Exhibit 10.9
CONSTRUCTION LOAN AGREEMENT
by and between
HOF VILLAGE HOTEL II, LLC
as Borrower,
and
ERIEBANK,
a division of CNB Bank,
a wholly owned subsidiary of CNB Financial Corporation,
a Pennsylvania corporation
as Lender
Dated as of September 14, 2020
CONSTRUCTION
LOAN AGREEMENT
This Construction Loan
Agreement (this “Agreement”), is made and entered into as of the 14th day of September, 2020 (the “Loan
Closing Date”), by and between HOF Village Hotel II, LLC, a Delaware limited liability company (“Borrower”)
with a principal address at 2626 Fulton Avenue NW, Canton OH 44718, and ERIEBANK, a division of CNB Bank, a wholly owned subsidiary of
CNB Financial Corporation, a Pennsylvania corporation (“Lender”) with an address at Crown Centre, 5005 Rockside Rd.,
Suite 625, Independence, OH 44131.
RECITALS:
WHEREAS, Borrower owns certain
real property located in the City of Canton, Stark County, Ohio, having an address of 320 Market Avenue, South, Canton, Ohio as more particularly
described on Exhibit A attached and made a part hereof (the “Land”);
WHEREAS, the improvements
on the Land consists of a hotel known as the McKinley Grand Hotel which Borrower proposes to renovate (the “Project”);
WHEREAS, Borrower has applied
to Lender for a first mortgage loan in the amount of up to $15,300,000.00 for the purpose of such renovation (the “Loan”),
and Lender is willing to make the Loan upon the terms and conditions hereinafter set forth;
WHEREAS, as of the date hereof
Borrower has completed approximately 73% of the construction of the Project and Borrower and Lender have agreed that a portion of the
Loan proceeds shall be disbursed at closing to: (i) retire existing debt encumbering the Land, and (ii) reimburse Borrower for construction
and other costs of the Project incurred to date, including but not limited to closing costs in connection with the Loan, which amount
of Loan proceeds shall be reflected on the Lender approved settlement statement on or about the date hereof;
WHEREAS, as of the date hereof
Borrower has also secured the following subordinate financing for the Project (collectively, the “Subordinate Debt”):
(i) a loan
in the original principal amount of $3,000,000.00 from Newmarket Project, Inc. (the “Newmarket Loan”) pursuant to certain
loan documents, as amended (collectively, the “Newmarket Loan Documents”), and Newmarket Project, Inc. has agreed to
execute a subordination agreement with Lender (the “Newmarket Subordination Agreement”);
(ii) a loan
in the original principal amount of $3,500,000.00 from the City of Canton, Ohio (the “City Loan”) pursuant to certain
loan documents, as amended (collectively, the “City Loan Documents”), and the City of Canton, Ohio has agreed to execute
a subordination agreement with Lender (the “City of Canton Subordination Agreement”);
WHEREAS, Borrower has obtained
a commitment from the Cleveland International Fund (the “CIF Loan Commitment”) to provide Borrower with a loan in an
amount sufficient to pay off the Loan on or before Extended Maturity Date (defined below);
WHEREAS, Borrower has entered
into that certain Franchise Agreement with Hilton Franchise Holding LLC, a Delaware limited liability company (“Hilton”)
dated December 3, 2019, as amended by that certain Amendment to Franchise Agreement dated February 4, 2020 (together, the “Franchise
Agreement”), pursuant to which Borrower shall operate the Project under the trade name DoubleTree by Hilton Canton Downtown,
and in connection therewith pursuant to Section 12.4.2 of the Franchise Agreement, Hilton has agreed to provide a lender comfort letter
to Lender (the “Comfort Letter”);
WHEREAS, On or about the date
hereof, Lender has entered into that certain Bond Purchase Agreement (the “PBA”) with the Development Finance Authority
of Summit County (the “Issuer”), pursuant to which Lender shall purchase Development Finance Authority of Summit County
Taxable Development Lease Revenue Bond, Series 2020 (HOF Village Hotel II, LLC Project) in the amount of up to $15,300,000.00 (the “Bonds”).
Pursuant to the BPA draws under the Loan shall be deemed to be purchases of Bonds, and the Issuer has entered into a Construction Agency
Agreement with Borrower dated on or about the date hereof (the “Construction Agency Agreement”) pursuant to which the
Issuer has appointed Borrower its construction agent to construct the Project and to use the Loan proceeds to defray the costs of construction
of the Project, and Borrower has agreed to assign its interest in the Construction Agency Agreement hereof (the “Assignment of
Construction Agency Agreement”) as part of the collateral for the Loan;
WHEREAS, in connection with
the BPA Borrower has entered into that certain Ground Lease dated on or about the date hereof (“Ground Lease”), wherein
Borrower has leased the Land and improvements to the Issuer and, pursuant to that certain Lease dated on or about the date hereof (“Capital
Lease”), the Issuer has leased the Land and improvements back to the Borrower;
WHEREAS, pursuant to that
certain the Cooperative Agreement to be dated on or about October 6, 2020 (the “Cooperative Agreement”) among the Development
Finance Authority of Summit County, the City of Canton, Ohio, the Canton Regional Energy Special Improvement District, Inc., the Borrower
and U.S. Bank National Association, as Trustee, the Development Finance Authority of Summit County has determined to issue its Development
Finance Authority of Summit County Jobs & Investment Fund Program Taxable Development Revenue Bonds, Series 2020C (City of Canton
- HOF Village Hotel II, LLC Project) in a principal amount not to exceed $2,500,000.00 (the “Series 2020C Bonds”) for
the purpose of financing a portion of the costs of construction of the Project, and in connection with the Series 2020C Bonds a certain
DECLARATION OF COVENANTS AND CONDITIONS RELATIVE TO SERVICE PAYMENTS IN LIEU OF TAXES (the “Series 2020C Bonds Declaration”)
has been or will be filed against the Project to insure payment of the Minimum Service Payments as set forth in the Cooperative Agreement
(the Cooperative Agreement, Series 2020C Bonds, Series 2020C Bonds Declaration hereinafter the “PACE Financing”, and
any other documents executed in connection therewith collectively referred to as the “PACE Documents”);
WHEREAS, HOF Village, LLC,
a Delaware limited liability company (“Original Owner”), has entered into that certain Management Agreement with Crestline
Hotels & Resorts, LLC, a Delaware limited liability company dated October 22, 2019, and Original Owner has assigned its interest in
the Property Management Agreement to Borrower pursuant to that certain Assignment and Assumption of Management Agreement dated July 1,
2020 (together, the “Property Management Agreement“), and Borrower has agreed to assign its interest in the Property
Management Agreement pursuant to that certain Subordination and Conditional Assignment of Property Management Agreement (the “Assignment
of Property Management Agreement”);
WHEREAS, Stuart Lichter, one
of the Guarantors, has an ownership interest in IRG Columbus, LLC, a Delaware limited liability company, and IRG Euclid Corp., a Delaware
corporation, and, as additional collateral, has agreed to provide Lender with a collateral assignment of his economic interest in each
entity (the “Collateral Assignment of Economic Interest in IRG Columbus, LLC” and “Collateral Assignment of
Economic Interest in IRG Euclid Corp.”, respectively).
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 percent (50%) 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 Recitals.
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 Construction
Agency Agreement. As defined in the Recitals.
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 Project or any part thereof, and which assignment is prior to all other such assignments and valid
as such against all creditors of Borrower.
Assignment of Property
Management Agreement. As defined in the Recitals.
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.
Borrower Deposit Accounts:
As such term is defined in Section 4.6.
Budget: A budget for
the Project, in form and substance acceptable to Lender, and attached to this Agreement as Exhibit I.
Business Day: Means
any day other than a Saturday, a Sunday, a federal holiday, or other day on which Lender is authorized or required to be closed.
Capital Lease. As defined
in the Recitals.
CIF Loan Commitment:
As defined in the Recitals.
City of Canton Subordination
Agreement. As defined in the Recitals.
City Loan: As defined
in the Recitals.
City Loan Documents.
As defined in the Recitals.
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
Project;
(b) All
the improvements now or hereafter erected on the Project (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 Project 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 Project, 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 Project, 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 Project 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 Project 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 Project and Improvements, whether stored
on the Project 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 Project 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 Project 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 Project or to any business now or later to be conducted on it,
or to the Project and Improvements generally; and any builder’s or manufacturer’s warranties with respect thereto;
(h) All
insurance policies pertaining to the Project and all proceeds, including all claims to and demands for them, of the voluntary or involuntary
conversion of any of the Project, 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 Project, 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.
Collateral Assignment of
Economic Interest in IRG Columbus, LLC: As defined in the Recitals.
Collateral Assignment of
Economic Interest in IRG Euclid Corp.: As defined in the Recitals.
Comfort Letter: As
defined in the Recitals.
Completion Date: Means
March 31, 2021.
Completion of Construction:
Substantial completion of both the exterior and interior of all buildings, structures and improvements constituting the Improvements in
accordance with the Plans and Specifications approved by Lender, with all utilities actually connected to and servicing the Improvements,
and in condition to obtain a temporary certificate of occupancy.
Completion Guaranty:
As defined in Section 3.2(i).
Construction Agency Agreement:
As defined in the Recitals.
Construction Contract:
The contract between the Borrower and the General Contractor for construction of the Project.
Construction Schedule:
A schedule of construction of the Project showing approximate start and finish dates of all major stages of the Project. The Construction
Schedule shall provide that construction of the Project shall commence no later than thirty (30) days after the Loan Closing Date.
Contingency Fund: A
Budget line item which shall represent an amount necessary to provide reasonable assurances to Lender that additional funds are available
to be used if additional costs and expenses are incurred or additional interest accrues on the Loan, or unanticipated events or problems
occur.
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.
Cooperative Agreement.
As defined in the Recitals.
County: Stark County,
Ohio.
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.
Deficiency Capital Injection:
As defined in Section 7.14(b).
Disbursement: A disbursement
of Loan Proceeds by Lender as contemplated by Section 7.
Environmental Indemnity
Agreement: That certain Environmental Indemnity Agreement 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 Project. 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 Project; requiring notification or disclosure of releases of Hazardous Materials
or other environmental condition of the Project 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 Project; 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 Project.
Environmental Report:
That certain environmental report for the Project prepared by Hull & Associates, Inc. dated September 2020.
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.
Extended Maturity Date:
September 13, 2022 (additional 6 months from the 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, medical pandemic, 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.
Franchise Agreement:
As defined in the Recitals.
General Contractor:
The Albert M. Higley Co., LLC.
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. As defined
in the Recitals.
Guarantor: Stuart Lichter,
an individual.
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, subject to certain limitations set forth therein.
Hard Costs: Costs incurred
by Borrower for materials and labor in connection with construction of the Improvements which are shown as “Hard Costs” on
the Budget approved by Lender.
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.
Hilton. As defined
in the Recitals.
HOFV: Means Hall of
Fame Resort & Entertainment Company, a publicly traded entity.
Improvements: All buildings,
structures and other improvements, including all common areas, to be located on the Land, together with any off-site improvements contemplated
by the Plans and Specifications to be completed in accordance with the Plans and Specifications 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.
In Balance: As defined
in Section 7.14.
Initial Disbursement:
As defined in Section 7.1.
Initial Maturity Date:
Means March 13, 2022 (18 months), unless accelerated sooner pursuant to the terms hereof.
Inspecting Agent: An
inspector selected by Lender, in its sole discretion, who shall perform reviews of the Plans and Specifications and inspections of the
Improvements 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.
Issuer: As defined
in the Recitals.
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.
Lender: As defined
in the opening paragraph.
Liquidity: Means the
sum of cash, cash equivalents, and marketable securities (which must be listed on a notable exchange) held by a Person and immediately
available with unimpaired value, excluding margined assets, pledged cash, pledged cash equivalents, and pledged marketable securities,
and excluding the cash value of life insurance policies, IRA, 401(k), annuity, and other retirement accounts, as well as assets held in
trust for third parties.
Loan: As defined in
the recitals.
Loan Amount: $15,300,000.00.
Loan Closing Date:
As defined in the opening paragraph.
Loan Fee: $153,000.00.
Loan Documents: Mean
this Agreement, the documents specified in the Recitals to this Agreement, the documents specified in Section 3.2 hereof, 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.
Major Subcontract:
All subcontracts between the General Contractor and any subcontractors and/or material suppliers which provide for an aggregate contact
price equal to or greater than $250,000.00.
Major Subcontractor:
Any Subcontractor under a Major Subcontract.
Management Company:
Crestline Hotels & Resorts, LLC.
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 that would impair Borrower’s ability to pay
the Loan in accordance with the terms thereof, or that would prevent Guarantor’s ability to perform its obligations under the Guaranty
of Payment pursuant to the terms thereof; or (b) the value of the Collateral, or the priority of Lender’s lien on any Collateral.
Maturity Date: Means
the Initial Maturity Date, or the Extended Maturity Date, as applicable, unless accelerated sooner pursuant to the terms hereof.
Mortgage: An Open-End
Mortgage (Fee Simple and Leasehold), Assignment of Leases and Rents and Security Agreement duly executed by the Borrower and granting
a valid and subsisting first lien on the Land and the portions of the Project constituting real property, 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 and joined by the Issuer.
Newmarket Loan: As
defined in the Recitals.
Newmarket Loan Documents:
As defined in the Recitals.
Newmarket Subordination
Agreement. As defined in the Recitals.
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.
OSHA: Means 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.
Original Owner: As
defined in the Recitals.
PBA: As defined in
the Recitals.
PACE Documents: As
defined in the Recitals.
PACE Financing: As
defined in the Recitals.
Permitted Exceptions:
Defects, liens and encumbrances, and other items affecting title to the Land and shown on Exhibit D 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.
