Exhibit 10.2


 





 



 


GUARANTY AGREEMENT


 


made by


 


IRG
MASTER HOLDINGS, LLC,

a Delaware limited liability company,

as Guarantor,


 


in favor of


 


AQUARIAN
CREDIT FUNDING LLC,

as Administrative Agent,


 


Dated
as of December 1, 2020


 





 



 




     

     


    

 


GUARANTY AGREEMENT


 


This
GUARANTY AGREEMENT (this “Guaranty”), dated as of December 1, 2020, is made by IRG MASTER
HOLDINGS, LLC, a Delaware limited liability company, having a mailing address at 11111 Santa Monica Boulevard, Suite 800,
Los Angeles, California 90025 (together with its permitted successors and assigns, “Guarantor”), in favor
of AQUARIAN CREDIT FUNDING LLC, as administrative agent (together with its successors and assigns in such capacity, hereinafter
referred to as “Administrative Agent”), having an address at 40 Tenth Avenue, 6th Floor,
New York, New York 10014.


 


RECITALS:


 


A. Pursuant
to that certain Term Loan Agreement (as the same may be amended, modified, supplemented or replaced from time to time, the “Loan
Agreement”), dated as of the date hereof, by and among Hall of Fame Resort & Entertainment Company, the
other Borrowers party thereto, the Lenders from time to time party thereto, and Administrative Agent, Lenders have agreed to extend
certain loan facilities and other financial accommodations (collectively, the “Loan”) to Borrowers, subject
to the terms and conditions contained in the Loan Agreement and the related Loan Documents. Capitalized terms used in this Guaranty
but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Loan Agreement.


 


B. The
Loan is secured by, among other things, certain Mortgages and other Security Documents made by Borrowers (together with all renewals,
modifications, increases and extensions of the same, the “Security Instrument”).


 


C. As
a condition to the making the Loan, Guarantor is required to execute and deliver to Administrative Agent this Guaranty.


 


D. Guarantor
hereby acknowledges that Guarantor is an Affiliate of Borrowers and will materially benefit from the Loan and the extensions of
credit and other accommodations under the Loan Agreement.


 


NOW,
THEREFORE, in consideration of the premises set forth herein and as an inducement for and in consideration of the agreement
of the Secured Parties making the Loan and other accommodations pursuant to the Loan Agreement, Guarantor hereby agrees, covenants,
represents and warrants to Administrative Agent, for the benefit of Administrative Agent and other Secured Parties, as follows:


 


1. Guaranteed
Obligations.


 


(a) As
used herein, the term “Guaranteed Obligations” means, subject to the Guarantor Liability Cap (as defined
in Section 1(b)), (1) the due and punctual payment of principal of, and interest (including any interest that,
but for the commencement of any proceeding under any Debtor Relief Laws, would have accrued) on, any and all fees, premiums on
and all expenses incurred in connection with the Obligations owed by any Borrower to any Lender, to Administrative Agent, or to
any other Secured Party in connection with the Loan Agreement or any other Loan Documents, and (ii) the due and punctual payment
of all other present or future Obligations owing by any Borrower to any Lender, to Administrative Agent, or to any other Secured
Party, including but not limited to principal, interest (including any interest that, but for the commencement of any proceeding
under any Debtor Relief Laws, would have accrued), and all costs and expenses that are owed under the Loan Documents


 






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(b) Notwithstanding
anything to the contrary contained in this Guaranty, Guarantor’s liability under this Guaranty shall not exceed a total of
$22,300,000 (the “Guarantor Liability Cap”).


 


2. Guaranty.


 


(a) Guarantor
hereby irrevocably, absolutely and unconditionally guarantees to Administrative Agent for the benefit of Administrative Agent and
the other Secured Parties, as a primary obligor and not merely as a surety, the full, prompt and complete payment and performance
when due of the Guaranteed Obligations.


 


(b) This
Guaranty covers the Guaranteed Obligations, whether presently outstanding or arising subsequent to the date hereof.


