PROMISSORY NOTE Term Note
Exhibit 10.6
Term Note
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Borrower: |
HALL OF FAME RESORT & ENTERTAINMENT COMPANY 2014 Champions Gateway, Xxxxx 000 Xxxxxx, Xxxx 00000 |
Lender: |
XXXXX COMMUNITY FOUNDATION, INC. 000 Xxxxxx Xxxxxx X, Xxxxx 000 Xxxxxx, Xxxx 00000 |
| Principal Amount: $1,500,000.00 | Date of Note: June 11, 2024 |
PROMISE TO PAY. FOR VALUE RECEIVED, HALL OF FAME RESORT & ENTERTAINMENT COMPANY, a Delaware corporation (“Borrower”) hereby promises to pay to XXXXX COMMUNITY FOUNDATION, INC. (“Lender”), or order, in lawful money of the United States of America, the principal amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) together with interest on the unpaid principal balance from June 11, 2024, until paid in full as provided herein.
PAYMENT. Borrower will pay the entire outstanding principal balance and all accrued and unpaid interest to Lender on June 30, 2025, the Maturity Date. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest, then to principal, then to any unpaid collection costs, and then to any late charges. The annual interest rate for this Note (hereinafter defined) is computed on a 365/360 basis; that Is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Xxxxxx’s address shown above or at such other place as Lender may designate in writing.
COORDINATION WITH BUSINESS LOAN AGREEMENT. This Note is issued by Xxxxxx under the terms and provisions of the Business Loan Agreement executed simultaneously with this Note. Borrower hereby promises to pay the principal and interest at the times and in the manner specified herein and in the Business Loan Agreement. This Note may be declared to be, or be and become, due prior to its express maturity, voluntary prepayments may be made hereon, and certain prepayments required to be made hereon, all in the events, on the terms, and with the effects provided in the Business Loan Agreement.
INTEREST RATE. Unpaid principal under this Note shall accrue interest at rate equal to 6.0% per annum.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due, provided that all accrued interest is paid to the date of such early payment. Early payments will not, unless agreed to by Xxxxxx In writing, relieve Borrower of Xxxxxxxx’s obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due. Xxxxxxxx agrees not to send Lender payments marked “paid in full”‘, “without recourse”, or similar language. If Borrower sends such a payment, Xxxxxx may accept it without losing or waiving any of Xxxxxx’s rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes “payment in full” of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Xxxxx Community Foundation, 000 Xxxxxx Xxxxxx X., Xxxxx 000, Xxxxxx, Xxxx 00000.
INTEREST AFTER DEFAULT; LATE FEE. Upon the occurrence and during the continuance of an Event of Default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 5.000 percentage point margin (“Default Rate Margin”). However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. If any payment required under this Note is not paid within ten (10) days after such payment is due, then, at the option of Lender, Borrower shall pay a late charge equal to 5% of the amount of such payment (the “Late Charge”). The Late Charge may be assessed without notice, and shall be immediately due and payable, and shall be in addition to all other rights and remedies available to Lender. Xxxxxx’s acceptance of Xxxxxxxx’s delinquent installment(s) shall not constitute Xxxxxx’s waiver of the right to thereafter require Xxxxxxxx’s prompt payment of all subsequent installments or Xxxxxx’s right to declare a default as provided herein.
DEFAULT. Each of the following occurrences shall constitute an event of default (“Event of Default”) under this Note:
Payment Default. Borrower fails to make any payment within ten (10) days when due under this Term Loan Note, the Business Loan Agreement, or the Loan Documents, when due in connection with the Term Loan.
Other Defaults. Borrower fails to comply with, or to perform any other term, debt, Indebtedness, obligation, covenant or condition, contained in this Term Loan Note, or the Business Loan Agreement, or the occurrence of any of the other Events of Default set forth in this Term Loan Note or the Business Loan Agreement, and said default continues for a period of thirty (30) days or more after the date Borrower receives written notice from the Lender of such failure; provided, however, that if such Event of Default cannot reasonably be accomplished within said thirty (30) day period, then Borrower shall have an additional sixty (60) day period to cure such Event of Default 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 with such resulting ninety (90) day period.
