Exhibit 10.5


 


CREDIT AGREEMENT


(TERM FACILITY)


 


between


 


Ark RESTAURANTS
CORP.


 


and


 


bank hapoalim
b.m.


 


dated as of


 


October 21, 2015



    	 



    	



    

CREDIT AGREEMENT


(TERM
FACILITY)


 


Dated as of: October
21, 2015


 


THIS CREDIT AGREEMENT
(TERM FACILITY) is made and entered into as of the date set forth above by and between ARK RESTAURANTS CORP., a New
York corporation (“Borrower”), and BANK HAPOALIM B.M. (“Bank”). For good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Borrower and Bank hereby agree as follows:


 


§1. TERMINOLOGY
AND INTERPRETATION.


 


§1.1 Definitions
of Capitalized Terms. When used herein, each capitalized term listed below shall have the meaning indicated below:


 


“Advance”
shall mean a loan in the amount of $5,000,000.00 made by Bank to Borrower in a single disbursement under or pursuant to this Agreement.


 


“Agreement”
shall mean this Credit Agreement, as amended from time to time.


 


“Agreement Date”
shall mean the date as of which this Agreement is dated.


 


“Applicable Law”
shall mean (a) all applicable common law and principles of equity and (b) all applicable provisions of all (i) constitutions,
statutes, rules, regulations and orders of Governmental Authorities, (ii) Governmental Approvals and (iii) orders, decisions,
judgments and decrees of all courts and arbitrators.


 


“Ark Island”
means Ark Island Beach Resort, LLC.


 


“Ark Island Collateral”
shall mean all of Ark Island’s tangible and intangible personal property (including accounts, inventory, equipment, general
intangibles, documents, chattel paper, instruments, letter-of-credit rights, investment property, Intellectual Property and deposit
accounts) and fixtures, whether now owned or hereafter acquired, whether now existing or hereafter created or arising and wherever
located, including, but not limited to, all of the personal property and fixtures acquired by Ark Island pursuant to the Ark Island
Purchase Agreement.


 


“Ark Island Purchase
Agreement” means that certain Purchase Agreement dated as of August 10, 2015 by and between Ark Island and Island Beach
Resort, Inc., a Florida corporation, as amended from time to time.


 


“Ark Island Security
Agreement” shall have the meaning given that term in §5.1.


 


“Ark Real Estate”
shall mean Ark Shuckers Real Estate, LLC, a Delaware limited liability company.


 


“Ark Real Estate
Collateral” shall mean all of Ark Real Estate’s right, title and interest in and to the Units, all equipment and fixtures
at any time located thereon or therein, all other personal property located thereon or therein or used in connection therewith
and such other



    	 



    	



    


related collateral as
Bank may require, whether now owned or hereafter acquired, whether now existing or hereafter created or arising.


 


“Ark Real Estate
Purchase Agreement” shall mean that certain Commercial Contract and all Addendums thereto by and between Ark Real Estate
and D.C. Holding Company, Inc., a Florida corporation, as amended from time to time.


 


“Ark Shuckers”
means Ark Shuckers, LLC, a Delaware limited liability company.


 


“Ark Shuckers
Collateral” shall mean all of Ark Shuckers’ tangible and intangible personal property (including accounts, inventory,
equipment, general intangibles, documents, chattel paper, instruments, letter-of-credit rights, investment property, Intellectual
Property and deposit accounts) and fixtures, whether now owned or hereafter acquired, whether now existing or hereafter created
or arising and wheresoever located, including, but not limited to all of the personal property and fixtures acquired by Ark Shuckers
pursuant to the Ark Shuckers Purchase Agreement.


 


“Ark Shuckers
Purchase Agreement” shall mean that certain Restaurant Asset Purchase Agreement dated as of August 10, 2015 by and between
Ark Shuckers and Ocean Enterprises, Inc., a Florida corporation, as amended from time to time.


 


“Ark Shuckers
Security Agreement” shall have the meaning given that term in §5.1.


 


“Authorized Representative”
shall mean any of Borrower’s President, its Chief Executive Officer, or its Chief Financial Officer, or any other Person
expressly designated by the Board of Directors of Borrower (or the appropriate committee thereof) as an Authorized Representative,
as set forth from time to time in a certificate in a form provided or approved by Bank.


 


“Beginning Cash
on Hand” shall mean with respect at any time period, Borrower’s and the Subsidiaries’ cash on hand at the beginning
of that period.


 


“Borrower Collateral”
shall mean all of Borrower’s tangible and intangible personal property (including accounts, inventory, equipment, general
intangibles, documents, chattel paper, instruments, letter-of-credit rights, investment property, Intellectual Property and deposit
accounts) and fixtures, whether now owned or hereafter acquired, whether now existing or hereafter created or arising and wherever
located.


 


“Borrower Amended
and Restated Security Agreement” shall have the meaning given that term in §5.1.


 


“Borrower Security
Agreement” shall mean that certain Security Agreement dated as of February 25, 2013, made by Borrower in favor of Bank,
as amended by that certain Assumption Agreement dated April 22, 2013, made by Rio in favor of Bank, by that certain Assumption
Agreement dated August 16, 2013, made by AC in favor of Bank, by Modification of Security Agreement dated as of February 24, 2014,
by and among Borrower, Rio, AC and Bank, by that certain Supplement to Letter Agreement and Security Agreement dated in December,
2014, by and among Borrower, Rio, AC, Las Vegas and Bank.


 


“Borrowing Account”
shall mean a demand deposit account established by Borrower with Bank (or any substitute account established by Borrower with
Bank).



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“Business Day”
means any day on which both (a) banks are regularly open for business in New York, New York and (b) Bank’s office in New
York, New York is open for ordinary business.


 


“Capital Securities”
shall mean, with respect to a Subsidiary, the shares of stock, membership interests or equity interest in that Subsidiary.


 


“Cash Management
Agreement” shall mean any agreement between Borrower and Bank or any agreement between any Subsidiary and Bank pursuant
to which Bank agrees to provide cash management services, including treasury, depository, overdraft, bank card products, electronic
funds transfer or other cash management arrangements.


 


“Change of Control”
shall mean when any “person” or “group” (each as used in §§13(d)(3) and 14(d)(2) of the Securities
Exchange Act of 1934) other than the present controlling group either (i) becomes the “beneficial owner” (as defined
in Rule 13d-3 of the Securities Exchange Act of 1934), directly or indirectly, of Voting Securities of Borrower or any Subsidiary
(or securities convertible into or exchangeable for such Voting Securities) representing more than 50 percent of the combined
voting power of all Voting Securities of Borrower or any Subsidiary or (ii) otherwise attains the ability, through an express
contractual arrangement, to elect a majority of the board of directors of Borrower or the board of directors of any Subsidiary
that is a corporation or the manager or managing member of any Subsidiary that is a limited liability company.


 


“Collateral”
shall mean the Borrower Collateral, the Ark Island Collateral, the Ark Real Estate Collateral and the Ark Shuckers Collateral,
collectively.


 


“Commercial Units”
shall mean the condominium parcels identified as Units C1, C2, C3 and C4 on Exhibit A attached hereto.


 


“Consistent Basis”
shall mean, in reference to GAAP, that the accounting principles observed in such period are comparable in all material respects
to those applied in the preparation of the audited financial statements of Borrower referred to in §9(a).


 


“Controlled by
Borrower” shall mean, with respect to a corporation or limited liability company, that Borrower has the power to elect or
appoint a majority of such corporation’s directors or such limited liability company’s managers.


 


“Contract”
shall mean an indenture, agreement (other than this Agreement and any other Credit Document), other contractual restriction, lease
or instrument (other than the Note).


 


“Copyright”
shall mean any of the following: any copyright or general intangible of like nature (whether registered or unregistered), any
registration or recording thereof, and any application in connection therewith, including any registration, recording and application
in the United States Copyright Office or in any similar office or agency of the United States, any state or territory thereof,
or any other country or any political subdivision thereof.


 


“CPLD” shall
mean, for any period, the portion of Borrower’s and the Subsidiaries’ long-term debt which becomes due and payable
during that period.


 


“Credit Documents”
shall mean this Agreement, the Note, the Mortgage, the Security Agreements, the Environmental Indemnity, any Cash Management Agreement,
and any other



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documents at any time
delivered by an Obligor or Obligors to Bank in connection with this Agreement, all as amended or restated from time to time.


 


“Credit Facility”
shall mean the term loan to Borrower under or pursuant to this Agreement effectuated by the Advance.


 


“Debt” shall
mean any of the following: (i) indebtedness or liability for borrowed money, (ii) obligations evidenced by bonds, notes, or other
similar instruments, (iii) obligations for the deferred purchase price of property (excluding trade obligations incurred in the
ordinary course of Borrower’s business), (iv) obligations as lessee under capital leases, (v) current liabilities in respect
of unfunded vested benefits under plans covered by the Employee Retirement Income Security Act of 1974, as amended, (vi) obligations
under letters of credit or acceptance facilities, (vii) guarantees, endorsements (other than for collection or deposit in the
ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, or otherwise to assure
creditors against loss, and (viii) obligations secured by any mortgage, lien, pledge or security interest or other charge or encumbrance
on property, whether or not the obligations have been assumed.


 


“Default”
shall mean any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived (or, in the case of a judgment, action or proceeding, dismissed), become an Event of Default.


 


“Default Rate”
shall mean a per annum rate equal to 2.00 percent above the interest rate otherwise applicable to Advances hereunder from time
to time.


 


“Distributions”
shall mean dividends or other distributions made by Borrower to its shareholders.


 


“Dollars”
and “$” shall mean lawful money of the United States of America.


 


“EBITDA”
shall mean, for any Fiscal Period, the sum of (a) the amount of Net Income for that Fiscal Period, plus (b) the amount of Interest
Expense for that Fiscal Period (to the extent taken into account in computing that Net Income), plus (c) the amount of Income
Taxes accrued during that Fiscal Period (to the extent taken into account in computing that Net Income), plus (d) the amount of
Borrower’s depreciation accrued during that Fiscal Period (to the extent taken into account in computing that Net Income)
determined on a consolidated basis, plus (e) the amount of Borrower’s amortization accrued during that Fiscal Period (to
the extent taken into account in computing that Net Income), determined on a consolidated basis.


 


“Employee Benefit
Plan” shall mean any employee benefit plan within the meaning of Section 3(3) of ERISA which (i) is maintained for employees
of Borrower or any of its ERISA Affiliates or is assumed by Borrower or any of its ERISA Affiliates in connection with any Acquisition
or (ii) has at any time been maintained for the employees of Borrower or any current or former ERISA Affiliate.


 


“Environmental
Indemnity” shall have the meaning given to that term in §5.1.


 


“Environmental
Law” shall mean any federal, state or local statute, law, ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct concerning, any environmental matters, conditions, protection
or conservation, including without limitation, the Comprehensive Environmental Response,



    	-4-



    	



    

Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization Act of 1986, as amended; the Resource Conservation and Recovery
Act, as amended; the Toxic Substances Control Act, as amended; the Clean Air Act, as amended; the Clean Water Act, as amended;
together with all regulations promulgated thereunder, and any other “Superfund” or “Superlien” law.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as in effect from time to time.


 


“ERISA Affiliate”,
shall mean, with respect to Borrower, any Person or trade or business which is a member of a group which is under common control
with Borrower, and which, together with Borrower, is treated as a single employer within the meaning of Section 414(b) and (c)
of the Code.


 


“Equity Certificates”
shall mean, with respect to any Subsidiary, the shares of stock in, or other certificates evidencing ownership of an equity interest
in, that Subsidiary.


 


“Event of Default”
shall have the meaning given that term in §10.1.


 


“Existing Term
Note” shall mean that certain Amended and Restated Promissory Note, dated February 24, 2014, made by Borrower to Bank’s
order in the face principal amount of $8,083,333.37, and any modification, renewal or consolidation thereof or substitution therefor.


 


“Expired Building
Permit” shall mean Permit No. 0507-0346 issued by the County of St. Lucie, Florida.


 


“Fiscal Period”
shall mean each quarterly period consisting of three (3) successive calendar months of each Fiscal Year, the first of such quarterly
periods beginning on the first day of the first calendar month of each Fiscal Year, the second of such quarterly periods beginning
on the first day of the fourth calendar month of each Fiscal Year, the third of such quarterly periods beginning on the first
day of the seventh calendar month of each Fiscal Year, and the fourth of such quarterly periods beginning on the first day of
the tenth calendar month of such Fiscal Year.


 


“Fiscal Year”
shall mean each 52-week period ending on or around September 30.


 


“Fixed Charge
Coverage Ratio” shall mean, with respect to any Fiscal Period, the ratio of (a) EBITDA for that Fiscal Period, plus the
amount of Beginning Cash On Hand for that Fiscal Period, less the amount of Unfinanced CAPEX for that Fiscal Period, divided by
(b) the amount of Fixed Charges for that Fiscal Period.


 


“Fixed Charges”
shall mean, for any Fiscal Period, the sum of (a) the amount of Interest Expense for that Fiscal Period, plus (b) the amount of
CPLD for that Fiscal Period, plus (c) the amount of Distributions made during that Fiscal Period, plus (d) the amount of Income
Taxes accrued during that Fiscal Period.


