Exhibit 10.1

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.

LOAN AGREEMENT

by and between

HOF Village Retail I, LLC,

a Delaware limited liability company

and

HOF Village Retail II, LLC,

a Delaware limited liability company,

jointly and severally as Borrower,

and

The Huntington National Bank,

a national banking association,

as Lender

Dated as of:

September 27, 2022

TABLE OF CONTENTS

LOAN AGREEMENT

This Loan Agreement (“Agreement”) is made and entered into as of the 27th day of September, 2022 (the “Loan Closing Date”), by and among HOF Village Retail I, LLC, a Delaware limited liability company and HOF Village Retail II, LLC, a Delaware limited liability company (collectively the “Borrower”) and The Huntington National Bank, a national banking association (“Lender”).

RECITALS:

A. Borrower is in the process of constructing two (2) commercial retail buildings (each a “Building” and collectively the “Building”) totaling approximately 75,329 square feet of leasable space, located at the Pro Football Hall of Fame site in Canton, Stark County, Ohio on certain real property more particularly described on Exhibit A attached and made a part hereof (the “Land”) (the Land together with the commercial buildings the “Property”).

B. TWAIN GL XXXVI, LLC, a Missouri limited liability company (“Twain”) has agreed to purchase the Land and Borrower has agreed to sell the Land to Twain for a purchase price equal to $550,000.00.

C. Simultaneous with the closing of this Loan and the sale of the Land, Twain has entered into that certain Ground Lease with Borrower dated on or about the date hereof (the “Ground Lease”) pursuant to which Twain, as ground lessor, has ground leased the Land to Borrower.

D. RSI OH, LLC, a Delaware limited liability company (“RSI”) pursuant to the provisions of Section 4.2.1 of that certain Retail Sports Gaming Services Agreement by and between HOF Village Retail II, LLC and RSI dated July 29, 2022 (the “RSI Lease”), RSI has agreed to contribute no less than $3,500,000.00 in tenant improvements to its leased space (the “RSI TI Proceeds”). As of the Loan Closing Date, the RSI Lease has not been executed. At some future date the parties anticipate it will be executed.

E. Borrower has applied to Lender for a leasehold mortgage loan (the “Loan”) in the amount of up to $10,000,000.00 and Lender is willing to make the Loan upon the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements herein contained, the sufficiency of which is hereby acknowledged, the parties hereto represent and agree as follows:

SECTION 1

INCORPORATION AND DEFINITIONS

1.1. Definitions.

The foregoing recitals and all exhibits hereto are made a part of this Agreement. The following terms shall have the following meanings in this Agreement:

Affiliate: Means as to any Person, any other Person (excluding any Foreign Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with such Person. For purposes of this definition, a Person shall be deemed to be “controlled by” a Person if such Person possesses, directly or indirectly, power either: (i) to vote fifty one percent (51%) or more of the securities having ordinary voting power for the election of directors of such Person; or (ii) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

Agreement: As defined in the Opening Paragraph.

Anti-Corruption Laws: Means, collectively, the United States Foreign Corrupt Practices Act of 1977 and all other similar anti-corruption legislation in other jurisdictions.

Anti-Terrorism Laws: Mean those laws and sanctions relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act (Public Law 107-56), the Bank Secrecy Act (Public Law 91-508), the Trading with the Enemy Act (50 U.S.C. App. Section 1 et. seq.), the International Emergency Economic Powers Act (50 U.S.C. Section 1701 et. seq.), and the sanction regulations promulgated pursuant thereto by the Office of Foreign Assets Control, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957 (as any of the foregoing may from time to time be amended, renewed, extended or replaced).

Appraisal: A fair market value real estate appraisal prepared by an appraiser satisfactory to Lender, in form and substance satisfactory to Lender.

Assignment of Leases and Rents: An assignment to Lender from Borrower of the rents, leases, security and other deposits, income, issues, proceeds and profits associated with or arising from the Property or any part thereof, and which assignment is prior to all other such assignments and valid as such against all creditors of Borrower.

Awards: As defined in Section 7.1.

Beneficial Ownership Certification: Means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation: Means 31 CFR § 1010.230.

Blocked Person: Means any of the following: (a) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (c) a Person with which Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order No. 13224; or (e) a Person that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list.

Borrower: As such term is defined in the Opening Paragraph.

Budget: As set forth on Exhibit I.

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

Capital Expenditures: Mean the cost of any fixed asset or improvement, or replacement or substitution thereof or addition thereto, having a useful life of more than one (1) year, including, but not limited to, those costs arising in connection with the direct or indirect acquisition of such assets or in connection with a capital lease.

Casualty: As defined in Section 7.1.

Collateral: Means all of the following real and personal property owned by Borrower, whether now owned or existing, or hereafter arising or acquired or received by Borrower, wherever located:

(a) The Property;

(b) All the improvements now or hereafter erected on the Property (the “Improvements”), and all easements, rights of way, appurtenances, uses, servitudes, licenses, tenements, hereditaments, rents, royalties, mineral, oil and gas rights and profits, waters, water rights, and water stock, and any and all fixtures, goods, chattels, equipment and articles of personal property of every kind and character, including any replacements, additions, substitutions therefore, now or at any time in the future owned by Borrower and affixed to or placed upon or used in connection with the occupancy, enjoyment and operation of the Property all of which are hereby declared and shall be deemed to be a portion of the security for the Indebtedness herein described and to be subject to the lien of the Mortgage, including but not limiting the generality of the foregoing, all heating, lighting, incinerating, power and total energy equipment, engines, pipes, pumps, tanks, motors, conduits, switchboards, plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigeration, ventilating, and communications apparatus, air cooling and air conditioning apparatus, elevators, escalators, wall to wall carpeting, shades, awnings, screens, storm doors and windows, attached cabinets, partitions, ducts and compressors, and such other goods, chattels, and equipment as are adapted to the complete and comfortable use, enjoyment and occupancy of the Property, excluding any of the aforesaid which is owned by any tenant of any unit leased to such tenant and which according to the terms of any applicable lease may be removed by such tenants at the expiration or termination of said lease;

(c) All existing and future appurtenances, privileges, easements, franchises and tenements of the Property, including all minerals, oil, gas, other hydrocarbons and associated substances, sulphur, nitrogen, carbon dioxide, helium and other commercially valuable substances which may be in, under or produced from any part of the Property, all development rights and credits, air rights, water, water rights (whether riparian, appropriative or otherwise, and whether or not appurtenant) and water stock, and any Land lying in the streets, roads or avenues, open or proposed, in front of or adjoining the Property and Improvements;

(d) All existing and future leases, subleases, subtenancies, licenses, occupancy agreements and concessions (“Leases”) relating to the use and enjoyment of all or any part of the Property and Improvements, and any and all guaranties and other agreements relating to or made in connection with any of such Leases;

(e) All goods, materials, supplies, chattels, furniture, fixtures, equipment and machinery now or later to be attached to, placed in or on, or used in connection with the use, enjoyment, occupancy or operation of all or any part of the Property and Improvements, whether stored on the Property or elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting, refrigeration and plumbing fixtures and equipment, all of which shall be considered to the fullest extent of the law to be real property for purposes of the Mortgage; and any manufacturer’s warranties with respect thereto;

(f) All building materials, equipment, work in process or other personal property of any kind, whether stored on the Property or elsewhere, which have been or later will be acquired for the purpose of being delivered to, incorporated into or installed in or about the Property or Improvements;

(g) All rights to the payment of money, accounts, accounts receivable, reserves, deferred payments, refunds, cost savings, payments and deposits, whether now or later to be received from third parties (including all earnest money sales deposits) or deposited by Borrower with third parties (including all utility deposits), contract rights, development and use rights, governmental permits and licenses, applications, architectural and engineering plans, specifications and drawings, as built drawings, chattel paper, instruments, documents, notes, drafts and letters of credit, which arise from or relate to construction on the Property or to any business now or later to be conducted on it, or to the Property and Improvements generally; and any builder’s or manufacturer’s warranties with respect thereto;

(h) All insurance policies pertaining to the Property and all proceeds, including all claims to and demands for them, of the voluntary or involuntary conversion of any of the Property, Improvements or the other property described above into cash or liquidated claims, including proceeds of all present and future fire, hazard or casualty insurance policies and all condemnation awards or payments now or later to be made by any public body or decree by any court of competent jurisdiction for any taking or in connection with any condemnation or eminent domain proceeding, and all causes of action and their proceeds for any damage or injury to the Property, Improvements or the other property described above or any part of them, or breach of warranty in connection with the construction of the Improvements, including causes of action arising in tort, contract, fraud or concealment of a material fact;

(i) All “Equipment” as that term is defined in the Uniform Commercial Code;

(j) All “Goods” as that term is defined in the Uniform Commercial Code;

(k) All “Accounts” as that term is defined in the Uniform Commercial Code;

(l) All books and records pertaining to any and all of the property described above, including computer readable memory and any computer hardware or software necessary to access and process such memory; and

(m) All proceeds of, additions and accretions to, substitutions and replacements for, and changes in any of the property described above.

Commodity Exchange Act: Means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute and any regulations promulgated thereunder.

Compliance Certificate: A compliance certificate in the form attached as Exhibit H.

Control or control: As such term is used with respect to any person or entity, including the correlative meanings of the terms “controlled by” and “under common control with” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity, whether through the ownership of voting securities, by contract or otherwise.

County: Stark County, Ohio.

Debt Service: For any period, shall be based upon the combined amount of Loan Proceeds disbursed to date plus the amount of Loan Proceeds that Borrower has requested to be drawn pursuant to Section 6.2 below, a 30-year amortization period (provided, however, that the amortization period for any test under Section 4.18 below shall be calculated on the remaining amortization schedule), and a rate of interest equal to the contracted rate under the Hedging Contract.

Debt Service Coverage Ratio: Means the ratio of Net Operating Income to Debt Service.

Debt Service Coverage Ratio (Stabilization): Means the ratio of Stabilized NOI to Stabilized Debt Service.

Default: Any event, condition or circumstances, which if it were to continue uncured would, with notice or lapse of time or both, constitute an Event of Default hereunder, under any Loan Documents.

Default Rate: As set forth in the Note.

Environmental Indemnity Agreement: An environmental indemnity from Borrower and Guarantor, jointly and severally in favor of Lender, confirming the perpetual survival of Borrower’s and Guarantor’s representations, warranties and indemnities therein with respect to Hazardous Materials, among other things, and compliance with all applicable Environmental Laws.

Environmental Law(s): Means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Materials, relating to liability for or costs of Remediation or prevention of releases of Hazardous Materials or relating to liability for or costs of other actual or future danger to human health or the environment or relating to any wrongful death, personal injury or property damage that is caused by or related to the presence, growth, proliferation, reproduction, dispersal, or contact with any biological organism or portion thereof, including molds or other fungi, bacteria or other microorganisms or any etiologic agents or materials arising from or at the Property. The term “Environmental Law” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource Conservation and Recovery Act (including, but not limited to, Subtitle I relating to underground Storage Tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term “Environmental Law” also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law: conditioning transfer of property upon a negative declaration or other approval of a Governmental Authority of the environmental condition of the Property; requiring notification or disclosure of releases of Hazardous Materials or other environmental condition of the Property to any Governmental Authority or other person or entity, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to nuisance, trespass or other causes of action related to the Property; and relating to wrongful death, personal injury, or property or other damage in connection with any physical condition or the presence of biological or etiologic agents or materials or use, management, or maintenance of the Property.

Environmental Report: That certain environmental report for the Property prepared by Verdantas dated July 2022, Project No. IYR 028.600.005.

Equity Contribution: Is defined in Section 4.19.

ERISA: Means the Employee Retirement Income Security Act of 1974, as the same may be amended or supplemented from time to time, and any successor statute of similar import and the rules and regulations promulgated thereunder as from time to time in effect.

Event of Default: As defined in Section 10.

Excluded Swap Obligation: Means, with respect to any Borrower or Guarantor, any Indebtedness in respect of any Hedging Contract if, and solely to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by any Borrower or Guarantor of a security interest to secure, such Indebtedness in respect of any Hedging Contract (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Borrower’s or Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time such guarantee or grant of a security interest becomes effective with respect to such related Indebtedness in respect of any Hedging Contract.

Extended Maturity Date: September, 2027 (36 months from Initial Maturity Date), unless accelerated sooner pursuant to the terms hereof.

Extension Option: Is defined in Section 3.3.

Force Majeure: means any strikes, lockouts, shortages of labor, fuel or materials, acts of God, significant adverse weather or soil conditions not reasonably anticipated, unforeseen government action, any enemy act, riot, insurrection, or other civil commotion, fire or other similar casualty, or any other cause or circumstance beyond the reasonable control of the party. Force Majeure shall not include shortage of funds.

Foreign Subsidiary: Means any Subsidiary that is not organized or incorporated in the United States or any state or territory thereof.

GAAP: As defined in Section 1.3, below.

Governmental Approvals: All consents, licenses and permits and all other authorizations or approvals required from any Governmental Authority for construction in accordance with the Plans and Specifications.

Governmental Authority: Any federal, state, county or municipal government, or political subdivision thereof, any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court, administrative tribunal, or public utility.

Ground Lease: Is defined in the Recitals.

Guarantor: Stuart Lichter, and Stuart Lichter, Trustee of the Stuart Lichter Trust u/t/d dated November 13, 2011.

Guaranty of Payment: An unconditional guaranty of payment and performance executed by Guarantor jointly and severally guarantying all payment and performance obligations of Borrower under the Note and Loan Documents, as the same may be amended, restated, replaced, extended, or otherwise modified from time to time.

Hazardous Material(s): Gasoline, petroleum, asbestos containing materials, explosives, radioactive materials or any hazardous or toxic material, substance or waste which is defined by those or similar terms or is regulated as such under any applicable Environmental Law.

Hedging Contract: Means any foreign exchange contract, currency swap agreement, futures contract, commodities hedge agreement, interest rate protection agreement, interest rate future agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, option agreement or any other similar hedging agreement or arrangement entered into by a Person in the ordinary course of business.

Improvements: All buildings, structures and other improvements, including, but not limited to, all common areas, located or to be located on the Property, together with all fixtures and equipment required for the operation thereof.

Indebtedness: Means all liabilities, obligations, and indebtedness, whether now or hereafter owing, arising, due or payable, including but not limited to: (a) indebtedness in the nature of loans, overdrafts, letters of credit, capital leases, obligations under derivative contracts (including interest rate swaps) and guarantees of the obligations of third parties; and (b) all liabilities of any person secured by a lien on Borrower’s property.

Inspecting Agent: An inspector selected by Lender, in its sole discretion, who shall perform reviews of the Buildings at Lender’s request. The Inspecting Agent may be a third party or an employee of Lender. Borrower shall be responsible for all fees, costs and expenses of the Inspecting Agent.

Land: As defined in the Recitals.

Law(s): Collectively, all present and future federal, state and local laws, statutes, codes, ordinances, orders, rules and regulations, including judicial opinions or precedential authority in the applicable jurisdiction.

Leases: As defined in the definition of Collateral, above.

Lender: As such term is defined in the Opening Paragraph.

Loan: As defined in the Recitals.

Loan Amount: $10,000,000.00.

Loan Closing Date: As defined in the Opening Paragraph.

Loan Fee: $75,000.00.

Loan Documents: Mean this Agreement, the documents specified in Section 3.2 hereof, any Hedging Contracts, any account assignments, control agreements, letter of credit application and agreement or other reimbursement agreements, any subordination agreements, intercreditor agreements and any and all other agreements, instruments and documents, including powers of attorney, consents, and all other writings heretofore, now or hereafter executed by Borrower and/or Guarantor, or delivered to Lender in connection with this Agreement.

Loan Proceeds: All amounts or any portion advanced as part of the Loan, whether advanced directly to Borrower or other parties.

Loan Extension Fee: As defined in Section 3.3.

Management Company: HOF Village Newco, LLC, a Delaware limited liability company.

Material Adverse Change or material adverse change: Lender reasonably determines that a material adverse change has occurred with respect to: (a) Borrower’s or Guarantor’s financial condition, results of operations, business or prospects; (b) Borrower’s ability to pay the Loan in accordance with the terms thereof, or Guarantor’s ability to perform its obligations under the Guaranty of Payment pursuant to the terms thereof; or (c) the value of the Collateral, or the priority of Lender’s lien on any Collateral.

Initial Maturity Date: September 27, 2024 [24 months from Loan Closing Date] unless accelerated sooner or extended pursuant to the terms hereof.

Mortgage: An Open End Mortgage (Leasehold), Assignment of Leases and Rents, Security Agreement, and Fixture Filing duly executed by the Borrower and granting a valid and subsisting first lien on Borrower’s leasehold interest in the Land, and a security interest in the personal property and fixtures securing all obligations of the Borrower under all of the Loan Documents, subject only to the Permitted Exceptions.

Net Operating Income: Means, for any period measured, the difference between: (a) income and reimbursements from executed Leases not then-in default, but excluding items that the Lender reasonably determines are non-recurring in nature and income from any leases expiring within six (6) months of the testing date; and (b) the operating expenses for the Property (X) prior to the Extension Period as reflected in the Appraisal (annualized, if tested quarterly or semi-annually), including rents under the Ground Lease, and (Y) during the Extension Period, the actual operating expenses for the Property (annualized, if tested quarterly or semi-annually), including rents under the Ground Lease, all as reasonably calculated by Lender.

Note: A Promissory Note (said promissory note and all amendments, modifications, restatements and replacements thereto) executed by Borrower, payable to the order of Lender and in the Loan Amount.

OFAC: Means the Office of Foreign Assets Control of the United States Department of the Treasury.

OSHA: the Occupational Safety and Hazard Act of 1970.

Operating Account: A deposit account with Lender that Borrower shall open on or prior to the Loan Closing Date.

Permitted Exceptions: Defects, liens and encumbrances, and other items affecting title to the Property and shown on Exhibit B attached hereto.

Person: Means any individual, sole proprietorship, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company, institution, public benefit corporation, joint venture, entity or governmental body.

Post-Closing Actions: Mean the actions identified on the Post-Closing Exhibit.

Post-Closing Exhibit: Means the Post-Closing Exhibit, attached hereto as Exhibit F and incorporated herein, as the same may be supplemented or otherwise modified in writing by the Parties in accordance with the terms of this Agreement.

Proceeds: As defined in Section 7.1.

Prohibited Transfer: Means any conveyance, sale, assignment, transfer, division, lien, pledge, mortgage, security interest, encumbrance or alienation of all or any portion of, or any interest in Borrower, the Land, or the Property, whether effected directly, indirectly, voluntarily, involuntarily, or by operation of Law or otherwise; provided, however, that the foregoing shall not apply to: (i) liens securing the Loan, (ii) the lien of current taxes and assessments not in default including payments in lieu of taxes, (iii) any pledge made in connection with indebtedness in respect of purchase money financings of personal property, (iv) any pledge made in connection with indebtedness that is expressly subordinated to the Borrower’s indebtedness to the Lender, on terms and conditions that are satisfactory to the Lender pursuant to any subordination agreement required in connection with this Agreement, (v) Permitted Exceptions, and (vi) transfers, mergers and consolidations of Borrower into or with a parent, Subsidiary or Affiliate of Borrower.

Property: As defined in the Recitals.

Rent Roll: The rent roll of the Property delivered to Lender.

Required Permits: Each building permit, environmental permit, utility permit, land use permit, wetland permit and any other permits, approvals or licenses issued by any Governmental Authority which are required in connection the use, occupancy, or operation of the Property.

RSI: as defined in the Recitals.

RSI Lease: as defined in the Recitals.

RSI TI Proceeds: as defined in the Recitals.

Sanctioned Country: Means at any time, a country or territory which is itself the subject or target of any Sanctions.

Sanctioned Person: Means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or any other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned directly or indirectly by any such Person or Persons described in clauses (a) and (b) or (d) any Person otherwise the subject or target of any Sanctions.

Sanctions: Means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC, the U.S. Department of State or the U.S. Department of Commerce) or any other relevant sanctions authority.

Stabilization: Means the Project has achieved a Debt Service Coverage Ratio (Stabilization) of no less than 1.30:1.00 based upon the entire Loan Amount.

Stabilized Debt Service: Means, for any period, the principal and interest payments due and payable on the Loan, based upon the full Loan Amount, a 30-year amortization period, and a rate of interest equal to the contracted rate under the Hedging Contract.

Stabilized NOI: Means, for any period measured, the difference between: (a) income and reimbursements from tenants under Leases that are paying all rent required thereunder and not then-in default, but excluding items that the Lender reasonably determines are non-recurring in nature and income from any leases expiring within six (6) months of the testing date; and (b) the operating expenses for the Property equal to the greater of: (i) the operating expenses for the Property as reflected in the most-recent as-stabilized Appraisal (annualized, if tested quarterly or semi-annually), including rents under the Ground Lease, but excluding expenses for replacement reserves, and assuming: (A) a property management fee of 3%, and (B) real estate tax expense of $313,000 (as adjusted by Lender, in its reasonable discretion); or (ii) the actual operating expenses for the Property (annualized, if tested quarterly or semi-annually), including rents under the Ground Lease, all as reasonably calculated by Lender.

Subsidiary: Means a corporation or other entity of whose shares of stock or other ownership interests having ordinary voting power (other than stock or other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the directors of such corporation, are owned, directly or indirectly, by Borrower.

Survey: An ALTA survey of the Land in compliance with the requirements of Exhibit C attached hereto.

Taking: As defined in Section 7.1.

Title Agent: Chicago Title.

Title Commitment: A commitment for issuance of an ALTA Loan Policy of Title Insurance in compliance with the requirements of Exhibit D attached hereto.

Title Policy: An ALTA Loan Policy of Title Insurance in compliance with the requirements of Exhibit D attached hereto.

Twain: As defined in the Recitals.

Twain Proceeds: An amount equal to $18,200,000.00, of which $550,000 shall be used for the purchase price for the Land and up to $2,900,000.00 shall be reserved and held by Twain for capitalized Ground Lease payments which it will pay to itself.

1.2. Definitions in Loan Documents. All terms not otherwise defined in the Loan Documents shall have the same meanings as set forth herein. The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement.

1.3. Accounting Terms. All accounting terms not specifically defined herein shall be defined in accordance with Generally Accepted Accounting Principles as promulgated by the United States of America Financial Accounting Standards Board in the United States of America in effect from time to time (“GAAP”). All financial computations to be made under this Agreement, unless otherwise specifically provided herein, shall be construed in accordance with GAAP. Whenever the term “Borrower” is used in respect of a financial covenant or a related definition, it shall be understood to mean Borrower and its Subsidiaries on a consolidated basis unless the context clearly requires otherwise.

1.4. Uniform Commercial Code Terms. All capitalized terms used herein with reference to the Collateral and defined in the Uniform Commercial Code as adopted in the [State of Ohio], from time to time, shall have the meaning given therein unless otherwise defined herein. To the extent the definition of any category or type of Collateral is expanded by any amendment, modification or revision to the Uniform Commercial Code, such expanded definition will apply automatically as of the effective date of such amendment, modification or revision.

1.5. Lease Accounting Changes. If there occurs after the Closing Date any change in GAAP resulting from the implementation of Financial Accounting Standards Update Board Accounting Standards Topic 842 (Leases) that affects in any respect the calculation of any covenant contained in this Agreement or the definition of any term defined under GAAP used in such calculations, Borrower and Lender shall negotiate in good faith to amend the provisions of this Agreement that relate to the calculation of such covenants with the intent of having the respective positions of Borrower and Lender after such change in GAAP conform as nearly as possible to their respective positions as of the Closing Date, provided, that, until any such amendments have been agreed upon, the covenants in this Agreement shall be calculated as if no such change in GAAP had occurred and Borrower shall provide additional financial statements or supplements thereto, attachments to compliance certificates and/or calculations regarding financial covenants as Lender may reasonably require in order to provide the appropriate financial information required hereunder with respect to Borrower both reflecting any applicable changes in GAAP and as necessary to demonstrate compliance with the financial covenants before giving effect to the applicable changes in GAAP. Notwithstanding the foregoing, if Borrower and Lender are unable to agree on appropriate amendments within one (1) year after the effective date of the changes in Financial Accounting Standards Update Board Accounting Standards Topic 842 (Leases), then all covenant calculations and definitions shall thereafter be computed in accordance with GAAP as so changed.

SECTION 2

REPRESENTATIONS AND WARRANTIES

2.1. Representations and Warranties. To induce Lender to execute and perform its obligations under this Agreement, Borrower hereby represents, covenants and warrants to Lender as follows:

(a) Title to Assets. On the Loan Closing Date and at all times thereafter until the Loan is paid in full, the Borrower will have good and marketable indefeasible leasehold title to the Land, subject only to Permitted Exceptions.

(b) Financial Statements. All financial statements and other financial information furnished by Borrower or any Guarantor (now or in the future) to Lender in connection with the Loan are true, complete and correct and fairly present the financial condition of the subjects thereof as of the respective dates thereof and do not fail to state any material fact necessary to make such statements or information not misleading, and no Material Adverse Change with respect to Borrower or any Guarantor has occurred since the respective dates of such statements and information. Furthermore, all financial statements and other financial information which shall be furnished by Borrower or any Guarantor to Lender in connection with the Loan shall be true, complete and correct and shall fairly present the financial condition of the subjects thereof as of the respective dates thereof and shall not fail to state any material fact necessary to make any statements or information not misleading. Neither Borrower nor any Guarantor has any material liability, contingent or otherwise, not disclosed in such financial statements and information. No other information or documents provided by Borrower or any Guarantor is false, incomplete or inaccurate in any material respect.

(c) Binding Obligations. The Borrower has full power and authority to enter into the transactions provided for in this Agreement and has been duly authorized to do so by appropriate action of its Board of Directors if the Borrower is a corporation, all its general partners if the Borrower is a partnership or all its members if the Borrower is a limited liability company, or otherwise as may be required by law, charter, other organizational documents or agreements; and the Loan Documents, when executed and delivered by the Borrower, will constitute the legal, valid and binding obligations of the Borrower enforceable in accordance with their terms.

(d) Existence, Power and Authority. If not a natural person, the Borrower is duly organized, validly existing and in good standing under the laws of the State of its incorporation or organization and has the power and authority to own and operate its assets and to conduct its business as now or proposed to be carried on, and is duly qualified, licensed and in good standing to do business in all jurisdictions where its ownership of property or the nature of its business requires such qualification or licensing. The Borrower is duly authorized to execute and deliver the Loan Documents, all necessary action to authorize the execution and delivery of the Loan Documents has been properly taken, and the Borrower is and will continue to be duly authorized to borrow under this Agreement and to perform all of the other terms and provisions of the Loan Documents.

(e) No Defaults or Violations. There does not exist any Event of Default under this Agreement or any default or violation by the Borrower of or under any of the terms, conditions or obligations of: (i) its partnership agreement if the Borrower is a partnership, its articles or certificate of incorporation, regulations or bylaws if the Borrower is a corporation or its other organizational documents as applicable; (ii) any indenture, mortgage, deed of trust, franchise, permit, contract, agreement, or other instrument to which it is a party or by which it is bound; or (iii) any law, ordinance, regulation, ruling, order, injunction, decree, condition or other requirement applicable to or imposed upon it by any law, the action of any court or any Governmental Authority; and the consummation of this Agreement and the transactions set forth herein will not result in any such default or violation or Event of Default.

(f) Tax Returns. The Borrower has filed all returns and reports that are required to be filed by it in connection with any federal, state or local tax, duty or charge levied, assessed or imposed upon it or its property or withheld by it, including income, unemployment, social security and similar taxes, and all of such taxes have been either paid or adequate reserve or other provision has been made therefor.

(g) Employee Benefit Plans. Each employee benefit plan as to which the Borrower may have any liability complies in all material respects with all applicable provisions of ERISA, including minimum funding requirements, and: (i) no Prohibited Transaction (as defined under ERISA) has occurred with respect to any such plan, (ii) no Reportable Event (as defined under Section 4043 of ERISA) has occurred with respect to any such plan which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Section 4042 of ERISA, (iii) the Borrower has not withdrawn from any such plan or initiated steps to do so, and (iv) no steps have been taken to terminate any such plan.

(h) Investment Company Act; Margin Stock.

(i) Anti-Corruption Laws & Sanctions.

(j) Solvency. As of the date hereof and after giving effect to the transactions contemplated by the Loan Documents: (i) the aggregate value of the Borrower’s assets will exceed its liabilities (including contingent, subordinated, unmatured and unliquidated liabilities), (ii) the Borrower will have sufficient cash flow to enable it to pay its debts as they become due, and (iii) the Borrower will not have unreasonably small capital for the business in which it is engaged.

(k) No Material Adverse Change. None of the Loan Documents contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary in order to make the statements contained in this Agreement or the Loan Documents not misleading. There is no fact known to the Borrower which materially adversely affects or, so far as the Borrower can now foresee, might materially adversely affect the business, assets, operations, condition (financial or otherwise) or results of operation of the Borrower and which has not otherwise been fully set forth in this Agreement or in the Loan Documents and no condition, circumstance, event, agreement, document, instrument, restriction, or pending or threatened litigation or proceeding exists which could cause a Material Adverse Change to the Borrower, Guarantor or the Property.

(l) Land Use. The present use and occupancy of the Property does not violate or conflict with any approved lease, any applicable law, statute, ordinance, rule, regulation or order of any kind, including, without limitation, zoning, building, environmental, land use, noise abatement, occupational health and safety or other laws, any building permit or any condition, grant, easement, covenant, condition or restriction, whether recorded or not.

(m) Material Facts. All financial statements, budgets, schedules, opinions, certificates, confirmations, applications, rent rolls, affidavits, agreements and other materials submitted to the Lender in connection with or in furtherance of this Agreement, and by or on behalf of the Borrower, fully and fairly state the matters with which they purport to deal, do not misstate any material fact, nor, separately or in the aggregate, fail to state any material fact necessary to make the statements made not misleading.

(n) Utilities. All utility and municipal services required for the occupancy and operation of the Property, including, but not limited to, water supply, storm and sanitary sewage disposal system, gas, electric and telephone facilities are available for use and provide the Property with services to the extent necessary for operation of the Property.

(o) Storm and Sanitary Sewers. To Borrower’s knowledge, the storm and sanitary sewage disposal system, water system and all mechanical systems of the Property comply with all applicable environmental, pollution control and ecological Laws, ordinances, rules and regulations.

(p) Permits and Approvals. All Required Permits have been issued and are in full force and Borrower is not aware of any circumstance which would cause the revocation, suspension, or other material impairment of any such Required Permits.

(q) Easements. All utility, parking, vehicular access (including curb cuts and highway access), recreational and other permits and easements required for the use and operation of the Property have been granted and issued.

(r) No Encroachment. The Improvements do not encroach upon any building line, set back line, side yard line, or any recorded or visible easement, or other easement of which Borrower is aware or has reason to believe may exist, affecting the Property.

(s) Ingress and Egress. All roads necessary for ingress and egress to the Property and for the full utilization of the Improvements have been completed pursuant to easements approved or deemed approved by the Lender or have been dedicated to public use and accepted by the appropriate Governmental Authority.

(t) No Condemnation. (i) No condemnation of any portion of the Property and (ii) no proceedings to deny access to the Property from any point of access to the Property, has commenced, or to the best of Borrower’s knowledge, is contemplated by any Governmental Authority.

(u) Environmental Matters. Except as disclosed by Borrower to Lender in the Environmental Report: (i) the Property is in a clean, safe and healthful condition, free of all Hazardous Materials; (ii) neither Borrower nor, to the best knowledge of Borrower, any other Person, has ever caused or permitted any Hazardous Materials to be placed, held, located or disposed of on, under, at or in a manner to affect the Property, or any part thereof, and the Property has never been used for any activities involving, directly or indirectly, the use, generation, treatment, storage, transportation, or disposal of any Hazardous Materials; (iii) neither the Property nor Borrower is subject to any existing, pending, or, to the best of Borrower’s knowledge, threatened investigation or inquiry by any Governmental Authority, and the Property is not subject to any remedial obligations under any applicable Laws pertaining to health or the environment; and (iv) there are no underground tanks, vessels, or similar facilities for the storage, containment or accumulation of Hazardous Materials of any sort on or affecting the Property.

(v) Foreign Person. Neither Borrower nor Guarantor is a “foreign person” within the meaning of Section 1445 or 7701 of the Internal Revenue Code.

(w) Trade Names. Borrower uses no trade name other than its actual name set forth herein. The principal place of business of Borrower is Ohio.

(x) Separate Tax Parcels. The Property is taxed separately without regard to any other property and for all purposes the Property may be mortgaged, conveyed and otherwise dealt with as independent parcels.

(y) Leases. Borrower and its agents have not entered into any leases, subleases or other arrangements for occupancy of space within the Property other than those shown on the Rent Roll delivered to Lender. True, correct and complete copies of all leases, as amended, have been delivered to Lender. All leases are in full force and effect. Borrower is not in default under any lease and Borrower has disclosed to Lender in writing any material default by the tenant under any lease.

(z) Anti-Terrorism Laws. Borrower has not and will not engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, any of the prohibitions set forth in any Anti-Terrorism Law.

(aa) Compliance with OSHA. Borrower is in compliance with OSHA, unless failure to comply or maintain would not reasonably be expected to have a Material Adverse Effect on Borrower.

(bb) Beneficial Ownership Certificate. As of the Loan Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.

2.2. Continuation of Representations and Warranties. Except for matters disclosed by Borrower and approved in writing by Lender, the Borrower hereby covenants, warrants and agrees that each of the representations and warranties made in Section 2.1 hereof shall be and shall remain true and correct as of the Loan Closing Date and at all times thereafter so long as any part of the Loan shall remain outstanding.

SECTION 3

THE LOAN AND LOAN DOCUMENTS

3.1. Agreement to Borrow and Lend. Borrower agrees to borrow from Lender, and Lender agrees to lend to Borrower such amount as shall be requested by Borrower, but in no event exceeding the stated Loan Amount, on the terms and subject to the conditions of this Agreement. The Loan shall be evidenced by the Note.