Default in Favor of Third Parties. Subject to any grace periods or rights to cure, Borrower defaults under any loan, debt, indebtedness, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially adversely affect the assets or property taken as a whole, or any of Borrower’s, assets or property taken as a whole, or its ability to repay the indebtedness, or perform their obligations under the Loan Documents, as determined by Lender.
False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on its behalf, under this Term Loan Note or the Business Loan Agreement is false or misleading in any material respect, either now or at the time made or becomes false at any time thereafter.
Insolvency. The dissolution or termination of Borrower’s existence, the cessation of Borrower’s business for any reason, the insolvency of Borrower the appointment of a receiver for any part of Xxxxxxxx’s or their businesses or property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower excepting, however, an involuntary bankruptcy proceeding, for which Borrower shall have sixty (60) days from the date of filing to discharge.
Substantial Change in Ownership. In the event of a substantial change in ownership of Borrower, Lender may, at Xxxxxx’s option, declare immediately due and payable all sums owed by Borrower pursuant to this Note. A “substantial change in ownership” shall be defined as: (a) any change in ownership of more than 50% of the outstanding stock of Borrower, (b) a new owner of more than 50% of the outstanding stock of Borrower, or (c) a merger, consolidation, or other reorganization of Borrower resulting in a change of more than 50% of the outstanding ownership and control of Borrower.
Adverse Change. A material adverse change occurs in Borrower’s financial condition which leads Xxxxxx to reasonably believe that the prospect of a Borrower’s payment or performance is impaired.
LENDER’S RIGHTS. Upon the occurrence and continuation of an Event of Default beyond any applicable grace or cure period, Xxxxxx may declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will immediately pay the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due.
ATTORNEYS’ FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender such commercially reasonable amount. This includes, subject to any limits under applicable law, Xxxxxx’s reasonable attorneys’ fees and Xxxxxx’s legal expenses whether or not there is a lawsuit including reasonable attorneys’ fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Xxxxxxxx also will pay any court costs, in addition to all other sums provided by law. All amounts set forth in this paragraph shall become part of the principal balance under this Note and shall bear interest at the highest interest rate herein provided.
GOVERNING LAW. This Note will be governed by the laws of the State of Ohio without regard to its conflicts of law provisions. This Note has been accepted by Xxxxxx in the State of Ohio.
PAYMENT DATES. If the due date of any payment under this Note shall be a business day that is a federal holiday, Saturday, or Sunday (as defined herein), the due date shall be extended to the next succeeding business day that is not a federal holiday, Saturday, or Sunday; provided, however, that if such next succeeding business day occurs In the following calendar month, then the due date shall be the immediately preceding business day.
DEFINITIONS. For purposes of this Note, the following definitions apply:
| i) | Advance. The word “Advance” or “Advances” means a disbursement of Loan funds made, or to be made, to Borrower, or on Borrower’s behalf, in connection with any Note or other Indebtedness. |
| ii) | Note. The words “Term Loan Note” means individually, the following: this Promissory Note; together with all renewals of, extensions of, modifications of, re-financings of, replacements of, consolidations of, and substitutions for such promissory note or credit agreement. |
| iii) | Business Loan Agreement. The words “Business Loan Agreement” means the Business Loan Agreement entered into by Xxxxxxxx and Lender, of even date herewith, reflecting Borrower’s obligations in connection with the Loan. |
| iv) | Indebtedness. The word “Indebtedness” means the indebtedness evidenced by the Note, the Business Loan Agreement, and any other amounts, including costs and expenses, which Borrower owes to Lender, now or at any time in the future, including without limitation all principal, interest, costs and expenses and other obligations set forth in this Note or the Business Loan Agreement. |
| v) | Person. The word “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. |
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All capitalized terms included in this Note, except those terms that are specifically defined in this Note, shall have the meaning set forth in the Business Loan Agreement. This Note is the Instrument referred to in the Business Loan Agreement as the “Term Loan Note”.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Xxxxxxxx, and upon Xxxxxxxx’s successors and assigns, and shall inure to the benefit of Lender and Its successors and assigns.
