Exhibit
10.7


 


CREDIT AGREEMENT

(REVOLVING FACILITY)


 


between


 


ARK RESTAURANTS
CORP.


 


and


 


bank hapoalim
b.m.


 


dated as of


 


October 21, 2015



    	 



    	



    

CREDIT AGREEMENT


(REVOLVING
FACILITY)


 


Dated as of: October 21, 2015


 


This CREDIT AGREEMENT
(REVOLVING 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:


 


“AC” shall
mean Ark AC Burger Bar LLC, a Delaware limited liability company.


 


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


 


“AC Collateral”
shall mean all of AC’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.


 


“Advance”
shall mean a loan made by Bank to Borrower 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.


 


“Approved Project
Budget” shall mean, with respect to a Project a line item budget for the Project Costs of that Project submitted by Borrower
to Bank and approved by Bank in writing.


 


“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 to any time period, Borrower's and the Subsidiaries' cash on hand at the beginning of that
period.



    	 



    	



    

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


 


“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 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, and 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).


 


“Borrowing Notice”
shall mean a notice delivered by an Authorized Representative in connection with an Advance in the form of Exhibit A hereto (with
such modifications as Bank may require from time to time).


 


“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 Project Subsidiary, the shares of stock, membership interests or other equity interest in that Project
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 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 and the Project Subsidiary Collateral, collectively.



    	-2-



    	



    

“Commitment Termination
Date” shall mean the date that falls two years after the Agreement Date.


 


“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 §9.1(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 Notes).


 


“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 Notes, the Security Agreements, the Pledge Agreements, the Mortgages, the SBLC Agreements and any
other 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 Extensions”
shall mean Advances and SBLCs.


 


“Credit Facility”
shall mean the Credit Extensions collectively.


 


“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.



    	-3-



    	



    

“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
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, 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 Project Subsidiary, the shares of stock in, or other certificates evidencing ownership of an equity
interest in, that Project 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.


 


“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



    	-4-



    	



    

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 a September 30th.


 


“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.


 


“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.



    	-5-



    	



    

“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 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).


 


“Interest-Only
Period” shall mean, with respect to the Advances for any Project, the period beginning on the date the first of those Advances
is made and ending on the earlier to occur of (i) six months later and (ii) the Commitment Termination Date.


 


“Interest Periods”
shall mean, with respect to an Advance during the Interest-Only Period for such Advance, successive periods of either one day,
one week, or one month each as selected by Borrower in its Borrowing Notice (or, if no such selection is timely made, one week)
the first of which begins on the date such Advance is made and each subsequent one of which begins when the previous one ends.
“Interest Periods” shall mean with respect to an Advance during the Term-Out Period for such Advance, successive periods
of one month each, the first of which begins on the first day of such Term-Out Period and each subsequent one of which begins when
the previous one ends.


 


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


 


“Las Vegas Amended
and Restated Pledge Agreement” shall have the meaning given that term in §5.1.


 


“Las Vegas Collateral”
shall mean the shares of stock owned by Las Vegas which are currently covered by the Borrower Security Agreement.


 


“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 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.
If



    	-6-



    	



    

the reporting service
used by Bank refers to 7 days rather than one week, references in this definition to one week shall be read as references to 7
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, 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 a Subsidiary which Bank judges to be material.


 


“Mortgage”
shall have the meaning given that term in §5.2(c).


 


“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.


 


“Notes” shall
mean the Revolving Note and any and all Term Notes and “Note” shall mean any of the foregoing.


 


“Obligations”
shall mean all indebtedness, liabilities, obligations and duties of Borrower and the Project Subsidiaries (or any of them) to
Bank arising under or in connection with this Agreement, the Notes 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 and Project Subsidiaries.


 


“Overall Facility
Exposure” shall mean at any time the sum of (a) the then total outstanding principal amount of Advances, plus (b) the total
amount then available (or potentially available) under then open or outstanding SBLCs and (c) the aggregate amount theretofore
paid by Bank under SBLCs that has not yet been reimbursed to Bank.



    	-7-



    	



    

“Overall Facility
Limit” shall mean at any time the lesser of (a) $10,000,000.00 and (b) $20,000,000.00 less the then aggregate amount of all
indebtedness and obligations of Borrower to Bank (whether direct or contingent); provided, that effective on the last day of the
Fiscal Period ending on or about December 31, 2015 and on the last day of each Fiscal Period thereafter, the Overall Facility Limit
shall be reduced by $250,000.00 from that amount in effect immediately preceding such reduction.


 


“PBGC” shall
mean the Pension Benefit Guaranty Corporation.


 


“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.


 


“Pledge Agreement”
shall have the meaning given that term in §5.2(b).


 


“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.


 


“Project”
shall mean, with respect to a Restaurant, any one or more of the following: acquiring the Restaurant, building out or renovating
the Restaurant and furnishing and equipping the Restaurant financed either partly or completely by Advances.


 


“Project Costs”
shall mean, with respect to a Project, the costs and expenses incurred in carrying out the Project.



    	-8-



    	



    

“Project Draw
Period “ shall mean, with respect to a Project, the period beginning on the date the first Advance for such Project is
made and ending on the earlier to occur of: (i) six months, less five Business Days from the end of such six month
period, thereafter and (ii) the Commitment termination Date.