3.2. Loan Documents. Borrower agrees to execute and deliver to Lender, on or prior to the Loan Closing Date, the following documents, all of which must be satisfactory to Lender and Lender’s counsel in form, substance and execution and all of which are executed on or about the date hereof:

(a) The Note.

(b) The Mortgage.

(c) The Assignment of Leases and Rents.

(d) Uniform Commercial Code (“UCC”) financing statements; Borrower hereby authorizes Lender to file UCC financing statements naming Borrower as debtor with respect to the Mortgage and the collateral described in the Mortgage and other Loan Documents and which financing statements are prior to all other such financing statements and valid as such against all creditors of Borrower.

(e) The Environmental Indemnity Agreement.

(f) The Guaranty of Payment.

(g) If required by Lender, an assignment to Lender of all rights of Borrower in any contract for management of the Property or any portion thereof, together with assignments of such maintenance and service contracts entered into in connection with the operation of the Property as Lender may require, and which assignment is prior to all other such assignments and valid as such against all creditors of Borrower.

(h) To the extent required by Lender, consents to the foregoing assignments by: (i) the other parties to the leases, licenses, contracts and agreements being assigned; and (ii) any guarantors of the performance of the obligations of such other parties under such leases, licenses, contracts and agreements, together with the confirmation by such other parties and guarantors that they will continue to perform and guaranty performance of such leases, licenses, contracts and agreements, as the case may be, after enforcement of and realization on such assignment by Lender.

(i) Such other papers and documents as may be required by this Agreement or as Lender may reasonably require.

3.3. Extension Option.

(a) As long as no Event of Default has occurred and is continuing hereunder, Borrower shall have the option (the “Extension Option”) to extend the Initial Maturity Date for an additional thirty six (36) months to the Extended Maturity Date upon satisfaction of the following:

SECTION 4

AFFIRMATIVE COVENANTS

From the date of execution of this Agreement until the Loan has been paid in full the Borrower agrees as follows:

4.1. Books and Records. Borrower shall maintain books and records for the Property and give representatives of the Lender access thereto at all reasonable times, including permission to examine, copy and make abstracts from any of such books and records and such other information as the Lender may from time to time reasonably request, and the Borrower will make available to the Lender for examination copies of any reports, statements and returns which the Borrower may make to or file with any federal, state or local governmental department, bureau or agency.

4.2. Financial Statement, Rent Roll and Tax Return Reporting: Borrower and each Guarantor shall furnish to the Lender whatever information, books and records the Lender may reasonably request, including at a minimum:

(a) Within sixty (60) days after and as of the end of each calendar quarter and within one-hundred twenty (120) days of each December 31 (beginning with the fiscal year ending December 31, 2022), detailed operating statements for Borrower and a rent roll, in form and substance reasonably acceptable to Lender, prepared by an authorized agent of Borrower.

(b) Prior to Stabilization, as soon as available, but in any event within thirty (30) days of the end of each month, beginning with the month end October 30, 2022, monthly leasing reports in substance and detail reasonably acceptable to Lender.

(c) As soon as available, but in any event within one hundred twenty (120) days after the end of each calendar year (beginning with the calendar year ending December 31, 2022), the signed personal financial statements and a list of contingent liabilities of Guarantor for the calendar year then ended.

(d) As soon as available, but in any event within one hundred twenty (120) days after the end of each calendar year (beginning with the calendar year ending December 31, 2022), and within 60 days of each June 30 (beginning June 30, 2023), Guarantor shall provide copies of bank and/or broker statements to support the liquid assets reported on his personal financial statement, provided, however, that upon Stabilization this requirement shall reduce to annual statements.

(e) As soon as available, but in any event within one hundred twenty (120) days after the end of each calendar year (beginning with the calendar year ending December 31, 2021), each Guarantor shall provide a detailed global cash flow statement.

(f) Within thirty (30) days after filing but in no event later than May 15th of each year, a copy of Borrower’s federal income tax return, including all schedules and K-1 statements thereto. If Borrower files an extension, then a copy of the extension shall be provided to Lender no later than May 15^th, with a copy of the filed return provided to Lender no later than November 15^th.

(g) Within thirty (30) days after filing but in no event later than May 15th of each year, a copy of Guarantor’s federal income tax return, including all schedules and K-1 statements thereto. If Guarantor files an extension, then a copy of the extension shall be provided to Lender no later than May 15^th, with a copy of the filed return provided to Lender within thirty (30) days after filing but not later than November 15th.

(h) Immediately after an officer of Borrower obtains written notice of: (i) any litigation materially affecting or relating to the Project, (ii) any dispute between Borrower and any municipal or other Governmental Authority relating to the Project, the adverse determination of which might materially affect the Project, (iii) any threat or commencement of proceedings in condemnation or eminent domain relating to the Project, and (iv) any fact or circumstance that may render the Budget inaccurate in a material manner, a notice so stating.

(i) At the request of Lender, such other information as Lender may from time to time reasonably require.

If Borrower has Subsidiaries, all financial statements required will be provided on a separate and consolidated basis.

4.3. Maintenance of Existence, Operation and Assets. Borrower shall do all things necessary to: (a) maintain, renew and keep in full force and effect its organizational existence and all rights, permits and franchises necessary to enable it to continue its business as currently conducted; (b) continue in operation in substantially the same manner as at present; (c) keep its properties in good operating condition and repair; and (d) make all necessary and proper repairs, renewals, replacements, additions and improvements thereto.

4.4. Insurance and Payment of Taxes and Escrows.

(a) Insurance. At all times during the term of the Loan, Borrower shall: (i) cause insurance policies to be maintained in compliance with Lender’s insurance requirements as modified and amended from time to time; and (ii) provide originals or copies of the same to Lender, as required by Lender. Borrower shall timely pay all premiums on all insurance policies required hereunder, and as and when any policies of insurance may expire, furnish to Lender, evidence of payment of premiums prior to such expiration, and maintain insurance policies with companies, coverage and in amounts satisfactory to Lender.

(b) Payment of Taxes. Borrower shall pay all real estate taxes and assessments and charges of every kind upon the Property before the same become delinquent, provided, however, that Borrower shall have the right to pay such tax under protest or to otherwise contest any such tax or assessment, but only if: (i) such contest has the effect of preventing the collection of such taxes so contested and also of preventing the sale or forfeiture of the Property or any part thereof or any interest therein, (ii) Borrower has notified Lender in writing of Borrower’s intent to contest such taxes, and (iii) Borrower has deposited with Lender security in form and amount satisfactory to Lender, in its sole discretion, and has increased the amount of such security so deposited promptly after Lender’s request therefor. If Borrower fails to commence such contest or, having commenced to contest the same, and having deposited such security required by Lender for its full amount, shall thereafter fail to prosecute such contest in good faith or with due diligence, or, upon adverse conclusion of any such contest, shall fail to pay such tax, assessment or charge, Lender may, at its election (but shall not be required to), pay and discharge any such tax, assessment or charge, and any interest or penalty thereon, and any amounts so expended by Lender shall be deemed to constitute Loan proceeds hereunder (even if the total amount disbursed would exceed the Loan Amount). Borrower shall furnish to Lender evidence that taxes are paid at least five (5) days prior to the last date for payment of such taxes and before imposition of any penalty or accrual of interest. Notwithstanding the foregoing, Borrower may not enter into any payment plan with the appropriate real estate taxing authority without the prior written consent of Lender.

(c) Escrow Accounts.

4.5. Compliance with Laws. Borrower shall comply with all laws applicable to the Borrower and to the operation of its business (including without limitation any statute, ordinance, rule or regulation relating to employment practices, pension benefits or environmental, occupational and health standards and controls).

4.6. Bank Accounts. Borrower shall establish and maintain all operating deposit accounts with Lender.

4.7. Financial Covenants. Borrower shall comply with all of the financial and other covenants contained in this Agreement and the other Loan Documents.

4.8. Additional Reports. Borrower shall within five (5) Business Days of its written notice of the same, provide written notice to the Lender of the occurrence of any of the following (together with a description of the action which the Borrower proposes to take with respect thereto): (a) any Event of Default or any event, act or condition which, with the passage of time or the giving of notice, or both, would constitute an Event of Default, (b) any litigation filed by or against the Borrower, (c) any Reportable Event or Prohibited Transaction with respect to any Employee Benefit Plan(s) (as defined in ERISA) or (d) any event which might result in a Material Adverse Change in the business, assets, operations, condition (financial or otherwise) or results of operation of the Borrower.

4.9. Loan to Value Ratio; Appraisal. At all times during the term of the Loan, the Loan to value ratio shall be no more than sixty five percent (65%) based upon a current Appraisal of the Property, which Appraisal shall be paid for by Borrower. Notwithstanding the foregoing, if the RSI Lease (once executed and delivered to Lender) are inconsistent with the economic terms used by Lender in underwriting the Loan or used by the appraiser in preparing the Appraisal delivered to Lender pursuant to Section 6.1(m), or if negotiations for the RSI Lease are ultimately unsuccessful and the RSI Lease is not consummated, then Lender shall order (at Borrower’s sole cost) a new Appraisal accurately reflecting the final terms of the RSI Lease. In the event that the Loan to value ratio of the new Appraisal is higher than the Lender’s then-current underwriting requirements for loan transactions of this type, Lender, in its sole discretion, may limit the amount of Loan proceeds available to be disbursed hereunder in such amount as Lender, in its sole discretion, calculates to be necessary to comply with the Lender’s underwriting guidelines.

4.10. Furnishing Reports. Borrower shall provide Lender with copies of all inspections, reports, test results and other information received by Borrower from time to time from its employees, agents, representatives, architects, engineers, any contractors and any other parties involved in the operation of the Property, which in any material way relate to the Property or any part thereof.

4.11. Lost Note. Borrower shall, if the Note is mutilated, destroyed, lost or stolen, deliver to Lender, in substitution therefor, a new promissory note containing the same terms and conditions as the Note with a notation thereon of the unpaid principal accrued and unpaid interest.

4.12. Hazardous Materials. Borrower shall comply with any and all Laws, regulations or orders with respect to the discharge and removal of Hazardous Materials, shall pay immediately when due the costs of removal of any such Hazardous Materials, and shall keep the Property free of any lien imposed pursuant to Environmental Laws, regulations or orders. In the event Borrower fails to do so, after notice to Borrower and the expiration of the earlier of: (i) applicable cure periods hereunder; or (ii) the cure period permitted under applicable Law, regulation or order, Lender may declare an Event of Default and/or cause the remediation of the Hazardous Materials with the cost of the remediation added to the indebtedness evidenced by the Note and secured by the Mortgage (regardless of whether such indebtedness then increases the outstanding balance of the Note to an amount in excess of the face amount thereof). Borrower further agrees that Borrower shall not release or dispose of any Hazardous Materials at the Property without the express prior approval of Lender and any such release or disposal will be in compliance with all applicable Laws and regulations and conditions, if any, established by Lender, including, without limitation, those set forth in the Mortgage. Lender shall have the right at any time to conduct an environmental audit of the Property for reasonable cause, at Borrower’s sole cost and expense, and Borrower shall cooperate in the conduct of such environmental audit. Borrower shall give Lender and its agents and its employees access to the Property to inspect and test the Property and to remove Hazardous Materials. Borrower hereby indemnifies Lender and agrees to defend Lender and hold Lender harmless from and against all claims, injuries, losses, costs, damages, liabilities and expenses (including attorneys’ fees and consequential damages) by reason of any claim in connection with any Hazardous Materials which were present at the Property during or prior to Borrower’s ownership of the Property. The foregoing indemnification shall be included within the indemnity agreement referred to in Section 3.2(e) hereof, and shall survive repayment of the Note.

4.13. Lender’s Attorneys’ Fees. Borrower agrees to pay Lender’s attorneys’ fees and disbursements incurred in connection with the Loan, including: (i) the preparation of this Agreement, the other Loan Documents, any intercreditor agreements, and the preparation of the closing binders; and (ii) the disbursement, syndication and administration of the Loan, if applicable. Further, if at any time or times hereafter (whether or not a Default has occurred) Lender employs counsel for advice or other representation with respect to any matter concerning Borrower, this Agreement, the Land, or the Loan Documents, or to protect, collect, lease, sell, take possession of or liquidate all or any portion of the Land, or to attempt to enforce or protect any security interest or lien or other right in any of the premises or under any of the Loan Documents, or to enforce any rights of the Lender or obligations of Borrower or any other person, firm or corporation which may be obligated to Lender by virtue of this Agreement or under any of the Loan Documents or any other agreement, instrument or document, heretofore or hereafter delivered to Lender in furtherance hereof, then in any such event, all of the reasonable attorneys’ fees arising from such services, and any expenses, costs and charges relating thereto, shall constitute an additional indebtedness owing by Borrower to Lender payable on demand, and secured by the Mortgage and other Loan Documents.

4.14. Costs and Expenses. Borrower agrees to pay all costs, expenses (including reasonable attorneys' fees), and disbursements incurred by Lender on Borrower’s behalf: (a) in all efforts made to enforce payment of the Loan or effect collection of any Collateral; (b) in connection with entering into, modifying, amending, and enforcing this Agreement or any consents or waivers hereunder and all related agreements, documents and instruments; (c) in maintaining, storing, or preserving any Collateral, or in instituting, enforcing and foreclosing on Lender’s security interest in any Collateral or possession of any premises containing any Collateral, whether through judicial proceedings or otherwise, (d) in defending or prosecuting any actions or proceedings arising out of or relating to Lender’s transactions with Borrower; or (e) in connection with any advice given to Lender with respect to its rights and obligations under this Agreement and all related agreements. Expenses being reimbursed by Borrower under this section include costs and expenses incurred in connection with: (s) appraisals and insurance reviews; (t) environmental examinations and reports; (u) field examinations and the preparation of reports based thereon; (v) the fees charged by a third party retained by Lender or the internally allocated fees for each Person employed by Lender with respect to each field examination; (w) background checks regarding senior management and/or key investors, as deemed necessary or appropriate in the sole discretion of Lender; (x) taxes, fees and other charges for: (i) lien and title searches and title insurance, and (ii) the recording of any mortgages, filing of any financing statements and continuations, and other actions to perfect, protect, and continue Lender’s security interests; (y) sums paid or incurred to take any action required of Borrower under the Loan Documents that Borrower fails to pay or take; and (z) forwarding loan proceeds, collecting checks and other items of payment, and costs and expenses of preserving and protecting the Collateral.

4.15. Reserved.

4.16. ERISA. – Borrower shall not create, maintain or become obligated to contribute to any Plan or Multiemployer Plan, as such terms are defined in Sections 3(2), 3(37) and 4001(a)(3) of ERISA without Lender’s prior written consent, which consent shall not be unreasonably withheld.

4.17. Hedging Contracts.

(a) Except as authorized by Lender, Borrower is not currently a party to, nor will it be a party to any Hedging Contract unless such contract provides that damages upon termination following an event of default thereunder are payable on a “two-way basis” without regard to fault on the part of either party. Lender hereby authorizes Borrower to, and on or before the Loan Closing Date Borrower shall, enter into one or more Hedging Contracts in form and substance (including, without limitation, the level thereof) reasonably acceptable to Lender, protecting against fluctuations in interest rates, in an amount equal to the face amount of the Note, and the terms thereof will otherwise match the terms of Loan, specifically reset dates, payment dates and accrual periods, unless otherwise agreed under the Hedging Contracts.

(b) The principal purpose of any such Hedging Contracts shall be to provide Borrower with protection from fluctuations and other changes in interest rates and not for speculative purposes. With respect to each Hedging Contract, from time to time upon Lender’s request, Borrower shall provide Lender with true, accurate and complete copies of: (i) such Hedging Contract, including any schedules, exhibits, confirmations, credit support documents or other documents executed pursuant to or in connection with such Hedging Contract, all as amended, restated or otherwise modified from time to time, and (ii) such other information, valuations, statements, reports and documents regarding such Hedging Contract as Lender may reasonably request.

(c) Borrower agrees to pay all break funding costs associated with prepayment under any ISDA Master Agreement entered into in connection with the Hedging Contracts in connection with the termination of such ISDA Master Agreement.

4.18. Debt Service Coverage Ratio. Beginning with the first semi-annual date (December 31 or June 30) following the exercise of the Extension Option, Borrower shall maintain a Debt Service Coverage Ratio of not less than 1.30:1.00.

4.19. Equity Contribution. Borrower has made an initial equity contribution of not less than $21,324,196.00 to the Project as of the date hereof (the “Equity Contribution”).

4.20. Commodity Exchange Act Keepwell Provisions. The Borrower hereby guarantees the payment and performance of all Indebtedness of each Guarantor and absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Guarantor in order for such Guarantor to honor its obligations under the Guaranty including obligations with respect to Hedging Contracts (provided, however, that the Borrower shall only be liable under this Section 4.20 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 4.20, or otherwise under this Agreement or any Loan Document, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of the Borrower under this Section 4.20 shall remain in full force and effect until all Indebtedness is paid in full to the Lender. The Borrower intends that this Section 4.20 constitute, and this Section 4.20 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

4.21. Beneficial Ownership Certificate and Other Additional Information. Borrower shall promptly provide information and documentation reasonably requested by Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, if applicable.

4.22 Compliance with Anti-Corruption Laws and Sanctions. Borrower shall conduct its businesses in compliance with all Anti-Corruption Laws and applicable Sanctions and maintain policies and procedures designed to promote and achieve compliance with all Anti-Corruption Laws and applicable Sanctions.

SECTION 5

NEGATIVE COVENANTS

The Borrower covenants and agrees that from the date of this Agreement until the Loan has been paid in full, the Borrower shall not:

5.1. Indebtedness, Liens and Encumbrances by Borrower. Create, effect, consent to, attempt, contract for, agree to make, suffer or permit any additional indebtedness, encumbrances or liens other than (a) the Loan, (b) the Ground Lease, and (c) the Permitted Exceptions.

5.2. Mechanics’ Liens. Suffer or permit any mechanics’ lien claims to be filed or otherwise asserted against the Property or any funds due any contractor, and will, within 60 days of written notice from Lender, bond or discharge the same if any claims for lien or any proceedings for the enforcement thereof are filed or commenced; provided, however, that Borrower shall have the right to contest in good faith and with due diligence the validity of any such lien or claim upon furnishing to the Title Agent such security or indemnity as it may require to induce the Title Agent to issue its Title Policy or an endorsement thereto insuring against all such claims, liens or proceedings; and provided further, that Lender will not be required to make any further disbursements, if applicable, unless Borrower shall have provided Lender with such other security with respect to such claim as may be acceptable to Lender, in its sole discretion. In the event Borrower elects to bond any mechanic’s lien claim, such bond shall be in an amount equal to at least one hundred fifty percent (150%) of such claim or such amount as shall be required by statute.

5.3. Settlement of Mechanics’ Lien Claims. If Borrower shall fail promptly to bond or discharge any mechanics’ lien claim filed or otherwise asserted or to contest any such claims and give security or indemnity in the manner provided in Section 5.2 above, or, having commenced to contest the same, and having given such security or indemnity, shall thereafter fail to prosecute such contest in good faith or with due diligence, or fail to maintain such indemnity or security so required by the Title Agent for its full amount, or, upon adverse conclusion of any such contest, shall fail to cause any judgment or decree to be satisfied and lien to be released, then, and in any such event, Lender may at its election (but shall not be required to), (i) procure the release and discharge of any such claim and any judgment or decree thereon, without inquiring into or investigating the amount, validity or enforceability of such lien or claim and (ii) effect any settlement or compromise of the same, or may furnish such security or indemnity to the Title Agent, and any amounts so expended by Lender, including premiums paid or security furnished in connection with the issuance of any surety company bonds, shall be deemed to constitute disbursements of the Loan Proceeds hereunder (even if the total amount of disbursements would exceed the face amount of the Note).

5.4. Guarantees. Guarantee, endorse or become contingently liable for the obligations of any person, firm, corporation or other entity, except in connection with the endorsement and deposit of checks in the ordinary course of business for collection.

5.5. Loans or Advances. Purchase or hold beneficially any stock, other securities or evidences of indebtedness of, or make or have outstanding, any loans or advances to, or otherwise extend credit to, or make any investment or acquire any interest whatsoever in, any other person, firm, corporation or other entity, except investments disclosed on the Borrower’s financial statements or acceptable to the Lender in its sole discretion.

5.6. Division, Merger, or Transfer of Assets. Divide, liquidate or dissolve; or merge (including, but not limited to, through a plan of division) or consolidate with or into any person, firm, corporation or other entity; or sell, lease, transfer or otherwise dispose of (including, but not limited to, through a plan of divisive merger) all or any substantial part of its property, assets, operations or business, whether now owned or hereafter acquired, except in the case of merger or consolidation with a parent, Subsidiary or Affiliate.

5.7. Change in Business, Management or Ownership. Permit or suffer a material amendment or modification of its organizational documents. Furthermore: (a) Current owners of Borrower shall maintain 51% of the outstanding voting equity interests of Borrower on a fully diluted basis, free and clear of all liens (other than in favor of Lender); (b) Borrower shall maintain a majority of the directors or managers who constitute the board of directors or the managing body of Borrower on the date hereof, unless replacement of any exiting board or managing body member (other than owing to death or disability) shall have been approved by such board of directors or managing body as constituted on the date hereof.

5.8. Dividends. Except as otherwise provided herein, declare or pay any dividends on or make any distribution with respect to any class of its equity or ownership interest, or purchase, redeem, retire or otherwise acquire any of its equity.

5.9. Acquisitions. Make acquisitions of all or substantially all of the property or assets of any person, firm, corporation or other entity.

5.10. Management Agents’ and Brokers’ Contracts. Enter into, modify, or amend any management contracts for the Property or agreements with agents or brokers, without the prior written approval of Lender which approval shall not unreasonably be withheld. All such contracts shall be subordinate to the Loan and the Loan Documents.

5.11. Single Purpose Entity. Borrower has not since the date of its formation and shall not:

(a) engage in any business or activity other than the acquisition, ownership, operation and maintenance of the Property, and activities incidental thereto;

(b) acquire or own any material asset other than: (i) the Property, and (ii) such incidental personal property as may be necessary for the operation of the Property;

(c) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender;

(d) own any Subsidiary or make any investment in or acquire the obligations or securities of any other Person without the consent of Lender;

(e) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in the Borrower permitted hereunder and properly accounted for;

(f) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the Affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Property is actually owned by the Borrower;

(g) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower or any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereof;

(h) fail to correct any known misunderstandings regarding the separate identity of Borrower;

(i) fail to file its own tax returns (unless Borrower is not legally required to file its own tax returns) or to use separate contracts, purchase orders, stationery, invoices and checks;

(j) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the debts of any third party (including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);

(k) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;

(l) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(m) file a voluntary petition or otherwise initiate proceedings to have the Borrower or any general partner, manager or managing member of Borrower adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of the Borrower or any general partner, manager or managing member of Borrower as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to the Borrower or any general partner, manager or managing member of Borrower; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of the Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of the Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of the Borrower or any general partner, manager or managing member of Borrower , or admit in writing the inability of the Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on the Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;

(n) share any common logo with or hold itself out as or be considered as a department or division of (i) any shareholder, partner, principal, member or Affiliate of Borrower, (ii) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (iii) any other Person or allow any Person to identify the Borrower as a department or division of that Person, except that Borrower may permissibly use the common logo and other marks for the Hall of Fame Village; or

(o) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of the Borrower or the creditors of any other Person.

5.12. Transactions with Blocked Persons. Borrower has not and shall not, at any time, directly or indirectly, whether through itself, its Affiliates or agents: (a) engage in any transaction with any Blocked Person; (b) engage in any transaction that violates federal or state sanctions laws, such as those issued by the Office of Foreign Asset Control; (c) engage in or conspire to engage in any transaction that evades or avoids any of the prohibitions set forth in any Subsections 5.12(a) or (b), above; or (d) fail to provide to Lender any information requested from time to time by Lender in its sole discretion, confirming the compliance of Borrower with this section.

5.13. Capital Expenditures. Borrower shall not make or contract to make capital expenditures in any fiscal year in excess of $200,000 in the aggregate; provided, however, that Borrower may make or incur Capital Expenditures so long as no Event of Default has occurred and is continuing, and the making or incurrence of such Capital Expenditure(s) shall not be reasonably calculated to cause an Event of Default.

5.14. Fiscal Year/Accounting Treatment. Borrower shall not change its fiscal year for accounting or tax purposes from a period consisting of the twelve (12) month and shall not make any change in accounting treatment and reporting practices or tax reporting treatment except as required by GAAP or law and disclosed in writing to Lender at the address set forth in Section 10.9, below.

5.15. Prepayment of Additional Indebtedness. Borrower shall not, without the prior written consent of Lender: (a) prepay, redeem, defease, purchase, or otherwise acquire any of its indebtedness (other than the Loan to Lender in accordance with this Agreement); or (b) directly or indirectly materially amend, modify, alter, increase, or change any of the terms or conditions of any agreement, instrument, document, indenture, or other writing evidencing or concerning any of Borrower’s indebtedness permitted under this Agreement.

5.16. Creation of Subsidiaries or Affiliates. Borrower shall not, without the prior written consent of Lender: (a) create, acquire or permit to exist any Subsidiaries other than those existing on the Loan Closing Date; or (b) create, acquire or permit to exist any Affiliates other than those existing on the Loan Closing Date. Notwithstanding the foregoing, the organization or existence of Affiliates organized or incorporated by Hall of Fame Resort and Entertainment Co. shall not be deemed a violation of this Section 5.16.

5.17. Use of Proceeds. Borrower shall not:

(a) Use the proceeds of the Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) for any purpose other than, on and after the Loan Closing Date in accordance with the terms of this Agreement, to fund tenant improvements (or reimbursement to Borrower of the costs thereof) in connection with the Property (except that, no Loan Proceeds shall be used in connection with the costs incurred for the RSI Lease), or (z) on the Loan Closing Date, to pay fees and expenses in connection therewith, or (ii) to purchase or carry “margin stock” (within the meaning of Regulation U of the Federal Reserve Board) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

(b) Use the proceeds of the Loan, whether directly or indirectly, or lend, contribute or otherwise make available such proceeds to any Subsidiary, Affiliate, joint venture partner or other Person, (i) in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

SECTION 6

CONDITIONS TO LOAN CLOSING; CONDITIONS TO LOAN FUNDINGS; POST-CLOSING ACTIONS

6.1. Conditions To Loan Closing. Lender shall have been satisfied that there is no Default or Event of Default under this Agreement or the other Loan Documents, and there is no litigation (existing, pending or threatened) which could cause a Material Adverse Change in the Borrower, Guarantor or the Property. The Loan Closing Date shall occur at such time as all of the conditions and requirements of this Agreement required to be performed by Borrower or other parties have been satisfied or performed. Borrower shall furnish the following to Lender at least ten (10) Business Days prior to the Loan Closing Date or at such time as is set forth below, all of which must be strictly satisfactory to Lender and Lender’s counsel in their sole discretion, in form, content and execution:

(a) Title Policy. The Title Commitment for issuance of the Title Policy.

(b) Survey. The Survey.

(c) Insurance Policies. Evidence of insurance in compliance with Lender’s insurance requirements, as modified and amended from time to time, satisfactory to Lender, as determined in its sole discretion.

(d) Compliance with Laws. Evidence satisfactory to Lender that the Property is in compliance with all governmental, zoning and building Laws, and ordinances and regulations (including, without limitation, requirements for parking and operation of the Property), and that any approvals thereof required from third parties or any Governmental Authorities have been obtained. Such evidence shall include, to the extent applicable, certificates of occupancy, copies of all letters of or grants or approvals of all zoning changes, all variances of zoning regulations affecting the height, bulk, location or configuration of the Improvements (or evidence satisfactory to Lender that the same are not required), all vacations of plats or of streets, alleys or other public rights-of-way, all approvals or variances relating to parking or loading areas (both on street and off street), approval of the height, design and lighting of the Property as affecting navigable airspace by the FAA and any similar approval required from any state agency.

(e) Financial Statements. Current financial statements for Borrower and Guarantor in form and substance acceptable to Lender.

(f) Management Agreement. A copy of the management agreement with the Management Company, if any, which agreement shall be assigned by Borrower to Lender and which assignment shall be consented to by the Management Company.

(g) Environmental Assessment; Wetlands; Flood Plain Determination. Evidence, including an environment assessment, indicating that the Land, and the Improvements, in Lender’s sole judgment, (i) contain no Hazardous Materials and no other contamination which, even if not so regulated, is known to pose a hazard to the health of any Person on or about the Land, (ii) is not located in a “Wetlands” (as defined in 33 C.F.R. Section 328.3 or in any comparable state or local Law, statute, ordinances, rule or regulation) or “Flood Plain”( as defined under the Flood Disaster Protection Act of 1973, as amended from time to time), and (iii) contains no underground storage tanks. Lender reserves the right, at Borrower’s expense, to retain an independent consultant to review any such evidence submitted by Borrower or to conduct its own investigation of the Land. If the Land lies within an area in which flood insurance is required to be maintained under the Flood Disaster Protection Act of 1973, as amended from time to time, Borrower shall provide flood insurance acceptable to Lender, as determined in its sole discretion, at a limit equal to the full value of the building

(h) Payment of Loan Origination Fee. Payment to Lender of the Loan Fee.

(i) Documents of Record. Borrower shall provide to Lender copies of all covenants, conditions, restrictions, easements and matters of record which affect the Land.

(j) Borrower’s and Guarantor’s Attorney’s Opinion. The opinion of Borrower’s and Guarantor’s legal counsel that with respect to the Borrower, Guarantor, the Land, and the Property: (i) there is no existing, threatened or pending litigation that might affect the Loan, the Land, the Property, Guarantor or the Borrower; (ii) the transactions contemplated by this Agreement do not violate any provision of any Law, restriction or other document affecting the Borrower, Guarantor, the Land, or the Property; (iii) the Loan Documents have been duly executed and delivered, constitute legal, valid and binding obligations of the Borrower and Guarantor, as applicable, and are enforceable in accordance with their terms; (iv) Borrower is a validly organized and existing under the Laws of the State of its formation and qualified to do business in the State where the Property is located, that Borrower has the legal capacity to own, develop and operate the Land and the Property, and has the legal capacity to perform its obligations under the Loan Documents, and that the Loan has been duly authorized by the Borrower; (v) the individuals executing the Loan Documents (and Guaranty) are properly authorized to do so on behalf of Borrower (and Guarantor), and its respective action with respect to the Loan has been duly authorized; and (vi) such other matters concerning the Loan, the Loan Documents, and the Land, the Property, and the Borrower, as the Lender or its counsel may require.

(k) Organizational Documents.

(l) KYC Information. Borrower shall have delivered to Lender, prior to the Loan Closing Date, such reasonable documentation (including, if applicable, a Beneficial Ownership Certification) and other information requested for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.

(m) Appraisal. Lender shall have obtained (at Borrower’s cost) an Appraisal of the Property demonstrating a Loan-to-as Stabilized value ratio of 50% or lower based on the aggregate maximum Loan Amount which Appraisal shall be satisfactory to Lender, as determined in its sole discretion.

(n) UCC, Tax and Judgment Searches: Lender shall have received UCC, tax and judgment lien searches on the Borrower and Guarantor.

(o) Estoppels: Borrower shall have delivered to Lender tenant estoppel certificates from any future tenant leasing 6,000 or more square feet and from Build a Bear, Visit Canton, Smoosh Cookies, and Brew Kettle.

(p) SNDAs: Borrower shall have furnished to Lender subordination, non-disturbance and attornment agreements from any future tenant leasing 6,000 or more square feet and from Build a Bear, Visit Canton, Smoosh Cookies, and Brew Kettle.

(q) Rent Roll: Borrower shall have provided Lender with a certified rent roll for the Property.

(r) Leases. Borrower shall have provided Lender with copies of all executed Leases for the Property.

(s) Additional Documents. Borrower shall have provided Lender such other papers and documents regarding Borrower, Guarantor, the Land or the Property as Lender may require.

(t) No Default. There is no Default or Event of Default under this Agreement or the other Loan Documents.

(u) Utilities; Licenses; Permits: Evidence satisfactory to Lender that (1) all services and utilities such as water, gas, electricity and storm and sanitary sewers required for the occupancy and operation of the Property are available for use at the Property; (2) that the storm and sanitary sewage disposal system, and all mechanical systems serving the Property do comply with all applicable environmental, pollution control and ecological Laws, ordinances, rules and regulations or if no storm sewer is available on the Property, Borrower shall furnish evidence that proper disposal of rain water is assured; and (3) that all utility, parking, access (including curb cuts and highway access), recreational and other easements and permits required or, in the Lender’s judgment, necessary for use of the Property have been granted or issued and are in good standing and unencumbered.

(v) Documents of Record. Borrower shall provide to Lender copies of all covenants, conditions, restrictions, easements and matters of record which affect the Property.

(w) Equity. Borrower shall have delivered to Lender evidence that it has contributed the Equity Contribution.

Notwithstanding the foregoing or anything to the contrary contained herein or in any other Loan Document, to the extent that Lender may have acquiesced in noncompliance with any requirements precedent to the Loan Closing Date, or precedent to any subsequent Disbursement of Loan Proceeds, such acquiescence shall not constitute a waiver by Lender, and Lender may at any time after such acquiescence require Borrower to comply with all such requirements prior to any additional Disbursement.

6.2. Conditions to Funding Loan Proceeds; Draw Procedure and Use of Loan Proceeds.

(a) Loan Proceeds. No Loan Proceeds shall be disbursed as of the date hereof. Unless Lender otherwise consents in writing, Loan Proceeds shall be used solely to contribute to the costs of tenant build outs in the Project. Notwithstanding anything to the contrary contained herein, the amount of Loan Proceeds available to be disbursed shall not exceed an amount equal to 50% of the Loan to Stabilized value. Borrower may qualify for Loan Proceeds in tranches, subject to the draw procedures set forth in subsection 6.2(b) below, as follows: As long as (i) no Event of Default has occurred and is continuing hereunder, (ii) the Equity Contribution has been contributed to the Project, and (iii) all of the Twain Proceeds have been distributed to Borrower, then:

(X) Upon the Project achieving a Debt Service Coverage Ratio (Tranche Funding) of no less than 1.15:1.00 Borrower shall have the right to request up to $4,000,000.00 in Loan Proceeds. As used herein:

(1) “Debt Service Coverage Ratio (Tranche Funding)” shall mean the ratio of NOI (Tranche Funding) to Debt Service.