Plans and Specifications:
Means those plans and specifications for the Project, as such plans and specifications may be amended from time to time (but only with
the written approval of Lender or otherwise in accordance with this Agreement), including any working or shop drawings made in furtherance
of the plans and specifications.
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 Project, 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, (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) transfers of shares in HOFV, (vi) Permitted Exceptions, and (vii) any easements, licenses or other encumbrances
that are reasonably necessary for the development or operation of the Project, which Lender has approved in advance, and which such approval
shall not be unreasonably withheld, conditioned or delayed.
Project: As defined
in the Recitals.
Property Management Agreement.
As defined in the Recitals.
Request for Disbursement:
As defined in Section 7.2.
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 construction or operation of the Project.
Series 2020C Bonds.
As defined in the Recitals.
Series 2020C Bonds Declaration:
As defined in the Recitals.
Soft Costs: Costs incurred
by Borrower for professional and other services in connection with the Project including design and engineering work.
Subcontractor: Any
contractor with the General Contractor or subcontractor thereof.
Subordinate Debt: As
defined in the Recitals.
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.
Tangible Net Worth:
Has the meaning used in accordance with generally accepted accounting practices, except in computing Tangible Net Worth any intangible
assets (e.g., goodwill) shall be excluded, and notes or obligations receivable shall be properly valued based upon the creditworthiness
of the obligated party and any security for such obligation.
Title Agent: Chicago
Title Insurance Company.
Title Commitment: A
commitment for issuance of an ALTA Loan Policy of Title Insurance in compliance with the requirements of Exhibit B attached
hereto.
Title Policy: An ALTA
Loan Policy of Title Insurance in compliance with the requirements of Exhibit B attached hereto.
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 Loan Closing Date any change in GAAP resulting from the implementation of Financial
Accounting Standards Update Board Accounting Standards Topic 840 (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 Loan 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 840 (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 fee simple 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 in all material 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 in all material respects 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 or agency; 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) Margin
Stock. No part of the proceeds of the Loan will be used for “purchasing” or “carrying” any “margin
stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time in effect or for any purpose which violates the provisions of the Regulations of such Board
of Governors.
(i) 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.
(j) 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
in any material respect. There is no fact known to the Borrower which materially adversely affects or, so far as the Borrower can now
reasonably 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
reasonably be expected to cause a Material Adverse Change to the Borrower, Guarantor or the Project.
(k) Land
Use. The Land, the present use and occupancy of the Land, the Plans and Specifications, the construction of the Project and the use
and occupancy of the Project upon its completion, will not violate or conflict with 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.
(l) Material
Facts. All financial statements, budgets, schedules, opinions, certificates, confirmations, applications, affidavits, agreements,
Construction Contracts, Subcontracts, 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 in all material respects, 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.
(m) Utilities.
All utility and municipal services required for the construction, occupancy and operation of the Project, including, but not limited to,
water supply, storm and sanitary sewage disposal system, gas, electric and telephone facilities are available for use and currently exist
at the boundaries of the Land, and the applicable utility companies or municipalities are or will be providing the Project with such services
to the extent necessary for operation of the Project.
(n) Storm
and Sanitary Sewers. The storm and sanitary sewage disposal system, water system and all mechanical systems of the Land and the Project
do (or when constructed will) comply with all applicable environmental, pollution control and ecological Laws, ordinances, rules and regulations.
The applicable environmental protection agency, pollution control board and/or other Governmental Authority having jurisdiction of the
Land have issued their permits for the construction, tap-in and operation of those systems, and, if the present stage of construction
of the Project does not allow for any such issuance, then such permits will be issued when the Project is constructed pursuant to the
Plans and Specifications.
(o) Permits
and Approvals. All Required Permits have been issued and are in full force or, if the present stage of preparation of Plans and Specifications,
or the stage of construction of the Project, does not allow such issuance, then such permits and licenses will be issued when the Project
is constructed pursuant to the Plans and Specifications, and Borrower is not aware of any circumstance which would delay the issuance
of any such Required Permits.
(p) Easements.
All utility, parking, vehicular access (including curb cuts and highway access), construction, recreational and other permits and easements
required for the construction, use and operation of the Project have been granted and issued, to the extent necessary or required for
the then-current stage of construction, operation and use of the Project.
(q) No
Encroachment. When completed in accordance with the Plans and Specifications, except as otherwise shown on the survey delivered to
and approved by Lender prior to the Loan Closing Date, the Project will 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 Land.
(r) Ingress
and Egress. All roads necessary for ingress and egress to the Project and for the full utilization of the Improvements for their intended
purposes have either been completed pursuant to easements approved by the Lender or the necessary rights-of-way thereof have been dedicated
to public use and accepted by the appropriate Governmental Authority and if not completed, all necessary steps have been taken by the
Borrower and all necessary Governmental Authorities to assure the complete construction and installation thereof to the satisfaction of
the Lender.
(s) Plans
and Specifications. At the time of the Initial Disbursement, the Plans and Specifications will be complete in all respects, containing
all detail requisite for the Project which, when built and equipped in accordance therewith, shall be ready for the intended use thereof
(t) No
Condemnation. (i) No condemnation of any portion of the Project and (ii) no proceedings to deny access to the Project from any point
of access to the Project, has commenced, or to the best of Borrower’s knowledge, is contemplated by any Governmental Authority.
(u) Construction
Budget. The amounts set forth in the Budget present a full and complete representation of all costs, expenses and fees which Borrower
after diligent inquiry and analysis by Borrower, and persons of appropriate expertise on behalf of Borrower, expects to pay or anticipates
becoming obligated to pay (other than from revenue generated from the operation of the Project) to complete the construction of, and to
operate, the Project. Except as specifically identified in the Budget all such costs, expenses and fees are payable to third parties unrelated
to Borrower.
(v) Environmental
Matters. Except as disclosed by Borrower to Lender in the Environmental Report: (i) the Project 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 or entity,
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 Project, or any part thereof, and the Project 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 Project 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 Project
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 Project.
(w) Foreign
Person. Neither Borrower nor Guarantor is a “foreign person” within the meaning of Section 1445 or 7701 of the
Internal Revenue Code.
(x) Trade
Names. Borrower uses no trade name other than its actual name set forth herein.
(y) Separate
Tax Parcels. The Project is taxed separately without regard to any other property and for all purposes the Project may be mortgaged,
conveyed and otherwise dealt with as an independent parcel.
(z) Leases.
Borrower and its agents have not entered into any leases, subleases or other arrangements for occupancy of space within the Project other
than the Ground Lease and the Capital Lease. 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.
(aa) 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.
(bb) 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.
(cc) 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. Each Request
for Disbursement shall constitute a reaffirmation that these representations and warranties are true on and as of the date of such Request
for Disbursement and will be true on the date of the Disbursement.
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 (or cause to be executed and delivered) to Lender, on or prior to the Loan Closing
Date, the Loan Documents which shall include 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) An
assignment to Lender of all of Borrower’s rights, title and interest in and to: (i) the Construction Contract; (ii) all assignable
Governmental Approvals issued from time to time in connection with construction or operation of the Project; and (iii) all trademarks,
trade names, logos, and all other materials used to identify or advertise the Project, and which assignment is prior to all other such
assignments and valid as such against all creditors of Borrower. Notwithstanding anything herein to the contrary, no construction contracts
shall be entered into without the prior written consent of Lender, which consent may be withheld in Lender’s sole and absolute discretion
if Borrower fails to: (A) deliver to Lender an assignment of such contract in form and substance similar to the assignment described above;
or (B) obtain and deliver to Lender a consent to such collateral assignment of any and all such contracts from the party performing the
work thereunder.
(h) An
assignment to Lender of: (i) Borrower’s agreements with the mechanical and structural engineers, if any, retained by Borrower in
connection with construction of the Project; and (ii) any and all tests, studies, results and reports performed or prepared in contemplation
of the aforesaid construction, and which assignment is prior to all other such assignments and valid as such against all creditors of
Borrower.
(i) A
guaranty of completion executed by Guarantor guarantying the lien free Completion of Construction no later than the Completion Date in
accordance with the Plans and Specifications (“Completion Guaranty”).
(j) If
required by Lender, an assignment to Lender of all rights of Borrower in any contract for management of the Project or any portion thereof,
together with assignments of such maintenance and service contracts entered into in connection with the operation of the Project as Lender
may require, and which assignment is prior to all other such assignments and valid as such against all creditors of Borrower.
(k) 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.
(l) Such
other papers and documents as may be required by this Agreement or as Lender may reasonably require.
3.3 Extension
Option. As long as no Event of Default has occurred and is continuing beyond any applicable grace or cure period hereunder, Borrower
shall have the option (the “Extension Option”) to extend the Initial Maturity Date for an additional six (6) months
to the Extended Maturity Date upon satisfaction of the following: (i) Lender receives written notice of Borrower’s election to exercise
the Extension Option on or before thirty (30) days prior to the Initial Maturity Date; (ii) Borrower pays to Lender an extension fee equal
to 0.1% of the then outstanding principal balance of the Loan (the “Loan Extension Fee”); (iii) Completion of Construction
has occurred; (iv) during the term of the Loan and up to and including the Initial Maturity Date, Borrower Deposit Accounts (as defined
in Section 4.6) in aggregate have averaged between $1,000,000.00 to $2,000,000.00; and (v) Borrower provides Lender with (A) fully executed
copies of the CIF Loan documents and evidence, reasonably satisfactory to Lender, that a minimum of 65% of the EB-5 funds have been deposited
with a fiduciary, or (B) evidence satisfactory to Lender, as determined in Lender’s sole and absolute discretion, that Borrower
has obtained alternative financing in an amount equal to or greater than 65% of such proposed EB-5 funds.
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 Project 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, and Tax Return Reporting: Borrower shall furnish and cause Guarantor to furnish, as applicable, to the Lender whatever
information, books and records the Lender may reasonably request, including at a minimum:
(a) Within
one hundred twenty (120) days of the end of each calendar year, annual operating statements for the Borrower, IRG Columbus, LLC, and IRG
Euclid Corp.
(b) Within
thirty (30) days of filing with the Internal Revenue Service, a signed copy of federal income tax return as filed for Borrower, Guarantor,
IRG Columbus, LLC, and IRG Euclid Corp., with all schedules and attachments, including any schedule K-1, and in the event that any of
the foregoing parties requests an extension, a copy of such extension by May 15 of any calendar year.
(c) Beginning
with the fiscal year ending December 31, 2020, Guarantor shall furnish Lender with, as soon as available, but in no event later than one
hundred twenty (120) days after the end of each fiscal year, Guarantor’s financial statement, including a balance sheet and income
statement for the period ended, prepared by Guarantor and fairly representing Guarantor’s financial condition and results of operations
as of the end of such period.
(d) Lender
has the right to verify Liquidity and in the event Lender determines to verify said Liquidity, Lender shall provide written notice to
Borrower and Guarantor, and Borrower and Guarantor shall have thirty (30) days to provide Lender with bank and or brokerage statements
satisfactory to Lender, as determined in its sole discretion.
(e) Promptly
after an officer of the Borrower obtains knowledge of: (i) any litigation materially affecting or relating to the Project, (ii) any dispute
between the Borrower and any municipal or other governmental authority relating to the Project, the adverse determination of which would
likely materially affect the Project, (iii) any threat in writing or commencement of proceedings in condemnation or eminent domain relating
to the Project, and (iv) any fact or circumstance that may render the Lender-approved Budget inaccurate in a material manner, a notice
so stating.
(f) At
the request of Lender, such other information as Lender may from time to time reasonably require.
4.3 Maintenance
of Existence, Operation and Assets. Borrower shall do all things necessary to: (i) 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;
(ii) continue in operation in substantially the same manner as at present; (iii) keep its properties in good operating condition and repair
(ordinary wear and tear excepted); and (iv) 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 Project 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 Project 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. Borrower shall, following the written request of Lender or upon the occurrence and during the continuation of any Event
of Default, make insurance and tax escrow deposits, in amounts reasonably determined by Lender from time to time as being needed to pay
taxes and insurance premiums when due, in an interest bearing escrow account held by Lender in Borrower’s name and under Lender’s
sole dominion and control, and if required by Lender, Borrower shall execute a separate pledge and account control agreement with Lender.
All payments deposited in the escrow account, and all interest accruing thereon, are pledged as additional collateral for the Loan. Notwithstanding
Lender’s holding of the escrow account, nothing herein shall obligate Lender to pay any insurance premiums or real property taxes
with respect to any portion of the Project if an Event of Default has occurred unless the Event of Default has been cured to the satisfaction
of Lender. If the Event of Default has been satisfactorily cured, Lender shall make available to Borrower such funds as may be deposited
in the escrow account from time to time for Borrower’s payment of insurance premiums or real property taxes due with respect to
the Project.
If the amount of the funds
held by Lender shall not be sufficient to pay taxes, assessments and insurance premiums as they fall due, Borrower shall pay to Lender
the amount of any such deficiency within thirty (30) days after notice from Lender to Borrower requesting payment thereof.
Upon payment in full of all
sums secured by the Mortgage, Lender shall promptly refund to Borrower any funds held by Lender pursuant to this Section.
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; Minimum Balance in Operating Account. On or before the date hereof Borrower (or an Affiliate of Borrower) shall open one
or more deposit accounts with Lender (the “Borrower Deposit Accounts”). Within a reasonable period of time after the
date hereof, Borrower (or an Affiliate of Borrower) shall cause to be deposited into one or more of the Borrower Deposit Accounts, and
thereafter maintained during the term of the Loan, amounts which in aggregate average between $1,000,000.00 and $2,000,000.00.