 


“Project Subsidiary”
shall mean wholly owned Subsidiary of Borrower which owns or leases a Restaurant which is the subject of a Project.


 


“Project Subsidiary
Collateral” shall mean all 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 owned by Project Subsidiaries, and, at Bank’s discretion, all Real Estate owned by Project Subsidiaries, whether
now owned or hereafter acquired, whether now existing or hereafter created or arising and wherever located.


 


“Project Subsidiary
Security Agreement” shall have the meaning given that term in §5.2(a).


 


“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 Estate”
shall mean real property now or hereafter owned in fee or leased by a Project Subsidiary or Borrower.


 


“Representation
and Warranty” shall mean each representation and/or warranty made by Borrower pursuant to or under (i) §6 or any other
provision of this Agreement or any other Credit Document, (ii) any amendment of or waiver or consent under this Agreement, (iii)
any Schedule to this Agreement or any such amendment, waiver or consent, or (iv) 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 (i),
(ii), (iii) or (iv) of this definition, the information that is the subject matter thereof is within the knowledge of Borrower.


 


“Restaurant”
shall mean a restaurant (and, where applicable, adjoining gift shop) or a kiosk or concession stand selling food and/or beverages,
in any case located in the continental United States and owned or leased by a Project Subsidiary.


 


“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 or substitute therefor.



    	-9-



    	



    

“Rio” shall
mean Rio Restaurant Associates L.P., a New York limited partnership.


 


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


 


“Rio Collateral”
shall mean all of Rio’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.


 


“SBLCs”
shall mean the standby letters of credit listed on Schedule 1 attached hereto, and any other standby letters of credit issued
by Bank for the account of Borrower or for the account of Borrower and a Project Subsidiary jointly.


 


“SBLC
Agreement” shall mean a letter of credit application and agreement under which an SBLC is applied for on or after the
Agreement Date or was applied for prior to the Agreement Date.


 


“SBLC Exposure”
shall mean at any time the sum of (a) the amount then available (or potentially available) under then open or outstanding SBLCs
plus (b) the aggregate amount theretofore paid by Bank under SBLCs that has not yet been reimbursed to Bank.


 


“SBLC Facility
Limit” shall mean $1,500,000.00.


 


“Security Agreements”
shall mean the Borrower Amended and Restated Security Agreement and the Project Subsidiary Security Agreements.


 


“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 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.


 


“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.


 


“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,



    	-10-



    	



    

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).


 


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


 


“Term Facility
Note” shall mean that certain 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 substitute therefor.


 


“Term Note”
shall mean a Term Note in the form of Exhibit B hereto (with appropriate insertions made by Bank) evidencing all of the Advances
for a Project after the Interest-Only Period for those Advances (and any modification, renewal or consolidation thereof or substitute
therefor).


 


“Term-Out Period”
shall mean, with respect to the Advances for a Project, the period beginning on the day after the last day of the Interest-Only
Period for those Advances and ending five years later.


 


“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.


 


“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.


 


“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.



    	-11-



    	



    

“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.


 


“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 each 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 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.



    	-12-



    	



    

§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 Advances. Bank agrees, upon and subject to the terms and conditions hereinafter set forth, to make
Advances on revolving basis from time to time during the period from the Agreement Date to (but excluding) the Commitment
Termination Date. Each Advance shall be the amount of $250,000.00 or integral multiples of $100,000.00 above that amount.


 


§2.2 
Commitment for SBLCs. Bank agrees, upon and subject to the terms and conditions hereinafter set forth, to issue SBLCs
during the period from the Agreement Date to (but excluding) the Commitment Termination Date. Each SBLC shall have an expiry
that is not later than one year after the date of its issuance and shall otherwise be in form and substance satisfactory to
Bank.


 


§2.3 
Use of Advances. Each Advance for a Project shall be deposited in the Borrowing Account. Borrower shall then contribute
the funds thus deposited to the Project Subsidiary that owns or leases the Restaurant that is the subject of that
Project. Borrower shall ensure that the funds thus contributed are used to pay the Project Costs for that Project in
accordance with the related Approved Project Budget. No more than five Advances shall be made for any one Project, the
Advances for any one Project shall not exceed a total of $5,000,000.00, all Advances for any one Project shall be made only
during the Project Draw Period applicable to the Advances for such Project, and no Advance shall be made from and after the
Commitment Termination Date. Notwithstanding the first sentence of §2.3
Bank may, in its discretion, apply any part of any Advance to pay any Debt owed by an Obligor that is secured by a
Lien (other than a Permitted Lien) on any of the Collateral.


 


§2.4 
Requesting Advances. Each Advance shall be requested only by Borrower and by its submitting to Bank a completed, signed
Borrowing Notice in the form of Exhibit A hereto (with whatever modifications Bank requires from time to time). Bank
reserves the right to require any Borrowing Notice to be submitted at least two Business Days before the date the Advance is
requested to be made. Each Borrowing Notice shall be irrevocable and binding on Borrower.



    	-13-



    	



    

§2.5 
Use of and Requests for SBLCs. Each SBLC shall be issued to the landlord of a Restaurant to meet a requirement in
a Subsidiary’s lease of the Restaurant. Each SBLC must be requested using a duly completed and executed SBLC
Agreement provided by Bank.