(2) “NOI (Tranche Funding)” Means, for any period measured, the difference between: (a) income and reimbursements from executed Leases (that are not then-in default), but excluding items the Lender reasonably determines are non-recurring in nature; and (b) the operating expenses for the Property as reflected in the most-recent as-stabilized Appraisal (annualized, if tested quarterly or semi-annually), including rents under the Ground Lease, but excluding expenses for replacement reserves, and assuming: (i) a property management fee of 3%, and (ii) real estate tax expense of $313,000 (as adjusted by Lender, in its reasonable discretion).

(Y) Upon the Project achieving a Debt Service Coverage Ratio (Tranche Funding) of no less than 1.30:1.00 Borrower shall have the right to request additional Loan Proceeds of up to $6,000,000.00 for a total combined disbursement of no more than $10,000,000.00 in Loan Proceeds.

(b) Draw Procedure and Use of Loan Proceeds. All requests for Disbursements shall be submitted on the Lender’s form of “Borrower’s Certificate for Payment” in the form of Exhibit E attached hereto, along with a completed Soft and Hard Cost Requisition in the form of Exhibit G attached hereto, both signed by the Borrower stating, among other things, the amount of Loan Proceeds requested for each line item shown on the budget for the particular tenant build out, the amount previously disbursed for each such line item, and the remaining balance of Loan Proceeds (collectively a “Request for Disbursement”). Each Request for Disbursement shall be accompanied by: (a) the Borrower’s affidavit, certifying the amount of all outstanding balances due but unpaid for work in place for the Project, (b) invoices from the all contractors providing services and any other supporting documentation as required by the Title Agent in order to issue a down date endorsement, and (c) unconditional lien waivers from all contractors in the sum to be received by each such contractor, all to be in form and substance satisfactory to Lender and the Title Agent. Each Request for Disbursement must be received by the Lender on or before a date which is at least ten (10) days prior to the date upon which the requested Disbursement is to be made, excluding the date of receipt by the Lender; provided, however, that draw requests shall occur no more often than monthly. In addition to the above Borrower shall also provide the following for each Request for Disbursement:

6.3. Post-Closing Actions. Borrower has requested that Lender defer certain conditions precedent to the closing of the Loan, and Lender is willing to do so on the terms and subject to the conditions of the Post-Closing Exhibit F. In the event of any conflict between the closing conditions outlined in Section 6.1, above, and the Post-Closing Exhibit F, the terms of the Post-Closing Exhibit F shall control. Borrower and Lender may modify the Post-Closing Exhibit F, from time to time, by executing a supplement using the form included therewith.

SECTION 7

CASUALTIES AND CONDEMNATION

7.1. Notice. In case of the occurrence of any loss or damage to all or any portion of the Property resulting from fire, vandalism, malicious mischief or any other casualty or physical harm (a “Casualty”), or any exercise of the power of condemnation or eminent domain (a “Taking”), of the Property, or any part thereof, or any interest therein or right accruing thereto, Borrower shall promptly give to Lender written notice generally describing the nature and extent of such Casualty or Taking. So long as Borrower is not in Default, Borrower may adjust, settle and compromise any such insurance policy or any proposed condemnation award, but in any event, no final adjustment, compromise or settlement of any insurance claim or condemnation award shall be entered into without the prior written approval of Lender as to such settlement, adjustment or compromise thereof, and Borrower shall deposit with Lender all proceeds from any insurance policies (“Proceeds”) and all awards from any Taking (“Awards”). Lender may appear in any such proceedings and negotiations and Borrower shall promptly deliver to Lender copies of all notices and pleadings in any such proceedings. Borrower will in good faith, file and prosecute all claims necessary for any award or payment resulting from such damage, destruction or taking. Borrower shall reimburse Lender for all costs and expenses incurred by Lender in exercising its rights under this section and such costs shall constitute indebtedness secured by the Mortgage and other Loan Documents. Upon a Default, Borrower hereby authorizes Lender, at Lender’s option, to adjust, settle, compromise and collect any Proceeds under any insurance with respect to the Property which is kept, or caused to be kept, by Borrower, and any Awards pursuant to any Taking, and hereby irrevocably appoints Lender as its attorney in fact, coupled with an interest, for such purposes.

7.2. Application of Insurance Proceeds and Condemnation Awards.

(a) Upon a Casualty (as defined in Section 7.1 above), or a Taking (as defined in Section 7.1 above), Lender may elect to apply as a Loan prepayment, all Proceeds of any insurance policies collected or claimed as a result of such Casualty and all Awards resulting from such Taking after deduction of all expenses of collection and settlement, including attorney’s and adjusters’ fees and charges. Any Proceeds or Awards remaining after payment in full of the Loan and all other sums due Lender hereunder shall be paid by Lender to Borrower without any allowance for interest thereon.

(b) Notwithstanding the provisions of Section 7.2(a) above, or anything to the contrary contained herein, as long as (i) no Event of Default has occurred and is continuing hereunder, (ii) the Proceeds or Awards, as the case may be, are sufficient to rebuild the Property or, if they are insufficient, as determined by Lender in its sole discretion, Borrower provides Lender with additional funds necessary, as determined in Lender’s sole discretion, to rebuild the Property (the “Additional Funds”), (iii) construction can be completed not less than three (3) months prior to the Initial Maturity Date or Extended Maturity Date, as the case may be, and (iv) after completion of the construction, the loan to value ratio of the Property is satisfactory to Lender, as determined in Lender’s sole discretion, then the Proceeds or Awards, as the case may be, may, at Borrower’s request, be applied towards reconstruction of the Property, which Proceeds or Awards or Additional Funds shall be deposited with Lender and disbursed pursuant the Lender’s disbursement provisions for construction loans of Lender, as those are amended from time to time, or as otherwise prescribed by Lender. To the extent Borrower deposits Additional Funds with Lender, Borrower hereby pledges to Lender as collateral for the Loan all Additional Funds.

(c) In the event Lender does not apply the Proceeds or Awards to prepayment of the Loan as provided for in Section 7.2(a) or Lender does not have the right to apply the Proceeds or Awards pursuant to Section 7.2(b) to prepayment of the Loan, or, in the event such Proceeds or Awards, if applied, do not fully discharge the Loan, Borrower will:

All Proceeds, Awards and Additional Funds deposited by Borrower hereunder shall first be fully disbursed before disbursement of any further Loan Proceeds. Borrower shall not be entitled to any payment of or credit for interest on such Proceeds, Awards and Additional Funds. In the event of deposit by Borrower of the full amount required to complete construction of the Property, as aforesaid, upon the subsequent receipt of Proceeds or Awards, such Proceeds or Awards, as and when received, may be collected and retained by Borrower.

(d) Lender shall not be obligated to see to the proper application of any of the Proceeds nor shall the amount so released or used be deemed a payment on any indebtedness evidenced by the Note or secured by any of the Loan Documents. In the event of foreclosure of the Mortgage or other transfer of title in lieu of foreclosure, all right, title and interest of Lender, in and to any insurance policies then in force shall pass to the purchaser or Lender, as the case may be.

(e) All proceeds of use and occupancy or rental value insurance shall be paid to Lender for the purposes of paying, in the following order: (i) insurance premiums payable with respect to any insurance required to be carried by Borrower hereunder; (ii) taxes, assessments and charges payable by Borrower under any of the Loan Documents; and (iii) all amounts payable on the Note, together with any and all other amounts evidenced or secured by any of the Loan Documents, and to the extent that such insurance proceeds are available to pay the items listed in clauses (i), (ii) and (iii), Lender shall pay such items for the account of Borrower. All such insurance proceeds not deemed necessary, in Lender’s sole opinion, to pay (or establish reserves for the payment of) the above items shall be paid over to Borrower.

(f) Upon failure on the part of Borrower promptly to commence or continue the repair or restoration of the Property after settlement of any claim with the insurer, Lender shall have the right to apply such Proceeds to the payment of any indebtedness secured by the Loan Documents, and resort to such other remedies available to Lender hereunder; provided, however, that nothing herein contained shall prevent Lender from applying at any time the whole or any part of such insurance Proceeds to the curing of any Event of Default hereunder.

SECTION 8
DEFAULTS BY BORROWER

The occurrence of any one or more of the following shall constitute an “Event of Default” hereunder, and any Event of Default which may occur hereunder shall constitute an Event of Default under each of the other Loan Documents:

(a) A failure by Borrower to make any payment on the Note when and as the same becomes due or within any applicable grace period or failure to pay any other amount when due under this Agreement, or any other Loan Document.

(b) The failure of Borrower to observe or perform any of the covenants (other than any payment on the Note or under this Agreement), contained in this Agreement or any of the other Loan Documents.

(c) The occurrence of a Prohibited Transfer.

(d) The existence of any collusion, fraud, dishonesty or bad faith by or with the acquiescence of Borrower, which in any way relates to or affects the Loan or the Property.

(e) If, at any time, any representation, statement, report or certificate made now or hereafter by Borrower or any Guarantor untrue or correct in any material way, or if at any time any material statement or representation made in the Loan application or any supporting materials submitted to Lender for this Loan is not true and correct.

(f) If all or a substantial part of the assets of Borrower or Guarantor are attached, seized, subjected to a writ or distress warrant, or are levied upon.

(g) If Borrower is enjoined or restrained or in any way prevented by court or administrative order from performing any of its obligations hereunder or under the other Loan Documents or conducting all or a substantial part of its business affairs.

(h) If Borrower or Guarantor:

(i) One or more final, unappealable judgments for the payment of money are entered: (i) against Borrower in amounts aggregating in excess of $50,000 or (ii) against any Guarantor in amounts aggregating in excess of $50,000.

(j) If Borrower or any Guarantor is in default under any agreement with Lender and such failure or default continues after any applicable grace period specified in the instrument or agreement relating thereto.

(k) The occurrence of any other event or circumstance denominated as an Event of Default herein or under any of the other Loan Documents and the expiration of any applicable grace or cure periods, if any, specified for such Event of Default herein or therein, as the case may be.

(l) The death or incapacity of Guarantor, and a replacement guarantor, satisfactory to Lender, as determined in Lender’s sole discretion, is not provided within ninety (90 ) days of such death or incapacity.

(m) Lender reasonably determines that a material adverse change has occurred with respect to: (i) Borrower’s financial condition, results of operations, business or prospects; (ii) Borrower’s ability to pay the Loan in accordance with the terms thereof; or (iii) the value of the Collateral, or the priority of Lender’s lien on any Collateral.

(n) Borrower fails to comply with or to perform any term, obligation, covenant or condition contained in or the occurrence or existence of any event of default, termination event or other similar event under or with respect to any Hedging Contract.

(o) Borrower fails to furnish the information in the form and substance required by Section 4.2, above, in the requisite time periods denoted therein.

(p) The failure of Guarantor to observe or perform any of the covenants contained in the Guaranty or any of the other Loan Documents that Guarantor is a party to and such failure is not cured within any applicable grace period.

(q) Any action at law, suit in equity, or other legal proceeding to amend, cancel, revoke or rescind any Loan Document shall be commenced by or on behalf of Borrower, or any other Person bound by any Loan Document, or by any court or any other governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree, or ruling to the effect that, any one or more of the material covenants, agreements, or obligations of Borrower under any one or more of the Loan Documents are illegal, invalid or unenforceable in accordance with the terms thereof.

(r) The failure at any time of the Mortgage to be a valid first lien upon the leasehold title to the Property or any portion thereof, other than as a result of any release or reconveyance of the Security Instrument with respect to all or any portion of the Property pursuant to the terms and conditions of this Agreement.

(s) Borrower fails to perform any of the Post-Closing Actions by the applicable deadline specified in the Post-Closing Exhibit F.

(t) The Ground Lease is terminated for any reason unless a new or replacement lease on the same terms is entered into between Borrower or Lender on the one hand and the owner of the fee simple estate for the Property on the other hand.

SECTION 9

LENDER’S REMEDIES UPON DEFAULT

9.1. Remedies Conferred Upon Lender. Upon the occurrence of any Event of Default, Lender, in addition to all remedies conferred upon Lender by Law and by the terms of the Note, the Mortgage and the other Loan Documents, may pursue any one or more of the following remedies concurrently or successively, it being the intent hereof that none of such remedies shall be to the exclusion of any others:

(a) Declare the Note to be due and payable forthwith, without presentment, demand, protest or other notice or action of any kind, all of which are hereby expressly waived.

(b) In addition to any rights of set off that Lender may have under applicable Law, Lender may, without notice of any kind to Borrower, appropriate and apply to the payment of the Note or of any sums due under this Agreement, any and all balances, deposits, credits, accounts, certificates of deposit, instruments or money of Borrower then or thereafter in the possession of Lender, or its Affiliates. Borrower hereby irrevocably authorizes and directs Lender from time to time to charge Borrower’s accounts and deposits with Lender (or its Affiliates), and to pay over to Lender an amount equal to any amounts from time to time due and payable to Lender hereunder, under the Note or under any other Loan Document. Borrower hereby grants to Lender a security interest in and to all such accounts and deposits maintained by the Borrower with Lender (or its Affiliates).

(c) Exercise or pursue any other remedy or cause of action permitted at Law or at equity or under this Agreement or any other Loan Document, including but not limited to foreclosure of the Mortgage and enforcement of all Loan Documents.

(d) Have the Property appraised, at Borrower’s cost.

(e) Cause an environmental assessment to be conducted on the Property, at Borrower’s cost.

9.2. Right of Lender to Make Advances to Cure Defaults. In the event that Borrower shall fail to perform any of its covenants or agreements herein or in any of the other Loan Documents contained, Lender may (but shall not be required to) perform any of such covenants and agreements, and any amounts so expended by Lender shall be deemed advanced by Lender under an obligation to do so regardless of the identity of the Person or Persons to whom said funds are disbursed. Loan Proceeds advanced by Lender in the exercise of its judgment that the same are needed to complete the Property, to protect its security for the Loan are obligatory advances hereunder and shall constitute additional indebtedness payable on demand which is evidenced and secured by the Loan Documents.

9.3. No Waiver. No failure by Lender to exercise, or delay by Lender in exercising, any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement and in the Loan Documents are cumulative and not exclusive of each other or of any right or remedy provided by law or equity. No notice to or demand on Borrower in any case shall, in itself entitle Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of Lender to any other or further action in any circumstances without notice or demand. Lender may from time to time in its discretion grant waivers or consents in respect of this Agreement or the other Loan Documents for Defaults, Events of Default or other provisions of this Agreement and/or the other Loan Documents, or may assent to amendments hereof or thereof, but no such waiver, consent, or amendment shall be binding upon Lender unless set forth in a writing (which writing shall be narrowly construed) signed by Lender. Furthermore, Lender may, in its sole discretion, accept a cure of any Default or Event of Default after the commencement of any Lender remedies, but any such acceptance shall not be binding upon Lender unless set forth in a writing (which writing shall be narrowly construed) signed by Lender. Without limiting the generality of the foregoing, neither Lender’s acceptance of one or more late payments or charges nor Lender’s acceptance of interest on overdue amounts at the respective rates applicable thereto shall constitute a waiver of any right of Lender.

9.4. Availability of Remedies. All of the remedies set forth herein, in the other Loan Documents and/or provided by Law or equity shall be equally available to Lender, and the choice by Lender of one (1) such alternative over another shall not be subject to question or challenge by Borrower or any other person, nor shall any such choice be asserted as a defense, set off, or failure to mitigate damages in any action, proceeding, or counteraction by Lender to recover or seeking any other remedy under this Agreement or any of the Loan Documents, nor shall such choice preclude Lender from subsequently electing to exercise a different remedy, except as otherwise provided by Law. The parties have agreed to the alternative remedies hereof specified in part because they recognize that the choice of remedies in the event of a failure hereunder will necessarily be and should properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by Lender at the lowest cost to Borrower. It is the intention of the parties that such choice by Lender be given conclusive effect regardless of such subsequent developments. At any sale of the security or collateral for the Loan or any part thereof whether by foreclosure or otherwise, Lender may in its discretion purchase all or any part of such collateral so sold or offered for sale for its own account and may apply against the balance due Lender pursuant to the terms of the Note the amount bid therefore.

SECTION 10
MISCELLANEOUS

10.1. Time Is of the Essence. Lender and Borrower agree that time is of the essence of all of Borrower’s covenants under this Agreement.

10.2. Prior Agreements. This Agreement and the other Loan Documents, and any other documents or instruments executed pursuant thereto or contemplated thereby, shall represent the entire, integrated agreement between the parties hereto with respect to the Loan and shall supersede all prior negotiations, representations, or term sheets or commitment letters, if any or agreements pertaining thereto, either oral or written. This Agreement and any provision hereof shall not be modified, amended, waived or discharged in any manner other than by a written amendment executed by all parties to this Agreement. An action on the part of the Lender waiving a specific provision or requirement herein contained, shall not be construed to be a waiver of future application of such provision or requirement or a waiver of any other provision or requirement hereunder.

10.3. Indemnification. To the fullest extent permitted by Law, Borrower hereby agrees to protect, indemnify, defend and save harmless, Lender and its directors, officers, agents and employees from and against any and all liability, expense or damage of any kind or nature and from any suits, claims, or demands, including legal fees and expenses, arising out of this Agreement or in connection herewith, except to the extent such suit, claim or damage is caused by the gross negligence or willful misconduct of Lender. This obligation on the part of Borrower shall survive the closing of the Loan, the repayment thereof and any cancellation of this Agreement.

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

10.5. Inconsistent Terms and Partial Invalidity. In the event of any inconsistency among the terms hereof (including incorporated terms), or between such terms and the terms of any other Loan Document, this Agreement shall be controlling. If any provision of this Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, in any circumstances, is adjudicated by a court of competent jurisdiction to be invalid, the validity of the remainder of this Agreement shall be construed as if such invalid part were never included herein.

10.6. Gender and Number. Any word herein which is expressed in the masculine or neuter gender shall be deemed to include the masculine, feminine and neuter genders. Any word herein which is expressed in the singular or plural number shall be deemed, whenever appropriate in the context, to include the singular and plural.

10.7. Definitions Included in Amendments. Definitions contained in this Agreement which identify documents, including, without limitation, the Loan Documents, shall be deemed to include all written amendments and supplements to such documents from the date hereof, and all future written amendments and supplements thereto entered into from time to time to satisfy the requirements of this Agreement or otherwise with the consent of the Lender. Reference to this Agreement contained in any of the foregoing documents shall be deemed to include all written amendments and supplements to this Agreement.

10.8. WAIVER OF JURY TRIAL. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THERE MAY BE A CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY CLAIM, DISPUTE OR LAWSUIT ARISING BETWEEN OR AMONG THEM, BUT THAT SUCH RIGHT MAY BE WAIVED. ACCORDINGLY, THE PARTIES AGREE THAT, NOTWITHSTANDING SUCH CONSTITUTIONAL RIGHT, IN THIS COMMERCIAL MATTER, THE PARTIES BELIEVE AND AGREE THAT IT SHALL BE IN THEIR BEST INTERESTS TO WAIVE SUCH RIGHT, AND, ACCORDINGLY, HEREBY WAIVE SUCH RIGHT TO A JURY TRIAL, AND FURTHER AGREE THAT THE BEST FORUM FOR HEARING ANY CLAIM, DISPUTE, OR LAWSUIT, IF ANY, ARISING IN CONNECTION WITH THIS AGREEMENT, THE LOAN DOCUMENTS, OR THE RELATIONSHIP AMONG THE PARTIES HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, OR WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, SHALL BE A COURT OF COMPETENT JURISDICTION SITTING WITHOUT A JURY.

10.9. Notices. Except for service of process as set forth in Section 10.10 below, any notice required under applicable Law to be given in another manner, any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to have been properly given (i) if hand delivered or if sent by telecopy, effective upon receipt or (ii) if delivered by overnight courier service, effective upon receipt, or (iii) if mailed by United States registered or certified mail, postage prepaid, return receipt requested, effective upon receipt, or rejection or refusal; addressed in each case as follows:

or at such other address or to such other addressee as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice.

10.10. Service of Process. BORROWER FURTHER AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO BORROWER AT THE ADDRESS INDICATED ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE UPON RECEIPT; EXCEPT THAT IF BORROWER SHALL REFUSE TO ACCEPT DELIVERY, SERVICE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.

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

10.12. Waiver of Damages. In no event shall Lender be liable to Borrower for punitive, exemplary or consequential damages, including, without limitation, lost profits, whatever the nature of a breach by Lender of its obligations under this Agreement or any of the Loan Documents, and Borrower for itself and its Guarantors waive all claims for punitive, exemplary or consequential damages.

10.13. Important Information About Procedures Required by the USA Patriot Act. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each entity or person who opens an account or establishes a relationship with Lender.

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

10.14. Preservation of Rights. No delay or omission on the Lender’s part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will the Lender s action or inaction impair any such right or power. The Lender’s rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Lender may have under other agreements, at law or in equity.

10.15. Counterparts. This Agreement may be signed in any number of counterpart copies and by the parties hereto on separate counterparts, but all such copies shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart. Any party so executing this Agreement by facsimile transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile transmission.

10.16. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the Borrower and the Lender and their respective heirs, executors, administrators, successors and assigns; provided, however, that the Borrower may not assign this Agreement in whole or in part without the Lender’s prior written consent and the Lender at any time may assign this Agreement in whole or in part.

10.17. Assignments and Participations. At any time, without any notice to the Borrower, the Lender may sell, assign, transfer, negotiate, grant participations in, or otherwise dispose of all or any part of the Lender’s interest in the Loan. The Borrower hereby authorizes the Lender to provide, without any notice to the Borrower, any information concerning the Borrower, including information pertaining to the Borrower’s financial condition, business operations or general creditworthiness, to any Person which may succeed to or participate in all or any part of the Lender’s interest in the Loan, or which is considering doing so.

10.18. Waiver of Marshalling of Assets. TO THE GREATEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY AND ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY LENDER.

10.19. Further Assurances. Borrower covenants and agrees to execute any and all other documents required by Lender in connection with this Agreement required to perfect Lender’s security interest(s) in the Collateral or to otherwise comply with and effectuate the terms of the Loan Documents.

10.20. Lender’s Action for Its Own Protection Only. The authority herein conferred upon Lender, and any action taken by Lender, including, without limitation, actions to inspect the Property, to procure waivers or sworn statements, to approve contracts, and to approve Plans and Specifications, will be exercised and taken by Lender, the Inspecting Agent, and by Lender’s other advisors or representatives for their own protection only and may not be relied upon by Borrower or any other Person for any purposes whatever. Neither Lender, the Inspecting Agent nor any other advisor or representative of Lender shall be deemed to have assumed any responsibility to Borrower or any other Person with respect to any such action herein authorized or taken by Lender or any other advisor or representative of Lender or with respect to the proper construction of improvements on the Property, performance of contracts, subcontracts or purchase orders by any contractor, subcontractor or material supplier, or prevention of mechanics’ liens from being claimed or asserted against any of the Property. Any review, investigation or inspection conducted by Lender, the Inspecting Agent or any other architectural or engineering consultants retained by Lender or any agent or representative of Lender in order to verify independently Borrower’s satisfaction of any conditions precedent to Loan disbursements under this Agreement, Borrower’s performance of any of the covenants, agreements and obligations of Borrower under this Agreement, or the validity of any representations and warranties made by Borrower hereunder (regardless of whether or not the party conducting such review, investigation or inspection should have discovered that any of such conditions precedent were not satisfied or that any such covenants, agreements or obligations were not performed or that any such representations or warranties were not true), shall not affect (or constitute a waiver by Lender of) (i) any of Borrower’s representations and warranties under this Agreement or Lender’s reliance thereon or (ii) Lender’s reliance upon any certifications of Borrower or the Architect required under this Agreement or any other facts, information or reports furnished Lender by Borrower hereunder.

10.21. Operation of Property. As long as any portion of the Loan remains outstanding, the Property shall be operated in a commercially reasonable manner.

10.22. Proceeds of Collateral. Any proceeds of collateral received by Lender after an Event of Default has occurred and is continuing, shall be applied: first, to pay any fees, indemnities, protective advances, or expense reimbursements including amounts then due to the Lender from Borrower or any Guarantor (including any Hedging Contracts, but excluding any prepayment fee or termination fee under a Hedging Contract), second, to pay any fees or expense reimbursements then due to Lender under this Agreement or any Loan Document from Borrower or any Guarantor (including any Hedging Contracts, but excluding any prepayment fee or termination fee under a Hedging Contract), third, to pay interest then due and payable on the Loan, ratably to the Lender in, and interest then due and payable under any Hedging Contracts, and fourth to repay all principal due under the Loan to the Lender, and payment of all amounts due and owing with respect to any Hedging Contracts, including any prepayment fees or termination fees under a Hedging Contract (but excluding scheduled interest payments allocated pursuant to clause third, above). Notwithstanding the foregoing, amounts received from Borrower or any Guarantor that is not an “eligible contract participant” under the Commodity Exchange Act shall not be applied to any Excluded Swap Obligations (it being understood, that in the event that any amount is applied to Indebtedness other than Excluded Swap Obligations as a result of this clause, Lender shall make such adjustments as it determines are appropriate to distributions pursuant to the clauses above from amounts received from “eligible contract participants” under the Commodity Exchange Act to ensure, as nearly as possible, that the proportional aggregate recoveries with respect to Indebtedness described in the clauses above by the holders of any Excluded Swap Obligations are the same as the proportional aggregate recoveries with respect to other Indebtedness pursuant to the clauses above).

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK—

SIGNATURE PAGES TO IMMEDIATELY FOLLOW]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Loan Closing Date.

Signature Page 1 of 2 to

Loan Agreement

Signature Page 2 of 2 to

Loan Agreement

Exhibit A

(Legal Description)

PARCEL NO. 1 (Fee Simple)

Situated in the City of Canton, Stark County, State of Ohio:

Being all of O.L. 14 78 on that certain HOF Village Replat recorded as Instrument Number 202203250013418 of the Stark County, Ohio Records, containing 4.8514 acres, more or less.

PARCEL NO. 2 (Fee Simple)

Situated in the City of Canton, Stark County, State of Ohio:

And known as all of Lot 43481 on that certain HOF Village Replat recorded as Instrument Number 202203250013418 of the Stark County, Ohio Records, containing .9115 acres, more or less.

PARCEL NO. 3 (Easement)

Non-exclusive easements for access and utilities contained in the Reciprocal Easement and Restrictive Covenant Agreement for the HOF Village Complex, filed for record March 11, 2016 in Instrument No. 201603110009295, of the Stark County, Ohio Records and amended in the First Amendment to Reciprocal Easement and Restrictive Covenant Agreement, filed for record July 20, 2022 in Instrument No. 202207200030836 of the Stark County, Ohio Records.

Exhibit B

(Permitted Exceptions)

1. Taxes and assessments, which are a lien, but not yet due and payable.

2. Those certain exceptions set forth in Schedule B-2 of that certain Loan Policy of Title Insurance issued to Lender by Chicago Title Insurance Company.

Exhibit C

(Survey Certification)

To (name of insured, if known), The Huntington National Bank, a national banking association, its successors and/or assigns, (name of insurer, if known), (names of others as negotiated with the client):

This is to certify that this map or plat and the survey on which it is based were made in accordance with the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, jointly established and adopted by ALTA and NSPS, and includes Items 1, 2, 3, 4, 6(b), 7(b), 8, 9, 11, 13, 14, 16 and 19 of Table A thereof. The fieldwork was completed on ____________.

Date of Plat or Map: __________________

Surveyor’s signature, printed name and seal with Registration/License Number.

Table A Items:

Exhibit D

(Title Insurance Requirements)

A commitment (the “Title Commitment”) for issuance of an ALTA Loan Policy of Title Insurance, Form 2006 (the “Title Policy”), issued by the Title Insurer to Lender, in the Loan Amount, insuring the Mortgage to be a valid first, prior and paramount mortgage lien upon the fee title to the Land and the Property, and a valid first lien upon any easement in favor of the Land which provides access to the Land for ingress and egress and/or for utilities, to the extent of funded by Disbursements of the Loan, subject only to the Permitted Exceptions and with all so-called “standard” exceptions deleted. The Title Commitment shall (i) contain a so-called “Comprehensive Endorsement”; (ii) contain an endorsement affirmatively insuring the priority of the Mortgage against any vendor’s or mechanic’s lien; (iii) affirmatively insure the Lender that (A) no restrictions of record affecting the Land have been violated, and that such instruments contain no right of reverter or forfeiture, (B) the survey is accurate and accurately depicts the same real estate as is covered by the Title Commitment, and (C) Lender is the holder of the Mortgage and that the Mortgage is the first lien against the Land; (iv) insure contiguity of the Land with adjoining public rights of way; (v) contain an ALTA Variable Rate Endorsement No. 6; and (vi) contain such other endorsements as Lender may require. If requested by Lender, appropriate provisions satisfactory to Lender for co-insurance and reinsurance, with direct access agreements acceptable in form and substance to Lender, shall also be obtained. Contemporaneously with delivery to Lender of the Title Commitment, Borrower shall also deliver to Lender copies of all documents constituting encumbrances on the Land, including but not limited to the Permitted Exceptions. Borrower agrees to deliver to the Title Agent, with a copy of each to Lender, such other papers, instructions and documents as the Title Agent may require for the issuance of the Title Commitment and the issuance of date down endorsements and interim certifications relating to construction payouts (if any), in accordance with all requirements of this Agreement.

Exhibit H

(Compliance Certificate)

_________________________

_________________________

Attn: ____________________

This Compliance Certificate (this “Certificate”) is furnished pursuant to that certain Loan Agreement dated as of ______________, 20__ (as amended, restated, modified, or supplemented from time to time, the “Agreement”) between _____________________, a(n) __________________________ (the “Borrower”) and The Huntington National Bank, a national banking association (the “Lender”). Unless otherwise defined herein, capitalized terms used in this Certificate have the meanings ascribed to them in the Agreement.

THE UNDERSIGNED HEREBY CERTIFIES THAT:

1. I am the duly elected/appointed ________________ of Borrower.

2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of Borrower and its Subsidiaries during the accounting period covered by the attached financial statements dated ______________. The accompanying financial statements fairly present, in all material respects, the financial condition and results of operations of Borrower and its consolidated Subsidiaries, on a consolidated basis in accordance with GAAP, consistently applied.

3. The examinations described in Section 2, above, did not disclose (except as set forth below) and I have no knowledge of: (i) the existence of any condition or event that constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements, or as of the date of this Certificate; or (ii) any change in GAAP or in the application thereof that has occurred since the date of the financial statements referred to in Section 4.2 of the Agreement.

4. Borrower has not changed its: (i) name (without having given Lender the notice required by the Agreement); (ii) chief executive officer; (iii) principal place of business; (iv) entity type; or (v) state of incorporation or organization.

5. Schedule I attached hereto is the form supplied by the Huntington Portfolio Manager, and sets forth financial data and computations evidencing Borrower's compliance with certain covenants of the Agreement, all of which data and computations are true, complete and correct.

Described below are the exceptions, if any, to Section 3, along with statements about: (i) the nature of the condition or event, the period during which it has existed and the action that Borrower has taken, is taking, or proposes to take with respect to each such condition or event; or (ii) the change in GAAP or the application thereof and the effect of such change on the attached financial statements:

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

[add more lines, if necessary]

The above certifications, together with the computations set forth in Schedule I and the financial statements delivered with this Certificate, are made and delivered this ______ day of ______________________, 20_____.

Exhibit E

(Borrower’s Certificate for Payment)

______________

_____________

ATTN: ____________________________

1. Pursuant to that certain Loan Agreement dated _______________, 20__ (the “Construction Loan Agreement”) between Borrower and The Huntington National Bank (“Lender”), Borrower

Funding Instructions

2. Please deposit the requested draw funds of $__________ to Huntington Bank Account No. ___________

3. The undersigned hereby authorizes The Huntington National Bank (HNB) to debit the following deposit account in the amount of $________ and credit as a deposit to the account shown below:

Debit the following HNB deposit account:

Account Number:  __________________

Account Name: __________________

Credit the following HNB deposit account:

Account Number:  __________________

Account Name: __________________

4. This Borrower’s Certificate is to be utilized only in satisfaction of costs and charges with respect to the Project and Improvements thereon as shown on the Soft and Hard Cost Requisition Form, dated ____________________, attached hereto.

5. The Borrower agrees to provide, if requested by Lender, a Vendor Payee Listing showing the name and the amount currently due each party to whom Borrower is obligated for labor, material and/or services supplies.

6. The Borrower also certifies and agrees that:

7. Disbursement of the Loan Proceeds hereby requested are subject to the receipt by Lender, in those states where applicable, of a certificate from the issuing title company stating that no claims have been filed of record which adversely affects the title of Borrower to the Project, subsequent to the filing of the Lender’s Mortgage.

8. Capitalized terms used in this Borrower’s Certificate and not otherwise defined shall have the same meaning and definitions as those set forth in the Construction Loan Agreement.

9. The Borrower, or authorized signer, certifies that the statements made in this Borrower’s Certificate and any documents submitted herewith and identified herein are true and has duly caused this Borrower’s Certificate to be signed on its behalf by the undersigned, thereunto duly authorized.

Exhibit F

(Post-Closing Exhibit)

Borrower: HOF Village Retail I, LLC and HOF Village Retail II, LLC,

Project: Hall of Fame Village Retail

Loan Amount: $10,000,000.00

Borrower has requested that Lender defer certain conditions precedent to the closing of the Loan, and Lender is willing to do so on the terms and subject to the conditions of this Post-Closing Exhibit. This Post-Closing Exhibit shall be sufficient to modify and supplement the Loan Agreement. Except as modified or supplemented herein, the Loan Agreement and the other Loan Documents shall remain in full force and effect in accordance with their terms.

Borrower and Lender may modify the conditions above by executing a supplement to this Post-Closing Exhibit, in the form attached hereto.