4.7 Financial
Covenants. Borrower shall comply with all of the financial and other covenants contained herein.
4.8 Additional
Reports. Borrower shall within five (5) Business Days of its knowledge 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): (i) 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, (ii) any litigation filed by or against the Borrower, (iii) any Reportable Event or Prohibited Transaction with respect
to any Employee Benefit Plan(s) (as defined in ERISA) or (iv) 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; Loan to Cost Ratio; Appraisal: At all times during the term of the Loan, (i) the Loan to value ratio shall be no more
than fifty percent (50%) based upon a current appraisal of the Project, which appraisal shall be paid for by Borrower; and (ii) the Loan
to cost ratio shall be no more than sixty percent (60%).
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 construction, the design, development or operation of the Project, which in any material way relate to the Project or the construction,
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 promptly when due the costs of removal of any such Hazardous Materials, and shall keep the Project 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 in order to comply with any applicable
Environmental Laws, 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 Project 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 Project for reasonable cause based on Lender’s belief that a Release (as defined in the Environmental Indemnity Agreement)
has occurred which affects the Project, 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 Project to inspect and test the Project
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 reasonable attorneys’ fees and consequential damages)
by reason of any claim in connection with any Hazardous Materials which were present at the Project during or prior to Borrower’s
ownership of the Project, except to the extent due to with the gross negligence or willful misconduct of Lender or its agents. 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 reasonable 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 Notice
of Commencement Borrower shall file an appropriate Notice of Commencement pursuant to Section 1311.04 of the Ohio Revised Code in
the office of the county recorder in the county where the Project is located after the recording of this Mortgage and prior to the commencement
of any construction, demolition or renovation activities on or to the Project. If Borrower fails to file a Notice of Commencement in connection
with any construction, renovation or demolition activities on or to the Project, Lender may do so, and all costs and expenses incurred
by Lender in making such filing, including but not limited to costs and expenses incurred in obtaining the information required to make
such filing and the costs of preparing and recording the Notice of Commencement, shall be immediately due and payable by Borrower to Lender
and, until paid, shall be additional indebtedness of Borrower to Lender secured by the Mortgage and on which interest shall accrue at
the Default Rate. Borrower acknowledges and agrees that Lender is not, and shall not be deemed to be, an agent of Borrower in connection
with any construction, demolition or renovation activities undertaken by Borrower. Borrower indemnifies and shall defend and hold harmless
Lender from and against any claims against Lender relating to any construction, demolition or renovation activities undertaken by Borrower,
except to the extent due to the gross negligence or willful misconduct of Lender or its agents.
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. Except as authorized by Lender, Borrower is not currently a party to, nor will it be a party to any Hedging Contract.
4.18 Financial
Covenants.
(a) Minimum
Tangible Net Worth. Borrower and Guarantor shall maintain at all times during the term of the Loan a combined minimum Tangible Net
Worth of not less than $5,000,000.00. This covenant shall be tested annually based upon the financial statements provided by Borrower
and Guarantor under Section 4.2, above.
(b) Minimum
Liquidity. Borrower and Guarantor shall maintain at all times during the term of the Loan a combined minimum Liquidity of not less
than $2,000,000.00. This covenant shall be tested annually based upon the financial statements provided by Borrower and Guarantor under
Section 4.2, above.
4.19 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.
4.20 Equity
Contribution. Borrower shall make an equity contribution in an amount equal to no less than $3,555,393.00 (the “Equity Contribution”)
consisting of cash contributed of $2,072,328.00 paid at the acquisition of the Project in October 2019 and an additional $1,483,065.00
contributed on or before the date hereof (the “Minimum Capital Amount”). As long as Borrower maintains the Minimum
Capital Amount, Borrower may make distributions to any member, shareholder, or owner of Borrower so long as: (a) no default has occurred
and is continuing; and (b) Borrower is in compliance with all financial covenants.
4.21 Collateral
Assignment of CIF Commitment. As additional security for the Loan Borrower hereby grants a security interest to Lender in Borrower’s
rights to the CIF Commitment and any proceeds generated therefrom.
SECTION 5
NEGATIVE COVENANTS
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 (i) the Loan, (ii) the Subordinate Debt, (iii) in connection with the CIF Loan Commitment
(or replacement lender reasonably acceptable to Lender), and (iv) the Permitted Exceptions.
5.2 Mechanics’
Liens. Suffer or permit any mechanics’ lien claims to be filed or otherwise asserted against the Project or any funds due any
contractor, and will, within 30 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.
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.
Other than the Subordinated Debt or in connection with the CIF Loan Commitment (or replacement lender reasonably acceptable to Lender),
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.
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 at least fifty-one percent (51.0%) 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 Reserved.
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. Borrower shall not enter into, modify, or amend any management contracts for the Project
or agreements with agents or brokers, without the prior written approval of Lender which approval shall not unreasonably be withheld,
conditioned or delayed. 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, rehabilitation, operation and maintenance of the Project, and activities
incidental thereto;
(b) acquire
or own any material asset other than: (i) the Project, and (ii) such incidental personal property as may be necessary for the operation
of the Project;
(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 or entity 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 entity or transfer any
assets to any such person or entity 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 entity 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 Project 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 entity or 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 or entity to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated
business operations (if any);
(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 entity or allow any person or entity to identify the Borrower as a department or division of that person or entity; 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 or entity.
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 Reserved.
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 period ending on December 31 of each calendar year, 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 12.9, 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, which consent shall not be unreasonably
withheld, conditioned or delayed: (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; provided, however,
that Borrower may create (or Borrower’s principals may cause to be created) a Subsidiary or Affiliate so long as such new Affiliate
is created in the ordinary course of business and for a legitimate business purpose.
SECTION 6
CONDITIONS TO LOAN CLOSING
6.1 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 Project.
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 reasonably satisfactory to Lender that the Project is in compliance with all governmental, zoning and building
Laws, and ordinances and regulations (including, without limitation, requirements for parking and operation of the Project), and that
any approvals thereof required from third parties or any Governmental Authorities have been obtained or, to the extent not available as
of the Loan Closing Date, will be obtained upon Completion of Construction. 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 Project 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. An opinion of Borrower’s and Guarantor’s legal counsel acceptable to Lender
or its counsel.
(k) Organizational
Documents for Borrower.
| (1) | Certified copy of Borrower’s Articles of Organization/Incorporation; |
| (2) | Certified copy of Borrower’s Operating Agreement/Bylaws/Partnership Agreement; |
| (3) | Borrower’s Resolutions to enter into Loan and designating the members/officers authorized to execute
all Loan Documents; and |
| (4) | Full Force and Effect/Good Standing Certificate from the Secretary of State of State of Formation. |
(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 Project 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) Subordinate
Debt. Lender shall have received copies of the Subordinate Debt loan documents.
(p) Franchise
Agreement. Borrower shall have provided Lender with a copy of the Franchise Agreement.
(q) Comfort
Letter. Borrower shall have provided Lender with a copy of the Comfort Letter executed by Borrower.
(r) PACE
Documents. On or before October 14, 2020, Borrower shall have provided Lender with copies of the PACE Documents.
(s) Additional
Documents. Borrower shall have provided Lender such other papers and documents regarding Borrower, Guarantor, the Land or the Project
as Lender may reasonably require.
(t) No
Default. There is no Default or Event of Default under this Agreement or the other Loan Documents.
(u) Utilities;
Permits: Evidence that all utilities are available reasonably acceptable to Lender.
(v) Final
Plans and Specifications. The final Plans and Specifications which shall include architectural, structural, mechanical, plumbing,
electrical, civil drawings, paving and landscaping drawings which are identical in all material respects to the documents approved by
the appropriate Governmental Authorities.
(w) Construction
Documents. True, correct and complete copies of the Construction Contract, Architect’s Contract, and all other contracts for
the complete construction of the Project, certified as such in writing by the Borrower. The Construction Contract must be a fixed price
or guaranteed maximum amount, and is subject to the approval of Lender, as determined in its reasonable discretion.
(x) Operating
Account. Borrower shall have established its Operating Account with Lender.
(y) Notice
of Commencement. The Mortgage shall have been submitted to the Title Company for recording with the County Recorder promptly following
the Loan Closing Date, and there shall have been submitted a private notice of commencement of the Project to the Title Company for recording
with the County Recorder promptly following the Loan Closing Date, but subsequent to the recording of the Mortgage.
(z) Budget.
Borrower shall provide to Lender the Budget for the Project. The Budget shall include a cost breakdown by line item listing all Subcontractors
and suppliers with copies of all other documents that may be required by the Lender. The cost breakdown shall itemize in detail the Hard
Costs, the Soft Costs and the Loan interest.
(aa) Construction Schedule.
Borrower shall provide to Lender an acceptable Construction Schedule showing approximate start and finish dates of all major stages of
the Project. The Construction Schedule shall indicate that the Project will be completed by the Completion Date.
(bb) Equity. Borrower
shall have delivered to Lender evidence that it has made the Equity Contribution as set forth in the Budget. Such evidence may include
cash deposited into the Operating Account to be used before the Initial Disbursement, or paid invoices to evidence funds contributed to
the Project prior to the Loan Closing Date (subject to review and approval by Lender).
(cc) [Intentionally omitted.]
(dd) Plan and Cost Review;
Inspecting Agent: If required by Lender, Lender shall have received a final plan and cost review from the Inspecting Agent. The plan
and cost review must demonstrate to the Lender that the Budget is adequate to complete the Project by the Completion Date when analyzed
with the Plans and Specifications, Construction Contract and other construction documents.
(ee) Settlement Statement.
Lender has received a signed settlement statement which shall be deemed approval by Borrower to close and fund the Loan.
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.
SECTION 7
THE BUDGET AND DISBURSEMENTS
7.1 The
Budget and Disbursements.
(a) Disbursement
of the Loan Proceeds shall be governed by the Budget for the Project, which shall be in form and substance acceptable to Lender as determined
in Lender’s sole discretion, specifying all Hard Costs and Soft Costs and expenses to be incurred by Borrower in connection with
the Project and the amount of equity. Subject to the provisions of this Agreement, and also subject to the terms and conditions of the
other Loan Documents, the Lender shall make and the Borrower shall accept the Loan in periodic Disbursements not exceeding, in the aggregate,
the Loan Amount (except for additional Disbursements for protective advances which the Lender shall have the right to make at its option
pursuant to the Mortgage). The first Disbursement, to be made upon the Loan Closing Date, shall be in an amount as approved by Lender
in its sole and absolute discretion, for such costs and shall include funds necessary to pay any Loan Expenses then due in accordance
with Section 7.1(b) below (the “Initial Disbursement”). Borrower shall, prior to the Loan Closing Date, open the Operating
Account. Borrower authorizes Lender to make Disbursement of the Loan Proceeds by crediting the Operating Account; provided, however,
that Lender shall not be obligated to use such method. Lender, in its sole discretion, may disburse Loan Proceeds directly to the Title
Company, or any other party that Lender deems appropriate or necessary to complete the Project as contemplated herein. Any Disbursement
made to the Title Company shall be deemed to have been made upon deposit with the Title Company regardless of when the Title Company distributes
the Loan Proceeds. After an Event of Default has occurred and is continuing Lender is further authorized to pay any principal or interest
due upon the Note when and as same shall become due by debiting funds on deposit in the Operating Account. The provisions of this Section
7.1(a) shall apply to the Initial Disbursement and all Disbursements thereafter.
(b) Borrower
hereby requests and authorizes Lender to make Disbursements (through the Initial Disbursement and subsequent remaining Disbursements)
directly to Lender for payment and reimbursement of all interest, charges, costs and expenses incurred by Lender in connection with the
Loan, pursuant to this Agreement or other Loan Documents, including, but not limited to: (i) interest due on the Loan and any points,
loan fees, service charges, commitment fees, or other fees due to Lender in connection with the Loan, provided, however, that such authorization
does not relieve Borrower of its obligation to pay interest as it becomes due; (ii) all title examination, survey, escrow, filing, search,
recording and registration fees and charges; (iii) all documentary stamp and other taxes and charges imposed by Law on the issuance or
recording of any of the Loan Documents; (iv) all appraisal fees; (v) all title, casualty liability, payment, performance or other insurance
or bond premiums; (vi) all reasonable fees and disbursements for legal services including, without limitation, in-house attorneys’
costs and fees, and outside counsel engaged in connection with the preparation, negotiation, enforcement or administration of this Agreement
or any of the Loan Documents; and (vii) any amounts required to be paid by Borrower under this Agreement, the Mortgage or any Loan Document
after the occurrence of a Default (all of which are herein referred to as “Loan Expenses”).
(c) No Disbursement of
Loan Proceeds shall be made at any time that the aggregate amount of the Loan is not In Balance as provided in Section 7.13 hereof. Any
Disbursement of Loan Proceeds must be made for payment of a specified cost of the Project in strict accordance with the Budget attached
hereto as Exhibit I. Except as otherwise set forth herein, no change or amendment to the Budget shall be made without Lender’s
prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No reallocation of line items within
the Budget shall be made (whether through cost savings or otherwise) unless Lender determines, in Lender’s sole and absolute discretion,
that (i) sufficient funds remain in the line item from which the amount is to be reallocated to pay all Project costs which may be paid
from that line item; and (ii) no line items in the Budget (other than the line item to which the reallocation is sought) are required
to be increased. Borrower shall present paid receipts or other proof of payment prior to subsequent Disbursements.
(d) The
Budget shall contain a Budget line item designated for the Contingency Fund. Borrower may from time to time request that the Contingency
Fund be reallocated to pay needed costs of the Project. Such requests shall be subject to Lender’s written approval as determined
in its reasonable discretion. Borrower agrees that the decision with respect to utilizing portions of the Contingency Fund in order to
keep the Loan In Balance shall be made by Lender in its sole discretion, and that Lender may require Borrower to make a Deficiency Capital
Injection even if funds remain in the Contingency Fund.