 


§2.6 
Limits. At no time may the Overall Facility Exposure exceed the Overall Facility Limit, and at no time may the SBLC
Exposure exceed the SBLC Facility Limit.


 


§3. PAYMENT
TERMS.


 


§3.1 
Interest Rates and Payments. (a) Interest shall accrue on the outstanding principal amount of each Advance from the date
made, during each Interest Period for such Advance, 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 accrued interest on each Advance on the last day of each Interest Period
for such Advance during the Interest-Only Period applicable to such Advance, on the last day of the Interest-Only Period
applicable to such Advance, on the last day of each Interest Period for such Advance during the Term-Out Period applicable to
such Advance, and at such Advance’s maturity (and, in the case of interest accruing after such maturity, on demand).
Notwithstanding the foregoing, after the maturity of an Advance and, if Bank elects, while an Event of Default exists prior
to such maturity, interest shall accrue on the outstanding principal amount of such 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 Advances is reduced to a level
below that which Bank could have achieved but for such circumstances, then in such case and upon prior written 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 Advances, (iii) any change in financial, political or economic conditions or the currency exchange rates makes it impractical
for Bank to accrue interest on Advances at a rate based upon the LIBOR Rate, or (iv) any change in Applicable Law makes it unlawful
for Bank to accrue interest on Advances at a rate based upon LIBOR Rate, and so notifies Borrower, thereafter the outstanding principal
amount of Advances shall, prior to their maturity, bear



    	-14-



    	



    

interest during that
period at a per annum rate equal to 0.50 percent per annum 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 Advances, 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 Advances, or to reduce any amount
receivable hereunder, 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. Subject to the provisions of §3.6, Borrower shall repay the principal of each Advance as follows: on
the last day of each Interest Period for such Advance beginning on the first such day during the Term-Out Period for that
Advance, Borrower shall make to Bank a payment in an amount equal to 1/60th of the principal amount of that Advance
outstanding on the first day of such Term-Out Period, provided that on the last day of that Term-Out Period, Borrower shall
repay to Bank the entire then unpaid principal of that Advance. Notwithstanding the foregoing, if any Advance for a Project
is made more than 18 months after the Agreement Date, then all the Advances for such Project shall be due and payable in full
on the last day of the Interest-Only Period for those Advances, unless Bank, in its sole discretion, agrees in writing that
those Advances may be paid as set forth in the first sentence of this Section 3.2(a).


 


(b) Overage Payments.
If at any time the Overall Facility Exposure exceeds the Overall Facility Limit, Borrower shall, within two Business Days after
Bank’s demand, prepay the principal of Advances in the amount of the excess. If at any time the SBLC Exposure exceeds the
SBLC Facility Limit, Borrower shall, within two Business Days after Bank's demand, deposit with and assign to Bank as collateral
for the Obligations, cash collateral in the amount of the excess. Nothing in this §3.2(b) shall be construed to restrict Bank’s
right to accelerate the Obligations or pursue its other remedies under §10 based on the Overall Facility Limit's or the SBLC
Facility Limit’s being exceeded.


 


(c) Prepayments.
Borrower may on any Business Day prepay the principal amount of any Advance in whole or in part provided, however, that (a) Borrower
gives Bank at least two 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



    	-15-



    	



    

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 for the Advance
prepaid 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 an Advance made during the Term-Out Period for such Advance shall result in a deferral or reduction of scheduled
principal payments with respect to such Advance unless and until the Advance is repaid in full.


 


(d) Breakage Costs.
Concurrently with any prepayment of an Advance made on other than the last day of an Interest Period for that Advance, 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.


 


(e) SBLC Reimbursements.
Borrower shall pay to Bank, immediately upon the drawing, the amount of each and any drawing under a SBLC, together with interest
(from the date of the drawing to the date of payment in full) at the higher of the rate then applicable to Advances and the rate
specified in the related SBLC Agreement. If any SBLC is extended beyond one year after its issuance, or beyond the initial Commitment
Termination Date, Borrower shall deposit with Bank, and grant to Bank a security interest satisfactory to Bank in, cash collateral
in an amount equal to 105% of the amount available under that SBLC.


 


(f) SBLC Fees.
When an SBLC is issued and each time it is renewed or extended, Borrower shall pay to Bank a commission at the rate of 2.50 percent
per annum based on the face amount of the SBLC (computed in accordance with Bank’s standard practices) and such other fees
and charges with respect thereto as Bank customarily charges its customers with respect to standby letters of credit issued by
it.


 


(g) Non-Use Fee.
For each day during the period between the Agreement Date and the Commitment Termination Date, Borrower shall pay to Bank a non-use
fee equal to the product of (a) the amount by which the Overall Facility Limit exceeds the Overall Facility Exposure on that day
times (b) the quotient of .25 percent divided by 360. Such Non-Use Fee shall be paid in arrears at the end of each calendar quarter
and on the Commitment Termination Date and may be deducted by Bank without notice from the Borrowing Account or any other deposit
account of Borrower with Bank.


 


§3.3 Commitment
Fee. On or before the Agreement Date, Borrower shall pay to Bank a non-refundable facility fee in the amount of
$20,000.00.