The parties agree as follows:

Supplement to Post-Closing Exhibit

(Form)

Borrower: _____________________________

Project:

Loan Amount: _________________________

Borrower and Lender agree that the Table included in that certain Post-Closing Exhibit attached as Exhibit J to that certain Construction Loan Agreement by and between Borrower and Lender dated ___________, 20__ (the “Loan Agreement”) is hereby amended and restated in its entirety as follows (the “Table”):

Except as expressly set forth above, the terms and conditions of the Loan Agreement shall remain unchanged.

IN WITNESS WHEREOF, Borrower and Lender have executed this Supplement to Post-Closing Exhibit as of the ___ day of ______________, 20__.

Exhibit G

(Soft and Hard Cost Requisition Form)

[***]

Exhibit I 

Budget

[***]

I-1

Exhibit 10.2

PROMISSORY NOTE

FOR VALUE RECEIVED HOF Village Retail I, LLC, a Delaware limited liability company and HOF Village Retail II, LLC, a Delaware limited liability company (collectively the “Borrower”) jointly and severally promises to pay to the order of The Huntington National Bank, a national banking association, (the “Lender,” which term shall include any holder hereof) at its offices located at with a place of business and address at 200 Public Square (CM17), Cleveland, Ohio 44114 or at such other place as the holder hereof may designate (the “Payment Office”), Ten Million and No/100 Dollars (U.S. $10,000,000.00) or so much thereof as shall have been advanced by the Lender, together with interest as set forth herein (the “Loan”). This Note is issued in connection with a Loan Agreement by and between Borrower and Lender, dated on or before the date hereof (as amended, modified or renewed from time to time, the “Loan Agreement”) and the other agreements and documents executed and/or delivered in connection therewith or referred to therein, the terms of which are incorporated herein by reference (as amended, modified or renewed from time to time, collectively, the “Loan Documents”), and is secured by the property (if any) described in the Loan Documents and by such other collateral as previously may have been or may in the future be granted to the Lender to secure this Note. Capitalized terms not otherwise defined in this Note shall have the meaning ascribed to them in the Loan Agreement.

1. Defined Terms.

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

“Applicable Margin” means 3.50% per annum, until Stabilization occurs and then 2.60% per annum.

“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a replacement of the Benchmark has occurred pursuant to Section 5, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate.

“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Lender:

(a) Replacement SOFR; or

(b) the sum of: (i) the alternate benchmark rate and (ii) the adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Lender as the replacement for the then-current Benchmark giving due consideration to (x) any selection or recommendation by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining an alternate benchmark rate or adjustment (or method for calculating or determining such adjustment) for the replacement of the then-current Benchmark for Dollar-denominated credit facilities.

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Note and the other Loan Documents.

“Benchmark Transition Event” means (a) the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (i) such administrator has ceased or will cease on a specified date to provide such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark or (ii) such Benchmark is not, or as of a specified future date will not be, representative, or (b) the Lender determines that any law, rule or regulation has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Lender to make, maintain or fund Loans whose interest is determined by reference to the then-current Benchmark or to determine or charge interest rates based upon the then-current Benchmark.

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

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

“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Business Day,” the definition of “U.S. Government Securities Business Day”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or other notices, the applicability and length of lookback periods, and other technical, administrative or operational matters) that the Lender decides may be appropriate to reflect the adoption and implementation of any such rate and to permit the administration thereof by the Lender in such manner as the Lender shall reasonably select.

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

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

“Excluded Taxes” means any of the following Taxes imposed on or with respect to the Lender or required to be withheld or deducted from payment to the Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of the Lender being organized under the laws of, or having its principal office or its lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of the Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) the Lender acquires such interest in the Loan or Commitment or (ii) the Lender changes its lending office, except in each case to the extent that, pursuant to Section 4, amounts with respect to such Taxes were payable either to the Lender’s assignor immediately before the Lender became a party hereto or to the Lender immediately before it changed its lending office and (c) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of the Loan Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Floor” means a rate of interest equal to .75%, provided, that if the Borrower shall enter into an interest rate swap agreement with the Lender or another counterparty reasonably acceptable to the Lender with respect to at least seventy-five per cent (75%) of the outstanding principal balance of the Loan, from and after the effective date of such swap, the Floor shall be reduced from .75% to zero with respect to the Loan so long as such interest rate swap agreement shall remain in effect with respect to at least seventy-five per cent (75%) of the outstanding principal balance of the Term Loan.

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

“Interest Payment Date” means the first (1^st) day of each calendar month.

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

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

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

“Prime Rate” means the rate of interest publicly announced from time to time by the Lender as its “prime rate”, which rate may not be the lowest or most favorable rate then being charged commercial borrowers or others by the Lender. Any change in the Prime Rate announced by the Lender shall take effect at the opening of business on the day specified in the public announcement of such change. Notwithstanding the foregoing, if the Prime Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Note and the other Loan Documents.

“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

“Replacement SOFR” means SOFR, with the accrual methodology and other conventions for such rate being established by the Lender in its reasonable discretion; provided, further, that if Replacement SOFR shall be less than the Floor, then Replacement SOFR shall be deemed to be the Floor for the purposes of this Note and the other Loan Documents.

“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

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

“Term SOFR” means, with respect to any Interest Period, the Term SOFR Reference Rate for a tenor comparable to such Interest Period on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Term SOFR Determination Day the Term SOFR Reference Rate has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day; provided, further, that if Term SOFR as so determined (including pursuant to the foregoing proviso) shall be less than the Floor, then Term SOFR shall be deemed to be the Floor for the purposes of this Note and the other Loan Documents.

“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Lender in its reasonable discretion).

“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.

“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

2. Interest Rates; Rate Disclaimer.

(a) Interest Rate Generally. Subject to the terms and conditions of this Note, the outstanding amount of the Loan shall bear interest at a rate per annum equal to the Term SOFR plus the Applicable Margin (collectively, the “Appliable Rate”).

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

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

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

(e) Computation of Interest and Fees. All computations of interest on the unpaid principal and accrued interest due under this Note and the other obligations of Borrower and any and all fees due under the Loan Documents shall be computed on a 365/360 basis; that is, in the case of interest, by applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Any reference in this Note to a “per annum” rate shall be based on a year of 360 days. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that any Loan that is repaid on the same day on which it is made shall, subject to Section 2(g), bear interest for one day. An invoice issued by the Lender to the Borrower for interest due hereunder on any Interest Payment Date may include an estimate regarding the amount of interest that will accrue from the date of such invoice to such Interest Payment Date. If the amount of interest that actually accrues hereunder during the applicable period differs from such estimate, a corresponding adjustment will be made by the Lender to the amount due on the following Interest Payment Date. Each determination by the Lender of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error

(f) Rates Disclaimer. Lender does not warrant or accept responsibility for, and shall not have any liability with respect to (i) the continuation, administration, submission, calculation or selection of, or any other matter related to, the Benchmark, any component definition thereof or rates referenced in the definition thereof or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or composition of any Conforming Changes. The Lender may select information sources or services in its reasonable discretion to ascertain the Benchmark (or any component definition thereof or rates referenced in the definition thereof) pursuant to the terms of this Note, and shall have no liability to the Borrower or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error by, or any calculation of any such rate (or component thereof) provided by, any such information source or service.

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

(h) Term SOFR Conforming Changes. In connection with the use or administration of Term SOFR, the Lender may make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Note or any other Loan Document. The Lender will promptly notify the Borrower of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

3. Increased Costs.

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

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

(c) Certificates for Reimbursement; Delay in Requests. A certificate of the Lender setting forth the amount or amounts necessary to compensate the Lender or its holding company as specified in the foregoing paragraph (a) or (b) and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay the Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof. Failure or delay on the part of the Lender to demand compensation pursuant to this Section 3 shall not constitute a waiver of the Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate the Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that the Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

4. Taxes.

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by Borrower, then Borrower shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 4) the Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.

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

(c) Indemnification by the Loan Parties. The Borrower and each Guarantor shall jointly and severally indemnify the Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 4) payable or paid by the Lender or required to be withheld or deducted from a payment to the Lender and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.

(d) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 4, Borrower shall deliver to the Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Lender.

(e) Treatment of Certain Refunds. If the Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 4 (including by the payment of additional amounts pursuant to this Section 4), it shall pay to Borrower an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). The Borrower, upon the request of the Lender, shall repay to the Lender the amount paid over pursuant to this Section 4(e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that the Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 4(e), in no event will the Lender be required to pay any amount to Borrower pursuant to this Section 4(e) the payment of which would place the Lender in a less favorable net after-Tax position than the Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 4(e) shall not be construed to require the Lender to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to Borrower or any other Person.

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

5. Inability to Determine Rates; Benchmark Replacement.

(a) Inability to Determine Rates. Subject to Sections 5(b), (c), and (d), below, if the Lender shall determine that (i) Term SOFR for any Interest Period cannot be determined pursuant to the definition thereof, or (ii) for any reason Term SOFR for any Interest Period does not adequately and fairly reflect the cost to the Lender of making or maintaining the Loan during such Interest Period, then the Lender shall promptly give notice thereof to the Borrower. In any such event, the accrual of interest based upon Term SOFR shall be suspended until the Lender shall notify Borrower that the circumstances causing such suspension no longer exist, and beginning on the date of such suspension, interest shall accrue hereunder at a rate per annum equal to Replacement SOFR plus the Applicable Margin or, if the Lender shall determine that SOFR is subject to any of the circumstances set forth in the foregoing clause (i) or (ii) or otherwise cannot be ascertained, the Prime Rate.

(b) Benchmark Transition Event. Following the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document on such date as may be determined by the Lender, without any amendment to this Note or any other Loan Document or further action or consent of the Borrower.

(c) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Lender will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Note.

(d) Notices; Standards for Decisions and Determinations. The Lender will promptly notify the Borrower of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. Any determination, decision or election that may be made by the Lender pursuant to this Section 5, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or selection, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto.

6. Payment Terms and Maturity Date.

(a) Interest only shall be due and payable monthly beginning on the first (1^st) day of the first (1^st) month following the initial disbursement of Loan Proceeds and continuing on each Interest Payment Date with the entire outstanding principal balance together witeh accrued but unpaid interests on September 27, 2024 (the “Initial Maturity Date”). In the event Borrower elects and qualifies for the Extension Option then commencing on October 1, 2024, payments of principal and interest shall be due and payable in consecutive monthly installments on each Interest Payment Date based upon an interest rate equal to the interest rate under the Hedging Contract and a 30 year amortization schedule pursuant to the attached Amortization Schedule. If not sooner paid as hereinafter permitted, the unpaid principal balance of this Note and all accrued and unpaid interest and other charges hereunder shall be due and payable in full on the Initial Maturity Date, or Extended Maturity Date, as the case may be. The final payment due on the Initial Maturity Date, or Extended Maturity Date, as the case may be, may be a balloon payment as a result of the amortization period used to calculate the monthly payments.

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

7. Prepayments

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

8. Events of Default.

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

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

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

9. Right of Setoff.

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

10. Miscellaneous.

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

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

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

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

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

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

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

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

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

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

(k) Posting and Application of Payments.

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

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

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

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

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

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

(n) Survival. All of the Borrower’s obligations under Sections 3 through 5 hereof shall survive termination of the Lender’s commitment to make the Loan and repayment of the Loan.

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

11. Power To Confess Judgment.

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

12. WAIVER OF JURY TRIAL.

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

13. PAYMENTS FROM DEPOSIT ACCOUNT.

Borrower authorizes Lender to debit deposit account number ____________, which Borrower maintains with Lender for payments due to Lender under this Note.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK –

SIGNATURE PAGE TO IMMEDIATELY FOLLOW]

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

BORROWER:

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

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

BORROWER:

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

Exhibit 10.3

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.

GROUND LEASE

by and between

TWAIN GL XXXVI, LLC
a Missouri limited liability company

“Landlord”

and

HOF VILLAGE RETAIL I, LLC
a Delaware limited liability company, and

HOF VILLAGE RETAIL II, LLC
a Delaware limited liability company

collectively, “Tenant”

September 27, 2022

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GROUND LEASE

This GROUND LEASE (this “Lease”) is entered into by and between HOF VILLAGE RETAIL I, LLC, a Delaware limited liability company, and HOF VILLAGE RETAIL II, LLC, a Delaware limited liability company, jointly and severally (collectively referred to herein as “Tenant”), and TWAIN GL XXXVI, LLC, a Missouri limited liability company (“Landlord”), effective as of September 27, 2022 (the “Commencement Date”). For purposes of this Lease, Tenant and Landlord are sometimes referred to herein collectively as the “Parties” and individually as a “Party”.

R E C I T A L S

WHEREAS, Landlord is the fee owner of approximately 5.8 acres of real property located in the City of Canton, Stark County, Ohio and legally described on Exhibit A attached to this Lease (the “Premises”), such Premises expressly excluding and excepting the Improvements (as hereinafter defined); and

WHEREAS, Tenant desires to lease the Premises (together with all appurtenant rights and easements) for the purpose of constructing, owning, and operating a retail center (collectively, the “Improvements”) for the rent and on the terms and conditions set forth in this Lease, and Landlord and Tenant have executed this Lease in connection with Landlord’s acquisition of the Premises.

NOW, THEREFORE, it is agreed by the parties as follows:

ARTICLE I

LEASE OF PREMISES AND TERM OF LEASE

Section 1.01. Agreement to Lease. For and in consideration of the rents to be paid and covenants to be performed by Tenant under this Lease, Landlord agrees to lease the Premises to Tenant, and Tenant agrees to lease the Premises from Landlord, on the terms and conditions set forth in this Lease and subject to all matters affecting the Premises, whether or not of record.

Section 1.02. Term of Lease. The term of this Lease (the “Term”) shall commence on the Commencement Date and shall expire on the date which is ninety nine (99) years following the Commencement Date, except that if the date which is ninety nine (99) years following the Commencement Date is not the final calendar day of a calendar month, then the Term shall expire on the last day of the calendar month containing the date which is ninety nine (99) years following the Commencement Date.

Section 1.03. Delivery of Possession. Possession of the Premises is delivered by Landlord to Tenant upon the Commencement Date subject to all matters affecting the Premises, whether or not of record. Tenant agrees and acknowledges that the Premises is to be delivered to Tenant in an entirely “AS IS”, “WHERE IS”, “WITH ALL FAULTS” condition, with no obligation for Landlord to improve or alter the Premises and with Landlord making no representation or warranty as to the Premises. TENANT ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY MADE BY LANDLORD IN THIS LEASE, LANDLORD IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE, ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS INCLUDING WEATHER-RELATED CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS, VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS, THE VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. TENANT AGREES THAT TENANT HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF LANDLORD OR ANY AGENT OF LANDLORD OR OTHER THIRD PARTY, EXCEPT AS EXPRESSLY MADE BY LANDLORD IN THIS LEASE. EXCEPT AS OTHERWISE PROVIDED IN THIS LEASE, TENANT HAS HAD THE OPPORTUNITY TO CONDUCT ITS OWN INSPECTIONS AND INVESTIGATIONS OF THE PREMISES AND ASSUMES ALL RISK IN CONNECTION THEREWITH. THE TERMS AND CONDITIONS OF THIS SECTION SHALL EXPRESSLY SURVIVE THE TERMINATION OF THIS LEASE.

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ARTICLE II

RENT

Section 2.01. Base Rent and Supplemental Rent.

(a) Tenant agrees to pay to Landlord, without notice or demand, offset, abatement or deduction, in lawful money of the United States of America, annual minimum rent (“Base Rent”) during the Term in the amount set forth on Exhibit B attached hereto and made a part hereof. Base Rent shall be paid quarterly in advance in four (4) equal installments on the first (1^st) business day of January, April, July, and October of every calendar year during the Term. If the Commencement Date is not the first (1^st) calendar day of a calendar quarter, then for the partial quarter period from and including the Commencement Date through and including the day immediately preceding the first (1^st) day of the next calendar quarter, Base Rent shall be paid on the Commencement Date for the initial fractional quarter prorated on a per diem basis. As used in this Lease, the term “Lease Year” shall mean each twelve (12) month period during the Term commencing with the Commencement Date, except that if the Commencement Date is not the first (1^st) calendar day of a calendar month, then the first (1^st) Lease Year shall end on the last day of the month that is twelve (12) months after the Commencement Date. Notwithstanding anything in this Section 2.01(a) to the contrary, payments of Base Rent and Supplemental Rent due and payable through and including October 31, 2024, shall be capitalized and shall be paid by Landlord to Landlord and shall be added to the Rent Basis on the first (1^st) day next succeeding each applicable due date; provided, however, notwithstanding the foregoing obligation for Landlord to pay Capitalized Rent (hereinafter defined), when the Rent Basis reaches $18,200,000.00, Tenant shall thereafter pay all Rent due to Landlord even if such amounts become due and payable before October 31, 2024. Tenant acknowledges and agrees that if Capitalized Rent is insufficient to pay an entire quarterly Rent payment, Tenant shall be responsible for any such deficiency on such date that Rent is due under this Lease.

(b) After the first Lease Year, Tenant agrees to pay to Landlord, without notice or demand, offset, abatement or deduction, in lawful money of the United States of America, an annual supplemental rent (“Supplemental Rent”) as follows:

(1) For the second (2^nd), third (3^rd) and fourth (4^th) Lease Years, annual Supplemental Rent shall be as follows:

Lease Year 2 = Lease Year 2 Base Rent x 2%

Lease Year 3 = (Lease Year 3 Base Rent x 2%) + (Lease Year 3 Base Rent x 2% x 102%)

Lease Year 4 = (Lease Year 4 Base Rent x 2%) + (Lease Year 4 Base Rent x 2% x 102%) + (Lease Year 4 Base Rent x 2% x 102% x 102%)

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(2) For the fifth (5^th) Lease Year and continuing thereafter on the first (1^st) day of each Lease Year (each an “Adjustment Date”), Supplemental Rent shall be adjusted to an amount equal to the sum of (i) two percent (2%) of the Base Rent for the immediately preceding applicable Lease Year, plus (ii) one hundred two percent (102%) of the Supplemental Rent for the immediately preceding applicable Lease Year; provided, however, that in the event that Base Rent is increased on the Adjustment Date at the beginning of a new CPI Adjustment Period pursuant to Section 2.01(b)(3) below, Supplemental Rent shall not be adjusted for such Lease Year under this Section 2.01(b)(2) and Supplemental Rent shall next be adjusted under this Section 2.01(b)(2) on the next Adjustment Date. For the avoidance of doubt, Supplemental Rent may be further adjusted on each Adjustment Date at the beginning of each CPI Adjustment Period pursuant to Section 2.01(b)(3). All Supplemental Rent shall be due and payable quarterly in four (4) equal installments in advance on the same day as Base Rent under this Lease.

(3) Upon the commencement of the sixth (6^th) Lease Year and continuing thereafter every five (5) years (each such 5-year period, including the first five (5) Lease Years, a “CPI Adjustment Period”) through the last day of the Term, pursuant to this Section 2.01(b)(5), Supplemental Rent shall be increased on the first (1^st) day of each CPI Adjustment Period by the percentage change in the CPI figure from (i) the Commencement Date for the first (1^st) CPI Adjustment Period or the first (1^st) day of the immediately preceding CPI Adjustment Period for all subsequent CPI Adjustment Periods to (ii) the last day of the fifth (5^th) Lease Year for the first CPI Adjustment Period or the last day of the immediately preceding CPI Adjustment Period for all subsequent CPI Adjustment Periods, if and only if, the percentage increase in the CPI figure during such CPI Adjustment Period is greater than the percentage increase in Supplemental Rent during the same CPI Adjustment Period. For purposes of this Lease, “CPI” means The Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items, as published by the Bureau of Labor Statistics of the U.S. Department of Labor (or if the publication of such Consumer Price Index is discontinued, a comparable index similar in nature to the discontinued index which clearly reflects that diminution (or increase) in the real value of the purchasing power of the U.S. dollar reported for the calendar year in question).

(c) The parties acknowledge that Landlord (i) has arranged for the funds necessary to finance the acquisition of the Premises and has committed the Tenant Improvement Allowance (hereinafter defined) to Tenant as described in this Lease; (ii) has provided Tenant with services related to funding, structuring and underwriting the Transaction (hereinafter defined) on or before the date hereof; and (iii) may provide throughout the Term of this Lease ongoing services related to the management of the financing represented by this Lease, including, without limitation, (a) monitoring Tenant’s maintenance of insurance coverage on the Premises and the Improvements as required by this Lease, (b) monitoring the status of real estate taxes, assessments and other similar items and verifying the payment of such items in accordance with this Lease, (c) procuring and supervising the services of third parties necessary or appropriate in connection with the servicing of this Lease and any related financing, (d) performing payment processing, record keeping, administration of escrow and other accounts, interest rate adjustment, and other routine customer service functions, (e) monitoring any casualty losses or condemnation proceedings and administering any proceeds related thereto in accordance with this Lease and (f) advance or disburse the Tenant Improvement Allowance as required by this Lease.  The parties acknowledge and agree that the payment of Supplemental Rent pursuant to this Lease is in consideration for the services described in this Section 2.01(c) and the parties shall not treat the payment of Supplemental Rent as a payment of interest for any purpose, including federal income tax purposes.

Section 2.02. No Partnership or Joint Venture. Nothing in this Lease shall be construed to render Landlord in any way or for any purpose a partner, joint venturer, or associate in any relationship with Tenant other than that of Landlord and Tenant, nor shall this Lease be construed to authorize either to act as agent for the other.

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Section 2.03. Late Payment. All monetary amounts to be paid by Tenant to Landlord pursuant to this Lease other than Base Rent shall constitute additional rent, shall be paid in the manner provided in this Lease without offset, abatement or counterclaim, and shall sometimes be collectively referred to as “Additional Rent”. Base Rent, Additional Rent and Supplemental Rent are collectively referred to herein as “Rent”. Tenant has provided to Landlord the Guaranty from Guarantor in support of its obligations to pay Rent as and when due under this Lease. Tenant acknowledges that the late payment by Tenant to Landlord of any sums due under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges, and late charges that may be imposed on Landlord by the terms of any encumbrance or note secured by all or any portion of Landlord’s interest in the Project. Therefore, if Tenant fails to pay any Rent within ten (10) days of the due date under this Lease for any reason, Tenant shall pay to Landlord, as Additional Rent, the sum of five percent (5.0%) of the overdue amount as a late charge. All past-due installments of Rent shall also bear interest, as Additional Rent, at the “Interest Rate” (as hereinafter defined), from fifteen (15) days after the date due until paid. For purposes of this Lease, the “Interest Rate” shall mean the lesser of (i) the maximum rate permitted by applicable law governing interest rate restrictions, or (ii) six percent (6.0%) per annum plus the then prevailing per annum “prime rate” as most recently published in the Wall Street Journal (or the then “prime” rate as established by a comparable alternate source reasonably designated by Landlord in the event the Wall Street Journal ceases to publish a prevailing “prime” rate). Landlord’s acceptance of any late charge or interest shall not constitute a waiver of Tenant’s default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease, at law or in equity.

Section 2.04. No Abatement of Rent. No abatement, diminution, deferral, or reduction of: (i) Rent, charges or other compensation; or (ii) Tenant’s other obligations hereunder shall be allowed to Tenant or any person or entity claiming under Tenant, under any circumstances or for any reason whatsoever and to the maximum extent permitted by Applicable Laws, Tenant hereby waives the application of any local or state statutes, land rules, regulations, or ordinance providing to the contrary.

Section 2.05. Payment of Rent. Tenant hereby acknowledges receipt of the Tenant Payment Notice attached hereto as Exhibit M (the “Tenant Payment Notice”), the terms, covenants and provisions of which are hereby incorporated herein by reference. Tenant hereby agrees to comply with the Tenant Payment Notice with respect to the payment of Rent and other sums due to Landlord under this Lease.

Section 2.06. Disbursement Reserve.

(a) Notwithstanding anything in the Lease to the contrary, as of the Commencement Date, Landlord has deposited into a reserve account (the “Disbursement Reserve Account”) an amount equal to the Disbursement Reserve Amount. The “Disbursement Reserve Amount” shall mean $2,617,891.30. The Disbursement Reserve Account shall be used for payment of Capitalized Rent. Upon any amount of Capitalized Rent becoming due at any time, Landlord shall withdraw such portion of the Capitalized Rent from the Disbursement Reserve Account until such amount is fully depleted. Tenant acknowledges and agrees that Rent shall be calculated and charged on the Disbursement Reserve Amount as if such amount has been disbursed to Tenant.

(b) Tenant assigns to Landlord the Disbursement Reserve Account as additional security for all of Tenant’s obligations under this Lease. If Tenant defaults under this Lease, Landlord shall have the right to cause such payments to be made from the Disbursement Reserve Account as set forth in this Lease.

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(c) Upon the occurrence of a breach or default of this Lease and the expiration of all applicable notice and cure periods, Landlord may in its sole and absolute discretion, use the Disbursement Reserve Amount (or any portion thereof) for any purpose, including but not limited to (1) payment of Rent; (2) reimbursement of Landlord for all losses and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Landlord as a result of such default; or (3) payment of any amount expended in exercising (and exercise) all rights and remedies available to Landlord at law or in equity or under this Lease. If the Disbursement Reserve Amount is ever reduced as provided in this Section 2.06(c), except in the event of payment of the Capitalized Rent, the Disbursement Reserve Amount shall be replenished by Tenant to the amount required by this Lease at the time of such reduction.

ARTICLE III

USE OF PREMISES

Section 3.01. Permitted Use. Tenant shall use the Premises (collectively, the “Permitted Uses”) solely for the purpose of constructing, maintaining, operating and leasing the Improvements and related amenities and facilities for retail uses only, which includes all uses permitted under Applicable Laws (the “Project”). Tenant shall not change the use of the Premises without first obtaining the written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed.

Section 3.02. Compliance With Laws and Matters Affecting Premises. Tenant shall, at Tenant’s own cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, both federal and state and county or municipal, including, without limitation, those requiring structural or non-structural work and/or capital improvements to the Premises or Improvements as a condition to continuing occupancy and relating to Tenant’s use and occupancy of the Premises, whether those statutes, ordinances, regulations, and requirements are now in force or are subsequently enacted (collectively, “Applicable Laws”). If any license, permit, or other governmental authorization is required for the lawful use or occupancy of the Premises or any portion of the Premises, Tenant shall procure and maintain it throughout the Term. The judgment of any court of competent jurisdiction, or the admission by Tenant in a proceeding brought against Tenant by any government entity, that Tenant has violated any Applicable Laws shall be conclusive as between Landlord and Tenant and shall constitute a material Tenant default within the meaning of Section 11.03 below. For purposes of clarification, violation of Applicable Laws by a tenant of Tenant shall not be deemed to be a violation of Applicable Laws by Tenant so long as Tenant enforces the Subleases for any such violations of Applicable Laws. Tenant, at its sole cost and expense, shall comply in all respects with all matters affecting the Premises, whether or not of record, and Tenant shall comply with and perform all of the obligations set forth under the same to the extent that the same are applicable to the Premises or to the extent that the same would, if not complied with or performed, impair or prevent the continued use, occupancy and operation of the Premises for the purposes set forth in this Lease. Further, in addition to Tenant’s payment obligations under this Lease, Tenant shall pay all sums charged, levied or assessed under any matters affecting the Premises, whether or not of record, promptly as the same become due and shall, upon receipt of written request by Landlord, promptly furnish Landlord evidence of payment thereof.

Section 3.03. Prohibited Uses. Tenant shall not use or permit the Premises or any portion of the Premises to be improved, developed, used, or occupied in any manner or for any purpose that is in any material way in violation of any Applicable Laws. Furthermore, Tenant shall not maintain, commit, or knowingly permit the maintenance or commission of any nuisance as now or hereafter defined by any Applicable Laws.

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ARTICLE IV

TAXES AND UTILITIES

Section 4.01. Tenant to Pay Taxes.

(a) Commencing on the Commencement Date and continuing throughout the Term, Tenant shall pay to the taxing authority, without abatement, deduction, or offset all of the following (collectively, “Taxes”): any and all general and special real property taxes, general and special assessments, personal property taxes and other charges (including any increase caused by a change in the tax rate or by a change in assessed valuation) of any description levied or assessed by any governmental agency or entity on or against the Premises, the Improvements located on the Premises, personal property owned by Tenant and located on or in the Premises or Improvements, and the leasehold estate created by this Lease (but not Landlord’s net income from the Premises), to the extent that the Taxes are attributable to any period following the Commencement Date of this Lease. Without limiting the generality of the foregoing, “Taxes” shall include any form of assessment, license fee, license tax, business license fee, transit tax or fee, commercial rental tax, levy, charge, penalty (other than tax penalties incurred as a result of Landlord’s gross negligence, inability or unwillingness to make payments when due) tax or similar imposition, imposed by any authority having the direct power to tax, including any city, county, state or federal government, or any school, agricultural, lighting, drainage, transportation or other improvement or special assessment district thereof, as against any legal or equitable interest of Landlord in the Premises, or any portion thereof, including, but not limited to, the following: (i) any tax on Landlord’s right to Rent or right to other income from the Premises, except to the extent such rent or other income from the Premises is taxed as a part of Landlord’s net income; (ii) any assessment, tax, fee, levy or charge on the Premises and Improvements in substitution, partially or totally, of any assessments, taxes, fees, levies and charges that may be imposed by governmental agencies for such services as fire protection, street, sidewalk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants (it being the intention of Tenant and Landlord that all such new and increased assessments, taxes, fees, levies and charges be included within the definition of Taxes for the purposes of this Lease); (iii) any assessment, tax, fee, levy or charge allocable to or measured by the area of the Premises or the Rent payable hereunder, including, without limitation, any gross income tax or excise tax levied by the state, city or federal government, or any political subdivision thereof, with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises, or any portion thereof; and (iv) any assessment, tax, fee, levy or charge upon this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises, or based upon a reassessment of the Premises, or any portion thereof, due to a change in ownership or transfer of all or part of Landlord’s interest in this Lease, the Premises or any portion thereof.

(b) Tenant acknowledges that the Improvements are included within a Tax Increment Financing District or a similar taxing district (as applicable, a “District”), which may impose additional taxes, service payments, or other payments per District by tenants operating within such District (the “District Taxes”) to pay for various on- and off-site improvements benefiting, directly or indirectly, the Improvements. Tenant agrees to comply with any and all rules and regulations of each District and any successor or replacement taxing district imposing comparable additional tax obligations, and to reasonably cooperate with Landlord in the establishment and administration of same, including but not limited to promptly collecting and remitting the additional District Taxes as required by Applicable Laws. Tenant shall cause all subtenants under Subleases and licensees under Occupancy Agreements to comply with any and all District requests and obligations.

Section 4.02. Proration of First and Last Year Taxes. Notwithstanding the provisions of Section 4.01 of this Lease, all Taxes levied or assessed during the tax years in which the Term ends shall be prorated between Landlord and Tenant as of the date the Term ends on the basis of tax years that commence on January 1 and end on December 31 of each year. Tenant shall pay the Taxes for the year in which the Term commences. Landlord shall pay the Taxes for the year in which the Term ends, and Tenant shall promptly, on service of written request by Landlord, reimburse Landlord for Tenant’s share of those Taxes; provided, however, at Landlord’s option, Landlord may elect to cause Tenant to pay into escrow, and Tenant agrees to pay upon notice from Landlord, monthly estimated installments of Taxes for the last year of the Term beginning not sooner than two years prior to the expiration date of this Lease.

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Section 4.03. Payment Before Delinquency. Any and all Taxes and installments of Taxes required to be paid by Tenant under this Lease shall be paid by Tenant before each of the Taxes or installment of Taxes becomes delinquent.

Section 4.04. Taxes Payable in Installments. Should any of the Taxes be levied on or assessed against the Premises that may be either paid in full before a delinquency date within the Term or paid in installments over a period either within or extending beyond this Lease, Tenant shall have the option of paying the applicable Taxes in installments. The fact that the exercise of the option to pay the Taxes in installments will cause the Premises to be encumbered with bonds or will cause interest to accrue on the Taxes is immaterial and shall not interfere with the free exercise of the option by Tenant. Should Tenant exercise the option to pay any such Taxes in installments, Tenant shall be liable to pay only those installments attributable to any period within the Term. Landlord shall cooperate with Tenant and on written request of Tenant execute or join with Tenant in executing any instruments required to permit any such Taxes to be paid in installments.

Section 4.05. Contest of Tax. Tenant shall have the right to contest, oppose, or object to the amount or validity of any of the Taxes levied on or assessed against the Premises or any part of the Premises; provided, however, that the contest, opposition, or objection must be filed before the Taxes at which it is directed becomes delinquent. Landlord shall, on written request of Tenant, join in any such contest, opposition, or objection if Tenant determines that joinder is necessary or convenient for the proper prosecution of the proceedings. Tenant shall be responsible for and shall pay all costs and expenses in any contest or legal proceeding instituted by Tenant. In no event shall Landlord be subjected to any liability for costs or expenses connected to any contest by Tenant, and Tenant agrees to indemnify and hold Landlord harmless from any such costs and expenses. Furthermore, no such contest, opposition, or objection shall be continued or maintained after the date the Taxes at which it is directed become delinquent unless Tenant has done one of the following:

(a) Paid the Taxes under protest before delinquency;

(b) Obtained and maintained a stay of all proceedings for enforcement and collection of the Taxes by posting a bond or other security required by law for such a stay; or

(c) Delivered to Landlord a good and sufficient surety bond in an amount specified by Landlord and issued by a bonding corporation licensed to do business in Ohio, conditioned on the payment by Tenant of the Taxes together with any fines, interest, penalties, costs, and expenses that may have accrued or been imposed thereon within thirty (30) days after final determination of Tenant’s contest, opposition, or objection to the Taxes.

Section 4.06. Tax Reports. Tenant shall, as between Landlord and Tenant, have the duty of attending to, preparing, making, and filing any statement, return, report, or other instrument required or permitted by Applicable Laws in connection with the determination, equalization, reduction, or payment of any Taxes levied on or assessed against the Premises, the Improvements located on the Premises, personal property located on or in the Premises or Improvements, and the leasehold estate created by this Lease and Tenant shall provide to Landlord a copy thereof within ten (10) days after any such filing.