 


(c) All
sums payable to Administrative Agent for the benefit of Administrative Agent and the other Secured Parties under this Guaranty
shall be payable on demand and without reduction for any offset, claim, counterclaim or defense.


 


(d) [Intentionally
Omitted.]


 


(e) All
(i) payments, repayments and prepayments of the outstanding Obligations by Borrower or any other Person and/or (ii) amounts
realized from the Collateral and to be applied to the Obligations, shall, for purposes of this Section 2(e) be deemed
to be applied first to the portion of the Obligations which exceeds the Guarantor Liability Cap and thereafter to the outstanding
Obligations to reduce the Guarantor Liability Cap on a dollar-for-dollar basis.


 


3. Representations
and Warranties. Guarantor hereby represents and warrants to Administrative Agent and the other
Secured Parties as follows (which representations and warranties shall be given as of the date hereof and shall survive the execution
and delivery of this Guaranty):


 


(a) Organization,
Authority and Execution. Guarantor is a limited liability company, duly organized, validly existing, and in good standing
under the laws of the state of Delaware, and has all necessary power and authority to own its properties and to conduct its business
as presently conducted or proposed to be conducted and to enter into and perform this Guaranty and all other agreements and instruments
to be executed by Guarantor in connection herewith. This Guaranty has been duly executed and delivered by Guarantor.


 


(b) Enforceability.
This Guaranty constitutes a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights generally.


 


(c) No
Violation. The execution, delivery and performance by Guarantor of its obligations under this Guaranty does not and
will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body, agency or other instrumentality
applicable to Guarantor, or result in a breach of any of the terms, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the assets
of Guarantor pursuant to the terms of any mortgage, indenture, agreement or instrument to which Guarantor is a party or by which
Guarantor or any of Guarantor’s properties is bound.


 






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(d) No
Litigation. There are no actions, suits or proceedings at law or at equity, pending or, to Guarantor’s knowledge,
threatened against or affecting Guarantor or which involve or might involve the validity or enforceability of this Guaranty or
which could materially and adversely affect the financial condition of Guarantor or the ability of Guarantor to perform any of
its obligations under this Guaranty. Guarantor is not in default beyond any applicable grace or cure period with respect to any
order, writ, injunction, decree or demand of any Governmental Authority which could materially and adversely affect the financial
condition of Guarantor or the ability of Guarantor to perform any of its obligations under this Guaranty.


 


(e) Consents.
All consents, approvals, orders or authorizations of, or registrations, declarations or filings with, all Governmental Authorities
(collectively, the “Consents”) that are required in connection with the valid execution, delivery and
performance by Guarantor of this Guaranty have been obtained, and Guarantor agrees that all Consents required in connection with
the carrying out or performance of any of Guarantor’s obligations under this Guaranty will be obtained when required.


 


(f) Financial
Information. Guarantor is not insolvent within the meaning of the United States Bankruptcy Code or any other applicable
law, code or regulation and the execution, delivery and performance of this Guaranty will not render Guarantor insolvent.


 


(g) Consideration.
Guarantor is the owner, directly or indirectly, of certain legal and beneficial equity interests in the Lead Borrower.


 


4. Unconditional
Character of Obligations of Guarantor.


 


(a) The
obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or
enforceability, in whole or in part, of the other Loan Documents or any provision thereof, or the absence of any action to enforce
the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor
or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of any Borrower
under the other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances
which might otherwise limit recourse against Guarantor by Administrative Agent or constitute a legal or equitable discharge or
defense of a guarantor or surety. Administrative Agent may enforce the obligations of Guarantor under this Guaranty by a proceeding
at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against any
Borrower or any other Person at any time, either before or after an action against the Property or any part thereof, Borrower or
any other Person. This Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor
waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision
of any other Loan Document, against Guarantor, any Borrower or any other Person, any right to require a proceeding first against
any Borrower or any other Person, or to exhaust any security (including, without limitation, the Property) for the performance
of the Guaranteed Obligations or any other obligations of any Borrower or any other Person, or any protest, presentment, notice
of default or other notice or demand whatsoever (except to the extent expressly provided to the contrary in this Guaranty).