 


“GAAP” shall
mean accounting principles that are consistent with the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors, as in effect in the United States from time to time.



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“Governmental
Approval” shall mean an authorization, consent, approval, license or exemption of, registration or filing with, or report
or notice to, any Governmental Authority, including, without limitation, any such approval required under ERISA or by the PBGC.


 


“Governmental
Authority” shall mean any Federal, state, municipal, national or other governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated
with the United States of America, a state thereof, or a foreign entity or government.


 


“Hazardous Material”
shall mean any pollutant, contaminant or hazardous, toxic or dangerous waste, substance or material (including without limitation
petroleum products, asbestos-containing materials and lead) the generation, handling, storage, transportation, disposal, treatment,
release, discharge or emission of which is subject to any Environmental Law.


 


“Income Taxes”
shall mean income and franchise taxes owed by Borrower or any of the Subsidiaries.


 


“Information”
shall mean written data, services, reports, statements (including, but not limited to, financial statements delivered pursuant
to or referred to in §9.1), opinions of counsel, documents and other written information, whether, in the case of any such
in writing, it was prepared by Borrower or any other Person on behalf of Borrower and delivered by Borrower to Bank.


 


“Intangible Assets”
shall mean those assets of Borrower which are: (a) Intellectual Property and other similar assets which would be classified as
intangible assets on a balance sheet of Borrower prepared in accordance with GAAP, (b) unamortized debt, discount and expense
and (c) assets located outside of the United States.


 


“Intellectual
Property” shall mean all licenses, Patents, Copyrights, Trademarks, trade names and customer lists in which Borrower has
any interest and all technology, know-how and processes relating to any inventory of Borrower.


 


“Interest Periods”
shall mean with respect to the Advance successive periods of one month each, the first of which begins on the date of the Advance
and each subsequent one of which begins when the previous one ends.


 


“Interest Expense”
shall mean, for any Fiscal Period, Borrower’s and the Subsidiaries’ total interest expense for that Fiscal Period,
whether paid or accrued (including the interest component of capital leases), determined on a consolidated basis in accordance
with GAAP (but specifically excluding intercompany interest expense incurred by Borrower or any of its Subsidiaries).


 


“Las Vegas”
shall mean Ark Las Vegas Restaurant Corp., a Nevada corporation.


 


“Lease”
shall have the meaning given to that term in §5.1.


 


“LIBOR Rate”
shall mean, with respect to any Interest Period, the per annum rate of interest (carried out to the fifth decimal if available)
equal to the rate determined by Bank to be



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the offered rate on a
page or service (whether provided by Bridge Telerate, Reuters, Bloomberg, Global-Rates.com or another comparable internationally
recognized service selected by Bank) that displays an average ICE Benchmark Administration Limited Interest Settlement Rate for
deposits in Dollars (for delivery on the first Working Day of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Working Days prior to the first Working Day of such Interest Period.
At Borrower’s request, Bank shall provide Borrower with identifying information with respect to the page of service so used
by Bank. If Bank determines that the rate referred to in the first sentence of this paragraph is not available, then “LIBOR”
shall mean, with respect to any Interest Period, the rate determined by Bank (a) on the basis of the offered rates and deposits
in Dollars for the term equivalent to such Interest Period which were offered by four major banks selected by Bank in the London
interbank market at approximately 11:00 a.m. (London time) on the Working Day that is two Working Days prior to the first Working
Day of such Interest Period or (b) by applying such other recognized source of London Eurocurrency deposit rates as Bank may select
from time to time. If the reporting service used by Bank refers to 30 days rather than one month, references in this definition
to one month shall be read as references to 30 days.


 


“Lien” shall
mean, with respect to any Obligor, any lien, security interest or other charge or encumbrance upon or with respect to any properties
or assets of such Obligor, other than the Real Property Assets, excluding liens existing as of the date of this Agreement in an
amount less than $1,000.00 in any one instance and less than $5,000.00 in the aggregate and listed in the judgment, tax lien and
litigation search results for Borrower delivered to Bank prior to the date of this Agreement.


 


“Margin”
shall mean 3.50 percent per annum.


 


“Material Adverse
Effect” shall mean any material and adverse effect (whether occasioned by one or a number of concurrent events) upon (a)
one or more Obligors’ assets, business operations, properties or condition, financial or otherwise or (b) the ability of
Borrower to make payment as and when due of all or any part of the Obligations.


 


“Material Management
Change” shall mean any material change in Borrower’s Authorized Representatives or in the president, chief executive
officer, chief financial officer, manager or managing member of any Subsidiary which Bank judges to be material.


 


“Maturity”
shall mean that date which is five (5) years after the date of this Agreement.


 


“Mortgage”
shall have the meaning given that term in §5.1.


 


“Net Income”
shall mean, for any Fiscal Period, the net income (loss) of Borrower and the Subsidiaries (inclusive of net income attributable
to non-controlling interests) for such Fiscal Period, determined on a consolidated basis in conformity with GAAP.


 


“Net Income Attributable
to Borrower and Subsidiaries” shall mean, for any Fiscal Period, the net income (loss) of Borrower and Subsidiaries (exclusive
of net income attributable to non-controlling interests) for such Fiscal Period determined in conformity with GAAP.


 


“Note” shall
mean the Term Promissory Note, of even date herewith, made by Borrower to Bank’s order in the face principal amount of $5,000,000.00
and any modification, renewal or consolidation thereof or substitution therefor.



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“Obligations”
shall mean all indebtedness, liabilities, obligations and duties of Borrower to Bank arising under or in connection with this
Agreement, the Note or any other Credit Documents, or under or in connection with any Cash Management Agreement, direct or indirect,
absolute or contingent, due or not due, in contract or tort, liquidated or unliquidated, arising by operation of law or otherwise,
now existing or hereafter arising, and whether or not for the payment of money or the performance or non-performance of any act,
including, but not limited to, all actual damages which Borrower may owe to Bank by reason of any breach by Borrower of any Representation
and Warranty, covenant, agreement or other provision of this Agreement or any of the other Credit Documents.


 


“Obligors”
shall mean Borrower, Ark Real Estate, Ark Island and Ark Shuckers.


 


“PBGC” shall
mean the Pension Benefit Guaranty Corporation.


 


“Parking Agreement”
shall mean that certain Parking Agreement dated as of December 1, 2014 by and between Robert Rigel, individually and as trustee
and D.C. Holdings, Inc., as assigned to Ark Real Estate.


 


“Patent”
shall mean any of the following: (a) patents and letters patent of the United States or any other country, and all registrations
and recordings thereof and applications therefor, including registrations, recordings and applications in the United States Patent
and Trademark Office or in any similar office or agency of the United States, any state or territory thereof, or any other country,
and (b) all reissues, continuations or extensions of any of the foregoing.


 


“Payment Address”
shall mean Bank’s offices at 1177 Avenue of the Americas, New York, New York 10036-2790, provided that, if Bank notifies
Borrower of another address for payments hereunder to be made to Bank, it shall mean such other address.


 


“Pension Plan”
shall mean any employee pension benefit plan within the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan, which
is subject to the provisions of Title IV or ERISA or Section 412 of the Code and which (i) is maintained for employees of Borrower
or any of its ERISA Affiliates or is assumed by Borrower or any of its ERISA Affiliates in connection with any Acquisition or
(ii) has at any time been maintained for the employees of Borrower or any current or former ERISA Affiliate.


 


“Permitted Liens”
shall have the meaning given that term in §7.4.


 


“Person”
shall mean an individual, corporation, partnership, limited liability company, trust or unincorporated organization or a government
or any agency or political subdivision thereof.


 


“Prime Rate”
shall mean the Prime Rate as quoted or otherwise established by Bank from time to time (or, if Bank fails or ceases to quote or
otherwise establish a Prime Rate, a comparable index selected by Bank) (the Prime Rate is purely a discretionary benchmark and
is not necessarily the lowest or most favorable rate at which Bank extends credit to its customers).


 


“Prohibited Transaction”
shall mean a transaction that is prohibited under Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.



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“Property Management
Assets” shall mean the personal property and fixtures to be purchased by Ark Island pursuant to the Ark Island Purchase
Agreement.


 


“Rate Hedging
Obligations” shall mean any and all obligations and liabilities of Borrower to Bank, whether absolute or contingent and
however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements, devices or arrangements designed to protect at least one of the parties
thereto from the fluctuations of interest rates, exchange rates or forward rates applicable to such party’s assets, liabilities
or exchange transactions, including but not limited to Dollar-denominated or cross-currency interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate
options, puts, warrants and those commonly known as interest rate “swap” agreements; and (ii) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the foregoing.


 


“Real Property
Assets” shall mean the real property and personal property purchased by Ark Real Estate pursuant to the Ark Real Estate
Purchase Agreement.


 


“Representation
and Warranty” shall mean each representation and/or warranty made by Borrower pursuant to or under (a) §6 or any other
provision of this Agreement or any other Credit Document, (b) any amendment of or waiver or consent under this Agreement, (c)
any Schedule to this Agreement or any such amendment, waiver or consent, or (d) any statement contained in any certificate, financial
statement, or other instrument or document delivered by or on behalf of Borrower pursuant to any Credit Document, whether or not
(except as expressly provided to the contrary herein), in the case of any representation or warranty referred to in clause (a),
(b), (c) or (d) of this definition, the information that is the subject matter thereof is within the knowledge of Borrower.


 


“Residential Units”
shall mean the condominium parcels identified as Apartments Nos. 111 and 201 on Exhibit A attached hereto.


 


“Restaurant Assets”
shall mean the personal property and fixtures purchased by Ark Shuckers pursuant to the Ark Shuckers Purchase Agreement.


 


“Revolving Credit
Agreement” shall mean that certain Credit Agreement (Revolving Facility) dated on or about the date hereof, by and between
Borrower and Bank, as amended or restated from time to time.


 


“Revolving Note”
shall mean the Revolving Promissory Note, of even date herewith, made by Borrower to Bank’s order in the face principal
amount of $10,000,000.00 and any modification, renewal or consolidation thereof and substitution therefor.


 


“Security Agreements”
shall mean the Borrower Security Agreement, the Ark Island Security Agreement and the Ark Shuckers Security Agreement.


 


“Single Employer
Plan” shall mean any employee pension benefit plan covered by Title IV of ERISA in respect of which Borrower or any Subsidiary
is an “employer” as described in Section 4001(b) of ERISA and which is not a Multiemployer Plan.


 


“Solvent”
shall mean, when used with respect to any Person, that at the time of determination: (a) the fair value of its assets (both at
fair valuation and at present fair saleable



    	-9-



    	



    

value on an orderly basis)
is in excess of the total amount of its liabilities, including contingent Obligations; (b) it is then able and expects to be able
to pay its debts as they mature; and (c) it has capital (after taking into account proceeds available under this Agreement) sufficient
to carry on its business as conducted and as proposed to be conducted.


 


“Subsidiary”
shall mean any corporation or limited liability company 50 percent or more of the outstanding Voting Securities of which or 50
percent or more of all the equity interests of which are owned directly or indirectly by Borrower and/or by one or more Subsidiaries
or which is otherwise Controlled by Borrower, including, but not limited to, Ark Real Estate, Ark Shuckers and Ark Island.


 


“Tangible Net
Worth” shall mean, at any date of determination, Borrower’s assets minus Borrower’s Intangible Assets
and minus Borrower’s direct (not contingent) liabilities and minus Borrower’s non-controlling interests,
all determined in conformity with GAAP by Bank in its sole discretion based upon Bank’s review of the statements described
in §9.1(a).


 


“Tax” shall
mean any federal, state or foreign tax, assessment or other governmental charge or levy (including any withholding tax) upon a
Person or upon its assets, revenues, income or profits other than income and franchise taxes imposed upon Bank by the federal
government or the State of Florida (or any political subdivision thereof).


 


“Termination Event”
shall mean: (i) a “Reportable Event” described in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or (ii) the withdrawal of Borrower or any ERISA Affiliate from
a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA
or was deemed such under Section 4068(f) of ERISA; or (iii) the termination of a Pension Plan, the filing of a notice of intent
to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination under Section 4041 of ERISA; or (iv)
the institution of proceedings to terminate a Pension Plan by the PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;
or (vi) the partial or complete withdrawal of Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the imposition
of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA; or (viii) any event or condition which results in the reorganization
or insolvency of a Multiemployer Plan under Section 4241 or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings
to terminate a Multiemployer Plan under Section 4042 of ERISA.


 


“Term Note”
shall have the meaning given that term in the Revolving Credit Agreement.


 


“Trademark”
shall mean any of the following: (a) trademarks, trade names, corporate names, business names, trade styles, service marks, logos,
other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general
intangibles of like nature (whether registered or unregistered), now owned or existing or hereafter adopted or acquired, all registrations
and recordings thereof, and all applications in connection therewith, including registrations, recordings and applications in
the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof; and (b) all reissues, extensions or renewals thereof.



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“Treasury Obligation”
shall mean a note, bill or bond issued by the United States Treasury Department as a full faith and credit general obligation
of the United States.


 


“Unfinanced CAPEX”
shall mean, with respect to any Fiscal Period, Borrower’s capital expenditures for that Fiscal Period that were paid by
Borrower or a Subsidiary from cash flow and not through financing.


