Current Report Filing (8-k)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 22, 2015

ARK RESTAURANTS CORP.

(Exact name of registrant as specified in its charter)

New York		1-09453		13-3156768
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

85 Fifth Avenue

New York, New York 10003

(Address of principal executive offices, with zip code)

Registrant’s telephone number, including area code: (212) 206-8800

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c))

Item 2.01 Completion of Acquisition of Disposition of Assets.

On October 22, 2015, Ark Restaurants Corp (the “Company”), through its wholly-owned subsidiaries Ark Shuckers, LLC, Ark Shuckers Real Estate, LLC, and Ark Island Beach Resort LLC completed a purchase of assets. The Company funded the purchase with a term loan from its existing lender, described below, and from cash on hand.

Ark Shuckers Real Estate LLC purchased six condominium units in the Island Beach Club located in Jensen Beach, Florida. Four of the units are commercial and contain a 9,000 square foot restaurant, bar and gift shop and a 3,000 square foot oceanfront patio bar. The other two units are residential. Those units are included in a hotel rental pool. The purchase price was $3,600,000.

Ark Shuckers LLC purchased the assets of the Shuckers restaurant. The purchase price was $1,600,000.

Ark Island Beach Resort LLC purchased the management company that handles the rental pool for those units under lease with Island Beach Resort, Inc. (as assigned to Ark Island Beach Resort LLC). The purchase price was $450,000.

Bank Hapoalim B.M. made a loan to Ark Restaurants Corp. as the sole member of each of the above entities for $5,000,000, the proceeds of which were used to purchase the above three assets.

Item 1.01 Entry Into a Material Definitive Agreement.

Term Facility

On October 21, 2015, the Company entered into a Credit Agreement (Term Facility) with Bank Hapoalim B.M. (the “Bank”). The term loan is evidenced by a promissory note (the “Term Note”) in favor of the Bank in the amount of $5,000,000.00 and matures on October 21, 2020. Interest shall accrue at an annual rate equal to LIBOR plus 3.5% per year.

The principal amount of the Term Note is due and payable in consecutive monthly installments of $83,333.00 with the balance payable on Maturity.

The term loan is secured by a senior secured interest in all of the Company’s and the above listed subsidiary entities’ personal and fixture property, but generally not in any directly held investment property or general intangibles.

The term loan financing closed on October 22, 2015.

Revolving Facility

On October 21, 2015, the Company also entered into a Credit Agreement (Revolving Facility) with Bank Hapoalim B.M. (the “Bank”) which expires on October 21, 2017. Borrowings under the Revolving Facility will be evidenced by a promissory note (the “Revolving Note”) in favor of the Bank in the amount of up to $10,000,000.00 and will be payable over five years with interest at an annual rate equal to LIBOR plus 3.5% per year.

Borrowings under the Revolving Facility are secured by a senior secured interest in all of the Company’s and several of its subsidiaries’ personal and fixture property, but generally not in any directly held investment property or general intangibles.

The revolving loan financing closed on October 22, 2015.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

See discussion in Item 1.01.

Item 9.01. Financial Statements and Exhibits.

(a) Exhibits

10.1.	Commercial Contract Agreement dated as of August 10, 2015 by and between Ark Shuckers Real Estate LLC and D. C. Holding Company, Inc.

10.2.	Rider to Commercial Contract Agreement dated as of August 10, 2015 by and between Ark Shuckers Real Estate LLC and D.C. Holding Company, Inc.

10.3.	Restaurant Asset Purchase Agreement dated as of August 10, 2015 by and between Ark Shuckers LLC and Ocean Enterprises, Inc.

10.4.	Management Purchase Agreement dated as of August 10, 2015 by and between Ark Island Beach Resort LLC and Island Beach Resort, Inc.

10.5.	Credit Agreement (Term Facility) between the Company and Bank Hapoalim B.M. issued as of October 21, 2015.

10.6.	Term Promissory Note issued by the Company in favor of Bank Hapoalim B.M. on October 21, 2015.

10.7.	Credit Agreement (Revolving Facility) between the Company and Bank Hapoalim B.M. issued as of October 21, 2015.

10.8.	Form of Revolving Promissory Note issued by the Company in favor of Bank Hapoalim B.M. on October 21, 2015.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	ARK RESTAURANTS CORP.

	By:	/s/ Michael Weinstein
	Name:	Michael Weinstein
	Title:	Chief Executive Officer

Date: October 28, 2015

Exhibit 10.1

EXHIBIT “B”

PERMITTED EXCEPTIONS

	1.	The lien for all taxes for the year 2015 (which are not yet due and payable), and all subsequent years thereafter.

	2.	Any adverse ownership claim by the State of Florida by right of sovereignty to any portion of the lands insured hereunder, including submerged, filled and artificially exposed lands, and lands accreted to such lands.

	3.	Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey and inspection of the premises, as to matters subsequent to the date of the survey filed with the Declaration of Condominium of Island Beach Club, as recorded in Official Records Book 343, at Page 732.

	4.	Terms, provisions, covenants, liens, conditions and options contained and rights and easements established by the Declaration of Condominium of Island Beach Club and all exhibits attached thereto and recorded in Official Records Book 343, at Page 732; amended in Official Records Book 390, at Page 113; Official Records Book 563, at Page 532; Official Records Book 974, at Page 320; Official Records Book 974, at Page 322; Official Records Book 1120, at Page 893; Official Records Book 1629, at Page 2825; Official Records Book 2793, at Page 2342; Corrective Certificate of Amendment in Official Records Book 3044, at Page 2223; Official Records Book 3172, at Page 2605; Official Records Book 3471, at Page 1460; Official Records Book 3728, at Page 2982. Such Declaration and/or Amendment(s) establishes and provides for easement, liens, charges, assessments, an option to purchase, a right of first refusal and the prior approval of a future purchaser or occupant.

	5.	Rules and Regulations of Island Beach Club recorded in Official Records Book 1277, at Page 843.

	6.	Resolution No. 97-238 recorded in Official Records Book 1109, at Page 920.

	7.	Riparian and littoral rights are not insured.

	8.	The rights, if any, of the public to use as a public beach or recreation area any part of the land lying between the body of water abutting the subject property and the natural line of vegetation bluff, extreme high water line, or other apparent boundary lines separating the publicly used area from the upland private area.

	9.	This policy does not insure any portion of the insured parcel lying waterward of the mean-high water line of the Atlantic Ocean.

	10.	Easement contained in instrument recorded in Official Records Book 1018, at Page 1373.

	11.	Temporary Construction Easement recorded in Official Records Book 3447, at Page 1617.

	12.	Encroachment Agreement recorded in Official Records Book 3427, at Page 528.

	13.	Resolution No. 05-038 recorded in Official Records Book 2188, at Page 303.

All of the recording information contained above refers to the Public Records of ST. LUCIE County, Florida, unless otherwise indicated.

Exhibit 10.2

RIDER TO COMMERCIAL CONTRACT

This Rider to Commercial Contract (“Rider”) has been executed by Ark Shuckers Real Estate, LLC, a Delaware limited liability company (“Buyer”) and D.C. Holding Company, Inc., a Florida corporation (“Seller”) and shall amend and/or supplement that certain Commercial Contract executed by Buyer and Seller of even date herewith relating to the Property described therein (the “Contract”).

W I T N E S S E T H:

WHEREAS, Buyer and Seller have entered into the Contract; and

WHEREAS, Buyer and Seller wish to amend and/or supplement certain terms and conditions of the Contract as hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and in the Contract, it is agreed as follows:

1. The above recitals are true and correct and are incorporated herein by reference. Capitalized terms shall have the same meaning ascribed to them in the Contract unless otherwise defined herein.

2. Condition to Closing. Closing on the Property shall be conditioned upon the simultaneous closing under those certain purchase and sale agreements as follows:

(i) Restaurant Asset Purchase Agreement by and between Ocean Enterprises, Inc., a Florida corporation, as “Seller” and Ark Shuckers, LLC, a Delaware limited liability company, as “Buyer” for the “business”, “restaurant” as described therein (the “Restaurant Agreement”);

(ii) That certain Purchase Agreement entered into by Island Beach Resort, Inc., a Florida corporation, as Seller, and Ark Island Beach Resort, LLC, a Delaware limited liability company, as Buyer, for those assets describe therein (the “Island Beach Agreement”).

The Restaurant Agreement and the Island Beach Agreement are collectively referred to as the “Other Agreements”.

Accordingly, should closing fail to occur for any reason, or no reason, under the Other Agreements, the Contract shall be deemed terminated and the Deposit paid under the Contract and the Other Agreements shall be returned to the Buyer named under the Other Agreements, unless it is determined that a buyer (listed in the above “Other Agreements”) is in default under the Other Agreements, and Seller is not in default under this Contract or the Other Agreements, then, in such case, Seller shall be entitled to retain the Deposit as set forth in the Contract and the Other Agreements.

3. Buyer’s Intended Use. Units C-1, C-2, C-3 and C-4 shall be used as a restaurant and Units 111 and 201 shall be used as residential.

4. Delivery of Documents and Information.

On or before the date which is three (3) business days after the Effective Date, Seller shall deliver to Buyer, if not previously delivered or in Buyer’s possession, the following documents and information with respect to the Property.

(i) All condominium documents, surveys, plans, specifications, environmental, engineering and mechanical data relating to the Project, including such items relating to tenant improvements, which are in Seller’s possession;

(ii) All real and personal property and other ad valorem tax bills regarding the Property for the two-year period preceding the date of this Agreement;

(iii) True, correct and complete copies of any warranties and permits;

(iv) A complete, legible copy of the Declaration of Condominium for Island Beach Club, a Condominium, together with all amendments thereto; and

(v) A copy of any policy of title insurance issued in favor of Seller, together with legible copies of all instruments referenced therein.

5. Title Examination. Attached hereto as Exhibit “A” is a schedule of permitted exceptions to title (“Permitted Exceptions”). No later than fifteen (15) days after Buyer’s receipt of the title insurance commitment, Buyer may give Seller written notice of any exceptions to title which render Seller’s title less than good, marketable and insurable fee simple title. Thereafter, Buyer shall have until the Closing Date in which to reexamine title to the Property and in which to give Seller written notice of any objections to any additional exceptions to title (other than the Permitted Exceptions) which may be disclosed by such reexamination. Seller shall have fifteen (15) days after receipt of Buyer’s notice of objections to notify Buyer in writing whether Seller will satisfy any of Buyer’s objections to title; provided, however, Seller shall be required to satisfy any monetary liens (each a “Monetary Lien”) on the Property. If Seller elects not to satisfy any such objections, then, at the option of Buyer, Buyer may: (i) terminate this Agreement, in which event the Deposit under this Agreement, the Restaurant Agreement and the Island Beach Agreement shall be refunded to Buyer immediately upon request, all rights and obligations of Seller and Buyer under this Agreement, the Restaurant Agreement and the Island Beach Agreement shall expire, and all Agreements shall become null and void; or (ii) waive such satisfaction and performance and consummate the purchase and sale of the Property, the Restaurant Agreement and the Island Beach Agreement without any discount provided there is no Seller default or other objection under the Other Agreements.

6. Representations and Warranties.

(a) Seller represents, warrants and covenants to and with Buyer, knowing that Buyer is relying on each such representation, warranty and covenant, that:

(i) Seller is a corporation validly existing and in good standing under the laws of the State of Florida.

(ii) Seller has the lawful right, power, authority and capacity to sell the Property in accordance with the terms, provisions and conditions of this Agreement.

(iii) Seller has not received written notice of any actions, suits or proceedings against, by or affecting Seller which affect title to the Property or which question the validity or enforceability of this Agreement or of any action taken by Seller under this Agreement, in any court or before any governmental authority, domestic or foreign.

(iv) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by Seller on the Closing Date, and the performance by Seller of Seller’s duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the purchase and sale of the Property as contemplated by and provided for in this Agreement, are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which Seller is a party, any judicial order or judgment of any nature by which Seller is bound, and this Agreement, and the covenants and agreements of Seller under this Agreement, are the valid and binding obligations of Seller, enforceable in accordance with their terms.

(v) All corporate action has been taken by Seller authorizing and approving the execution of and entry into this Agreement, the execution and delivery by Seller of the documents and instruments to be executed and delivered by Seller on the Closing Date, and the performance by Seller of Seller’s duties and obligations under this Agreement and of all other acts necessary and appropriate for the consummation of the purchase and sale of the Property as contemplated by and provided for in this Agreement.

(vi) Seller has received no written notice of any violations of any zoning, building, health, environmental or other laws, codes, ordinances, regulations, orders or requirements of any city, county, state or other governmental authority having jurisdiction thereof, or any private restrictive covenants affecting the Property other than the condominium documents.

(vii) Seller has not received written notice of any condemnation actions involving all or any portion of the Property or any interest therein.

(viii) Seller is not a party to any lease, management, maintenance, service or other contracts with respect to the Property other than as listed on Exhibit “B”. As of the Closing Date, there will be no lease, management, maintenance, service or other contracts between Seller and any third party with respect to the Property except those listed on Exhibit “B” attached hereto.

(ix) Seller will not cause or knowingly permit any action to be taken which will cause any of the foregoing representations, warranties or covenants to be untrue or unperformed on the Closing Date; and Seller will not cause or knowingly permit any action to be taken which will cause any of the conditions of Buyer’s obligations set forth below, to be unsatisfied or unperformed on or as of the Closing Date.

(b) Buyer represents, warrants and covenants to and with Seller, knowing that Seller is relying on each such representation, warranty and covenant, that:

(i) Buyer is a Delaware limited liability company, duly formed, validly existing and in good standing under the laws of the State of Delaware.

(ii) Buyer has the lawful right, power, authority and capacity to purchase the Property in accordance with the terms, provisions and conditions of this Agreement.

(iii) There are no actions, suits or proceedings pending or, to Buyer’s actual knowledge, threatened against, by or affecting Buyer which question the validity or enforceability of this Agreement or of any action taken by Buyer under this Agreement, in any court or before any governmental authority, domestic or foreign.

(iv) The execution of and entry into this Agreement, the execution and delivery of the documents and instruments to be executed and delivered by Buyer on the Closing Date, and the performance by Buyer of Buyer’s duties and obligations under this Agreement and of all other acts necessary and appropriate for the full consummation of the purchase and sale of the Property as contemplated by and provided for in this Agreement, are consistent with and not in violation of, and will not create any adverse condition under, any contract, agreement or other instrument to which Buyer is a party, any judicial order or judgment of any nature by which Buyer is bound, and this Agreement, and the covenants and agreements of Buyer under this Agreement, are the valid and binding obligations of Buyer, enforceable in accordance with their terms.

(v) All company action will have been taken by Buyer authorizing and approving the execution of and entry into this Agreement, the execution and delivery by Buyer of the documents and instruments to be executed and delivered by Buyer on the Closing Date, and the performance by Buyer of Buyer’s duties and obligations under this Agreement and of all other acts necessary and appropriate for the consummation of the purchase and sale of the Property as contemplated by and provided for in this Agreement.

The representations and warranties of Seller and Buyer under this paragraph 6 shall survive the Closing Date for a period of one (1) year.

7. Closing. Closing under the Contract shall occur on or before September 25, 2015 simultaneously with the closing of the Other Agreements at such location to be mutually agreed to by the parties.

8. Assignability. Buyer may only assign the Contract with the prior written approval of Seller, which approval may be withheld for any reason, except in the event of a proposed assignment to an assignee that is owned and/or controlled by Buyer.

9. No Other Modifications. Except as modified and/or supplemented hereby, the Contract shall be in force and effect without change. This Rider has been executed on this 10^th day of August, 2015.

	Buyer:
	ARK SHUCKERS REAL ESTATE, LLC,
	a Delaware limited liability company

	By:	/s/: Robert Stewart
	Printed Name: Robert J. Stewart
	Its: President

	Seller:

	D.C. HOLDINGS COMPANY, INC.,
	a Florida corporation

	By:	/s/: Anthony Carpentier
	Printed Name: Anthony Carpentier
	Its: President

EXHIBIT “A”

Permitted Exceptions

The lien for all taxes for the year 2015 (which are not yet due and payable), and all subsequent years thereafter.

Any adverse ownership claim by the State of Florida by right of sovereignty to any portion of the lands insured hereunder, including submerged, filled and artificially exposed lands, and lands accreted to such lands.

Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey and inspection of the premises, as to matters subsequent to the date of the survey filed with the Declaration of Condominium of Island Beach Club, as recorded in Official Records Book 343, at Page 732.