 


(b) The
obligations of Guarantor under this Guaranty, and the rights of Administrative Agent to enforce the same by proceedings, whether
by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:


 


(i) any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding
up or other similar proceeding involving or affecting any Borrower, the Collateral or any part thereof, Guarantor or any other
Person;


 






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(ii) any
failure by Administrative Agent or any other Person, whether or not without fault on its part, to perform or comply with any of
the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;


 


(iii) the
sale, transfer or conveyance of the Collateral or any interest therein to any Person, whether now or hereafter having or acquiring
an interest in the Collateral or any part thereof and whether or not pursuant to any foreclosure, trustee sale or similar proceeding
against any Borrower or the Collateral or any interest therein;


 


(iv) the
termination or discharge of any Security Instrument, the exercise of any power of sale or any foreclosure or the conveyance to
Administrative Agent, any Affiliate of Administrative Agent or any other Secured Party of the Collateral or any interest therein
by a deed-in-lieu of foreclosure;


 


(v) the
release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions
contained in any of the Loan Documents by operation of law or otherwise;


 


(vi) the
release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof;


 


(vii) any
action or inaction by Administrative Agent or any other Secured Party under or in respect of any of the Loan Documents, including
any failure to exercise, or any delay in exercising, any rights or remedies Administrative Agent or any other Secured Party may
have under this Guaranty or the other Loan Documents;


 


(viii) any
modification, supplement, extension, consolidation, restatement, waiver or consent provided by Administrative Agent or any other
Secured Party with respect to any of the Loan Documents, including, without limitation, the grant of extensions of time for payment
or performance;


 


(ix) the
accuracy or inaccuracy of the representations and warranties made by any Borrower, Guarantor or any other Person in any of the
Loan Documents; or


 


(x) the
existence of any claim, setoff, counterclaim, defense or other rights which Guarantor may have against any Borrower, Administrative
Agent or any other Secured Party or any other Person, whether in connection with the Loan or any other transaction.


 


(c) Except
as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action
brought by Administrative Agent or any other Secured Party to enforce this Guaranty based on claims of waiver, release, surrender,
alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.


 


(d) Administrative
Agent or any other Secured Party may deal with any Borrower and Affiliates of any Borrower in the same manner and as freely as
if this Guaranty did not exist and shall be entitled, among other things, to grant any Borrower or any other Person such extension
or extensions of time to perform any act or acts as may be deemed advisable by Administrative Agent or any other Secured Party,
at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations
of Guarantor hereunder.


 






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(e) No
compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission,
failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants
or conditions of, the Loan Documents shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and
Guarantor agrees that if any Loan Document is modified with Administrative Agent or any other Secured Party’s consent, the
Guaranteed Obligations shall automatically be deemed modified to include such modifications.


 


(f) Administrative
Agent or any other Secured Party may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity
or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise,
or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance
of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Administrative Agent or any other
Secured Party shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder
or now or hereafter existing at law or in equity.


 


(g) No
waiver shall be deemed to have been made by Administrative Agent of any rights hereunder unless the same shall be in writing and
signed by Administrative Agent, and any such waiver shall be a waiver only with respect to the specific matter involved and shall
in no way impair the rights of Administrative Agent or any other Secured Party or the obligations of Guarantor to Administrative
Agent or any other Secured Party in any other respect or at any other time.


 


(h) At
the option of Administrative Agent or any other Secured Party, Guarantor may be joined in any action or proceeding commenced by
Administrative Agent or any other Secured Party against any Borrower in connection with or based upon any other Loan Documents
and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor
to the extent of Guarantor’s liability hereunder, without any requirement that Administrative Agent or any other Secured
Party first assert, prosecute or exhaust any remedy or claim against any Borrower or any other Person, or any security for the
obligations of any Borrower or any other Person.


