction is consummated (the failure of any of the foregoing shall be an immediate Events of Default under Sections 7.01 (a), (b), (c) and (o) of the Loan Agreement, as if set forth therein) (earlier of clause (i) or (ii), the “Delivery Date”):

(i) the Borrowers, each other HOFV Party and the other Persons party to the foregoing shall enter into such amendments and modifications to the Loan Agreement and other Loan Documents and/or provide certifications, in each case, as reasonably required by the Administrative Agent, the Tranche 1 Lender and/or the Tranche 2 Lender (and with respect to any document, it shall be in the form, substance and manner as reasonably required by (and satisfactory to) the Administrative Agent, the Tranche 1 Lender and/or the Tranche 2 Lender) as a result of the consummation of the Gordon Pointe Transaction, in each case, including, without limitation:

(A) Newco shall expressly assume and guaranty the Obligations of the Lead Borrower and each other Borrower by executing and delivering joinders to each Loan Document; provided that the Lead Borrower shall not be released of its obligations;

(B) Newco (and each other HOFV Party that exists on such date and is not a Borrower) shall execute and deliver joinders to each Loan Document agreeing to be bound by the terms and conditions of the Loan Agreement and the other Loan Documents;

(D) the Administrative Agent and the Lenders shall have received reaffirmation agreements and/or amendments, in respect of each of the Recourse Guaranty, IRGMH Guaranty, the Debt and Lien Subordination Agreement executed between the Administrative Agent and Industrial Realty Group, LLC, the Mezzanine Subordination Agreement and the subordination agreements executed by each of National Football Museum Inc., CH Capital Lending, LLC, Michael Eck and M. Klein and Company, LLC; provided that such reaffirmation agreements and/or amendments shall not be required with respect to any Indebtedness that has been indefeasibly discharged in full (without any payment, other than by payment in common Capital Stock) or has been converted into common Capital Stock in connection with the Gordon Pointe Transaction; and

(E) the Liens and security interests of the Administrative Agent and each Lender in the Collateral shall be reaffirmed, preserved and protected by applicable joinders, reaffirmation and/or amendments to the Loan Documents (including with respect to the Mortgages) which joinders, reaffirmations and/or amendments shall, without limitation, ensure (after entering into the same and after giving effect to the Gordon Pointe Transaction), that (1) the Liens, security interests and other rights of the Administrative Agent and the other Secured Parties in the Collateral that exists on the date of Amendment Number 8 shall continue with same force and effect, (2) no asset of any Borrower that exists immediately prior to the date of the HOFV Merger has been transferred to any Person that is not a Borrower, and (3) the Administrative Agent and the other Secured Parties interests and rights under the Recourse Guaranty, the IRGMH Guaranty and each Loan Document that exist on the date of Amendment Number 8 shall continue with the same force and effect;

Borrowers shall use commercially reasonable efforts to deliver each of the items listed in Sections 8(a)(i)(B) (other than with respect to Newco), (C), (D) (solely with respect to items due from the National Football Museum Inc.) and (E) on or before the Delivery Date; provided the failure to deliver any of such items shall not be an Event of Default under the Loan Agreement so long as the each of the same are delivered within ten (10) days of Delivery Date.

(ii) the Contribution Transaction shall be in form and substance (including the “Contribution Agreement”) satisfactory to the Administrative Agent, the Tranche 1 Lender and the Tranche 2 Lender;

(iii) the PIPE Transaction shall have been consummated;

(iv) the Administrative Agent shall have received the Gordon Pointe Transaction Prepayment Amount; and

(v) the Administrative Agent shall have received 50% of Consent Fee that is payable on the date of the HOFV Merger on behalf of and for the account of each of the Tranche 1 Lender and the Tranche 2 Lender with the remaining balance to be payable on the Maturity Date (or, if earlier, the date of prepayment in full of the Tranche 1 Loan and the Tranche 2 Loan).

(b) On or prior to the earliest of (x) July 15, 2020, (y) the HOFV Merger and (z) the date any other Gordon Pointe Transaction is consummated:

(i) the Administrative Agent shall have received funds flow in respect of the Gordon Pointe Transaction; and

(ii) the Borrowers shall have paid all outstanding fees, costs and expenses of the Administrative Agent and the Lenders that remain unpaid, including the fees payable to the Administrative Agent under Section 2.07 of the Loan Agreement and legal fees and expenses of: (x) Kramer Levin Naftalis & Frankel LLP and Taft Stettinius & Hollister LLP, attorneys for the Administrative Agent and (y) Gibson, Dunn & Crutcher LLP, attorneys for DemoMode Marketing LLC.

(c) On or prior to the date that is 75-days after the Delivery Date (or such other date that may be reasonably agreed to by the Administrative Agent), the Administrative Agent and the Lenders shall have received reaffirmation in respect of each of the Ground Leases Estoppel Letter, PFHOF Estoppel Letter and Project Leases Estoppel Letter.

SECTION 9. Approval of the Gordon Pointe Transaction. Provided Borrowers comply with their obligations under this Amendment Number 8 required prior to or contemporaneously with the consummation of the Gordon Pointe Transaction (or, if earlier, the HOFV Merger), and Gordon Pointe Transaction is completed in accordance with the terms and conditions of the Gordon Pointe Merger Agreement and on or prior to July 15, 2020, the Administrative Agent and all Lenders hereby approve and consent to the consummation of the Gordon Pointe Transaction (including but not limited to the PIPE Transaction contemplated thereby) and the reorganization to the organizational structure of the Borrowers and other entities contemplated thereby, in each case, based upon the terms disclosed in writing to the Administrative Agent and the Lenders on or prior to the date of this Amendment Number 8 and so long as the Gordon Pointe Transaction is completed and on or prior to July 15, 2020 and no Default or Event of Default (other than the Specified Defaults and the Specified Events of Default) exist on such date.

SECTION 10. Confirmation of Representations and Warranties.

(a) Each Borrower hereby represents and warrants, on and as of the Amendment Number 8 Effective Date, that the representations and warranties of Borrowers contained in Article III of the Loan Agreement are true and correct in all material respects on such date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date (provided that, if a representation and warranty contains a materiality or Material Adverse Effect qualification, such representation and warranty is true and correct in all respects).

(b) Each Borrower hereby represents and warrants, on and as of the Amendment Number 8 Effective Date, that it has the necessary corporate power to execute, deliver and perform this Amendment Number 8, and it has duly authorized all corporate or other action required to be taken by it for the execution, delivery and performance of this Amendment Number 8 and the consummation of the transaction contemplated hereby.

SECTION 11. Consent and Affirmation. Each Borrower hereby (a) consents to the execution, delivery and performance of this Amendment Number 8 and agrees that each Loan Document is, and shall continue to be, in full force and effect and is hereby in all respects ratified and confirmed on the Amendment Number 8 Effective Date, except that, on and after the Amendment Number 8 Effective Date, each reference to the “Loan Agreement”, “thereunder”, “thereof”, “therein” or words of like import referring to the Loan Agreement shall mean and be a reference to the Loan Agreement as amended and otherwise modified by this Amendment Number 8, and (b) confirms that the Loan Documents to which each of the Borrowers is a party and all of the Collateral described therein do, and shall continue to, secure the payment of all of the Obligations.

