Exhibit
10.38


 


THIS PROMISSORY
NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF
THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.


 


PROMISSORY
NOTE


 


	Principal Amount: $114,937.76	Dated as of May 14, 2020


 


Gordon Pointe Acquisition
Corp., a Delaware corporation (the “Maker”), promises to pay to the order of Gordon Pointe Management, LLC or its registered
assigns or successors in interest (the “Payee”), the principal sum of One Hundred Fourteen Thousand Nine Hundred Thirty-Seven
and 76/100 ($114,937.76) in lawful money of the United States of America, on the terms and conditions described below. All payments
on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to
such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.


 


The purpose of this
Note is to codify a loan that Gordon Pointe Management, LLC, as the Sponsor of the Maker, provided to Maker in connection with
the extension of Maker’s deadline to complete an initial merger, capital stock exchange, asset acquisition or other similar
business combination with one or more businesses or entities (a “Business Combination”) from May 14, 2020 to June 15,
2020.


 


This Note is one in
a series of Notes (collectively, the “Related Party Notes”) that may be issued from time to time by Maker to Gordon
Pointe Management, LLC or its affiliates evidencing loans to finance Maker’s working capital and/or transaction costs in
connection with a Business Combination.


 


1.
Principal. The principal balance of this Note shall be repayable on the consummation of the Maker’s initial Business
Combination. Payee understands that if a Business Combination is not consummated within the time period specified in the Maker’s
amended and restated certificate of incorporation, this Note will not be repaid and all amounts owed hereunder will be forgiven
except to the extent that the Maker has funds available to it outside of its trust account established in connection with its initial
public offering (“Trust Account”) after paying all other fees and expenses of the Maker incurred prior to the date
of such failure to so consummate a Business Combination which are due and payable.


 




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2.
Interest. No interest shall accrue on the unpaid principal balance of this Note.


 


3.
Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection
of any sum due under this Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of
any late charges and finally to the reduction of the unpaid principal balance of this Note.


 


4.
Events of Default. The following shall constitute an event of default (“Event of Default”):


 


(a)
Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5)
business days of the date specified above.


 


(b)
Voluntary Bankruptcy, Etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization,
rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or
the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts
become due, or the taking of corporate action by Maker in furtherance of any of the foregoing.


 


(c)
Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in
respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property,
or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days.


 


5.
Remedies.


 


(a)
Upon the occurrence of an Event of Default specified in Section 4(a) hereof, Payee may, by written notice to Maker, declare this
Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder,
shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.


 


(b)
Upon the occurrence of an Event of Default specified in Sections 4(b) or 4(c), the unpaid principal balance of this Note, and all
other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any
action on the part of Payee.


 




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6.
Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice
of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted
by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting
any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or
sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and
Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution
issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.


 


7.
Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default,
or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability
of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may
be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers,
guarantors, or sureties may become parties hereto without notice to Maker or affecting Maker’s liability hereunder.


 


8.
Notices. All notices, statements or other documents which are required or contemplated by this Agreement shall be: (i) in
writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or
electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party
or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic
mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such
party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered
personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one
(1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.


 


9.
Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PROVISIONS THEREOF.


 


10.
Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.


 




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11.
Trust Waiver. Payee hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the
funds held in the Trust Account and agrees it will not seek recourse against the Trust Account for any reason whatsoever, except
in the event Maker consummates a Business Combination.


 


12.
Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent
of the Maker and the Payee.


 


13.
Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto
(by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without
the required consent shall be void.