 


(i) Guarantor
agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment
is made by any Borrower or Guarantor to Administrative Agent or any other Secured Party and such payment is rescinded or must otherwise
be returned by Administrative Agent or any other Secured Party (as determined by Administrative Agent in its sole and absolute
discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship,
winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been
made.


 






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(j) In
the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed
Obligations or in the event that for any reason whatsoever any Borrower, any other guarantor of all or any portion of the Loan,
or any subsequent owner of the Real Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor
agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate
as to lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any
time owed to Administrative Agent or any other Secured Parties under the Loan Documents, and (ii) Guarantor shall not be entitled
to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been
indefeasibly paid in full in cash. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation
in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Administrative
Agent or any other Secured Party in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this
Guaranty, until the actual and irrevocable receipt by Administrative Agent and the other Secured Parties of payment in full in
cash of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any
amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Administrative
Agent or any other Secured Party shall not have been fully paid, such amount shall be paid by Guarantor to Administrative Agent
for credit and application against such sums due and owing to Administrative Agent and the other Secured Parties.


 


(k) Guarantor’s
obligations hereunder shall survive a foreclosure, deed-in-lieu of foreclosure or similar proceeding involving the Real Property
and the exercise by Administrative Agent or any other Secured Parties of any or all of its remedies pursuant to the Loan Documents.


 


5. [Intentionally
Omitted.]


 


6. Entire
Agreement/Amendments. This instrument represents the entire agreement between the parties with
respect to the subject matter hereof. The terms of this Guaranty shall not be waived, altered, modified, amended, supplemented
or terminated in any manner whatsoever except by written instrument signed by Administrative Agent and Guarantor.


 


7. Successors
and Assigns. This Guaranty shall be binding upon Guarantor and Guarantor’s successors and
permitted assigns, may not be assigned or delegated by Guarantor, and shall inure to the benefit of Administrative Agent, other
Secured Parties and their successors and assigns. Administrative Agent and the other Secured Parties shall have the right to assign,
delegate, pledge, participate or transfer their rights and obligations under this Guaranty without limitation, and any assignee
or transferee shall be entitled to all the benefits afforded to the Administrative Agent and the other Secured Parties under this
Guaranty.


 


8. Governing
Law.


 


(a) THIS
GUARANTY WAS NEGOTIATED IN THE STATE OF NEW YORK AND THE PROCEEDS OF THE NOTE DELIVERED PURSUANT TO THE LOAN AGREEMENT WERE DISBURSED
FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW,
GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
GUARANTY AND THE NOTE, AND THIS GUARANTY AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK PURSUANT TO § 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 






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(b) ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT, ANY OTHER SECURED PARTY OR GUARANTOR ARISING OUT OF OR RELATING
TO THIS GUARANTY SHALL BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK COUNTY, IN THE STATE AND CITY OF NEW YORK AND GUARANTOR
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND GUARANTOR
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR AGREES THAT SERVICE
OF PROCESS UPON GUARANTOR AT THE ADDRESS FOR GUARANTOR SET FORTH HEREIN AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED
TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON GUARANTOR IN ANY
SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. GUARANTOR (i) SHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF
ANY CHANGE IN THE ADDRESS FOR GUARANTOR SET FORTH HEREIN, AND (ii) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE AN AUTHORIZED
AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF
PROCESS). NOTWITHSTANDING THE FOREGOING, ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY SHALL HAVE THE RIGHT TO INSTITUTE ANY
LEGAL SUIT, ACTION OR PROCEEDING FOR THE ENFORCEMENT OR FORECLOSURE OF THIS GUARANTY OR ANY LIEN ON ANY COLLATERAL FOR THE LOAN
IN ANY FEDERAL OR STATE COURT IN ANY JURISDICTION(S) THAT ADMINISTRATIVE OR SUCH SECURED PARTY MAY ELECT IN ITS SOLE AND ABSOLUTE
DISCRETION, AND GUARANTOR WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING, AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.