Section 4.07. Tax Hold-Harmless Clauses. Tenant shall indemnify and hold Landlord and the Premises and any Improvements now or subsequently located on the Premises, free and harmless from any liability, loss, or damage resulting from any Taxes and District Taxes required by this Article to be paid by Tenant and from all interest, penalties, and other sums imposed thereon and from any sales or other proceedings to enforce collection of any such Taxes.

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Section 4.08. Utilities. Tenant shall pay or cause to be paid prior to the delinquency date therefor, and hold Landlord free and harmless from, all charges for the furnishing of gas, water, sewer, electricity, telephone service, and other public utilities to the Premises during the Term and for the removal of garbage and rubbish from the Premises during the Term. Without limiting the generality of the foregoing, Tenant shall be solely responsible for all utility hook-up, connection, impact, metering and other fees in connection with utility service for the Premises.

Section 4.09. Payment by Landlord. Should Tenant fail to pay within the time specified in this Article any Taxes or utility charges pursuant to Section 4.08, required by this Article to be paid by Tenant, Landlord may, without notice to or demand on Tenant, pay or discharge such Taxes or utility charges. In that event, Tenant shall within ten (10) days following receipt of written demand from Landlord reimburse Landlord for the full amount paid by Landlord in paying or discharging such Taxes or utility charges together with interest thereon at the then Interest Rate from the date of payment by Landlord until the date of repayment by Tenant. If this Article does not specify the time within which Tenant must pay any utility charge required by this Article, Tenant shall pay that utility charge before it becomes delinquent.

ARTICLE V

CONSTRUCTION BY TENANT

Section 5.01. Duty to Construct. Tenant shall, at Tenant’s sole cost and expense, construct or cause the Project to be constructed on the Premises in general accordance with the development approvals and entitlements issued to Tenant from all applicable governmental agencies for the development and construction of the Project (the “Final Approvals”). Any material deviation in design or construction of the Project from the Final Approvals shall be subject to Landlord’s prior written approval. A description of the Final Approvals is attached hereto as Exhibit C. Such construction shall be performed in the manner and according to the terms and conditions specified in this Article 5.

Section 5.02. All Work on Written Contract. All work required in the demolition of the existing improvements and construction of the new Improvements, including any site preparation work, landscaping work, and utility installation work, as well as actual construction work on the Improvements, shall be performed only by competent contractors licensed under the laws of the State of Ohio and reasonably experienced in performance of comparable work on comparable projects in Cleveland, Ohio, and shall be performed in accordance with written contracts with those contractors. Tenant shall complete the Project in compliance with the Existing Construction Documents. Landlord shall have a right to appoint a construction monitor in connection with Tenant’s construction of the Improvements under this Lease, at Tenant’s sole cost and expense. Tenant shall grant to such construction monitor full access to the Project, architect, general contractor and construction draw requests during construction. As used in this Lease, (i) “Existing Construction Documents” means, collectively, the General Construction Contract, the Architect’s Contract, the Plans and Specifications, and all other plans, drawings, contracts, licenses, permits, certificates (including without limitation certificates of occupancy), approvals, qualification statements and other similar documentation related to the development, construction, renovation, alteration or improvement of the Premises for the Permitted Use; (ii) “General Construction Contract” means the Guaranteed Maximum Price Contract dated as of February 8, 2021 , by and between HOF Village Retail I, LLC and Turner Construction/Hunt, and the Guaranteed Maximum Price Contract dated as of February 8, 2021 by and between HOF Village Retail II LLC and Turner Construction/Hunt, as amended, restated or otherwise modified from time to time; (iii) “Architect’s Contract” means the Agreement dated as of October 30, 2019, by and between Prime AE and HOF Village Retail I, LLC and HOF Village Retail II, LLC, as amended, restated or otherwise modified from time to time; and (iv) “Plans and Specifications” means the final plans and specifications for the development and construction of the Project, as the same may be amended from time to time, subject to the terms of this Lease. Tenant shall not materially amend, modify or restate any of the Existing Construction Documents without first obtaining Landlord’s written approval to such amendment, modification, or restatement. Prior to the date hereof, Tenant has caused each party to the General Construction Contract and the Architect’s Contract to execute an Acknowledgment of Third Party Beneficiary substantially in the form attached hereto as Exhibit G.

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Section 5.03. Compliance With Law and Standards. The Improvements shall be constructed and erected and all work on the Premises shall be performed in accordance with all Applicable Laws; provided, however, that the Improvements erected on the Premises, shall be deemed to have been constructed in full compliance with all Applicable Laws when a valid final certificate of occupancy or equivalent permit entitling Tenant and subtenants of Tenant to occupy and use the Improvements has been duly issued by proper governmental agencies or entities. All work performed on the Premises under this Lease, or authorized by this Lease, shall be done in a good workmanlike manner and only with new materials of good quality and high standard.

Section 5.04. Time for Completion. Tenant shall cause construction of the Project to be diligently pursued without unnecessary interruption and shall use commercially reasonable efforts to cause the Project to be Completed (as hereinafter defined) not later than February 15, 2023. As used in this Lease, the initially capitalized terms “Complete,” “Completed” and “Completion” mean the date that Tenant substantially completes the construction of the Project, as evidenced by (i) the issuance of one or more certificates of occupancy or the equivalent thereof for all of the building(s) comprising such Improvements, and (ii) receipt of unconditional lien waivers from all contractors, subcontractors and material suppliers with respect to the Project. The date of Tenant’s Completion of the Project shall be the “Completion Date”. Notwithstanding anything in this Article V to the contrary, Tenant shall complete all tenant improvements required under any Subleases or Occupancy Agreements by the dates required therein and the Project shall not be deemed Complete until said time. Any rentable portion of the Improvements that is not subject to a Sublease must be Completed to core and shell condition on or before November 15, 2022.

Section 5.05. Mechanics’ Liens. At all times during the Term, Tenant shall keep the Premises and all Improvements now or hereafter located on the Premises free and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Premises. Should Tenant fail to pay and discharge or cause the Premises to be released from any such lien or claim of lien within thirty (30) days after service on Tenant of written request from Landlord to do so, Landlord may pay, adjust, compromise, and discharge any such lien or claim of lien on any terms and in any manner that Landlord may deem appropriate. In that event, Tenant shall, on or before the first day of the next calendar month following any such payment by Landlord, reimburse Landlord for the full amount paid by Landlord in paying, adjusting, compromising, and discharging that lien or claim of lien, including any attorneys’ fees or other costs expended by Landlord, together with interest at the then Interest Rate from the date of payment by Landlord to the date of repayment by Tenant.

Section 5.06. Execution of Tract Maps and Dedications. Landlord agrees, within ten (10) days of Tenant’s written request, to take the following actions if and to the extent required to implement and/or finalize the Final Approvals for the Project:

(a) Join in and execute a parcel map and/or one or more final maps for further subdivision of the Premises;

(b) Join in the grants of easements to public and/or private utility companies required to provide utility services to the Improvements or within the right-of-way of any streets shown on a recorded final map or parcel map;

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(c) Execute consents and/or join in the grants of easement to public agencies required for open space, park or similar purposes; and

(d) Execute consents to or join in (i) any reciprocal easement agreement or covenants, conditions, easements and/or restrictions entered into by Tenant or its predecessors as declarants or with owners or tenants of adjoining property, in connection with the creation, improvement, use and maintenance of any new or existing appurtenant easements required to construct and operate the Premises or the Hall of Fame Village as an integrated, planned development, and (ii) any supplement or amendment to existing tax increment financing declarations and agreements, tourism development district agreements and petitions, liquor control agreements and petitions, and similar agreements, declarations and petitions now or hereafter existing which promote and protect the Hall of Fame Village as an integrated development and tourist attraction, unless any such requested item causes a detriment to the Premises, Improvements or Landlord.

Notwithstanding anything in this section to the contrary, Landlord shall have the right to review and approve of any such map, easement, consent, grant, agreement, covenant, condition, easement, restriction, instrument and/or other document to be so executed or joined in by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed.

Section 5.07. Zoning and Use Permits. Should Tenant deem it necessary or appropriate to obtain any use permit, variance, or rezoning of the Premises to construct or operate the Project or other Improvements for other uses consented to by Landlord under Section 3.01 above, Landlord agrees to reasonably cooperate and execute such documents, petitions, applications, and authorizations that may be necessary or appropriate; provided, however, that any such permits, variances, or rezoning shall be obtained at the sole cost and expense of Tenant and Tenant agrees to reimburse Landlord for any out of pocket cost incurred by Landlord in connection therewith; and provided that Landlord shall have the right to review and approve of any such documents, petitions, applications, authorizations and/or other instrument to be so executed or joined in by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed.

Section 5.08. Ownership of Improvements. Title to all Improvements, including the Project to be constructed on the Premises by Tenant, shall be owned by Tenant until expiration of the Term or earlier termination of this Lease, including, without limitation, termination by Landlord upon an Event of Default or rejection of this Lease under any bankruptcy proceedings. All Improvements on the Premises, including the Project, shall, at the expiration of the Term or earlier termination of this Lease, without compensation to Tenant, automatically and without any act of Tenant or any third party become Landlord’s property, unless Landlord enters into a New Lease (as such term is defined in Section 6.08) with Lender (hereinafter defined) or Lender’s assignee pursuant to Section 6.08 of this Lease. Tenant shall surrender the Improvements to Landlord at the expiration of the Term or earlier termination of this Lease, free and clear of all liens and encumbrances, other than those, if any, expressly permitted under this Lease to survive the expiration of the Term or earlier termination of this Lease, or otherwise created or consented to by Landlord. After expiration or earlier termination of this Lease, Tenant agrees to execute, acknowledge, and deliver to Landlord any instrument requested by Landlord as necessary in Landlord’s opinion to perfect Landlord’s right, title, and interest to the Improvements and the Premises. The term “Improvements” shall not include trade fixtures and furnishings installed by or under Tenant or Tenant’s subtenants which shall remain the property of Tenant or its subtenants and shall be removable at any time during the Term at the sole cost and expense of the person removing the same who shall repair any damage or injury to the Improvements occasioned by the removal thereof. The exercise of the Purchase Right (as defined in Section 12.05(a)) shall not be treated as an early termination of this Lease for purposes of this Section 5.08.

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Section 5.09. Tenant Improvement Allowance.

(a) Tenant’s construction of the Project in compliance with the Final Approvals will be at Tenant’s expense as set forth on the budget attached hereto as Exhibit H (the “Budget”), but Landlord shall provide Tenant with an amount equal to Eighteen Million Two Hundred Thousand and 00/100 Dollars ($18,200,000.00) (the “Tenant Improvement Allowance”) towards (1) the purchase price contained in that certain Purchase and Sale Agreement dated on or around September 27, 2022 between Tenant, as seller, and Landlord, as purchaser (as amended, modified or assigned, collectively, the “PSA”), for Landlord’s purchase of the Premises, (2) the payment of a portion of the costs contemplated by the Budget or as otherwise may be incurred in the construction of the Improvements and the Project, and (3) the payment of an amount not to exceed Two Million Six Hundred Thirty One Thousand Four Hundred Eighty and 63/100 Dollars ($2,631,480.63) (the “Capitalized Rent”) towards the payment of Base Rent and Supplemental Rent through October 31, 2024, and (4) the payment of other fees and expenses of Tenant as reasonably approved by Landlord, including without limitation the Finance Fee (as defined in the PSA). On the Commencement Date Tenant acknowledges and agrees that the disbursements contained on Exhibit J attached hereto are true and correct. The amounts identified on Exhibit J attached hereto as “Future Disbursements” shall be held by Tenant in an account in Tenant’s Name at Huntington National Bank with account number 01663173917 for the sole purpose to be used as and for the draws identified in Exhibit J attached hereto. Except as otherwise set forth in the Budget, the Tenant Improvement Allowance shall not be distributed to the members of Tenant or used as a payment or a reimbursement to any Tenant affiliates.

(b) Upon Completion on or before the Completion Date, Tenant shall deliver to Landlord a statement from Tenant certifying that the Project has been completed in accordance with the terms of all Subleases and Occupancy Agreements and the Existing Construction Documents, free and clear of all liens.

(c) Tenant shall cause all draw requests for “Future Disbursements” identified in Exhibit J attached hereto and from Lender to be reviewed and processed through a third party construction monitor for which Landlord shall have an opportunity to review and discuss with such third party construction monitor. All funds used for Completion shall first come from Tenant out of Tenant’s operating account pursuant to Section 5.09(a) of this Lease, and thereafter from Lender until the Project is Complete. Tenant shall deliver to Landlord, at the same time Tenant delivers to its Lender or any other third parties, copies of all documentation provided to its Lender relating to draw requests and disbursements of the loan being provided by the Lender.

(d) Tenant shall deliver to Landlord a satisfactory as-built ALTA/NSPS survey of the Project within sixty (60) days after the Completion Date.

(e) Notwithstanding the foregoing, Tenant represents and warrants that the work described on Exhibit N has been completed as of the Commencement Date and that Landlord, based on this representation and warranty, has agreed to advance $15,568,519.36 of the Tenant Improvement Allowance to Tenant as of the Commencement Date for reimbursement for such work and costs and expenses for completing this Lease. Tenant represents and warrants to Landlord that as of the Commencement Date, Tenant has contributed no less than $29,141,401.00 of Tenant’s own funds towards Completion of the Project and in no event shall there ever be less than $21,324,196.00 of Tenant’s equity in the Project without the prior written consent of Landlord.

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(f)   Notwithstanding anything in this Article V to the contrary, if, in the reasonable opinion of Landlord, at any time, the sources of funds needed to Complete the Project is at any time less (the amount by which it is less being hereinafter referred to as a “Deficiency”) than the actual sum, as estimated by Landlord, which will be required to Complete construction of the Project in accordance with the Plans and Specifications and this Lease and all costs and expenses of any nature whatsoever which will be incurred in connection with the Completion of construction of the Project and all operating deficits of the Project, then Tenant shall, within ten (10) days after being notified by Landlord that there is or will be a Deficiency, either (i) commit to Landlord in writing that it shall invest in the Project in a manner satisfactory to Landlord an amount equal to such Deficiency and deliver to Landlord evidence satisfactory to Landlord of such investment, or (ii) deposit with Landlord an amount sufficient to eliminate the Deficiency. Any amounts deposited by Tenant with Landlord to pay the Deficiency shall not bear interest, shall be held separate and in trust, and shall be applied by Landlord, as Landlord shall direct, to pay costs as construction of the Improvements progresses. If a default or breach of this Lease shall occur and be continuing, Landlord, in addition to all other rights which it may have, shall have the unconditional right, at its option, to apply, in whole or in part, any amounts deposited by Tenant with Landlord with respect to the Deficiency, for any purpose, including but not limited to (1) payment of Rent; (2) reimbursement of Landlord for all losses and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Landlord as a result of such default; or (3) payment of any amount expended in exercising (and exercise) all rights and remedies available to Landlord at law or in equity or under this Lease.

Section 5.10. Additional Covenants of Tenant.

(a) No later than thirty (30) days after the Commencement Date, Tenant shall deliver to Landlord an estoppel certificate from the association or parties to that certain Reciprocal Easement and Restrictive Covenant Agreement filed for record March 11, 2016 in instrument No. 201603110009295, certified to Landlord, stating such information and facts as required pursuant to Section 7.6 thereof.

(b) No later than ninety (90) days after the Commencement Date, Tenant shall cause the following easements granting utility rights under the Improvements to be released with such releases to be recorded in the Stark County, Ohio recorder’s office:

(1) Easement to The Ohio Power Company, filed for record March 11, 1932, in Deed Book 1079, Page 498

(2) Easement to The Ohio Power Company, filed for record March 11, 1932, in Deed Book 1079, Page 499

(3) Easement to The Ohio Power Company, filed for record March 11, 1932, in Deed Book 1079, Page 500

(4) Easement to The Ohio Power Company, filed for record October 4, 1938, in Deed Book 1195, Page 434

(5) Easement to The Ohio Power Company, filed for record September 2, 1939, in Deed Book 1236, Page 564

(6) Plat filed for record on October 16, 2017 in Instrument 201710160043476

(7) Plat filed for record on March 25, 2022 in Instrument 202203250013418

(c) No later than ninety (90) days after the Commencement Date, Tenant shall cause the following easements granting blanket utility rights on, over, under and across the Land to be amended to prohibit easement rights under any Improvements with such amendments to be recorded in the Stark County, Ohio recorder’s office:

(1) Easement and Right of Way to The Ohio Power Company, filed for record September 15, 2022 in Instrument 202209150039089

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ARTICLE VI

ENCUMBRANCE OF LEASEHOLD ESTATE

Section 6.01. Tenant’s Right to Encumber. Tenant may, at any time and from time to time during the Term, encumber to a Lender, by deed of trust or mortgage or other security instrument, Tenant’s interest under this Lease and the leasehold estate hereby created in Tenant (referred to in this Lease as a “Leasehold Encumbrance”) for any purpose or purposes without the consent of Landlord; provided, however, any Leasehold Encumbrance obtained prior to the Completion Date shall not be assigned by the Lender of such Leasehold Encumbrance, nor shall such Leasehold Encumbrance be refinanced by Tenant, in either case until after the Completion Date. As used in this Lease, “Lender” shall mean a commercial bank or trust company (whether acting individually or in any fiduciary capacity), an insurance company, an institutional pension or retirement fund or system, a real estate investment trust or any other person or entity with assets (capital and surplus) in excess of Five Hundred Million Dollars ($500,000,000), whose businesses include interim, construction or permanent lending secured by real estate. Notwithstanding anything to the contrary contained in this Lease, no Leasehold Encumbrance incurred by Tenant in accordance with this Section shall, and Tenant shall not have power to incur any encumbrance that shall, constitute in any way a lien or encumbrance on Landlord’s fee interest in the Premises. Any Leasehold Encumbrance shall be subject to all covenants, conditions, and restrictions set forth in this Lease and to all rights and interests of Landlord, unless and to the extent expressly provided in this Article 6. Tenant shall give Landlord prior written notice of any Leasehold Encumbrance, together with a copy of the deed of trust, mortgage, or other security interest evidencing the Leasehold Encumbrance. The initial Lender holding a Leasehold Encumbrance shall be The Huntington National Bank, a national banking association.

Section 6.02. Notice to and Service on Lender. Landlord shall give to any Lender who has given Landlord written notice of its name and address, concurrently when given to or served on Tenant, a duplicate copy of any and all notices Landlord may from time to time give to or serve on Tenant in accordance with or relating to this Lease, including but not limited to any notice of default, notice of termination, or notice regarding any matter on which Landlord may predicate or claim a default. Any notices or other communications permitted by this or any other section of this Lease or by law to be served on or given to Lender by Landlord shall be deemed duly served on or given to Lender in the manner provided for under Section 13.05 below at the last mailing address for Lender, furnished in writing by Lender or Tenant to Landlord.

Section 6.03. No Termination Without Lender’s Consent.  For so long as there is any Leasehold Encumbrance in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not, by mutual agreement, (a) cancel or terminate this Lease or (b) modify, amend or change any provision of this Lease that adversely affects Lender’s interest herein, including but not limited to, any increase in Rent, without the express prior written consent of Lender having that Leasehold Encumbrance.  Landlord agrees for the benefit of any Lender having a Leasehold Encumbrance, that this Lease is not terminable by Landlord as a result of status or other defaults of Tenant that by their nature are not capable of being cured by Lender so long as Base Rent and other obligations which are capable of performance by the Lender under this Lease are being paid and/or performed.  In addition, any right of Tenant to treat this Lease as terminated in the event of Landlord’s bankruptcy cannot be exercised without Lender’s express prior written consent.

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Section 6.04. Right of Lender to Realize on Security. A Lender with a Leasehold Encumbrance shall have the right, without obtaining any consent or approval from Landlord or Tenant, at any time during the Term and the existence of the Leasehold Encumbrance to do one or more of the following:

(a) Perform any of Tenant’s obligations or exercise any of Tenant’s rights under this Lease, or do any such act or thing required or permitted of Tenant under this Lease and Landlord agrees to accept the performance by Lender of Tenant’s obligations or rights under this Lease and/or any such act or thing done and performed by Lender for and on behalf of Tenant or in the place of Tenant, as if such performance, exercise, action or thing were done by Tenant; and

(b) Realize on the security afforded by the leasehold estate by foreclosure proceedings, accepting an assignment in lieu of foreclosure, or other remedy afforded in law or in equity or by the security instrument evidencing the Leasehold Encumbrance (referred to in this Lease as the “Security Instrument”), and

(c) To transfer, convey, or assign the title of Tenant to the leasehold estate created by this Lease (or to cause the trustee under any deed of trust to so transfer, convey or assign) to any purchaser at any foreclosure sale, whether the foreclosure sale is conducted under court order or a power of sale contained in the Security Instrument, or to an assignee under an assignment in lieu of foreclosure; and

(d) To acquire and succeed to the interest of Tenant under this Lease by virtue of any foreclosure sale, whether the foreclosure sale is conducted under a court order or a power of sale contained in the Security Instrument, or by virtue of an assignment in lieu of foreclosure.

Notwithstanding anything to the contrary set forth elsewhere in this Lease, the Lender or its assigns acquiring the leasehold estate shall assume the obligations of “Tenant” under this Lease and be liable to perform Tenant’s obligations under this Lease, only during the period, if any, in which that entity or person has ownership of the leasehold estate created by this Lease or possession of the Premises and the liability of the Lender and its affiliates during such period shall be limited to the value of their interests in this Lease and the leasehold estate created by this Lease. Landlord shall recognize the Lender or its assigns which acquire the leasehold estate by a foreclosure sale or an assignment in lieu of foreclosure as the “Tenant” under this Lease for all purposes.

Section 6.05. Right of Lender to Cure Defaults. For as long as there is in effect any Leasehold Encumbrance, before Landlord may terminate this Lease because of any default under or breach of this Lease by Tenant, Landlord must give written notice of the default or breach to Lender (the copy of the notice of default by Tenant to be provided by Landlord to the Lender pursuant to Section 6.02 above shall satisfy this notice requirement) and afford Lender the opportunity after service of the notice to do one or more of the following:

(a) Cure the breach or default within forty-five (45) days following the receipt of such notice by Lender when the default can be cured by the payment of money to Landlord or some other person;

(b) Cure the breach or default within sixty (60) days following the receipt of such notice by Lender (the “60 Day Non-Monetary Cure Period”) when the breach or default must be cured by something other than the payment of money and can, with reasonable diligence be cured by the Lender within that time;

(c) Cure the breach or default in any reasonable time that may be required, when the breach or default must be cured by something other than the payment of money and such cure cannot be performed by the Lender, assuming reasonable diligence, within the 60 Day Non-Monetary Cure Period, provided that acts to cure the breach or default (or to obtain possession by way of receiver to permit the cure of a breach or default) are commenced within the 60 Day Non-Monetary Cure Period, and are thereafter reasonably diligently continued by Lender; provided however, such period of time shall in no event exceed one hundred twenty (120) days after Lender’s receipt of notice of default or breach; or

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(d) In the case of a breach or default which cannot be cured by Lender, permit the Lender to pursue its foreclosure remedies as provided in Section 6.06 below to completion or acquire title, in its own name or in the name of a nominee, to the leasehold estate created by this Lease by an assignment in lieu of foreclosure, at which time said breach or default shall be deemed to have been cured.

Notwithstanding anything to the contrary, (i) no Lender shall have a duty to cure, (ii) Landlord shall be obligated to accept any cure tendered by Lender in accordance with the terms of this Lease, (iii) no election to cure on the part of any Lender shall cause such Lender to be a mortgagee in possession, and (iv) no written notice provided under this section for a default under or breach of this Lease by Tenant shall be effective against Lender unless concurrently provided to Tenant.

Section 6.06. Foreclosure in Lieu of Curing Default. Notwithstanding any other provision of this Lease, a Lender under a Leasehold Encumbrance may forestall termination of this Lease by Landlord for a default under or breach of this Lease by Tenant by commencing proceedings to foreclose the Leasehold Encumbrance. The proceedings so commenced may be for foreclosure of the Leasehold Encumbrance by order of court or for foreclosure of the Leasehold Encumbrance under a power of sale contained in the Security Instrument. The proceedings shall not, however, forestall termination of this Lease by Landlord for the default or breach by Tenant unless all of the following conditions are met:

(a) The proceedings are commenced by Lender within five (5) business days following the time period granted Lender under Section 6.05 of this Lease to cure such default or breach by Tenant;

(b) The proceedings are, after having been commenced, reasonably diligently pursued in the manner required by law and the Leasehold Encumbrance to completion subject to delays in obtaining any required leave of any court (as in the case of a Bankruptcy Proceeding (as hereinafter defined)); and

(c) Lender keeps and performs all of the terms, covenants, and conditions of this Lease requiring the payment or expenditure of money by Tenant until the foreclosure proceedings are complete or are discharged by redemption, satisfaction, payment, or conveyance of the leasehold estate to Lender; subject, however, to notice and opportunity to cure as provided in this Article 6 and in Article 11 below.

In the event Landlord determines that the conditions of subsection (b) of this Section 6.06 are not being met, Landlord shall give written notice to Lender of such determination, and Lender shall have ten (10) business days following such notice to correct any deficiencies prior to Landlord pursuing termination of this Lease.

Section 6.07. Assignment Without Consent on Foreclosure. A transfer of Tenant’s leasehold interest under this Lease to any of the following in (a) through (c) below shall not require the prior consent of Landlord:

(a) A purchaser at a foreclosure sale of the Leasehold Encumbrance, whether the foreclosure sale is conducted under court order or a power of sale in the instrument creating the Leasehold Encumbrance, provided Lender under the Leasehold Encumbrance gives Landlord written notice of the transfer, including the name and address of the purchaser and the effective date of the transfer, and provided such purchaser assumes the remaining obligations under this Lease for the period of its ownership or possession;

(b) An assignee of the leasehold estate of Tenant under an assignment in lieu of foreclosure, provided Lender under the Leasehold Encumbrance gives Landlord written notice of the transfer, including the name and address of the assignee and the effective date of the assignment, and provided such assignee assumes the remaining obligations under this Lease for the period of its ownership or possession; or

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(c) A purchaser or assignee of the purchaser at a foreclosure sale of the Leasehold Encumbrance or of the assignee of the leasehold estate of Tenant acquired under an assignment in lieu of foreclosure, provided the purchaser or assignee delivers to Landlord its written agreement to be bound by all of the provisions of this Lease accruing and to be performed following the date such purchaser or assignee obtains title to the leasehold estate of Tenant under this Lease.

Section 6.08. New Lease to Lender. Notwithstanding any other provision of this Lease, should this Lease terminate for any reason, including, without limitation, because of any default under or breach of this Lease by Tenant or because of a rejection or non-conformance of this Lease in bankruptcy, Landlord agrees to give immediate written notice of the termination of this Lease to the Lender under a Leasehold Encumbrance and to enter into a new Lease for the Premises with Lender (or a nominee of Lender) under a Leasehold Encumbrance, as Tenant (a “New Lease”), provided all of the following conditions are satisfied:

(a) A written request for the New Lease is served on Landlord by Lender within thirty (30) days after Lender’s receipt of written notice of the termination of this Lease;

(b) The New Lease:

(1) Is for a term ending on the same date the Term would have ended had this Lease not been terminated;

(2) Provides for the payment of rent at the same rate that would have been payable under this Lease during the remaining Term had this Lease not been terminated; and

(3) Contains the same terms, covenants, conditions, and provisions as are contained in this Lease (except those that (i) have already been fulfilled; (ii) are prohibited by virtue of Lender’s legal status; (iii) are impossible for Lender to perform; or (iv) are no longer applicable);

(c) Lender, on execution of the New Lease by Landlord, shall pay any and all sums that would at the time of the execution of the New Lease be due under this Lease but for its termination, and shall otherwise fully remedy, or agree in writing to remedy, any other defaults under or breaches of this Lease committed by Tenant that can be remedied by Lender and any defaults or breaches of this Lease which cannot be remedied by Lender shall be deemed cured or waived and Landlord shall pay to Lender any and all sums (e.g., rent under subleases) that were collected by Landlord during the period of time while this Lease was terminated and, if this Lease had been in effect at the time Landlord collected such sums, would have been the property of Tenant;

(d) Lender, on execution of the New Lease, shall pay all reasonable costs and expenses, including attorneys’ fees and court costs, incurred in terminating this Lease, recovering possession of the Premises from Tenant or the representative of Tenant, and preparing the New Lease;

(e) The New Lease shall be subject to all existing subleases between Tenant and subtenants, provided that for any sublease, the subtenant agrees in writing to attorn to Lender (or its assignee) and in connection therewith Landlord shall assign to Lender any such subleases which became vested in Lender upon the termination of this Lease;

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(f)   The New Lease shall be assignable by Lender and by any affiliate of Lender or nominee of Lender to a Qualified Transferee, but not by their respective successors, without the prior written consent of Landlord, unless and to the extent otherwise provided in Article 10. And upon any such assignment to an assignee assuming the remaining obligations of Tenant under this Lease, the assignor shall be released from any and all further liability under the New Lease arising following the date of such assignment;

(g) Any New Lease shall enjoy the same priority in time and in right as this Lease over any lien, encumbrance or other interest created by Landlord before or after the date of such New Lease, to the extent permitted by law;

(h) Upon the execution and delivery of the New Lease, title to all Improvements as well as all equipment, fixtures and machinery thereunder, shall automatically vest in the Lender or its nominee as the new Tenant under this Lease until the expiration of the Term or earlier termination of the New Lease; and

(i)   Any New Lease shall be assignable by Lender to a Qualified Transferee without the prior consent of Landlord; provided, however, such assignee of the New Lease shall be subject to all other provisions of this Lease, including, without limitation, Section 10.02. For purposes hereof, a “Qualified Transferee” is a purchaser or assignee together with any of its Affiliates that is not then a party to any litigation (or a potential party with respect to any potential litigation threatened in writing) with Landlord or any Landlord Affiliate, or a lender of a Fee Mortgage, provided that Lender may, from time to time during the Term, in writing, submit to Landlord the name of a prospective purchaser or assignee along with a request that Landlord confirm within no more than ten (10) business days whether such prospective purchaser or assignee satisfies this requirement, and if Landlord fails to respond within such ten (10) business day period and such failure continues for five (5) business days after a second written notice of such request from Lender to Landlord, then such prospective purchaser or assignee shall be deemed a Qualified Transferee. For purposes of this Section 6.08, the term “Affiliate” shall mean, with respect to any natural person or any legal entity, any other person or legal entity directly or indirectly controlling, controlled by or under common control with such person or legal entity.

Section 6.09. No Merger of Leasehold and Fee Estates. For as long as any Leasehold Encumbrance is in existence, there shall be no merger of the leasehold estate created by this Lease and the fee estate of Landlord in the Premises merely because both estates have been acquired or become vested in the same person or entity, unless Lender otherwise consents in writing.

Section 6.10. Lender as Assignee of Lease. No Lender under any Leasehold Encumbrance shall be liable to Landlord as an assignee of this Lease unless and until Lender acquires all rights of Tenant under this Lease through foreclosure, an assignment in lieu of foreclosure, or as a result of some other action or remedy provided by law or by the instrument creating the Leasehold Encumbrance and such liability shall be limited to (a) the monetary obligations that arise during the period of time that Lender has ownership of the leasehold estate created by this Lease; and (b) the value of the Lender’s interest in such leasehold estate. Following the assignment of Lender’s interest in any Leasehold Encumbrance to any third party not affiliated with Lender, Lender shall be fully released from any further liability to Landlord.

Section 6.11. Lender as Including Subsequent Security Holders. The term “Lender” as used in this Lease shall mean not only the party that loaned money to Tenant and is named as beneficiary, mortgagee, secured party, or security holder in a Security Instrument creating any Leasehold Encumbrance, but also its affiliates and successors and assigns of record to the Lender’s interest as beneficiary, mortgagee and/or secured party, as applicable, of the Leasehold Encumbrance.

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Section 6.12. Two or More Lenders. In the event two or more Lenders each exercise their rights under this Lease and there is a conflict that renders it impossible to comply with all requests of Lenders, the Lender whose Leasehold Encumbrance would have senior priority in the event of a foreclosure shall prevail.

Section 6.13. Extension of Time for Lender Performance. All time periods for Lender’s cure of non-monetary defaults under this Lease that require possession of the Premises for such cure and all time periods for Lender’s foreclosure or exercise of other remedies for Tenant’s default are extended for a period of time equal to any stay, prevention or other delay resulting from Bankruptcy Proceedings (as such term is defined below).

Section 6.14. Additional Lender Assurances. In order to facilitate any financing or refinancing by Tenant which involves the hypothecation of Tenant’s leasehold estate created by this Lease and rights hereunder, Landlord, if requested so to do by Tenant, agrees to join in executing any instruments which legal counsel for any lender which is or may become a Lender and the holder of a Security Instrument may reasonably require in order to grant to the Lender or prospective Lender the right to act for Tenant in enforcing or exercising any of Tenant’s rights, options or remedies under this Lease, provided that in no event shall Landlord be required to incur any personal liability for the repayment of any obligations secured by any such hypothecation of the leasehold estate of Tenant nor to subordinate Landlord’s rights and reversionary interests in and to the Premises to any such hypothecation nor shall any such instrument adversely affect Landlord’s rental, Tenant’s payment of taxes, assessments, insurance and/or Tenant’s payment or performance of other obligations under this Lease or otherwise diminish or reduce Landlord’s rights under this Lease (including without limitation, Landlord’s rights under this Article), except in a de minimis manner.

Section 6.15. Bankruptcy.