Terms, provisions, covenants, liens, conditions and options contained and rights and easements established by the Declaration of Condominium of Island Beach Club and all exhibits attached thereto and recorded in Official Records Book 343, at Page 732; amended in Official Records Book 390, at Page 113; Official Records Book 563, at Page 532; Official Records Book 974, at Page 320; Official Records Book 974, at Page 322; Official Records Book 1120, at Page 893; Official Records Book 1629, at Page 2825; Official Records Book 2793, at Page 2342; Corrective Certificate of Amendment in Official Records Book 3044, at Page 2223; Official Records Book 3172, at Page 2605; Official Records Book 3471, at Page 1460; Official Records Book 3728, at Page 2982. Such Declaration and/or Amendment(s) establishes and provides for easement, liens, charges, assessments, an option to purchase, a right of first refusal and the prior approval of a future purchaser or occupant.

Rules and Regulations of Island Beach Club recorded in Official Records Book 1277, at Page 843.

Resolution No. 97-238 recorded in Official Records Book 1109, at Page 920.

Riparian and littoral rights are not insured.

The rights, if any, of the public to use as a public beach or recreation area any part of the land lying between the body of water abutting the subject property and the natural line of vegetation bluff, extreme high water line, or other apparent boundary lines separating the publicly used area from the upland private area.

This policy does not insure any portion of the insured parcel lying waterward of the mean-high water line of the Atlantic Ocean.

10.

Easement contained in instrument recorded in Official Records Book 1018, at Page 1373.

11.

Temporary Construction Easement recorded in Official Records Book 3447, at Page 1617.

12.

Encroachment Agreement recorded in Official Records Book 3427, at Page 528.

13.

Resolution No. 05-038 recorded in Official Records Book 2188, at Page 303.

All of the recording information contained above refers to the Public Records of ST. LUCIE County, Florida, unless otherwise indicated.

EXHIBIT “B”

LEASES, MANAGEMENT, MAINTENANCE, SERVICE AND OTHER CONTRACTS

Exhibit 10.3

RESTAURANT ASSET PURCHASE AGREEMENT

THIS RESTAURANT ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of the 10^th day of August, 2015 (the “Effective Date”) by and among OCEAN ENTERPRISES, INC., a Florida corporation (“Restaurant Asset Seller”), and ARK SHUCKERS, LLC, a Delaware limited liability company (“Restaurant Asset Buyer”). Restaurant Asset Seller is sometimes herein referred to as “Seller” and Restaurant Asset Buyer is sometimes herein referred to herein as “Buyer”.

WHEREAS, Ocean Enterprises, Inc. owns and operates a restaurant and bar, gift shop and banquet facility (the “Business”) known as Shuckers Restaurant (the “Restaurant”) at 9800 South Ocean Drive, Jensen Beach, Florida 34957 (the “Location”); and

WHEREAS, Island Beach Resort, Inc., a Florida corporation (“Hotel Asset Seller”) owns and operates a property management company known as Island Beach Resort (the “Hotel”) at the Location; and

WHEREAS, DC Holding Company, Inc., a Florida corporation (the “Real Property Seller”) owns real property consisting of the real property located at 9800 South Ocean Drive, Commercial Units C-1, C-2, C-3, C-4, Unit 111 and Unit 201, Jensen Beach, Florida 34957 (the “Real Property”); and

WHEREAS, Restaurant Asset Seller holds certain licenses and permits, including a liquor license from the Florida Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (“FLA”) to operate the Restaurant Business; and

WHEREAS, the closing on this Restaurant Asset Purchase Agreement is subject to and contingent upon the closing of the Real Estate Commercial Contract and Rider (“Real Estate Contract”) between Real Property Seller and Ark Shuckers Real Estate, LLC (“Real Property Buyer”) and the closing of the Hotel Asset Purchase Agreement (“Hotel Asset Purchase Agreement”) between Hotel Asset Seller and Ark Island Beach Resort, LLC (“Restaurant Asset Buyer”); and

WHEREAS, subject to and on the terms and conditions set forth in this Agreement, the Restaurant Asset Seller desires to sell, and Restaurant Asset Buyer desires to buy, substantially all of the assets of the Restaurant Asset Seller.

NOW, THEREFORE, for and in consideration of the recitals, the mutual covenants and agreements hereafter described and other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties agree as follows:

l. Sale and Purchase,

1.1. Assets. On and subject to the terms and conditions of this Agreement, at the Closing, Restaurant Asset Seller agrees to sell, convey, transfer, assign and deliver to Restaurant Asset Buyer and Restaurant Asset Buyer agrees to purchase from Restaurant Asset Seller, the Business as a

going concern and Restaurant Asset Seller’s right, title and interest in and to all of the Acquired Assets. As used herein “Acquired Assets ‘shall mean all right, title and interest in and to all of the assets of Restaurant Asset Seller of every kind, character and description, other than the Excluded Assets, which are related to or used in connection with the conduct and operation of the Business, whether personal or real, tangible or intangible and wherever located, whether or not reflected on Restaurant Assets Seller’s financial statements, as such assets may exist on the Closing Date, including, but not limited to, all of its: (a) Leases of Real Property, if any, as more fully described in the Real Estate Contract that are assumed by Restaurant Asset Buyer ; (b) inventory of materials and supplies, and all furniture, furnishings, signage, fixtures, machinery, trade fixtures, inc1uding, but not limited to, leasehold improvements, security systems, kitchen and other equipment including, but not limited to, pots, pans, glassware, dishes, silverware and small wares, computer equipment, alarm systems, cameras and recording devices, protective cages, electrical installations, safes and all other tangible assets relating to the Business of every kind and nature; (c) goodwill associated with the Business, all value of the Business as a going concern, and all records related to the Business including, without limitation, customer records, customer information, customers cards, operations manuals, advertising matter, correspondence, mailing lists, credit records, purchasing materials and records, personnel records, blueprints, data bases, distributors, supplier information and records, repair trade people, and all other data and know-how related to the Business, in any form or medium wherever located; (d) proprietary items including, but not limited to, menus, promotional items and literature, if appropriate, the use of the founding family’s namesake, if any, and pictures as it relates to the Restaurant, history of the Restaurant, memorabilia, photographs and decor; (e) telephone and fax numbers, trade names, trademarks and trademark applications, service marks and service mark applications, patents and patent applications, copyrights, assumed names, fictitious names, slogans, domain names, web addresses, web sites, all software and software licenses and all rights in all data processing systems and networks, and all operations manuals, computer hardware, data bases, related documentation, and know-how of any kind; (f) credits, prepaid expenses, advance payments, security deposits and prepaid items customarily transferred and paid for in business asset purchase transactions, but only to the extent that in addition to the Purchase Price, credit is given or payment is made for same at Closing; (g) contracts, agreements, commitments, and personal property leases of Restaurant Asset Seller relating to the Business that are described in detail on Schedule 5.10 which Restaurant Asset Buyer affirmatively elects in writing to assume (the “Purchased Commitments”); (h) to the extent assignable, licenses and permits relating to the Business or the Acquired Assets; (i) privileges and advantages of every nature, kind and description, being personal or real, tangible or intangible, located at, on, or under the Real Property or in any way used in connection with the Real Property or otherwise possessed or owned by either Restaurant Asset Seller or in which Restaurant Asset Seller has any interest whatsoever, all of the licenses, permits, easements, regulatory rights, beach access rights, air rights, roof rights, antenna rights, developer and use rights, and wallscape and signage rights, leases, subleases and rights thereunder; and (j) contractors and manufacturers guarantees, warranties, indemnities or similar rights in favor of the Restaurant Asset Seller with respect to any of its Acquired Assets. All of the Acquired Assets are being sold, assigned, transferred, conveyed and delivered to Restaurant Asset Buyer hereunder free and clear of any Lien, in its as-is/where-is condition, subject only to those representations and warranties contained herein. As used herein “Lien” shall mean any mortgage, pledge, lien, claim, security interest, conditional sale agreement, prior assignment or encumbrance of any kind or nature whatsoever, including, without limitation, any Uniform Commercial Code lien or tax lien, subject, however, to those restrictions, covenants and conditions contained in the applicable

condominium documents governing the Real Property and such other encumbrances as listed on the permitted Exceptions (as described herein).

1.2. Excluded Assets. The Acquired Assets shall not include the assets listed on Schedule 1.2, including without being limited to all cash and accounts receivable of Restaurant Asset Seller as of the Closing Date, licenses that are not assignable, and all leases, contracts, agreements, commitments not relating to the Business or assumed by Restaurant Asset Buyer, all cash and cash equivalents, all of Restaurant Asset Seller’s rights under this Agreement and all insurance coverage (collectively, the “Excluded Assets”).

1.3 Assumed Liabilities. On and subject to the terms and conditions of this Agreement, at the Closing, defined below, Restaurant Asset Buyer will assume and agree to pay, perform and discharge only the obligations of Restaurant Asset Seller first arising from the operation of the Business following the Closing under the Purchased Commitments (the “Assumed Liabilities”). Accordingly, all debts, costs, invoices, liabilities and expenses, except for the Assumed Liabilities, if incurred prior to Closing, shall be the responsibility of Restaurant Asset Seller, and all such debts, costs, invoices, liabilities and expenses incurred on and after Closing shall be the responsibility of Restaurant Asset Buyer.

1.4. Due Diligence. Restaurant Asset Seller hereby agrees to deliver to Restaurant Asset Buyer within three (3) business days of the effective date (for purposes herein, delivery by Restaurant Asset Seller shall be deemed to have occurred if Restaurant Asset Seller makes the Due Diligence Items, as defined below, available to Restaurant Asset Buyer at the Restaurant or Location), which shall mean the date on which the last of the Restaurant Asset Buyer, Restaurant Asset Seller and any other party signing this Agreement shall have signed or initialed this Agreement, as applicable (“Effective Date”), those due diligence items (“Due Diligence Items”) requested by Restaurant Asset Buyer or set forth herein to the extent in Restaurant Asset Seller’s possession. Restaurant Asset Buyer shall have thirty (30) days (“Due Diligence Period”) from receipt of all of the Due Diligence Items to review and to approve the Due Diligence Items and any other information or documentation it acquires. If Restaurant Asset Buyer, in its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to Restaurant Asset Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the expiration of the Due Diligence Period, Restaurant Asset Buyer, at its option, may terminate this Agreement by written notice to Restaurant Asset Seller delivered at any time prior to the expiration of the Due Diligence Period, whereupon this Agreement shall become null and void and of no further force and effect, the Deposit (as defined below) shall be returned to the Restaurant Asset Buyer and the parties hereto shall have no further obligation to one another provided, however, Restaurant Asset Buyer shall return to Restaurant Asset Seller all information, reports and any other materials delivered to or obtained by Restaurant Asset Buyer. Restaurant Asset Buyer’s failure to terminate this Agreement pursuant to this Section 1.4 shall not affect Restaurant Asset Buyer’s right to require the satisfaction of all conditions to closing set forth in this Agreement. Restaurant Asset Buyer and Restaurant Asset Seller shall also take all necessary steps following execution of this Agreement to assist Restaurant Asset Buyer’s efforts to complete the transfer of the Liquor License or to obtain a new liquor license in favor of Restaurant Asset Buyer necessary to run the Business from the FLA (the “Liquor License”), provided that Restaurant Asset Seller shall have no obligation to incur any costs or expense in connection therewith.

2. Purchase Price. The Purchase Price for the Acquired Assets is One Million Six

Hundred Thousand Dollars ($1,600,000.00) payable as follows: Upon the execution of this Agreement by all parties Restaurant Asset Buyer shall pay to Escrow Agent (hereinafter defined) the sum of (i) an initial refundable deposit of Fifty Thousand Dollars ($50,000.00) (the “Initial Deposit”) to Koeppel Law Group, P.A. Trust Account (“Escrow Agent”); and within 48 hours after the expiration of the Due Diligence Period (ii) Fifty Thousand Dollars ($50,000.00) (the “Additional Deposit”) (the Initial Deposit and Additional Deposit are collectively referred to as the “Deposit”); and, at Closing (hereafter defined) Restaurant Asset Buyer shall pay to Restaurant Asset Seller (i) the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) (“Balance Due”), (subject to any prorations, credits or agreed upon a adjustments as provided for herein) (the Deposit and the Balance Due shall collectively be referred to as the “Closing Proceeds”). The Purchase Price shall be payable by Restaurant Asset Buyer to Restaurant Asset Seller, by wire transfer or by immediately available funds, plus or minus the specific items hereinafter described and the usual and ordinary prorations and credits, including but not limited to rent paid for the lease of the leased premises and any leased equipment assumed by Restaurant Asset Buyer, personal property taxes for the year of closing imposed on the assets, real estate taxes, gift card liabilities, if any (collectively, the “Prorations and Credits”). Further, any security deposits held by the vendor/lessor of any leased equipment or on the leased premises being assumed by Restaurant Asset Buyer shall be reimbursed to Restaurant Asset Seller at the time of Closing provided that said vendor/lessor shall transfer the said security deposit for the benefit of the Restaurant Asset Buyer as of the Closing Date. The parties hereto agree to re-prorate as to any errors in the listing or payment of Prorations and Credits. Restaurant Asset Seller shall be responsible for electricity, telephone, water and sewer, gas and other utility charges, salaries and accrued vacation and other benefits of employees.

(e) A portion of the Purchase Price, in the amount of Five Hundred Thousand Dollars ($500,000.00) (the “Escrow Cash”) shall be delivered to Restaurant Asset Seller’s attorney, as escrow agent (the “Escrow Agent”), to be held pursuant to an escrow agreement substantially in the form attached hereto as Exhibit “A” (the “Closing Escrow Agreement”) to secure the indemnification obligations of the Restaurant Asset Seller under this Agreement for a period of one (1) year after Closing. The Escrow Cash will be released only in accordance with the terms of the Closing Escrow Agreement. The Restaurant Asset Seller and Restaurant Asset Buyer acknowledge and agree that Restaurant Asset Buyer’s remedies under the Closing Escrow Agreement (the “Escrow Fund”) are the sole and exclusive monetary remedies in connection with this Agreement.

3. Closing. Time is of the essence with respect to all time periods and dates set forth in this Section 3. The closing (the “Closing”) of the transactions contemplated by this Agreement to be on or before September 25, 2015, and is contingent upon the satisfaction or waiver of the Conditions Precedent (as defined below) (the “Closing Date”). The Closing shall take place at such location which is mutually agreed upon by the parties. The parties hereto agree to cooperate and use reasonable efforts to cause all contingencies to occur by the Closing Date. If through no fault of Restaurant Asset Buyer or Restaurant Asset Seller the Closing fails to occur on or before September 25, 2015, then either Restaurant Asset Seller or Restaurant Asset Buyer may, without liability, terminate its obligations under this Agreement and the Real Property Rider. If the Closing fails to have occurred on or before September 25, 2015 and the failure of the Closing to occur shall be determined by a court of law or other tribunal have been the fault of Restaurant Asset Buyer, Restaurant Asset Seller shall have the right to retain the Deposit as agreed upon liquidated damages, consideration for execution of this Agreement, and in full settlement of any claims, whereupon Restaurant Asset Buyer and

Restaurant Asset Seller, Hotel Asset Buyer and Hotel Asset Seller and Real Property Buyer and Real Property Seller shall be relieved from all further obligations under this Agreement, the Hotel Asset Agreement and the Real Estate Purchase and Sale Agreement. If the Closing shall not have occurred on or before September 25, 2015 and the failure of the Closing to occur shall be determined by a court of law or other tribunal have been the fault of Restaurant Asset Seller, then Restaurant Asset Buyer shall have the right to maintain suit for any and all remedies (as limited herein), at law or in equity, including, but not limited to, specific performance, against the defaulting Restaurant Asset Seller for breach of this Agreement, subject to the limitations contained herein. The Hotel Asset Seller under the Hotel Asset Agreement and the Real Property Seller under the Real Estate Contract.

4. Closing Deliveries.

(a) Closing Deliveries of Buyer. At Closing, Restaurant Asset Buyer shall deliver to Restaurant Asset Seller the following: (i) the Purchase Price, less the Deposit and Escrow Cash; (ii) certified copy of resolutions duly adopted by Restaurant Asset Buyer, approving the terms and conditions of this Agreement and authorizing Restaurant Asset Buyer’s officers to execute, deliver and consummate the same for and on behalf of Restaurant Asset Buyer; (iii) certificate of Restaurant Asset Buyer’s good standing as a Delaware limited liability company or other legal entity; (iv) the deliverables set forth in the Real Estate Rider; and (v) such other documents as Restaurant Asset Seller may reasonably request or are required pursuant to this Agreement (assumption of Purchased Commitments).