 


(c) GUARANTOR
ACKNOWLEDGES AND AGREES THAT THIS GUARANTY IS AN “INSTRUMENT FOR THE PAYMENT OF MONEY ONLY,” WITHIN THE MEANING OF
NEW YORK CIVIL PRACTICE LAW AND RULES SECTION 3213.


 


9. Section
Headings. The headings of the sections and paragraphs of this Guaranty have been inserted for
convenience of reference only and shall in no way define, modify, limit or amplify any of the terms or provisions hereof.


 


10. Severability.
Any provision of this Guaranty which may be determined by any competent authority to be prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, Guarantor
hereby waives any provision of law which renders any provision hereof prohibited or unenforceable in any respect.


 


11. WAIVER
OF TRIAL BY JURY. EACH OF ADMINISTRATIVE AGENT, EACH OTHER SECURED PARTY AND GUARANTOR HEREBY
WAIVES THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION, ACTION OR PROCEEDING ARISING HEREUNDER OR IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH SECURED PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF TRIAL BY JURY BY GUARANTOR.


 






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12. Other
Guaranties. The obligations of Guarantor hereunder are separate and distinct from, and in addition
to, the obligations of Guarantor now or hereafter arising under any other guaranties, indemnification agreements or other agreements
to which Guarantor is now or hereafter becomes a party. In no event shall Guarantor be entitled to any credit against amounts due
under this Guaranty by reason of amounts paid to Administrative Agent or any other Secured Party by Guarantor or any other person
under or by reason of the other guaranties, indemnification agreements or other agreements to which Guarantor is now or hereafter
becomes a party; provided, however, under no circumstances shall the Secured Parties have duplicative recoveries for the
same item.


 


13. Notices.
All notices, consents, approvals and requests required or permitted hereunder (a “Notice”)
shall be given in writing and shall be effective for all purposes if either hand delivered with receipt acknowledged, or by a nationally
recognized overnight delivery service (such as Federal Express), or by certified or registered United States mail, return receipt
requested, postage prepaid, or by email, provided that the recipient has acknowledged receipt by telephone and that a carbon copy
of such notice is sent concurrently by the other methods provided in this Section, in each case addressed as follows (or to such
other address or Person as a party shall designate from time to time by notice to the other party):


 


	 	To Guarantor:	IRG Master Holdings, LLC
	 	 	11111 Santa Monica Boulevard, Suite 800
	 	 	Los Angeles, California  90025
	 	 	Attention:  Stuart Lichter
	 	 	Telephone:  (310) 806-4434]
	 	 	E-mail:  SLichter@industrialrealtygroup.com
	 	 	 
	 	With copy to:	Fainsbert Mase Brown & Sussman, LLP
	 	 	11111 Santa Monica Boulevard, Suite 810
	 	 	Los Angeles, California  90025
	 	 	Attention:  Dean Sussman, Esq.
	 	 	Telephone:  (310) 473-6400
	 	 	E-mail:  DSussman@fms-law.com
	 	 	 
	 	To Administrative Agent:	Aquarian Credit Funding LLC
	 	 	40 Tenth Avenue, 6th Floor
	 	 	New York, New York  10014
	 	 	Attn: Ben Goodman, Esq.
	 	 	E-mail:  legal@aquarianlp.com
	 	 	 
	 	With copy to:	Skadden, Arps, Slate, Meagher & Flom LLP
	 	 	One Manhattan West
	 	 	New York, New York  10001
	 	 	Attention:  Harvey Uris, Esq.
	 	 	Telephone:  (212) 735-2212
	 	 	E-mail:  Harvey.Uris@skadden.com



 


A notice shall be deemed to
have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered
or the first attempted delivery on a Business Day; in the case of overnight delivery, upon the first attempted delivery on a Business
Day; or in the case of email, one (1) Business Day after delivery.


 






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14. Guarantor’s
Receipt of Loan Documents. Guarantor, by its execution hereof, acknowledges receipt of true copies
of all of the Loan Documents, the terms and conditions of which are hereby incorporated herein by reference.