    	-16-



    	



    

§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 a Note is not paid in full 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 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 a 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 Term
Notes. Three (3) Business Days before the last day of the Interest-Only Period for the Advances for a Project, Borrower
shall duly execute and deliver to Bank a Term Note with appropriate insertions satisfactory to Bank and evidencing those
Advances made during the Interest-Only Period and, if Borrower fails to do so with respect to the Advances for any Project,
those Advances shall be immediately due and payable in full (together with any and all accrued interest thereon) on the last
day of the Interest-Only Period for those Advances.


 


§3.7 Evidence
of Indebtedness; Impaired Note. The Advances and Borrower’s obligations to repay them, with interest in accordance
with the terms of this Agreement, shall be evidenced by this Agreement, the records of Bank, and the Notes. The records of
Bank shall be prima facie evidence (absent fraud or manifest error) of the Advances and the other indebtedness of Borrower
under this Agreement, of accrued interest thereon, of accrued fees, 



    	-17-



    	



    

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 a 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 Term Credit Agreement, the Term Facility Note or any other Credit Documents,
as that term is defined in the Term Credit Agreement, as more particularly described in the Existing Term Note and the Credit
Documents defined and described in the Term 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 Project
Subsidiary.


 


§4.2 Project
Subsidiary Collateral. The Obligations arising from, related to or connected with a Project, together with any
Obligations under a Cash Management Agreement between Bank and Project Subsidiary for such Project, shall be secured at all
times by perfected, first-priority security interest in the Project Subsidiary Collateral owned by the Project Subsidiary for
such Project. In addition, Bank may, in its discretion, require the Obligations arising from, related to or connected with a
Project, together with any Obligations under a Cash Management Agreement between Bank and Project Subsidiary for such
Project, to be secured by perfected, first-priority fee or leasehold mortgage or deed-of-trust on any Real Estate.


 


	§5.	CONDITIONS OF LENDING.




 


§5.1 Documentary
Conditions Precedent to be Satisfied Before Closing. The obligation of Bank to make the initial and each other 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 Revolving
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, all Obligations and all “Obligations” as that term is defined and used
in the Term Credit Agreement (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;



    	-18-



    	



    




(c) An amended
and restated security agreement, which amends and restates Rio’s obligations and liabilities under the Borrower
Security Agreement, duly executed by Rio, covering the Rio Collateral and securing all obligations of Borrower, Rio and AC
heretofore secured by the Borrower Security Agreement (the “Rio Amended and Restated Security Agreement”),
together with 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 Rio Amended and
Restated Security Agreement;


 


(d) An amended and
restated security agreement, which amends and restates AC’s obligations and liabilities under the Borrower Security Agreement,
duly executed by AC, covering the AC Collateral and securing all obligations of Borrower, Rio and AC heretofore secured by the
Borrower Security Agreement (the “AC Amended and Restated Security Agreement”), together with 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 AC Amended and Restated Security Agreement;


 


(e) An amended and
restated pledge and security agreement, which amends and restates Las Vegas’ obligations and liabilities under the Borrower
Security Agreement, duly executed by Las Vegas, covering the Las Vegas Collateral and securing all obligations of Borrower, Rio
and AC heretofore secured by the Borrower Security Agreement, all Obligations and all “Obligations” as that term is
defined and used in the Term Credit Agreement (the “Las Vegas Amended and Restated Pledge 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 Las Vegas Amended and Restated Pledge
Agreement; and (ii reports acceptable to Bank listing the financing statements referred to in clause (i) above and no other financing
statements;


 


(f) An Amended and
Restated Control Agreement, duly executed by Borrower, Las Vegas and Davidoff Hutcher and Citron LLP;


 


(g) A Contribution/Reimbursement
Agreement by Borrower, duly executed by Borrower, in favor of Rio, AC and Las Vegas;


 


(h) An Instruction
to Register Pledge by Borrower, duly executed by Borrower, to Ark Museum LLC, a Delaware limited liability company;


 


(i) A Confirmation
Statement and Instruction Agreement, duly executed by Ark Museum LLC, a Delaware limited liability company, to Borrower and Bank;


 


(j) An Instruction
to Register Pledge by Borrower, duly executed by Borrower, to Ark Bryant Park LLC, a Delaware limited liability company;


 


(k) A Confirmation
Statement and Instruction Agreement, duly executed by Ark Bryant Park LLC, a Delaware limited liability company, to Borrower and
Bank;


 


(l) A Termination
of Letter Agreement by and among Borrower, AC, Rio and Las Vegas, duly executed by Borrower, AC, Rio and Las Vegas;



    	-19-



    	



    




(m) Evidence of
the issuance of all insurance policies and loss payee endorsements required by the terms of the Borrower Amended and Restated
Security Agreement, the Rio Amended and Restated Security Agreement, the AC Amended and Restated Security Agreement, the Las
Vegas Rio Amended and Restated Pledge Agreement or this Agreement;


 


(n) 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 in excess of $5,000.00 except as disclosed herein;


 


(o) 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;


 


(p) 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;


 


(q) 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;


 


(r) A certified copy
of the resolutions of the board of directors of the general partner of Rio approving and authorizing each document to which Rio
is a party and all documents evidencing or requiring other necessary corporate action and Governmental Approvals, if any, with
respect to each such document;