(b) Closing Deliveries of Restaurant Asset Seller. At Closing, Restaurant Asset Seller shall deliver to Restaurant Asset Buyer the following (i) duly executed bill of sale and assignment agreement with appropriate warranties of ownership covering the Acquired Assets, in form and substance reasonably acceptable to Restaurant Asset Buyer and Restaurant Asset Seller; (ii) all customer records relating to the operation of the Business at the Location in Restaurant Seller’s possession; (iii) certified copy of resolutions duly adopted by the Shareholder and the Restaurant Asset Seller’s Board of Directors, approving the terms and conditions of this Agreement and authorizing Restaurant Asset Seller’s officers to execute, deliver and consummate the same for and on behalf of Restaurant Asset Seller; (iv) certificate of Restaurant Asset Seller’s good standing as a Florida corporation and certified copies of Asset Seller’s organizational documents and by-laws; (v) possession of the Acquired Assets; (vi) at Restaurant Asset Seller’s cost, UCC, tax and judgment search reports issued by a company reasonably satisfactory to Restaurant Asset Buyer evidencing that the Acquired Assets are free from Liens or encumbrances of any sort; (vii) termination statements terminating all financing statements of record on the Closing Date under the Uniform Commercial Code with respect to the Acquired Assets, or a written commitment from the secured party, in form and substance reasonably acceptable to Restaurant Asset Buyer, to provide the same; (viii) the originals or certified copies of the Purchased Commitments; (ix) a certification to Restaurant Asset Buyer, in form and substance reasonably acceptable to Restaurant Asset Buyer, that Restaurant Asset Seller warrants that, as of the Closing Date they are in good standing, duly authorized, no default has occurred under any material agreement relating to the Acquired Assets, all third party consent needed to sell the Acquired Assets has been obtained; (x) good, marketable and insurable title to the Real Property, free from all liens and encumbrances and municipal matters (except the “Permitted Exceptions” described in the Real Estate Contract), including appropriate Certificates of Approval from the Condominium Association, if required, for the Real Property and other deliverables set forth in the Real Estate Contract.

5. Representations and Warranties of Asset Restaurant Seller. Except as

otherwise disclosed in writing to Restaurant Asset Buyer on or after the Effective Date, to induce Restaurant Asset Buyer to execute this Agreement and consummate the transactions contemplated hereunder, the Restaurant Asset Seller hereby represents and warrants to Restaurant Asset Buyer as of the date hereof as follows:

5.1 Organization, Good Standing. Authorization. Restaurant Asset Seller is a corporation duly organized, validly existing and in good standing under the provisions the law of the State of Florida. Restaurant Asset Seller has all requisite corporate power and authority to own and operate its properties and to carry on its business as now conducted. Restaurant Asset Seller has all corporate power and the shareholder has authority to enter into this Agreement and all other agreements and documents to be executed by them at Closing pursuant hereto (collectively, the “Acquisition Agreements”). The Acquisition Agreements have been, or will be at the Closing, as applicable, duly executed and delivered by the Restaurant Asset Seller and shall constitute the legal, valid and binding obligations of Restaurant Asset Seller, enforceable against Restaurant Asset Seller in accordance with their respective terms, except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies.

5.2 No Violation. The execution, delivery, compliance with and performance by Restaurant Asset Seller of the Acquisition Agreements does not and will not: (i) violate or contravene the articles of incorporation or by-laws, as amended to date (the “Charter Documents”) of Restaurant Asset Seller; (ii) violate or contravene any law, rule, regulation, ordinance, order, judgment or decree (collectively, “Applicable Law’’) to which such Restaurant Asset Seller or any of its assets is subject; (iii) conflict with or result in a breach of or constitute a default by any party under any agreement or other document to which Restaurant Asset Seller is a party or by which any of its assets or properties are bound or are subject; (iv) result in the creation of any Lien upon any of such Restaurant Asset Seller’s properties or the Acquired Assets or give to any person or entity a right of acceleration or termination; (v) require any approval or consent of any person under the Charter Documents of such Restaurant Asset Seller, or any agreement or other document to which Restaurant Asset Seller is a party or by which Restaurant Asset Seller or any of its assets or properties are subject; (vi) subject to governmental and/or quasi-governmental agency requirements and/or approval, result in the termination, modification or cancellation of any transferable license, permit, franchise, governmental authorization, contract, clearance or approval necessary for the lawful operation of the Business by Restaurant Asset Buyer; and (vii) require Restaurant Asset Seller to obtain any authorization, consent, permit, filing, clearance, registration or exemption or other action by or from or notice to or filing with (either before or after the Closing Date) any federal or state court, administrative agency or other governmental body, other than the FLA and the Division of Hotels and Restaurants.

5.3 Title. Restaurant Asset Seller has, and Restaurant Asset Buyer will receive at Closing, good, valid and marketable title to all of the Acquired Assets, free and clear of all Liens, leases and tenancies except those exceptions to be disclosed by an owner’s title insurance commitment to be obtained by Restaurant Asset Buyer. The Acquired Assets comprise all assets of the Restaurant Asset Seller other than the Excluded Assets. All tangible personal property at the Location is owned by the Restaurant Asset Seller and not leased except as otherwise disclosed to Restaurant Asset Buyer. There are no financing statements under the Uniform Commercial Code filed with the Florida Secretary of

State which name Restaurant Asset Seller Hotel Asset Seller or Real Property Seller as debtor, excepting only financing statements no longer in effect, and Restaurant Asset Seller has not signed any security agreement authorizing any secured party thereunder to file any such financing statement.

5.4 No Subsidiaries. Restaurant Asset Seller does not own and has never owned, either directly or indirectly, any interest (whether debt or equity) in any other entity.

5.5 Intellectual Property. Restaurant Asset Seller has not received any written notice or other objections to the use of the intellectual property which relates to the Business as now operated or used by the Restaurant Asset Seller. Any and all rights held by Restaurant Asset Seller to such intellectual property shall be assigned to Restaurant Asset Buyer at Closing.

5.6 Legal Proceedings. Except as set forth on Schedule 5.6 attached hereto, there are no actions, suits, litigation, proceedings or investigations pending or to the best of Restaurant Asset Seller’s knowledge, threatened by or against Restaurant Asset Seller which relate to the Business or the Acquired Assets, and Restaurant Asset Seller has not received any written claim, complaint, or written notice of any such proceeding or claim or is aware of any basis for any such claim.

5.7 Compliance with Laws. Restaurant Asset Seller has not received any notice asserting any violation of any regulations, rules, ordinances, laws, statutes, orders and decrees of any governmental authority applicable to it (collectively, the “Applicable Laws’’) or non-compliance therewith and there is no pending or to the best of Restaurant Asset Sellers’ knowledge, after due inquiry, threatened investigation, inquiry or audit by any federal, state, or local governmental authority relating to Restaurant Asset Seller, the Business or any of the Acquired Assets, except as otherwise disclosed by Restaurant Asset Seller to Restaurant Asset Buyer.

5.8 Permits and Licenses. (i) Schedule 5.8 identifies all existing licenses and permits and is complete and correct in all material respects; (ii) such licenses and permits constitute all of the licenses and permits currently necessary for the ownership and operation of the Business, including, but not limited to, the food and beverage licenses required to sell and serve food and liquor at the Business; (iii) Restaurant Asset Seller has not received any notice of any default in the observance or condition of any license or permit which has not been heretofore corrected; and (iv) subject to governmental and quasi-governmental requirements, all licenses and permits (except those listed on Schedule 1.2) are assignable to Restaurant Asset Buyer. There are not any orders, judgments, decrees, governmental takings, condemnations or other proceedings currently in effect which would be applicable to the Business conducted by the Restaurant Asset Seller or the properties of the Restaurant Asset Seller and which would reasonably be expected to materially adversely affect the properties, Acquired Assets, liability, operations or prospects of Restaurant Asset Buyer after the Closing Date.

5.9 Intentionally Deleted.

5.10 Commitments. Restaurant Asset Seller has delivered or made available to Restaurant Asset Buyer or will deliver within three (3) business days of the Effective Date, true and correct copies of all written contracts, agreements, commitments, arrangements and personal property leases which relate to the Business and/or the Acquired Assets, including without limitation, all amendments thereto.

A true, correct and complete list and summary description of all such written documents and personal property leases which relate to the Business and/or the Acquired Assets is attached hereto as Schedule 5.10. All Purchased Commitments are in full force and effect and represent the valid and binding obligations of Restaurant Asset Seller. Neither Restaurant Asset Seller nor any other party is (with or without the lapse of time or the giving of notice, or both) in default under any such Purchased Commitment, and Restaurant Asset Seller has not received any notice of any default or termination of any such Purchased Commitment from any other party thereto and Restaurant Asset Seller is not aware of any facts or circumstances (with or without the lapses of time or the giving of notice or both) under which it would be reasonably likely that there would be a default or termination of any such Purchased Commitment. Restaurant Asset Seller has no outstanding powers of attorney relating to the Business or the Acquired Assets.

5.11 Financial Statements. Restaurant Asset Seller has heretofore delivered to Restaurant Asset Buyer, or will deliver within five (5) business days of the Effective Date, its financial statements for the months January through June 30, 2015 and for the years ended December 31, 2014 and 2013 and its tax returns for the years 2014, 2013 and 2012 signed by a principal of Restaurant Asset Seller and its accountant. In the event Restaurant Asset Seller has not filed its corporate tax return for the year 2014, Restaurant Asset Seller shall deliver a copy to Restaurant Asset Buyer simultaneously with the filing of same with the Internal Revenue Service; and Restaurant Asset Seller will deliver to Restaurant Asset Buyer as soon as practicable its financial statements for each month in 2015 which elapses prior to the Closing Date together with copies of its sales tax reports for the months January through June 30, 2015 and for the years ended December 31, 2014 and 2013. The financial statements referred to in the first sentence of this Section 5.11(collectively, the “Financial Information”) are based upon the information contained in the books and records of the Restaurant Asset Seller and present fairly the assets, liabilities and financial condition of the Restaurant Asset Seller as of the respective dates thereof and the results of such Restaurant Asset Seller’s operations for the periods ended as of the respective dates thereof. The Financial Information in each case has been prepared in accordance with the normal course of business applied on a consistent basis throughout the periods involved and with prior periods and the Financial Information does not materially overstate or understate the gross revenues or net income or the major operating expenses, including, but not limited to, food and beverage purchases, salaries, and payroll tax expenses of Restaurant Asset Seller.

5.12 No Undisclosed or Transferee Liability. Restaurant Asset Seller has no debt, liability or obligation of any nature, whether accrued, absolute, contingent or otherwise, that is not reflected or reserved against in the Financial Information, other than liabilities incurred in the ordinary course of business after the date of the latest of the Financial Information. All debts, liabilities and obligations of Restaurant Asset Seller or otherwise relating to the Business or the Acquired Assets incurred after the periods covered by the Financial Information have been incurred in the ordinary course of business, consistent with past practice, and are usual and normal in amount.

5.13 No Brokers. Except as described on Schedule 5.13, Restaurant Asset Seller has not employed, either directly or indirectly, or incurred any liability to, any broker, finder or other agent in connection with the transactions contemplated by this Agreement except for Prakas & Company and Sussman Restaurant Brokerage. Out of the total brokerage commission Restaurant Asset Seller shall pay to Sussman Restaurant Brokerage at Closing the sum of Thirty Seven Thousand Five Hundred Dollars ($37,500.00) with the balance due under the separate written agreement being paid to Prakas &

Company.

5.14 Taxes. Restaurant Asset Seller is not delinquent with respect to money due to any federal, state, or local taxing authority or any other governmental entity for income tax or any other tax, or interest, penalties, assessments or deficiencies relating thereto (collectively, “Taxes”). Restaurant Asset Seller has filed all federal, state and local and all other tax returns which it is required to have filed. Restaurant Asset Seller has paid or made adequate provision for the payment of all Taxes which have or may become due pursuant to said returns or pursuant to any assessment received with respect thereto, or which is otherwise due and payable by such Restaurant Asset Seller. As of the Closing Date, Restaurant Asset Seller shall have paid all accrued sales taxes owed by Restaurant Asset Seller in the state of Florida. No adjustment of or deficiency of any Taxes or claim for additional Taxes has been proposed, or to the best of Restaurant Asset Seller’s knowledge, threatened, asserted or assessed against Restaurant Asset Seller. Except as otherwise disclosed by Restaurant Asset Seller to Restaurant Asset Buyer, there are no audits or other examinations being conducted or, to the best of Restaurant Asset Seller’s knowledge, after due inquiry, threatened by any taxing authority, and there is no deficiency or refund litigation or controversy in progress or, to the best of Restaurant Asset Seller’s knowledge, after due inquiry, threatened, with respect to any Taxes previously paid by Restaurant Asset Seller or with respect to any returns previously filed by Restaurant Asset Seller or on behalf of Restaurant Asset Seller. Restaurant Asset Sel1er has not made any express waiver of any statute of limitations relating to the assessment or collection of Taxes.

5.15 Shareholders’ Ownership. Anthony P. Carpentier owns 50% and Jack Daniels owns 50% of the issued and outstanding capital stock of Restaurant Asset Seller. Restaurant Asset Seller (and no other person or entity except as otherwise disclosed) own all right, title or interest in personal property of any kind that was actually used and was necessary to the conduct of the Business by Restaurant Asset Seller, whether tangible or intangible, wherever located.

5.16 Employee Matters. Except as set forth a schedule 5.16 attached hereto, no employee of Restaurant Asset Seller has a written employment agreement or is other than an “at will” employee. Restaurant Asset Seller does not have nor maintain any written pension, profit sharing, thrift or other retirement plan, employee benefit plan, employee stock ownership plan, deferred compensation, stock option, stock purchase, performance share, bonus or other incentive plan, severance plan, health, group insurance or other welfare plan, or other similar plan, agreement, policy or understanding. Restaurant Asset Seller is not a party to, and Restaurant Asset Seller is not subject to, any collective bargaining or other agreement or understanding with any labor union, and no approval by any labor union is required to complete this transaction. Prior to the date hereof, to the best of Restaurant Asset Seller’s knowledge, no labor union has attempted to represent employees of the Restaurant Asset Seller at the Location. Restaurant Asset Seller is not privy to or involved in any labor or union controversy or other interaction of any kind. There are no grievances, disputes or controversies with any individual or group of employees which would reasonably be expected to have a material and adverse effect on the Business. The Restaurant Asset Seller has not received notice of any labor action for failure to pay Restaurant Asset Seller’s employees appropriately and Restaurant Asset Seller has no knowledge of any potential wage dispute or claim for unpaid minimum wages under the Florida Minimum Wage Act. Schedule 5.16(b) identifies the name and current compensation of each current employee of Restaurant Asset Seller. There is no unfair labor practice charge or other employee-related or employment-related complaint against Restaurant Asset Seller pending or, to the best of Restaurant Asset Seller’s

knowledge, threatened before any Governmental Authority. To the best of Restaurant Asset Seller’s knowledge, without independent inquiry, Restaurant Asset Seller has substantially complied with, and is currently in substantial compliance with, all Governmental Requirements relating to any of its employees or consultants (including, without limitation, any Governmental Requirement of the Occupational Safety and Health Administration), and Restaurant Asset Seller has not received from any Governmental Authority any written notice of Restaurant Asset Seller’s failure to comply with any such Governmental Requirement. Within fourteen (14) business days after the Closing Date, Restaurant Asset Seller shall pay all of its employees for all salary and other benefits that accrue prior to the date of the Closing.

5.17 No Discounts or Promotions. Except as otherwise disclosed to Restaurant Asset Buyer, Restaurant Asset Seller has not entered into any special programs or arrangements whereby any customer or employer or group thereof is entitled to a lesser fee or preferential treatment offered to all customers after the Closing. Said discounts or promotions currently available include an entertainment book and employee discounts for meals.

5.18 Solvency. Assuming that Restaurant Asset Buyer performs all of its obligations under this Agreement, Restaurant Asset Seller will have sufficient funds to satisfy all obligations owed to its creditors. Restaurant Asset Seller is solvent and has assets which have a fair value in excess of its liabilities. The Purchase Price is fair, has been negotiated on an arms-length basis, and is greater than what Restaurant Asset Seller could obtain for the Assets if such Assets were sold on a liquidation sale basis. Restaurant Asset Seller has had the opportunity to obtain consult with its independent advisors as to the merits of the transaction described herein. Restaurant Asset Seller is not entering into this transaction under duress nor as result of the requirement of any lender, creditor or the FLA.