(e) The
Budget shall also contain a line item designated for an interest reserve sufficient to cover the interest payments on the Loan through
the Maturity Date.
(f) Notwithstanding
anything to the contrary contained herein, if any Loan Proceeds remain after Completion of Construction and payment of any retainage,
such Loan Proceeds shall not be made available for disbursement to Borrower.
7.2 Requests
for Loan Disbursements. All requests for Disbursements, including, without limitation, the Initial Disbursement 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, 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) a Bond Advance Authorization in the form of Exhibit J, (b) the Borrower’s
affidavit, certifying the amount of all outstanding balances due but unpaid for work in place for the Project, (c) invoices from the General
Contractor and any other supporting documentation, and (d) lien waivers from the General Contractor and Major Subcontractors in the sum
received by the General Contractor and Major Subcontractor’s, respectively, for Borrower’s preceding draw requests, all to
be in form and substance reasonably 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. Borrower shall simultaneously provide a copy of each Request for Disbursement to the Issuer. The Issuer
shall have five (5) Business Days to approve or reject the Request for Disbursement in writing. The Issuer’s failure to provide
a written response within said five (5) Business Days shall be deemed an approval of the Request for Disbursement.
7.3 Monthly
Disbursements. Disbursements shall be made no more than once per month.
7.4 Construction Disbursements. Beginning
with the first Disbursement after the Initial Disbursement, Disbursements shall be made by Lender following receipt of a Request for Disbursement,
provided that, prior to the funding of the said Disbursement Borrower shall furnish the following to Lender, all of which must be in form,
substance and execution satisfactory to Lender:
(a) a
Request for Disbursement.
(b) A
certificate from the Architect in the form of Exhibit F attached hereto (the “Architect’s Certificate”).
(c) A
completed standard AIA Form G702 and Form G703 signed by the General Contractor and Architect, together with General Contractor’s
sworn statements and unconditional waivers of lien, and all subcontractors’, material suppliers’ and laborers’ unconditional
waivers of lien, covering all work to be paid with the proceeds of the prior draw requests, together with such invoices, contracts or
other supporting data as Lender may require to evidence that all costs for which disbursement is sought have been incurred.
(d) Paid
invoices or other evidence satisfactory to Lender that fixtures and equipment, if any, have been paid for and are free of any lien or
security interest therein.
(e) An
endorsement to the Title Policy issued to Lender covering the date of disbursement and showing the Mortgage as a first, prior and paramount
lien on the Project subject only to the Permitted Exceptions and real estate taxes that have accrued but are not yet due and payable and
particularly that nothing has intervened to affect the validity or priority of the Mortgage.
(f) Copies
of any proposed or executed change orders on standard AIA G701 form, which have not been previously furnished to Lender.
(g) Copies
of all construction contracts with the General Contractor which have been executed since the last disbursement, together with any bonds
obtained or required to be obtained with respect thereto.
(h) All
Required Permits.
(i) Satisfactory
evidence that all Government Approvals have been obtained for development of the Project.
(j) For
any Soft Costs in excess of $25,000, paid invoices or other evidence satisfactory to Lender supporting the amount of the Disbursement
for such Soft Costs.
(k) If
required by Lender, Lender has received a satisfactory report from Lender’s Inspecting Agent, indicating that the items for which
payment has been requested have been performed at or incorporated into the Project, and that the percentage of all Hard Costs for the
Project then disbursed bears a reasonable relationship to the percentage of construction of the Project which has been completed at that
time. The cost of this inspection shall be paid directly by Borrower.
(l) Such
other instruments, documents and information as Lender or the Title Insurer may reasonably request.
7.5 Reserved.
7.6 Conditions
to All Disbursements. No Disbursement of Loan Proceeds shall be made by Lender to Borrower at any time unless:
(a) All
conditions precedent to that Disbursement have been satisfied, including without limitation, performance of all of Borrower’s obligations
under this Agreement and the Loan Documents which are to be performed prior to such Disbursement.
(b) The
Loan is In Balance.
(c) Lender
shall be satisfied as to the continuing accuracy of the Budget.
(d) No
Default or Event of Default has occurred and is continuing under this Agreement, or under any of the Loan Documents.
(e) No
material litigation or proceedings are pending or threatened (including but not limited to, proceedings under Title 11 of the United States
Code) against Borrower, the Land or the Project.
(f) No
event, circumstance or condition exists or has occurred which could, in Lender’s reasonable judgment, delay or prevent the Completion
of Construction by the Completion Date.
(g) No
Material Adverse Change has occurred or is threatened in writing with respect to the Project or the financial condition of Borrower or
any Guarantor.
(h) All
representations and warranties made by Borrower to Lender herein and otherwise in connection with this Loan continue to be accurate in
all material respects, and all statements and representations made in the application for the Loan submitted to Lender continue to be
accurate in all material respects.
(i) The
Loan is not in Default and Borrower has complied with all of the terms and conditions of this Agreement.
7.7 Final
Disbursement. At such time as the Project shall have been totally completed, the Borrower shall submit to the Lender a final Request
for Disbursement in an amount not to exceed the amount of the direct costs shown on the Budget, as modified by any change orders approved
by the Lender, less the aggregate amount of all previous Disbursements made by the Lender. Notwithstanding anything to the contrary contained
herein, Disbursements for development fees and contractor fees shall be held until the final Disbursement.
7.8 Documents
Required for Final Disbursement. The final Request for Disbursement shall include, in addition to the items required under Section
7.4 the following, all of which shall be strictly satisfactory to Lender in its sole and absolute discretion:
(a) If
required by Lender, a final written inspection report from Lender’s Inspecting Agent, which states that the Project has been substantially
completed in accordance with the Plans and Specifications.
(b) A
certificate of occupancy from all applicable governmental authorities for all portions of the Project, provided, however, that if the
jurisdiction where the Project is located does not issue certificates of occupancy, Borrower must provide a letter from the appropriate
Governmental Authority that certificates of occupancy are not issued in said jurisdiction.
(c) Any
other certificates, licenses and permits required by any applicable Governmental Authority for the use, occupancy, or operation of the
Project.
(d) All
fixtures, furniture, furnishings, equipment and other property contemplated under the Budget and Plans and Specifications to be incorporated
into or installed in the Project shall have been incorporated or installed free and clear of all liens and security interests other than
the Permitted Exceptions, except in favor of Lender.
(e) Borrower
shall have furnished to Lender copies of all final waivers of lien and sworn statements from contractors, subcontractors and material
suppliers and an affidavit from the General Contractor in accordance with the mechanic’s lien law of the State where the Project
is located or as otherwise established by Lender.
(f) An
affidavit of the Borrower stating that each person providing any material or performing any work in connection with the Project has been
paid in full and that all withholding taxes have been paid.
(g) Any
permits, licenses, certificates of occupancy or other evidence of compliance with the requirements of any Governmental Authorities necessary
for the use of the Land contemplated in the Plans and Specifications.
(h) Evidence
that all insurance required under the terms of this Agreement, including “all risk” casualty insurance, is in full force and
effect.
(i) The
Improvements have been fully completed and equipped in accordance with the Plans and Specifications free and clear of mechanics’
liens and security interests and are ready for occupancy.
(j) AIA
G704 Certificate of Substantial Completion signed by the General Contractor, Borrower and Architect.
(k) Such
other items as may be required by Lender to confirm that the Improvements have been completed in accordance with the requirements of this
Agreement.
If Borrower fails to comply
with and satisfy any of the final disbursement conditions contained in this Section 7.7 within sixty (60) days after the Completion Date,
such failure shall constitute an Event of Default hereunder.
7.9 Reserved.
7.10 Payments
Directly to Contractors. Lender may, in its reasonable discretion, make or cause to be made payments for the cost of construction
of the Project directly to any contractor or to any vendor of fixtures and equipment, or jointly to the Borrower and any of such parties.
7.11 Amount
of Disbursements. Subject to the provisions of this Agreement and the other Loan Documents, the Lender shall make Disbursements up
to the aggregate amount of the direct costs specified in the Budget for the purposes and in the amounts described therein, and not in
excess of the budgeted amount thereof, and the Lender shall make Disbursements for indirect costs up to the aggregate amount of the indirect
costs specified in the Budget for the purposes and in the amounts described therein and not in excess of the budgeted amount thereof;
provided, however, that in no event shall the total of all Disbursements, together with the Initial Disbursement, exceed the Loan Amount,
unless otherwise agreed in writing by the Lender. The amount of each Disbursement will be based upon the percentage of completion of work
to be performed. Subject to Section 7.9, Disbursements shall be deposited in the Operating Account. In the event a dispute arises with
respect to any Request for Disbursement, the Lender shall have the right without notice, to delay the Disbursement until the dispute has
been resolved.
7.12 Retainage.
Lender shall withhold from each Disbursement for any Hard Costs and stored materials an amount (the “Retainage”) equal to
ten percent (10%) of each such requested Disbursement. The Retainage shall be held until Completion of Construction. Notwithstanding the
foregoing, Lender may release, prior to Completion of Construction, portions of the Retainage relating to a particular construction contract
as long as the items requested for release are set forth as a separate line item on the Soft and Hard Cost Requisition form (as required
under Section 7.1(a)) and upon: (i) Borrower’s written request, (ii) Lender’s receipt of evidence of completion of the work
to which such construction contract applies, and (iii) Lender’s receipt of lien waivers and such other documentation as Lender may
require relative to such release, all as determined in Lender’s sole discretion.
7.13 Stored
Materials; Deposits.
(a) On-Site
Materials. Any Requests for Disbursements which in whole or in part relate to materials, equipment or furnishings which Borrower owns
and which are not incorporated into the Improvements as of the date of the Request for Disbursement, but are to be temporarily stored
at the Project, shall be made in an aggregate amount not to exceed $2,000,000.00. Any such request must be accompanied by evidence satisfactory
to Lender that: (i) such stored materials are included within the coverages of insurance policies carried by Borrower, (ii) the ownership
of such materials is vested in Borrower free of any liens and claims of third parties, (iii) such materials are properly insured and protected
against theft or damage, (iv) the materials used in the construction are not commodity items but are uniquely fabricated for the construction,
(v) the Lender’s Inspecting Agent has viewed, photographed, and inspected the stored materials, and (vi) in the opinion of the Lender’s
Inspecting Agent the stored materials are physically secured and can be incorporated into the Project within forty-five (45) days. Lender
may require separate Uniform Commercial Code financing statements to cover any such stored materials.
(b) Offsite
Materials. Lender may, in its reasonable discretion, but shall not be obligated to, make Disbursements for materials stored off-site,
in which event all of the requirements of Section 7.13(a) shall be applicable to such disbursement as well as all of the following: (i)
an affidavit of stored materials, (ii) executed supplier agreement detailing terms of payment, (iii) detailed supplier’s invoice
and material list, (iv) photos indicating secured and tagged materials for the Project, and (v) a certificate of insurance naming Lender
as additional insured and loss payee, and any other requirements which Lender may, in its sole discretion, determine are appropriate under
the circumstances.
(c) Deposits.
Lender may in its sole discretion, but shall not be obligated to, make Disbursements for deposits. Prior to requesting Disbursement of
any Loan Proceeds to fund deposits, Borrower shall provide copies of the purchase agreement describing the equipment or other materials
being furnished, the total cost of the materials, and the payment terms, which payment terms must identify the amount and timing of the
required deposit.
7.14 Sufficiency
of Loan to Complete Construction.
(a) Notwithstanding
anything to the contrary in this Agreement, it is expressly understood and agreed that the Loan shall at all times be “In Balance.”
Lender shall consider the Loan In Balance if the then-undisbursed portion of the Loan Amount, plus undisbursed funds from other
sources which have been specifically identified as a source of funds for the Project in the Lender-approved Budget or otherwise approved
by Lender, in its sole discretion, equals or exceeds the amount necessary to pay for, both on a line-item basis and in the aggregate,
all costs incurred and not theretofore paid, or to be incurred in connection with the Project, and as shown on the Lender-approved Budget.
(b) If
Lender determines at any time that the Loan is not In Balance, or that a requested advance amount will cause the Loan not to be In Balance,
then Borrower shall be required to pay directly into the Project the difference necessary to maintain the In Balance status of the Loan
(a “Deficiency Capital Injection”). Borrower must provide to Lender proof of the funds paid into the Project by the
earlier of: (i) thirty (30) days after Lender’s notice to Borrower that such direct funding is needed or (ii) Borrower’s next
advance request. Borrower shall provide unconditional lien waivers from the General Contractor and applicable Major Subcontractors to
Lender and other proof of payment acceptable to Lender.
(c) Lender
shall not be obligated to make any Loan Disbursements if the Loan is not In Balance.
7.15 Provisions
Applicable to All Disbursements.
(a) Borrower
authorizes Lender to make Disbursement to the Operating Account, and the Borrower agrees that, in so doing, the Lender is not acting as
agent or trustee for the Borrower and the Lender will not be held accountable for any such Disbursement made in good faith.
(b) Each
Request for Disbursement by the Borrower shall constitute an affirmation that the warranties and representations contained in Section
2 hereof remain true and correct and that no breach of the covenants of Borrower contained in this Agreement has occurred, in each case
as of the date of the Disbursement, unless Lender is notified to the contrary in writing prior to funding of the requested Disbursement.
(c) The
Lender may apply amounts due hereunder to the satisfaction of the conditions hereof and amounts so applied shall be part of the Loan and
shall be secured by the Mortgage, evidenced by the Note, bear interest in accordance with the Note and shall be due and payable in accordance
with the provisions of the Note.