(a) Affecting Tenant. If Tenant (as debtor in possession) or a trustee in bankruptcy for Tenant rejects this Lease in any bankruptcy, insolvency, reorganization, composition, or similar proceeding, whether voluntary or involuntary, under Title 11, United States Code, or any similar state or federal statute for the relief of debtors, including any assignment for the benefit of creditors or similar proceeding (each, a “Bankruptcy Proceeding”) affecting Tenant, then such rejection shall be deemed Tenant’s assignment of its interest in this Lease and the leasehold estate created by this Lease to a new tenant to be designated in writing by the Lender holding the most senior Leasehold Encumbrance, in the nature of an assignment in lieu of foreclosure, subject to all Security Instruments. Upon such deemed assignment, this Lease shall not terminate. Any such rejection (or deemed rejection) of this Lease for any reason whatsoever shall constitute cause for immediate relief from the automatic stay provisions under the Bankruptcy Proceedings, and Tenant stipulates that such automatic stay shall be lifted immediately and possession of the Premises will be delivered to Landlord immediately without the necessity of any further action by Landlord. Each Lender shall continue to have all the rights of a Lender as if the Bankruptcy Proceeding had not occurred, unless such Lender shall disapprove such deemed assignment by written notice delivered to Landlord within thirty (30) days after such Lender receives written notice of the rejection of this Lease in any Bankruptcy Proceeding. If any court of competent jurisdiction shall determine that this Lease shall have been terminated notwithstanding the deemed assignment provided for in place of rejection of this Lease, then each Lender shall continue to be entitled to a New Lease as provided in this Lease.

(b) Affecting Landlord. If Landlord (as debtor in possession) or a trustee in bankruptcy for Landlord rejects this Lease in any Bankruptcy Proceeding affecting Landlord, then:

(1) Assignment. Landlord and Tenant acknowledge that a Lender’s collateral includes all rights of Tenant under 11 U.S.C. § 365(h), all of which rights have been validly and effectively assigned to such Lender.

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(2) Tenant’s Election. Tenant’s right to elect to treat this Lease as terminated is subject to and conditioned upon each Lender’s express prior written consent. If Tenant purports, without each Lender’s express prior written consent, to elect to treat this Lease as terminated, then such election and purported termination shall be null, void, and of no force or effect. Lender shall have the right, to the exclusion of Tenant, to make any election and exercise any rights of Tenant under 11 U.S.C. § 365(h)(1). Provided that if a Lender shall have received written notice of Landlord’s Bankruptcy Proceeding simultaneously with written notice delivered to Tenant, such Lender’s rights under the preceding sentence must be exercised, if at all, subject to such time limits and requirements as would apply to Tenant, except that as against a Lender, every such time period shall be extended by thirty (30) days.

(3) Continuation of Lease. If Tenant does not, with each Lender’s express written consent, treat this Lease as terminated, then (notwithstanding any purported election by Tenant to the contrary made without each Lender’s express prior written consent) Tenant shall be deemed to have elected to continue this Lease pursuant to 11 U.S.C. § 365(h)(1)(A)(ii). This Lease shall continue in effect without change upon all the terms and conditions set forth in this Lease.

(4) Continuation of Security Instruments. The lien of any Security Instrument that was in effect before rejection of this Lease shall extend to Tenant’s continuing possessory and other rights under 11 U.S.C. § 365(h) in the Premises and this Lease following such rejection, with the same priority as such lien would have enjoyed against the leasehold estate created by this Lease had such rejection not taken place.

Section 6.16. Conflict. In the event the provisions of this Article 6 shall conflict with any other provision of this Lease, the provisions of this Article 6 shall govern and control.

Section 6.17. Reliance by Lender. Any Lender may rely on the provisions of this Lease for the benefit of a Lender, including this Article 6, and any Lender shall have the right to enforce any provision of this Lease for the benefit of Lender.

ARTICLE VII

REPAIRS AND RESTORATION

Section 7.01. Maintenance by Tenant. From and after the Commencement Date, Tenant shall, at Tenant’s own cost and expense, keep and maintain the Premises, all Improvements, and all appurtenances (including landscaped and parking areas) in good order and repair, reasonable wear and tear excepted, and in a safe and clean condition.

Section 7.02. Requirements of Governmental Agencies. At all times during the Term, Tenant, at Tenant’s own cost and expense, shall do all of the following:

(a) Make all alterations, additions, or repairs to the Premises or the Improvements on the Premises required by any valid law, ordinance, statute, order, or regulation now or hereafter made or issued by any Applicable Laws as a condition to continued occupancy;

(b) Observe and comply with all Applicable Laws now or hereafter made or issued respecting the Premises or the Improvements on the Premises;

(c) Contest if Tenant, in Tenant’s sole discretion, desires by appropriate legal proceedings brought in good faith and diligently prosecuted in the name of Tenant, or in the names of Tenant and Landlord when appropriate or required, the validity or applicability to the Premises of any Applicable Laws; provided, however, that any such contest or proceeding, though maintained in the names of Tenant and Landlord, shall be without cost or liability to Landlord, and Tenant shall protect the Premises, and Landlord from Tenant’s failure to observe or comply during the contest with Applicable Laws; and

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(d) Indemnify and hold Landlord and the property of Landlord, including the Premises, free and harmless from any and all liability, loss, damages, fines, penalties, claims, and actions resulting from Tenant’s failure to comply with and perform the requirements of this Section.

Section 7.03. Tenant’s Duty to Restore Premises. If at any time during the Term, any Improvements now or hereafter on the Premises are destroyed in whole or in part by fire, theft, the elements, or any other cause, this Lease shall continue in full force and effect and Tenant, at Tenant’s own cost and expense, shall repair and restore the damaged Improvements except as otherwise herein specifically provided. Any restoration by Tenant shall comply with the original plans for the Improvements described in Article 5, if and to the extent permitted by then Applicable Laws and to the availability of original materials, except as may be modified by Tenant, provided that any such modification which is materially different from the condition of the Improvements prior to the damage or destruction shall be subject to the prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. The work of repair and restoration shall be commenced by Tenant within a reasonable time after the damage or destruction occurs and insurance claims settled and funded and shall be completed with due diligence as soon as reasonably possible. In connection with any restoration of the Premises under this Section 7.03, Tenant’s restoration obligations with respect to the Improvements shall be supported by the Guaranty from Guarantor. Following any destruction of the Premises described in this Section 7.03, the date of Tenant’s full and complete restoration of the Project in accordance with this Section 7.03 shall be the “Restoration Date”. Notwithstanding the provisions of Section 13.14 of this Lease, Landlord agrees, upon Tenant’s written request, to provide written confirmation of the following: (a) that either (i) the modifications to the Improvements proposed by Tenant in connection with the restoration of the Improvements do not require Landlord’s approval; or (ii) if the modifications are material and require Landlord’s approval, that Landlord approves the plans and specifications provided by Tenant to Landlord for such modifications or, if the plans and specifications for such material modifications are reasonably disapproved by Landlord, a description of those changes to the plans and specifications required by Landlord for its approval; (b) that the date specified by Tenant to Landlord, in writing, for commencement of the restoration of the Premises and for completion of the restoration of the Premises, comply with the requirements of this Lease; and (c) that no other approvals are required of Landlord for Tenant to perform the restoration of the Premises. In all other respects, the work of repair and restoration shall be done in accordance with the requirements for the original construction work on the Premises set forth in Article 5 of this Lease. Tenant’s obligation for restoration described in this Section shall exist notwithstanding any insufficient insurance proceeds despite Tenant’s compliance with the insurance obligations set forth in Section 8.02 below.

Section 7.04. Application of Insurance Proceeds. Any and all fire or other insurance proceeds that become payable at any time during the Term because of damage to or destruction of any Improvements on the Premises shall be paid to Tenant’s Lender or designee as provided in the Leasehold Encumbrance, if any, or if none, to Tenant, and applied toward the cost of repairing and restoring the damaged or destroyed Improvements in the manner required by Section 7.03 of this Lease, so long as Applicable Laws permit reconstruction of the Improvements or other improvements proposed by Tenant and approved by Landlord. If not, the fire or other insurance proceeds shall be (a) first applied by Tenant toward payment of the Leasehold Encumbrance(s), if any; and (b) the balance, if any, shall be paid to Tenant. If the destroyed Improvements cannot be restored by Tenant, then Landlord shall have the right to force Tenant to purchase the Premises pursuant to the terms of Section 12.05 of this Lease.

Section 7.05. Waiver. Landlord and Tenant hereby waive the provisions of any statutes, court decisions or other applicable law which provide a party to a lease with a right to abatement of rent or termination of the lease when leased property is damaged or destroyed and agree that such event shall be exclusively governed by the terms of this Lease.

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Section 7.06. Settlement/Adjustment of Insurance Claims. Lender shall be entitled to participate in the adjustment and settlement of any insurance claims in the event the Improvements are damaged or destroyed by a casualty, and Tenant and Landlord agree to not settle or adjust any such insurance claims without the consent of Lender.

ARTICLE VIII

INDEMNITY AND INSURANCE

Section 8.01. Tenant’s Indemnity. Tenant shall indemnify and hold Landlord, and Landlord’s affiliates, and the Premises and Improvements now or hereafter on the Premises, free and harmless from any and all liability, claims, loss, damages, costs, or expenses, including reasonable attorneys’ fees (collectively, “Claims”) resulting from occupation, possession or use of the Premises by Tenant, any subtenant or licensee of Tenant or any of their respective employees, agents, contractors, invitees and/or guests (collectively, the “Tenant Parties”), specifically including, without limitation, any Claims arising by reason of the following:

(a) The death or injury of any person, including Tenant or any of the Tenant Parties, or by reason of the damage to or destruction of any property, including property owned by Tenant or by any of the Tenant Parties, from any cause whatsoever while that person or property is in or on the Premises or in any way connected with the Premises or with any of the Improvements or personal property on the Premises;

(b) The death or injury of any person, including Tenant or any of the Tenant Parties, or by reason of the damage to or destruction of any property, including property owned by Tenant or any person who is an employee or agent of Tenant, caused or allegedly caused by either (1) the condition of the Premises or some building or improvement on the Premises, or (2) some act or omission on the Premises of Tenant or any of the Tenant Parties;

(c) Any work performed on the Premises or materials furnished to the Premises at the instance or request of Tenant or any of the Tenant Parties; or

(d) Tenant’s failure to perform any provision of this Lease or to comply with any requirement of law or any requirement imposed on Tenant, the Improvements or the Premises by any duly authorized governmental agency or political subdivision.

Section 8.02. Tenant Insurance. During the Term of this Lease, Tenant shall at its expense comply with the requirements and maintain the insurance coverages identified on Exhibit F hereof (the “Insurance Requirements”). The proceeds of any property damage insurance coverage included in Insurance Requirements and maintained by Tenant, in case of total loss or significant damage, shall be held in trust by Lender holding a Leasehold Encumbrance and applied on account of the obligation of Tenant to repair and rebuild the Premises and Improvements pursuant (a) to this Lease (b) any documents of record, and (c) to the loan documents associated with the Leasehold Encumbrance to the extent that such proceeds are required for such purpose. Upon request, Tenant shall name the holder of any Fee Mortgage on the Premises and any Lender holding a Leasehold Encumbrance pursuant to a standard mortgagee, additional insured or loss payee clause as such holder shall elect with respect to the foregoing property insurance, provided such holder agrees with Tenant in writing to disburse such insurance proceeds to Tenant for, and periodically during the course of, repair and restoration of the Premises and the Improvements as set forth in this Lease and as set forth in the loan documents associated with the Leasehold Encumbrance. Only if all Lenders holding Leasehold Encumbrances have been paid in full, any insurance proceeds not required for the repair and restoration of the Premises and the Improvements shall be deposited with Landlord, except as may be otherwise mutually agreed by the parties in writing. Notwithstanding the foregoing, in the event that Tenant is insured by more than one insurance policy, such insurance policies shall not reduce the aggregate amount of insurance Tenant is required to maintain in accordance with the Insurance Requirements. Tenant shall pay costs for the insurance to be maintained hereunder, and all deductibles thereunder.

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Section 8.03. Deposit of Insurance With Landlord and Lender. Tenant shall, on the Commencement Date, and promptly thereafter at least thirty (30) days prior to the expiration of any then-existing policy, when any such policy is replaced, rewritten, or renewed, deliver to Landlord and Lender a true and correct copy of each insurance policy set forth in the Insurance Requirements or a certificate executed by the insurance company or companies or their authorized agent evidencing that policy or policies.

Section 8.04. Notice of Cancellation of Insurance. Each insurance policy required under the Insurance Requirements shall contain a provision that it cannot be cancelled or modified so as to no longer comply with the provisions hereof for any reason, unless at least thirty (30) days’ prior written notice (or, in the case of cancellation due to non-payment of premium, at least ten (10) days’ prior written notice) of the cancellation or modification is given to Landlord to the address for notices provided for in this Lease.

Section 8.05. Blanket Insurance Policies. Tenant may provide the insurance required under the Insurance Requirements by a blanket insurance policy or policies which cover other personal and real property owned or operated by Tenant or any affiliated entity provided that the protection afforded under any policy of blanket insurance hereunder shall be no less than that which would have been afforded under a separate policy or policies relating only to the Premises.

Section 8.06. Other Insurance Requirements. All policies of insurance maintained by Tenant under the Insurance Requirements shall be taken out with insurance companies holding a General Policyholders Rating of “A-” and a Financial Rating of “VIII” or better, as set forth in the most current issue of Best’s Insurance Reports. All policies of property damage insurance under the Insurance Requirements shall include a clause or endorsement denying the insurer any rights of subrogation against Landlord to the extent rights have been waived by the insured before the occurrence of injury or loss, and Tenant agrees that Landlord shall not be liable to Tenant for any damage caused by fire or any of the risks insured against or required to be insured against under any insurance policy required by this Lease. Tenant waives any rights of recovery against Landlord for injury or loss due to risks covered by or required to be covered by such policies of property damage insurance containing such a waiver of subrogation clause or endorsement.

Section 8.07. Failure to Procure Insurance. If Tenant fails to procure or renew the insurance required by this Article and does not cure such failure within five (5) business days after written notice from Landlord, then, in addition to the other rights and remedies provided under this Lease, Landlord may, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith. All monies so paid by Landlord shall be reimbursed by Tenant, with interest thereon at the Interest Rate, to Landlord within ten (10) days after Tenant’s receipt of written demand therefor.

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ARTICLE IX

CONDEMNATION

Section 9.01. Total Condemnation. If, during the Term, fee title to all of the Premises, all of the Improvements, and the entire leasehold estate of Tenant is taken under the power of eminent domain or should so much of the Premises be taken under the power of eminent domain as will, in Tenant’s reasonable determination, and subject to Lender’s written consent and approval in Lender’s sole discretion, prevent or substantially impair the use of the Premises for the use and purposes permitted hereunder, by any public or quasi-public agency or entity (a “Total Taking”), this Lease shall terminate as of 12:01 A.M. on whichever of the following occurs first: (1) the date legal title becomes vested in the agency or entity exercising the power of eminent domain, or (2) the date actual physical possession is taken by the agency or entity exercising the power of eminent domain. Thereafter, both Landlord and Tenant shall be released from all obligations under this Lease, except those that expressly survive termination of this Lease; except, however, that in the event of the termination of this Lease, at Landlord’s option, prior to surrender of the Premises to Landlord, Tenant, at Tenant’s sole cost, shall either raze all or a portion of the Improvements (but only to the extent then permitted by Applicable Laws), remove any debris and leave the Premises and any remaining Improvements in a safe condition in compliance with Applicable Laws. In the event of a Total Taking, Landlord shall have the right to force Tenant to purchase the Premises pursuant to the terms of Section 12.05 of this Lease.

Section 9.02. Partial Taking-Improvements. If at any time during the Term a taking occurs that is less than a Total Taking and affects the Improvements, including the parking spaces, all compensation and damages payable for that taking shall be held by Lender or Lender’s agent, and made available to and used, to the extent reasonably needed, by Tenant to provide replacement Improvements or to restore remaining Improvements, provided that such replacement and/or restoration is then permitted by existing law with only such modifications as will not materially reduce the value of the restored Improvements, as compared to the damaged Improvements. Plans and specifications for such replacements and restoration must be compatible, in terms of architecture and quality of construction, with the Improvements not taken. Any material changes to the site plan or elevations of the remaining or replacement Improvements, and the plans and specifications for such construction, must be first approved in writing by Landlord and any Lender holding a Leasehold Encumbrance, which approval will not be unreasonably withheld, conditioned or delayed. Notwithstanding the provisions of Section 13.14 of this Lease, Landlord and each Lender holding a Leasehold Encumbrance agree, upon Tenant’s written request, to provide written confirmation of the following: (a) that either (i) the plans and specifications for the replacements and restoration of the Improvements do not require Landlord’s or Lender’s approval; or (ii) if there are material changes to the site plan or elevations of the remaining or replacement Improvements that require Landlord’s or Lender’s approval, that Landlord and Lender approve the plans and specifications provided by Tenant to Landlord and Lender for such material changes or, if the plans and specifications for such material changes are reasonably disapproved by Landlord or Lender, a description of those changes to the plans and specifications required by Landlord or Lender for their approval; and (b) that no other approvals are required of Landlord or Lender for Tenant to replace and/or restore the Improvements on the remaining Premises.

Section 9.03. Condemnation Award. If Landlord has not elected to cause Tenant to purchase the Premises as provided in Section 9.01 above, then any compensation or damages awarded or payable because of the taking of all or any portion of the Premises by eminent domain shall be allocated among Landlord and Tenant as follows:

(a) All compensation or damages, other than any portion of an award described in Section 9.03(b) below, that are awarded or payable for the taking by eminent domain of any portion of the Premises (the “Award”) shall be allocated and paid (i) to Tenant in the same proportion that the appraised value of Tenant’s interests in the portion of the Premises (including the Improvements) and this Lease subject to the taking at the time of taking bears to the total value attributed to the portion of the Premises or portion of the Premises subject to the taking, at the time of taking; and (ii) to Landlord, the balance of the Award, if any. The term “time of taking” as used in this subparagraph shall mean 12:01 A.M. of whichever of the following shall first occur: the date that title, or the date that physical possession of the portion of the Premises on which the Improvements are located, is taken by the agency or entity exercising the eminent domain power.

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(b) Any severance damages to the Improvements, relocation costs, loss of goodwill or reimbursement for personal property awarded or payable if only a portion of the Premises is taken by eminent domain shall be delivered to Tenant.

(c) In the event a Total Taking occurs prior to completion of the Improvements, then (i) Landlord shall first be entitled to receive from the Award a return of all payments of the Rent Basis paid to Tenant or its affiliate pursuant to this Lease, (ii) Tenant shall next have the right to assert a claim with the condemning authority in the condemnation proceeding for the value of its interest in the Premises, and (iii) the balance of the Award shall be paid to Landlord.

(d) Landlord, Lender and Tenant shall each be entitled to appear and participate in any proceeding which determines the Award.

(e) If Tenant shall assign to any Lender Tenant’s share of any Award, Landlord shall recognize such assignment and shall consent to the payment of such Award as its interest may appear.

Section 9.04. Rent Abatement for Partial Taking. If title and possession of only a portion of the Premises is taken under the power of eminent domain by any public or quasi-public agency or entity during the Term and Tenant does not or cannot terminate this Lease, then this Lease shall terminate as to the portion of the Premises taken under eminent domain as of 12:01 A.M. on whichever of the following first occurs: the date title is taken, or the date actual physical possession of the portion taken by eminent domain is taken, by the agency or entity exercising the eminent domain power (the “Date of Taking”). Furthermore, the net amount received by Landlord for such partial taking shall be held by Landlord as additional security for Tenant’s performance of its obligations under this Lease.

Section 9.05. Voluntary Conveyance in Lieu of Eminent Domain. A voluntary conveyance by Landlord of title to all or a portion of its interest in the Premises to a public or quasi-public agency or entity in lieu of and under threat by that agency or entity to take it by eminent domain proceedings shall be considered a taking of title to all or a portion of the Premises under the power of eminent domain, provided that Landlord agrees to not voluntarily convey the Premises under threat of condemnation without the prior consent of Tenant and any Lender holding a Leasehold Encumbrance. Any taking of Landlord’s interest in the Premises shall be subject to this Lease and to the rights of Tenant and the Lender thereunder.

Section 9.06. Rights Upon Temporary Taking. If, at any time during the Term, the whole or any part of the Premises, or of Tenant’s leasehold estate created by this Lease, or of the Improvements shall be taken in condemnation proceedings or by any right of eminent domain for temporary use or occupancy (a “Temporary Taking”) the foregoing provisions of this Article 9 shall not apply and Tenant shall continue to pay, in the manner at the times specified in this Lease, the full amounts of the Rent and all other charges payable by Tenant under this Lease, and, except to the extent that Tenant may be prevented or inhibited from so doing pursuant to the terms of the order of the condemning authority, Tenant shall perform and observe all of the other terms, covenants, conditions and obligations of this Lease upon the part of Tenant to be performed and observed, as though such Temporary Taking had not occurred. Tenant shall be entitled to receive the portion of the Award for such Temporary Taking.

Section 9.07. Waiver. Landlord and Tenant hereby waive the provisions of any statutes, court decisions or other applicable law which provide a party to a lease with a right to abatement of rent or termination of the lease when leased property is condemned or taken and agree that such event shall be exclusively governed by the terms of this Lease.

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ARTICLE X

ASSIGNMENT AND SUBLEASING

Section 10.01. No Assignment Without Landlord’s Consent Prior to Completion. Except as otherwise provided in Article 6 above and Section 10.03 below, Tenant may not assign, transfer or otherwise encumber this Lease or any interest in this Lease, without the prior written consent of Landlord. Any (i) sale, assignment, pledge, transfer, exchange or other disposition of the stock, partnership interests, membership interests, or other equitable interests in Tenant or any person or entity controlling Tenant, which results in a change of control of Tenant; (ii) merger, consolidation or other combination of Tenant with another entity which results in a change of control of Tenant; or (iii) a recapitalization of Tenant which results in a change of control of Tenant, shall be deemed an assignment hereunder.

Section 10.02. Permitted Assignments. In the event that Tenant elects to sell, assign or otherwise transfer this Lease, or Tenant’s interest in the Project, in whole but not in part, to a third party at arm’s length (a “Permitted Third-Party Assignee”), then Landlord shall not unreasonably withhold its consent to such sale, assignment or transfer provided (i) the Project is Complete in accordance with the Existing Construction Documents; (ii) Tenant gives Landlord prior written notice of such sale or assignment; (iii) there shall exist no uncured breach by Tenant of this Lease as of the date of such sale or assignment; (iv) Tenant shall remain liable for any and all obligations of Tenant under this Lease for the period prior to the date of such assignment; (v) such assignment shall constitute an assignment of all of Tenant’s rights, and an assumption of all of Tenant’s obligations arising from and after the date of such assignment, under this Lease; (vi) such Permitted Third-Party Assignee expressly assumes in writing all of Tenant’s obligations under this Lease, in each case arising from and after the date of such assignment; (vii) such Permitted Third-Party Assignee covenants and agrees to continue to operate the Project for the Permitted Uses; (viii) such Permitted Third-Party Assignee has total assets exceeding $10,000,000.00; (ix) such Permitted Third-Party Assignee or its parent or affiliate has a demonstrated history of operating no less than three (3) other projects of comparable size as determined by the gross revenue generated from the Project; (x) such Permitted Third-Party Assignee is not, and/or is not controlled by, in Landlord’s reasonable determination, any person or entity known in the community as being of bad moral character or who has been convicted of a felony in any state or federal court; (xi) such Permitted Third-Party Assignee, or any affiliate thereof, is not, and/or is not controlled by any person or entity who have been previously involved in a material dispute (meaning a dispute or controversy involving an amount in excess of $50,000) with Landlord or any affiliate of Landlord concerning any matter; and (xii) such sale, assignment or transfer is approved by the holder of any Fee Mortgage, as applicable, and provided further that Tenant and Permitted Third-Party Assignee satisfy all commercially reasonable conditions and requirements imposed by the holder of any Fee Mortgage with respect to such sale, assignment or transfer.

Section 10.03. Leasehold Encumbrances and Subsequent Transfers. Notwithstanding the provisions of Section 10.01 of this Lease, Tenant may without the prior written consent of Landlord transfer and assign all Tenant’s interest under this Lease or any New Lease entered into pursuant to Section 6.08 above and Tenant’s leasehold estate created under this Lease or under any New Lease to a Lender under a Leasehold Encumbrance (as defined in Section 6.01 of this Lease). Any transfer, conveyance, or assignment resulting from a foreclosure or acceptance of a deed in lieu of foreclosure by any Lender (as defined in Section 6.01 of this Lease), or any transfer, conveyance, or assignment by any Lender or by any affiliate of Lender or nominee of Lender acquiring the leasehold estate of Tenant created by this Lease as a result of foreclosure or acceptance of a deed in lieu of foreclosure, shall not require the prior consent of Landlord.

Section 10.04. Tenant’s Right to Enter Into Subleases and Occupancy Agreements. Tenant shall have the right to enter into, modify, and amend subleases of all or any portion of the Improvements (collectively, “Subleases”) and concession agreements, license agreements, and other occupancy agreements (collectively, “Occupancy Agreements”) from time to time, and at all times during the Term, subject to the provisions of this Section 10.04; provided, however, any such Subleases and Occupancy Agreements shall not be for a term that extends past the term of this Lease. Any Sublease or Occupancy Agreement and any renewals, amendments or modification of the foregoing (provided such Sublease or Occupancy Agreement or renewal, amendment or modification thereof is not a Major Lease (or a renewal, amendment or modification to a Major Lease)) may be entered into by Tenant without Landlord’s prior consent so long as such Sublease or Occupancy Agreement provides for rental rates comparable to existing local market rates for similar properties and is otherwise on commercially reasonable terms. All Major Leases and all renewals, amendments and modifications thereof (including, without limitation, any subletting or assignment thereunder not contemplated by the express terms of such Major Lease (other than any subletting or assignment which does not require Tenant’s consent under such Major Lease)) or waivers thereunder executed (or otherwise agreed to) after the date hereof shall be subject to Landlord’s prior approval, which approval shall not be unreasonably withheld or delayed. For purposes of this Lease, “Major Lease” shall mean (i) any Sublease or Occupancy Agreement which, individually or when aggregated with all other Subleases or Occupancy Agreements with the same subtenant or its affiliates, either (A) accounts for 15% or more of the total rental income for the Improvements, or (B) demises 15% or more of the Improvements’ gross leasable area, and (ii) any instrument guaranteeing or providing credit support for any Sublease or Occupancy Agreement meeting the requirements of (i) above. Notwithstanding the foregoing all Occupancy Agreements in existence at the time this Lease is entered into are deemed approved by Landlord in all respects.

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Section 10.05. Transfers to or by Business Entity. Notwithstanding Section 10.01 of this Lease, Tenant may, without the prior consent of Landlord after the Completion Date, transfer and assign all of Tenant’s interest under this Lease and the leasehold estate created under this Lease to a new or different business entity now or hereafter organized which either (a) controls, is controlled by or is under common control with Tenant, either directly or indirectly (“Tenant Affiliate”); (b) which retains Tenant or a Tenant Affiliate to serve as a managing member, a general partner or a property manager for the Premises; or (c) results from the merger or consolidation of Tenant; provided, however, any such assignment must be to an entity with net worth and liquidity not less than that of Tenant as of the date of such assignment determined in accordance with generally accepted accounting principles, Tenant must provide not less than thirty (30) days’ prior written notice of such assignment together with proof of such credit-worthiness, and such assignment must not be consummated for the purpose of circumventing the restrictions on assignment under Sections 10.01 and 10.02.

Section 10.06. Reimbursement of Landlord Costs. Tenant shall reimburse Landlord for its actual and reasonable third-party legal expenses incurred in connection with a review of the proposed documentation for the proposed assignment, Major Lease, Sublease or Occupancy Agreement, whether or not Landlord ultimately grants its consent to the proposed assignment, within thirty (30) days following a request for reimbursement accompanied by reasonable supporting documentation with respect thereto.

Section 10.07. Management Agreements. Tenant may enter into any management agreement or similar contract concerning the Project and Tenant acknowledges and agrees that any such management agreement and all fees owed to the manager thereunder shall be subordinate to this Lease, and any such management agreement shall expressly state that fact, and if such management agreement fails to expressly state that fact, then Tenant shall cause the manager thereunder to enter into a subordination agreement with Landlord which shall be in form and substance reasonably satisfactory to Landlord.

Section 10.08. No Release of Assignor or Guarantor. No assignment of this Lease or any interest herein occurring shall operate or be deemed to operate as a release of the assigning Tenant and/or the duties, obligation and liabilities of Tenant under this Lease, and/or operate as a release of the “Guarantor” and/or the duties, obligations and liabilities of the Guarantor under the “Guaranty” (as those terms in quotations are defined in Section 13.16 below). Notwithstanding the foregoing, Landlord agrees that in the event of an assignment of this Lease or any interest herein, then to the extent such assignee does not have a net worth of at least $215,000,000.00 and liquidity of at least $8,250,000.00 (if such assignee does have a net worth and liquidity equivalent to that of the original Guarantor, then no Guaranty shall be required) Landlord will accept a new Guaranty in the same form as Exhibit D attached hereto, executed and delivered to Landlord by a person or entity with a net worth and liquidity of not less than that of the original Guarantor as of the Commencement Date (taking into consideration the time value of money), evidenced by reasonable supporting documentation, in which event the original Guaranty shall be terminated and of no further force or effect and the original Guarantor shall be released from all duties, obligations and liabilities under the original Guaranty.

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ARTICLE XI

DEFAULT AND REMEDIES

Section 11.01. Continuation of Lease in Effect. Should Tenant breach or be in default under this Lease following written notice and expiration of any applicable cure period under Section 11.04 and abandon the Premises for a continuous period in excess of ninety (90) days before the natural expiration of the Term, Landlord shall have all rights and remedies available at law or in equity. In no event shall a failure to operate the Premises as a result of construction, remodeling, casualty, condemnation, alterations, repairs, maintenance, and/or reletting, in the ordinary course of business be deemed an abandonment.

Section 11.02. Termination and Unlawful Detainer. Should Tenant breach or be in default under this Lease following written notice and expiration of any applicable cure period under Section 11.04, Landlord may, subject to Article 6 of this Lease, immediately terminate this Lease by written notice to Tenant and may also do the following:

(a) Bring an action to recover the following from Tenant:

(1) The amount of all unpaid Rent that had been earned as of the date of termination of this Lease;

(2) The amount of the purchase price for the Premises pursuant to the terms of Section 12.05(b) of this Lease; provided, however, for a breach or default occurring on or before the last day of the third (3^rd) Lease Year, the amount of the purchase price for purposes of this Section 11.02(a)(2) shall be the purchase price set forth in section 12.05(b) of this Lease applicable after the tenth (10^th) Lease Year; and

(3) Any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease.

(b) Landlord may, pursuant to any prior notice required by Applicable Laws, and without terminating this Lease, peaceably or pursuant to appropriate legal proceedings, reenter, retake and resume possession of the Premises for the account of Tenant, make such alterations of and repairs and improvements to the Premises as may be reasonably necessary in order to relet the same or any part or parts thereof and, directly or indirectly, operate and manage the Premises, and relet or attempt to relet the Premises or any part or parts thereof for such term or terms (which may be for a term or terms extending beyond the Term of this Lease), at such rents and upon such other terms and provisions as Landlord, in its sole discretion, may deem advisable. If Landlord takes possession and control of the Premises and operates the same, Tenant shall, for so long as Landlord is actively operating the Premises, have no obligation to operate the Premises. In addition, Tenant will reasonably cooperate with Landlord in transferring, to the extent transferable, any of Tenant’s permits which Landlord determines would be necessary or appropriate to continue to operate the Premises for its Permitted Use. If Landlord relets or attempts to relet the Premises, or obtains a contract manager or operator for the Premises, Landlord shall at its sole discretion determine the terms and provisions of any new lease or sublease, or management or operating agreement, and whether or not a particular proposed manager or operator, or new tenant or sublessee, is acceptable to Landlord. Upon any such reletting, or the operation of the Premises by a contract manager or operator, all rents or incomes received by Landlord from such reletting or otherwise from the operation of the Premises shall be applied: (i) first, to the payment of all costs and expenses of recovering possession of the Premises, (ii) second, to the payment of any costs and expenses of such reletting and or operation, including brokerage fees, advertising costs, reasonable attorney’s fees based upon service rendered at hourly rates, a management fee, and the cost of any alterations and repairs reasonably required for such reletting or operation of the Premises, (iii) third, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to Landlord, including, without limitation, any damages Landlord incurs arising out of a default of any financing documents secured by the Premises, (iv) fourth, to the payment of all Rent and other sums due and unpaid hereunder, and (v) fifth, the residue, if any, shall be held by Landlord and applied in payment of future Rent as the same may become due and payable hereunder. If the rents received from such reletting or net income from the operation of the Premises during any period shall be less than the Rent required to be paid during that period by Tenant hereunder, Tenant shall promptly pay any such deficiency to Landlord and failing the prompt payment thereof by Tenant to Landlord, Landlord shall immediately be entitled to institute legal proceedings for the recovery and collection of the same. Such deficiency shall be calculated and paid at the time each payment of Rent or any other sum shall otherwise become due under this Lease, or, at the option of Landlord, at the end of the Term of this Lease. Landlord shall, in addition, be immediately entitled to sue for and otherwise recover from Tenant any other damages occasioned by or resulting from any abandonment of the Premises or other breach of or default under this Lease other than a default in the payment of Rent. No such reentry, retaking or resumption of possession of the Premises by Landlord for the account of Tenant shall be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention shall be given to Tenant or unless the termination of this Lease be decreed by a court of competent jurisdiction. Notwithstanding any such reentry and reletting or attempted reletting of the Premises or any part or parts thereof for the account of Tenant without termination, Landlord may at any time thereafter, upon written notice to Tenant, elect to terminate this Lease or pursue any other remedy available to Landlord for Tenant’s previous breach of or default under this Lease.