5.19 Inventory. Immediately after the close of business on the day immediately preceding the Closing Date, Restaurant Asset Seller and Restaurant Asset Buyer shall conduct a physical count of the entire inventory (the “Inventory”). The Restaurant Asset Seller shall provide at least three days prior to Closing a report of all existing inventory at the Location (the “Inventory”) that at such time is owned by Restaurant Asset Seller and which is: (a) usable or saleable in the ordinary course of the Business; (b) sufficient but not excessive in kind or amount for the conduct of the Business as it is presently being conducted, and (c) carried on the books of Restaurant Asset Seller at an amount which reflects its costs. After such determination, Restaurant Asset Seller shall provide evidence by original paid invoices of the cost of such useable and saleable Inventory in the form of a certified report (as certified by Restaurant Asset Seller) of the Inventory at the Location and the Restaurant Asset Buyer and Restaurant Asset Seller shall jointly determine the amount to be added to the Purchase Price (the “Inventory Report”) setting forth the value of the Inventory at cost for the purposes of calculating the Purchase Price and Restaurant Asset Buyer shall acquire the items on the Inventory Report free and clear of all liens and encumbrances. The value of the Inventory shall be calculated at one hundred percent (100%) of the aggregate cost of the Inventory. Inventory shall include, but not be limited to, all useable and unopened beer (including unopened kegs), wine and liquor inventories of Restaurant Asset Seller, as well as food products that Restaurant Asset Buyer and Restaurant Asset Seller jointly agree shall be sold by Restaurant Asset Seller to Restaurant Asset Buyer under the terms of this Agreement. As used herein “useable” shall mean inventory which is in good and saleable condition and of the quality regularly sold and served to customers of Restaurant Asset Seller in the usual course of business.

5.20 Disclosure. No representation or warranty in this Section 5 contains any untrue statement of a material fact or omits a material fact necessary in order to make the statements contained herein false or misleading at the time said statements were made.

6. Conditions Precedent. Restaurant Asset Buyer shall not be obligated to close the transactions contemplated by this Agreement unless each of the following conditions are satisfied, or expressly waived in writing by Restaurant Asset Buyer (collectively, the “Conditions Precedent”): (a) Restaurant Asset Buyer and Restaurant Asset Seller, shall have entered into a management agreement to operate the Business at the Location until the Liquor License from the FLA is issued to Restaurant Asset Buyer or Restaurant Asset Buyer shall have received a temporary liquor license for the Business operation at the Real Property; (b) the Restaurant Asset Seller shall have materially performed, satisfied and complied with all obligations and covenants of Restaurant Asset Seller required by this Agreement to be performed or complied with by them, respectively, at or before the Closing; (c) Restaurant Asset Seller shall have delivered to Restaurant Asset Buyer at or before the Closing, as applicable hereunder, all documents and all other items required hereunder to be delivered to it, with all such documents which require Restaurant Asset Seller’s execution having been duly executed, as applicable, by Restaurant Asset Seller; (d) Restaurant Asset Seller shall have obtained all necessary approvals, consents and clearances from governmental authorities (including but not limited to Department of Business and Professional Regulation and Department of Revenue) and others in connection with the transactions contemplated by this Agreement (the “Consents”), (e) no new law or amendment to any existing Applicable Law has been enacted, , promulgated, or issued which precludes the transaction contemplated by this Agreement; (f) there has been no material adverse change in the Business assets or liabilities of Restaurant Asset Seller since the date of this Agreement; (g) Hotel Asset Seller and Hotel Asset Buyer and Real Property Buyer and Real Property Seller have simultaneously closed on the purchase and sale of the Hotel Assets and the Real Property (h) If the FLA shall fail or refuse to issue the Liquor License and if Restaurant Asset Buyer shall have made a good faith effort to obtain the Liquor License, then either Restaurant Asset Buyer or Restaurant Asset Seller may, without liability, terminate its obligations under this Agreement. Restaurant Asset Seller shall cooperate with Restaurant Asset Buyer to: (i) obtain the FLA’s and other governmental agencies approval to operate the Business at the Location and (ii) complete the transactions contemplated by this Agreement.

7. Pre-Closing Covenants. In addition to other obligations contained in this Agreement, the parties hereto shall perform their respective obligations under the following covenants between the Effective Date and the Closing Date:

7.1 In the event a Closing does not occur, the Restaurant Asset Buyer and Restaurant Asset Seller will return all Information to the party that provided same or destroy all information that is in tangible form, together with any copies that may have been made, and provide written certification that the foregoing has been completed.

7.2 Reasonable Efforts. Each of the parties hereto will use all reasonable efforts to take such actions as are to be taken by each of them respectively hereunder prior to Closing, provided that no party is obligated to waive any condition to its obligations to close or to waive any performance of this Agreement by the other party hereunder. The Restaurant Asset Seller agrees to use commercially reasonable efforts to obtain the Consents required under this Agreement and Restaurant Asset Buyer shall use commercially reasonable efforts to assist in the obtaining of such Consents. Each party shall be

responsible for its own costs and expenses relating to using its efforts as required hereby in obtaining the Consents, provided, however, Restaurant Asset Seller shall have no obligation to incur any cost or expense in connection with Restaurant Asset Buyer obtaining or securing any licenses (liquor or otherwise).

7.3 Ordinary Course. Restaurant Asset Seller will, unless Restaurant Asset Buyer otherwise consents in writing: (a) own and use the Acquired Assets in accordance with all Applicable Laws, in the ordinary course, and in a manner which will not be reasonably expected to have a material adverse effect on the Acquired Assets, (b) maintain the Acquired Assets in good repair and working condition and maintain and keep in force existing insurance on the Acquired Assets, (c) maintain any and all relationships with its existing employees, customers, suppliers and any other persons or firms with whom Restaurant Asset Seller has significant contact in connection with the operation of the Business and take such other and further actions as may be reasonably necessary to preserve the goodwill of the Business, including the prompt payment of all suppliers and vendors; maintain its books and records in the ordinary course, consistent with past practice, (d) maintain the Inventory at the level described on Schedule 5.20 and (e) comply in all respects with all of the terms of the Purchased Commitments and continue operating the Business in the ordinary course. In addition, Restaurant Asset Seller will not, without Restaurant Asset Buyer’s prior written consent: (i) remove, relocate, sell, transfer, pledge, lease, hypothecate or otherwise dispose of any of the Acquired Assets outside of the ordinary course of business, (ii) enter into, engage in, or become a party to, directly or indirectly, any transaction or agreement other than in the ordinary course of business, or (iii) materially increase the compensation of any employee or independent contractor of the Business.

7.4 Cooperation. No party hereto will intentionally take any action that would cause any condition set forth in this Agreement not to be fulfilled, including without limitation, taking or causing to be taken any action that would cause the representations and warranties made by such party in this Agreement not to be true and correct in all material respects as of the Closing. Restaurant Asset Seller shall cooperate with Restaurant Asset Buyer (to the extent that Restaurant Asset Seller shall not incur any expense) relative to the execution of any and all permits and licenses reasonably requested by Restaurant Asset Buyer prior to Closing.

7.5 Governmental Filings. Each party hereto will promptly make all governmental filings or other submissions which may be necessary in order for such party to be able to consummate the transactions contemplated by this Agreement.

7.6 Taxes and Fees. Restaurant Asset Seller shall prepare and timely file, in a manner consistent with Applicable Laws, all tax returns relating to the Business and/or the Acquired Assets required or permitted to be filed on or before the Closing Date.

7.7 Access. From time to time and at any time during normal business hours, Restaurant Asset Seller shall give Restaurant Asset Buyer and its representatives reasonable access to the Location and Acquired Assets from the date hereof and through the Closing Date provided that Restaurant Asset Buyer gives Restaurant Asset Seller reasonable prior notice and Restaurant Asset Buyer is accompanied by Restaurant Asset Seller or an agent thereof and shall promptly furnish to Restaurant Asset Buyer and its representatives such information and records relative to the Business and the Acquired Assets as they shall, at any time and from time to time, reasonably request in Restaurant Asset Seller’s possession,

including but not limited to, financial reports of operations and reports and other information as to the status of Restaurant Asset Seller’s liabilities to its vendors.

7.8 Exclusivity while the parties are under contract. Restaurant Asset Seller acknowledges that Restaurant Asset Buyer has devoted and will devote substantial time and has incurred and will incur out of pocket expenses (including attorneys’ fees and expenses) in connection with conducting business, financial, and legal due diligence investigations of Restaurant Asset Seller and the Business, drafting and negotiating this Agreement and all related agreements and consummating the transactions contemplated hereby and thereby. In the event that Restaurant Asset Seller violates any provision of this Agreement, Restaurant Asset Buyer shall have such remedies as are set forth herein. To induce Restaurant Asset Buyer to take the actions contemplated under this Agreement, the Buyer under the Hotel Asset Agreement and the Real Property Buyer under the Real Property Contract to incur such expenses, from the date of this Agreement until the earlier of the Closing or termination of this Agreement Restaurant Asset Seller will not directly or indirectly: (a) enter into any written or oral agreement or understanding with any person or entity (other than Restaurant Asset Buyer) regarding a sale (directly or indirectly including by way of merger or consolidation) of all or any part of the Business or the Acquired Assets or the use of the Location; or (b) solicit, initiate or encourage the submission of any proposals or offer from any person or entity (other than Restaurant Asset Buyer) regarding the possibility of any such sale or such use or participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any person to do or seek any of the foregoing.

7.9 Pre-Closing Obligations. Restaurant Asset Seller shall promptly pay, perform and discharge in full and in accordance with their respective terms, all liabilities and obligations relating to the Acquired Assets and/or the Business which accrue prior to the Closing (regardless of when they actually arise), and all other Excluded Liabilities, and Restaurant Asset Buyer shall have no responsibility therefor.

7.10 Further Actions. From the date hereof to the Closing or termination of this Agreement, the Restaurant Asset Seller will provide prompt notice to Restaurant Asset Buyer of any fact, condition, event or occurrence that will or is reasonably likely to result in the failure of any of the conditions contained in this Agreement to be satisfied or the breach of any representation or warranty set forth herein.

7.11 Liquor License. The parties acknowledge that, subject to those requirements and conditions established from time to time by the applicable governmental and quasi-governmental authorities (i.e., State of Florida and St. Lucie County), the liquor license is not freely assignable, and that Restaurant Asset Buyer and the principals of the Restaurant Asset Buyer shall be obligated to apply for a liquor license in its name. The Restaurant Asset Seller will reasonably cooperate and assist the Restaurant Asset Buyer in all matters relating to the transfer and assignment of its liquor license to the Restaurant Asset Buyer including, without limitation, the execution and delivery of all documentation required by the governmental authorities with reference thereto, but at no cost or expense to the Restaurant Asset Seller. Without in any manner limiting to the foregoing, Restaurant Asset Seller will, within a reasonable time of Restaurant Asset Buyer’s request execute the Division of Alcoholic Beverages and Tobacco applications in duplicate and have its signatures notarized. Restaurant Asset Seller will also execute the required surcharge form for transfer of licenses. Restaurant Asset Buyer

shall use the applications to determine Restaurant Asset Seller’s status at the Department of Revenue with regard to the sales tax and at the Division of Alcoholic Beverages and Tobacco with regard to surcharges. Restaurant Asset Seller and Restaurant Asset Buyer agree to use their best efforts to immediately cure any deficiencies caused by Restaurant Asset Seller or Restaurant Asset Buyer, as the case may be, that may affect Restaurant Asset Buyer’s ability to obtain a transfer of or the issuance of a temporary the liquor license. Restaurant Asset Buyer will apply for a temporary liquor license to be issued on or before the Closing Date. Restaurant Asset Seller shall provide Restaurant Asset Buyer with any and all prior reports issued by the Division of Hotels and Restaurants prior to Closing, upon request of the Restaurant Asset Buyer.

8. Indemnification. Subject to the terms and conditions set forth in the Closing Escrow Agreement the Restaurant Asset Seller agrees to and shall defend, indemnify and hold harmless Restaurant Asset Buyer and its managers, members, employees, agents, representatives (collectively, the “Restaurant Asset Buyer Indemnified Parties”) harmless from and against any and all losses, damages, actions, lawsuits, demands, proceedings, judgments, deficiencies, costs, expenses (including without limitation, reasonable attorneys’ fees and expenses), and governmental actions of every kind, nature or description (collectively, “Losses”) which arise out of or relate to any of the following: (a) any breach of any representation, warranty or covenant made by the Restaurant Asset Seller in the Acquisition Agreements; (b) any failure by the Restaurant Asset Seller to perform, comply with or observe any one of more of its covenants, agreement or obligations contained in the Acquisition Agreements; If there is any indemnification claim hereunder, Restaurant Asset Buyer shall promptly cause notice of the claim to be delivered to the Restaurant Asset Seller. The Restaurant Asset Seller shall defend such claim at its sole cost and expense with legal counsel selected by the Restaurant Asset Seller. In the event Seller is not pursuing the payment, settlement or defense of the claim in a commercially reasonable manner to the detriment of the Restaurant Asset Buyer, the Restaurant Asset Buyer and its counsel shall have the right to participate in the defense of any such claim and/or compromise or settle the claim and any such expense shall be paid out of and limited to any and all monies in the Escrow Fund being held by Restaurant Asset Seller’s attorney pursuant to that certain Escrow Agreement executed by Restaurant Asset Seller and Restaurant Asset Buyer of even date herewith. Similarly, if notice is given and the Restaurant Asset Seller fails to promptly (for purposes herein, “promptly” shall be deemed to be within 30 days) assume or assert the defense of the claim in good faith, the claim may be defended, comprised or settled by the Restaurant Asset Buyer without the Restaurant Asset Seller’s consent and any expense incurred in defending the claim or any compromise or settlement made shall be paid out of the Escrow Fund up to the amount of the Escrow Fund then in the possession of the Escrow Agent. It is understood and agreed that the Restaurant Asset Seller’s obligations hereunder and under the Escrow Agreement as to any expenses, costs or otherwise and in connection with an indemnification claim shall be limited to the amount of the Escrow Fund. Notwithstanding any provision of this Section 8 to the contrary, Restaurant Asset Buyer may retain control over the defense (at the cost of the Restaurant Asset Seller) of any claim hereunder if such claim is for injunctive or other equitable relief with the expense of such defense being paid out of and limited to any and all monies in the Escrow Fund. Restaurant Asset Seller cannot settle a matter other than for dollar damages without the consent of Restaurant Asset Buyer. Notwithstanding anything contained herein to the contrary, the terms and conditions of said escrow and the Escrow Fund shall be subject to the terms of the Escrow Agreement.

9. Post-Closing Covenants. In addition to other obligations contained in this Agreement, the parties hereto shall perform their respective obligations under the following covenants after the Closing:

9.1. Taxes. Restaurant Asset Buyer shall pay any and all sales, use, transfer or other taxes due or owing in connection with the transfer and conveyance of the Assets hereunder, and Restaurant Asset Seller shall have no liability therefor.

9.2. Restaurant Asset Seller’s Employees. Restaurant Asset Seller acknowledges that on or after the Closing Date, Restaurant Asset Buyer may hire one or more persons previously employed by Restaurant Asset Seller, that any such persons shall be treated as new hires by Restaurant Asset Buyer and that Restaurant Asset Buyer’s employment of such persons shall in no way limit Restaurant Asset Seller’s obligations to pay any amounts or provide any benefits to such persons (owed to such person as a result of their employment prior to Closing) in connection with their employment by Restaurant Asset Seller or the termination thereof. Nothing herein shall obligate Restaurant Asset Buyer to employ such employees or to employ them for any specific time period or to provide them with any specific benefits or pay rate.

9.3. Restrictive Covenants. The Restaurant Asset Seller acknowledges and agrees that Restaurant Asset Buyer would not have entered into this Agreement to purchase the Acquired Assets but for the following restrictive covenants, that the provisions of this Section 9.3 are supported by good and sufficient consideration, that the Restaurant Asset Seller (including, but not limited to, officers, shareholders (and their spouses, if any), employees and agents thereof) possesses information and expertise relating to the Business and the Acquired Assets that will enable them to injure Restaurant Asset Buyer and diminish the value of the investment by Restaurant Asset Buyer in the Business and the Acquired Assets if the Restaurant Asset Seller should engage in any business that is competitive with the Business conducted by Restaurant Asset Buyer. The Restaurant Asset Seller hereby represents and warrants that the Restaurant Asset Seller (including, but not limited to the officers and shareholders (and their spouses, if any) thereof,) do not own a restaurant that operates within the restricted area (hereinafter defined) and they hereby covenant and agree to deliver to Restaurant Asset Buyer during the Due Diligence Period, non-disclosure and non-competition agreements, in a form acceptable to Restaurant Asset Buyer and Restaurant Asset Seller, executed by all Key Personnel (i.e., shareholders of Restaurant Asset Seller), as identified by Restaurant Asset Seller and provided as a list to be adopted as Schedule 9.3 during the Due Diligence Period. This separate non-competition agreement shall provide (a) for a period of two (2) years after the Closing Date (the “Restriction Period”) Key Personnel shall not: within twenty-five (25) miles of the Location, directly or as an owner, officer, employee, agent, or otherwise, operate a restaurant, bar, catering hall or banquet facility either with the name “Shuckers” or any similar name and/or menu, design, or style of service similar that of the Restaurant Business; (b) for a period of two (2) years after the Closing Date directly or indirectly, as an owner, officer, employee, agent, or otherwise solicit for employment or employ any employees of the Business. If any provision of this Section 9.3 is violated, in whole or in part, Restaurant Asset Buyer shall be entitled in addition to damages upon application to any court of proper jurisdiction, to seek a temporary restraining order, preliminary injunction or permanent injunction, to restrain and enjoin such violation without prejudice as to any other remedies Restaurant Asset Buyer may have at law or in equity and Restaurant Asset Seller hereby consents to the issuance thereof by any court of

competent jurisdiction. The Restaurant Asset Seller agrees that the restrictions in this Section 9.3 are reasonable and necessary for the protection of Restaurant Asset Buyer’s business and goodwill and that Restaurant Asset Buyer will suffer irreparable injury, for which monetary damages alone may be inadequate, if Restaurant Asset Seller engages in the prohibited conduct. If Restaurant Asset Buyer seeks a temporary restraining order, preliminary injunction or permanent injunction, Restaurant Asset Buyer shall not be required to post any bond with respect thereto, or, if a bond is required, it may be posted without surety thereon and Restaurant Asset Seller waives any requirement for the securing or posting of any bond in connection with such remedy. If any provision of this Section 9.3 is held by any court of competent jurisdiction to be unenforceable, or unreasonable, as to time, geographic area or business limitation, the parties agree that such provisions shall be and are hereby reformed to the maximum time, geographic area or business limitation permitted by applicable law and the court in each case shall reduce the necessary terms to a permissible duration, burden or scope. The parties further agree that, in such event, the remaining restrictions contained herein shall be severable and shall remain in effect and shall be enforceable independently of each other.