SECTION 8
FURTHER COVENANTS OF BORROWER
8.1 Construction
of Project. Borrower agrees that the Project will be constructed and fully equipped in a good and workmanlike manner with materials
of quality, in accordance with the Plans and Specifications and applicable building, zoning, pollution control, and environmental protection
and other Laws and ordinances. Borrower further agrees that construction of the Project will be fully completed no later than the Completion
Date. If Lender or any Inspecting Agent, acting reasonably and in good faith, disapproves of any portion of the construction or equipping
of the Project as not being in compliance with the Plans and Specifications, Borrower shall, within ten (10) days after such disapproval,
commence to correct the condition so disapproved, and thereafter will diligently complete such correction. Borrower agrees that all materials
contracted or purchased for construction of the Project and all labor hired or contracted for with respect to the Project and paid for
with Loan Proceeds will be used and employed solely on the Project and for no other purpose.
8.2 Changes
in Plans and Specifications and Contracts. Borrower agrees that no material changes will be made in the Plans and Specifications,
no material changes will be made to any contract with the General Contractor, Major Subcontractors, any other contractors or materials
supplier, and no extra will be allowed as to any of the foregoing, except upon the written approval of the same by Lender (which such
approval shall not be unreasonably withheld, conditioned or delayed); provided, however, Borrower may make changes in the Plans and Specifications
or such contracts, or allow such extras, without first obtaining approval of Lender, only if: (a) Borrower notifies Lender in writing
of such change within five (5) Business Days thereafter; (b) the architectural, electrical, plumbing, mechanical or structural portions
of the Improvements are not affected; (c) no substantial change in architectural appearance is effected; (d) no default in any obligations
to any other party, results from such changes; (e) such change will not violate any applicable Laws, ordinances, rules or regulations;
(f) the cost resulting from one such change or extra does not exceed twenty-five thousand dollars ($25,000.00), and the aggregate cost
of all such changes and extras does not exceed one hundred thousand dollars ($100,000.00); and (g) no Default hereunder exists at the
time such change is made. Any changes to the Plans and Specifications must be documented on AIA Form G701 or an equivalent form.
8.3 Inspection
by Lender. Borrower will cooperate with Lender in arranging for inspections by Lender’s Inspecting Agent and other representatives
of Lender of the progress of the construction from time to time including an examination of: (i) the Improvements, (ii) all materials
to be used in the construction, (iii) all Plans and Specifications which are or may be kept at the construction site, (iv) any contracts,
bills of sale, statements, receipts or vouchers in connection with the Improvements, (v) all work done, labor performed, materials furnished
in and about the Improvements, (vi) all books, contracts and records with respect to the Improvements, and (vii) any other documents relating
to the Improvements or the construction. Borrower shall cooperate with Lender’s Inspecting Agent to enable him to perform his functions
hereunder and will promptly comply with Lender’s requirements and correct any defects regarding the construction of the Improvements
or the progress thereof.
8.4 Sign
and Publicity. Subject to Borrower’s reasonable approval, Lender, at its expense, may erect signs on the construction site indicating
that financing for the Project has been provided by Lender and use the Loan Amount, Borrower’s name and Project location in any
such sign or in any publicity by Lender as hereinafter provided. Lender, at its expense, shall also have the right to engage in reasonable
publicity and public relations pertaining to the financing provided by Lender. Additionally, Borrower shall use its good faith and best
efforts to include in any public announcement or media release concerning the general development of the Project a statement that Lender
has provided the financing for the Project.
8.5 Proceedings
to Enjoin or Prevent Construction. If any proceedings are filed seeking to enjoin or otherwise prevent or declare unlawful the construction
or the occupancy, maintenance or operation of the Project or any portion thereof, Borrower shall at its sole expense: (i) cause such proceedings
to be vigorously contested in good faith; and (ii) in the event of an adverse ruling or decision, prosecute all allowable appeals therefrom.
Without limiting the generality of the foregoing, Borrower shall resist the entry or seek the stay of any temporary or permanent injunction
that may be entered and use its best efforts to bring about a favorable and speedy disposition of all such proceedings.
8.6 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 Project, 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 Project, 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 Project. 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.
8.7 Operation
of Project. As long as any portion of the Loan remains outstanding, the Project, after Completion of Construction, shall be operated
in a first-class manner.
8.8 Furnishing
Notices. Borrower shall deliver to Lender copies of all notices received or given by Borrower (or its agents or representatives) under
any of the leases of space in the Project, within five (5) Business Days after such notice is given or received, as the case may be. Borrower
shall also provide Lender with copies of all notices pertaining to the Project or any part thereof received by Borrower (or its agents
or representatives) from any Governmental Authority or from any insurance company providing insurance on any of the Project, within five
(5) Business Days after such notice is received.
8.9 Correction
of Defects. Within five (5) Business Days after Borrower acquires knowledge of or receives notice of a defect in the Project or any
departure from the Plans and Specifications, or any other requirement of this Agreement, Borrower will proceed with diligence to correct
all such defects and departures. The Disbursement of any Loan Proceeds shall not constitute a waiver of Lender’s right to require
compliance with this covenant with respect to any such defect or departure from the Plans and Specifications or any other requirements
of this Agreement, nor shall anything in this subsection affect Borrower’s obligation to complete the Project in accordance with
the Construction Schedule.
8.10 Hold
Disbursements in Trust. Borrower shall receive and hold in trust for the sole benefit of Lender (and not for the benefit of any other
person, including, without limitation, the General Contractor or any Subcontractors) all advances made hereunder directly to Borrower,
for the purpose of paying costs of construction in accordance with the Budget. Borrower shall use the Loan Proceeds solely for the payment
of costs as specified in the Budget. Borrower will pay all other costs, expenses and fees relating to the acquisition, equipping, fixturing,
use and operation of the Project.
8.11 Indemnification.
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 reasonable attorneys’ fees and consequential damages) of any and every kind
to any persons or property by reason of (i) the construction or other work contemplated herein, (ii) the operation or maintenance of the
Project, (iii) any other action or inaction by, or matter which is the responsibility of Borrower, or (iv) the breach of any representation
or obligation of Borrower hereunder, except to the extent caused by the gross negligence or willful misconduct of Lender or its agents.
The foregoing indemnification shall survive repayment of the Loan and shall continue to benefit Lender following any assignment of the
Loan with respect to matters arising or accruing prior to such assignment.
8.12 Prohibition
Against Cash Distributions and Application of Net Cash Flow to Other Expenditures. With respect to all cash flow from the Project,
no funds shall be distributed or applied to the payment of any obligations, debts or expenses (other than normal operating expenses of
the Project) not set forth on the Budget until the Completion of Construction of the Project. Furthermore, in no event shall Borrower
make any disbursements from cash flow from the Project to any party during any month until the installment due under the Note for that
month has been paid.
8.13 Alterations.
Without the prior written consent of Lender, Borrower shall not make any material alterations to the Project, except as otherwise set
forth herein.
8.14 Sufficiency
of Loan Funds. It is expressly understood and agreed that Lender does not assume any liability or responsibility for the sufficiency
of the Loan proceeds to complete the Project, for protection of the Project, for the adequacy of the Plans and Specifications, the compliance
of the Project and/or Plans and Specifications with the requirements of all Governmental Authorities, for the satisfactory Completion
of Construction, for inspection during construction or to notify Borrower, General Contractor or any other party of any construction defects,
for the adequacy of reserves, for the adequacy or accuracy of the Budget, for any representations made by Borrower, or for any acts on
the part of Borrower or its contractors to be performed in connection with the construction of the Project.
SECTION 9
CASUALTIES AND CONDEMNATION
9.1 Notice.
In case of the occurrence of any loss or damage to all or any portion of the Project 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 Project, 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 Project
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.
9.2 Application
of Insurance Proceeds and Condemnation Awards.
(a) Upon
a Casualty (as defined in Section 9.1 above), or a Taking (as defined in Section 9.1 above), Lender may (without penalty) 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 reasonable 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 9.2(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 Project or, if they are insufficient,
as determined by Lender in its reasonable discretion, Borrower provides Lender with additional funds necessary, as determined in Lender’s
sole discretion, to rebuild the Project (the “Additional Funds”), (iii) construction can be completed not less than
three (3) months prior to the Maturity Date, and (iv) after completion of the construction, the Loan to value ratio of the Project 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 Project, 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 9.2(a) or Lender does not
have the right to apply the Proceeds or Awards pursuant to Section 9.2(b) to prepayment of the Loan, or, in the event such Proceeds or
Awards, if applied, do not fully discharge the Loan, Borrower will:
| (i) | Proceed with diligence to make settlement (which shall be subject to the prior written approval of Lender) with insurers or with condemning
authorities and cause the Proceeds or Awards to be deposited with Lender, unless Lender shall elect to make such settlement without the
consent of Borrower. |
| (ii) | In the event of any delay in making settlement with insurers or effecting collection of Proceeds or Awards, that Lender determines
to be unreasonable, Borrower shall deposit with Lender the full amount required to complete construction and restoration, disregarding
such Proceeds or Awards. |
| (iii) | Promptly proceed with construction and restoration of the Project, including the repair of all such loss or damage. |
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 Project, 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 Project 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 10
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 within ten (10) days as the same becomes due or failure to pay any other amount when
due under this Agreement, or any other Loan Document, provided that there shall be no grace period for the payment due on the Maturity
Date.
(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 within thirty (30) days after notice from Lender of such failure; provided, that
if any such failure concerning a non-monetary default covenant or condition is susceptible to cure and cannot reasonably be cured within
said thirty (30) day period, then Borrower shall have an additional thirty (30) day period to cure such failure and no Event of Default
shall be deemed to exist hereunder so long as Borrower commences such cure within the initial thirty (30) day period and diligently and
in good faith pursues such cure to completion within such resulting sixty (60) day period from the date of Lender’s notice.
(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 Project.
(e) If,
at any time, any representation, statement, report or certificate made now or hereafter by Borrower or any Guarantor is not true and correct
in any material respect, 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, and the same is not otherwise dismissed or stayed within sixty (60) days from the date thereof.
(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, which is not otherwise dismissed or
stayed within sixty (60) days after the issuance thereof.
(h) If
Borrower or Guarantor:
| (i) | Shall file a voluntary petition in bankruptcy or for arrangement, reorganization or other relief under any chapter of the federal
bankruptcy code of any similar Law, now or hereafter in effect; |
| (ii) | Shall file an answer or other pleading in any proceedings admitting insolvency, bankruptcy, or inability to pay its debts as they
mature; |
| (iii) | The filing against it of any involuntary proceedings under the federal bankruptcy code or similar Law, now or hereafter in effect,
and such proceedings shall not have been vacated or dismissed within sixty (60) days after the filing thereof; |
| (iv) | Have an order issued appointing a receiver, trustee or liquidator for it or for all or a major part of its property or the Land, and
such order continues un-dismissed for a period of sixty (60) days after such order is entered on the court’s docket; |
| (v) | Shall be adjudicated bankrupt; |
| (vi) | Shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become
due or shall consent to the appointment of a receiver or trustee or liquidator of all or the major part of its property, or the Land;
or |
| (vii) | Shall for any reason cease to exist/or cease operating its business. |
(i) One
or more final judgments for the payment of money are entered: (i) against Borrower in amounts aggregating in excess of $100,000 or (ii)
against any Guarantor in amounts aggregating in excess of $250,000.
(j) If
Borrower or any Guarantor shall fail to pay any debt owed by it or is in default under any agreement with Lender or any other party (other
than a failure or default for which Borrower’s maximum liability does not exceed $100,000 or Guarantor’s maximum liability
does not exceed $250,000) 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, provided that Borrower shall have ninety (90) days to provide Lender with a replacement guarantor which
is acceptable to Lender in its sole and absolute discretion.
(m) Lender
reasonably determines that a Material Adverse Change has occurred.
(n) The
disapproval by Lender of any construction work and failure of Borrower to commence correction thereof to the satisfaction of Lender within
thirty (30) days after notice to Borrower of such disapproval, and thereafter to diligently complete the same.
(o) Except
for Force Majeure, a delay in construction of the Project, or a discontinuance or abandonment of construction, for a continuous period
of thirty (30) days, material failure to adhere to the Construction Schedule, or any delay in construction or equipping of the Project
so that the same may not, in the Lender’s judgment, be completed on or before the Completion Date.
(p) Bankruptcy
or insolvency of the General Contractor or any Major Subcontractor and failure of Borrower to diligently procure a replacement General
Contractor or Major Subcontractor satisfactory to Lender.
(q) Failure
by Borrower to make any Deficiency Capital Injection within the time and in the manner required by Section 7.14 hereof.
(r) The
PACE Financing does not close on or before October 14, 2020.
(s) Borrower
fails to furnish the information in the form and substance required by Section 4.2, above, in the requisite time periods denoted therein,
and which is not otherwise delivered to Lender within ten (10) days after Lender’s demand therefor.
(t) 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.
(u) 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.
(v) The
failure at any time of the Mortgage to be a valid first lien upon the Project or any portion thereof, other than as a result of any release
or reconveyance of the Mortgage with respect to all or any portion of the Project pursuant to the terms and conditions of this Agreement.
(w) An
event of default occurs under the Newmarket Loan Documents by Borrower which is not cured within any applicable cure or grace period.
(x) An
event of default occurs under the City Loan Documents by Borrower which is not cured within any applicable cure or grace period.
(y) An
event of default occurs under the Cooperative Agreement by Borrower which is not cured within any applicable cure or grace period.
(z) Borrower
defaults under the Franchise Agreement and such default is not cured within any applicable cure or grace period.