SECTION 12. Reference to and Effect on the Loan Documents.

(a) On and after the Amendment Number 8 Effective Date, each reference in the Loan Agreement to “hereunder”, “hereof” or words of like import referring to the Loan Agreement, and each reference in the other transaction documents to the “Loan Agreement”, “thereunder”, “thereof” or words of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as modified by this Amendment Number 8. From and after the Amendment Number 8 Effective Date, this Amendment Number 8 shall be a Loan Document under the Loan Agreement.

(b) The Loan Agreement and the other Loan Documents, as specifically amended by this Amendment Number 8, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed, and the respective guarantees, pledges, grants of security interests and other agreements, as applicable, under each of the Loan Documents, notwithstanding the consummation of the transactions contemplated hereby, shall continue to be in full force and effect and shall accrue to the benefit of the Administrative Agent and the Lenders under the Loan Agreement. Without limiting the generality of the foregoing, the Collateral described in the Loan Documents do and shall continue to secure the payment of all Obligations of the Borrowers under the Loan Documents, in each case, as amended by this Amendment Number 8.

(c) The execution, delivery and effectiveness of this Amendment Number 8 shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

SECTION 13. Execution in Counterparts; Order of Amendments. This Amendment Number 8 may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment Number 8 by .pdf or other electronic form shall be effective as delivery of a manually executed original counterpart of this Amendment Number 8.

SECTION 14. Amendments; Headings; Severability. This Amendment Number 8 may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrowers, the Administrative Agent and the Lenders. The Section headings used herein are for convenience of reference only, are not part of this Amendment Number 8 and are not to affect the construction of, or to be taken into consideration in interpreting this Amendment Number 8. Any provision of this Amendment Number 8 held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 15. Costs and Expenses.

(a) Borrowers agree to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment Number 8 and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 10.05 of the Loan Agreement.

(b) Borrowers agree that IRGMH shall have all of the rights of a Lender pursuant to Section 10.05 of the Loan Agreement, but all of such rights shall be subordinated in right of payment and security to all Obligations owed to the Administrative Agent, the Tranche 1 Lender and the Tranche 2 Lender and, similar to the Tranche 3 Lender, IRGMH shall not receive any payment until the Tranche 1/Tranche 2 Full Payment Date has occurred. Without limiting the foregoing, (i) Borrowers shall pay to IRGMH all costs, fees, expenses, and disbursements of IRGMH in connection with the transactions contemplated by this Amendment Number 8, the Loan Purchase Agreement, and the IRGMH Guaranty, as set forth in Section 10.05(a) of the Loan Agreement, and (ii) Borrowers shall indemnify, defend, and hold harmless IRGMH in connection with the transactions contemplated by this Amendment Number 8, the Loan Purchase Agreement, and the IRGMH Guaranty, as set forth in Section 10.05(b) of the Loan Agreement. Any amounts payable to IRGMH under this Section 15b) shall accrue interest, at the rate of interest then in effect with respect to the Tranche 1 Loan, calculated from the date of payment or disbursement by IRGMH until repaid in full. Notwithstanding the foregoing, any amounts payable to IRGMH under this Section 15(b) shall not be paid to IRGMH until the Tranche 1/Tranche 2 Full Payment Date has occurred.

SECTION 16. Governing Law; Etc. This Amendment Number 8 shall be governed by, and construed in accordance with, the laws of the State of New York, and shall be subject to the jurisdictional, service and waiver of jury trial provisions of the Loan Agreement, as if they were set forth herein.

SECTION 17. No Novation. This Amendment Number 8 shall not extinguish the obligations for the payment of money outstanding under the Loan Agreement or discharge or release the Lien or priority of any Loan Document or any other security therefor. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Loan Agreement or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith and except to the extent repaid as provided herein. Nothing implied in this Amendment Number 8 or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Borrowers under any Loan Document from any of its obligations and liabilities as a Borrower, guarantor or pledgor under any of the Loan Documents.

SECTION 18. Waiver of Claims. Each Borrower on behalf of itself, its Affiliates and their respective officers, direct and indirect members, directors, shareholders, employees, agents, insurers, heirs, successors and assigns (collectively, the “Releasing Parties”), hereby waives, releases, remises and forever discharges the Administrative Agent, the Lenders and each other Secured Party from any and all claims, suits, actions, investigations, proceedings or demands arising out of or in connection with the Loan Agreement and any other Loan Document (collectively, “Claims”), whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which any Releasing Party ever had, now has or might hereafter have against the Administrative Agent, the Lenders and each other Secured Party which relates, directly or indirectly, to any acts or omissions of the Administrative Agent, the Lenders and each other Secured Party on or prior to the Amendment Number 8 Effective Date, in each case, in respect to the Loan Agreement, the other Loan Documents and the transactions contemplated hereby and thereby.

SECTION 19. Advice of Counsel. The Borrowers acknowledge that they have reviewed this Amendment Number 8 in its entirety, having consulted such legal, tax or other advisors as they deem appropriate, and understand and agree to each of the provisions of this Amendment Number 8, and further acknowledge that they have entered into this Amendment Number 8 voluntarily.

SECTION 20. Rules of Construction. The parties hereto agree that any rule of construction to the effect that ambiguities are resolved against the drafting party shall not apply to the interpretation of this Amendment Number 8.

SECTION 21. Effect of this Amendment Number 8. Except as expressly set forth herein, (a) this Amendment Number 8 shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Administrative Agent, the Lenders and the other Secured Parties, (b) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Agreement or any other Loan Document. Nothing contained in this Amendment Number 8 shall constitute or be deemed to constitute a course of dealing or other basis for altering any rights or obligations of Lender under the Loan Documents, or any obligations of the Borrowers or any other party under the Loan Documents (in each instance, except as expressly set forth herein), (c) the Administrative Agent, the Lenders and the other Secured Parties have not and are not waiving their rights against any Person (including the Borrowers), including as a result of any Default or Event of Defaults that exists (notwithstanding the Borrowers’ representation that no Default or Event of Default exists) and (d) the Administrative Agent, the Lenders and the other Secured Parties have not and are not waiving their rights and remedies against any Person (including the Borrowers) as a result of any Default or Event of Default or as a result of any other breach of any Loan Documents or otherwise, including as a result of any past, present or future event or circumstance.

[SIGNATURES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment Number 8 to be executed by their respective officers thereunto duly authorized, as of the date first above written.