10. Consultation. Anthony P. Carpentier (“Anthony”) agrees to provide Restaurant Asset Buyer, at no cost to Restaurant Asset Buyer, with consulting services relating to the operation of the Business on a full time basis (i.e., up to thirty (30) hours per week) for two (2) weeks prior to Closing and for two (2) weeks after Closing, provided, however, it is understood and agreed that Anthony’s consulting services shall be subject to Anthony’s availability as set forth in a schedule to be provided by Anthony to Restaurant Asset Buyer prior to Closing. Thereafter, for the following ninety (90) days, Anthony shall be reasonably available during regular business hours, as needed, but no more than ten (10) hours total per week. Such assistance may be by telephone or in person at the discretion of the Restaurant Asset Seller. During the Due Diligence Period and subject to being accompanied by Anthony (or such representative as appointed by Anthony), Restaurant Asset Buyer or his designated agent shall be permitted to visit the Business to observe the operation of the Business.

11. Miscellaneous

11.1 Notices. All notices consents, demands and other communications hereunder are to be in writing and must be sent or transmitted by (i) United States mail, certified or registered, return receipt requested (ii) confirmed overnight courier service, or (iii) confirmed facsimile transmission properly addressed or transmitted to the address of the party below or to such other mailing address or facsimile number as one party shall provide to the other party in accordance with this provision and are deemed to have been duly given or made on the delivery date if delivery is made during applicable normal working hours, or on the next business day if deliver after applicable normal working hours. In the event a delivery or notice deadline falls on a weekend or holiday, then the applicable deadline will be extended to include the first business day following such weekend or holiday.

	If to Asset Buyer:	Ark Shucker, LLC
		85 Fifth Avenue
		New York, New York 10003-3019
		Attention: Robert J. Stewart. President
		Email: bstewart@arkrestarants.com

	with a copy to:	Joel P. Koeppel, Esq.

		Koeppel Law Group, P.A.
		400 South Australian Avenue, Suite 300
		West Palm Beach, Florida 33401
		Email: Joel@KoeppelLawGroup.com

	and if to Asset Seller:	Ocean Enterprises, Inc
		9800 South Ocean Drive
		Jensen Beach, Florida 34957
		Attention: Anthony P. Carpentier

	with copy to:	Bob Kramer, Esq.
		Kramer, Sopko & Levinstein, P.A.
		2300 SE Monterey Road, Suite 100
		Stuart, Florida 34996
		Email: rkramer@kslattorneys.com

11.2 Construction. This Agreement constitutes the entire understanding of the parties and may be amended only by a writing executed by all of the parties to be bound. The section and subsection headings of this Agreement have been inserted solely for convenience of reference, and shall not control or affect the meaning or construction of any of the provisions of this Agreement. No provision of this Agreement will be interpreted in favor of, or against, any of the parties hereto by reason of the extent to which any such party or its legal counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof. The parties agree that they have had the opportunity to read this Agreement and obtain the advice of legal counsel, and further agree that the provisions set forth herein are fair and reasonable. The recitals form an integral part of this Agreement and are hereby incorporated herein. Any ambiguity or uncertainty existing herein shall not be interpreted or construed against any party hereto.

11.3 Invalidity. In the event any provision or portion of any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction as applied to any fact or circumstance, the remaining provisions and portions of this Agreement and the same provision as applied to any other fact or circumstance shall not be affected or impaired thereby and shall remain valid and enforceable.

11.4 Waiver. No failure of any party to exercise any right or remedy given such party under this Agreement or otherwise available to such party or to insist upon strict compliance by any other party with its obligations hereunder, and no custom or practice of the parties in variance with the terms hereof, shall constitute a waiver of any party’s right to demand exact compliance with the terms hereof, unless such waiver is set forth in writing and executed by such party.

11.5 Assignment; Binding Effect. No party may assign its rights or delegate its obligations hereunder without the consent of the other party; except that Restaurant Asset Buyer may assign its rights under this Agreement to a corporation, limited liability company or other similar entity owned and controlled by Restaurant Asset Buyer. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.

11.6 Electronic Transmission and Counterparts. This Agreement may be executed by electronic transmission and/or simultaneously in one or more counterparts, each of which shall be deemed an original, but any of which together shall constitute one and the same instrument.

11.7 Risk of Loss. In the event there is a material loss regarding the Business or the Location between the Effective Date and the Closing Date, Restaurant Asset Buyer, may terminate this Agreement, the Hotel Asset Agreement and the Real Estate Rider and receive a refund of the Deposit, and the parties hereto shall have no further obligations hereunder or thereunder; or (b) close the transaction described herein as well as the Hotel Asset Agreement and the Real Estate Purchase and Sale Agreement, together with any insurance proceeds payable by virtue of such loss or damage provided that Restaurant Asset Buyer shall be entitled to a credit for any deductible under any such insurance policy if said deductible is to be paid by Restaurant Asset Seller.

11.8 Submission of Agreement. The submission of this Agreement to the Restaurant Asset Seller or their agents or attorneys for review shall not be deemed an offer to purchase from Restaurant Asset Buyer, and no agreement with respect to the purchase and sale of the Acquired Assets shall exist unless and until this Agreement is executed and delivered by the Restaurant Asset Seller and Restaurant Asset Buyer.

11.9 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed to create any partnership, joint venture or other relationship between the Restaurant Asset Seller and Restaurant Asset Buyer (other than the relationship of seller and/or shareholder and buyer). No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person or entity other than the Restaurant Asset Seller and Restaurant Asset Buyer.

11.10 Further Assurances. Consistent with the terms and conditions hereof each party shall execute and deliver all instruments, certificates and other documents and shall perform all other acts which the other party reasonably requests in order to carry out this Agreement and the transactions contemplated hereby.

11.11 Survival. The provisions of Section 2, Section 5, Section 8 Section 9 and Section 10 shall survive the Closing.

11.12 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.

11.13 JURY WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE RELATIONSHIP CONTEMPLATED HEREBY.

recover all costs of enforcement and litigation, including but not limited to reasonable attorney’s fees. As used in this Agreement the term “prevailing party” means that party whose position is substantially upheld in a final judgment rendered in any litigation or proceeding, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal.

IN WITNESS WHEREOF, the parties have caused this Restaurant Asset Purchase Agreement to be executed the day and year noted below.

ASSET SELLER:		ASSET BUYER:

Ocean Enterprises, Inc.		Ark Shuckers, LLC
a Florida corporation		a Delaware limited liability company

By: /s/: Anthony Carpentier		By: /s/: Robert Stewart
Printed Name: Anthony P. Carpentier		Printed Name: Robert J. Stewart
Title: President		Title: President
Dated: August 10, 2015		Dated: August 10, 2015

EXHIBIT SCHEDULES

Exhibit “A”	Closing Escrow Agreement

PARAGRAPH	DESCRIPTION

1.2	Excluded Assets

1.3	Assumed Liabilities

5.6	Legal Proceedings

5.8	Permits and Licenses

5.9	Real Property Title Exceptions

5.10	Contracts, Agreements, Commitments, Personal Property Leases

5.13	Broker

5.16 (a)	Written Employment Agreements

5.16 (b)	Name and current compensation of employees

Exhibit 10.4

PURCHASE AGREEMENT

THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of the 10^th day of August, 2015 (the “Effective Date”) by and among ISLAND BEACH RESORT, INC., a Florida corporation (“Property Management Seller”), and ARK ISLAND BEACH RESORT, LLC, a Delaware limited liability company (“Property Management Buyer”). Property Management Seller is sometimes herein referred to as “Seller” and Property Management Buyer is sometimes herein referred to herein as “Buyer”.

WHEREAS, Island Beach Resort, Inc. owns and operates a property management operation (the “Business”) known as Island Beach Resort (the “Management Company”) at 9800 South Ocean Drive, Jensen Beach, Florida 34957 (the “Location”); and

WHEREAS, Ocean Enterprises, Inc., a Florida corporation (“Restaurant Asset Seller”) owns and operates a restaurant and bars, gift shop and banquet facility known as Shuckers (the “Restaurant”) at the Location; and

WHEREAS, DC Holding Company, Inc., a Florida corporation (the “Real Property Seller”) owns real property consisting of the real property located at 9800 South Ocean Drive, Commercial Units C-1, C-2, C-3, C-4, Unit 111 and Unit 201, Jensen Beach, Florida 34957 (the “Real Property”); and

WHEREAS, Property Management Seller holds certain licenses and permits from the Division of Hotels and Restaurants to operate the Real Estate Management Company; and

WHEREAS, the closing on this Purchase Agreement is subject to and contingent upon the closing of the Real Estate Commercial Contract and Rider (“Real Estate Contract”) between Real Property Seller and Ark Shuckers Real Estate, LLC (“Real Property Buyer”) and the closing of the Restaurant Asset Purchase Agreement (“Restaurant Asset Purchase Agreement”) between Restaurant Asset Seller and Ark Shuckers, LLC (“Restaurant Asset Buyer”); and

WHEREAS, subject to and on the terms and conditions set forth in this Agreement, the Property Management Seller desires to sell, and Property Management Buyer desires to buy, substantially all of the assets of the Property Management Seller.

1. Sale and Purchase.

1.1. Assets. On and subject to the terms and conditions of this Agreement, at the Closing, Property Management Seller agrees to sell, convey, transfer, assign and deliver to Property Management Buyer and Property Management Buyer agrees to purchase from the Property Management Seller, the Business as a going concern and Property Management Seller’s right, title and

interest in and to all of the Acquired Assets. As used herein “Acquired Assets ‘shall mean all right, title and interest in and to all of the assets of Property Management Seller of every kind, character and description, other than the Excluded Assets, which are related to or used in connection with the conduct and operation of the Business, whether personal or real, tangible or intangible and wherever located, whether or not reflected on Property Management Seller’s financial statements, as such assets may exist on the Closing Date, including, but not limited to, all of its rights (a) as tenant in the Real Property as more fully described in the Real Estate Contract annexed hereto and made part hereof; (b) inventory of materials and supplies, and all furniture, furnishings, signage, fixtures, machinery, trade fixtures, including, but not limited to, leasehold improvements, security systems, computer equipment, alarm systems, cameras and recording devices, protective cages, electrical installations, safes and all other tangible assets relating to the Business of every kind and nature; (c) goodwill associated with the Business, all value of the Business as a going concern, and all records related to the Business including, without limitation, customer records, customer information, customers cards, operations manuals, advertising matter, correspondence, mailing lists, credit records, purchasing materials and records, personnel records, blueprints, data bases, distributors, supplier information and records, repair trade people, and all other data and know-how related to the Business, in any form or medium in Property Management Seller’s possession or obtainable by Property Management Seller; (d) proprietary items including, but not limited to, promotional items and literature, if appropriate, if any, and pictures as it relates to the Business, history of the Business, memorabilia, photographs and decor; (e) telephone and fax numbers, trade names, trademarks and trademark applications, service marks and service mark applications, patents and patent applications, copyrights, assumed names, fictitious names, slogans, domain names, web addresses, web sites, all software and software licenses and all rights in all data processing systems and networks, and all operations manuals, computer hardware, data bases, related documentation, and know-how of any kind; (f) credits, prepaid expenses, advance payments, security deposits and prepaid items customarily transferred and paid for in business asset purchase transactions, but only to the extent that in addition to the Purchase Price, credit is given or payment is made for same at Closing; (g) contracts, agreements, commitments, and personal property leases of Property Management Seller relating to the Business that are described in detail on Schedule 5.10 which Property Management Buyer affirmatively elects in writing to assume (the “Purchased Commitments”); (h) to the extent assignable, licenses and permits relating to the Business or the Acquired Assets; (i) privileges and advantages of every nature, kind and description, being personal or real, tangible or intangible, located at, on, or under the Real Property or in any way used in connection with the Real Property or otherwise possessed or owned by Property Management Seller or in which Property Management Seller has any interest whatsoever, all of the licenses, permits, easements, regulatory rights, beach access rights, air rights, roof rights, antenna rights, developer and use rights, and wallscape and signage rights, leases, subleases and rights thereunder; and (j) contractors and manufacturers guarantees, warranties, indemnities or similar rights in favor of the Property Management Seller with respect to any of its Acquired Assets. All of the Acquired Assets are being sold, assigned, transferred, conveyed and delivered to Property Management Buyer hereunder free and clear of any Lien. As used herein “Lien” shall mean any mortgage, pledge, lien, claim, security interest, conditional sale agreement, prior assignment, charge or encumbrance of any kind or nature whatsoever, including, without limitation, any Uniform Commercial Code lien or tax lien.

1.2. Excluded Assets. The Acquired Assets shall not include the assets listed on Schedule 1.2, licenses that are not assignable, and all leases, contracts, agreements, commitments not relating to the Business or not assumed by Property Management Buyer, all cash and cash equivalents, all of Property Management Seller’s rights under this Agreement and all insurance coverage (collectively, the “Excluded Assets”).

1.3. Assumed Liabilities. On and subject to the terms and conditions of this Agreement, at the Closing, defined below, Property Management Buyer will assume and agree to pay, perform and discharge only the obligations of Property Management Seller first arising from the operation of the Business following the Closing under the Purchased Commitments (the “Assumed Liabilities”)..

1.4. Due Diligence. Property Management Seller hereby agrees to deliver to Property Management Buyer within three (3) business days of the effective date (for purposes herein, said delivery shall require that Property Management Seller make available all such materials at the Location of the Management Company), which shall mean the date on which the last of the Property Management Buyer, Property Management Seller and any other party signing this Agreement shall have signed or initialed this Agreement, as applicable (“Effective Date”), those due diligence items (“Due Diligence Items”) requested by Property Management Buyer or set forth herein. Property Management Buyer shall have thirty (30) days (“Due Diligence Period”) from receipt of all of the Due Diligence Items to review and to approve the Due Diligence Items and any other information or documentation it acquires. If Property Management Buyer, in its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to Property Management Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the expiration of the Due Diligence Period, Property Management Buyer, at its option, may terminate this Agreement by written notice to Property Management Seller delivered at any time prior to the expiration of the Due Diligence Period, whereupon this Agreement shall become null and void and of no further force and effect, the Deposit (as defined below) shall be returned to the Property Management Buyer and the parties hereto shall have no further obligation to one another. Property Management Buyer’s failure to terminate this Agreement pursuant to this Section 1.4 shall not affect Property Management Buyer’s right to require the satisfaction of all conditions to closing set forth in this Agreement. Property Management Buyer and Property Management Seller shall also reasonably cooperate with Property Management Buyer following execution of this Agreement to obtain the transfer of any licenses in favor of Property Management Buyer necessary to run the Business.

2. Purchase Price. The Purchase Price for the Acquired Assets is Four Hundred Fifty Thousand Dollars ($450,000.00) payable as follows: Upon the execution of this Agreement by all parties Property Management Buyer shall pay to Escrow Agent (hereinafter defined) the sum of (i) an initial refundable deposit of Fifty Thousand Dollars ($50,000.00) (the “Initial Deposit”) to Koeppel Law Group, P.A. Trust Account (“Escrow Agent”); and within two (2) business days after the expiration of the Due Diligence Period (ii) Fifty Thousand Dollars ($50,000.00) (the “Additional Deposit”) (the Initial Deposit and Additional Deposit are collectively referred to as the “Deposit”); and, at Closing (hereinafter defined) Property Management Buyer shall pay to Property Management Seller (i) the sum of Three Hundred Fifty Thousand Dollars ($350,000.00 (“Balance Due”) (subject to any prorations, credits or agreed upon a adjustments as provided for herein).