(aa) The Franchise Agreement
is terminated for any reason, except as otherwise expressly permitted thereunder, or is replaced with a franchise agreement with a national
chain franchisor acceptable to Lender as determined in Lender’s sole discretion.
(bb) Cleveland International
Fund withdraws the CIF Loan Commitment and Borrower fails to provide an acceptable loan take out commitment within sixty (60) days of
such withdrawal.
(cc) The occurrence of
a material default under the Ground Lease, Capital Lease, or Construction Agency Agreement by Borrower; or, except as otherwise permitted
herein, the material modification or amendment to the Ground Lease, Capital Lease or Construction Agency Agreement without the prior written
consent of the Lender, which consent shall not be unreasonably withheld, conditioned or delayed; or the occurrence of any event which
terminates the Ground Lease, Capital Lease or Construction Agency Agreement, except for expressly permitted therein.
SECTION 11
LENDER’S REMEDIES UPON DEFAULT
11.1 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) With
or without entry upon the Land, cause construction of the Project to be completed. Lender, for such purpose, may use all available materials
and equipment located upon the Land and purchase all other necessary materials and employ contractors and other employees. All sums expended
by Lender for such purpose shall constitute disbursements pursuant hereto and shall be secured by the Mortgage and other Loan Documents
and shall forthwith be due and payable by Borrower to Lender with interest thereon at the Default Rate. The authority and agency conferred
hereby upon Lender shall be deemed to create a power coupled with an interest and shall be irrevocable.
(e) Have
the Project appraised, at Borrower’s cost.
(f) Cause
an environmental assessment to be conducted on the Project, at Borrower’s cost.
11.2 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 Project, 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.
11.3 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.
11.4 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.
11.5 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, second, to pay any fees or expense reimbursements then due to Lender under this Agreement or any Loan
Document from Borrower or any Guarantor, third, to pay interest then due and payable on the Loan, and fourth to repay all
principal due under the Loan to the Lender.
SECTION 12
MISCELLANEOUS
12.1 Time
Is of the Essence. Lender and Borrower agree that time is of the essence of all of Borrower’s covenants under this Agreement.
12.2 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.
12.3 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 reasonable 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 or its agents. This obligation on the part
of Borrower shall survive the closing of the Loan, the repayment thereof and any cancellation of this Agreement.
12.4 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.
12.5 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.
12.6 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.
12.7 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.
12.8 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.
12.9 Notices.
Except for service of process as set forth in Section 12.10 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:
If to Borrower:
HOF Village Hotel II, LLC
2626 Fulton Ave. NW
Canton, OH 44718
Attention: Michael Crawford, Chief Executive Officer
With a copy to:
Walter Haverfield LLP
1301 E. Ninth St., Suite 3500
Cleveland, Ohio 44114
Attention: Nick Catanzarite
If to Lender:
ErieBank
Commercial Real Estate
Crown Centre
5005 Rockside Rd., Suite 625
Independence, OH 44131
Attention: Suzanne Hamilton
With a Copy To:
Thompson Hine LLP
3900 Key Tower
127 Public Square
Cleveland, Ohio 44114
Attention: William R. Weir, Esq.
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.
12.10 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.
12.11 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 where
the Lender’s office indicated in Section 12.9 is located. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE LENDER’S OFFICE INDICATED IN SECTION 12.9 IS LOCATED,
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 where the Lender’s office indicated above is located; 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.
12.12 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.
12.13 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.
12.14 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.
12.15 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.
12.16 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.
12.17 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 or entity 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. If Lender assigns or participates out a portion
of the Loan and/or any Loan Documents (“Participation Arrangement”), while remaining a partial owner and/or co-participant
of the Loan, then Lender covenants that to the extent any determination or decision needs to be made by Lender pursuant to the Loan Documents,
or at the request of Borrower, including, without limitation, determinations or decisions involving draws, waivers, amendments, modifications
or extensions, then Lender shall promptly make such determinations or decisions with no undue delay, notwithstanding such Participation
Arrangement. Lender shall take all steps reasonably necessary to cause any participant in a Participation Arrangement to promptly respond
to any request by Borrower and/or Lender. Additionally, prior to entering into a Participation Arrangement, Borrower shall be provided
with any proposed participation agreement, however titled or characterized by the parties, which is intended to memorialize the Participation
Arrangement, and Borrower shall have the opportunity to comment on the same.
12.18 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.
12.19 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.
12.20 Acknowledgment
of Electronic Records. On its own behalf and in its representative capacity for any parties for this transaction, Borrower agrees
that the transaction documents may be preserved as electronic records.
12.21 Errors
and Omissions. The undersigned Borrower for and in consideration of the above-referenced Lender funding the closing of the Loan agrees,
if requested by Lender, to fully cooperate and adjust for clerical errors, any or all loan closing documentation if deemed necessary or
desirable in the reasonable discretion of the Lender to sell, convey, seek guaranty or market the Loan to any entity, including but not
limited to an investor, Federal National Mortgage Associations, Federal Home Loan Mortgage Corporation, Government National Mortgage Association,
Federal Housing Authority or the Department of Veterans Affairs. The undersigned Borrower does hereby so agree and covenant in order to
assure that this loan documentation executed this date conform and be acceptable in the marketplace in the instance of transfer, sale
or conveyance by Lender of its interest in and to said loan documentation.
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK—
SIGNATURE PAGE TO IMMEDIATELY FOLLOW]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed the day and year first above written.
The Borrower acknowledges
that it has read and understood all the provisions of this Agreement, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
| |
BORROWER: |
| |
|
|
| |
HOF VILLAGE HOTEL II, LLC, |
| |
a Delaware limited liability company |
| |
|
|
| |
By: |
/s/ Michael Crawford |
| |
|
Michael Crawford, Chief Executive Officer |
| |
|
|
| |
LENDER: |
| |
|
|
| |
ERIEBANK, a division of CNB Bank, a wholly owned subsidiary of CNB Financial Corporation, a Pennsylvania corporation |
| |
|
|
| |
By: |
/s/ Suzanne Hamilton |
| |
|
Suzanne Hamilton, Senior Vice President |
Signature Page to Construction Loan Agreement
Exhibit A
(Legal Description)
Parcel 1:
Situated in City of Canton, County of Stark and State of Ohio; known
as and being part of Lots Numbers Sixty-Five (65) and Sixty-Six (66), described as follows:
Beginning on the West line of Lot Sixty-Five (65) at a point distant
Thirty-Seven (37) feet Northwardly from the Southwest corner of said Lot Sixty-Five (65);
Thence Northwardly along the West end of Lots Sixty-Five (65) and Sixty-Six
(66) to the Northwest corner of Lot Sixty-Six (66);
Thence Eastwardly along the North line of Lot Sixty-Six (66), 120 feet;
Thence Southwardly across said lots and parallel to their west end
to a point in Lot Sixty-Five (65) distant 37 feet Northwardly from the South line of said Lot Sixty-Five (65);
Thence Westwardly through Lot Sixty-Five (65), on a line parallel to
and distant 37 feet from its South line, 120 feet to the place of beginning.
Parcel 2:
Situated in the City of Canton, County of Stark and State of Ohio;
Known as and being Lot Number 64 in the City of Canton, Stark County,
Ohio.
Parcel 3:
Situated in the City of Canton, County of Stark and State of Ohio;
and known as and being part of Lots Nos. 65 and 66 in the City of Canton, Ohio, which are described as follows:
Beginning on the North line of Lot Number 66 at a point distant 120
feet, East from the Northwest corner of said Lot;
Thence Eastwardly along the North line of Lot Number 66 a distance
of 80 feet more or less, to the Northeast corner of said Lot No. 66;
Thence Southwardly along the East end of both of said Lots to the Southeast
corner of said Lot Number 65;
Thence Westwardly along the South line of said Lot No. 65 a distance
of 80 feet, more or less; Thence Northwardly across said lots to the place of beginning.
Parcel 4:
Situated in the City of Canton, County of Stark and State of Ohio;
and known as and being Thirty-Seven (37) feet, front and rear, off the entire south side of Lot Number Sixty-Five (65) in the City of
Canton, Ohio, excepting therefrom Eighty (80) feet off the East end thereof. And subject to easements and conditions of record, if any,
and the applicable portions of the zoning ordinances of the City of Canton.
Parcel 5:
Easement to construct, maintain and repair footers as set forth in
the Easement from the City of Canton to Newmarket Community Urban Redevelopment Corporation, an Ohio corporation, filed for record October
24, 1984, established by the instrument recorded in Volume 257, Page 162 of Stark County Records over the following described property:
Known as being a 2.00 foot wide strip of land presently dedicated to
public use as streets in the City of Canton, (4th Street S.E., between Piedmont Avenue S.E. and Market Avenue S.); lying immediately west
of the west line of Lots #64, #65 and #66, (Market Avenue S., between 4th Street S.E. and 3rd Street S.E.); lying immediately north of
the north line of Lot #66, (3rd Street SE., between Market Avenue S., and Piedmont Avenue S.E.); lying immediately east of the east line
of Lots #64, #65 and #66, (Piedmont Avenue S.E., between 3rd Street S.E. and 4th Street S.E.).
Parcel 6:
Easement for constructing, operating and maintaining a canopy as set
forth in the Easement Grant from City of Canton, to Newmarket Community Urban Redevelopment Corporation, an Ohio corporation, filed for
record October 24, 1984, established by the instrument recorded in Volume 257, Page 160 of Stark County Records over the following described
property:
Known as and being a 42’ x 21’ tract of land presently dedicated to
public use as Market Avenue South, with said tract lying immediately west of and adjoining the west line of Lots #65 and #66 in the City
of Canton, Stark County, Ohio, and being more particularly described as follows:
The herein described easement is limited to a bottom elevation of 86.20
feet and a top elevation of 130.60 feet based upon Canton City bench mark datum;
Beginning for the same at the southeast corner of the intersection
of Market Avenue S. and 3”1 Street S.E., same also being the northwest corner of Lot #66 in the City of Canton; thence S 14°
- 55’ -30” W with a portion of the east right-of-way line of Market Avenue S. which is also the west line of said Lot #66, a distance
of 55.14 feet to a point and being the true place of beginning; thence N 75° -04’ -30” W at right angles to the east line of
said Market Avenue S., a distance of 21.00 feet to a point; thence S 14° -55’ -30” W parallel with and 21 feet west of the east
line of said Market Street S., a distance of 42.00 feet to a point; thence S 75° -04’ -30” E, a distance of 21.00 feet to a point
on the east line of said Market Avenue S., ; thence N 14° -55’ - 30” E with the east line of said Market Avenue S. and with a
portion of the west line of said Lots #65 and #66, a distance of 42.00 feet to a point and being the true place of beginning and containing
an area of 882 square feet of land more or less.
Parcel 7:
Easement for constructing, operating and maintaining a skywalk above
Market Avenue South and above Third Street S.E. as set forth in the Easement from Newmarket Project, Inc., an Ohio Non-Profit Corporation
to Newmarket Community Urban Redevelopment Corporation, an Ohio non-profit corporation and Canton Parking Community Urban Redevelopment
Corporation, an Ohio non-profit corporation filed for record October 4, 1985, established by the instrument recorded in Volume 357, Page
299 of Stark County Records over the following described property:
Situated in the City of Canton, County of Stark and State of Ohio:
Known as and being part of Lot #66 in the City of Canton, Stark County,
Ohio and being more particularly bounded and described as follows:
The herein described walkway bridge easement is limited to a bottom
elevation of 106.00 feet and a top elevation of 119.00 feet, based upon City of Canton bench mark datum, said easement shall also include
the right to construct and maintain any appurtenances below such bottom elevation such as supports or bracing that may be necessary for
said walkway bridge;
Beginning for the same at a point at the northeast corner of said Lot
#66; thence S 75° -15’ -40” E along a portion of the north line of said Lot #66 and the south line of 3”1 Street S.E., a
distance of 10.50 feet to the true place of beginning;
Thence continuing S 75° -15’ -40” E along a portion of the
north line of said Lot #66 and the south line of said 3rd Street S.E., a distance of 20.00 feet to a point; thence S 14° -44’ -20”
W, a distance of 3.81 feet to a point; thence N 75° -15’ -40” W along a portion of the face of the proposed hotel structure,
a distance of 20.00 feet to a point; thence N 14° -44’ -20” E, a distance of 3.81 feet to the true place of beginning.
Parcel 8:
Easement for constructing, operating and maintaining a canopy as set
forth in the Easement Grant as set forth in the Easement from City of Canton, to Newmarket Community Urban Redevelopment Corporation,
an Ohio corporation, filed for record September 5, 1985, established by the instrument recorded in Volume 347, Page 784 of Stark County
Records over the following described property:
Known as and being a 46’ x 29’ tract of land presently dedicated to
the public use as Market Avenue South, with said tract lying immediately west of and adjoining the west line of Lots #65 and #66 in the
City of Canton, Stark County, Ohio , and being more particularly described as follows:
The herein described easement is limited to a bottom elevation of 86.20
feet and a top elevation of 130.6 feet based upon Canton City bench mark datum;
Beginning for the same at the southeast corner of the intersection
of Market Avenue S. and 3rd Street S.E., same also being the northwest corner of Lot #66 in the City of Canton; thence S 14° 55’ 30”
W with a portion of the east right-of-way line of Market Avenue S., which is also the west line of said Lot #66, a distance of 54.92 feet
to a point and being the true place of beginning; thence N 75° 04’ 30” W at right angles to the east line of said Market Avenue
S., a distance of 29.00 feet to a point; thence S 14° 55’ 30” W parallel with and 29.00 feet west of the east line of said Market
Avenue S., a distance of 46.00 feet to a point; thence S 75° 04’ 30” E, a distance of 29.00 feet to a point on the east line
of said Market Avenue S.; thence N 14° 55’ 30” E with the east line of said Market Avenue S. and with a portion of the west line
of said Lots #65 and #66, a distance of 46.00 feet to a point and being the true place of beginning and containing an area of 1334 square
feet of land more or less.