	Borrowers:

	HOF VILLAGE, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE PARKING, LLC,
	a Delaware limited liability company

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

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

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

	HOF VILLAGE STADIUM, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON NEXT PAGE]

	Borrowers, cont.:

	HOF VILLAGE LAND, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE HOTEL I, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE SPORTS BUSINESS, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE PARKING MANAGEMENT I, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON NEXT PAGE]

	Borrowers, cont.:

	HOF VILLAGE RESIDENCES I, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE CENTER FOR EXCELLENCE, LLC,
	a Delaware limited liability company

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

	HOF VILLAGE CENTER FOR PERFORMANCE, LLC,
	a Delaware limited liability company

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

	HOF EXPERIENCE, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON NEXT PAGE]

	Borrowers, cont.:

	HOF VILLAGE MEDIA GROUP, LLC,
	a Delaware limited liability company

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

[SIGNATURES CONTINUE ON NEXT PAGE]

	Administrative Agent:

	GACP FINANCE CO., LLC,
	as Administrative Agent

	By:	/s/ Robert A. Louzan
		Name: Robert A. Louzan
		Title: Authorized Signatory

	Lenders (and by their signatures below, the Lenders direct the Administrative Agent to execute this Amendment Number 8):

	GACP II, L.P. (“Tranche 1 Lender”)

	By:	/s/ Robert A. Louzan
		Name: Robert A. Louzan
		Title: Authorized Signatory

	DEMOMODE MARKETING, LLC,
	a New York limited liability company (“Tranche 2 Lender”)

	By:	/s/ Mark Bezos
		Name: Mark Bezos
		Title: Authorized Signatory

	IRG, LLC,
	a Nevada limited liability company (“Tranche 3 Lender”)

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

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

Exhibit 10.14

AMENDMENT TO Sponsorship and services agreement

AMENDMENT TO SPONSORSHIP AND SERVICES AGREEMENT, (this “Amendment”) is made and entered into as of this 15th day of June 2020, by and among HOF Village, LLC, a Delaware limited liability company (“HOFV”), National Football Museum, Inc., d/b/a Pro Football Hall of Fame, an Ohio corporation (“PFHOF” and, together with HOFV, the “HOF Entities”) and Constellation NewEnergy, Inc., a Delaware corporation, on behalf of itself and its retail affiliates and subsidiaries (collectively, “Constellation”). HOFV and/or PFHOF, on the one hand, and Constellation, on the other hand, are referred to herein as a “Party” and, collectively, as the “Parties”.

W I T N E S S E T H:

WHEREAS, the Parties have entered into that certain Sponsorship and Services Agreement (the “Agreement”) dated December 19, 2018, evidencing the agreed terms and conditions under which Constellation agreed to provide to the HOF Entities, and the HOF Entities desire to obtain from Constellation, certain Products and Services for use in connection with the Village. All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.

WHEREAS, the Parties wish to revise the Agreement due to delays in construction of the Constellation Center for Excellence building.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

Construction Delays. Section 1.6 of the Agreement is hereby amended to read in its entirety as follows:

“The Parties acknowledge and agree that it is HOFV’s intent to cause to be issued a certificate of substantial completion for the facilities listed on Exhibit D attached hereto by the last day of the quarter specified therein; provided, however, in the event that the exterior structure of the Center for Excellence shall not have been erected or permanent signage bearing a Co-Branded Center for Excellence Logo shall not have been installed and operational on the east and west sides of the Center for Excellence, in either case, to Constellation’s satisfactions on or before the date required pursuant to Exhibit H attached hereto, Constellation shall have as its sole remedy the right to reduce the Sponsorship Fees as set forth in Exhibit H. Any other construction delay shall not: (i) impact the obligations of Constellation hereunder or (ii) constitute an Event of Default by the HOF Entities hereunder. Any construction delay shall not impact HOFV’s contractual commitment or timelines as it relates to the obligations set forth in this Agreement related to EME financing. Any commodity supply agreements with HOFV related to the delayed facility shall be extended in term by the number of months of the certificate of substantial completion delay at then current market pricing, except to the extent that an existing agreement is in place with respect to such delayed facility or supply quantity purchased.”

Term. Section 4.1 of the Agreement is hereby amended to read in its entirety as follows:

“Term. The term of this Agreement (the “Term”), unless mutually extended by written agreement of the Parties or unless sooner terminated as provided herein, shall commence effective as of the date hereof and shall expire on December 31, 2029.”

Notices. Section 6.1 of the Sponsorship and Services Agreement is hereby amended to update Constellation’s notice address for copies of notices as follows:

Constellation NewEnergy, Inc.

1001 Louisiana Street, Suite 2300

Houston, TX 77002

Attention: Nina Jezic

nina.jezic@constellation.com

Exhibit D. Exhibit D of the Agreement is hereby deleted in its entirety and replaced with Exhibit D attached hereto.

Exhibit E. Exhibit E of the Agreement is hereby deleted in its entirety and replaced with Exhibit E attached hereto.

Exhibit H. Exhibit H of the Agreement is hereby deleted in its entirety and replaced with Exhibit H attached hereto.

Miscellaneous.

Amendment to Agreement. The Parties acknowledge and agree that the Agreement has otherwise not been amended or modified in any respect, other than by this Amendment.

Entire Agreement. The Agreement and this Amendment set forth all covenants, agreements and understandings among the parties with respect to the subject matter hereof and thereof, and there are no other covenants, conditions or understandings, either written or oral, among the parties hereto with respect to the subject matter hereof and thereof.

Full Force and Effect. Except as expressly amended by this Amendment, all other items and provisions of the Agreement remain unchanged and continue to be in full force and effect.

Conflicts. The terms of this Amendment shall control over any conflicts between the terms of the Agreement and the terms of this Amendment.

Authority of Constellation. Constellation warrants and represents unto the HOF Entities that (i) Constellation is a duly organized and existing Delaware corporation, qualified to do business in, and in good standing in, the State of Ohio; (ii) Constellation has full right and authority to execute, deliver and perform this Amendment; (iii) the person executing this Amendment was authorized to do so; and (iv) upon request of any HOF Entity, such person will deliver to such HOF entity satisfactory evidence of his or her authority to execute this Amendment on behalf of Constellation.

Authority of the HOF Entities. Each HOF Entity warrants and represents unto Constellation, as to such HOF Entity, that (i) as to HOFV, HOFV is a duly organized and existing Delaware limited liability company, qualified to do business in, and in good standing in, the State of Ohio; (ii) as to PFHOF, PFHOF is a duly organized and existing Ohio corporation, qualified to do business in, and in good standing in, the State of Ohio; (iii) such HOF Entity has full right and authority to execute, deliver and perform this Amendment; (iv) the person executing this Amendment was authorized to do so; and (v) upon request of Constellation, such person will deliver to Constellation satisfactory evidence of his or her authority to execute this Amendment on behalf of such HOF Entity.

Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. This Amendment shall be governed by and be construed in accordance with the laws of the State of Ohio, without reference to principles of conflicts of law.

Counterparts. This Amendment may be executed in any number of counterparts which, when taken together, shall constitute one and the same Amendment. Counterparts hereof which are transmitted by facsimile, PDF or electronic transmission shall be given the identical legal effect as an original. PDF or electronic signatures shall be deemed the functional equivalent of manually executed signatures for all purposes.