 


15. Interest;
Expenses.


 


(a) If
Guarantor fails to pay all or any sums due hereunder upon demand by Administrative Agent or any other Secured Party, the amount
of such sums payable by Guarantor to Administrative Agent or any other Secured Party shall bear interest from the date of demand
until paid at the Default Rate in effect from time to time. The amounts payable under this Section 15(a) are in addition
to the Guaranteed Obligations and not subject to the Guarantor Liability Cap.


 


(b) Guarantor
hereby agrees to pay all reasonable out-of-pocket costs, charges and expenses, including reasonable attorneys’ fees and disbursements,
that may be incurred by Administrative Agent or any other Secured Party in enforcing the covenants, agreements, obligations and
liabilities of Guarantor under this Guaranty. The amounts payable under this Section 15(b) are in addition to the Guaranteed
Obligations and not subject to the Guarantor Liability Cap.


 


16. Joint
and Several Obligations. If Guarantor consists of more than one Person, each such Person shall
have joint and several liability for the obligations of Guarantor hereunder.


 


17. Termination.


 


(a) Subject
to Section 4(i), this Guaranty shall terminate, and the obligations of Guarantor hereunder (except for those obligations
expressly stated to survive the payment of the Debt), shall be of no further force and effect from and after the indefeasible payment
in full in cash of the Obligations.


 


(b) Subject
to Section 4(i), this Guaranty shall terminate, and the obligations of Guarantor hereunder (except for those obligations
expressly stated to survive the payment of the Debt), shall be of no further force and effect, in the event that (i) a Guarantor-Affiliated
Lender (as defined in Section 17(c)) consummates the Guarantor Loan Purchase in accordance with Section 17(c),
or (b) from and after the Closing Date, Borrowers have deposited in the Proceeds Account cash proceeds from Permitted Equity
Issuances and/or Permitted Indebtedness in an aggregate amount greater than or equal to $25,000,000 (excluding, for the avoidance
of doubt, the proceeds from part (a) of the definition of Nov 2020 Equity Raise, which proceeds will not be credited
towards such $25,000,000; provided, however, that cash proceeds received from the exercise, after the Closing Date, of the
warrants described in part (b) of the definition of Nov 2020 Equity Raise shall, so long as such cash proceeds are deposited
in the Proceeds Account, be credited towards such $25,000,000).


 


(c) Guarantor
and/or its Affiliates (such Person, the “Guarantor-Affiliated Lender”) shall have the right at any time,
on at least ten (10) days’ prior written notice to Administrative Agent, to purchase $22,300,000 of the principal amount
of the Loans from Lenders, in accordance with this Section 17(c), in the form of a purchase/sale transaction, a co-lender
arrangement, or a participation arrangement (any of the foregoing, the “Guarantor Loan Purchase”).
If a Guarantor-Affiliated Lender exercises the Guarantor Loan Purchase option, then:


 


(i) The
purchase price for such Loans shall be in an aggregate amount equal to (A) $22,300,000, plus (B) any accrued and unpaid
interest on such principal amount, plus (C) the Guarantor Yield Maintenance Payment (as defined in Section 17(c)(iii)),
and such purchase price shall be applied proportionately to each Lender’s Pro Rata Share of the Loans.


 






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(ii) The
Guarantor Loan Purchase, if exercised, shall be consummated pursuant to one or more written agreements reasonably acceptable to
Administrative Agent, Lenders and the Guarantor-Affiliated Lender in compliance with Section 10.04 of the Loan Agreement,
and shall be expressly made without recourse, representation or warranty of any kind by Administrative Agent or any Lender as to
the Obligations owed to such Person or otherwise, except that each such Person shall represent and warrant: (A) the amount
of the Obligations being sold by it, (B) that such Person has not created any Lien on any Obligation being sold by it and
(C) that such Person has the right to assign Obligations being assigned by it and its assignment is duly authorized.