 


“Units”
shall mean the condominium parcels described on Exhibit A attached hereto and made a part hereof.


 


“Voting Securities”
shall mean, with respect to any Person, Capital Securities of such Person entitling the holder thereof to vote in the election
of directors or managers of such Person.


 


“Working Day”
shall mean a Business Day on which most banks are open for ordinary business in London.


 


§1.2 Other
Definitional and Interpretive Provisions.


 


(a) When used in
this Agreement, “herein,” “hereof” and “hereunder” and words of similar import shall refer
to this Agreement as a whole and not to any particular section or subsection of this Agreement, and “Section” (and/or
“§”) or “subsection” and “Schedule” and “Exhibit” shall refer to sections
and subsections of, and Schedules and Exhibits to, this Agreement unless otherwise specified.


 


(b) Whenever the
context so requires, when used in this Agreement the neuter gender shall include the masculine or feminine, and the singular number
shall include the plural, and vice versa.


 


(c) In this Agreement,
in the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including” and the words “to” and “until” each means “to but excluding.”


 


(d) The words “includes”
and “including” when used herein are not limiting.


 


(e) When used herein,
unless specifically provided herein otherwise, the phrase “acceptable to Bank” or “satisfactory to Bank”
shall mean “acceptable and satisfactory to Bank in its reasonable discretion.”


 


§1.3 Accounting
Terms and Matters. Unless the context otherwise requires, all accounting terms herein (including capitalized terms) that are
not specifically defined herein shall be interpreted and determined under GAAP applied on a Consistent Basis. Unless otherwise
specified herein, all accounting determinations hereunder and all computations utilized by Borrower in complying with the covenants
contained herein shall be made, and all financial statements requested to be delivered hereunder shall be prepared, in accordance
with GAAP applied on a Consistent Basis.


 


§1.4 Representations
and Warranties. All Representations and Warranties shall be made at and as of the Agreement Date, at and as of the time of
the Advance, and, in addition, in the case of any particular Representation and Warranty, at such other time or times as such
Representation and Warranty is made or deemed made in accordance with the



    	-11-



    	



    

provisions of this Agreement
or the document pursuant to, under, or in connection with which such Representation and Warranty is made or deemed made, except
to the extent that any such Representation or Warranty expressly states that it relates to a different specified date.


 


§1.5 Captions. Section and subsection captions in this Agreement are included for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.


 


§1.6 Neutral
Interpretation. This Agreement and each other Credit Document has been thoroughly reviewed by Obligors’ counsel. No
provision of this Agreement or other Credit Document shall be construed less favorably to Bank because it was drafted by Bank’s
counsel.


 


§1.7 Severability,
Conflicts, Etc. Any provision of any Credit Document 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 or affecting the validity or enforceability of such provision in any other jurisdiction. It is the intention of the parties
to this Agreement that if any provision of any Credit Document is capable of two constructions, one of which would render the
provision void and the other of which would render the provision valid, the provision shall have the meaning which renders it
valid.


 


§2. COMMITMENT;
PURPOSE; AND AVAILABILITY.


 


§2.1 Commitment
for Advance. Bank agrees, upon and subject to the terms and conditions hereinafter set forth, to make the Advance.


 


§2.2 Use
of Advance. The Advance shall be deposited in the Borrower Account. Borrower shall then use the funds thus deposited to pay
closing costs associated with the closing of the Credit Facility and to contribute funds to Ark Real Estate to be used by Ark
Real Estate to purchase the Real Property Assets pursuant to the Ark Real Estate Purchase Agreement, to Ark Shuckers to be used
by Ark Shuckers to purchase the Restaurant Assets pursuant to the Ark Shuckers Purchase Agreement, and to Ark Island to be used
by Ark Island to purchase the Property Management Assets pursuant to the Ark Island Purchase Agreement. Borrower shall ensure
that the funds thus contributed are used by Ark Real Estate, Ark Shuckers and Ark Island for the purposes specified herein. Borrower
may request that the portion of the Advance constituting contributions of funds to Ark Real Estate, Ark Shuckers and Ark Island
be advanced directly to Ark Real Estate, Ark Shuckers and Ark Island to facilitate the closing on the purchase of the Real Estate
Assets, the Restaurant Assets and the Property Management Assets. Borrower represents and warrants to Bank that notwithstanding
any advance of any portion of the Advance by Bank directly to Ark Real Estate, Ark Shuckers and/or Ark Island, if Bank elects
to do so, Borrower shall be deemed to have received that portion of the proceeds of the Advance made directly to Ark Real Estate,
Ark Shuckers and/or Ark Island and that such portion of the proceeds of the Advance shall be evidenced by and shall constitute
outstanding principal under the Note for all purposes of the Note and this Agreement.


 


§3. PAYMENT
TERMS.


 


§3.1 Interest
Rates and Payments. (a) Interest shall accrue on the outstanding principal amount of the Advance, during each Interest Period,
at a per annum rate equal to the sum of (a) the Margin plus (b) the LIBOR Rate for that Interest Period. Borrower shall pay



    	-12-



    	



    

accrued interest on the
Advance on the last day of each Interest Period, and at Maturity (and, in the case of interest accruing after Maturity, on demand).
Notwithstanding the foregoing, after Maturity and, if Bank elects, while an Event of Default exists prior to Maturity, interest
shall accrue on the outstanding principal amount of the Advance at a per annum rate equal to the Default Rate.


 


(b) If any present
or future law, governmental rule, regulation, policy, guideline, directive or similar requirement (whether or not having the force
of law) imposes, modifies, or deems applicable any capital adequacy, capital maintenance or similar requirement which affects
the manner in which Bank allocates capital resources to its commitments (including any commitments hereunder), and as a result
thereof, in the reasonable opinion of Bank, the rate of return on Bank’s capital with regard to the Advance is reduced to
a level below that which Bank could have achieved but for such circumstances, then in such case and upon notice from Bank to Borrower,
from time to time, Borrower shall pay to Bank such additional amount or amounts as shall compensate Bank for such reduction in
Bank’s rate of return. Such notice shall contain the statement of Bank with regard to any such amount or amounts, which
shall, in the absence of manifest error, be binding upon Borrower. In determining such amount, Bank may use any reasonable method
of averaging and attribution that it deems applicable. For the avoidance of doubt, the foregoing provisions shall apply to all
requests, rules, guidelines or directives concerning capital adequacy issued in connection with the Dodd−Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives concerning capital adequacy
promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or
any successor or similar authority) or the United States financial regulatory authorities, regardless of the date adopted, issued,
promulgated or implemented.


 


(c) If at any time
Bank, in the reasonable exercise of its discretion, determines that for any period (i) Dollar deposits for the applicable Interest
Period are not available to Bank in the London interbank market, (ii) the LIBOR Rate does not reflect the cost to Bank of maintaining
the Advance, (iii) any change in financial, political or economic conditions or the currency exchange rates makes it impractical
for Bank to accrue interest on the Advance at a rate based upon the LIBOR Rate, or (iv) any change in Applicable Law makes it
unlawful for Bank to accrue interest on the Advance at a rate based upon LIBOR Rate, and so notifies Borrower, thereafter the
outstanding principal amount of the Advance shall, prior to its maturity, bear interest during that period at a per annum rate
equal to 0.50 percent above the Prime Rate, with the rate changing simultaneously with each change in the Prime Rate.


 


(d) If the adoption
of or any change in any applicable law or regulation or in the interpretation or application thereof or compliance by Bank with
any request or directive (whether or not having the force of law) from any central bank or other governmental authority made subsequent
to the date hereof, shall (a) subject Bank to any tax of any kind whatsoever with respect to the Advance, or change the basis
of taxation of payments in respect thereof (except for changes in the rate of tax on the overall net income of Bank), (b) impose,
modify, or hold applicable, any reserve, special deposit, compulsory loan, or similar requirement against assets held by, deposits
or other liabilities in, or for the account of, advances, loans, or other extension of credit (including participations therein)
by, or any other acquisition of funds by, any office of Bank which is not otherwise included in the determination of the LIBOR
Rate hereunder, or (c) shall impose on Bank any other condition, in each case to the extent imposed on lenders generally; and
the result of any of the foregoing is to materially increase the cost to Bank of making or maintaining the Advance, or to reduce
any amount receivable hereunder,



    	-13-



    	



    

then, in any such case,
Borrower shall promptly pay to Bank, upon its demand (a copy of which demand shall also be delivered to Bank), any additional
amounts necessary to compensate Bank for such additional costs or reduced amount receivable which Bank reasonably deems to be
material as determined by Bank. A certificate as to any additional amounts payable pursuant to this paragraph submitted by Bank
to Borrower shall be presumptive evidence of such amounts owing (absent manifest error).


 


§3.2 Principal
and Other Payments.


 


(a) Regular Installments.
Borrower shall repay the principal of the Advance as follows: on the last day of each Interest Period, Borrower shall make to
Bank a principal payment in an amount equal to $83,333.00; provided that on Maturity, Borrower shall repay to Bank the entire
then unpaid principal of the Advance. Principal of the Advance that is repaid may not be re-borrowed.


 


(b) Prepayments.
Borrower may on any Business Day prepay the principal amount of the Advance in whole or in part provided, however, that (a) Borrower
gives Bank at least 2 Business Days prior written notice of such prepayment specifying the date of prepayment and the principal
amount to be prepaid, (b) each such partial prepayment shall be in an integral amount of $100,000.00, and (c) in no event shall
any such prepayment be made on any day other than the last day of the Interest Period unless Borrower pays to Bank with the prepayment
all amounts due and owing under §3.2(d) with respect to the prepayment. No prepayment of the Advance shall result in a deferral
or reduction of scheduled principal payments with respect to the Advance unless and until the Advance is repaid in full.


 


(c) Breakage Costs.
Concurrently with any prepayment of the Advance made on other than the last day of an Interest Period, Borrower shall pay to Bank
the following amount: the excess, if any, of (a) the amount of interest which would have accrued on the amount prepaid during
the period from the date of such prepayment to the last day of that Interest Period at the applicable interest rate provided for
herein over (b) the amount of interest (as reasonably determined by Bank) which would have accrued to the holder of a Treasury
Obligation selected by Bank in the amount (or as close to such amount as feasible) of the amount prepaid and having a maturity
date on (or as soon after as feasible) the last day of that Interest Period, would earn if the Treasury Obligation were purchased
in the secondary market on the date the prepayment is made to Bank and were held to maturity. Borrower agrees that the aforedescribed
amount shall be based on amounts which a holder of a Treasury Obligation would receive under the foregoing circumstances, whether
or not Bank actually invests the amount prepaid in any Treasury Obligation. Borrower acknowledges that determining the actual
amount of costs and expenses resulting from a prepayment on other than the last day of an Interest Period may be difficult or
impossible to determine in an specific instance and that, accordingly, the amount set forth above is a reasonable estimate of
such costs and expense.


 


§3.3 Facility
Fee. On or before the Agreement Date, Borrower shall pay to Bank a non-refundable facility fee in the amount of $5,000.00.


 


§3.4 Late
Charges. Without limiting or waiving any rights or remedies of Bank contained herein or under Applicable Law, and without
implying that Bank has the obligation to declare or to notify Borrower of the occurrence of any Event of Default, if Bank has
neither declared nor notified Borrower of the occurrence of an Event of Default, and if any amount of any required payment of
principal, interest or fees hereunder or under the Note is not paid in full



    	-14-



    	



    

within 10 days after
the same is due, then, in addition to all other interest and other amounts due hereunder, Borrower shall pay to Bank on demand
a late charge equal to five percent (5%) of the delinquent payment. Each such late charge is intended to compensate Bank for administrative
and other costs associated with not receiving a payment when due and is neither a penalty nor interest.


 


§3.5 Payments
and Computations.


 


(a) Borrower shall
make each payment hereunder by 1:00 p.m. (New York City time) on the day when due, in lawful money of the United States of America
and immediately available funds without setoff or deduction of any kind, to Bank at the Payment Address.


 


(b) All computations
of interest, commissions and fees hereunder shall be made by Bank on the basis of a year of 360 days and the actual number of
days (including the first day but excluding the last day) for the period for which such interest, commission or fee is payable.
Each payment under this Agreement or the Note shall be applied in such order and manner as Bank determines.


 


(c) Whenever any
payment to be made under this Agreement or any other Credit Document shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day (or, if the next succeeding Business Day falls in the next
calendar month, on the immediately preceding Business Day), and such extension of time shall in such case be reflected in the
computation of interest, commissions or fees, as the case may be.


 


(d) Bank is irrevocably
authorized (but not required) to charge against any deposit account in Borrower’s name with Bank any amount that is due
under this Agreement or other Credit Document, even if doing so creates an overdraft.


 


(e) Bank’s
computation of interest and other amounts owing hereunder shall, in the absence manifest error, be conclusive and binding on Borrower.