IN WITNESS WHEREOF, the Parties, by their duly authorized representatives, have executed this Amendment as of the date first set forth above.

HOFV:
HOF VILLAGE, LLC

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

PFHOF:
NATIONAL FOOTBALL MUSEUM, INC., D/B/A PRO FOOTBALL HALL OF FAME

By:	/s/ David Baker
	Name:	David Baker
	Title:	President & CEO

Constellation:
Constellation NewEnergy, Inc.

By:	/s/ Mark P. Huston
	Name:	Mark P. Huston
	Title:	President & CEO

Signature Page to Amendment to Sponsorship and Services Agreement

EXHIBIT D

CONSTRUCTION SCHEDULE

COMPONENT		Timing
National Youth Football & Sports Complex		3rd Quarter 2021
The Center for Excellence		4th Quarter 2021
Hall of Fame Hotel & Conference Center		1st Quarter 2022
Hall of Fame Promenade (restaurants, retail & residential)		3rd Quarter 2021
Player Care Center including Legends Landing/Residential		4th Quarter 2022
The Center for Athletic Performance & Safety		4th Quarter 2021
Hall of Fame Experience (amusement/water park recreation)		3rd Quarter 2022

D-1

EXHIBIT H

SPONSORSHIP FEES AND Activation Fund Proceeds

[REDACTED]

H-1

Exhibit 21.1

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

LIST OF SUBSIDIARIES

(as of July 1, 2020)

Name of Subsidiary	Jurisdiction of Organization	Percent Ownership
HOF Village Newco, LLC	Delaware	100%
Gordon Pointe Acquisition Corp.	Delaware	100%
HOF Experience, LLC	Delaware	100%
HOF Village Center for Excellence, LLC	Delaware	100%
HOF Village Center for Performance, LLC	Delaware	100%
HOF Village Hotel I, LLC	Delaware	100%
HOF Village Hotel II, LLC	Delaware	100%
HOF Village Hotel WP, LLC	Delaware	100%
HOF Village Land, LLC	Delaware	100%
HOF Village Media Group, LLC	Delaware	100%
HOF Village Parking, LLC	Delaware	100%
HOF Village Parking Management I, LLC	Delaware	100%
HOF Village Residences I, LLC	Delaware	100%
HOF Village Retail I, LLC	Delaware	100%
HOF Village Sports Business, LLC	Delaware	100%
HOF Village Stadium, LLC	Delaware	100%
HOF Village Waterpark, LLC	Delaware	100%
HOF Village Youth Fields, LLC	Delaware	100%
JCIHOFV Financing, LLC	Delaware	100%
Youth Sports Management, LLC	Delaware	100%
Mountaineer GM, LLC	Delaware	60%

Exhibit 99.1

Hall of Fame Resort & Entertainment Company Completes Merger,

Creating a Premier Sports, Entertainment and Media Enterprise Centered on

the World’s Largest Source of Professional Football Information

Gordon Pointe Acquisition Corp. Completes Business Combination with HOF Village, LLC

Combined Company Renamed Hall of Fame Resort & Entertainment Company

Combined Company Will Begin Trading on NASDAQ Under the Ticker Symbols “HOFV” and “HOFVW”

CANTON, Oh. (July 1, 2020) – HOF Village, LLC (“HOF Village”), the owner of the multi-use sports, entertainment and media destination centered around the Pro Football Hall of Fame in Canton, Ohio, today announced the completion of its previously announced business combination with Gordon Pointe Acquisition Corp. (“GPAQ” or “Gordon Pointe”) (NASDAQ: GPAQ, GPAQU, GPAQW), a publicly traded special purpose acquisition company. The resulting company is named Hall of Fame Resort & Entertainment Company (“HOFV” or “the Company”), and its common stock and warrants are expected to trade on the NASDAQ Capital Market under the ticker symbols “HOFV” and “HOFVW,” respectively, on July 2, 2020.

The transaction creates a premier sports, entertainment and media enterprise surrounding the Pro Football Hall of Fame that is poised to capitalize on its unique partnership with the most dominant professional sports brand in the country and its direct access to the Pro Football Hall of Fame’s library of never-before-seen footage and memorabilia. The combined public company will continue to develop an immersive, multi-use destination resort in Canton, Ohio named the Johnson Controls Hall of Fame Village, and a media program that unifies live entertainment and experiences, fantasy sports and eGaming with partners and content from some of the most powerful and storied brands in football, including the NFL Alumni Association and the Pro Football Hall of Fame.

James J. Dolan, Chief Executive Officer and Chairman of GPAQ, commented, “Mike Crawford and his team possess a unique ability to develop this destination resort and entertainment enterprise. Mike’s extensive background working for some of the most popular brands in leisure tourism positions him to capitalize on professional football’s powerful brand and passionate fan base. We are excited to be part of The Hall of Fame Resort & Entertainment Company’s next steps as it continues to create a special destination and enterprise that diversifies the Company’s capabilities across media, gaming and fantasy on a global level as a dynamic public company.”

“The Hall of Fame Resort & Entertainment Company is poised to produce substantial growth by combining an experiential, sports-themed destination resort with our direct access to one of the world’s largest collections of football memorabilia, which presents tremendous opportunities to engage football fans around the world,” said Mr. Crawford. “As a public company, we will have greater flexibility to execute on our integrated business model and produce exclusive football-focused programming, distribute original content across the media landscape, and expand into fantasy sports and eGaming, among other high-growth opportunities. This significant milestone has been made possible by the hard work and dedication of our committed team and the support of our shareholders, and I look forward to working with them to continue to build the Company and its multiple revenue streams.”

Hall of Fame Resort & Entertainment Company Highlights

●

The Johnson Controls Hall of Fame Village is within five hours of over 32 million people and only an eight-hour drive from 15 NFL franchise markets, positioning it to leverage the popularity of professional football and address a shortage of themed attractions in the Midwest region. HOFV has already invested $250 million to complete Phase 1 and advance Phase II of the development, and has continued to strategically expand and manage its growth by:

○

Acquiring, extensively renovating, and rebranding downtown Canton’s largest hotel as a DoubleTree by Hilton Hotels, increasing the Company’s capacity to host visitors for events and programming;

○

Entering an agreement with ASM Global to manage Tom Benson Hall of Fame Stadium, the company’s world-class 20,000-plus seat sports and entertainment stadium that Forbes named as one of 13 game-changing NFL stadiums;

●

The Company has formed mutually beneficial sponsorships and partnership agreements with leading brands like Johnson Controls, with whom it has a naming rights agreement, and Constellation, the exclusive energy supplier of HOFV and the Pro Football Hall of Fame, and has recently:

○

Secured multimillion dollar funding from Constellation through its Efficiency Made Easy (EME) program to implement energy efficiency technology and systems throughout the resort, including the Constellation Center for Excellence; and,

○

Formed a partnership with the National Football League’s Alumni Association (“NFL Alumni”), which will bring the NFL Alumni headquarters and the NFL Alumni Academy complex to the Village site along with youth and player programming taking place on the Village campus and across the country.