 


(iii) As
used herein, “Guarantor Yield Maintenance Payment” means, (i) if the Guarantor Loan Purchase occurs
on a date that is within six (6) months after the Closing Date, $2,022,222.20, or (ii) if the Guarantor Loan Purchase occurs
on a date that is more than six (6) months after the Closing Date, $0.


 


18. Offsets,
Counterclaims and Defenses. Guarantor hereby waives the right to assert a counterclaim, other
than a compulsory counterclaim, in any action or proceeding brought against Guarantor by Administrative Agent or any other Secured
Party, or otherwise offset any obligations to make payments required under this Guaranty. Any assignee of Administrative Agent
or any other Secured Party’s interest in and to this Guaranty shall take the same free and clear of all offsets, counterclaims
or defenses which Guarantor may otherwise have against any assignor of this Guaranty, and no such offset, counterclaim or defense
shall be interposed or asserted by Guarantor in any action or proceeding brought by any such assignee upon this Guaranty, and any
such right to interpose or assert any such offset, counterclaim or defense in any such action or proceeding is hereby expressly
waived by Guarantor.


 


19. Punitive
Damages. Guarantor hereby unconditionally and irrevocably waives, to the maximum extent not prohibited
by applicable law, any rights it may have to claim or recover against Administrative Agent or any other Secured Party in any legal
action or proceeding any special, exemplary, punitive or consequential damages.


 


20. Time
of the Essence. Time is of the essence with respect to the performance and observance by Guarantor
of each covenant, agreement, provision and term of this Guaranty.


 


21. Duplicate
Originals; Counterparts. This Guaranty may be executed in any number of duplicate originals,
and each duplicate original shall be deemed to be an original. This Guaranty (and each duplicate original) also may be executed
in any number of counterparts, each of which shall be deemed an original and all of which together constitute a fully executed
Guaranty even though all signatures do not appear on the same document. Receipt of an executed signature page to this Guaranty
by facsimile, attachment to an email or other electronic transmission (e.g., “PDF” or “TIF”) shall constitute
effective delivery thereof. The parties hereto irrevocably and unreservedly agree that this Guaranty may be executed by way of
electronic signatures and that neither this Guaranty, nor any part or provision of this Guaranty, shall be challenged or denied
any legal effect, validity and/or enforceability solely on the grounds that it is in the form of an electronic record.


 


22. Civil
Code Waivers. Guarantor expressly waives any and all benefits, rights and/or defenses
which might otherwise be available to Guarantor under California Civil Code Sections 2787 to 2855, inclusive, and 2899, 2953 and
3433.


 


23. Document
Imaging. The Administrative Agent shall be entitled, in its sole discretion, to image or make
copies of all or any selection of the agreements, instruments, documents, and items and records governing, arising from or relating
to any of Borrowers’ loans, including, without limitation, this Guaranty and the other Loan Documents, and Administrative
Agent may destroy or archive the paper originals. The parties hereto (i) waive any right to insist or require that Administrative
Agent produce paper originals, (ii) agree that such images shall be accorded the same force and effect as the paper originals,
(iii) agree that Administrative Agent is entitled to use such images in lieu of destroyed or archived originals for any purpose,
including as admissible evidence in any demand, presentment or other proceedings, and (iv) further agree that any executed facsimile
(faxed), scanned, or other imaged copy of this Guaranty or any Loan Document shall be deemed to be of the same force and effect
as the original manually executed document.


 


[Remainder of Page Intentionally Left
Blank; Signature Page Follows]


 




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IN
WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above written.


 


	 	IRG MASTER HOLDINGS, LLC,
	 	a Delaware limited liability company
	 	 
	 	By: 	/s/ Stuart Lichter
	 	 	Name:  Stuart Lichter
	 	 	Title:  President



 



	

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



 


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



 


On November 30, 2020, before me, ____________________________________,
Notary Public, personally appeared Stuart Lichter, who proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.


 


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


 


	WITNESS my hand and official seal.	(Seal)



 





 



 


[Signature Page to Recourse Guaranty]


 


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