ASSIGNMENT. Xxxxxxxx agrees not to assign any of Xxxxxxxx’s rights, remedies or obligations described in this Note without the prior written consent of Lender, which consent may be withheld in Xxxxxx’s sole discretion. This Note is assignable by Xxxxxx, and any transfer or assignment of the Note, Business Loan Agreement, the Loan Documents, or portions hereof by Lender, shall operate to vest in any such assignee all rights and powers herein conferred upon and granted to Lender.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Borrower does not agree or intend to pay, and Xxxxxx does not agree or intend to contract for, charge, collect, take, reserve or receive (collectively referred to herein as “charge or collect”), any amount, in the nature of interest or in the nature of a fee for this loan, which would in any way or event (including demand, prepayment, or acceleration) cause Lender to charge or collect more for this loan than the maximum Lender would be permitted to charge or collect by federal law or the law of the State of Ohio (as applicable). Any such excess interest or unauthorized fee shall, instead of anything stated to the contrary, be applied first to reduce the principal balance of this loan, and when the principal has been paid in full, be refunded to Borrower. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest In the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone other than Borrower (except for any increase to the principal amount of this loan). All such parties also agree that Xxxxxx may modify this loan without the consent of or notice to anyone other than Borrower. The obligations under this Note are joint and several.
WAIVER OF BORROWER. Demand, presentment, protest, notice of non-payment, notice of dishonor, notice of protest and notice of default are hereby waived by Xxxxxxxx. Borrower hereby waives all suretyship defenses including but not limited to all defenses, and such waiver is entered to the full extent permitted by law.
LIMITATION OF LIABILITY. Xxxxxxxx expressly agrees that in no event will the Lender be liable for any indirect, special, consequential, or punitive damages in connection with or arising out of the Loan. Notwithstanding any other provision in any Loan Document, Lender shall not be liable for any failure or inability to perform, or any delay in performing hereunder or under any other Loan Document of such failure, inability or delay due to acts of God, war, civil or industrial disturbance, strike, natural disaster, equipment malfunction, or any other cause which is beyond Lender’s reasonable control.
CUMULATIVE RIGHTS. No delay by Xxxxxx in the exercise of any power or right hereunder, or under any of the other Loan Documents, shall operate as a waiver of such rights, nor shall a single or partial exercise of any other power or right constitute a waiver of any other rights thereunder. Enforcement by Xxxxxx of the terms hereof or of any other terms of the Loan Documents does not constitute an election by Xxxxxx of remedies so as to preclude the exercise of any other remedy available to Lender hereunder, under the Loan Documents, or available at law or in equity.
CONFESSION OF JUDGMENT. Xxxxxxxx hereby irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Xxxxxx, to appear in any court of record and to confess judgment against Xxxxxxxx for the unpaid amount of this Note as evidenced by an affidavit signed by an officer of Lender setting forth the amount then due, attorneys’ fees plus costs of suit, and to release all errors, and waive all rights of appeal. If a copy of this Note, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. Borrower hereby waives the right to any injunction which would prevent Xxxxxx from taking judgment under this Note by confession, and any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment will be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void; but the power will continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Note have been paid in full. Xxxxxxxx waives any conflict of interest that an attorney hired by Xxxxxx may have in acting on behalf of Xxxxxxxx in confessing judgment against Xxxxxxxx while such attorney is retained by Xxxxxx. Xxxxxxxx expressly consents to such attorney acting for Xxxxxxxx in confessing judgment.
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PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. XXXXXXXX AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
| By: | Hall of Fame Resort & Entertainment Company | |
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Print Name: Xxxxxxx Xxxxxxxx | ||
| President and CEO | ||
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