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Section 11.03. Breach and Default by Tenant. Each of the following events shall be a “default” by Tenant and a “breach” of this Lease:

(a) Failure and refusal to pay when due any installment of Rent or any other sum required by this Lease to be paid by Tenant;

(b) Failure or refusal to perform any other covenant or obligation of this Lease;

(c) The appointment of a receiver to take possession of the Premises or Improvements, or of Tenant’s interest in, to, and under this Lease, the leasehold estate or of Tenant’s operations on the Premises for any reason, including, without limitation, assignment for benefit of creditors or voluntary or involuntary bankruptcy proceedings, when not released within ninety (90) days;

(d) An assignment by Tenant for the benefit of creditors, or the voluntary filing by Tenant or the involuntary filing against Tenant of a petition, other court action, or suit under any law for the purpose of (i) adjudicating Tenant as bankrupt, (ii) extending time for payment, (iii) satisfaction of Tenant’s liabilities, or (iv) reorganization, dissolution, or arrangement on account of, or to prevent, bankruptcy or insolvency; provided, however, that in the case of an involuntary proceeding, if all consequent orders, adjudications, custodies, and supervisions are dismissed, vacated, or otherwise permanently stayed or terminated within ninety (90) days after the filing or other initial event, then Tenant shall not be in default under this Section;

(e) The failure by Guarantor to maintain a net worth and liquidity not less than that of the original Guarantor as of the Commencement Date, provided that each of the net worth and liquidity amounts specified above shall be increased and adjusted upward at the beginning of each five (5) year period of the Term by CPI then in effect provided that if the Rent is not then delinquent or unpaid, Guarantor shall have a period of 180 days in which to cure its failure to maintain such net worth and liquidity or to provide Landlord with a substitute or additional Guarantor which will bring about compliance with such net worth and liquidity requirements;

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(f) The subjection of any right or interest of Tenant to or under this Lease to attachment, execution, or other levy, or to seizure under legal process when the claim against Tenant is not released within ninety (90) days; and

(g) An unreasonable delay in the construction of the Project or a discontinuance or abandonment of construction for a period of thirty (30) days, material failure to adhere to the construction schedule set forth in the Existing Construction Documents, or in any event a delay in construction of the Project so that the same, in Landlord’s judgment, may not be completed on or before the Completion Date.

Section 11.04. Notice as a Precondition to Landlord’s Remedies. As a precondition to pursuing any remedy for an alleged default by Tenant, Landlord shall, before pursuing any remedy, (a) where the alleged default is a failure to pay any installment of Rent or other sum when due pursuant to this Lease, give Tenant a five (5) day written notice of default specifying in reasonable detail the amount of money not paid and the nature and calculation of each such payment, or (b) where the alleged default is the failure to perform or observe any covenant, condition, or agreement to be performed by Tenant under this Lease, other than a failure to pay Rent or any other sum when due, give Tenant a thirty (30) day written notice of default specify the nature of such default. Where such default other than the failure to pay any installment of Rent or other sum cannot, with reasonable diligence, be cured within such thirty (30) day period, Landlord shall not pursue any remedy provided curative action is commenced within such thirty (30) day period and thereafter pursued with due diligence to completion within ninety (90) days after Tenant’s receipt of written notice of default.

Section 11.05. Cumulative Remedies. The remedies given to Landlord in this Article shall not be exclusive but shall be cumulative with and in addition to all remedies now or hereafter allowed by law and elsewhere provided in this Lease.

Section 11.06. Waiver of Breach. The waiver by Landlord of any breach by Tenant of any of the provisions of this Lease shall not constitute a continuing waiver or a waiver of any subsequent breach by Tenant of either the same or a different provision of this Lease.

Section 11.07. Surrender of Premises. On expiration of the Term or earlier termination of this Lease, Tenant shall surrender the Premises and all Improvements in or on the Premises to Landlord in a good, safe, and clean condition, in compliance with all Applicable Laws, reasonable wear and tear excepted, subject to the express provisions of this Lease governing termination of this Lease on casualty and condemnation.

ARTICLE XII

SPECIAL PROVISIONS

Section 12.01. Quiet Enjoyment. Landlord covenants that so long as Tenant shall timely pay all rents and other charges due to Landlord from Tenant hereunder and keep, observe and perform all covenants, promises and agreements on Tenant’s part to be kept, observed and performed hereunder, Tenant shall peaceably and quietly have, hold and enjoy the full possession and use of the Premises and the easements, rights-of-way, rights, privileges, benefits and appurtenances belonging thereto throughout the Term without interference from Landlord.

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Section 12.02. Title. Notwithstanding anything to the contrary in this Lease, all Improvements, moveable furniture, furnishings, equipment and other personal property of Tenant or anyone claiming through Tenant located in, on or at the Premises shall, during the Term, be owned by and belong to Tenant, subject to any Leasehold Encumbrance. All benefits and burdens of ownership of the foregoing, including title, depreciation, tax credits and all other tax items shall be and remain in Tenant during the Term.

Section 12.03. Fee Mortgage.

(a) Landlord shall have the right at any time during the Term to encumber any or all of its fee estate in the Premises, including Landlord’s reversionary interest in the Premises and Improvements (collectively, the “Fee Estate”). Tenant shall reasonably cooperate with Landlord in amending the terms of this Lease to the extent required by a lender under a Fee Mortgage; provided that such requirement to cooperate shall not be deemed to require Tenant to (i) increase the Base Rent or Supplemental Rent paid in this Lease, or (ii) change the terms of the Guaranty, or (iii) agree to a modification or revision of any other material term of the Lease.

(b) Landlord may execute and deliver a “Fee Mortgage” encumbering all or a portion of Landlord’s Fee Estate, provided that such Fee Mortgage complies with the definition of “Fee Mortgage” provided in Section 12.03(e) below. Any Fee Mortgage shall be subordinate to Tenant’s interest under this Lease and any New Lease. Tenant need not join in, or subordinate this Lease to any Fee Mortgage, nor shall any voluntary joinder or subordination by Tenant be effective without the consent of the Lender.

(c) In the event of a foreclosure under a Fee Mortgage, this Lease shall continue in full force and effect and Tenant shall attorn to the successor holder of the Fee Estate as successor to Landlord without further action, subject to Section 13.15 below. Such attornment shall in no way diminish or impair Tenant’s rights and remedies against Landlord (all of which Tenant may continue to assert against the successor Landlord) or require Tenant to waive any default by Landlord.

(d) Provided a copy of the recorded Fee Mortgage has been delivered to Tenant with a written request for notice and a current address for the holder of the Fee Mortgage (which may be pursuant to a Tenant Estoppel), then Tenant agrees to simultaneously give a copy of any notice of an alleged breach or default by Landlord to the holder of the Fee Mortgage. The holder of such Fee Mortgage shall have the right to cure Landlord’s alleged breach or default within the cure period allowed to Landlord under this Lease and with like effect as if Landlord had done so. Tenant’s failure to give notice to the holder of the Fee Mortgage required by this subsection shall not be a default or breach by Tenant but no notice by Tenant of a default or breach by Landlord shall be effective against such holder unless and until Tenant shall have given to such holder such notice and opportunity to cure.

(e) The term “Fee Mortgage” means a deed of trust, mortgage or other voluntary real property security instrument or agreement intending to grant a real property security interest in and encumber all or any portion of the Fee Estate, provided that the Fee Mortgage shall be and shall expressly state that it shall attach only to the Fee Estate. The term “Fee Mortgagee” shall mean the holder of a Fee Mortgage.

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(f) So long as Tenant is not in default or breach of this Lease, Landlord shall not, from and after the Commencement Date and throughout the Term, (i) enter into any contract, agreement or other instrument related to the Premises; (ii) grant any easement, license or other occupancy right with respect to the Premises; (iii) change or modify the zoning or land use designations applicable to the Premises; (iv) make any development, land use other applications related to the Premises other than as a co-applicant with Tenant (upon Tenant’s written request only); or (v) cause any liens, encumbrances or any other items to be recorded against the Premises, other than a Fee Mortgage (from time to time) as expressly permitted in accordance with this Section 12.03, without the prior written consent of Tenant or Lender with a Leasehold Encumbrance, which consent may not be unreasonably withheld, delayed or conditioned.

Section 12.04. Hazardous Substances.

(a) The term “Hazardous Substance”, as used in this Lease, shall mean any material or substance in, on or under the premises or the surrounding elements which is or becomes regulated by any governmental agency having jurisdiction thereof under applicable federal, state or local law, including, without limitation, any material or substance which is (i) designated as a “Hazardous Substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317); (ii) defined as a “hazardous waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.); (iii) defined as a “Hazardous Substance” pursuant to Section 101 of the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.), as any of the foregoing laws, rules and/or regulations may from time to time be amended; and/or (iv) any materials, the possession or use of which require a permit from any federal, state or local agency having jurisdiction over hazardous, toxic or infectious substances.

(b) The term “Environmental Law,” as used in this Lease, means all federal, state and local laws, common laws, equitable doctrine, rules, regulations, statutes, codes, ordinances, directives, guidance documents, cleanup or other standards, and any other governmental requirements or standards currently in existence or hereafter enacted or rendered which pertain to, regulate, or impose liability or standards of conduct concerning the use, storage, human exposure to, handling, transportation, release, cleanup or disposal of Hazardous Substances.

(c) The term “Environmental Assessments,” as used in this Lease, means collectively, (i) that certain Phase I Environmental Site Assessment dated September, 2022, prepared by Verdantas, LLC, as Project # IRY028.600.0055 concerning the Property.

(d) Neither Tenant nor any of the Tenant Parties shall bring onto, create or dispose of, in or about the Premises, any Hazardous Substances other than as is customary for construction and operation of a comparable project, and neither Tenant nor any of the Tenant Parties shall engage in any activity that violates any federal, state or local laws, rules or regulations pertaining to Hazardous Substances. Tenant, at Tenant’s sole expense, shall promptly take all investigatory and/or remedial action reasonably required or ordered by governmental authorities for the clean-up of any Hazardous Substances in or about the Premises except for Hazardous Substances created, caused or materially contributed to by Landlord or Landlord’s agents, employees, contractors or other parties for which Landlord is legally responsible after the Commencement Date. The Hazardous Substances for which Tenant is responsible pursuant to the preceding sentence are hereinafter referred to as the “Hazardous Substances for which Tenant is Responsible”. Tenant shall provide all notices and/or reports required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 and any other Applicable Laws pertaining to Hazardous Substances requiring notices and/or reports by Tenant. Tenant shall provide prompt written notice to Landlord of the existence of Hazardous Materials on the Premises and all notices of violation of Applicable Laws pertaining to Hazardous Substances received by Tenant.

Ground Lease

Hall of Fame Village

(e) To the best of Tenant’s knowledge, after due inquiry, except for any matters set forth in the Environmental Assessments, the Project is in compliance with all applicable Environmental Laws and neither Tenant nor any of the Tenant Parties has received notice of any violations of the Environmental Laws. Tenant covenants and agrees to take all necessary action within its control to ensure that the Project is in compliance with the Environmental Laws at all times and shall comply with all recommendations set forth in the Environmental Assessments. Such actions include, but are not limited to:

(1) Tenant shall promptly deliver any notice it may receive of any violation of the Environmental Laws to Landlord. For purposes of this Section, in addition to Tenant’s actual knowledge, due inquiry consists of review of said Environmental Assessments, and any additional reports or testing of the Project (including, without limitation, the Project) required or suggested in said Environmental Assessments.

(f)   Tenant shall defend, indemnify and hold Landlord and Landlord’s affiliates, agents and employees and the Premises harmless from any and all claims, demands, liabilities, obligations, expenses and/or penalties arising out of or relating to the investigation, remediation and/or abatement of any Hazardous Substances for which Tenant is Responsible and/or Tenant’s failure to comply with its obligations referenced under this Section 12.04.

(g) Landlord shall defend, indemnify and hold Tenant, its agents, employees and Lender, and the Premises harmless from any and all claims, demands, liabilities, obligations, expenses and/or penalties arising out of or relating to the investigation, remediation and/or abatement of any Hazardous Substances created or caused by Landlord or Landlord’s agents, employees, contractors or other parties for which Landlord is legally responsible following the Commencement Date.

(h) In the event of Hazardous Substances in, on or under, the Premises and/or the Improvements upon the Premises and in the further event that Landlord’s indemnity and hold harmless agreement in the preceding paragraph will apply to the investigation, remediation and/or abatement costs relating to said Hazardous Substances; Tenant shall have the right to investigate, remediate and to abate said Hazardous Substances and to recover its reasonable costs and expenses, together with interest at the Interest Rate from the date paid, from Landlord within thirty (30) days of Landlord’s receipt of a written demand for such reimbursement, together with reasonable supportive evidence of the amount and payment of said costs and expenses.

(i)   Landlord agrees that neither Landlord nor Landlord’s agents or employees shall engage in any activities in or about the Premises which violate any Applicable Laws pertaining to Hazardous Substances.

(j)   In the event that Tenant fails to investigate, remediate and/or to abate any Hazardous Substances for which Tenant is Responsible in, on or under the Premises and/or other improvements upon the Premises as required by this Lease and should Tenant fail to correct such failure within the time provided in Section 11.04 following Tenant’s receipt of written notice from Landlord specifying the nature of Tenant’s breach, Landlord, in addition to any and all other remedies available to Landlord at law or in equity or pursuant to this Lease shall have the right to investigate, remediate and to abate said Hazardous Substances and recover its reasonable costs and expenses, together with interest at the Interest Rate from the date paid, from Tenant within thirty (30) days of Tenant’s receipt of a written demand for such reimbursement, together with reasonable supportive evidence of the amount and payment of said costs and expenses.

(k) In the event a lender under a Fee Mortgage demands Landlord engage a qualified environmental engineer to prepare an environmental audit of the Premises, Tenant agrees to engage such qualified environmental engineer to prepare an environmental audit of the Premises and Tenant shall be responsible for such cost and expense. Upon completion of such environmental audit of the Premises, Tenant shall submit the results of such audit to Landlord. The choice of the environmental engineer who will perform such audit is subject to Landlord’s approval.

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(l)   In the event a lender under a Fee Mortgage so demands, Tenant will permit Landlord or Landlord’s agent to enter and inspect the Premises and review all records at any reasonable time to determine (1) the existence, location and nature of any Hazardous Substance on, under or about the Premises; (2) the existence, location, nature, and magnitude of any Hazardous Substance that has been released on, under or about the Premises; or (3) whether or not Tenant is in compliance with Applicable Laws pertaining to Hazardous Substances.

Section 12.05. Tenant’s Right to Purchase.

(a) Grant of Right to Purchase. Landlord hereby grants to Tenant a right to purchase Landlord’s interest in the Premises (the “Purchase Right”) on the terms and conditions set forth in this Section 12.05. The Purchase Right shall be binding upon Landlord and its successors and assigns in interest to the Premises.

(b) Offer Period. At any time following the date that is three (3) years after the Commencement Date (unless there has been any destruction of the Premises described in Section 7.03, in which case Tenant’s rights under this Section 12.05(b) shall be able to be exercised after the applicable Restoration Date) and so long as Tenant is not in default or breach of this Lease, Tenant shall have the right, but not the obligation, to exercise the Purchase Right upon written notice to Landlord. Landlord shall respond to Tenant in writing within thirty (30) days (the “Purchase Notice”) setting forth a closing date (the “Closing Date”) not later than ninety (90) days following the date of the Purchase Notice and Landlord’s calculation of the amounts due to Landlord at closing as a result of Tenant’s acquisition of Landlord’s interest in the Premises ( the “Purchase Price”), which such Purchase Price shall be as follows: (i) one hundred five percent (105%) of the Rent Basis if the Closing Date occurs after the third (3^rd) Lease Year and before the last day of the sixth (6^th) Lease Year; (ii) one hundred seven percent (107%) of the Rent Basis if the Closing Date occurs after the sixth (6^th) Lease Year and before the last day of the tenth (10^th) Lease Year; and (iii) one hundred fifteen percent (115%) of the Rent Basis if the Closing Date occurs at any time after the tenth (10^th) Lease Year.

(c) Closing. On the Closing Date, Landlord shall deliver to tenant a limited warranty deed for the Premises and Tenant shall pay to Landlord the Purchase Price by wire transfer in immediately available funds. The closing shall take place through escrow conducted by a nationally recognized title insurance company doing business in Ohio selected by Landlord. Tenant shall pay all Rent and all other charges due and owing under this Lease up to the Closing Date and all costs and expenses incurred in connection with the closing of the Purchase Right, including, without limitation, costs of any transfer taxes, escrow charges and Landlord attorneys’ fees. In no event shall Tenant’s exercise of the Purchase Right extinguish or otherwise impact the Leasehold Encumbrance except as provided in the loan documents associated with the Leasehold Encumbrance.

Section 12.06. Further Assurances. Each party to this Lease agrees to execute, acknowledge, and deliver such further instruments, documents, agreements, applications and estoppels as may be necessary or desirable to accomplish the intents and purposes of this Lease.

(a) Entitlements. Tenant shall be solely responsible and liable for obtaining any and all Final Approvals necessary for and with respect to the Project, including without limitation, the Improvements, and Tenant shall diligently pursue the issuance thereof from and after the Commencement Date to the extent not already obtained prior to the Commencement Date. In the event that a governmental and/or regulatory agency, by Applicable Laws or by practice, requires that the application for any required Final Approvals or other permit desired by Tenant in connection with the Project to be made by Tenant pursuant to the provisions of this Lease, or any other document, including, without limitation, documents to be recorded against the Premises, such as subdivision maps, and the like, which are necessary in order to satisfy the requirements of or conditions to any Final Approvals obtained by Tenant in connection with the Project and the Improvements, be made, executed, acknowledged, accepted or filed by or on behalf of Landlord (and/or any Fee Mortgagee), in addition to or rather than by Tenant, then if requested by Tenant, Landlord shall reasonably cooperate with Tenant, including the prompt execution of required documents, and take such steps as are reasonably necessary to obtain such permit, but at Tenant’s sole cost and expense and at absolutely no cost or liability to Landlord; provided, notwithstanding the foregoing, Landlord shall not in any event or circumstance be required to indemnify any party in connection therewith or otherwise take any action or sign any document that would likely impose liability on Landlord, as determined by Landlord; provided further, that the foregoing limitation shall not apply if Tenant provides Landlord with an indemnity indemnifying Landlord with respect to any such liability, in form reasonably acceptable to Landlord.

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Hall of Fame Village

Section 12.07. Easements. Landlord shall cooperate with Tenant (but at Tenant’s sole cost and expense) in a timely manner following Tenant’s written request and following Landlord’s review and approval, if and when Landlord is a necessary party in the (i) amendment, termination or abandonment of existing easements, covenants, conditions and/or restrictions, (ii) if applicable, joining with Tenant in creating reciprocal easement agreements providing for the granting and improvement of reciprocal and other non-exclusive easements over the Premises and adjoining premises for vehicular and pedestrian ingress, egress, parking, utilities, drainage, landscaping, signage and similar uses required for the operation of the Project as contemplated by the Final Approvals and the construction of the Improvements, and (iii) granting to public entities, public service corporations, private or public utilities or similar entities, rights-of-way or easements on, over, under, across and through the Premises for the installation, maintenance, repair and replacement of all utility facilities necessary for the construction of the Improvements or the operation of the Project, including without limitation, conduits, pipes, and similar installations. If requested by Tenant, Landlord shall execute such documents and take such action as is reasonably necessary to comply with the foregoing; provided, notwithstanding the foregoing, Landlord shall not in any event or circumstance be required to indemnify any party in connection therewith or otherwise take any action or sign any documents that would likely impose liability on Landlord, as determined by Landlord; provided further, that the foregoing limitation shall not apply if Tenant provides Landlord with an indemnity indemnifying Landlord with respect to any such liability or indemnity during the Term, in form reasonably acceptable to Landlord. Tenant shall reimburse Landlord for any legal fees reasonably incurred by Landlord for review of documents requiring Landlord’s signature relating to requests made by Tenant under this Section 12.07, within ten (10) business days following Tenant’s receipt from Landlord of written demand for reimbursement and reasonable supporting documentation.

ARTICLE XIII

OTHER PROVISIONS

Section 13.01. Commissions. Landlord hereby agrees to indemnify and hold Tenant harmless from and against all claims, damages, expenses, liabilities, liens or judgments (including costs, expenses and reasonable attorneys’ fees in defending the same) which arise on account of any claim that any real estate commissions or finders’ fees incurred by Landlord are payable and have not been discharged in their entirety. Tenant hereby agrees to indemnify and hold Landlord harmless from and against all claims, damages, expenses, liabilities, liens or judgments (including costs, expenses and reasonable attorneys’ fees in defending the same) which arise on account of any claim that any real estate commissions or finders’ fees incurred by Tenant are payable and have not been discharged in their entirety.

Section 13.02. Attorney’s Fees. The prevailing party(ies) in any litigation, mediation, reference, arbitration, bankruptcy, insolvency or other proceeding (“Proceeding”) relating to or arising from this Lease may recover from the non-prevailing party(ies) all costs, expenses, and actual attorneys’ fees (including expert witness and other consultants’ fees and costs) relating to or arising out of (i) the Proceeding (whether or not the Proceeding proceeds to judgment and including any dismissal of such Proceeding), and (ii) any post-judgment or post-award proceeding including, without limitation, one to enforce or collect any judgment or award resulting from the Proceeding. All such judgments and awards shall contain a specific provision for the recovery of all such subsequently incurred costs, expenses, and actual attorneys’ fees; provided that the non-prevailing party shall not be required to reimburse any attorneys’ fees incurred by the prevailing party to pay for a separate defense for more than one person or entity comprising the other party, regardless of whether a conflict in interest exists between such persons or entities comprising the prevailing party.

Section 13.03. Notices to Landlord. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this Lease or by law to be served on or given to Landlord by Tenant shall be in writing and shall be deemed duly served and given when personally delivered to Landlord or to any managing employee of Landlord, or, in lieu of personal service, when sent by express mail that allows for tracking, addressed to Landlord at 2200 Washington Avenue, Saint Louis, MO 63103, Attn. General Counsel. Landlord may change Landlord’s address for the purpose of this section by giving written notice of that change to Tenant in the manner provided in Section 13.05 of this Lease.

Section 13.04. Holding Over. If Tenant or any other person or party shall remain in possession of the Premises or any part thereof following the expiration of the Term or earlier termination of this Lease without an agreement in writing between Landlord and Tenant with respect thereto, the person or party remaining in possession shall be deemed to be a tenant at sufferance, and during any such holdover, the Rent payable under this Lease by such tenant at sufferance shall be one hundred fifty percent (150%) of the rate or rates in effect immediately prior to the expiration of the Term or earlier termination of this Lease. In no event, however, shall such holding over be deemed or construed to be or constitute a renewal or extension of the Term of this Lease.

Section 13.05. Notices to Tenant. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this Lease or by law to be served on or given to Tenant by Landlord shall be in writing and shall be deemed duly served and given when personally delivered to Tenant, any managing employee of Tenant, or, in lieu of personal service, when sent by express mail that allows for tracking, addressed to Tenant at 2014 Champions Gateway, Canton, OH 44708 Attn: General Counsel. Tenant may change its address for the purpose of this section by giving written notice of that change to Landlord in the manner provided in Section 13.03 of this Lease.

Section 13.06. Governing Law. This Lease, and all matters relating to this Lease, shall be governed by the laws of the State of Ohio in force at the time any need for interpretation of this Lease or any decision or holding concerning this Lease arises. Each party waives the right to a trial by jury, to the extent possible under applicable law, in connection with any dispute under this Lease.

Section 13.07. Binding on Heirs and Successors. This Lease shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto, but nothing in this section shall be construed as a consent by Landlord to any assignment of this Lease or any interest in this Lease by Tenant except as provided in Article 10 of this Lease.

Ground Lease

Hall of Fame Village

Section 13.08. Sole and Only Agreement. Except for that certain Purchase and Sale Agreement dated as of the Commencement Date by and between Landlord and Tenant, this instrument constitutes the sole and only agreement between Landlord and Tenant respecting the Premises, the leasing of the Premises to Tenant, the construction of the Project on the Premises, and the lease terms set forth in this Lease, and correctly sets forth the obligations of Landlord and Tenant, to each other as of their respective dates. Any agreements or representations respecting the Premises, their leasing to Tenant by Landlord, or any other matter discussed in this Lease not expressly set forth in this instrument are null and void.

Section 13.09. Time of Essence. Time is expressly declared to be of the essence of this Lease.

Section 13.10. Memorandum of Lease. Prior to the Commencement Date, Landlord and Tenant shall each execute and cause to be notarized, two (2) counterpart copies of a “Memorandum of Lease” in the form attached hereto as Exhibit E, which Tenant shall cause to be recorded, at Tenant’s sole cost and expense, including, without limitation, the payment of the documentary transfer tax upon recordation of the Memorandum of Lease.

Section 13.11. Partial Invalidity. If any term, provision or covenant of this Lease or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this Lease, or the application of such term, provision or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.

Section 13.12. Counterparts. This Lease may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which together shall constitute one document. Facsimile and electronic signatures of this Lease by any party shall have the effect of an original signature.

Section 13.13. Definition of Landlord. The term “Landlord” as used in this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only the owner or owners, at the time in question, of Landlord’s interest in fee title to the Premises. In the event of any transfer or assignment of such title and the assumption in writing of Landlord’s remaining obligations under this Lease by the transferee or assignee, Landlord herein named (and in case of any subsequent transfers, the then grantor) shall be automatically freed and relieved from and after the date of such transfer or assignment of all liability respecting the performance of any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed. Landlord may transfer its interest in the Premises without the consent of Tenant and such transfer or subsequent transfer shall not be deemed a violation on Landlord’s part of any of the terms and conditions of this Lease. In the event of such transfer of Landlord’s interest in the Premises, Landlord shall provide written notice to any Lender holding a Leasehold Encumbrance.

Section 13.14. Approvals by Landlord. If Landlord’s approval is required under any provision of this Lease and Landlord has agreed to not unreasonably withhold, condition or delay its approval, then Landlord agrees (a) to deliver written notice of its approval or disapproval to Tenant in writing within a commercially reasonable amount of time for the applicable request for approval being made; and (b) if Landlord fails to respond in writing to Tenant’s written request for approval within thirty (30) days following Landlord’s receipt of Tenant’s request for approval in accordance with this Section 13.14, then Landlord shall be conclusively deemed to have approved such request; provided, however, Tenant acknowledges and agrees that a written response from Landlord reasonably requesting additional information or time to consider the request from Tenant will not result in a deemed approval by Landlord.

Section 13.15. Limitation of Landlord Liability. In consideration of the benefits accruing under this Lease, and notwithstanding anything contained in this Lease to the contrary, Tenant and all successors and assigns covenant and agree that, in the event of any actual or alleged failure, breach or default under this Lease by Landlord or in the event of any other action against Landlord with respect to this Lease, their sole and exclusive remedy shall be against Landlord’s interest in the Premises. Tenant and all such successors and assigns agree that the obligations of Landlord under this Lease do not constitute personal obligations of Landlord (beyond Landlord’s interest in the Premises) or any of Landlord’s trustees, beneficiaries, partners (whether general or limited), members, directors, officers, shareholders, employees, agents or investment managers. If Tenant obtains any money judgment against Landlord with respect to this Lease or the relationship between Landlord and Tenant, then Tenant shall look solely to Landlord’s interest in the Premises to collect such judgment, and Tenant shall not collect or attempt to collect any such judgment out of, or seek recourse against, any other assets of Landlord (beyond Landlord’s interest in the Premises), or Landlord’s trustees, beneficiaries, partners (whether general or limited), members, directors, officers or shareholders or any of their personal assets for satisfaction of any liability with respect to this Lease. Notwithstanding any contrary provision contained in this Lease, neither Landlord nor any of Landlord’s trustees, beneficiaries, partners (whether general or limited), members, directors, officers or shareholders nor any of their respective employees, agents or contractors shall be liable under any circumstances for any indirect or consequential damages or any injury or damage to, or interference with, Tenant’s business, including but not limited to, loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, in each case, however occurring.

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Hall of Fame Village

Section 13.16. Guaranty. Concurrently with Tenant’s execution of this Lease, and as a condition precedent to the effectiveness of this Lease, Tenant shall cause Hall of Fame Resort & Entertainment Company, a Delaware corporation (the “Guarantor”), to execute and deliver to Landlord a Guaranty (the “Guaranty”) in the form of Exhibit D attached hereto and made a part hereof. Tenant hereby acknowledges that Landlord would not enter into this Lease without Guarantor’s execution and delivery of the Guaranty as required by this Section 13.16.

Section 13.17. Estoppel Certificate.

(a) On the Commencement Date and at any other time and from time to time, within fifteen (15) days after notice of request by Landlord, Tenant shall execute, acknowledge and deliver to Landlord, or to such other recipient as the notice shall direct, a completed estoppel certificate (a “Tenant Estoppel”) in the form of Exhibit L attached hereto and made a part hereof, as the same may be modified by Landlord from time to time.

(b) At any time and from time to time, within fifteen (15) days after notice of request by Tenant, Landlord shall execute, acknowledge and deliver to Tenant, or to such other recipient as the notice shall direct, a statement (a “Landlord Estoppel” and either a Tenant Estoppel or a Landlord Estoppel shall be hereinafter referred to as an “Estoppel”) certifying that (a) this Lease is unmodified and in full force and effect, or, if there have been modifications, that it is in full force and effect as modified in the manner specified in the statement; and (b) to the knowledge of the certifying party, there are no defaults (and no events or circumstances that have occurred, that with the passage of time would, if left unchanged, become a default) in the performance of either party of its obligations under this Lease, or if there are defaults or events or circumstances that will constitute a default, specifying the nature of the default and/or event or circumstance that may become a default. The Landlord Estoppel shall also state the amount of Rent then payable, the dates to which the Rent and any other charges have been paid in advance and shall include such assurances of satisfaction of conditions or other factual matters provided for in this Lease or respecting the Premises as Tenant may reasonably request. Landlord agrees to provide an Estoppel to any Lender holding a Leasehold Encumbrance within the same time period upon written request of such Lender.

(c) The Estoppel shall be such that it can be relied on by any auditor, creditor, commercial banker, and investment banker of either party and by any prospective purchaser or encumbrancer of the Premises or Improvements or both or of all or any part or parts of Tenant’s or Landlord’s interests under this Lease including, without limitation, a Lender.

Section 13.18. Financial Statements. Tenant shall set up and maintain accurate and complete books, accounts and records as to Tenant in accordance with generally accepted accounting principles. Tenant will permit representatives of Landlord to have free access to and to inspect and copy all books, records and contracts of Tenant during regular business hours and subject to all confidentiality and non-disclosure agreements to which Tenant may be subject. Any such inspection by Landlord and its representatives shall be for the sole benefit and protection of Landlord, and Landlord shall not have any obligation to disclose the results thereof to Tenant or to any third party. In addition, Tenant shall furnish the following financial information concerning Tenant: (a) current quarterly financial statements, including a balance sheet, an income statement and a cash flow statement, within 30 days following the end of each fiscal quarter of Tenant; (b) current audited annual financial statements (which may be part of a consolidated or consolidating financial statements), including a balance sheet, an income statement and a cash flow statement, within 120 days following the end of each fiscal year of Tenant; (c) upon an Event of Default and demand from Landlord, audited financial statements and (d) such other information and reports concerning the financial affairs of Tenant as Landlord may reasonably request.

Section 13.19. Tax Treatment. This Lease (the “Transaction”) is intended to constitute a financing arrangement for federal income tax purposes and is not intended to convey to Landlord any benefits and burdens of ownership or to cause Landlord to be treated as the owner of the Premises or the Improvements for federal income tax purposes. As a result of the Transaction, the parties intend for Tenant to retain all benefits and burdens of ownership of the Premises and the Improvements and to remain the owner of the Premises and the Improvements for federal income tax purposes. The parties agree to treat the Transaction in a manner that is consistent with this intention, including filing all federal, state and local income tax returns and other reports consistent with such treatment. Landlord, as a lender for federal income tax purposes, shall not claim tax credits, depreciation or any other federal or state income tax benefits with respect to the Premises or the Improvements, or take any action which is inconsistent with this provision.

Section 13.20. Termination. No termination or expiration of this Lease shall release any party in default under this Lease and this Lease shall survive for purposes of allowing a party to enforce its rights and remedies under this Lease in the event of a default. All covenants of Tenant, which by their nature cannot be performed until after the expiration of the Term or the earlier termination thereof, and all indemnification obligations of Tenant set forth in this Lease shall survive the expiration or termination of this Lease.

[Signature Pages Follow]

Ground Lease

Hall of Fame Village

IN WITNESS WHEREOF, each of the Parties hereto has executed this Lease effective as of the day and year first set forth above.

Ground Lease

Signature Page

Hall of Fame Village

IN WITNESS WHEREOF, each of the Parties hereto has executed this Lease effective as of the day and year first set forth above.

Ground Lease

Signature Page

Hall of Fame Village

EXHIBIT A

LEGAL DESCRIPTION OF PROPERTY

Parcel No. 1:

Situated in the City of Canton, Stark County, State of Ohio, being all of O.L. 1478 on that certain HOF Village Replat recorded as Instrument Number 202203250013418 of the Stark County, Ohio Records, containing 4.85 acres, more or less.

Parcel No. 2:

Situated in the City of Canton, Stark County, State of Ohio, and known as all of Lot 43481 on that certain HOF Village Replat recorded as Instrument Number 202203250013418 of the Stark County, Ohio Records, containing .91 acres, more or less.

Ground Lease

Exhibit A

Hall of Fame Village

EXHIBIT B

BASE RENT SCHEDULE

Base Rent for each Lease Year during the Term shall be an amount equal to the Rent Basis multiplied by Six and Seventy-Two One-Hundredths percent (6.72%). The “Rent Basis” shall be an amount equal to the amount of the Tenant Improvement Allowance paid by Landlord from time to time.