The Purchase Price shall be payable by Property Management Buyer to Property Management Seller, by wire transfer funds, plus or minus the specific items hereinafter described and the usual and ordinary prorations and credits, including but not limited to rent, if any paid for the lease of the leased premises and any leased equipment assumed by Property Management Buyer, personal property taxes for the year of closing imposed on the assets, real estate taxes, gift card liabilities, (collectively, the “Prorations and Credits”). Further, any security deposits held by the vendor/lessor of the leased premises and any leased equipment being assumed by Property Management Buyer shall be reimbursed to Property Management Seller at the time of Closing provided that said vendor/lessor shall transfer the said security deposit for the benefit of the Property Management Buyer as of the Closing Date. The parties hereto agree to re-prorate as to any errors in the listing or payment of Prorations and Credits. Property Management Seller shall be responsible for electricity, telephone, water and sewer, gas and other utility charges, salaries and accrued vacation and other benefits of employees, payment of all amounts owed by Property Management Seller to any governmental agency or unit, and payment of all amounts secured by Liens against the Acquired Assets. To the extent that one party owes money to the other pursuant to this section, such party shall pay all amounts so owed within thirty (30) days after written notice thereof.

In accordance with the provisions of Section 2(e) of the Restaurant Asset Purchase Agreement, a portion of the Restaurant Asset Purchase Price shall be held pursuant to an escrow agreement in form and substance reasonably acceptable to Property Management Buyer and Property Management Seller (the “Closing Escrow Agreement”) to secure the indemnification obligations of both the Restaurant Asset Seller and the Property Management Seller under this Agreement for a period of one (1) year after Closing. The Escrow Cash will be released only in accordance with the terms of the Closing Escrow Agreement. The Property Management Seller acknowledges and agrees that Property Management Buyer’s remedies under the Closing Escrow Agreement are the Property Management Buyer’s sole and exclusive recourses or remedies in connection herewith.

3. Closing. Time is of the essence with respect to all time periods and dates set forth in this Section 3. The closing (the “Closing”) of the transactions contemplated by this Agreement to be on or before September 25, 2015, and is contingent upon the satisfaction or waiver of the Conditions Precedent (as defined below) (the “Closing Date”) and the Closing on the Real Estate Contract and the Restaurant Asset Purchase Agreement. The Closing shall take place at such location which is mutually agreed upon by the parties. The parties hereto agree to cooperate and use reasonable efforts to cause all contingencies to occur by the Closing Date. If through no fault of Property Management Buyer or Property Management Seller the Closing fails to occur on or before September 25, 2015, then either Property Management Seller or Property Management Buyer may, without liability, terminate its obligations under this Agreement, the Real Estate Contract and the Restaurant Asset Purchase Agreement. If the Closing fails to have occurred on or before September 25, 2015 and the failure of the Closing to occur shall be determined by a court of law or other tribunal have been the fault of Property Management Buyer, Property Management Seller shall have the right to retain the Deposit as agreed upon liquidated damages, consideration for execution of this Agreement, and in full settlement of any claims, whereupon Property Management Buyer and Property Management Seller (and Real Property Buyer and Real Property Seller and the Restaurant Seller and Restaurant Buyer) shall be relieved from all further obligations under this Agreement and the Real Estate Rider and the

Restaurant Asset Purchase Agreement. If the Closing shall not have occurred on or before September 25, 2015 and the failure of the Closing to occur shall be determined by a court of law or other tribunal have been the fault of the Property Management Seller, then Property Management Buyer shall have the right to maintain suit for any and all remedies, at law or in equity, including, but not limited to, specific performance, against the defaulting Property Management Seller for breach of this Agreement and the Real Property Seller under the Real Estate Contract and the Restaurant Asset Purchase Agreement.

4. Closing Deliveries.

(a) Closing Deliveries of Buyer. At Closing, Property Management Buyer shall deliver to Property Management Seller the following: (i) the Purchase Price, less the Deposit; (ii) certified copy of resolutions duly adopted by Property Management Buyer, approving the terms and conditions of this Agreement and authorizing Property Management Buyer’s officers to execute, deliver and consummate the same for and on behalf of Property Management Buyer; (iii) certificate of Property Management Buyer’s good standing as a Delaware limited liability company or other legal entity; (iv) the deliverables set forth in the Real Estate Contract and the Restaurant Asset Purchase Agreement; and (v) such other documents as are required pursuant to this Agreement (assumption of Purchased Commitments).

(b) Closing Deliveries of Property Management Seller. At Closing, Property Management Seller shall deliver to Property Management Buyer the following (i) duly executed bill of sale and assignment agreement with appropriate warranties of ownership covering the Acquired Assets, in form and substance reasonably acceptable to Property Management Buyer; (ii) all customer records relating to the operation of the Business at the Location in Property Management Seller’s possession (including the Property Management agreements with the condominium unit owners); (iii) certified copy of resolutions duly adopted by the Shareholder and the Property Management Seller’s Board of Directors, approving the terms and conditions of this Agreement and authorizing Seller’s officers to execute, deliver and consummate the same for and on behalf of Property Management Seller; (iv) certificate of Property Management Seller’s good standing as Florida corporations and certified copies of Property Management Seller’s organizational documents and by-laws, if any; (v) possession of the Acquired Assets; (vi) at Property Management Seller’s cost, UCC, tax and judgment search reports issued by a company reasonably satisfactory to Property Management Buyer evidencing that the Acquired Assets are free from Liens or encumbrances of any sort; (vii) termination statements terminating all financing statements of record on the Closing Date under the Uniform Commercial Code with respect to the Acquired Assets, or a written commitment from the secured party, in form and substance reasonably acceptable to Property Management Buyer, to provide the same; (viii) the originals or certified copies of the Purchased Commitments; (ix) a certification to Property Management Buyer, in form and substance reasonably acceptable to Property Management Buyer, that Property Management Seller warrants that, as of the Closing Date they are in good standing, duly authorized, no default has occurred under any material agreement relating to the Acquired Assets, all third party consent needed to sell the Acquired Assets has been obtained and no proceedings are pending against Property Management Seller or its shareholders; (x) a Closing Certificate as described in Section 6.

5. Representations and Warranties of Property Management Seller. Except as otherwise disclosed in writing to Property Management Buyer on or after the Effective Date, to induce Property Management Buyer to execute this Agreement and consummate the transactions contemplated hereunder, the Property Management Seller hereby represents and warrants to Property Management Buyer as of the date hereof as follows:

5.1 Organization, Good Standing. Authorization. Property Management Seller is a corporation duly organized, validly existing and in good standing under the provisions the law of the State of Florida. Property Management Seller has all requisite corporate power and authority to own and operate its properties and to carry on its business as now conducted. Property Management Seller has all corporate power and the shareholders have authority to enter into this Agreement and all other agreements and documents to be executed by them at Closing pursuant hereto (collectively, the “Acquisition Agreements”). The Acquisition Agreements have been, or will be at the Closing, as applicable, duly executed and delivered by the Property Management Seller and shall constitute the legal, valid and binding obligations of Property Management Seller, enforceable against Property Management Seller in accordance with their respective terms, except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies.

5.2 No Violation. The execution, delivery, compliance with and performance by Property Management Sellers of the Acquisition Agreements does not and will not: (i) violate or contravene the articles of incorporation or by-laws, as amended to date (the “Charter Documents”) of Property Management Seller; (ii) violate or contravene any law, rule, regulation, ordinance, order, judgment or decree (collectively, “Applicable Law’’) to which such Property Management Seller or any of its assets is subject; (iii) conflict with or result in a breach of or constitute a default by any party under any agreement or other document to which Property Management Seller is a party or by which any of its assets or properties are bound or are subject; (iv) result in the creation of any Lien upon any of such Property Management Seller’s properties or the Acquired Assets or give to any person or entity a right of acceleration or termination; (v) require any approval or consent of any person under the Charter Documents of such Property Management Seller, or any agreement or other document to which Property Management Seller is a party or by which Property Management Seller or any of its assets or properties are subject; (vi) result in the termination, modification or cancellation of any transferable license, permit, franchise, governmental authorization, contract, clearance or approval necessary for the lawful operation of the Business by Property Management Buyer; and (vii) require Property Management Seller to obtain any authorization, consent, permit, filing, clearance, registration or exemption or other action by or from or notice to or filing with (either before or after the Closing Date) any federal or state court, administrative agency or other governmental body, other than the Division of Hotels and Restaurants.

5.3 Title. Property Management Seller has, and Property Management Buyer will receive at Closing, good, valid and marketable title to all of the Acquired Assets, free and clear of all Liens, leases and tenancies. The Acquired Assets comprise all assets of the Property Management Seller other than the Excluded Assets. All tangible personal property at the Location is owned by the Property Management Seller and not leased. There are no financing statements under the Uniform Commercial Code filed with the Florida Secretary of State which name Property Management Seller, Real Property Seller or Restaurant Asset Seller as debtor, excepting only financing statements no longer in effect, and Property Management Seller has not signed any security agreement authorizing any secured party thereunder to file any such financing statement.

5.4 No Subsidiaries. Property Management Seller does not own and has never owned, either directly or indirectly, any interest (whether debt or equity) in any other entity.

5.5 Intellectual Property. Property Management Seller has not received any written notices or objections to Property Management Seller’s use and operation of the intellectual property which relates to the Business as now operated or used by Property Management Seller in the operation of the Business, including the trade name “Island Beach Resort”. The Property Management Seller shall assign all intellectual property in Property Management Seller’s possession, including all computer programs and other such licenses which Property Management Seller currently retains.

5.6 Legal Proceedings. Except as set forth on Schedule 5.6 attached hereto, there are no actions, suits, litigation, proceedings or investigations pending or to Property Management Seller’s knowledge threatened by or against Property Management Seller or by or against any shareholder which relate to the Business or the Acquired Assets, and Property Management Seller has not received any written claim, complaint, threat or written notice of any such proceeding or claim.

5.7 Compliance with Laws. In operating the Business, Property Management Seller has complied in all material respects with all regulations, rules, ordinances, laws, statutes, orders and decrees of any governmental authority applicable to it (collectively, the “Applicable Laws’’). Property Management Seller has not received any written notice asserting any violation thereof or non-compliance therewith and there is no pending or to the best of Property Management Sellers’ knowledge, after due inquiry, threatened investigation, inquiry or audit by any federal, state, or local governmental authority relating to Property Management Seller, the Business or any of the Acquired Assets.

5.8 Permits and Licenses. (i) Schedule 5.8 identifies all existing licenses and permits and is complete and correct in all material respects; (ii) such licenses and permits constitute all of the licenses and permits currently necessary for the ownership and operation of the Business, including, but not limited to, the Property Management licenses and permits necessary to operate the Property Management Company; (iii) no default has occurred in the due observance or condition of any license or permit which has not been heretofore corrected; (iv) all licenses and permits (except those listed on Schedule 1.2) are assignable to Property Management Buyer. Each permit and license held by Property Management Seller is valid and in full force and effect, all fees and deposits required in connection therewith have been paid, and no such license or permit is subject to any limitation, restriction, probation or other qualification.

5.9 Intentionally Deleted.

5.10 Commitments. Property Management Seller has delivered or made available to Property Management Buyer or will deliver within three (3) business days of the Effective Date, true and correct copies of all written contracts, agreements, commitments, arrangements and personal property leases which relate to the Business and/or the Acquired Assets, including without limitation, all amendments thereto. A true, correct and complete list and summary description of all such written documents and any and all oral contracts, agreements, commitments, arrangements and personal property leases which relate to the Business and/or the Acquired Assets is attached hereto as Schedule 5.10. All Purchased Commitments are in full force and effect (and are expected to be in full force and effect immediately following the Closing) and represent the valid and binding obligations of Property Management Seller and other parties. The Property Management Seller and all other parties thereto have performed in all material respects all obligations required to be performed by it or them thereunder, respectively. Neither

Property Management Seller nor any other party is (with or without the lapse of time or the giving of notice, or both) in default under any such Purchased Commitment, and Property Management Seller has not received any notice of any default or termination of any such Purchased Commitment from any other party thereto and Property Management Seller is not aware of any facts or circumstances (with or without the lapses of time or the giving of notice or both) under which it would be reasonably likely that there would be a default or termination of any such Purchased Commitment. Property Management Seller has no outstanding powers of attorney relating to the Business or the Acquired Assets.

5.11 Financial Statements. Property Management Seller has heretofore delivered to Property Management Buyer, or will deliver within five (5) business days of the Effective Date, its financial statements for the months January through June 30, 2015 and for the years ended December 31, 2014 and 2013 and its tax returns for the years 2014, 2013 and 2012 signed by a principal of Property Management Seller and its accountant. In the event Property Management Seller has not filed its corporate tax return for the year 2014, Property Management Seller shall deliver a copy to Property Management Buyer simultaneously with the filing of same with the Internal Revenue Service; and Property Management Seller will deliver to Property Management Buyer as soon as practicable its financial statements for each month in 2015 which elapses prior to the Closing Date together with copies of its sales tax reports for the months January through June 30, 2015 and for the years ended December 31, 2014 and 2013. The financial statements referred to in the first sentence of this Section 5.11(collectively, the “Financial Information”) are based upon the information contained in the books and records of the Property Management Seller and present fairly the assets, liabilities and financial condition of the Property Management Seller as of the respective dates thereof and the results of such Property Management Seller’s operations for the periods ended as of the respective dates thereof. The Financial Information in each case has been prepared in accordance with the normal course of business applied on a consistent basis throughout the periods involved and with prior periods and the Financial Information does not materially overstate or understate the gross revenues or net income or the major operating expenses, including, but not limited to, salaries, and payroll tax expenses of Property Management Seller.

5.12 No Undisclosed or Transferee Liability. Property Management Seller has no debt, liability or obligation of any nature, whether accrued, absolute, contingent or otherwise, that is not reflected or reserved against in the Financial Information, other than liabilities incurred in the ordinary course of business after the date of the latest of the Financial Information. All debts, liabilities and obligations of Property Management Seller or otherwise relating to the Business or the Acquired Assets incurred after the periods covered by the Financial Information have been incurred in the ordinary course of business, consistent with past practice, and are usual and normal in amount.

5.13 No Brokers. Except for DMP Brokers, Inc. (d/b/a Prakas & Co.) (the “Broker”), Property Management Seller or Property Management Buyer have not employed, either directly or indirectly, or incurred any liability to, any broker, finder or other agent in connection with the transactions contemplated by this Agreement. Property Management Seller shall be responsible for any and all payments to Broker pursuant to a separate listing agreement.

5.14 Taxes. Property Management Seller is not delinquent with respect to money due to any federal, state, or local taxing authority or any other governmental entity for income tax or any other tax, or interest, penalties, assessments or deficiencies relating thereto (collectively, “Taxes”). Property

Management Seller has filed all federal, state and local and all other tax returns which it is required to have filed. Property Management Seller has paid or made adequate provision for the payment of all Taxes which have or may become due pursuant to said returns or pursuant to any assessment received with respect thereto, or which is otherwise due and payable by such Property Management Seller. As of the Closing Date, Property Management Seller shall have paid all accrued sales taxes owed by Property Management Seller in the state of Florida. No adjustment of or deficiency of any Taxes or claim for additional Taxes has been proposed, or to the best of Property Management Sellers’ knowledge, threatened, asserted or assessed against Property Management Seller. There are no audits or other examinations being conducted or, to the best of Property Management Seller’s knowledge, after due inquiry, threatened by any taxing authority, and there is no deficiency or refund litigation or controversy in progress or, to the best of Property Management Seller’s knowledge, after due inquiry, threatened, with respect to any Taxes previously paid by Asset Sellers or with respect to any returns previously filed by Property Management Seller or on behalf of Property Management Seller. Hotel Asset Sel1er has not made any express waiver of any statute of limitations relating to the assessment or collection of Taxes.

5.15 Shareholders’ Ownership. Anthony P. Carpentier owns 50% and John Daniels owns the remaining 50% of the issued and outstanding capital stock of Property Management Seller. Property Management Seller (and no other person or entity) owns all right, title and interest in personal property of any kind that was actually used and was necessary to the conduct of the Business by Property Management Seller, whether tangible or intangible, wherever located.