 


§3.6 Evidence
of Indebtedness; Impaired Note. The Advance and Borrower’s obligations to repay it, with interest in accordance with
the terms of this Agreement, shall be evidenced by this Agreement, the records of Bank, and the Note. The records of Bank shall
be prima facie evidence (absent fraud or manifest error) of the Advance and the other indebtedness of Borrower under this Agreement,
of accrued interest thereon, of accrued fees, and of all payments made in respect of any thereof. Upon Borrower’s receipt
from Bank of (a) reasonably satisfactory evidence of the loss, theft, destruction or mutilation of the Note (an “Impaired
Note”) and (b) (i) in the case of mutilation, such Impaired Note for cancellation and (ii) in all cases, indemnity reasonably
satisfactory to Borrower and reimbursement of Borrower’s reasonable out-of-pocket expenses incidental thereto, Borrower
shall make and deliver to Bank a new replacement Note of like tenor, date and principal amount in lieu of the Impaired Note.


 


§4. COLLATERAL.


 


§4.1 Borrower
Collateral. The Obligations (together with all indebtedness, obligations and duties of Borrower to Bank arising under or in
connection with the Existing Term Note, the Revolving Note, the Revolving Credit Agreement, any Term Note, as that term is defined
in the Revolving Credit Agreement, and any other Credit Documents, as that term is



    	-15-



    	



    

defined in the Revolving
Credit Agreement, all as more particularly described in the Revolving Credit Agreement) shall be secured at all time by a perfected,
first priority security interest in all of the Borrower Collateral. Without limiting the generality of the preceding sentence,
the Obligations shall be secured at all times by a perfected (both by filing and possession by Bank of the related Equity Certificates),
first-priority security interest in and pledge of all of the Capital Securities of each Subsidiary.


 


§4.2 Other
Collateral. The Obligations shall be secured at all times by (a) a perfected, first priority mortgage on, collateral assignment
of and security interest in all Ark Real Estate Collateral; (b) a perfected, first priority security interest in all Ark Shuckers
Collateral; and (c) a perfected, first priority security interest in all Ark Island Collateral, subject to any limitations set
forth in the Mortgage and the Security Agreements.


 


§5. CONDITIONS
OF LENDING.


 


§5.1 Documentary
Conditions Precedent to be Satisfied Before Closing. The obligation of Bank to make the Advance is subject to the condition
precedent that Bank shall have received, on or before the Agreement Date, the following, all in form and substance satisfactory
to Bank:


 


(a) The Note duly
executed by Borrower;


 


(b) An amended and
restated security agreement duly executed by Borrower, which amends and restates Borrower’s obligations and liabilities
under the Borrower Security Agreement, covering the Borrower Collateral and securing all obligations of Borrower, Rio and AC heretofore
secured by the Borrower Security Agreement and all Obligations (the “Borrower Amended and Restated Security Agreement”),
together with (i) financing statements (form UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as may be
necessary or, in Bank’s reasonable opinion, desirable to perfect the security interests created by the Borrower Amended
and Restated Security Agreement; and (ii) reports acceptable to Bank listing the financing statements referred to in clause (i)
above and no other financing statements;


 


(c) Evidence of the
issuance of all insurance policies and loss payee endorsements required by the terms of the Borrower Security Agreement as modified
by the Borrower Security Agreement Modification;


 


(d) Judgment, tax
lien and litigation searches in all relevant jurisdictions showing that there are no outstanding judgments, tax liens or pending
lawsuits against Borrower or any property of Borrower except as disclosed herein;


 


(e) A certified copy
of the resolutions of the board of directors of Borrower approving and authorizing each Credit Document to which it is a party
and of all documents evidencing other necessary corporate action and Governmental Approvals, if any, with respect to each such
Credit Document;


 


(f) A certificate
of the Secretary or an Assistant Secretary of Borrower certifying the name and true signatures of its officers authorized to sign
each Credit Document to which it is a party and the other documents to be delivered by it hereunder;



    	-16-



    	



    

(g) A certificate
of status issued by the New York Secretary of State with respect to Borrower; a copy of Borrower’s articles of incorporation
certified by such Secretary of State; and a copy of Borrower’s bylaws certified as true and complete by an Authorized Representative;


 


(h) a Mortgage, Assignment
of Rents and Security Agreement, encumbering the Real Estate Collateral, duly executed by Ark Real Estate (the “Mortgage”);


 


(i) an Environmental
Compliance and Indemnification Agreement duly executed by Borrower and Ark Real Estate (the “Environmental Indemnity”);


 


(j) a true and correct
copy of that certain Lease Agreement by and between Ark Real Estate, as landlord, and Ark Shuckers, as tenant, pursuant to which
Ark Shuckers leases the Ark Real Estate Collateral from Ark Real Estate, duly executed by Ark Real Estate and Ark Shuckers (the
“Lease”);


 


(k) a subordination
and attornment agreement duly executed by Ark Real Estate and Ark Shuckers with respect to the Lease;


 


(l) evidence of completion
of all recordings and filings as may be necessary, or, in the opinion of Bank, desirable, to perfect the security interest and
liens created by the Mortgage;


 


(m) evidence of the
issuance of all insurance policies and mortgagee endorsement required by the terms of the Mortgage;


 


(n) a current, fully
paid for, ALTA-Form title insurance commitment (the “Title Commitment”) which is issued by a nationally recognized
title insurance company satisfactory to Bank (the “Title Company”), contains “GAP coverage” and binds
the Title Company to issue an ALTA-Form extended coverage mortgagee title insurance policy (the “Title Policy”) which
is in the principal amount of the Note (or such lesser amount acceptable to Bank), which insures that the Mortgage is a valid
first lien on the Units subject only to exceptions, if any, which Bank approves in writing and which contains a Florida Form 9
endorsement, a variable rate endorsement, a condominium endorsement, and whatever other endorsements are required by Bank;


 


(o) evidence that
the Commercial Units are zoned so as to permit their current use as a restaurant and the Residential Units are so zoned to permit
therein current use as a hotel for transient guests and violate no zoning, building, safety or handicapped access codes or regulations;


 


(p) copies of all
licenses and contracts relevant to the Units’ use or operation;


 


(q) A Security Agreement
(the “Ark Shuckers Security Agreement”) duly executed by Ark Shuckers covering the Ark Shuckers Collateral and securing
the Obligations and the obligations of Ark Shuckers under any Cash Management Agreement, together with (i) financing statements
(form UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in Bank’s reasonable
opinion, desirable to perfect the security interest created by the Ark Shuckers Security Agreement, and (ii) reports acceptable
to Bank listing the financing statements referred to in clause(i) above and no other financing statements;


 


(r) Evidence of the
issuance of all insurance policies and loss payee endorsements required by the terms of the Ark Shuckers Security Agreement;



    	-17-



    	



    

(s) A Security Agreement
(the “Ark Island Security Agreement”) duly executed by Ark Island covering the Ark Island Collateral and securing
the Obligations and the obligations of Ark Island under any Cash Management Agreement, together with (i) financing statements
(form UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in Bank’s reasonable
opinion, desirable to perfect the security interest created by the Ark Island Security Agreement, and (ii) reports acceptable
to Bank listing the financing statements referred to in clause (i) above and no other financing statements;


 


(t) whatever certificates,
resolutions, consents and other evidence Bank may reasonably require regarding the organization and existence of Rio, AC. Las
Vegas, Ark Real Estate, Ark Shuckers and Ark Island and regarding their authority and power to enter into and perform the Credit
Documents to which each is a party;


 


(u) current financial
statements and income verifications for Borrower;


 


(v) UCC, tax lien,
bankruptcy and judgment searches in all appropriate offices disclosing that no financing statements, bankruptcy filings, tax liens
or judgments liens are outstanding against Borrower, and a litigation search in New York, with respect to Borrower, disclosing
that Borrower is not a defendant in any litigation and unfavorable outcome in which could have a material, adverse effect on Borrower’s
financial condition;


 


(w) Payment by Borrower
(of, if already paid, reimbursement to Bank for) all reasonable costs and expenses in connection with the preparation, execution,
delivery, filing and recording of the Credit Documents, including the reasonable fees and out-of-pocket expenses of counsel for
Bank with respect thereto, all surveying costs, appraisal fees, environmental review costs, title insurance premiums, collateral
inspection expenses and all other costs incurred by Bank in connection therewith;


 


(x) a favorable opinion
of Davidoff Hutcher & Citron LLP, New York counsel for Borrower, Rio, AC, Las Vegas, Ark Real Estate, Ark Shuckers and Ark
Island, and of Koeppel Law Group, P.A., Florida counsel for Ark Real Estate, Ark Shuckers and Ark Island, covering such matters
as Bank may request;


 


(y) all documents
required by §5.1 of the Revolving Credit Agreement; and


 


(z) such other approvals,
certificates, opinions and documents as are required by any closing checklist regarding this Agreement or as Bank may reasonably
request.


 


§5.2 Other
Conditions Precedent to Advance. The obligation of Bank to make the Advance is subject to the fulfillment of each of the following
conditions to Bank’s satisfaction:


 


(a) Each of the Representations
and Warranties shall, in the determination of Bank in its reasonable discretion, be true and correct in all material respects
at and as of the time of the Advance, with and without giving effect to the Advance and to the application of the proceeds thereof,
except those expressly stated to be made as of a particular date which shall be true and correct in all material respects as of
such date;


 


(b) No Default or
Event of Default shall have occurred and be continuing at the time of the Advance, with or without giving effect to the Advance
and to the application of the proceeds thereof;



    	-18-



    	



    

(c) Receipt by Bank,
within a reasonable time after Bank’s request, of such materials as may have been requested pursuant to §9 as, when
and to the extent required to be delivered thereunder;


 


(d) The Advance will
not contravene any Applicable Law;


 


(e) All legal matters
incident to the Advance and the other transactions contemplated by this Agreement shall be reasonably satisfactory to counsel
for Bank;


 


(f) No Federal tax
liens or other Liens (besides Permitted Liens) shall have been filed against any of the Collateral;


 


(g) Each Obligor
is Solvent and will be so after giving effect to the Advance.


 


§5.3 No
Waiver. No failure by Bank to insist on fulfillment, before it makes the Advance, of any condition precedent specified in
§5.1 and §5.2 shall operate as a waiver of or otherwise impair its right to insist on such condition precedent’s
fulfillment, and any failure to fulfill such condition precedent immediately upon demand shall constitute a default of a covenant
or agreement hereunder.


 


§6. CERTAIN
REPRESENTATIONS AND WARRANTIES OF BORROWER.


 


In order to induce Bank
to enter into this Agreement and to make the Advance, Borrower represents and warrants to Bank as follows (and will continue to
do so as long as this Agreement is in effect):


 


§6.1 Organization:
Power; Qualification; Compliance; Approval. Each Obligor is a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of the state of its incorporation or organization, has the corporate power and authority
to own its properties and to carry on its businesses as now being and proposed to be hereafter conducted, and is duly qualified,
in good standing, and authorized to do business, in all jurisdictions in which the character of its properties or the nature of
its businesses requires such qualification, good standing or authorization. Each Obligor is conducting its business in material
compliance with all Applicable Law.


 


§6.2 Subsidiaries.
As of the Agreement Date, the only Subsidiaries are the companies listed in Schedule 6.2 herein. Borrower owns 50 percent or more
of the issued and outstanding Capital Securities of the Subsidiaries (and owns 100 percent of the issued and outstanding Capital
Securities of Ark Real Estate, Ark Shuckers and Ark Island), or such Subsidiaries are otherwise Controlled by Borrower.


 


§6.3 Solvency.
Each Obligor is and will be Solvent after giving effect to the transactions contemplated by the Credit Documents.


 


§6.4 Authorization
and Compliance of Agreement and Note. Each Obligor has the corporate or limited liability company power, and has taken all
necessary corporate or limited liability company and other (including stockholder and member, if necessary) action to authorize
it to execute, deliver and perform the Credit Documents to which it is a party in accordance with their respective terms, to incur
its other obligations under and each of the Credit Documents to which it is a party and to borrow or guaranty (as the case may
be) hereunder. Each of the Credit Documents delivered on the Agreement Date has been duly



    	-19-



    	



    

executed and delivered
by the Obligor party thereto and is a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in
accordance with its terms. The execution, delivery and performance of the other Credit Documents by each Obligor party thereto
in accordance with their respective terms, and the incurring of obligations thereunder by the Obligor, do not and will not (a)
require (i) any Governmental Approval or (ii) any consent or approval of the stockholders or members of such Obligor that has
not been obtained, or adversely affect in any way the validity or enforceability of any Credit Document , (b) violate or conflict
with, result in a breach of, or constitute a default under, (i) any Contract to which such Obligor is a party or by which its
or any of its properties may be bound, (ii) any Applicable Law, unless in any such case the violation would not have a Material
Adverse Effect or adversely affect in any way the validity or enforceability of any Credit Document or (iii) such Obligor’s
articles of incorporation or organization or bylaws or operating agreement, or (c) result in or require the creation of any Lien
upon any assets of such Obligor (other than Permitted Liens).


 


§6.5 Litigation.
Except as set forth on Schedule 6.5 hereto, as of the Agreement Date there are not, in any court or before any arbitrator of any
kind or before or by any governmental or non-governmental body, any actions, suits or proceedings, pending (or to the knowledge
of Borrower overtly threatened in writing), against or in any other way relating to or affecting any Obligor or other Subsidiary,
or the business or any property of any Obligor or other Subsidiary, except actions, suits or proceedings that, if adversely determined,
would not (i) result in liability more than $150,000.00 above the amount of insurance coverage in effect with respect thereto
or (ii) have a Material Adverse Effect.