●

The combined company will drive consumer engagement from recreational and corporate activities including youth football, sports programs, conventions and trade shows, fantasy sports and eGaming. In May 2020, the Company acquired a majority interest in a fantasy football league, which it expects to leverage the Company's brand and access to intellectual property to enter the high-growth vertical of the fantasy sports and gaming market in a unique way.

Transaction Details

The formation of the Company was completed in a business combination whereby GPAQ merged with HOF Village, LLC. The transaction was approved by GPAQ’s stockholders on June 30^th, 2020.

Hall of Fame Resort & Entertainment Company will be led by HOF Village, LLC’s team of highly accomplished executives, including President and Chief Executive Officer Michael Crawford, Chief Financial Officer Jason Krom, President of Operations Michael Levy, and Executive Vice President of Public Affairs Anne Graffice, who will continue to serve in their respective roles. In addition, Michael Crawford will serve as Chairman of the Board of the combined company and will be joined on the board by James J. Dolan, formerly Chief Executive Officer and Chairman of GPAQ, who will serve as Vice Chairman; Stuart Lichter, President and Chairman of Industrial Realty Group; Michael Klein, Partner of M. Klein and Company; Anthony Buzzelli, CPA, formerly Audit Partner and Advisory Partner at Deloitte & Touche; David Dennis, CPA, formerly Advisory Sector Leader for KPMG LLP’s State and Local Government Advisory Practice; Karl Holz, a former senior executive at The Walt Disney Company; Curtis Martin, Pro Football Hall of Fame inductee and founder of the Curtis Martin Job Foundation; Mary Owen, Founder and President of MMO Capital LLC; Edward Roth, President and CEO of Aultman Health Foundation and Vice Chairman of the Pro Football Hall of Fame; and Kimberly Schaefer, President of Two Bit Circus, Inc.

Maxim Group LLC acted as financial and capital markets advisor to GPAQ and Fox Rothschild LLP served as GPAQ’s legal advisor. Hunton Andrews Kurth LLP served as HOF Village, LLC’s legal advisor.

About the Hall of Fame Resort & Entertainment Company

The Hall of Fame Resort & Entertainment Company is a resort and entertainment company leveraging the power and popularity of professional football and its legendary players in partnership with the Pro Football Hall of Fame. Headquartered in Canton, Ohio, the Hall of Fame Resort & Entertainment Company is the public holding company for HOF Village, LLC and its subsidiaries. The Johnson Controls Hall of Fame Village, a development of HOF Village, LLC, is a multi-use sports, entertainment and media destination centered around the Pro Football Hall of Fame's campus in Canton, Ohio. HOF Village, LLC was founded by the Pro Football Hall of Fame through its wholly owned, for profit subsidiary Hall of Fame Village, Inc. and Industrial Realty Group, LLC. Prior to the acquisition of HOF Village, LLC, Gordon Pointe Acquisition Corp. was a special purpose acquisition company formed in January of 2018. Gordon Pointe Acquisition Corp. began trading on the NASDAQ stock exchange in January 2018 and, prior to its combination with HOF Village, LLC in June 2020, its Class A ordinary shares, units and warrants traded under the ticker symbols GPAQ, GPAQU, and GPAQW, respectively. Additional information on the new company can be found at www.hofreco.com.

About the Pro Football Hall of Fame

Located in Canton, Ohio, the birthplace of the National Football League, the Pro Football Hall of Fame is a 501(c)(3) not-for-profit institution with the Mission to Honor the Heroes of the Game, Preserve its History, Promote its Values, & Celebrate Excellence Everywhere. The Hall of Fame has formed a wholly owned, for profit subsidiary to be a member of HOFV. Hundreds of thousands of fans from across the globe travel to Canton annually to experience “The Most Inspiring Place on Earth!” that chronicles America's most popular sport.

Forward-Looking Statements

Certain statements made herein are “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “anticipate”, “believe”, “expect”, “estimate”, “plan”, “outlook”, and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such forward-looking statements include timing of the proposed merger; the business plans, objectives, expectations and intentions of the parties once the transaction is complete, and Holding’s, GPAQ’s and HOFV’s estimated and future results of operations, business strategies, competitive position, industry environment and potential growth opportunities, relating to the acquired business. These forward-looking statements reflect the current analysis of existing information and are subject to various risks and uncertainties. As a result, caution must be exercised in relying on forward-looking statements. Due to known and unknown risks, our actual results may differ materially from our expectations or projections. The following risks and uncertainties, among others, could cause actual results to differ materially from those described in these forward-looking statements: the impact of the Coronavirus on GPAQ and HOFV; the outcome of any legal proceedings that have been, or will be, instituted against GPAQ or other parties to the Merger Agreement following announcement of the Merger Agreement and transactions contemplated therein; the ability of Holdings to meet NASDAQ listing standards following the merger and in connection with the consummation thereof; the failure to obtain the financing arrangements necessary to complete the development of the project; the failure to achieve the assumptions underlying certain of the financial projections included within the investor presentation including, among others, securing the timely financing for, and achieving construction of, the second phase of the project within assumed timeframes and financial budget, and achieving expected attendance and occupancy rates; risks that the proposed transaction disrupts current plans and operations and the potential difficulties in employee retention as a result of the announcement of the Merger Agreement and consummation of the transaction described therein; costs related to the proposed merger and the impact of the substantial indebtedness to be incurred to finance the consummation of the merger; changes in applicable laws or regulations; the ability of the combined company to meet its financial and strategic goals, due to, among other things, competition, the ability of the combined company to grow and manage growth profitability, maintain relationships with customers and retain its key employees; the possibility that the combined company may be adversely affected by other economic, business, and/or competitive factors; and other risks and uncertainties described herein, as well as those risks and uncertainties discussed from time to time in other reports and other public filings with the SEC by GPAQ and Holdings.

For Information, Contact:

HOF Village, LLC Media Inquiries

Anne Graffice, 330-458-9176
Anne.Graffice@hofvillage.com

Phil Denning, (646) 277-1258

Phil.Denning@icrinc.com

HOF Village, LLC or Gordon Pointe Investor Inquiries
Jacques Cornet, (646) 277-1285
Jacques.Cornet@icrinc.com
or
Will Swett, (646) 677-1818
Will.Swett@icrinc.com

Exhibit 99.2

UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION

Introduction

The following unaudited pro forma combined financial information is provided to aid you in your analysis of the financial aspects of the Business Combination.

The unaudited pro forma combined balance sheet as of March 31, 2020 gives pro forma effect to the Business Combination as if it had been consummated as of that date. The unaudited pro forma combined statements of operations for the three months ended March 31, 2020 and for the year ended December 31, 2019 give pro forma effect to the Business Combination as if it had occurred as of January 1, 2019. This information should be read together with HOF Village’s and GPAQ’s respective audited and unaudited financial statements and related notes, “Management’s Discussion and Analysis of Financial Condition and Results of Operations of HOFV,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations of GPAQ” and other financial information included elsewhere in the Current Report on Form 8-K to which this pro forma combined financial information is attached (the “Form 8-K”) and in the Registration Statement. Capitalized terms used herein have the same meaning as in the Form 8-K.