 


14.
Conversion.


 


(a)
At the Payee’s option, at any time prior to payment in full of the principal balance of this Note, the Payee may elect to
convert all or any portion of this Note into that number of warrants (the “Conversion Warrants”) equal to: (i)
the portion of the principal amount of the Note being converted pursuant to this Section 15, divided by (ii) $1.00, rounded up
to the nearest whole number; provided, however, that the total amount of principal balance of this Note, together with any other
Related Party Notes issued by the Maker, that may be converted into Conversion Warrants shall not exceed $1,500,000 in the aggregate.
Each Conversion Warrant entitles the holder thereof to purchase one share of Maker’s Class A common stock at a price of $11.50
per share, subject to adjustment. Each Conversion Warrant shall also have the same terms and conditions as the warrants issued
by the Maker pursuant to a private placement, as described in Maker’s Registration Statement on Form S-1 (333-222270) filed
with the Securities and Exchange Commission in connection with its initial public offering. The Conversion Warrants, the shares
of common stock underlying the Conversion Warrants and any other equity security of Maker issued or issuable with respect to the
foregoing by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, amalgamation,
consolidation or reorganization (the “Warrant Shares”), shall be entitled to the registration rights set forth in Section
16 hereof. 


 


(b)
Upon any complete or partial conversion of the principal amount of this Note, (i) such principal amount shall be so converted and
such converted portion of this Note shall become fully paid and satisfied, (ii) the Payee shall surrender and deliver this Note,
duly endorsed, to Maker or such other address which Maker shall designate against delivery of the Conversion Warrants, (iii) Maker
shall promptly deliver a new duly executed Note to the Payee in the principal amount that remains outstanding, if any, after any
such conversion and (iv) in exchange for all or any portion of the surrendered Note, Maker shall deliver to Payee the Conversion
Warrants, which shall bear such legends as are required, in the opinion of counsel to Maker or by any other agreement between Maker
and the Payee and applicable state and federal securities laws.


 




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(c)
The Payee shall pay any and all issue and other taxes that may be payable with respect to any issue or delivery of the Conversion
Warrants upon conversion of this Note pursuant hereto; provided, however, that the Payee shall not be obligated to pay any transfer
taxes resulting from any transfer requested by the Payee in connection with any such conversion.


 


(d)
The Conversion Warrants shall not be issued upon conversion of this Note unless such issuance and such conversion comply
with all applicable provisions of law.


 


(e) Notwithstanding the
foregoing, on September 16, 2019, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with HOF Village Newco, LLC for a business combination, which provides for the repayment of this Note in cash and/or common stock
of GPAQ Acquisition Holdings, Inc. on the terms set forth therein.


 


15.
Registration Rights.


 


(a)
Reference is made to that certain Registration Rights Agreement between the Maker and the parties thereto, dated as of January
24, 2018 (the “Registration Rights Agreement”). All capitalized terms used in this Section 16 shall have the same meanings
ascribed to them in the Registration Rights Agreement.


 


(b)
The holders (“Holders”) of the Conversion Warrants (or the Warrant Shares) shall be entitled to one Demand Registration,
which shall be subject to the same provisions as set forth in Section 2.1 of the Registration Rights Agreement.


 


(c)
The Holders shall also be entitled to include the Conversion Warrants (or the Warrant Shares) in Piggyback Registrations, which
shall be subject to the same provisions as set forth in Section 2.2 of the Registration Rights Agreement; provided, however, that
in the event that an underwriter advises the Maker that the Maximum Number of Securities has been exceeded with respect to a Piggyback
Registration, the Holders shall not have any priority for inclusion in such Piggyback Registration.


 


(d)
Except as set forth above, the Holders and the Maker, as applicable, shall have all of the same rights, duties and obligations
set forth in the Registration Rights Agreement.


 


[Signature page follows]


 




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IN WITNESS WHEREOF,
Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year
first above written.


  


	 	GORDON POINTE ACQUISITION CORP.
	 	 	 
	 	By:	/s/ Douglas L. Hein
	 	 	Douglas L. Hein, Chief Financial Officer


 


 


Acknowledged and Agreed to 


as of the date first written above.


 


GORDON POINTE MANAGEMENT, LLC


 


	By:	/s/ James J. Dolan	 
	 	James J. Dolan, Managing Member	 


 


 


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