 


(s) A certificate
of the Secretary or an Assistant Secretary of the general partner of Rio certifying the name and true signatures of its officers
to sign each document to which Rio is a party and the other documents to be delivered by Rio hereunder;


 


(t) A certificate
of status issued by the New York Secretary of State with respect to Rio and its general partner, a copy of the articles of incorporation
of the general partner of Rio certified by such Secretary of State; a copy of the certificate of limited partnership of Rio certified
by such Secretary of State; a copy of the bylaws of the general partner of Rio certified as true and complete by its Secretary
or Assistant Secretary and a copy of the limited partnership agreement of Rio certified by true and complete by the general partner
of Rio;


 


(u) A certified copy
of the resolutions of the sole member of AC approving and authorizing each document to which AC is a party and of all documents
evidencing or requiring other necessary limited liability company action and Governmental Approvals; if any, with respect to each
such Credit Document;


 


(v) A certificate
of the Secretary or Assistant Secretary of AC certifying the name and true signatures of its officers authorized to sign each document
to which AC is a party and the other documents to be delivered by AC hereunder;


 


(w) A certificate
of status issued by the Delaware Secretary of State with respect to AC; a copy of AC’s certificate of formation certified
by such Secretary of State; and a copy of AC’s operating agreement certified as true and complete by the Secretary or Assistant
Secretary of AC;



    	-20-



    	



    

(x) A certified copy
of the resolutions of the board of directors of Las Vegas approving and authorizing each document to which it is a party and of
all documents evidencing other necessary or required corporate action and Governmental Approvals, if any, with respect to each
such document;


 


(y) A certificate
of the Secretary or Assistant Secretary of Las Vegas certifying the name and true signatures of its officers authorized to sign
each document to which it is a party and the other documents to be delivered by it hereunder;


 


(z) A certificate
of status issued by the Nevada Secretary of State with respect to Las Vegas; a copy of Las Vegas’ articles of incorporation
certified by such Secretary of State; and a copy of Las Vegas’ by laws certified as true and complete by the Secretary or
Assistant Secretary of Las Vegas;


 


(aa) A favorable opinion
of Davidoff Hutcher & Citron LLP, counsel for Borrower covering such matters as Bank may require;


 


(bb) Evidence of payment
of all taxes imposed by any Governmental Authority with respect to the Note or other Credit Documents;


 


(cc) Evidence of payment
by Borrower (or, if already paid, reimbursement to Bank for) all reasonable costs and expenses in connection with the preparation,
execution, delivery, and filing of the Credit Documents, including the reasonable fees and out-of-pocket expenses of counsel for
Bank with respect thereto and all other costs incurred by Bank in connection therewith; and


 


(dd) Such other approvals,
opinions, consents and documents as Bank may reasonably request.


 


§5.2 
Documentary Conditions Precedent for Advances. The obligation of Bank to make the initial and each other Advance for a
Project is subject to the condition precedent that Bank shall receive, at least 20 Business Days before the initial Advance
for the Project, the following, all in form and substance satisfactory to Bank:


 


(a) A Security Agreement
(each, a “Project Subsidiary Security Agreement”) duly executed by the related Project Subsidiary and covering the
Project Subsidiary Collateral that is owned or to be acquired by such Project Subsidiary; 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 that Security Agreement; and (ii) reports acceptable to Bank listing
the financing statements referred to in clause (i) above and no other financing statements;


 


(b) A Pledge and Security
Agreement (each a “Pledge Agreement”) duly executed by Borrower and covering all the Capital Securities of such Project
Subsidiary; and such Project Subsidiary’s Equity Certificates together with a stock power or other appropriate transfer instrument
duly executed by Borrower in blank;


 


(c) If Bank requests
it, a mortgage or deed of trust (whichever Bank determines to be appropriate) encumbering Real Estate related to the Project and
duly executed by the Project Subsidiary owning or leasing (or to own or lease) that Real Estate (each, a “Mortgage”),



    	-21-



    	



    

together with whatever
title searches, title insurance policies, surveys and flood zone determinations Bank may require in connection with that Mortgage;


 


(d) A Contribution/Reimbursement
Agreement duly executed by Borrower in favor of the related Project Subsidiary and an Agreement for Mutual Credit Enhancement,
Contribution and Indemnity duly executed by such Project Subsidiary and each other than existing Project Subsidiary;


 


(e) If the related
Restaurant is leased by the related Project Subsidiary, a Landlord’s Lien Waiver Agreement duly executed by the owner of
that Restaurant;


 


(f) Evidence of the
issuance of all insurance policies and loss payee endorsements required by the terms of the Project Subsidiary Security Agreement
referred to in paragraph (a) above or the mortgage or deed of trust referred to in clause (d) above;


 


(g) Judgment, tax
lien and litigations searches and all relevant jurisdictions showing that there are no outstanding judgments, tax liens or pending
lawsuits against the related Project Subsidiary or any property of the related Project Subsidiary except as disclosed herein;


 


(h) A certified copy
of the resolutions of the Board of Directors or other managing body of the related Project Subsidiary approving and authorizing
each Credit Document to which that Project Subsidiary is a part of and of all documents evidencing such necessary corporate and
other action and Governmental Approvals, if any, with respect to each such Credit Documents;