 


§6.6 Burdensome
Provisions. No Obligor is a party to or bound by any Contract that is likely to have a Material Adverse Effect.


 


§6.7 No
Material Adverse Change or Event. Between June 27, 2015 and the Agreement Date, no change in the business, assets, liabilities,
financial condition or results of operations of Borrower or its Subsidiaries has occurred, and no event has occurred or failed
to occur, which has had or constituted or would reasonably be expected to have or constitute, either alone or in conjunction with
all other such changes, events and failures, a Material Adverse Effect.


 


§6.8 No
Adverse Fact. No fact or circumstance is known to Borrower as of the date hereof which Bank could not reasonably be expected
to be aware of and which, either alone or in conjunction with all other such facts and circumstances, has had a Material Adverse
Effect that has not been set forth or referred to in the financial statements referred to in §10(a) or in a writing specifically
captioned “Disclosure Statement” and delivered to Bank prior to the date hereof. If a fact or circumstance disclosed
in such financial statements or Disclosure Statement, or if an action, suit or proceeding disclosed in Schedule 6.5, should in
the future have or constitute a Material Adverse Effect upon Borrower or any Subsidiary or upon this Agreement or any other Credit
Document, such Material Adverse Effect shall be a change or event subject to §6.8 notwithstanding such disclosure.


 


§6.9 Title
to Properties. Borrower has, as of the date of such financial statements or Forms 10-Q or 10-K, as the case may be, title
to its properties reflected on the financial statements referred to in §9 or its most recent Form 10-Q or Form 10-K subject
to no Liens or material adverse claims except Permitted Liens.



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§6.10 Patents,
Trademarks, Etc. Borrower and Subsidiaries each owns, or is licensed or otherwise has the lawful right to use, all Intellectual
Property used in or necessary for the conduct of its business as currently in any material respect conducted. To Borrower’s
knowledge, the use of such Intellectual Property by Borrower or such Subsidiary does not infringe on the rights of any Person.


 


§6.11 Margin
Stock; Etc. The proceeds of the Advance will be used by Borrower, Ark Real Estate, Ark Shuckers and Ark Island only for
the purposes expressly authorized herein. None of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or retiring any Debt which was originally incurred to
purchase or carry margin stock or for any other purpose which might constitute any of the Advances a “purpose
credit” within the meaning of Regulation U. Neither Borrower nor any agent acting in its behalf has taken or will take
any action which might cause this Agreement or any of the documents or instruments delivered pursuant hereto to violate any
regulation of the Board of Governors of the Federal Reserve Board or to violate the Securities Exchange Act of 1934, as
amended, or the Securities Act of 1933, as amended, or any state securities laws, in each case as in effect on the date
hereof.


 


§6.12 Investment
Company. Borrower is not an “investment company,” or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company
Act of 1940, as amended (15 U.S.C. §80a-1, et seq.). The application of the proceeds of the Advance and repayment thereof
by Borrower and the performance by Borrower of the transactions contemplated by the Credit Documents will not violate any provision
of that statute, or any rule, regulation or order issued by the Securities and Exchange Commission thereunder, in each case as
in effect on the date hereof.


 


§6.13 ERISA.


 


(a) Borrower and
each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations
thereunder and in material compliance with all Foreign Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except
for circumstances where the failure to comply could not reasonably be expected to have a Material Adverse Effect. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined to be exempt under Section
501(a) of the Code. No material liability has been incurred by Borrower or any ERISA Affiliate which remains unsatisfied for any
taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;


 


(b) Neither Borrower
nor any ERISA Affiliate has (i) engaged in a nonexempt prohibited transaction described in Section 4975 of the Code or Section
406 of ERISA affecting any of the Employee Benefit Plans or the trusts created thereunder which could subject any such Employee
Benefit Plan or trust to a material tax or penalty on prohibited transactions imposed under Internal Revenue Code Section 4975
or ERISA, (ii) incurred any material accumulated funding deficiency with respect to any Employee Benefit Plan, whether or not
waived, or any other material liability to the PBGC which remains outstanding, other than the payment of premiums (and there are
no premium payments which are due and unpaid which could reasonably be expected to have a Material Adverse Effect), (iii) failed
to make a required material contribution or payment to a Multiemployer Plan, or (iv) failed to make a material



    	-21-



    	



    

required installment
or other required payment under Section 412 of the Code, Section 302 of ERISA or the terms of such Employee Benefit Plan;


 


(c) No Termination
Event has occurred or is reasonably expected to occur with respect to any Pension Plan or Multiemployer Plan, and neither Borrower
nor any ERISA Affiliate has incurred any unpaid withdrawal liability with respect to any Multiemployer Plan;


 


(d) The present value
of all vested accrued benefits under each Employee Benefit Plan which is subject to Title IV of ERISA, did not, as of the most
recent valuation date for each such plan, exceed the then current value of the assets of such Employee Benefit Plan allocable
to such benefits;


 


(e) Each Employee
Benefit Plan maintained by Borrower or any ERISA Affiliate, has been administered in accordance with its terms in all material
respects and is in compliance in all material respects with all applicable requirements of ERISA and other Applicable Law, except
for circumstances where the failure to comply or accord could not reasonably be expected to have a Material Adverse Effect;


 


(f) The making of
the Advance will not involve any prohibited transaction under ERISA which is not subject to a statutory or administrative exemption;
and


 


(g) No material proceeding,
claim, lawsuit and/or investigation exists or, to the best knowledge of Borrower after due inquiry, is threatened concerning or
involving any Employee Benefit Plan.


 


§6.14 No
Default. As of the date hereof, to the best of Borrower’s knowledge, there exists no Default or Event of Default.


 


§6.15 Hazardous
Materials. Each Obligor is in compliance with all applicable Environmental Laws in all material respects. Borrower has not
been notified in writing of any action, suit, proceeding or investigation which, and Borrower is not aware of any facts which,
(a) calls into question, or could reasonably be expected to call into question, compliance by any Obligor with any Environmental
Laws, (b) seeks to suspend, revoke or terminate any license, permit or approval necessary for the generation, handling, storage,
treatment or disposal of any Hazardous Material, or (c) seeks to cause any property of any Obligor to be subject to any restrictions
on ownership, use, occupancy or transferability under any Environmental Law to which such Obligor is not currently subject, which
in the case of any matter described in items (a), (b) or (c) above would result in a Material Adverse Effect.


 


§6.16 Employment
Matters. (a) Except as set forth in Schedule 6.16, none of the employees of Borrower or any Subsidiary is subject to any collective
bargaining agreement and there are no strikes, work stoppages, election or decertification petitions or proceedings, unfair labor
charges, equal opportunity proceedings, or other material labor/employee related controversies or proceedings pending or, to the
best knowledge of Borrower, overtly threatened in writing against Borrower or any Subsidiary or between Borrower or any Subsidiary
and any of its employees, other than those which would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and


 


(b) Except as set
forth in Schedule 6.16 or to the extent a failure to maintain compliance would not have a Material Adverse Effect, Borrower and
each Subsidiary are in



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compliance in all respects
with all Applicable Law pertaining to labor or employment matters, including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither pending nor to Borrower’s knowledge overtly threatened in writing
any litigation, administrative proceeding nor, to the knowledge of Borrower, any investigation, in respect of such matters which,
if decided adversely, would individually or in the aggregate have a Material Adverse Effect.


 


§6.17 RICO.
Neither Borrower nor any Subsidiary is engaged in or has engaged in any course of conduct that would subject any of its properties
to any Lien, seizure or other forfeiture under any criminal law, racketeer influenced and corrupt organizations law (civil or
criminal) or other similar laws.


 


§7. CERTAIN
GENERAL COVENANTS.


 


As long as this Agreement
is in effect, unless Bank shall otherwise consent in writing, Borrower shall perform and observe the following:


 


§7.1 Preservation
of Existence and Properties, Scope of Business, Compliance with Law, Payment of Taxes and Claims. (a) Preserve and
maintain its corporate existence and all of its other franchises, licenses, rights and privileges, (b) preserve, protect and obtain
all Intellectual Property, and preserve and maintain in good repair, working order and condition all other properties, required
for the conduct of its business as presently conducted, all in accordance with customary and prudent business practices, (c) engage
only in the business in which it is engaged as of the Agreement Date and related businesses that in Bank’s reasonable judgment
are closely related thereto, (d) comply with all Applicable Laws (including all Environmental Laws and all racketeer influenced
and corrupt organizations law), (e) except to the extent permitted otherwise in §§7.4(a) and 7.4(b), pay or discharge
when due all Taxes owing by it or imposed upon its property (for the purposes of this clause, such Taxes shall be deemed to be
due on the date after which they become delinquent), and all liabilities which might become a Lien (other than a Permitted Lien)
on any of the Collateral, (f) take all action and obtain all Governmental Approvals required so that its obligations under the
Credit Documents will at all times be valid and binding and enforceable in accordance with their respective terms, and (g) obtain
and maintain all licenses, permits and approvals of Governmental Authorities and as are required for the conduct of its business
as presently conducted, except where failure to do any of the foregoing would not have a Material Adverse Effect.


 


§7.2 Insurance.
Maintain property, liability and flood insurance with responsible insurance companies acceptable to Bank against such risks and
in such amounts as is customarily maintained by similar businesses or as may be required by Applicable Law.


 


§7.3 Use
of Proceeds. Use the Advance only for the purposes described in §2.2 and refrain from using proceeds of the Advance to
purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the
meaning of Regulation U) or to extend credit to others for the purpose of purchasing or carrying any margin stock. If requested
by Bank, Borrower shall furnish to Bank statements in conformity with the requirements of Federal Reserve Form U-1 referred to
in Regulation U.



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§7.4 Liens.
Not incur, create or permit to exist any Lien with respect to any of the Collateral now owned or hereafter acquired by Borrower,
Ark Real Estate, Ark Shuckers and Ark Island, other than the following (“Permitted Liens”):


 


(a) Liens imposed
by law for taxes, assessments or charges of any Governmental Authority for claims which either are not yet delinquent or which
are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves
or other appropriate provisions are being maintained in accordance with GAAP;


 


(b) statutory and
contractual Liens of landlords, carriers, warehousemen, mechanics or materialmen on Borrower’s equipment and inventory and
other Liens on such equipment and inventory imposed by law or created in the ordinary course of business for amounts either which
are not yet due or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to
which adequate reserves or other appropriate provisions are being maintained in accordance with GAAP;


 


(c) Liens incurred
or deposits made in the ordinary course of business (including without limitation surety bonds and appeal bonds) in connection
with workers’ compensation, Taxes, unemployment insurance and other types of social security benefits or to secure the performance
of tenders, bids, leases, Contracts (other than for the repayment of Debt), statutory obligations and other similar obligations
or arising as a result of progress payments under government Contracts;


 


(d) easements (including
reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variations
and zoning and other restrictions, charges or encumbrances (whether or not recorded), which do not interfere materially with the
ordinary conduct of the business of Borrower, Ark Real Estate, Ark Shuckers and Ark Island taken as a whole and which do not materially
detract from the value of the property to which they attach or materially impair the use thereof to Borrower, Ark Real Estate,
Ark Shuckers and Ark Island;


 


(e) Liens with respect
to any Collateral now owned or hereafter acquired by Borrower for an amount less than $1,000.00 in any one instance and less than
$5,000.00 in the aggregate.


 


§7.5 Merger
and Consolidation. (a) Not consolidate with or merge into any other Person, or (b) permit any other Person to merge into it,
or (c) liquidate, wind-up or dissolve or sell, transfer or lease or otherwise dispose of all or a substantial part of its assets;
provided, however, after notice thereof to Bank, (i) any Subsidiary may merge, sell, transfer, lease or otherwise dispose of,
all or substantially all of its assets into or consolidate with Borrower or any Subsidiary wholly owned by Borrower, (ii) any
Subsidiary may liquidate, windup or dissolve so long as all of its assets (subject to its liabilities) are transferred to Borrower
or to another Subsidiary, (iii) any other Person may merge into or consolidate with Borrower or any Subsidiary wholly owned by
Borrower.


 


§7.6 Debt.
Not incur or allow to exist Debt (excluding Debt described on Schedule 7.6 and Debt owed to Bank) in excess of $100,000.00 at
any one time outstanding.


 


§7.7 Compliance
with ERISA. With respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan, not:



    	-24-



    	



    

(a) permit the occurrence
of any Termination Event which would result in a material liability on the part of Borrower or any ERISA Affiliate to the PBGC;
or


 


(b) permit the present
value of all benefit liabilities under all Pension Plans to exceed the current value of the assets of such Pension Plans allocable
to such benefit liabilities; or


 


(c) permit any material
accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code) with respect to any Pension Plan,
whether or not waived; or


 


(d) fail to make
any contribution or payment to any Multiemployer Plan which Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto; or


 


(e) engage, or permit
Borrower or any ERISA Affiliate to engage, in any prohibited transaction under Section 406 or ERISA or Sections 4975 of the Code
for which a civil penalty pursuant to Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code may be imposed and
which would reasonably be expected to result in a Material Adverse Effect; or


 


(f) permit the establishment
of any Employee Benefit Plan providing post-retirement welfare benefits or establish or amend any Employee Benefit Plan which
establishment or amendment could result in liability to Borrower or any ERISA Affiliate or increase the obligation of Borrower
or any ERISA Affiliate to a Multiemployer Plan where such establishment or amendment would reasonably be expected to result in
a Material Adverse Effect; or


 


(g) fail, or permit
any ERISA Affiliate to fail, to establish, maintain and operate each Employee Benefit Plan in compliance in all material respects
with the provisions of ERISA, the Code and all other Applicable Law and interpretations thereof.