5.16 Employee Matters. Except as set forth on schedule 5.16 attached hereto, no employee of Property Management Seller has a written employment agreement or is other than an “at will” employee. Property Management Seller does not have nor maintain any written pension, profit sharing, thrift or other retirement plan, employee benefit plan, employee stock ownership plan, deferred compensation, stock option, stock purchase, performance share, bonus or other incentive plan, severance plan, health, group insurance or other welfare plan, or other similar plan, agreement, policy or understanding. Property Management Seller is not a party to, and Property Management Seller is not subject to, any collective bargaining or other agreement or understanding with any labor union, and no approval by any labor union is required to complete this transaction. Prior to the date hereof, no labor union has attempted to represent employees of the Property Management Seller at the Location. Property Management Seller is not privy to or involved in any labor or union controversy or other interaction of any kind. There are no grievances, disputes or controversies with any individual or group of employees which would reasonably be expected to have a material and adverse effect on the Business. The Property Management Seller has not received notice of any labor action for failure to pay Property Management Seller’s employees appropriately and Property Management Seller has no knowledge of any potential wage dispute or claim for unpaid minimum wages under the Florida Minimum Wage Act. Schedule 5.16(b) identifies the name and current compensation of each current employee of Property Management Seller. There is no unfair labor practice charge or other employee-related or employment-related complaint against Property Management Seller pending or, to the best of Property Management Seller’s knowledge, threatened before any Governmental Authority. To the best of Property Management Seller’s knowledge, without independent inquiry, Property Management Seller has substantially complied with, and is currently in substantial compliance with, all Governmental Requirements relating to any of its employees or consultants (including, without limitation, any Governmental Requirement of the Occupational Safety and Health Administration), and Property

Management Seller has not received from any Governmental Authority any written notice of Hotel Asset Seller’s failure to comply with any such Governmental Requirement. Within fourteen (14) business days after the Closing Date, Property Management Seller shall pay all of its employees for all salary and other benefits that accrue prior to the date of the Closing.

5.17 No Discounts or Promotions Property Management Seller has not entered into any special programs or arrangements whereby any customer or employer or group thereof is entitled to a lesser fee or preferential treatment offered to all customers after the Closing, except for that arrangement with Dave Minor (one of the Unit Owners) that includes a discounted commission in exchange for certain considerations, and lawyers included in the book commonly known as “Enjoyment Treasure Coast”.

5.18 No Change. Since the Effective Date there has not been: (a) any change in the condition of the Acquired Assets; (b) any contract, agreement, lease or other commitment or arrangement (written or oral) entered into or amended relating to the Business, except as may otherwise be disclosed to Property Management Buyer; (c) any indebtedness, liability or obligation created, incurred or assumed by Property Management Seller; (d) any acquisition by Property Management Seller of any Acquired Assets in any transactions with any of Property Management Seller’s officers, directors or Shareholder, or any relative by blood or marriage or any Affiliate (as hereinafter defined) thereof or of Property Management Seller, or any acquisition of any Acquired Assets of material value in any transaction with any other person or entity; (e) any material change in Property Management Seller’s maintenance of its books of account; (f) any sale, lease or other disposition of or agreement to sell, lease or otherwise dispose of any of the Acquired Assets, except in the ordinary course of business and consistent with past practice; or (g) any other event, condition, change or circumstance which has had, or is reasonably expected to have, a material adverse effect, on Property Management Seller or the Acquired Assets taken as a whole. “Affiliate” shall mean any party which is directly or indirectly controlling, controlled by or under common control with another person or entity.

5.19 Solvency. Assuming that Property Management Buyer performs all of its obligations under this Agreement, Property Management Seller will have sufficient funds to satisfy all obligations owed to its creditors. Property Management Seller is solvent and has assets which have a fair value in excess of its liabilities. The Purchase Price is fair, has been negotiated on an arms-length basis, and is greater than what Property Management Seller could obtain for the Assets if such Assets were sold on a liquidation sale basis. Property Management Seller has had the opportunity to obtain consult with its independent advisors as to the merits of the transaction described herein. Property Management Seller is not entering into this transaction under duress nor as result of the requirement of any lender, creditor or the Division of Hotels and Restaurants.

5.20 Inventory. Immediately after the close of business on the day immediately preceding the Closing Date, Property Management Seller and Property Management Buyer shall conduct a physical count of the entire inventory (the “Inventory”). The Property Management Seller shall provide at least three days prior to Closing a report of all existing inventory at the Location (the “Inventory”) that at such time is owned by Property Management Seller and which is: (a) usable or saleable in the ordinary course of the Business; (b) sufficient but not excessive in kind or amount for the conduct of the Business as it is presently being conducted, and (c) carried on the books of Property Management Seller at an amount which reflects its costs. After such determination, Property Management Seller shall provide evidence by original paid invoices of the cost of such useable and saleable Inventory in the form of a

certified report (by Property Management Seller) of the Inventory at the Location and the Property Management Buyer and Property Management Seller shall jointly determine the amount to be added to the Purchase Price (the “Inventory Report”) setting forth the value of the Inventory at cost for the purposes of calculating the Purchase Price and Property Management Buyer shall acquire the items on the Inventory Report free and clear of all liens and encumbrances. The value of the Inventory shall be calculated at one hundred percent (100%) of the aggregate cost of the Inventory. Inventory shall include, but not be limited to, all useable and unopened inventories of Property Management Seller. As used herein “useable” shall mean inventory which is in good and saleable condition and of the quality regularly sold and served to customers of Property Management Seller in the usual course of business.

No less than three (3) days prior to Closing, Property Management Seller shall provide a certified report of the Inventory at the Location and the corresponding cost associated therewith (the “Inventory Report”) setting forth the value of the Inventory at cost for the purposes of calculating the Purchase Price. The value of the Inventory shall be calculated at one hundred percent (100%) of the aggregate cost of the Inventory.

5.21 Disclosure. No representation or warranty in this Section 5 contains any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.

6. Conditions Precedent. Property Management Buyer and Property Management Seller shall not be obligated to close the transactions contemplated by this Agreement unless each of the following conditions are satisfied, or expressly waived in writing by Property Management Buyer (collectively, the “Conditions Precedent”): (a) Property Management Seller shall have executed and delivered to Property Management Buyer at the Closing a Certificate certifying: (i) as to the fulfillment of the matters contained in this Section 6 and (ii) that as of the Closing Date the representations and warranties of the Property Management Seller contained in this Agreement are true, complete and accurate to the same extent and with the same force and effect as if made on such date; (b) the Property Management Seller shall have materially performed, satisfied and complied with all obligations and covenants of Property Management Seller required by this Agreement to be performed or complied with by them, respectively, at or before the Closing; (c) Property Management Seller shall have delivered to Property Management Buyer at or before the Closing, as applicable hereunder, all documents and all other items required hereunder to be delivered by them, respectively, with all such documents which require Property Management Seller’s execution having been duly executed, as applicable, by Property Management Seller; (d) Property Management Seller shall have obtained all necessary approvals, consents and clearances (if any) from governmental authorities (including but not limited to Department of Business and Professional Regulation and Department of Revenue) and others in connection with the transactions contemplated by this Agreement (the “Consents”), (e) no new law or amendment to any existing Applicable Law has been enacted, promulgated, issued or otherwise effectuated which precludes the transaction contemplated by this Agreement or which would materially adversely affect the profitability or legality of the Business; (f) there has been no material adverse change in the Business assets, liabilities, results of operations or prospects of Property Management Seller since the date of this Agreement; (g) Real Property Buyer and Real Property Seller and Restaurant Asset Buyer and Restaurant Asset Seller have simultaneously closed on the purchase and sale of the Real Property and the Restaurant Assets (h) If the FLA shall fail or refuse to issue the Liquor License to Restaurant Asset Buyer and if Restaurant Asset Buyer shall have made a good faith effort to

obtain the Liquor License, then either Property Management Buyer or Property Management Seller may, without liability, terminate its obligations under this Agreement, the Real Estate Rider and the Restaurant Asset Purchase Agreement. Property Management Seller shall cooperate with Property Management Buyer to: (i) obtain all governmental agencies approval to operate the Business at the Location and (ii) complete the transactions contemplated by this Agreement.

7.1 Confidentiality. In the event a Closing does not occur, the Property Management Buyer and Property Management Seller will return all Information to the party that provided same or destroy all Information that is in tangible form, together with any copies that may have been made, and provide written certification that the foregoing has been completed.

7.2 Reasonable Efforts. Each of the parties hereto will use all reasonable efforts to take such actions as are to be taken by each of them respectively hereunder prior to Closing, provided that no party is obligated to waive any condition to its obligations to close or to waive any performance of this Agreement by the other party hereunder. The Property Management Seller agrees to use commercially reasonable efforts to obtain the Consents required under this Agreement and Property Management Buyer shall use commercially reasonable efforts to assist in the obtaining of such Consents. Each party shall be responsible for its own costs and expenses relating to using its efforts as required hereby in obtaining the Consents.

7.3 Ordinary Course. Property Management Seller will, unless Property Management Buyer otherwise consents in writing: (a) own and use the Acquired Assets in accordance with all Applicable Laws, in the ordinary course, and in a manner which will not be reasonably expected to have a material adverse effect on the Acquired Assets, (b) maintain the Acquired Assets in good repair and working condition and maintain and keep in force existing insurance on the Acquired Assets, (c) maintain any and all relationships with its existing employees, customers, suppliers and any other persons or firms with whom Property Management Seller has significant contact in connection with the operation of the Business and take such other and further actions as may be reasonably necessary to preserve the goodwill of the Business, including the prompt payment of all suppliers and vendors; maintain its books and records in the ordinary course, consistent with past practice, (e) maintain the Inventory at the level described on Schedule 5.20 and (f) comply in all respects with all of the terms of the Purchased Commitments and continue operating the Business in the ordinary course. In addition, Property Management Seller will not, after the expiration of the Due Diligence Period, without Property Management Buyer’s prior written consent: (i) remove, relocate, sell, transfer, pledge, lease, hypothecate or otherwise dispose of any of the Acquired Assets outside of the ordinary course of business, (ii) enter into, engage in, or become a party to, directly or indirectly, any transaction or agreement other than in the ordinary course of business, or (iii) increase the compensation of any employee or independent contractor of the Business.

in this Agreement not to be true and correct in all material respects as of the Closing. Property Management Seller shall cooperate with Property Management Buyer relative to the execution of any and all permits and licenses reasonably requested by Property Management Buyer prior to Closing.

7.6 Taxes and Fees. Property Management Seller shall prepare and timely file, in a manner consistent with Applicable Laws, all tax returns relating to the Business and/or the Acquired Assets required or permitted to be filed on or before the Closing Date.

7.7 Access. From time to time and at any time during normal business hours and only with Property Management Seller’s prior consent (which may, at Property Management Seller’s discretion, require a representative of Property Management Seller to be present), Property Management Seller shall give Property Management Buyer and its representatives reasonable access to the Location and Acquired Assets from the date hereof and through the Closing Date and shall promptly furnish to Property Management Buyer and its representatives such information and records relative to the Business and the Acquired Assets as they shall, at any time and from time to time, reasonably request, including but not limited to, financial reports of operations and reports and other information as to the status of Property Management Seller’s liabilities to its vendors.

7.8 Exclusivity. Property Management Seller acknowledges that Property Management Buyer has devoted and will devote substantial time and has incurred and will incur out of pocket expenses (including attorneys’ fees and expenses) in connection with conducting business, financial, and legal due diligence investigations of Property Management Seller and the Business, drafting and negotiating this Agreement and all related agreements and consummating the transactions contemplated hereby and thereby. In the event that Property Management Seller violates any provision of this Agreement, Property Management Buyer shall have such remedies as are set forth herein. To induce Property Management Buyer to take the actions contemplated under this Agreement, the Restaurant Asset Buyer under the Restaurant Asset Agreement and the Real Property Buyer under the Real Property Contract to incur such expenses, from the date of this Agreement until the earlier of the Closing or termination of this Agreement, Property Management Seller will not directly or indirectly: (a) enter into any written or oral agreement or understanding with any person or entity (other than Property Management Buyer) regarding a sale (directly or indirectly including by way of merger or consolidation) of all or any part of the Business or the Acquired Assets or the use of the Location; or (b) solicit, initiate or encourage the submission of any proposals or offer from any person or entity (other than Property Management Buyer) regarding the possibility of any such sale or such use or participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any person to do or seek any of the foregoing.

7.9 Pre-Closing Obligations. Property Management Seller shall promptly pay, perform and discharge in full and in accordance with their respective terms, all liabilities and obligations relating to

the Acquired Assets and/or the Business which accrue prior to the Closing (regardless of when they actually arise), and all other Excluded Liabilities, and Property Management Buyer shall have no responsibility therefor.

7.10. Further Actions. From the date hereof to the Closing or termination of this Agreement, the Property Management Seller will provide prompt notice to Property Management Buyer of any fact, condition, event or occurrence that will or is reasonably likely to result in the failure of any of the conditions contained in this Agreement to be satisfied or the breach of any representation or warranty set forth herein.

7.11 Approval of Division of Hotels and Restaurants. Property Management Seller agrees that it will permit a health inspection of the Property by the Division of Hotels and Restaurants and any other inspections required prior to Closing, upon request of the Property Management Buyer.

8. Indemnification. The Property Management Seller agrees to and shall defend, indemnify and hold harmless Property Management Buyer and its managers, members, employees, agents, representatives (collectively, the “Property Management Buyer Indemnified Parties”) harmless from and against any and all losses, damages, lawsuits, proceedings, judgments, deficiencies, costs, expenses (including without limitation, reasonable attorneys’ fees and expenses), and governmental actions of every kind, nature or description (collectively, “Losses”) which arise out of or relate to any of the following: (a) any breach of any representation, warranty or covenant made by the Property Management Seller in the Acquisition Agreements; (b) any failure by the Property Management Seller to perform, comply with or observe any one of more of its covenants, agreement or obligations contained in the Acquisition Agreements; and (c) any transferee liability for which the Property Management Buyer Indemnified Parties become liable on account of any obligation of Property Management Seller, including, but not limited to, any tax liability that the Property Management Buyer assumes by law. If there is any indemnification claim hereunder, Property Management Buyer shall promptly cause notice of the claim to be delivered to the Property Management Seller. The Property Management Seller shall defend such claim at their sole cost and expense with legal counsel selected by the Property Management Seller (provided that Property Management Buyer shall have the right to approve such counsel, such approval not to be unreasonably withheld). The Property Management Buyer and its counsel shall have the right to participate in the defense of any such claim at the Property Management Buyer’s sole cost and expense. If notice is given and the Property Management Seller fails to promptly assume or assert the defense of the claim in good faith, the claim may be defended, comprised or settled by the Property Management Buyer without the Property Management Seller’s consent and the Property Management Seller shall remain liable under this Section 8. Notwithstanding any provision of this Section 8 to the contrary: (a) the Property Management Buyer may retain control over the defense (at the cost of the Property Management Seller) of any claim hereunder if such claim is for injunctive or other equitable relief; and/or (b) if in the reasonable opinion of the Property Management Buyer there may be a conflict between the positions of the Property Management Buyer and Property Management Seller in conducting the defense of an action or that there may be legal defenses available to Property Management Buyer different from or in addition to those which counsel for the Property Management Seller would be able to raise, the Property Management Buyer shall be entitled to maintain its own independent defense of such action and the reasonable fees and expenses of

the Property Management Buyer’s counsel shall be paid by the Property Management Seller. Property Management Seller cannot settle a matter other than for dollar damages without the consent of Property Management Buyer. Notwithstanding anything contained herein to the contrary, any and all costs and expenses resulting from Property Management Seller’s indemnity obligations contained in this Paragraph 8, if the responsibility of Property Management Seller, shall be paid out of the “Escrow Cash”, it being understood and agreed that Property Management Seller’s obligations under the Acquisition Agreements shall not exceed any and all monies in the Escrow Cash.

9.1. Taxes. Property Management Seller shall pay any and all sales, use, transfer or other taxes due or owing in connection with the transfer and conveyance of the Assets hereunder, and Property Management Buyer shall have no liability therefor.

9.2. Property Management Seller’s Employees. Property Management Seller acknowledges that on or after the Closing Date, Property Management Buyer may hire one or more persons previously employed by Property Management Seller, that any such persons shall be treated as new hires by Property Management Buyer and that Property Management Buyer’s employment of such persons shall in no way limit Property Management Seller’s obligations to pay any amounts or provide any benefits to such persons in connection with their employment by Property Management Seller or the termination thereof. Nothing herein shall obligate Property Management Buyer to employ such employees or to employ them for any specific time period or to provide them with any specific benefits or pay rate.