 


(i) A certificate
of the Secretary or an Assistant Secretary of the related Project Subsidiary certifying the name and true signatures of its officers
authorized to sign each Credit Document to which it was a party and any other documents to be delivered by hereunder;


 


(j) A certificate
of status issued by the Secretary of State (or other appropriate Governmental Authority) with respect to the related Project Subsidiary,
and a copy of that Project Subsidiary’s articles of incorporation or operating agreement certified as true and complete by
an Authorized Representative;


 


(k) An Approved Project
Costs Budget for the related Project;


 


(l) An opinion of
Davidoff Hutcher & Citron LLP, counsel to such Project Subsidiary;


 


(m) Evidence of payment
by Borrower (or, if already paid, reimbursement to Bank for) all reasonable costs and expenses in connection with respect to the
Project the preparation, execution, delivery, recording and filing of the Project Subsidiary Security Agreement, the Pledge Agreement,
the Mortgage and all other documents required by this §5.2 with respect to the Project, including the reasonable fees and
out-of-pocket expenses of counsel for Bank with respect to the Project, all surveying costs, appraisal fees, environmental review
costs, title insurance premiums, collateral inspection expenses and all other costs reasonably incurred by Bank with respect to
the Project; and


 


(n) Such other approvals,
opinions, consents and documents as Bank may reasonably request.



    	-22-



    	



    

§5.3 Other
Conditions Precedent to Advances. The obligation of Bank to make each Advance, including the initial 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 such Advance, with and without giving effect to such 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 such Advance, with or without giving effect to such Advance
and to the application of the proceeds thereof;


 


(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) Such Advance will
not contravene any Applicable Law;


 


(e) All legal matters
incident to such 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 or any of the Real Estate;


 


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


 


(h) No limitation
set forth in §2.6 will be exceeded after such Advance is made.


 


Each Borrowing Notice
shall constitute a Representation and Warranty by Borrower, made as of the time of the making of the Advance requested by it, that,
to Borrower’s actual knowledge, the conditions specified in clauses (a) through (h) above have been fulfilled as of such
time, unless notice to the contrary is included in the paragraph entitled “Disclosure” in the Borrowing Notice for
the making of such requested Advance. To the extent that Bank agrees to make any Advance after receipt of a Borrowing Notice containing
notice in the paragraph entitled “Disclosure” that any of the conditions specified in clauses (a) through (h) above
have not been fulfilled, the Representations and Warranties pursuant to the preceding sentence shall be deemed made as modified
by the contents of such statement and repeated at the time of the making of such Advance as so modified.


 


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


 


§5.5 SBLCs.
Prior to the issuance of any SBLC, Bank shall receive a duly executed SBLC Agreement for the SBLC in form and substance
acceptable to Bank and Borrower shall fulfill all the conditions set forth in §5.1, §5.2 and §5.3 as though an
Advance



    	-23-



    	



    

were being made rather
than an SBLC being issued, and any failure to do so 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 or issue Credit Extensions, 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 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 and each
other Project Subsidiary 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 each Project Subsidiary or such Project
Subsidiary is 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 power, and has taken all necessary corporate 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 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 its 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



    	-24-



    	



    

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.


 


§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 Advances will be used by Borrower and Project Subsidiaries 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.



    	-25-



    	



    

§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 Advances 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 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;



    	-26-



    	



    

(f) The making of
the Advances 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 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:



    	-27-



    	



    

§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 or the Security Agreements.


 


§7.3 
Use of Proceeds. Use each Advance only for the purposes described in §2.3 and refrain from using proceeds of any
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.


 


§7.4 Liens.
Not incur, create or permit to exist any Lien with respect to any of the Collateral or Real Estate now owned or hereafter
acquired by Borrower or any Subsidiary, 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,



    	-28-



    	



    

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 and the Subsidiaries 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 and the Subsidiaries;


 


(e) Liens 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:


 


(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



    	-29-



    	



    

(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.


 


§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 Notes.


 


§7.15 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- 



    	-30-



    	



    

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 maintaina 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:


 


(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.



    	-31-



    	



    

(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 other Credit Documents or any transaction contemplated hereby
or thereby; (iii) any amendment of the articles of incorporation or bylaws of Borrower or of 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



    	-32-



    	



    

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.


 


(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 (i), (ii) and (iii); 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



    	-33-



    	



    

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 the 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 any Advance or any amount owing with respect to an SBLC; or
Borrower fails to pay when due any other Obligation which failure is not cured within any applicable cure period; or


 


(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) 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, 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


 


(f) (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



    	-34-



    	



    

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 60
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


 


(g) 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


 


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


 


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


 


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


 


(k) 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


 


(l) 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 or Real Estate 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


 


(m) 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


 


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


 


(o) 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


 


(p) There occurs an
Event of Default under or as defined in any agreement made by an Obligor with or in favor of Bank with respect to an SBLC; or


 


(q) A Project Subsidiary’s
lease of a Restaurant is terminated; or


 


(r) Borrower or any
Project Subsidiary defaults in the payment of any Debt in excess of $100,000.00; or



    	-35-



    	



    

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


 