 


§7.8 Fiscal
Year. Not change its Fiscal Year.


 


§7.9 Dissolution,
etc. Not wind up, liquidate or dissolve (voluntarily or involuntarily) or commence or suffer any proceedings seeking any
such winding up, liquidation or dissolution.


 


§7.10 Limitations
of Sales and Leasebacks. Not enter into any arrangement with any Person providing for the leasing by Borrower or any Subsidiary
of real or personal property, whether now owned or hereafter acquired in a related transaction or series of related transactions,
which has been or is to be sold or transferred by Borrower or any Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property or rental obligations of Borrower or any Subsidiary.


 


§7.11 Change
in Control. Not cause or permit to occur any Change of Control or Material Management Change.


 


§7.12 Negative
Pledge Clauses. Not enter into or cause, suffer or permit to exist any agreement with any Person other than Bank pursuant
to this Agreement or any other Credit Documents which prohibits or limits the ability of Borrower or any Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its property, except in connection with Permitted Liens.



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§7.13 Intellectual
Property. Not sell, assign, encumber or otherwise dispose of any of its Intellectual Property, except for the licensing of
Intellectual Property in the ordinary course of business and sales, assignments or other dispositions of Intellectual Property
no longer used or useful in Borrower’s business; and maintain each Trademark useful in its business.


 


§7.14 Deposit
Relationship. Maintain with Bank a cash concentration account for cash needed above regular operations plus any other amount
needed for performance of this Agreement and the Note.


 


§7.15 Expired
Building Permit. Take all actions required by Governmental Authorities with respect to the Expired Building Permit including
renewal of such permit, submission of an engineer’s report certifying compliance with applicable building code requirements,
and a surveyor’s report certifying compliance with flood and elevation requirements, in order to cause the Expired Building
Permit to be in compliance with Applicable Laws with 120 days after the date of this Agreement.


 


§7.16 Parking
Agreement. Use commercial reasonable efforts to obtain an agreement, in form and content reasonably satisfactory to Bank,
within 60 days after the date of this Agreement, duly executed by Robert Rigel, individually and as trustee, conferring upon Bank
the benefits of the Parking Agreement after foreclosure of the Mortgage, or a deed in lieu of foreclosure, and if so obtained,
cause Ark Shuckers Real Estate to promptly duly execute and deliver such agreement to Bank.


 


§7.17 Subsidiaries.
Cause each Subsidiary to comply with each covenant contained in this §7 as though references therein to Borrower were references
to such Subsidiary.


 


§8. CERTAIN
FINANCIAL COVENANTS.


 


§8.1 Tangible
Net Worth. As long as this Agreement is in effect, Borrower shall maintain a Tangible Net Worth of not less than $22,000,000.00.
Borrower’s compliance or non-compliance with this covenant shall be tested at least quarterly at the end of each Fiscal
Period using the statements described in §9.1(a) and §9.1(b).


 


§8.2 Fixed
Charge Coverage Ratio. As long as this Agreement is in effect, Borrower shall maintain a Fixed Charge Coverage Ratio of not
less than 1.1:1. Borrower’s compliance or non-compliance with this covenant shall be tested quarterly for each Fiscal Period
on a trailing 12-month basis using the statements described in §9.1(a) and (b).


 


§8.3 Net
Income. As long as this Agreement is in effect, Borrower shall maintain a Net Income Attributable to Borrower and Subsidiaries
of not less than $2,000,000.00. Borrower’s compliance or non-compliance with this covenant shall be tested annually for
each Fiscal Year using the statements described in §9.1(a).


 


§9. INFORMATION.


 


§9.1 Financial
Statements and Information to be Furnished. As long as this Agreement is in effect, Borrower shall deliver to Bank:



    	-26-



    	



    

(a) Year-End Statements;
Accountants’ and Officer’s Certificates. As soon as available and in any event no later than that date which is
the later of: (x) 90 days after the end of each Fiscal Year and (y) the filing of Borrower’s Form 10-K if an extension was
properly filed with the Securities and Exchange Commission and such Form 10-K is filed within the permitted extension (or, in
the case of the certificates specified in clause (ii) below 120 days after the end of each Fiscal Year), (i) consolidated balance
sheets of Borrower and the Subsidiaries as at the end of each Fiscal Year, and the notes thereto, and related consolidated statements
of income, shareholders’ equity and cash flow, and the respective notes thereto, for such Fiscal Year, setting forth comparative
financial statements for the preceding Fiscal Year, all prepared in accordance with GAAP applied on a Consistent Basis and containing,
with respect to the financial statements, opinions of independent certified public accountants of national standing selected by
Borrower and reasonably acceptable to Bank, which are unqualified as to the scope of the audit performed and as to the “going
concern” status of Borrower and the Subsidiaries and without any exception and (ii), within 30 days thereafter, a certificate
signed by an Authorized Representative and demonstrating compliance with §§8.1, 8.2 and 8.3 and Borrower’s other
covenants herein.


 


(b) Quarterly
Statements; Officer’s Certificates. As soon as available and in any event within 45 days after the end of each Fiscal
Period, (i) consolidated balance sheets of Borrower and the Subsidiaries as of the end of such Fiscal Period and related consolidated
statements of income, shareholders’ equity and cash flow, all prepared in accordance with GAAP (except for normal year-end
adjustments) and (ii) within 30 days thereafter, a certificate signed by an Authorized Representative and demonstrating compliance
with §§8.1 and 8.2 and Borrower’s other covenants herein.


 


(c) Annual Projections.
As soon as available and in any event within 120 days after the end of each Fiscal Year, projections for the succeeding two (2)
Fiscal Years including a balance sheet, income statement and statement of cash flow, all on a consolidated basis.


 


(d) Additional Materials.


 


(i) Promptly upon
Borrower’s becoming aware thereof, notice of each federal statutory Lien, tax or other state or local government Lien or
other Lien (other than Permitted Liens) filed against the property of Borrower or any Subsidiary;


 


(ii) From time to
time and within a reasonable time after Bank’s request, such data, certificates, reports, statements, or further information
regarding this Agreement, any other Credit Document, any Credit Extension, any Collateral or any other transaction contemplated
hereby, or the business, assets, liabilities, financial condition, results of operations or business prospects of Borrower and
the Subsidiaries, as Bank may request, in each case in form and substance, with a degree of detail, and certified in a manner,
reasonably satisfactory to Bank.


 


(e) Notice of
Defaults, Litigation and other Matters. Promptly after Borrower obtains knowledge thereof, notice of: (i) any Default; (ii)
the commencement of any action, suit or proceeding or investigation in any court or before any arbitrator of any kind or by or
before any Governmental Authority or non-governmental body against or in any other way relating adversely to or materially adversely
affecting (A) Borrower or any Subsidiary, or any of its businesses or properties, that, if adversely determined, singly would
result in liability more than $150,000.00 above the amount covered by insurance or (2) otherwise would, singly or in the aggregate,
have a Material Adverse Effect, or (B) in any material way this Agreement or the



    	-27-



    	



    

other Credit Documents
or any transaction contemplated hereby or thereby; (iii) any amendment of the articles of incorporation or bylaws of Borrower
or the articles of incorporation, bylaws, certificate of formation or operating agreement of any Subsidiary; and (iv) any significant
material adverse development in any lawsuits described in Schedule 6.5.


 


§9.2 Accuracy
of Financial Statements and Information.


 


(a) Historical
Financial Statements. Borrower hereby represents and warrants to Bank: (i) that the financial statements heretofore furnished
to Bank are complete and correct and present fairly in all material respects, in accordance with GAAP applied on a Consistent
Basis throughout the periods involved, the financial position of Borrower and the Subsidiaries on a consolidated basis as at their
respective dates and the results of operations, retained earnings and, as applicable, the changes in financial position or cash
flows of Borrower and Subsidiaries for the respective periods to which such statements relate, and (ii) that, except as disclosed
or reflected in such financial statements, Borrower and the Subsidiaries have no liabilities, contingent or otherwise, nor any
unrealized or anticipated losses as of the respective date(s) of such financial statements and required to be included in such
financial statements, that, singly or in the aggregate, have had or are likely to have a Material Adverse Effect.


 


(b) Future Financial
Statements. All financial statements delivered pursuant to §9.1, shall be complete and correct and present fairly in
all material respects, in accordance with GAAP applied on a Consistent Basis (except to the extent Bank approves in writing any
departures from GAAP), the financial position of Borrower and the Subsidiaries, as at their respective dates and the results of
operations, retained earnings, and cash flows of Borrower and the Subsidiaries for the respective periods to which such statements
relate, and their furnishing to Bank shall constitute a Representation and Warranty by Borrower made on the date they are furnished
to Bank to that effect and to the further effect that, except as disclosed or reflected in such financial statements, as at the
respective dates thereof, Borrower and its Subsidiaries, to Borrower’s knowledge, had no liability, contingent or otherwise,
nor any unrealized or anticipated loss as of the respective date(s) of such financial statements and required to be included in
such financial statements, that, singly or in aggregate, has had or is likely to have a Material Adverse Effect.


 


(c) Historical
Information. Borrower hereby represents and warrants to Bank that, to Borrower’s actual knowledge, all Information furnished
to Bank in writing by or at the direction of Borrower prior to the Agreement Date in connection with or pursuant to this Agreement
and the relationship established hereunder, at the time it was so furnished, but in the case of Information dated as of a prior
date, as of such date, (i) in the case of any such prepared in the ordinary course of business, was complete and correct in all
material respects in the light of the purpose prepared, and, in the case of any such the preparation of which was requested by
Bank, was complete and correct in all material respects to the extent necessary to give Bank true and accurate knowledge of the
subject matter thereof, (ii) did not contain any untrue statement of a material fact, and (iii) did not omit to state a material
fact necessary in order to make the statements contained therein not misleading in the light of the circumstances under which
they were made; provided, however, Borrower represents and warrants that all plans, projections and forecasts of future events
or future financial results were prepared to the best of Borrower’s knowledge, but does not represent or warrant the achievement
of the future results or the occurrence of the future events.



    	-28-



    	



    

(d) Future Information.
All Information furnished to Bank in writing by or at the direction of Borrower on and after the Agreement Date in connection
with or pursuant to this Agreement or in connection with or pursuant to any amendment or modification of, or waiver under, this
Agreement, to Borrower’s actual knowledge, shall, at the time it is so furnished, but in the case of Information dated as
of a prior date, as of such date, (i) in the case of any such prepared in the ordinary course of business, be complete and correct
in all material respects in the light of the purpose prepared, and, in the case of any such required by the terms of this Agreement
or the preparation of which was requested by Bank, be complete and correct in all material respects to the extent necessary to
give Bank true and accurate knowledge of the subject matter thereof, (ii) not contain any untrue statement of a material fact,
and (iii) not omit to state a material fact necessary in order to make the statements contained therein not misleading, and the
furnishing of them to Bank shall constitute a Representation and Warranty by Borrower made on the date they are furnished to Bank
to the effect specified in clauses (a), (b) and (c); provided, however, that as to all plans, projections and forecasts of future
events or future financial results Borrower does not represent or warrant the achievement of the future results or the occurrence
of the future events.


 


§9.3 Additional
Agreements Relating to Disclosure. As long as this Agreement is in effect, Borrower shall perform and observe the following:


 


(a) Accounting
Methods and Financial Records. Maintain a system of accounting, and keep such books, records and accounts (which shall be
true and complete), as may be required or necessary to permit (i) the preparation of financial statements required to be delivered
pursuant to §9.1 and (ii) the determination of Borrower’s compliance with the terms of this Agreement and the other
Credit Documents.


 


(b) Visits and
Inspections. Permit representatives (whether or not officers or employees) of Bank, from time to time during normal business
hours, and as often as may be reasonably requested, to (i) visit and, upon reasonable prior notice, inspect any properties of
Borrower and the Subsidiaries, (ii) inspect and make extracts from the books and records (including but not limited to management
letters prepared by Borrower’s independent accountants), (iii) discuss with principal officers of Borrower and the Subsidiaries
and the independent accountants of each the businesses, assets, liabilities, financial conditions, results of operations and business
prospects of Borrower and its Subsidiaries and (iv) inspect the Collateral and the premises upon which any thereof is located,
and verify the amount, quality, quantity, value and condition thereof of, or any other matter relating thereto.


 


§10. DEFAULT.