Exhibit B
(Title 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 Project, 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 as provided in Section 7 hereof,
and in accordance with all requirements of this Agreement.
Exhibit C
(Survey Certification)
A survey of the Land, in duplicate,
made by a registered land surveyor in accordance with the 2016 ALTA/NSPS Minimum Standard of Detail Requirements, dated no later than
six (6) months prior to the Loan Closing Date.
Certification:
The Survey shall bear the following certification:
To: ERIEBANK, its successors and assigns,
(name of Title Agent, if known), (name of Borrower), (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(a), 7(b)(1), 7(b)(2), 7(c), 8, 9, 10,
11(b), 13, 14, 16, 17, 18, 19(a), and 20 of Table A thereof. The field work was completed on ____________________.
Date of Plat or Map:______________________
_______________________________
(Surveyor’s signature, printed name and
seal with Registration/License Number)
Deliverables: The surveyor shall
furnish copies of the Survey to the Title Company, Borrower, and Lender, and as otherwise negotiated with Borrower. Hard copies shall
be on durable and dimensionally stable material of a quality standard acceptable to the insurer. Digital copies of the plat or map may
be provided in addition to, or in lieu of, hard copies in accordance with the terms of the contract. When required by law or requested
by the client, the plat or map shall be produced in recordable form and recorded or filed in the appropriate office or with the appropriate
agency.
Exhibit D
(Permitted Exceptions)
| 1. | Oil and gas leases, pipeline agreements or any other instruments related to the production or sale of oil and gas which may arise
subsequent to the date of this Agreement, pursuant to Ohio Revised Code Section 1509.31(D). |
| 2. | Any lease, grant, exception or reservation of minerals or mineral rights together with any rights appurtenant thereto. |
| 3. | Easement to Citizens Opera House Co. of Canton, filed for record November 10, 1890, in Deed Volume 269, Page 393, of the Stark County
Records. |
| 4. | Agreement by and between Edwin J. Rex, et al., and The Saxton Hotel Co., filed for record June 19, 1902, in Deed Volume 405, Page
339, of the Stark County Records. |
| 5. | Declaration of Covenants and Easements filed for record October 24, 1984, in OR Volume 257, Page 131, of the Stark County Records. |
| 6. | Terms and conditions of that certain Easement Grant to Newmarket Community Urban Redevelopment Corporation, filed for record October
24, 1984, in OR Volume 257, Page 160, of the Stark County Records. |
| 7. | Terms and conditions of that certain Easement Grant to Newmarket Community Urban Redevelopment Corporation, filed for record October
24, 1984, in OR Volume 257, Page 162, of the Stark County Records. |
| 8. | Terms and conditions of that certain Easement Grant to Newmarket Community Urban Redevelopment Corporation, filed for record September
5, 1985, in OR Volume 347, Page 784, of the Stark County Records. |
| 9. | Terms and conditions of that certain Easement by and between Newmarket Project, Inc.; Newmarket Community Urban Redevelopment Corporation
and Canton Parking Community Urban Redevelopment Corporation, filed for record October 4, 1985, in OR Volume 357, Page 299, of the Stark
County Records. |
| 10. | Declaration of Covenants and Conditions Relative to Service Payments in Lieu of Taxes executed by HOF Village Hotel II, LLC, a Delaware
limited liability company, filed for record in Stark County Records. |
| 11. | Terms and Conditions of that certain Memorandum of Ground Lease between HOF Village Hotel II, LLC, an Ohio limited liability company
(“Ground Lessor”) and Development Finance Authority of Summit County, a port authority and political subdivision and body corporation
and politic under the laws of the State of Ohio (“Ground Lessee”), filed for record in Stark County Records. |
| 12. | Terms and Conditions of that certain Memorandum of Lease between Development Finance Authority of Summit County, a port authority
and political subdivision and body corporation and politic under the laws of the State of Ohio (“Lessor”) and HOF Village Hotel
II, LLC, an Ohio limited liability company (“Lessee”), filed for record in Stark County Records. |
| 13. | Real estate taxes and special assessments for the year 2020 and subsequent years, not yet due and payable. |
| 14. | Terms and conditions of that certain Declaration of Covenants, filed for record in Stark County Records in connection with the PACE
Financing. |
Exhibit E
(Borrower’s Certificate for Payment)
ErieBank
7402 Center Street
Mentor, Ohio 44060
Attn: Commercial Real Estate
| RE: | Application for Advance or confirmation of equity contribution in connection with a $15,300,000.00 loan to HOF Village Hotel II, LLC
(“Borrower”). |
1. Pursuant
to that certain Construction Loan Agreement dated September 14, 2020 (the “Construction Loan Agreement”) between Borrower
and ErieBank (“Lender”), Borrower
| (a) | hereby requests a loan advance as indicated on the Soft and Hard Cost Requisition attached hereto. We acknowledge that this amount
is subject to inspection, verification, and available funds. |
| (b) | acknowledges and confirms an equity contribution as indicated on the Soft and Hard Cost Requisition attached hereto. |
Funding Instructions
2. 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.
3. 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.
4. The
Borrower also certifies and agrees that:
| (a) | It has complied with all duties and obligations required to date to be carried out and performed by it pursuant to the terms of the
Construction Loan Agreement; |
| (b) | No Default or Event of Default as defined in the Construction Loan Agreement has occurred and is continuing and; |
| (c) | All change orders or changes to the Plans and Specifications have been submitted to and approved by Lender; |
| (d) | All funds previously disbursed have been used for the purposes as set forth in the Loan Documents executed between Borrower and Lender; |
| (e) | All outstanding claims for labor, materials and/or services furnished prior to this draw period have been paid or will be paid from
the proceeds of this disbursement; |
| (f) | All construction prior to the date of this Borrower’s Certificate has been accomplished in accordance with the Plans and Specifications; |
| (g) | All sums advanced by Lender or contributed by equity on account of this Borrower’s Certificate will be used solely for the purpose
of paying obligations owing as shown on the attached documentation and no item(s) for which payment is requested and/or equity is contributed
has (have) been the basis for any prior disbursement and/or equity contribution; |
| (h) | There are no liens outstanding against the Project or its equipment except for Permitted Exceptions, Lender’s liens and security
interests as agreed upon in the Construction Loan Agreement; |
| (i) | The amount of undisbursed Loan Proceeds and/or approved equity requirement remaining is sufficient to pay the cost of completing the
Project in accordance with the Plans and Specifications originally submitted to the Lender as modified by Lender approved change orders; |
| (j) | All representations and warranties contained in the Construction Loan Agreement are true and correct as of the date hereof. |
| (k) | The undersigned understands that this certification is made for the purpose of inducing Lender to make an advance to Borrower and
that, in making such advance, Lender will rely upon the accuracy of the matters stated in this certificate. |
5. 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.
6. 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.
7. 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.
| |
BORROWER: |
| |
|
|
| |
HOF VILLAGE HOTEL II, LLC, |
| |
a Delaware limited liability company |
| |
|
|
| |
By: |
|
| |
|
Michael Crawford, Chief Executive Officer |
Exhibit F
(Architect’s Certificate)
The firm of Arkinetics,
Inc hereby certifies for the benefit of HOF Village Hotel II, LLC that:
The firm has been employed
by HOF Village Hotel II, LLC pursuant to a contract dated December 2, 2019 to provide architectural and engineering services
with respect to the Project commonly known as McKinley Grand Hotel which is located at 320 Market Ave S, Canton, OH 44702.
The contract provides for
the following services:
| |
X |
Preparation of plans and specifications |
| |
N/A |
Pre-qualification of contractors |
| |
X |
Contract administration and supervision of construction |
| |
N/A |
Tenant space design |
| |
|
|
| |
|
|
The firm is duly licensed
and in good standing under Laws of the state of OHIO License No. 0413550.
The following are all of the
permits or governmental agency approvals required for the construction and occupancy of the building:
| |
|
Issuing Agency |
|
Date Issued |
| |
|
|
|
|
| Excavation Permit |
|
|
|
|
| Foundation Permit |
|
|
|
|
| Building Permit |
|
x |
|
|
| EPA – Water |
|
|
|
|
| EPA – Sewer |
|
|
|
|
| EPA – Sewer |
|
|
|
|
| |
|
|
|
|
| Cert. Of Occupancy Bldg. |
|
x |
|
|
| Cert. Of Occupancy – Tenant |
|
|
|
|
| Other (Specify) |
|
|
|
|
All utilities necessary for
the operation of the project are available with sufficient capacity at the boundaries of the Project. If utility services must be brought
to site, please explain .
The plans listed on the attached
Schedule I comprise all of the plans which will be necessary for the complete construction of the Project, excepting tenant space designs,
and when the Project is built in accordance therewith the Project will (excepting completion of tenant improvements) be ready for occupancy.
The plans are complete and contain all detail necessary for construction. Calculations of the gross building and the net rentable building
area are attached as Schedule II. The plans (and the Project will, when constructed in accordance therewith) comply with all applicable
building, zoning, land use, subdivision, environmental, fire, safety and other applicable governmental laws, statutes, codes, ordinances,
rules and regulations.
The attached Schedule III,
establishing a timetable for Completion of Construction and showing on a monthly basis the anticipated progress of the work, is realistic
and can be adhered to.
The following design drawings
or plans have been or will be prepared by other designers or contractors.
| Type of Plans |
|
Name of Preparing Firm |
| |
|
|
| Construction Documents |
|
Arkinetics, Inc. |
| |
|
|
| |
|
|
| |
|
|
| |
|
|
| The Specifications are: |
|
________________________ |
|
shown on plans |
| |
|
_____x__________________ |
|
Bund separately |
| |
By: |
Daniel Barney |
| |
Title: |
Principal |
| |
Date: |
|
Schedule I
Drawing Log
HOF Village Hotel II, LLC
9/11/2020
| ARCHITECTURE |
| |
| A0.00 Basement Demo Plan Rev 1.pdf |
| A0.01 1st Floor Demo Plan Rev 1.pdf |