The unaudited pro forma combined balance sheet as of March 31, 2020 has been prepared using the following:

●

HOF Village’s unaudited historical consolidated balance sheet as of March 31, 2020, as included in the Registration Statement and incorporated herein by reference; and

●

GPAQ’s unaudited historical consolidated balance sheet as of March 31, 2020, as included in the Registration Statement and incorporated herein by reference.

The unaudited pro forma combined statement of operations for the three months ended March 31, 2020 has been prepared using the following:

●

HOF Village’s unaudited historical consolidated statement of operations for the three months ended March 31, 2020, as included in the Registration Statement and incorporated herein by reference; and

●

GPAQ’s unaudited historical statement of operations for the three months ended March 31, 2020, as included in the Registration Statement and incorporated herein by reference.

The unaudited pro forma combined statement of operations for the year ended December 31, 2019 has been prepared using the following:

●

HOF Village’s audited historical consolidated statement of operations for the year ended December 31, 2019, as included in the Registration Statement and incorporated herein by reference; and

●

GPAQ’s audited historical consolidated statement of operations for the year ended December 31, 2019, as included in the Registration Statement and incorporated herein by reference.

Description of the Transactions

GPAQ acquired 100% of the issued and outstanding securities of Newco, in exchange for 18,120,907 shares of common stock of Hall of Fame Resort & Entertainment Company (formerly GPAQ Acquisition Holdings, Inc.). For more information about the Business Combination, please see the section entitled “The Business Combination Proposal” in the Registration Statement. Copies of the Merger Agreement, Amendment No. 1 to the Agreement and Plan of Merger, Amendment No. 2 to the Agreement and Plan of Merger and Amendment No. 3 to the Agreement and Plan of Merger are included in the Form 8-K as Exhibits 2.1(a), 2.1(b), 2.1(c) and 2.1(d), respectively.

Accounting for the Business Combination

The Business Combination will be accounted for as a reverse merger in accordance with U.S. GAAP. Under this method of accounting, GPAQ will be treated as the “acquired” company for financial reporting purposes. This determination was primarily based on the holders of Newco Units expecting to have a majority of the voting power of the post-combination company, Newco’s senior management comprising substantially all of the senior management of the post-combination company, the relative size of Newco compared to GPAQ, and Newco’s operations comprising the ongoing operations of the post-combination company. Accordingly, for accounting purposes, the Business Combination will be treated as the equivalent of a capital transaction in which Newco is issuing stock for the net assets of GPAQ. The net assets of GPAQ will be stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination will be those of HOF Village.

Basis of Pro Forma Presentation

The historical financial information has been adjusted to give pro forma effect to events that are related and/or directly attributable to the Business Combination, are factually supportable, and as it relates to the unaudited pro forma combined statement of operations, are expected to have a continuing impact on the results of the post-combination company. The adjustments presented on the unaudited pro forma combined financial statements have been identified and presented to provide relevant information necessary for an accurate understanding of the post-combination company upon consummation of the Business Combination.

The unaudited pro forma combined financial information is for illustrative purposes only. The financial results may have been different had the companies always been combined. You should not rely on the unaudited pro forma combined financial information as being indicative of the historical financial position and results that would have been achieved had the companies always been combined or the future financial position and results that the post-combination company will experience. HOF Village and GPAQ have not had any historical relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.

There is no historical activity with respect to Acquiror Merger Sub, Holdings, or Company Merger Sub, and accordingly, no adjustments were required with respect to these entities in the pro forma combined financial statements.

Included in the shares outstanding and weighted average shares outstanding as presented in the pro forma combined financial statements are 18,120,907 shares of common stock issued to HOF Village shareholders.

PRO FORMA COMBINED BALANCE SHEET
AS OF MARCH 31, 2020
(UNAUDITED)

	(A) HOF Village		(B) GPAQ		Pro Forma Adjustments			Pro Forma Balance Sheet
Assets
Current assets:
Cash	$	911,015	$	58,907	$	31,162,868	(3)
						547,459	(4)
						(6,233,473	)(6)
						(278,938	)(8)
						7,000,000	(9)
						(15,500,000	)(10)
						(9,205	)(11)	$	17,658,633
Restricted cash		13,218,879		-		-			13,218,879
Accounts receivable, net		1,115,586		-		-			1,115,586
Prepaid expenses and other current assets		3,760,622		72,655		-			3,833,277
Marketable securities held in Trust Account		-		86,100,216		441,767	(2)
						(55,379,115	)(1)
						(31,162,868	)(3)		-
Property and equipment, net		132,188,767		-		-			132,188,767
Project development costs		95,948,531		-		-			95,948,531
Total Assets	$	247,143,400	$	86,231,778	$	(69,411,505	)	$	263,963,673

Liabilities and Shareholders' Equity
Current liabilities:
Notes payable, net	$	185,985,168	$	-	$	(31,809,563	)(8)
						(13,721,293	)(9)
						(15,500,000	)(10)
						(49,059,945	)(12)	$	75,894,367
Convertible notes payable	$	-	$	-		20,721,293	(9)		20,721,293
Accounts payable and accrued expenses		12,666,308		791,727		(862,091	)(6)
						(100,000	)(7)
						(3,259,027	)(8)		9,236,917
Due to affiliate		21,628,411		-		(15,441,515	)(7)
						(3,500,000	)(12)
						(2,300,000	)(8)		386,896
Promissory note - related party		-		4,118,492		441,767	(2)
						547,459	(4)
						(5,107,718	)(5)		-
Other liabilities		5,052,016		-		(1,787,336	)(12)		3,264,680
Deferred underwriting fees		-		4,375,000		(4,375,000	)(6)		-
Deferred legal fee payable		-		72,500		(72,500	)(6)		-
Total Liabilities		225,331,903		9,357,719		(125,185,469	)		109,504,153

Commitments and Contingencies

Common stock subject to redemption		-		71,874,055		(55,379,115	)(1)
						(16,494,940	)(11)		-

Shareholders’ Equity
Members' equity		21,811,497		-		(21,811,497	)(12)		-
Class A common stock		-		132		51	(5)
						229	(7)
						487	(8)
						157	(11)
						1,812	(12)
						313	(13)		3,181
Class F common stock		-		313		(313	)(13)		-
Additional paid in capital		-		3,560,051		5,107,667	(5)
						25,928,126	(7)
						40,183,632	(8)
						16,485,578	(13)
						128,140,376	(12)		219,405,430
Retained earnings (Accumulated deficit)		-		1,439,508		(923,882	)(6)
						(10,386,840	)(7)
						(3,094,467	)(8)
						(51,983,410	)(12)		(64,949,091	)
Total Shareholders' Equity		21,811,497		5,000,004		127,648,019			154,459,520
Total Liabilities and Shareholders’ Equity	$	247,143,400	$	86,231,778	$	(69,411,505	)	$	263,963,673

Pro Forma Adjustments to the Unaudited Combined Balance Sheet

(A)

Derived from the unaudited consolidated balance sheet of HOF Village as of March 31, 2020. See HOF Village’s financial statements and the related notes appearing in the Registration Statement.