 


§10.1 Events
of Default. Each of the following shall constitute an Event of Default, whatever the reason for such event and whether it
is voluntary or involuntary, or within or without the control of Borrower, or is effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any Governmental Authority or quasi-governmental body:


 


(a) Borrower fails
to pay when due any amount in respect of principal of or interest on the Advance; or Borrower fails to pay when due any other
Obligation which failure is not cured within any applicable cure period;



    	-29-



    	



    

(b) Any Representation
and Warranty at any time proves to have been incorrect, misleading or incomplete when made or deemed made; or


 


(c) Borrower defaults
in the performance or observance of any covenant contained in §8 or §9 hereof; or


 


(d) Borrower defaults
in the performance or observance of any term, covenant, condition or agreement contained in this Agreement (other than a default
described in §10.1(a) or (c)) and, if the default is reasonably capable of being cured, such default shall remain uncured
for a period of 30 days after written notice thereof to Borrower; or


 


(e) An Event of Default
as that term is defined in any Credit Document occurs; or


 


(f) Any Obligor defaults
in the performance or observance of any term, covenant, condition or agreement contained in any Credit Document (other than this
Agreement and other than as described in §10.1(e)), and, if the default is reasonably capable of being cured, such default
remains uncured for a period of 30 days after written notice thereof to Borrower or such Obligor; or


 


(g) (i) Borrower
or any Subsidiary (A) commences a voluntary case under the Federal bankruptcy laws (as now or hereafter in effect) or under any
other bankruptcy or insolvency law of any jurisdiction, (B) files a petition seeking to take advantage of any other laws, domestic
or foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, (C) consents
to, or fail to contest in a timely and appropriate manner, any petition filed against it in an involuntary case under such bankruptcy
laws or other laws, (D) applies for, or consent to, or fails to contest in a timely and appropriate manner, the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its assets,
domestic or foreign, (E) admits in writing its inability to pay, or generally not be paying, its debts (other than those that
are the subject of bona fide disputes) as they become due, (F) makes a general assignment for the benefit of creditors, or (G)
takes any corporate action for the purpose of effecting any of the foregoing; or


 


(ii) A case or other
proceeding is commenced against Borrower or any Subsidiary in any court of competent jurisdiction seeking (A) relief under the
Federal bankruptcy laws (as now or hereafter in effect) or under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts, or (B) the appointment of a trustee, receiver, custodian, liquidator
or the like of Borrower or any Subsidiary of all or any substantial part of the assets, domestic or foreign, of Borrower or such
Subsidiary or, and, in each case, such case or proceeding shall continue undismissed or unstayed for a period of 30 days, or an
order granting the relief requested in such case or proceeding against Borrower or such Subsidiary (including, but not limited
to, an order for relief under such Federal bankruptcy laws) shall be entered; or


 


(h) A judgment or
order for the payment of money in an amount that exceeds by $150,000.00 the amount of insurance coverage applicable thereto is
entered against Borrower or any Subsidiary by any court and either (A) such judgment or order shall continue undischarged and/or
unbonded or unstayed for a period of 30 days or (B) enforcement proceedings shall have been commenced upon such judgment or order;
or



    	-30-



    	



    

(i) Any Obligor makes
any written statement or brings any action challenging the enforceability or binding effect of any of the Credit Documents; or


 


(j) The dissolution
of any Obligor occurs except as expressly permitted herein; or


 


(k) A Change of Control
or a Material Management Change occurs; or


 


(l) Borrower or any
Subsidiary engages, or is indicated for engaging, in any conduct or activity that constitutes a felony (or the equivalent thereof
under Applicable Law); or


 


(m) All or a substantial
part of the Collateral is nationalized, expropriated, seized or otherwise appropriated, or custody or control of such property
or of any Collateral is assumed by any Governmental Authority or any court of competent jurisdiction at the instance of any Governmental
Authority and the same has or is reasonably likely to have a Material Adverse Effect; or


 


(n) Borrower breaches
any of the material terms or conditions of any agreement under which any Rate Hedging Obligation is created and such breach continues
beyond any applicable grace period, or any action is taken by Borrower to discontinue (except with the consent of Bank if it is
a counterparty to such agreement) or assert the invalidity or unenforceability of any such agreement or Rate Hedging Obligation;
or


 


(o) Bank fails or
ceases to have a perfected, first-priority (subject to Permitted Liens) security interest in any of the Collateral; or


 


(p) Bank determines
in good faith that it is insecure, that a material adverse change in any Obligor’s financial condition has occurred, or
that any Obligor’s ability to perform its or his obligations under any Credit Document has been materially impaired; or


 


(q) Borrower or any
Subsidiary defaults in the payment of any Debt in excess of $150,000.00; or


 


(r) Borrower or any
Subsidiary makes any transfer of assets owned by it for less than their equivalent value; or


 


(s) An Event of Default,
as that term is defined in any credit agreement, note, security agreement or mortgage made by Borrower or a Subsidiary with or
in favor of Bank (other than a Credit Document), including, but not limited to, an Event of Default as that term is defined in
the Revolving Credit Agreement or an Event of Default as that term is defined in the Existing Term Note, occurs.


 


§10.2 Remedies.
(a) If and at any time after a Default occurs, Bank’s obligation to the Advance hereunder shall, at Bank’s sole option,
be suspended; provided, however, if Borrower cures such event or condition to Bank’s satisfaction prior to its becoming
an Event of Default, such obligation shall be reinstated. Upon the occurrence of an Event of Default, Bank’s obligation
to make the Advance hereunder shall, at Bank’s option, terminate.


 


(b) At any time after
the occurrence of an Event of Default, Bank may, by notice to Borrower, declare the Note and the Advance and interest accrued
thereon and all other amounts (including contingent obligations) owing under the Credit Documents to be immediately due and payable,
whereupon the Note, the Advance, all such interest and all such other



    	-31-



    	



    

amounts shall become
and be immediately due and payable, without presentment, demand, protest or further notice of any kind, all of which are expressly
waived by Borrower; provided, however, that upon the occurrence of an Event of Default described in §10.1(g), such obligation
of Bank shall automatically terminate, the Note, the Advance, all such interest and all such other amounts shall automatically
become and be due and payable in full without presentment, demand, protest or notice of any kind.


 


§10.3 No
Waiver; Remedies Cumulative. No failure on the part of Bank to exercise, and no delay in exercising, any right under any Credit
Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Credit Document preclude
any other or further exercise thereof or the exercise of any other right. The remedies provided in the Credit Documents are cumulative
and not exclusive of any remedies provided by Applicable Law or the other Credit Documents.


 


§11. MISCELLANEOUS.


 


§11.1 Amendments,
Etc. No amendment or waiver of any provision of this Agreement or other Credit Document, nor consent to any departure by
Borrower therefrom, shall in any event be effective unless the amendment or waiver is in writing and signed by the party
against whom enforcement is sought and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.


 


§11.2 Costs,
Expenses and Taxes. Borrower shall pay (or, if already paid, reimburse Bank for) on demand: (a) all reasonable costs and expenses
in connection with the preparation, execution, delivery, filing, recording and administration of the Credit Documents, including
the reasonable fees and out-of-pocket expenses of counsel for Bank, with respect thereto, with respect to any modifications thereof,
with respect to reviewing and evaluating any Collateral and with respect to advising Bank as to its rights and responsibilities
under the Credit Documents after an Event of Default or Default, (b) all costs and expenses (including reasonable counsel fees
and expenses, including those incurred at the appellate level and in any insolvency proceedings) in connection with the enforcement
of the Credit Documents, and (c) without limiting the generality of clause (a) above, all surveying costs, all appraisal fees,
all environmental review costs, all title insurance premiums, all search costs, all filing fees, and all Collateral inspection
expenses. Bank is hereby irrevocably authorized (but not required) to deduct any of the foregoing items from any account of Borrower
with Bank; provided, that Bank shall provide to Borrower a statement of such items before any such deduction. In addition, Borrower
shall pay on demand any and all documentary stamp, intangibles and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing or recording of the Credit Documents or in connection with the Advance, and agrees
to indemnify and save Bank harmless from and against any and all liabilities with respect to or resulting from any delay in paying
or omission to pay such taxes and fees. Without limiting the force or effect of the immediately preceding sentence, Borrower hereby
authorizes Bank to deduct from the amount of the Advance that is disbursed to Borrower the amount of any intangibles or documentary
stamp tax that may be payable in connection with the Advance.


 


§11.3 Certain
Collateral. As security for all Obligations, Borrower hereby grants Bank a continuing lien on and security interest in all
deposit accounts (whether now existing or hereafter established) of Borrower with Bank or any affiliate thereof and all other
property of Borrower that is now or hereafter owed by or in the possession or control of any branch or affiliate of Bank. At any
time after an Event of Default, Bank may set off and apply any such



    	-32-



    	



    

deposit accounts against
any and all obligations of Borrower under the Credit Documents, provided Bank shall have made demand on Borrower under a Credit
Document. Bank shall endeavor to promptly notify Borrower after any such setoff has been made but shall not be liable to Borrower
for failing to do so.


 


§11.4 No
Joint Venture. Nothing contained in any Credit Document shall be deemed or construed by the parties hereto or by any third
person to create the relationship of principal and agent or of partnership or joint venture or of any association between Bank
and Borrower other than the relationship of creditor and debtor.


 


§11.5 Survival.
All covenants, agreements and Representations and Warranties made by Borrower in this Agreement shall, notwithstanding any investigation
by Bank, be deemed material and have been relied upon by Bank and shall survive the execution and delivery to Bank of this Agreement.


 


§11.6 Further
Assurances. Borrower shall, upon the request of Bank, execute and deliver such further documents and do such further acts
as Bank may reasonably request in order to fully effectuate the purposes of any Credit Document. In addition, without limiting
the generality of the foregoing, Borrower shall promptly do (and shall cause any Obligor to do) whatever Bank requests to cure
any obvious error (including any omission) in any of the Credit Documents.


 


§11.7 Sovereign
Immunity; Government Interference. To the extent that Borrower or a Subsidiary has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or notice, attachment in aid of execution, attachment
prior to judgment, execution or otherwise) with respect to itself or its property, Borrower hereby irrevocably waives such immunity
in respect of its obligations hereunder or any other Credit Documents. In addition, Borrower hereby irrevocably waives, as a defense
to any action arising out of or relating hereto, the interference of any administrative or governmental authority of the jurisdiction(s)
in which Borrower is domiciled or the impossibility of performance resulting from any law or regulation, or from any change in
the law or regulations, of such jurisdiction(s).


 


§11.8 Assignment.
This Agreement may not be assigned by Borrower without Bank’s prior written consent and any such assignment or attempted
assignment without such prior written consent shall be null and void. Bank, without Borrower’s consent, but with prior notice,
may assign, in whole or in part, this Agreement, any other Credit Documents and the Advance and, in connection therewith, may
make whatever disclosures regarding Borrower, any Subsidiaries or any of the Collateral it considers desirable. This Agreement
shall be binding upon and shall inure to the benefit of Borrower’s and Bank’s respective successors and assigns. With
respect to Borrower’s successors and assigns, such successors and assigns shall include any receiver, trustee or debtor-in-possession
of or for Borrower.


 


§11.9 Notices.
All notices, requests, approvals, consents and other communications provided for hereunder shall be in writing and hand-delivered
by a reputable national courier service such as FedEx, if to Borrower, at its address at 85 Fifth Avenue, New York, New York,
Attention: Chief Financial Officer, and if, to Bank, at its address at 1177 Avenue of the Americas, New York, New York 10036-2790,
Attention: General Counsel, or, as to each party, at such other address as shall be designated by such party in a written notice
to the other party. All such communications shall, when hand-delivered, be effective when



    	-33-



    	



    

received or refused except
that notices to Bank shall not be effective unless and until received by an officer of Bank.


 


§11.10 Taxes.
All payments provided for herein or in any other Credit Documents shall be made free and clear of any deductions for any present
or future Taxes. If any Taxes are imposed or required to be withheld from any payment, then, to the extent such Taxes are generally
paid by other borrowers of Bank, Borrower shall (a) increase the amount of such payment so that Bank will receive a net amount
(after deduction of all Taxes) equal to the amount due hereunder and (b) promptly pay all Taxes to the appropriate taxing authority
for the account of Bank and, as promptly as possible thereafter, send Bank an original receipt showing payment thereof, together
with such additional documentary evidence as Bank may from time to time reasonably require. Borrower shall indemnify Bank from
and against any and all Taxes (irrespective of when imposed) and any related interest and penalties that may become payable by
Bank as a consequence of Borrower’s failure to perform any of its obligations under the preceding sentence.


 


§11.11 Entire
Agreement. This Agreement and the other Credit Documents supersede all prior negotiations, communications and agreements (written
or oral), discussions and correspondence concerning the subject matter hereof. Borrower and Bank agree that any inconsistency
or discrepancy between the provisions of this Agreement and any other documentation evidencing the Obligations of Borrower to
Bank shall be resolved in the manner most favorable to Bank.


 


§11.12 Counterparts;
Electronic Transmission. This Agreement may be executed in any number of counterparts, each of which, when so executed, shall
be deemed to be an original and all of which, taken together, shall constitute one and the same Agreement. Delivery of any executed
counterpart of this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
Borrower acknowledges that information and documents relating to this Agreement and the credit accommodations provided for herein
may be transmitted through electronic means.