(t) An Event of
Default as that term is defined in any credit agreement, security agreement, note 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 Term 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 make Advances 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 Advances 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, (i) declare the Notes and all Advances and interest
accrued thereon and all other amounts (including contingent obligations) owing under the Credit Documents to be immediately due
and payable, whereupon the Notes, all Advances, all such interest and all such other 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
and (ii) direct Borrower to pay to Bank as cash collateral an amount equal to 105 percent of the maximum amount that may potentially
be drawn or required to be paid under SBLCs then outstanding or open, whereupon such amount shall be and become immediately due
and payable; provided, however, that upon the occurrence of an Event of Default described in §10.1(f), such obligation of
Bank shall automatically terminate, the Notes, all Advances, 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 and the aforesaid amount of cash collateral
shall automatically become and be due and payable in full without demand or notice.


 


§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



    	-36-



    	



    



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 or to
make an Advance to pay for it (whether or not requested); 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 any Advances, 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 any Advance that is disbursed to Borrower the amount of any intangibles or documentary stamp tax that may be payable in
connection with such 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 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 



    	-37-



    	



    

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 written notice, may assign, in whole or in part, this Agreement, any other Credit Documents and any
Advances and, in connection therewith, may make whatever disclosures regarding Borrower, any Subsidiaries or any of the
Collateral or Real Estate 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 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 



    	-38-



    	



    

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 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.



    	-39-



    	



    




§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 Project Subsidiary to do
so.


 


§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 Illegality.
Bank shall have no obligation to make any Advance or issue any SBLC if its doing so would or might violate any Applicable
Law.



    	-40-



    	



    

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


 


§11.22 No
Representations Regarding Renewal, Etc. Borrower acknowledges that Bank has not agreed with or represented to Borrower
that the facility created hereby will be renewed or extended past the Commitment Termination Date or that any Advances will
be made on or after the Commitment Termination Date.


 


§11.23 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 any 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 §11.23 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 any Advance. To the extent that any of the
indemnities required from Borrower under this §11.23 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.


 


§11.24 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 §11.19 HAVE BEEN A MATERIAL INDUCEMENT TO BANK TO ENTER
INTO THIS AGREEMENT AND TO MAKE ADVANCES HEREUNDER.


 


(Signature page follows)



    	-41-



    	



    

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:








    	-42-



    	



    

EXHIBIT A


 


FORM OF BORROWING NOTICE



    	-43-



    	



    




BORROWING NOTICE


 





	Bank Hapoalim B.M.	 	Date:

	1177 Avenue of the Americas	 	Project Name:

	New York, New York 10036-2790	 	Borrowing Notice No.:

	Attention:
	 	 



 


		Re:	Credit Agreement (Revolving Facility) dated in October, 2015 (the “Credit Agreement”)
by and between Ark Restaurants Corp., a New York corporation (“Borrower”) and Bank Hapoalim B.M. (“Bank”)



 


1. Pursuant to the
Credit Agreement, Borrower hereby requests an Advance in the amount of $___________ to be contributed by Borrower to _________________
[insert name of Project Subsidiary] (“Project Subsidiary”) to be used to pay Project Costs for ______________________
[insert name of Project] (“Project”) in accordance with the Approved Project Budget for that Project. Capitalized
terms used herein but not otherwise defined herein shall have the meanings given such terms in the Credit Agreement. Borrower acknowledges
that the amount of the requested Advance is subject to inspection, verification and available funds.


 


2. Borrower agrees
to provide, if requested by Bank, a listing of all vendors showing the name and the amount currently due each party for whom Project
Subsidiary is obligated for labor, material and/or services supplied with respect to the Project. This information would be provided
in support of the amount of the Advance requested in this Borrowing Notice.


 


3. Borrower hereby
represents and warrants that, except as otherwise disclosed in Section 7 hereof:


 


(a) Borrower is in
compliance with all of the conditions precedent to the Advance requested hereby set forth in the Credit Agreement;


 


(b) All Representations
and Warranties made hereunder or under any of the Credit Documents are true and correct in all material respects as of the date
hereof, except to the extent such Representation and Warranty is made as of a specified date, in which case such Representation
and Warranty is true and correct in all material respects as of such specified date;


 


(c) No Default or
Event of Default exists as of the date hereof, with or without giving effect to such Advance and to the application of the proceeds
thereof;


 


(d) All Advances previously
disbursed to Borrower have been used for the purposes set forth in the Credit Agreement;


 


(e) All outstanding
claims for labor, materials and/or services furnished for the Project prior to the date hereof have been paid or will be paid with
the Advance requested hereby;



    	-44-



    	



    

(f) All Project Costs
for the Project incurred prior to the date hereof are in substantial compliance with the Approved Project Budget for the Project;


 


(g) There are no liens
outstanding against the Project Subsidiary Collateral of Project Subsidiary excepted Permitted Liens; and


 


(h) Borrower understands
that this Borrowing Notice is made for the purposes of inducing Bank to make an Advance to Borrower and that, in making such Advance,
Bank will rely upon the accuracy of the matters stated herein.


 


4. Disbursement of
the requested Advance may be subject to the receipt by Bank of a title report or certificate from a title company stating that
no claims have been filed of record adversely affecting the title of Project Subsidiary to the Project Subsidiary Collateral subsequent
to the filing of the Mortgage.