(B)

Derived from the unaudited consolidated balance sheet of GPAQ as of March 31, 2020. See GPAQ’s financial statements and the related notes appearing in the Registration Statement.

(1)

Reflects redemption of 4,511,020 shares of common stock for $10.71 per share, or $48,292,477, on March 30, 2020 and 658,072 shares of common stock for $10.76 per share, or $7,086,638 on May 14, 2020.

(2)

Reflects the funding received of $211,891 for the additional extension to May 14, 2020 approved by GPAQ’s shareholders on March 30, 2020 and the funding received of $229,876 for the additional extension to July 15, 2020 approved by GPAQ’s shareholders on May 14, 2020.

(3)

Reflects the release of cash from marketable securities held in the trust account.

(4)

Reflects additional loans from the Sponsor to fund the company’s working capital requirements.

(5)

Reflects the conversion of promissory notes in the aggregate amount of $5,107,718 due to the Sponsor into 510,772 shares of common stock of the post-combination company at $10.00 per share.

(6)

Reflects the payment of fees and expenses related to the Business Combination, including the deferred underwriting fee of $4,375,000, the deferred legal fee of $72,500, and legal, financial advisory, accounting and other professional fees. Transaction related expenses of $791,727 are classified in accounts payable for GPAQ and $70,364 for HOF Village as of March 31, 2020. The direct, incremental costs of the Business Combination related to the legal, financial advisory, accounting and other professional fees of $923,882 is reflected as an adjustment to retained earnings and is not shown as an adjustment to the statement of operations since it is a nonrecurring charge resulting directly from the Business Combination.

(7)

Reflects (a) the issuance of 1,078,984 shares of common stock at $10.00 per share to The Klein Group, LLC in satisfaction of outstanding fees and expenses in the aggregate amount of $10,789,840, of which $10,289,840 is reflected as an adjustment to retained earnings and $500,000 is reflected as an adjustment to due to affiliate (b) the issuance of 610,000 shares of common stock at $10.00 per share to IRG, LLC in satisfaction of outstanding fees and expenses in the aggregate amount of $6,100,000, which is reflected as an adjustment to due to affiliate, (c) the issuance of 580,000 shares of common stock at $10.00 per share to the PFHOF in satisfaction of outstanding fees and expenses in the aggregate amount of $8,841,515, of which $5,800,000 is reflected as an adjustment to due to affiliate and $3,041,515 is reflected as the forgiveness of debt and therefore recorded as an adjustment to additional paid in capital and (d) the issuance of 23,640 shares of common stock at $10.00 per share to TSAV in satisfaction of outstanding fees and expenses in the aggregate amount of $197,000, of which $100,000 is reflected as an adjustment to accounts payable and $97,000 is reflected as an adjustment to retained earnings. Direct, incremental costs of $10,386,840 is reflected as an adjustment to retained earnings and is not shown as an adjustment to the statement of operations since it is a nonrecurring charge resulting directly from the Business Combination.

(8)

Reflects the issuance of an aggregate of 4,872,604 shares of common stock in satisfaction of prior existing debt in the amount of $35,159,645 and related accrued interest in the amount of $4,182,794 and the corresponding amortization of the related remaining deferred financing costs in connection with the Business Combination. Of such amount, 2,172,186 shares were issued at $10.00 per share in satisfaction of $15,000,000 of bridge loans and $3,101,550 of accrued interest after giving effect to the Exchange Ratio, 1,493,286 shares were issued at $10.00 per share in satisfaction of $11,886,175 of “Company Convertible Notes” and $557,775 of accrued interest after giving effect to the Exchange Ratio, 130,000 shares were issued at $10.00 per share in satisfaction of $1,300,000 of “New Company Convertible Notes” and an aggregate of 849,308 shares were issued at $10.00 per share in satisfaction of $7,073,470 of syndicated unsecured term loan, of which $100,000 is reflected as an adjustment to due to affiliates, after giving effect to the Exchange Ratio and an aggregate of 227,824 shares were issued at $10.00 per share in satisfaction of $2,278,233 of “New ACC Debt” which is classified in due to affiliates. The amortization of the deferred financing costs in the aggregate amount of $3,094,467 is reflected as an adjustment to retained earnings and is not shown as an adjustment to the statement of operations since it is a nonrecurring charge resulting directly from the Transaction. In addition, $278,938 of Company Convertible Notes of HOF Village elected to receive cash at the time of closing.

(9)

Reflects the issuance of convertible debt in connection with PIPE for $7,000,000 in cash and the conversion of prior existing notes payable. Of the prior exiting notes payable, $9,000,000 of IRG November Notes, $3,471,293 of Company Convertible Notes, $750,000 of New Company Convertible Notes and $500,000 of sponsor loans were converted into an aggregate of $13,721,293 of convertible loans in connection with the PIPE.

(10)

Reflects the repayment of $15,500,000 of bridge loans at the consummation of the Business Combination.

(11)

Reflects the cancellation of 852 shares of common stock for shareholders who elected cash conversion for payment of $9,205 and the reclassification of 1,548,877 shares of common stock subject to redemption to permanent equity for those stockholders who did not exercise their redemption rights.

(12)

Reflects the recapitalization of HOF Village through (a) the contribution of all the share capital in HOF Village to GPAQ in the amount of $21,811,497, (b) the conversion of the redemption value of the preferred members’ equity in the amount of $99,603,847, of which $3,500,000 is reflected as an adjustment to due to affiliates, net of the amortization of the related remaining deferred financing costs in the amount of $50,543,902, and related preferred equity dividends in the amount of $1,787,336, (c) the issuance of 18,120,907 shares of common stock and (d) the elimination of the historical retained earnings of GPAQ, the accounting acquire in the amount of $1,439,508.

(13)

Reflects the conversion of 3,125,000 shares of Class F common stock into Class A common stock, on a one-for-one basis, at the consummation of the Business Combination.