 


§11.13 Patriot
Act Notice; OFAC. Bank hereby notifies Borrower and the Subsidiaries that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended (the “Patriot Act”), and Bank’s
policies and practices, Bank is required to obtain, verify and record certain information and documentation that identifies Borrower
and the Subsidiaries, which information includes the name and address of Borrower and the Subsidiaries and such other information
that will allow Bank to identify Borrower and the Subsidiaries in accordance with the Patriot Act. Borrower represents and covenants
that neither it nor any Subsidiary will knowingly become a person (individually, a “Prohibited Person” and collectively
“Prohibited Persons”) listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office
of Foreign Asset Control, U.S. Department of the Treasury (the “OFAC List”) or otherwise subject to any other prohibitions
or restriction imposed by laws, rules, regulations or executive orders, including Executive Order No. 13224, administered by OFAC
(collectively the “OFAC Rules”). Borrower represents and covenants that neither it nor any Subsidiary (a) is or will
become directly or indirectly owned or controlled by a Prohibited Person, (b) is acting or will knowingly act for or on behalf
of a Prohibited Person, (c) is (to Borrower’s knowledge) otherwise associated with or will knowingly become associated with
a Prohibited Person, (d) is providing or will knowingly provide any material, financial or technological support for or financial
or other service to or in support of acts of terrorism or a Prohibited Person. Borrower will not knowingly transfer any interest
in



    	-34-



    	



    

Borrower to a Prohibited
Person and will ensure no Subsidiary does so. Borrower shall immediately notify Bank if Borrower or any Subsidiary has knowledge
that any member or beneficial owner of Borrower or a Subsidiary or any constituent entity thereof is or becomes a Prohibited Person
or (i) is indicted on or (ii) arraigned and held over on charges involving money laundering or predicate crimes to money laundering.
Borrower will not enter into any transaction or undertake any activities related to the Credit Extensions in violation of the
federal Bank Secrecy Act, as amended (“BSA”), 31 U.S.C. §5311, et seq. or any federal or state laws, rules, regulations
or executive orders, including, but not limited to, 18 U.S.C. §§1956, 1957 and 1960, prohibiting money laundering and
terrorist financing (collectively, “Anti-Money Laundering Laws”) and will ensure no Subsidiary does so. Borrower shall
(A) not use or knowingly permit the use of any proceeds of the Credit Extensions in any way that will violate either the OFAC
Rules or Anti-Money Laundering Laws and will ensure no Subsidiary does so, (B) comply and cause all of the Subsidiaries to comply
with applicable OFAC Rules and Anti-Money Laundering Laws, (C) provide information as Bank may require from time to time to permit
Bank to satisfy its obligations under the OFAC Rules and/or the Anti-Money Laundering Laws and (D) not knowingly engage in or
conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the foregoing, and ensure that no Subsidiary does so.


 


§11.14 Severability.
The provisions of this Agreement and each other Credit Document are severable and if any provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or unenforceability shall not in any manner affect or invalidate
such provision in any other jurisdiction or any other provision of any of the Credit Documents in any jurisdiction.


 


§11.15 No
Third-Party Reliance; Not a Fiduciary, Etc. (a) The agreements of Bank hereunder are made solely for the benefit of
Borrower and the benefit of Bank, as applicable, and may not be relied upon or enforced by any other person.


 


(b) Borrower hereby
acknowledges that Bank is acting pursuant to a contractual relationship on an arm’s-length basis, and the parties hereto
do not intend that Bank act or be responsible as a fiduciary to Borrower, Borrower’s management, stockholders, creditors
or any other person. Borrower and Bank hereby expressly disclaim any fiduciary relationship and agree each party is responsible
for making its own independent judgments with respect to any transactions entered into between the parties. Borrower also hereby
acknowledges that Bank has not advised and is not advising Borrower as to any legal, accounting, regulatory or tax matters, and
that Borrower is consulting its own advisors concerning such matters to the extent Borrower deems it appropriate.


 


§11.16 Further
Assurances; Corrections of Defects. Borrower intending to be legally bound hereby, agrees to promptly correct any defect,
error or omission, upon the request of Bank, which may be discovered in the contents of any of the Credit Documents, or in the
execution or acknowledgement hereof, and Borrower shall execute, or re-execute, acknowledge and deliver such further instruments
and do such further acts as may be necessary or as may be reasonably requested by Bank to satisfy the terms and conditions of
the Credit Documents, and all documents executed in connection therewith, including but not limited to the recording, filing or
perfecting of any document given for securing and perfecting liens, mortgages, security interests and interests to secure the
obligations evidenced by the Credit Documents, and shall cause each Subsidiary to do so.



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§11.17 Usury
Savings Clause. Borrower and Bank intend that interest not be charged at a rate or in an amount exceeding the maximum rate
or amount permitted by Applicable Law. Should any interest or other charges paid or payable hereunder result in the computation
or earning of interest in excess of the maximum rate or amount of interest permitted by Applicable Law, such excess interest and
charges shall be (and the same hereby are) waived by Bank, and the amount of such excess paid shall be automatically credited
against, and be deemed to have been payments in reduction of, the principal then due hereunder, and any portion of such excess
paid which exceeds the principal then due hereunder shall be paid by Bank to Borrower.


 


§11.18 Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard
to any conflicts-of-law rule or principle that would give effect to the law of another jurisdiction.


 


§11.19 Jurisdiction.
Borrower hereby irrevocably agrees that any action or proceeding relating to any Credit Document that is brought by Bank may be
tried by the courts of the State of New York sitting in or for New York County, New York, or the United States district courts
sitting in or for such county. Borrower hereby irrevocably submits, in any such action or proceeding, to the non-exclusive jurisdiction
of each such court and irrevocably waives the defense of an inconvenient forum with respect to any such action or proceeding.


 


§11.20 Approvals
and Consents. Bank may grant or deny any approval or consent contemplated hereby in its reasonable discretion, except as otherwise
provided herein.


 


§11.21 Indemnification;
Limitation of Liability. Borrower shall indemnify and hold harmless Bank and each of its affiliates and their respective officers,
directors, employees, agents and advisors (each, an “Indemnified Party”) from and against any and all claims, damages,
losses, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) that may be incurred by
or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including
without limitation in connection with any investigation, litigation, or proceeding or preparation of defense in connection therewith)
the Credit Documents, any Collateral, any of the transactions contemplated herein or the actual or proposed use of the proceeds
of the Advance or the manufacture, storage, transportation, release or disposal of any Hazardous Material on, from, over or affecting
any of the Collateral or any of the assets, properties or operations of Borrower, any Subsidiary or any predecessor in interest,
directly or indirectly, except to the extent such claim, damage, loss, liability, cost or expense results from such Indemnified
Party’s gross negligence or willful misconduct or willful breach of this Agreement. In the case of an investigation, litigation
or other proceeding to which the indemnity in this §11.21 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by Borrower, its directors, shareholders or creditors or an Indemnified Party
or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby
are consummated. Borrower hereby waives and agrees not to assert any claim against Bank, any of its affiliates, or any of their
respective directors, officers, employees, attorneys, agents and advisers, on any theory of liability, for special, indirect,
consequential, or punitive damages arising out of or otherwise relating to the Credit Documents, any of the transactions contemplated
herein or therein or the actual or proposed use of the proceeds of the Advance. To the extent that any of the indemnities required
from Borrower under this §11.21 are unenforceable because they violate any Applicable Law or public policy, Borrower shall
pay the maximum amount which it is permitted to pay under Applicable Law.



    	-36-



    	



    

§11.22 Jury
Trial Waiver. BORROWER AND BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, CROSS CLAIMS OR THIRD PARTY CLAIMS) ARISING
OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS TO WHICH EITHER IS A PARTY. BORROWER HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF BANK NOR BANK’S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK
WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. BORROWER ACKNOWLEDGES
THAT THE PROVISIONS OF THIS §11.22 HAVE BEEN A MATERIAL INDUCEMENT TO BANK TO ENTER INTO THIS AGREEMENT AND TO MAKE ADVANCES
HEREUNDER.


 


(Signature page follows)



    	-37-



    	



    

IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the
date hereof.


 








	 	ARK RESTAURANTS CORP. 
	 	 
	 	By:  /s/: Robert Stewart
	 	Name: Robert Stewart
	 	Title: President
	 	 
	 	BANK HAPOALIM B.M.
	 	 	 





	 	By: 	 
	 	Name: 	 
	 	Title: 	 
	 	 	 
	 	By: 	 
	 	Name: 	 
	 	Title: 	 










    	-38-



    	



    

EXHIBIT A


 


UNITS


 


Units C1, C2, C3 and C4 and Apartments
Nos. 111 and 201, ISLAND BEACH CLUB, A CONDOMINIUM, according to the Declaration of Condominium recorded in Official Records Book
343, at Page 372, and all exhibits and amendments thereof, Public Records of St. Lucie County, Florida, together with the undivided
share of common elements and the limited common elements appurtenant thereto.



    	-39-



    	



    

SCHEDULE 6.2


 


SUBSIDIARIES


 


	Subsidiary	Trade
    name(s)	Jurisdiction of

    Incorporation
	1. Ark AC Burger Bar
        LLC	Broadway Burger Bar and Grill	Delaware
	 	 	 
	2. Ark Atlantic City
        Corp.	Gallagher’s Burger Bar	Delaware
	 	 	 
	3. Ark
    Atlantic City Restaurant Corp.	Gallagher’s Steakhouse	Delaware
	 	 	 
	4. Ark
    Basketball City Corp.	 	New York
	 	 	 
	5. Ark
    Boston RSS Corp.	Durgin Park and Blackhorse
    Tavern	Delaware
	 	 	 
	6. Ark
    Bryant Park LLC	Bryant Park Grill & Café	Delaware
	 	 	 
	7. Ark
    Connecticut Corp.	 	Delaware
	 	 	 
	8. Ark
    Connecticut Branches Corp.	The Grill at Two Trees	Delaware
	 	 	 
	9. Ark
    Connecticut Investment LLC	 	Delaware
	 	 	 
	10. Ark
    Connecticut Pizza LLC	 	Delaware
	 	 	 
	11. Ark
    Connecticut Poker LLC	 	Delaware
	 	 	 
	12. Ark
    Fifth Avenue Corp.	 	New York
	 	 	 
	13. Ark
    D.C. Kiosk, Inc.	Center Café	District of Columbia
	 	 	 
	14. Ark
    Hollywood/Tampa Corp.	 	Delaware
	 	 	 
	15. Ark
    Hollywood/Tampa Investments LLC	 	Delaware
	 	 	 
	16. Ark
    Hollywood LLC	 	Delaware
	 	 	 
	17. Ark
    Jupiter RI, LLC	 	Delaware
	 	 	 
	18. Ark
    Las Vegas Restaurant Corp.	 	Nevada
	 	 	 
	19. Ark
    Mad Events LLC	 	Delaware
	 	 	 
	20. Ark
    Meadowlands LLC	 	Delaware
	 	 	 
	21. Ark
    Museum LLC	Robert	Delaware
	 	 	 
	22. Ark
    Operating Corp.	El Rio Grande	New York
	 	 	 
	23. Ark
    Potomac Corporation	Sequoia	District of Columbia




    	-40-



    	



    

	24. Ark
    Rio Corp.	El Rio Grande	New York
	 	 	 
	25. Ark
    Rustic Inn LLC	 	Delaware
	 	 	 
	26. Ark
    Rustic Inn Real Estate LLC	 	Delaware
	 	 	 
	27. Ark
    Southwest D.C. Corp.	Thunder Grill	District of Columbia
	 	 	 
	28. Ark
    Union Station, Inc.	America	District of Columbia
	 	 	 
	29. ArkMod,
    LLC	 	New York
	 	 	 
	30. Chefmod,
    LLC	 	New York
	 	 	 
	31. Clyde
    Ark LLC	Clyde Frazier’s Wine
    and Dine	New York
	 	 	 
	32. Las
    Vegas America Corp.	America	Nevada
	 	 	 
	33. Las
    Vegas Festival Food Corp.	(1) Gonzalez y Gonzalez (2)
    Village Eateries (New York-New York Hotel Food Court) (3) Broadway Burger Bar	Nevada
	 	 	 
	34. Las
    Vegas Planet Mexico Corp.	Yolos	Nevada
	 	 	 
	35. Las
    Vegas Steakhouse Corp.	Gallagher’s Steakhouse	Nevada
	 	 	 
	36. Las
    Vegas Venice Deli Corp.	Towers Deli (Venetian Food
    Court) (closed)	Nevada
	 	 	 
	37. Las
    Vegas Venice Food Corp.	Shake N Burger (Venetian Food
    Court)	Nevada
	 	 	 
	38. Las
    Vegas Whiskey Bar, Inc.	VBAR (closing 10/31/15)	Las Vegas
	 	 	 
	39. MEB
    on First LLC	Canyon Road Grill	New York
	 	 	 
	40. Rio
    Restaurant Associates, L.P.	 	New York
	 	 	 
	41. Rio
    Restaurant Associates Holdings, L.P.	 	New York
	 	 	 
	42. Ark
    Bryant Park Southwest LLC	Southwest Porch	Delaware
	 	 	 
	43. Ark
    37 38 Events, LLC	 	Delaware
	 	 	 
	44. Ark
    Shuckers LLC	 	Delaware
	 	 	 
	45. Ark
    Shuckers Real Estate LLC	 	Delaware
	 	 	 
	46. Ark
    Island Beach Resort LLC	 	Delaware




    	-41-



    	



    



SCHEDULE 6.5


 


LITIGATION



    	-42-



    	



    

SCHEDULE 6.16


 


EMPLOYMENT MATTERS



    	-43-



    	



    

SCHEDULE 7.6


 


PERMITTED DEBT



    	-44-