| A0.02 2nd Floor Demo Plan Rev B.pdf |
| A0.03 3rd and 4th Floor Demo Plan.pdf |
| A0.04 5th and 6th Floor Demo Plan.pdf |
| A0.05 7th and 8th Demo Plan Rev B.pdf |
| A0.11 Demolition Exterior Elevations Rev E.pdf |
| A0.12 Demolition Exterior Elevations Rev B.pdf |
| A1.00 Basement Floor Plan Rev 1.pdf |
| A1.01 1st Floor Plan Rev 2.pdf |
| A1.02 2nd Floor Plan Rev 2.pdf |
| A1.03 3rd and 4th Floor Plans Rev 2.pdf |
| A1.04 5th and 6th Floor Plans Rev 2.pdf |
| A1.05 7th and 8th Floor Plans Rev 2.pdf |
| A1.06 Tower Roof Plan.pdf |
| A1.11 Wall Types Rev 1.pdf |
| A2.00 Basement RCP Rev 1.pdf |
| A2.01 1st Floor RCP Rev 1.pdf |
| A2.02 2nd Floor RCP Rev 2.pdf |
| A2.03 3rd and 4th Floor RCP Rev 2.pdf |
| A2.04 5th and 6th Floor RCP Rev 2.pdf |
| A2.05 7th and 8th Floor RCP Rev 2.pdf |
| A2.11 Basement RCP Rev 1.pdf |
| A2.12 First Floor RCP Rev 1.pdf |
| A2.13 Second Floor RCP Rev 2.pdf |
| A2.14 Enlarged Lobby RCP Rev 1.pdf |
| A2.15 Enlarged Bar and Restaurant Floor Plans Rev 1.pdf |
| A3.01 Exterior Elevations Rev 1.pdf |
| A3.02 Exterior Elevations Rev B.pdf |
| A3.11 Exterior Wall Sections Rev B.pdf |
| A3.13 Exterior Fireplace Details Rev 2.pdf |
| A4.01 Enlarged Basement Floor Plans Rev 1.pdf |
| A4.02 Enlarged Lobby Floor Plans.pdf |
| A4.03 Enlarged Bar and Restaurant Floor Plans Rev 1.pdf |
| A4.04 Enlarged 1st and 2nd Floor Plans Rev 1.pdf |
| A4.05 Enlarged Fitness Room Plans Rev 2.pdf |
| A4.06 Enlarged Guest Suite Plans Rev 2.pdf |
| A4.07 Enlarged Guest Suite Plans Rev 2.pdf |
| A4.11 Interior Elevations Rev C.pdf |
| A4.12 Interior Elevations Rev 1.pdf |
| A4.13 Interior Elevations Rev 1.pdf |
| A4.14 Interior Elevations Rev 1.pdf |
| A4.21 Millwork Details Rev E.pdf |
| A4.22 Millwork Details Rev B.pdf |
| A4.23 Millwork Details Rev E.pdf |
| A6.01 Door Schedule Rev 2.pdf |
| A6.02 Window Schedule Rev 1.pdf |
| G0.01 Title Sheet Rev 2.pdf |
| G0.02 Life Safety Plan and Code Data Rev D.pdf |
| G0.03 Guestroom Matrix Rev 2.pdf |
| G0.04 ul.pdf |
| G0.05 ul.pdf |
| G0.06 ul.pdf |
| G0.07 ul.pdf |
| G0.08 ul.pdf |
| G0.09 ul.pdf |
| G0.10 ANSI Site.pdf |
| G0.11 ANSI General Details.pdf |
| G0.12 ANSI Plumbing Details.pdf |
| G0.13 ANSI Misc Details.pdf |
| |
| CIVIL |
| |
| C0.00 – Existing Conditions and Demolition Plan |
| C1.0 – Site Layout Plan |
| C2.0 – Site Grading and Utility Plan |
| |
| ELECTRICAL |
| |
| J20190694.000 – E0.01.pdf |
| J20190694.000 – E0.02.pdf |
| J20190694.000 – E0.03.pdf |
| J20190694.000 – E0.04.pdf |
| J20190694.000 – E1.00.pdf |
| J20190694.000 – E1.01 Rev 1.pdf |
| J20190694.000 – E1.02 Rev 1.pdf |
| J20190694.000 – E1.03 Rev 2.pdf |
| J20190694.000 – E1.04 rev E.pdf |
| J20190694.000 – E1.05 rev E.pdf |
| J20190694.000 – E1.06 rev E.pdf |
| J20190694.000 – E2.01 Rev3A.pdf |
| J20190694.000 – E2.02 Rev 3A.pdf |
| J20190694.000 – E2.03 Rev 2.pdf |
| J20190694.000 – E2.04 rev E.pdf |
| J20190694.000 – E2.05 Rev 2.pdf |
| J20190694.000 – E2.06 rev E.pdf |
| J20190694.000 – E2.07 Rev 2.pdf |
| J20190694.000 – E3.01 Rev 3A.pdf |
| J20190694.000 – E4.01 Rev 2.pdf |
| J20190694.000 – E4.02 rev E.pdf |
| J20190694.000 – E4.03 Rev 1.pdf |
| J20190694.000 – E5.01 Rev 3A.pdf |
| J20190694.000 – E6.01 rev E.pdf |
| J20190694.000 – E6.02 rev E.pdf |
| J20190694.000 – E7.01 Rev 1.pdf |
| J20190694.000 – E7.02 rev E.pdf |
| J20190694.000 – E7.03 Rev 3A.pdf |
| J20190694.000 – E7.04 Rev 3A.pdf |
| J20190694.000 – E7.05 Rev3A.pdf |
| J20190694.000 – ED1.01 Rev B.pdf |
| J20190694.000 – ED1.02 Rev B.pdf |
| J20190694.000 – ED2.01 Rev B.pdf |
| J20190694.000 – ED2.02 Rev B.pdf |
| |
| FIRE |
| |
| J20190694.000 – F0.01 Rev 1.pdf |
| J20190694.000 – F1.01 Rev 1.pdf |
| J20190694.000 – F1.02 Rev 1.pdf |
| J20190694.000 – F1.03 Rev 1.pdf |
| J20190694.000 – F1.04 Rev 1.pdf |
| J20190694.000 – F4.01 rev E.pdf |
| J20190694.000 – FD1.01 rev E.pdf |
| J20190694.000 – FD1.02 rev E.pdf |
| |
| INTERIORS |
| |
| ID HoF 1.0-1.01 OFFICE Rev 1.pdf |
| ID HoF 1.0-1.10 rev E.pdf |
| ID HoF 1.0-1.11 Lobby Finish Plans Rev 1.pdf |
| ID HoF 1.0-1.12 RESTAURANT Rev 1.pdf |
| ID HoF 1.0-1.13.pdf |
| ID HoF 1.0-1.14 MTG Rev 1.pdf |
| ID HoF 1.0-1.20 SECOND Rev 2.pdf |
| ID HoF 1.0-1.21 POOL Rev 1.pdf |
| ID HoF 1.0-1.30 CORRD Rev 2.pdf |
| ID HoF 1.00 rev E.pdf |
| ID HoF 2.0-2.12 RESTAURANT Rev 1.pdf |
| ID HoF 2.0-2.21 POOl Rev 2.pdf |
| ID HoF 2.01 rev E.pdf |
| ID HoF 2.13 rev E.pdf |
| ID HoF 2.14 rev E.pdf |
| ID HoF 2.30 rev E.pdf |
| ID HoF 3.0-3.11 LOBBY Rev 2.pdf |
| ID HoF 3.0-3.12 LOBBY Rev 1.pdf |
| ID HoF 3.0-3.13 BAR Rev 1.pdf |
| ID HoF 3.0-3.14 RESTAURANT Rev 1.pdf |
| ID HoF 3.0-3.15 PREFUNCT Rev 1.pdf |
| ID HoF 3.0-3.16 BALLROOM Rev 1.pdf |
| ID HoF 3.0-3.17 BREAK Rev 1.pdf |
| ID HoF 3.0-3.18 RR Rev 1.pdf |
| ID HoF 4.0 UNITS-4.01 QUEEN Rev 2.pdf |
| ID HoF 4.0 UNITS-4.02 rev E.pdf |
| ID HoF 4.0 UNITS-4.03 ENLRG Rev 1.pdf |
| ID HoF 4.0 UNITS-4.04 5FTF Rev 2.pdf |
| ID HoF 4.0 UNITS-4.05 BATH Rev 1.pdf |
| ID HoF 4.0 UNITS-4.06 BATH Rev 1.pdf |
| ID HoF 5.0-5.01 Rev 2.pdf |
| ID HoF 5.0-5.02 Rev 2.pdf |
| ID HoF 5.0-5.04 Rev 2.pdf |
| ID HoF 5.0-5.05 Finish Legend Rev 1.pdf |
ID HoF 5.0-5.06 Rev 2.pdf
|
MECHANICAL
|
| |
| M0.01 Rev B.pdf |
| M0.02 Rev B.pdf |
| M0.03 Rev B.pdf |
| M1.02 Rev B.pdf |
| M1.03 Rev B.pdf |
| M1.04 Rev 3A.pdf |
| M1.05 Rev 3A.pdf |
| M1.06 Rev B.pdf |
| M1.07 Rev B.pdf |
| M1.08 Rev B.pdf |
| M2.01 Rev 3A.pdf |
| M2.02 Rev 3A.pdf |
| M2.03 Rev 2.pdf |
| M2.04 Rev 2.pdf |
| M2.05 rev E.pdf |
| M4.01 Rev B.pdf |
| M4.02 Rev B.pdf |
| M5.01 Rev C.pdf |
| M5.02 Rev B.pdf |
| M7.01 Rev 2.pdf |
M7.02 Rev 3A.pdf
|
STRUCTURAL
|
S1.01-Rev D.pdf
|
TELCOM
|
| J20190694.000 – T0.01 rev D.pdf |
| J20190694.000 – T1.01 Rev B.pdf |
| J20190694.000 – T1.02 Rev B.pdf |
| J20190694.000 – T1.03 Rev B.pdf |
| J20190694.000 – T1.04 Rev B.pdf |
| J20190694.000 – T1.05 Rev B.pdf |
| J20190694.000 – T1.06 Rev B.pdf |
| J20190694.000 – T1.07.pdf |
| J20190694.000 – T2.01 Rev 2.pdf |
| J20190694.000 – T2.02 Rev 2.pdf |
| J20190694.000 – T2.03 Rev 2.pdf |
| J20190694.000 – T2.04 Rev 2.pdf |
| J20190694.000 – T2.05 Rev 2.pdf |
| J20190694.000 – T2.06 Rev 2.pdf |
| J20190694.000 – T2.07 rev D.pdf |
| J20190694.000 – T4.01 Rev 2.pdf |
| J20190694.000 – T4.02 Rev 2.pdf |
| J20190694.000 – T5.01 rev D.pdf |
| J20190694.000 – T5.02 rev D.pdf |
| J20190694.000 – T7.01 rev D.pdf |
| J20190694.000 – T7.02 rev D.pdf |
| J20190694.000 – T7.03 rev D.pdf |
| J20190694.000 – T7.04 rev E.pdf |
| J20190694.000 – T7.05 Rev B.pdf |
| J20190694.000 – T8.01 rev D.pdf |
| J20190694.000 – T8.02 rev D.pdf |
| J20190694.000 – T8.03 Rev B.pdf |
| J20190694.000 – T8.04 rev E.pdf |
Schedule II
Building Areas
HOF Village Hotel
II, LLC
| BUILDING DATA |
|
|
| |
|
|
| STORIES = 8 |
|
|
| |
|
|
| GROSS AREA BASEMENT: |
|
35,246± SF |
| |
|
|
| GROSS AREA 1ST FLOOR: |
|
35,831± SF |
| |
|
|
| GROSS AREA 2ND FLOOR: |
|
17,172± SF |
| |
|
|
| GROSS AREA 3RD THRU 8TH FLOORS: 11,745± x 6 = 70,470± SF |
| |
|
|
| TOTAL GROSS AREA |
|
158,819± SF |
| |
|
|
| (AREAS TAKEN FROM ORIGINAL CONSTRUCTION DOCUMENTS) |
Schedule III
Construction Schedule
HOF Village Hotel
II, LLC
N/A – to be provided
by General Contractor
Exhibit G
(Soft and Hard Cost Requisition Form)
(To be provided under separate cover)
Exhibit H
[Intentionally omitted]
Exhibit I
(Project Budget)
| PRODUCT SORUCES AND USES |
| SOURCES | |
Amount | | |
% | | |
USES | |
Amount | | |
% | |
| ERIEBANK Bridge Loan | |
$ | 15,300,000 | | |
| 52.69 | % | |
Building Acquisition/Refi S&L | |
$ | 3,800.000 | | |
| 13.09 | % |
| Cash/Building Equity | |
$ | 3,487,958 | | |
| 12.01 | % | |
Hard Costs | |
$ | 17,218,893 | | |
| 59.30 | % |
| Stark Foundation Loan | |
$ | 3,000,000 | | |
| 10.33 | % | |
Construction Manager Fee | |
$ | 0 | | |
| 0.00 | % |
| City of Akron Loan | |
$ | 3,500,000 | | |
| 12.05 | % | |
CM Contingency | |
$ | 160,000 | | |
| 0.55 | % |
| PACE Loan | |
$ | 2,640,000 | | |
| 9.09 | % | |
Inspections | |
$ | 25,000 | | |
| 0.09 | % |
| Contributed Developer Fee | |
$ | 1,110,386 | | |
| 3.82 | % | |
A&E/Survey/GEO | |
$ | 800,000 | | |
| 2.75 | % |
| | |
| | | |
| | | |
FF&E | |
$ | 2,900,000 | | |
| 9.99 | % |
| | |
| | | |
| | | |
Title | |
$ | 30,000 | | |
| 0.10 | % |
| | |
| | | |
| | | |
Loan Fee, 1% | |
$ | 153,000 | | |
| 0.53 | % |
| | |
| | | |
| | | |
TREC Fee, 50 bps | |
$ | 76,500 | | |
| 0.26 | % |
| | |
| | | |
| | | |
TREC Annual Fee | |
$ | 15,000 | | |
| 0.05 | % |
| | |
| | | |
| | | |
Environmental Report | |
$ | 15,000 | | |
| 0.05 | % |
| | |
| | | |
| | | |
Legal/Accounting | |
$ | 572,565 | | |
| 1.97 | % |
| | |
| | | |
| | | |
Signage | |
$ | 60,000 | | |
| 0.21 | % |
| | |
| | | |
| | | |
Consultants General | |
$ | 60,000 | | |
| 0.21 | % |
| | |
| | | |
| | | |
Insurance | |
$ | 22,000 | | |
| 0.08 | % |
| | |
| | | |
| | | |
Pre-Opening/Marketing/Operating | |
$ | 700,000 | | |
| 2.41 | % |
| | |
| | | |
| | | |
Franchise Fee | |
$ | 75,000 | | |
| 0.26 | % |
| | |
| | | |
| | | |
Operations | |
$ | 250,000 | | |
| 0.86 | % |
| | |
| | | |
| | | |
Developer Fee | |
$ | 1,110,386 | | |
| 3.82 | % |
| | |
| | | |
| | | |
Interest Reserve | |
$ | 530,000 | | |
| 1.83 | % |
| | |
| | | |
| | | |
Technical Services | |
$ | 380,000 | | |
| 1.31 | % |
| | |
| | | |
| | | |
Soft Cost Contingency | |
$ | 85,000 | | |
| 0.29 | % |
| TOTAL SOURCES | |
$ | 29,038,344 | | |
| 100 | % | |
TOTAL USES | |
$ | 29,038,344 | | |
| 100 | % |
Interest reserve for 12 months = $530,000
Exhibit J
BOND ADVANCE AUTHORIZATION
The undersigned, Authorized
Construction Agent Representative, Authorized Original Purchaser Representative and Authorized Issuer Representative hereby notify the
Registrar of the Bond Advance designated below, which Bond Advance amount corresponds to the amount of the request for Advance to be paid
from the proceeds of such Bond Advance as set forth on the Advance Request of even date herewith submitted the Authorized Construction
Agent Representative and approved by the Authorized Original Purchaser Representative. The Original Purchaser shall make a Bond Advance
pursuant to the Bond Purchase Agreement and the Construction Loan Agreement. Capitalized words and terms not otherwise defined on this
Bond Advance Authorization shall have the meanings assigned to them in accordance with the Lease dated as of the Loan Closing Date (the
“Lease”) between the Development Finance Authority of Summit County, as Lessor, and HOF Village Hotel II, LLC, as Lessee.
| Bond Advance Date | |
| Amount of Bond Advance | |
| | |
| | |
| |
$ | | |
Following the Bond Advances described above, the
total amount of all Bond Advances for the Bonds will be in the aggregate amount equal to $______________________.
| Date: __________ |
|
|
| |
|
Authorized Construction Agent Representative |
| |
|
|
| Date: __________ |
|
|
| |
|
Authorized Original Purchaser Representative |
| Approved: |
|
|
| |
|
|
| Date: __________ |
|
|
| |
|
Authorized Issuer Representative |