PRO FORMA COMBINED STATEMENT OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2020
(UNAUDITED)

	(A) HOF Village			(B) GPAQ			Pro Forma Adjustments			Pro Forma Income Statement

Total revenues	$	1,963,541		$	-		$	-		$	1,963,541

Property operating expenses		6,683,986			-			(433,800	)(1)		6,250,186
Commission expense		450,854			-			-			450,854
Depreciation expense		2,722,120			-			-			2,722,120
Operating expenses		-			720,638			(580,695	)(1)		139,943
Loss from operations		(7,893,419	)		(720,638	)		1,014,495			(7,599,562	)

Other income (expense):
Interest income		-			293,082			(293,082	)(2)		-
Interest expense		(2,010,010	)		-			1,265,161	(3)		(744,849	)
Amortization of discount on note payable		(3,234,413	)		-			2,866,806	(3)		(367,607	)
Other loss		-			-			-			-
Loss before income taxes		(13,137,842	)		(427,556	)		4,853,380			(8,712,018	)
Provision for income taxes		-			(32,159	)		32,159	(4)		-
Net loss	$	(13,137,842	)	$	(459,715	)	$	4,885,539		$	(8,712,018	)


Weighted average shares outstanding, basic and diluted		18,120,907			4,346,628			27,472,448	(5)		31,819,076
Basic and diluted net loss per share	$	(0.73	)	$	(0.15	)				$	(0.27	)

PRO FORMA COMBINED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 2019
(UNAUDITED)

	(C) HOF Village			(D) GPAQ			Pro Forma Adjustments			Pro Forma Income Statement

Total revenues	$	7,861,331		$	-		$	-		$	7,861,331

Property operating expenses		16,707,537			-			(320,681	)(1)		16,386,856
Commission expense		1,003,226			-			-			1,003,226
Depreciation expense		10,915,839			-			-			10,915,839
Loss on abandonment of prject development costs		12,194,783			-			-			12,194,783
Operating expenses		-			1,415,881			(769,247	)(1)		646,634
Loss from operations		(32,960,054	)		(1,415,881	)		1,089,928			(33,286,007	)

Other income (expense):
Interest income		-			2,651,036			(2,651,036	)(2)		-
Unrealized gain on marketable securities		-			9,588			(9,588	)(2)		-
Interest expense		(9,416,099	)		-			5,252,496	(3)		(4,163,603	)
Amortization of discount on note payable		(13,274,793	)		-			10,274,086	(3)		(3,000,707	)
Other loss		(252,934	)		-			-			(252,934	)
(Loss) income before income taxes		(55,903,880	)		1,244,743			13,955,886			(40,703,251	)
Provision for income taxes		-			(424,383	)		424,383	(4)		-
Net (loss) income	$	(55,903,880	)	$	820,360		$	14,380,269		$	(40,703,251	)


Weighted average shares outstanding, basic and diluted		18,120,907			4,098,986			27,720,090	(5)		31,819,076
Basic and diluted net loss per share	$	(3.09	)	$	(0.25	)				$	(1.28	)

Pro Forma Adjustments to the Unaudited Combined Statements of Operations

(A)

Derived from the unaudited consolidated statement of operations of HOF Village for the three months ended March 31, 2020. See HOF Village’s financial statements and the related notes appearing in the Registration Statement.

(B)

Derived from the unaudited consolidated statement of operations of GPAQ for the three months ended March 31, 2020. See GPAQ’s financial statements and the related notes appearing in the Registration Statement.

(C)

Derived from the audited consolidated statement of operations of HOF Village for the year ended December 31, 2019. See HOF Village’s financial statements and the related notes appearing in the Registration Statement.

(D)

Derived from the audited statement of operations of GPAQ for the year ended December 31, 2019. See GPAQ’s financial statements and the related notes appearing elsewhere in in the Registration Statement.

(1)

Represents an adjustment to eliminate direct, incremental costs of the Business Combination which are reflected in the historical financial statements of HOF Village and GPAQ in the amount of $433,800 and $580,695, respectively, for the three months ended March 31, 2020 and $320,681 and $769,247, respectively, for the year ended December 31, 2019.

(2)

Represents an adjustment to eliminate interest income and unrealized gain on marketable securities held in the trust account as of the beginning of the period.

(3)

Represents an adjustment to eliminate interest expense on certain of HOF Village’s notes payable as of the beginning of the period, as these will be repaid upon consummation of the Business Combination.

(4)

To record normalized blended statutory income tax benefit rate of 21% for pro forma financial presentation purposes resulting in the recognition of an income tax benefit, which however, has been offset by a full valuation allowance as the post-combination company expects to incur continuing losses.

(5)

The calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that GPAQ’s initial public offering occurred as of January 1, 2019. In addition, as the Business Combination is being reflected as if it had occurred on this date, the calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the shares have been outstanding for the entire period presented. This calculation is retroactively adjusted to eliminate the number of shares redeemed in the Business Combination for the entire period.

The following presents the calculation of basic and diluted weighted average common shares outstanding. The computation of diluted loss per share excludes the effect of 17,400,000 warrants to purchase 17,400,000 shares of common stock because the inclusion of these securities would be anti-dilutive.

	Combined
Weighted average shares calculation, basic and diluted
GPAQ public shares		4,082,910
GPAQ Sponsor shares, net of cancelled shares		2,035,772
GPAQ Sponsor shares transferred to HOF Village		414,259
GPAQ shares issued in satisfaction of outstanding fees and expenses		2,292,624
GPAQ shares issued in satisfaction of prior existing debt		4,872,604
GPAQ shares issued in the Business Combination		18,120,907
Weighted average shares outstanding		31,819,076
Percent of shares owned by Newco		80.8	%
Percent of shares owned by GPAQ		19.2	%

COMPARATIVE SHARE INFORMATION

The following table sets forth the historical comparative share information for HOF Village and GPAQ on a stand-alone basis and the unaudited pro forma combined share information for the three months ended March 31, 2020 and the year ended December 31, 2019, after giving effect to the Business Combination.

You should read the information in the following table in conjunction with the selected historical financial information summary incorporated by reference in the Form 8-K, and the historical financial statements of HOF Village and GPAQ and related notes that are included in the Registration Statement. The unaudited pro forma combined share information is derived from, and should be read in conjunction with, the unaudited pro forma combined financial statements and related notes included in the Registration Statement.

The unaudited pro forma combined share information below does not purport to represent what the actual results of operations or the earnings per share would been had the companies been combined during the periods presented, nor to project the Company’s results of operations or earnings per share for any future date or period. The unaudited pro forma combined stockholders’ equity per share information below does not purport to represent what the value of HOF Village and GPAQ would have been had the companies been combined during the periods presented.

	HOF Village			GPAQ			Combined
Three Months Ended March 31, 2020
Net loss	$	(13,137,842	)	$	(459,715	)	$	(8,712,018	)
Total stockholders’ equity ⁽¹⁾	$	21,811,497		$	5,000,004		$	154,459,520
Weighted average shares outstanding – basic and diluted		18,120,907			4,346,628			31,819,076
Basic and diluted net loss per share	$	(0.73	)	$	(0.15	)	$	(0.27	)
Stockholders’ equity ⁽¹⁾ per share – basic and diluted	$	1.20		$	1.15		$	4.85

(1)

Stockholders’ equity is used as a proxy for book value in the above table.

	HOF Village			GPAQ			Combined
Year Ended December 31, 2019
Net (loss) income	$	(55,903,880	)	$	820,360		$	(40,703,251	)
Weighted average shares outstanding – basic and diluted		18,120,907			4,098,986			31,819,076
Basic and diluted net loss per share	$	(3.09	)	$	(0.25	)	$	(1.28	)