Ground Lease

Exhibit B

Hall of Fame Village

EXHIBIT C

ENTITLEMENTS FOR WHICH FINAL APPROVALS HAVE BEEN ISSUED

City of Canton Permit Number 2021-551

City of Canton Permit Number 2021-552

City of Canton Adjudication Order pertaining to Plan Review # 2021-003-3

City of Canton Adjudication Order pertaining to Plan Review # 2021-030-4

Ground Lease

Exhibit C

Hall of Fame Village

EXHIBIT D

GUARANTY

COMPLETION AND RENT PAYMENT GUARANTY

IN CONSIDERATION of and as an inducement for the granting, execution and delivery by _____________________________, a _____________________ (“Landlord”), of the Ground Lease (as the same may be amended, modified or restated from time to time, the “Ground Lease”) dated ____________ ___, 20__, with ________, a ___________, as tenant (“Tenant”), relating to the leasing, improvement, development and use of approximately ____ acres of real property located in _____________________________, as more particularly described in the Ground Lease (collectively, the “Premises”), the undersigned, __________, a ____________ (“Guarantor”), enters into this Completion and Rent Payment Guaranty (this “Guaranty”). Guarantor hereby covenants and agrees as follows:

1. Guarantor, jointly and severally with any other undersigned guarantors, unconditionally and irrevocably guarantees to Landlord the full, prompt and unconditional (a) performance of and observance by Tenant of each and every obligation, term, covenant, agreement and condition to be performed or observed by Tenant pursuant to the Lease, (b) Completion (as defined in the Ground Lease) of the Improvements (as defined in the Ground Lease) in accordance with the terms and provisions of the Ground Lease and in compliance with all applicable laws, together with any restoration of the Improvements pursuant to Section 7.03 of the Ground Lease, (c) performance by Tenant of the obligations, terms, covenants, agreements and conditions contained in Section 5.05 and Section 5.10 of the Ground Lease, (d) the indemnity obligations of Tenant contained in the Lease, and (e) any and all costs of collecting such sums or enforcing Landlord’s rights under the Ground Lease or this Guaranty (collectively, the “Obligations”); provided, however, the Obligations contained in clauses (a) and (b) of this Section 1 shall terminate upon Completion of the Project.

2. Guarantor hereby further covenants and agrees to, and with, Landlord that if an event of default under the Lease beyond the expiration of any applicable notice, grace or cure period (“Event of Default”) shall at any time be made by Tenant in the payment of any “Construction Costs” (as defined below), the payment of Rent, or if Tenant should default in the performance and observance of any of the Obligations contained in the Ground Lease, Guarantor shall, and will, forthwith pay such Construction Costs, all such Rent and and/or any enforcement of this Guaranty. The term “Construction Costs” means all hard and soft costs of construction or restoration of the Improvements together with all compensatory damages (excluding consequential, special and punitive damages of any kind), late charges, interest, actual out of pocket costs or fees, reasonable attorneys’ fees and actual out of pocket expenses incurred or suffered by Landlord as a result of non-payment of the Construction Costs. Without limiting the generality of the foregoing, Guarantor agrees that, for purposes of this Guaranty, the Construction Costs shall be equal to either of the following (at Landlord’s sole option): (i) the aggregate amount of such Construction Costs actually incurred by Landlord from time to time to and including the date on which completion of the Improvements in accordance with the terms of the Ground Lease occurs, together with interest on such amount from the date incurred until the date repaid, at the highest rate of interest permissible under applicable law, or (ii) (whether or not Landlord completes or intends to complete the Improvements) the estimated amount of such Construction Costs as determined by, at Landlord’s sole option, either (A) a court of competent jurisdiction or (B) a construction consultant reasonably acceptable to Landlord and Tenant at any time after an Event of Default by Tenant under the Ground Lease has occurred, in each case less the value of any property, estate or funds surrendered or paid by Tenant to Landlord. Guarantor agrees that any amount estimated by the construction consultant as aforesaid, and any determination by the construction consultant with respect to industry practices, shall be conclusive for purposes of determining Guarantor’s liability hereunder, provided that the construction consultant has made such estimate or determination acting reasonably and in good faith.

Ground Lease

Exhibit D

Hall of Fame Village

3. Guarantor’s obligations under this Guaranty shall be binding on Guarantor’s successors and assigns. All references in this Guaranty (a) to Landlord and Tenant shall include their successors and assigns; and (b) to Tenant, shall include any successors-in-interest to Tenant (whether or not directly succeeding Tenant) by reason of an Event of Reorganization (as defined in Paragraph 8 below).

4. The provisions of the Ground Lease may be changed by agreement between Landlord and Tenant without the consent of or notice to Guarantor. The provisions of the Ground Lease may be changed by agreement between Landlord and any permitted assignee of Tenant or any subsequent assignee without the consent of or notice to Guarantor. The Ground Lease may be assigned by Landlord or Tenant, and the Premises, or a portion thereof, may be sublet by Tenant, all in accordance with the provisions of the Ground Lease, without the consent of or notice to Guarantor. This Guaranty shall guarantee the Obligations and payment of Rent so assigned.

5. This Guaranty and Guarantor’s obligations hereunder shall continue and remain in full force and effect notwithstanding Landlord’s failure or delay from time to time to enforce any of its rights or remedies under the Ground Lease or this Guaranty.

6. If there is an Event of Default by Tenant under the Ground Lease relating to the Obligations, including, without limitation, the payment of Rent, Landlord may proceed against either Guarantor or Tenant, or both, or Landlord may enforce against Guarantor or Tenant any rights that Landlord has under the Ground Lease relating to the Obligations, in equity or under applicable law. If the Ground Lease terminates and Landlord has any rights against Tenant after termination relating to the Obligations, Landlord may enforce those rights against Guarantor, without giving previous notice to Tenant or Guarantor. Guarantor hereby agrees that no notice of default need be given to Guarantor, it being specifically agreed and understood that this Guaranty of the undersigned is a continuing guarantee under which Landlord may proceed forthwith and immediately against Tenant or against Guarantor following any breach or default by Tenant.

7. Guarantor hereby expressly and knowingly waives all benefits and defenses under applicable law with respect to the enforcement of this Guaranty, including without limitation: (a) the right to require Landlord to proceed against Tenant, proceed against or exhaust any security that Landlord holds from Tenant, or pursue any other remedy in Landlord’s power; (b) any defense to its obligations hereunder based on the termination of Tenant’s liability; (c) all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty; and (d) all notices of the existence, creation, or incurring of new or additional obligations. Landlord shall have the right to enforce this Guaranty regardless of the acceptance of additional security from Tenant and regardless of the release or discharge of Tenant by Landlord or by others, or by operation of any law.

8. The obligations of Guarantor under this Guaranty shall remain in full force and effect and Guarantor shall not be discharged by any of the following events with respect to Tenant or Guarantor: (a) insolvency, bankruptcy, reorganization arrangement, adjustment, composition, assignment for the benefit of creditors, liquidation, winding up or dissolution; (b) any merger, acquisition, consolidation or change in entity structure, or any sale, lease, transfer, or other disposition of any entity’s assets, or any sale or other transfer of interests in the entity (each, an “Event of Reorganization”); or (c) any sale, exchange, assignment, hypothecation or other transfer, in whole or in part, of Landlord’s interest in the Premises or the Ground Lease. Nothing in this Paragraph 8 shall diminish the effect of any subsequent written agreement between Guarantor and Landlord.

Ground Lease

Exhibit D

Hall of Fame Village

9. Guarantor hereby represents and warrants that it has executed this Guaranty based solely on its independent investigation of Tenant’s financial condition. Guarantor hereby assumes responsibility for keeping informed of Tenant’s financial condition and all other circumstances affecting Tenant’s performance of its obligations under the Ground Lease. Absent a written request for such information by Guarantor, Landlord shall have no duty to advise Guarantor of any information known to it regarding such financial condition or circumstances.

10. Guarantor further agrees that it may be joined in any action against Tenant in connection with the said obligations of Tenant and recovery may be had against Guarantor in any such action. Guarantor hereby expressly waives all benefits and defenses under applicable law to the fullest extent permitted by applicable Law. Guarantor agrees not to exercise any of its rights of subrogation or reimbursement against Tenant until after all amounts due and owing under the Ground Lease have been fully paid. If the foregoing waiver is determined by a court of competent jurisdiction to be void or voidable, Guarantor agrees to subordinate its rights of subrogation and reimbursement against Tenant to Landlord’s rights against Tenant under the Ground Lease.

11. Guarantor hereby represents and warrants that, as of the date of the execution of this Guaranty by Guarantor, there is no action or proceeding pending or, to Guarantor’s knowledge after due inquiry, threatened against Guarantor before any court or administrative agency which could adversely affect Guarantor’s financial condition in a way which would jeopardize Guarantor’s ability to satisfy its obligations under this Guaranty. The foregoing representation and warranty shall survive the execution and delivery of this Guaranty and is expressly made for the benefit and reliance of Landlord, and Landlord’s partners, members, trustees, lenders, representatives, successors and assigns.

12. This Guaranty shall be one of payment and performance and not of collection. If there is more than one undersigned Guarantor, the term Guarantor, as used herein, shall include and be binding upon each and every one of the undersigned, and each of the undersigned shall be jointly and severally liable hereunder. If there is more than one undersigned Guarantor, Landlord shall have the right to join one or all of them in any proceeding or to proceed against them in any order.

13. Guarantor shall indemnify, defend (with counsel acceptable to Landlord), protect and hold harmless Landlord, and Landlord’s partners, members, trustees, lenders, representatives, successors and assigns from and against all liabilities, losses, claims, demands, judgments, penalties, damages, expenses and costs (including all attorneys’ fees and costs to enforce any of the terms of this Guaranty or otherwise awarded hereunder) arising from or in any way related to any failure by Tenant or Guarantor to pay the Rent, Construction Costs, or to fully, faithfully and timely perform the Obligations.

14. The term “Ground Lease” whenever used in this Guaranty shall be deemed, and interpreted so as, to also include any renewals or extensions of the initial or renewal term(s), as the case may be, and any holdover periods thereunder.

15. All demands, notices and other communications under or pursuant to this Guaranty shall be in writing, and shall be deemed to have been duly given when personally delivered, or three (3) days after the date deposited in the United States Postal Service, first-class postage prepaid, certified with return receipt requested, or the delivery date designated for overnight courier services (e.g. Federal Express), or the date delivery is refused, addressed to the party at the address set forth below, or at such other address as may be hereafter designated in writing by either party to the other.

Ground Lease

Exhibit D

Hall of Fame Village

Landlord:

________________________

________________________

________________________

Attention: _______________

with a copy of notices to:

________________________

________________________

________________________

Attention: _______________

Guarantor:

________________________

________________________

________________________

Attention: _______________

with a copies of notices to:

________________________

________________________

________________________

Attention: _______________

16. Guarantor hereby represents and warrants that it is duly authorized to execute and deliver this Guaranty; that this Guaranty is binding on Guarantor in accordance with its terms; that the terms and provisions of this Guaranty are intended to be valid and enforceable in accordance with its terms; and that the signatory to this Guaranty is duly authorized to bind Guarantor and execute this Guaranty on Guarantor’s behalf.

17. Landlord may assign this Guaranty in conjunction with the assignment of all or any portion of Landlord’s interest in the Ground Lease, without the necessity of obtaining Guarantor’s consent thereto, and any such assignment shall not affect, or otherwise relieve, Guarantor from its obligations or liability hereunder. Guarantor may not assign or otherwise delegate any of its rights or obligations hereunder without first obtaining Landlord’s written consent thereto, which consent may be withheld in Landlord’s sole discretion. The terms and provisions of this Guaranty shall inure to the benefit of Landlord and Landlord’s partners, members, trustees, lenders, representatives, and all of their respective successors and assigns. Guarantor hereby acknowledges and agrees that Landlord is relying upon Guarantor’s covenants, representations and warranties contained in this Guaranty in entering into the Ground Lease with Tenant, and Guarantor hereby undertakes to perform its obligations hereunder promptly and in good faith.

18. If all or any portion of the obligations guaranteed hereunder are paid or performed and all or any part of such payment or performance is avoided or recovered, directly or indirectly, from Landlord as a preference, fraudulent transfer or otherwise, then Guarantor’s obligations hereunder shall continue and remain in full force and effect as to any such avoided or recovered payment or performance.

19. All representations and warranties made by Guarantor herein or made in writing pursuant to this Guaranty are intended to and shall remain true and correct as of the time of execution of this Guaranty, shall be deemed to be material, shall survive the execution and delivery of this Guaranty, and shall be relied upon by Landlord and Landlord’s partners, members, trustees, lenders, representatives, successors and assigns.

Ground Lease

Exhibit D

Hall of Fame Village

20. This Guaranty shall be enforced, governed by and construed in accordance with the laws of the State of Missouri, irrespective of its conflict of law rules. In addition, Guarantor hereby consents to the jurisdiction of any state or federal court located within the County in which the Premises are located and irrevocably agrees that all actions or proceedings arising out of or relating to the Ground Lease and this Guaranty shall be litigated in such courts. Guarantor accepts generally and unconditionally, the nonexclusive jurisdiction of the aforesaid courts and waives any defense of forum non conveniens, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Guaranty. This Guaranty shall be subject to all valid applicable laws and official orders, rules and regulations, and, in the event this Guaranty or any portion thereof is found to be inconsistent with or contrary to any such laws or official orders, rules or regulations, the latter shall be deemed to control, and this Guaranty shall be regarded as modified and shall continue in full force and effect; provided, however, that nothing herein contained shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction in the Premises.

21. This Guaranty and any exhibits hereto constitute the entire agreement between the parties with respect to the matters covered herein and supersedes all prior agreements and understandings between the parties hereto relating to the subject matter hereof.

22. In the event Guarantor fails to perform any of its obligations under this Guaranty or in the event a dispute arises concerning the meaning or interpretation of any provision of this Guaranty, the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party in enforcing or establishing its rights hereunder, including without limitation, court costs, expert fees, and reasonable attorneys’ fees.

23. Time is of the essence of this Guaranty.

24. Notwithstanding anything to the contrary contained in the Ground Lease, this Guaranty or any other document executed in connection therewith, Guarantor agrees that Landlord’s direct and indirect lenders (and any person or entity acting as agent with respect thereto) and their respective successors and/or assigns (collectively, “Lender”) are each third-party beneficiaries of this Guaranty and so long as the applicable loan is outstanding: (i) this Guaranty may not be amended, modified, supplemented, terminated, surrendered, or cancelled without Lender’s prior written consent; and (ii) Lender shall have the right to enforce the terms and conditions of the Guaranty.

[SIGNATURES APPEAR ON FOLLOWING PAGES]

Ground Lease

Exhibit D

Hall of Fame Village

IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date set forth below.

Ground Lease

Exhibit D

Hall of Fame Village

EXHIBIT E

MEMORANDUM OF LEASE

THIS MEMORANDUM OF LEASE is made and entered into as of this _____ day of ________, 20___, by and between _____________________, a _____________________ (“Landlord”), and _____________________, a _____________________ (“Tenant”).

R E C I T A L S

Landlord does hereby lease and demise to Tenant that certain real property in the City of _________, County of _________, State of _______________, more particularly described in Exhibit “A” attached hereto and all rights, privileges and easements appurtenant thereto (the “Premises”) pursuant to an upon all of the terms, covenants and provisions set forth in that certain unrecorded Ground Lease of even date herewith (as amended from time to time, the “Lease”), the terms, covenants and provisions of which are hereby incorporated herein by reference. Initially capitalized terms not otherwise defined herein shall have the meanings set forth in the Lease.

NOW, THEREFORE, the parties hereby agree as follows:

(1) The commencement date of the term of the Lease is ____________________, 20___.

(2) The Term of the Lease shall continue for a period expiring on _______________________.

(3) The Lease grants to any Lender on the security of the leasehold estate created by the Lease the right to obtain a new lease from Landlord having the same record priority as the Lease upon any termination of the Lease prior to the expiration of its term upon the terms and conditions set forth in Section 6.08 of the Lease.

(4) Tenant shall pay the real property taxes and assessments against the Premises during the term hereof, as more specifically provided in the Lease.

(5) Notwithstanding that the ownership of Landlord’s and Tenant’s estates in and to the Premises may become vested in the same party, no merger of Tenant’s leasehold estate into Landlord’s fee title shall result or be deemed to result thereby, as provided in Section 6.09 of the Lease, provided that this provision shall not be deemed applicable to a termination of Tenant’s leasehold estate by reason of Tenant’s default.

(6) Any interest acquired in the Premises, including without limitation, any Fee Mortgage (whether recorded prior to or after the recordation of this Memorandum and including any renewals, replacements, extensions, modifications and amendments thereof), is at all times subject and subordinate to Tenant’s interest under the Lease and any New Lease (and any amendments to the Lease or New Leases, as applicable).

Ground Lease

Exhibit E

Hall of Fame Village

IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written.

THE STATE OF _________§

  §

COUNTY OF ___________§

This instrument was acknowledged before me on the ___ day of ____________, 20__, by _____________________, _______________ of ___________________, LLC, a _____________ limited liability company, on behalf of said limited liability company.

___________________________________

Notary Public in and for the State of Missouri

THE STATE OF _________ §

§

COUNTY OF ___________ §

This instrument was acknowledged before me on the ___ day of ____________, 20__, by __________________, ____________ of __________________, LLC, a ___________ limited liability company, on behalf of said limited liability company.

___________________________________

Notary Public in and for the State of Missouri

Ground Lease

Exhibit E

Hall of Fame Village

EXHIBIT “A”

LEGAL DESCRIPTION

Ground Lease

Exhibit E

Hall of Fame Village

EXHIBIT F

INSURANCE REQUIREMENTS

Throughout the term of this Agreement, HOF Village Retail I, LLC and HOF Village Retail II, LLC (the “Tenant”) shall obtain, and maintain in full force and effect, the following policies of insurance on behalf of HOF Village Retail I, LLC and HOF Village Retail II, LLC with such changes as may be reasonably required by Twain GL XXXVI, LLC (the “Landlord”) and U.S. Bank National Association and its successors and assigns for the benefit of the lenders as their interests may appear (the “Lender”), from time to time:

Limits of the policy shall be at least $1 million per occurrence and $2 million in the general aggregate. If coverage is provided under blanket policies insuring other locations or entities, then the general aggregate must apply to each insured location separately.

The Tenant shall obtain (or cause to be obtained) and keep in force:

Ground Lease

Exhibit F

Hall of Fame Village

All insurance policies shall be underwritten by companies licensed to write such insurance in the state in which the Project is located, and shall be rated in the latest A.M. Best’s Insurance Rating Guide with a rating of at least A-, and be in a financial category of at least IX.

The Tenant shall furnish to the Landlord a complete copy of each such policy of insurance required under #1, #2 and #3. If an insurance policy is not available when required, as set forth above, then Certificates of Insurance detailing the policy terms and conditions as noted above shall be provided, but the policies must then be provided within sixty days.

All such policies shall include endorsements requiring at least 30 days prior written notice to the Landlord of any cancellation, termination or reduction of coverage therein. Notice of the renewal of any policy shall be made at least 10 days prior to the scheduled date of such renewal, and shall be in the form of endorsement to the policy. Notice to the Landlord of any replacement of any policy shall be made at least 10 days prior to such replacement, and shall be in the form of a copy of the replacement policy, or by certificate, as noted above.

Evidence of insurance may be provided on a Certificate of Insurance issued to the Tenant and Landlord. All Certificates shall be amended in the Cancellation provision by deleting the words “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives.”

By requiring insurance limits, the Landlord does not represent that coverage and limits will necessarily be adequate to protect the Tenant and such coverage and limits shall not be deemed as a limitation or release of any party’s liability under any indemnification granted to the Landlord in this Agreement.

The requirements specified herein shall not be waived by delivery of a certificate or policy to the Lanlord (or its counsel) not in conformance with these requirements unless these requirements are specifically modified in writing by the Landlord.

Notes:

Ground Lease

Exhibit F

Hall of Fame Village

EXHIBIT G

ACKNOWLEDGEMENT OF THIRD PARTY BENEFICIARY

This Acknowledgment of Third Party Beneficiary is executed this ____________ day of __________________, 20___, by ______________________ [(“General Contractor”)] [(“Architect”)], a contractor retained by ________________________ (“Tenant”) to perform certain work and services relating to the construction of a ______________________ on that certain tract of real estate in _______________ (the “Project”) owned by Twain GL ____, LLC, a Missouri limited liability company (“Owner”). In consideration of the contract(s) between Tenant and [General Contractor] [(the “Construction Contract”)] [(the “Architect Agreement”)], relating to [construction of such improvements and construction and performance of such site improvement work] and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, [General Contractor] [Architect] agrees as follows:

1. [General Contractor] [Architect] acknowledges and agrees that [General Contractor] [Architect] is responsible to complete the Project required by the [Construction Contract] [Architect] in accordance with the terms thereof, in accordance with the plans and specifications for the Project, and in compliance with all applicable codes, ordinances and laws.

2. [General Contractor] [Architect] acknowledges that the Project is being performed for the benefit of Owner and Tenant. In addition, [General Contractor] [Architect] hereby acknowledges and agrees that [___________], LLC, a Missouri limited liability company, is an expressly intended third-party beneficiary of the [Construction Contract] [Architect Agreement]. [General Contractor] [Architect] agrees that Owner’s status as intended third-party beneficiary does not constitute or create a contractual relationship between Owner and [General Contractor] [Architect] and does not allow [General Contractor] [Architect] to enforce the [Construction Contract] [Architect Agreement] directly against Owner. However, [General Contractor] [Architect] agrees that as an intended third-party beneficiary, Owner shall have the right to enforce the terms of the [Construction Contract] [Architect Agreement] directly against [General Contractor] [Architect], without accepting any assignment of the [Construction Contract] [Architect Agreement], and that in such event Owner shall be entitled to full and direct performance from [General Contractor] [Architect] of the [Construction Contract] [Architect Agreement] and all warranties provided therein. Specifically, in this regard, [General Contractor] [Architect] acknowledges and agrees that it shall be directly and fully responsible to Owner for the work and services provided by [General Contractor] [Architect] on the Project and for all non-conformities, defects or deficiencies in such work and services provided by [General Contractor] [Architect] for the Project. In addition, [General Contractor] [Architect] hereby agrees that all indemnities and insurance coverages procured by [General Contractor] [Architect] under the [Construction Contract] [Architect Agreement] shall include and run to the benefit of Owner and its agents, employees, officers and servants.

Ground Lease

Exhibit G

Hall of Fame Village

EXHIBIT H

BUDGET

[***]

Ground Lease

Exhibit H

Hall of Fame Village

EXHIBIT I

RESERVED

Ground Lease

Exhibit I

Hall of Fame Village

Ground Lease

Exhibit J

Hall of Fame Village

EXHIBIT K

RESERVED

Ground Lease

Exhibit K

Hall of Fame Village

EXHIBIT L

Form of Ground Lease Estoppel Certificate

[DATE]

U.S. Bank National Association

425 Walnut St, 6^th Floor

CN-OH-W6CT

Cincinnati, OH 45202

Attention: GSF – Twain Funding II

Ladies and Gentlemen:

The undersigned, [_____], a [_____] (“Tenant”), and [____], a [____] (“Guarantor”), each certifies to U.S. Bank National Association, as administrative agent and collateral agent for certain lenders (“Lenders”) (in such capacity, “Agent”) (all of the foregoing, together with their respective successors and/or assigns, collectively, the “Reliance Parties”), as of the date hereof as follows:

1. Tenant is the tenant under that certain Ground Lease dated [____] (the “Commencement Date” under the Ground Lease) between Tenant, as tenant, and [_________], a Missouri limited liability company, as landlord (“Landlord”) (the “Ground Lease”). Capitalized terms used and not defined in this Ground Tenant Estoppel Certificate (this “Certificate”) have the meanings ascribed to such terms in the Ground Lease.

2. In connection with the Ground Lease, Guarantor delivered to Landlord that certain [Completion and Rent Payment Guaranty] dated the Commencement Date (the “Guaranty”).

3. Each of the Ground Lease, the Guaranty, and to the extent applicable, any of the other written instruments set forth on Exhibit A¹ attached hereto (all of the foregoing, collectively, the “Ground Lease Documents”): (i) are in full force and effect in accordance with their respective terms; (ii) have not been amended, modified or supplemented, except as set forth on Exhibit A; and (iii) represent the entire agreement between Tenant and Guarantor, on the one hand, and Landlord, on the other hand. There are no other agreements or understandings, whether written or oral, between Tenant and/or Guarantor, on the one hand, and Landlord, on the other hand, with respect to the Ground Lease Documents or the Premises.

4. The term of the Ground Lease commenced on the Commencement Date and expires on [________], unless sooner terminated in accordance with the terms as set forth in the Ground Lease. Base Rent will be calculated according to Exhibit [__] attached to the Ground Lease.

5. No Base Rent has been paid more than one month in advance and no security has been deposited with Landlord.

6. The Completion Date has not yet occurred.

7. With respect to Tenant, no “default” or “breach” currently exists under the Ground Lease and, to Tenant’s knowledge, (i) there exist no “default” or “breach” on the part of Tenant under the Ground Lease beyond applicable notice and cure periods and (ii) no event has occurred which, with the passage of time or the giving of notice or both, would constitute a “default” or “breach” by Tenant thereunder.

8. With respect to Landlord, no default or breach currently exists under the Ground Lease and, to Tenant’s knowledge, (i) there exist no default or breach on the part of Landlord under the Ground Lease beyond applicable notice and cure periods and (ii) no event has occurred which, with the passage of time or the giving of notice or both, would constitute a default or breach by Landlord thereunder.

Ground Lease

Exhibit L

Hall of Fame Village

9. No default or breach currently exists under the Guaranty and, to Tenant’s and Guarantor’s knowledge, (a) there exist no default or breach on the part of Guarantor under the Guaranty beyond applicable notice and cure periods and (b) no event has occurred which, with the passage of time or the giving of notice or both, would constitute a default or breach by Guarantor thereunder.

10. To Tenant’s knowledge, the Premises is free and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Premises.

11. Tenant has not assigned the Ground Lease. Tenant has not mortgaged its leasehold interest in the Premises [and there are currently no Leasehold Mortgages][except to: ________, pursuant to that certain _________].

12. No bankruptcy proceeding, whether voluntary or otherwise, is pending, or to Tenant’s knowledge, threatened, against Tenant or Guarantor.

13. To Tenant’s and Guarantor’s knowledge, neither Tenant nor Guarantor has any claim, offset or defense against Landlord arising out of the Ground Lease or against the payment of rent or other charges under the Ground Lease or in any way relating thereto.

14. The General Construction Contract and the Architect’s Contract referred to in Section 5.02 of the Ground Lease remain in full force and effect.

15. The Tenant Improvement Allowance is $[____] and as of the date hereof $[____] has been received by Tenant from Landlord on account of the Tenant Improvement Allowance. Tenant is not owed any allowance under the Ground Lease Documents other than Landlord’s obligation to fund the Tenant Improvement Allowance and/or Capitalized Rent.

16. For purposes of Section 12.03 of the Ground Lease, Agent and Lenders shall be considered “Fee Mortgagees” and afforded all of the rights and benefits of a “Fee Mortgagee” under the Ground Lease Documents, subject to (but without the need for any additional acknowledgment or consent from Tenant) Tenant’s receipt of an executed copy of the “Fee Mortgage” which expressly states that such Fee Mortgage shall attach only to the Fee Estate and shall not encumber or attach to or otherwise affect or be superior to the Ground Lease or any New Lease.

17. For purposes of Section 12.03(d) of the Ground Lease, the notice address for Agent is as follows:

U.S. Bank National Association

425 Walnut St, 6^th Floor

CN-OH-W6CT

Cincinnati, OH 45202

Attention: GSF – Twain Funding II

18. Notwithstanding anything to the contrary contained in any of the Ground Lease Documents, Guarantor agrees that Agent and Lenders are third-party beneficiaries of the Guaranty and so long as Agent and Lenders are Fee Mortgagees: (i) the Guaranty may not be amended, modified, supplemented, terminated, surrendered, or cancelled without Agent’s prior written consent; and (ii) Agent shall have the right to enforce the terms and conditions of the Guaranty.

19. The undersigned hereby certifies that he or she is duly authorized to sign, acknowledge and deliver this Certificate on behalf of Tenant or Guarantor, as applicable. Each of Tenant and Guarantor acknowledges that Agent and Lenders will rely on this Certificate in administering and making a loan secured by the Fee Mortgage. The information contained in this Certificate shall be for the benefit of the Reliance Parties.

Ground Lease

Exhibit L

Hall of Fame Village

Ground Lease

Exhibit L

Hall of Fame Village

Exhibit A

Ground Lease Documents

Ground Lease

Exhibit L

Hall of Fame Village

EXHIBIT M

Tenant Payment Notice

Landlord has entered into a loan agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) with U.S. Bank National Association as Administrative Agent (“Administrative Agent”) for the Lenders party to the Loan Agreement from time to time, pursuant to which the Lenders have agreed to make a loan to Landlord. Pursuant to the Loan Agreement, Landlord has granted to Administrative Agent, on behalf of the Lenders, a security interest and continuing lien on Landlord’s right, title and interest in and to all amounts at any time payable by you to Landlord pursuant to this Lease.

By this letter, you are hereby directed to make all payments of rent and other sums due to Landlord under this Lease as follows:

In the event that you at any time receive any other instructions from Administrative Agent with respect to the disposition of amounts payable by or through to Landlord pursuant to this Lease, Landlord hereby irrevocably authorizes and directs you to follow such instructions, without inquiry as to Administrative Agent’s right or authority to give such instructions. You are authorized and directed by Landlord to follow Administrative Agent’s instructions despite any contrary instructions from Landlord.

The foregoing direction is irrevocable, except with the written consent of Administrative Agent (or its successors or assigns), notwithstanding any future contrary request or direction from Landlord or any other person (other than Administrative Agent (or its successors or assigns)).

Ground Lease

Exhibit M

Hall of Fame Village

EXHIBIT N

Work Completed as of Commencement Date

Retail I’s core and shell has been completed including certificate of occupancy issued as of September 9, 2022. The work completed includes all main utilities required to service the building including, water, sewer, electrical, gas and wi-fi connectivity availability. It includes the completion of all structural steel, block demising walls, fire alarm systems and sprinkler systems, pre cast panels, metal panels, exterior brick, roof including stair access and roof access hatch, electrical rooms, fire pump rooms, storage rooms, trash room, back of house corridor with poured concrete floor, HVAC systems for core/shell, roll up doors and back of house doors, all life safety signage for core/shell required by code, security cameras for core/shell. Additionally, as part of site work there is a completed parking lot, roads, site lighting, sidewalks, landscaping, security cameras and digital messaging boards.

Additionally, Build a Bear is now open and received their certificate of occupancy on September 9 2022. The Shula’s build out is progressing with all underground work completed, mezzanine structural steel in place, all slab on grade is poured as is mezzanine. HVAC and electrical rough in work is in progress.

Retail II is 85% complete from a core and shell perspective. The work completed includes all main utilities required to service the building including, water, sewer, electrical, gas. It includes the completion of all structural steel, block demising walls, fire sprinkler systems, pre cast panels, exterior brick, roof is 95% completed, HVAC systems for core/shell has started. Elevator shaft is also in for the service corridor area.

Additionally, the tenant build out for Brew Kettle is under way including an enclosure on the roof that has structural steel and metal framing completed as well as underground work is completed.

Ground Lease

Exhibit N

Hall of Fame Village

Exhibit 10.4

Hall of Fame Resort & Entertainment Company

2626 Fulton Drive NW

Canton, Ohio 44718

September 27, 2022

Mr. Stuart Lichter, individually and as
Trustee of the Stuart Lichter Trust
u/t/d dated November 13, 2011
316 Spyglass Way
Jupiter, Florida 33477

Dear Mr. Lichter,

This letter agreement (this “Letter Agreement”) memorializes certain agreements between Hall of Fame Resort & Entertainment Company, a Delaware corporation (“HOFREC”), HOF Village Retail I, LLC, a Delaware limited liability company (“HOFV Retail I”), and HOF Village Retail II, LLC (“HOFV Retail II”; HOFREC, HOFV Retail I and HOFV Retail II are collectively referred to herein as the “HOF Entities”), and the Guarantor (defined below) regarding (i) the Guaranty of Payment (the “Guaranty of Payment”) made as of the date hereof by Stuart Lichter, both individually and as Trustee of the Stuart Lichter Trust u/t/d dated November 13, 2011 (collectively, the “Guarantor”), in favor of the Huntington National Bank, a national banking association, its successors and assigns (the “Lender”), and (ii) the Performance and Completion Guaranty (the “Performance and Completion Guaranty”) made as of the date hereof by the Guarantor, in favor of the Lender, in each case with respect to the Loan Agreement, dated as of the date hereof (the “Loan Agreement”), among HOFV Retail I and HOFV Retail II (together, “Borrower”), and the Lender. Pursuant to the Loan Agreement, Lender has agreed to make a loan (the “Loan”) to Borrower in the principal amount of up to Ten Million and No/100 ($10,000,000.00) to finance certain commercial retail buildings located at the Hall of Fame Village site in Canton, Stark County, Ohio (the “Project”):

1. As consideration for the Guarantor entering into the Guaranty of Payment and the Performance and Completion Guaranty, promptly following each disbursement of loan proceeds (each, a “Disbursement”) under the Loan Agreement (including any Disbursement on or about the date hereof), the HOF Entities shall pay to Stuart Lichter an amount equal to 2.25% of the amount of such Disbursement.

2. Each of the HOF Entities acknowledges and agrees with the Guarantor that, but for the execution and delivery of the Guaranty of Payment and the Performance and Completion Guaranty by the Guarantor, Lender would not have entered into the Loan Agreement.

3. Each of the HOF Entities and the Guarantor acknowledges and agrees that Guarantor is an independent contractor and not an employee, joint venturer or partner of the HOF Entities, and this Letter Agreement shall not be construed to constitute or create a partnership or joint venture or any other form of legal association that would impose liability upon one party for the act or failure to act of any other party, or as providing any party with the right, power or authority (express or implied) to create any duty or obligation on behalf of any other party, other than the specific duties and obligations set forth in this Letter Agreement, the Guaranty of Payment or the Performance and Completion Guaranty.

4. This Letter Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. This Letter Agreement may be executed in counterparts. This Letter Agreement will be governed in all respects by the laws of the State of Ohio (without regard to conflicts of law provisions).

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If the foregoing correctly sets forth our agreement, please so confirm by signing a copy of this letter below.