 


5. Borrower hereby
certifies that the statements made in this Borrowing Notice and any documents submitted herewith an identified herein are true
and correct in all material respects. Borrower further certifies that it has caused this Borrowing Notice to be signed on its behalf
by the undersigned, who is an Authorized Representative.


 


6. Borrower requests
that this Advance be made to, and the funds for such Advance be deposited in, the Borrowing Account with Bank.


 


7. Disclosure:

 

 


IN WITNESS WHEREOF,
Borrower has executed and delivered this Borrowing Notice to Bank as of the date set forth above.


 


	 	ARK RESTAURANTS CORP.	 
	 	 	 
	 	By:
	 
	 	Name:
	 
	 	Title:
	 




    	-45-



    	



    

EXHIBIT B


 


FORM OF TERM NOTE



    	-46-



    	



    

TERM PROMISSORY
NOTE


 


	$___________	Date: ____________, 20__



 


FOR VALUE RECEIVED,
the undersigned, ARK RESTAURANTS CORP., a New York corporation, (“Borrower”) hereby absolutely and unconditionally
promises to pay to the order of BANK HAPOALIM B.M. (“Bank”):


 


a. The principal amount of ______________________________
and no/100 Dollars ($_____________), which shall be due and payable at the times and in the manner set forth in §3.2(a) of
the Credit Agreement referred to below; provided, that any and all principal hereof then remaining unpaid shall be due and payable
on ______________, 20__; and


 


b. Interest on the principal amount
hereof from time to time outstanding from the date hereof through and including the date on which such principal amount is paid
in full, at the times, at the rates and in the manner provided in the Credit Agreement referred to below.


 


This Term Promissory
Note (this “Note”) has been issued by Borrower in accordance with the terms of §3.6 of that certain Credit
Agreement (Revolving Facility) dated in October, 2015, between Borrower and Bank, as amended, modified, supplemented or restated
and in effect from time to time (the “Credit Agreement”) and is a Term Note referred to in the Credit Agreement.
This Note constitutes a renewal of the outstanding principal amount of those Advances made by Bank to Borrower under the Credit
Agreement, and under that certain Revolving Promissory Note dated in October, 2015 issued by Borrower to the order of Bank in the
face principal amount of $10,000,000.00 (the “Revolving Note”), with respect to ______________________________
[insert name of Project Subsidiary] for the _____________ Project defined or described in Borrowing Notice(s) submitted by Borrower
to Bank for such Project pursuant to the Credit Agreement. This Note constitutes a renewal of only those Advances described in
the preceding sentence made to __________________ [insert name of Project Subsidiary] with respect to such Project and is not intended
to be, and shall not be construed as, a renewal of the outstanding principal amount of any other Advances evidenced by the Revolving
Note with respect to any other Project Subsidiary or other Project. Bank and any holder hereof is entitled to the benefits of the
Credit Agreement and may enforce the agreements of Borrower contained therein, and any holder hereof may exercise the remedies
provided for thereby or otherwise available in respect thereof, all in accordance with the terms thereof. Borrower may not reborrow
principal repaid under this Note. All capitalized terms used in this Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.


 


If any one or more Events
of Default shall occur, the entire unpaid principal amount of this Note and all of the unpaid interest accrued thereon may become
or be declared due and payable in the manner and with the effect provided in the Credit Agreement.


 


No delay or omission
on the part of Bank or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other
rights of Bank or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same
or any other right on any future occasion.



    	-47-



    	



    

Borrower and any and
every endorser and guarantor of this Note or the obligation represented hereby waive all requirements of diligence in collection,
presentation, demand, notice, protest, notice of intent to accelerate, notice of acceleration, and all other demands and notices
in connection with the delivery, acceptance, performance, default or enforcement of this Note, assent to any extension or postponement
of the time of payment or any other indulgence, and to the addition or release of any other party or person primarily or secondarily
liable.


 


This Note 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 any other jurisdiction.


 


BORROWER AND (BY ACCEPTANCE
HEREOF) BANK EACH WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING HEREUNDER
OR RELATING HERETO.


 


IN WITNESS WHEREOF,
Borrower has caused this Note to be signed under seal by its duly authorized officer as of the date first set forth above.


 


	 	ARK RESTAURANTS CORP.
	 	 
	 	By:

	 	Name:

	 	Title:





    	-48-



    	



    

SCHEDULE 1


 


EXISTING STANDBY LETTERS OF CREDIT


 


		1.	Standby Letter of Credit No. S1-1156 issued by Bank in the amount of $238,426.51 for the account
of Rio.



 


		2.	Standby Letter of Credit No. S1-1163 issued by Bank in the amount of $150,000.00 for the account
of AC.




    	-49-



    	



    

SCHEDULE 6.2


 


SUBSIDIARIES


 





			 	Jurisdiction of
	Subsidiary	Trade name(s)	 	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








    	-50-



    	



    




	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




    	-51-



    	



    

SCHEDULE 6.5


 


LITIGATION



    	-52-



    	



    




SCHEDULE 6.16


 


EMPLOYMENT MATTERS



    	-53-



    	



    




SCHEDULE 7.6


 


PERMITTED DEBT



    	-54-