9.3. Restrictive Covenants. The Property Management Seller acknowledges and agrees that Property Management Buyer would not have entered into this Agreement to purchase the Acquired Assets but for the following restrictive covenants, that the provisions of this Section 9.3 are supported by good and sufficient consideration, that the Property Management Seller (including, but not limited to, officers, shareholders (and their spouses, if any), employees and agents thereof) possesses information and expertise relating to the Business and the Acquired Assets that will enable them to injure Property Management Buyer and diminish the value of the investment by Property Management Buyer in the Business and the Acquired Assets if the Property Management Seller should engage in any business that is competitive with the Business conducted by Property Management Buyer. The Property Management Seller hereby represents and warrants that the Property Management Seller (including, but not limited to the officers and shareholders thereof, and their spouses) do not own a management company that operates within the restricted area (hereinafter defined) and they covenant hereby covenants and agrees to deliver to Property Management Buyer during the Due Diligence Period, non-disclosure and non-competition agreements, in a form acceptable to Property Management Buyer, executed by the Shareholders of Property Management Seller. This separate non-competition agreement shall provide (a) for a period of two (2) years after the Closing Date (the “Restriction Period”) Key Personnel shall not: within twenty-five (25) miles of the Location, directly or as an owner, officer, employee, agent, or otherwise, operate a management company either with the name “Island Beach Resort” or any similar name and/or design, or style of service similar that of the Business; (b) for a period of two (2) years after the Closing Date directly or indirectly, as an owner, officer,

employee, agent, or otherwise solicit for employment or employ any employees of the Business. If any provision of this Section 9.3 or Section 7. 1 is violated, in whole or in part, Property Management Buyer shall be entitled in addition to damages upon application to any court of proper jurisdiction, to seek a temporary restraining order, preliminary injunction or permanent injunction, to restrain and enjoin such violation without prejudice as to any other remedies Property Management Buyer may have at law or in equity and Property Management Seller hereby consents to the issuance thereof by any court of competent jurisdiction. The Property Management Seller agrees that the restrictions in this Section 9.3 or Section 7.1 are reasonable and necessary for the protection of Property Management Buyer’s business and goodwill and that Property Management Buyer will suffer irreparable injury, for which monetary damages alone may be inadequate, if Property Management Seller engages in the prohibited conduct. If Property Management Buyer seeks a temporary restraining order, preliminary injunction or permanent injunction, Property Management Buyer shall not be required to post any bond with respect thereto, or, if a bond is required, it may be posted without surety thereon and Property Management Seller waives any requirement for the securing or posting of any bond in connection with such remedy. If any provision of this Section 9.3 is held by any court of competent jurisdiction to be unenforceable, or unreasonable, as to time, geographic area or business limitation, the parties agree that such provisions shall be and are hereby reformed to the maximum time, geographic area or business limitation permitted by applicable law and the court in each case shall reduce the necessary terms to a permissible duration, burden or scope. The parties further agree that, in such event, the remaining restrictions contained herein shall be severable and shall remain in effect and shall be enforceable independently of each other. Upon any breach of the covenants contained in this Section 9.3 whether or not there is litigation, the restrictions as to duration contained therein shall be deemed automatically extended for a period at least equal to the total period of such breach or breaches.

10. Consultation. Anthony P. Carpentier (“Anthony”) agrees to provide Property Management Buyer, at no cost to Property Management Buyer, with consulting services relating to the operation of the Business for two (2) weeks prior to Closing on a reasonable basis (i.e., 20 hours per week) and for two (2) weeks after Closing provided, however, Anthony shall provide, prior to Closing, a schedule of his availability so that such consulting services shall be subject to Anthony’s schedule. Thereafter, for the following ninety (90) days, Anthony shall be reasonably available during regular business hours, as needed, but no more than ten (10) hours total per week. Such assistance may be by telephone or in person at the discretion of the Property Management Buyer. During the Due Diligence Period, Property Management Buyer or his designated agent shall be permitted to visit the Business to observe the operation of the Business.

11. Miscellaneous

to include the first business day following such weekend or holiday.

If to Asset Buyer:Ark	Island Beach Resort, LLC
	85 Fifth Avenue
	New York, New York 10003-3019
	Attention: Robert J. Stewart. President
	Email: bstewart@arkrestarants.com

with a copy to:	Joel P. Koeppel, Esq.
	Koeppel Law Group, P.A.
	400 South Australian Avenue, Suite 300
	West Palm Beach, Florida 33401
	Email: Joel@KoeppelLawGroup.com

and if to Asset Seller:	Island Beach Resort, Inc.
	9800 South Ocean Drive
	Jensen Beach, Florida 34957
	Attention: Anthony P. Carpentier

with copy to:	Bob Kramer, Esq.
	Kramer, Sopko & Levinstein, P.A.
	2300 SE Monterey Road, Suite 100
	Stuart, Florida 34996
	Email: rkramer@kslattorneys.com

11.2 Construction. This Agreement constitutes the entire understanding of the parties and may be amended only by a writing executed by all of the parties to be bound. The section and subsection beadings of this Agreement have been inserted solely for convenience of reference, and shall not control or affect the meaning or construction of any of the provisions of this Agreement. No provision of this Agreement will be interpreted in favor of, or against, any of the parties hereto by reason of the extent to which any such party or its legal counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof. The parties agree that they have had the opportunity to read this Agreement and obtain the advice of legal counsel, and further agree that the provisions set forth herein are fair and reasonable. The recitals form an integral part of this Agreement and are hereby incorporated herein. Any ambiguity or uncertainty existing herein shall not be interpreted or construed against any party hereto.

11.4 Waiver. No failure of any party to exercise any right or remedy given such party under this Agreement or otherwise available to such party or to insist upon strict compliance by any other

party with its obligations hereunder, and no custom or practice of the parties in variance with the terms hereof, shall constitute a waiver of any party’s right to demand exact compliance with the terms hereof, unless such waiver is set forth in writing and executed by such party.

11.5 Assignment; Binding Effect. No party may assign its rights or delegate its obligations hereunder without the consent of the other party; except that Property Management Buyer may assign its rights under this Agreement to a corporation, limited liability company or other similar entity owned and controlled by Property Management Buyer. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.

11.7 Risk of Loss. In the event there is a material loss regarding the Business or the Location between the Effective Date and the Closing Date, Property Management Buyer, at its option, may (a) terminate this Agreement (and Restaurant Asset Buyer and Real Property Buyer shall have the same right to terminate those agreements) and the parties hereto shall have no further obligations hereunder, or (b) close the transaction described herein, provided that Property Management Buyer shall be entitled to a credit for the fair value of any Acquired Assets destroyed or damaged on account of such loss and such credit is agreeable to Property Management Seller. If the parties cannot agree on the amount of the “fair value credit”, either party may terminate this Agreement.

11.8 Submission of Agreement. The submission of this Agreement to the Property Management Seller or their agents or attorneys for review shall not be deemed an offer to purchase from Property Management Buyer, and no agreement with respect to the purchase and sale of the Acquired Assets shall exist unless and until this Agreement is executed and delivered by the Property Management Seller and Property Management Buyer.

11.9 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed to create any partnership, joint venture or other relationship between the Property Management Seller and Property Management Buyer (other than the relationship of seller and/or shareholder and buyer). No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person or entity other than the Property Management Seller and Property Management Buyer.

11.11 Survival. The provisions of Section 2, Section 5, Section 8, Section 9 and Section 10 shall survive the Closing for a period of one (1) year after Closing, and upon said one (1) year date, all representations, warranties and covenants contained in Sections 2, 5, 8, 9 and 10 shall cease and all monies remaining in the Escrow Cash shall immediately be delivered to Property Management Seller, its successors and/or assigns.

11.12 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.

11.14 Fees and Expenses. Each of the parties hereto shall pay its own fees, costs and expenses incurred in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. In any action brought to enforce the terms of this Agreement or any guarantee of obligations hereunder, the prevailing party shall be entitled to recover all costs of enforcement and litigation, including but not limited to reasonable attorney’s fees. As used in this Agreement the term “prevailing party” means that party whose position is substantially upheld in a final judgment rendered in any litigation or proceeding, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal.

IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to be executed the day and year first above written.

ASSET SELLER:		ASSET BUYER:

Island Beach Resort, Inc.		Ark Island Beach Resort, LLC
a Florida corporation		a Delaware limited liability company

By:	/s/: Anthony P. Carpentier	By:	/s/:Robert Stewart
Printed Name: Anthony P. Carpentier		Printed Name: Robert J. Stewart
Title: President		Title: President

EXHIBIT SCHEDULES

PARAGRAPH	DESCRIPTION

1.2	Excluded Assets

1.3	Assumed Liabilities

5.6	Legal Proceedings

5.8	Permits and Licenses

5.9	Real Property Title Exceptions

5.10	Contracts, Agreements, Commitments, Personal Property Leases

5.13	Broker

5.16 (a)	Written Employment Agreements

5.16 (b)	Name and current compensation of employees

Exhibit 10.5

CREDIT AGREEMENT

(TERM FACILITY)

between

Ark RESTAURANTS CORP.

and

bank hapoalim b.m.

dated as of

October 21, 2015

CREDIT AGREEMENT

(TERM FACILITY)

Dated as of: October 21, 2015

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

§1. TERMINOLOGY AND INTERPRETATION.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-2-

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

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

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

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

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

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

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

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

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

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

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

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

-3-

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

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

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

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

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

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

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

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

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

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

-4-

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

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

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

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

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

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

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

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

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

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

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

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

-5-

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

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

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

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

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

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

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

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

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

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

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

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

-6-

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

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

“Margin” shall mean 3.50 percent per annum.

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

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

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

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

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

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

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

-7-

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

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

“PBGC” shall mean the Pension Benefit Guaranty Corporation.

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

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

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

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

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

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

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

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

-8-

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

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

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

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

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

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

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

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

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

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

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

-9-

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

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

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

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

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

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

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

-10-

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

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

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

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

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

§1.2 Other Definitional and Interpretive Provisions.

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

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

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

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

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

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

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

-11-

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

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

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

§1.7 Severability, Conflicts, Etc. Any provision of any Credit Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. It is the intention of the parties to this Agreement that if any provision of any Credit Document is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, the provision shall have the meaning which renders it valid.

§2. COMMITMENT; PURPOSE; AND AVAILABILITY.

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

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

§3. PAYMENT TERMS.

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

-12-

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

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

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

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

-13-

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

§3.2 Principal and Other Payments.

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

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

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

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

-14-

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

§3.5 Payments and Computations.

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

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

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

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

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

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

§4. COLLATERAL.

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

-15-

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

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

§5. CONDITIONS OF LENDING.

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

(a) The Note duly executed by Borrower;

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

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

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

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

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

-16-

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

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

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

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

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

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

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

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

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

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

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

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

-17-

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

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

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

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

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

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

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

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

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

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

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

-18-

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

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

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

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

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

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

§6. CERTAIN REPRESENTATIONS AND WARRANTIES OF BORROWER.

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

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

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

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

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

-19-

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

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

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

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

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

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

-20-

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

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

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

§6.13 ERISA.

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

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

-21-

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

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

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

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

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

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

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

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

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

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

-22-

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

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

§7. CERTAIN GENERAL COVENANTS.

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

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

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

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

-23-

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

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

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

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

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

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

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

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

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

-24-

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

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

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

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

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

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

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

§7.8 Fiscal Year. Not change its Fiscal Year.

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

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

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

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

-25-

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

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

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

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

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

§8. CERTAIN FINANCIAL COVENANTS.

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

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

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

§9. INFORMATION.

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

-26-

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

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

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

(d) Additional Materials.

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

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

-27-

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

§9.2 Accuracy of Financial Statements and Information.

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

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

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

-28-

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

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

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

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

§10. DEFAULT.

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

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

-29-

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

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

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

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

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

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

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

-30-

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

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

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

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

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

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

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

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

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

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

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

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

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

-31-

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

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

§11. MISCELLANEOUS.

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

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

-32-

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

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

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

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

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

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

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

-33-

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

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

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

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

-34-

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

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

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

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

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

-35-

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

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

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

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

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

-36-

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

(Signature page follows)

-37-

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

	ARK RESTAURANTS CORP.

	By: /s/: Robert Stewart
	Name: Robert Stewart
	Title: President

	BANK HAPOALIM B.M.

	By:
	Name:
	Title:

	By:
	Name:
	Title:

-38-

EXHIBIT A

UNITS

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

-39-

SCHEDULE 6.2

SUBSIDIARIES

Subsidiary	Trade name(s)	Jurisdiction of Incorporation
1. Ark AC Burger Bar LLC	Broadway Burger Bar and Grill	Delaware

2. Ark Atlantic City Corp.	Gallagher’s Burger Bar	Delaware

3. Ark Atlantic City Restaurant Corp.	Gallagher’s Steakhouse	Delaware

4. Ark Basketball City Corp.		New York

5. Ark Boston RSS Corp.	Durgin Park and Blackhorse Tavern	Delaware

6. Ark Bryant Park LLC	Bryant Park Grill & Café	Delaware

7. Ark Connecticut Corp.		Delaware

8. Ark Connecticut Branches Corp.	The Grill at Two Trees	Delaware

9. Ark Connecticut Investment LLC		Delaware

10. Ark Connecticut Pizza LLC		Delaware

11. Ark Connecticut Poker LLC		Delaware

12. Ark Fifth Avenue Corp.		New York

13. Ark D.C. Kiosk, Inc.	Center Café	District of Columbia

14. Ark Hollywood/Tampa Corp.		Delaware

15. Ark Hollywood/Tampa Investments LLC		Delaware

16. Ark Hollywood LLC		Delaware

17. Ark Jupiter RI, LLC		Delaware

18. Ark Las Vegas Restaurant Corp.		Nevada

19. Ark Mad Events LLC		Delaware

20. Ark Meadowlands LLC		Delaware

21. Ark Museum LLC	Robert	Delaware

22. Ark Operating Corp.	El Rio Grande	New York

23. Ark Potomac Corporation	Sequoia	District of Columbia

-40-

24. Ark Rio Corp.	El Rio Grande	New York

25. Ark Rustic Inn LLC		Delaware

26. Ark Rustic Inn Real Estate LLC		Delaware

27. Ark Southwest D.C. Corp.	Thunder Grill	District of Columbia

28. Ark Union Station, Inc.	America	District of Columbia

29. ArkMod, LLC		New York

30. Chefmod, LLC		New York

31. Clyde Ark LLC	Clyde Frazier’s Wine and Dine	New York

32. Las Vegas America Corp.	America	Nevada

33. Las Vegas Festival Food Corp.	(1) Gonzalez y Gonzalez (2) Village Eateries (New York-New York Hotel Food Court) (3) Broadway Burger Bar	Nevada

34. Las Vegas Planet Mexico Corp.	Yolos	Nevada

35. Las Vegas Steakhouse Corp.	Gallagher’s Steakhouse	Nevada

36. Las Vegas Venice Deli Corp.	Towers Deli (Venetian Food Court) (closed)	Nevada

37. Las Vegas Venice Food Corp.	Shake N Burger (Venetian Food Court)	Nevada

38. Las Vegas Whiskey Bar, Inc.	VBAR (closing 10/31/15)	Las Vegas

39. MEB on First LLC	Canyon Road Grill	New York

40. Rio Restaurant Associates, L.P.		New York

41. Rio Restaurant Associates Holdings, L.P.		New York

42. Ark Bryant Park Southwest LLC	Southwest Porch	Delaware

43. Ark 37 38 Events, LLC		Delaware

44. Ark Shuckers LLC		Delaware

45. Ark Shuckers Real Estate LLC		Delaware

46. Ark Island Beach Resort LLC		Delaware

-41-

SCHEDULE 6.5

LITIGATION

-42-

SCHEDULE 6.16

EMPLOYMENT MATTERS

-43-

SCHEDULE 7.6

PERMITTED DEBT

-44-

Exhibit 10.6

TERM PROMISSORY NOTE

$5,000,000.00

Date: October 21, 2015

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 Five Million and no/100 Dollars ($5,000,000.00), which shall be due and payable at the times and in the manner set forth in the Credit Agreement referred to below; provided that any and all principal hereof then remaining unpaid shall be due and payable on October 21, 2020; 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”) evidences the Advance made by Bank under, has been issued by Borrower in accordance with the terms of, and is the Note referred to in, that certain Credit Agreement (Term Facility), of even date herewith, between Borrower and Bank as amended, modified, supplemented or restated and in effect from time to time (the “Credit Agreement”). 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.

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; provided, that the foregoing shall not constitute a waiver of the right of Borrower to receive any notice from Bank to Borrower expressly required by the provisions of the Credit Management or any other Credit Document.

Payment of this Note is secured by, inter alia, a mortgage, Assignment of Rents and Security Agreement made by Ark Shuckers Real Estate in favor of Bank and encumbering 6 condominium parcels in St. Lucie County, Florida, as amended, restated or supplemented from time to time (the “Mortgage”).

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: /s/:	Robert Stewart
	Name:	Robert Stewart
	Title:	President

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.

“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.

“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 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.

“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.

“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).

“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.

“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.

“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.

“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.

-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.

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

-5-

“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.

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

“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.

“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).

“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).

“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.

“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.

“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.

“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-

“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.

(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.

(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.”

§1.4 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.

§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.

(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.

(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).

-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.

§6.11 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.

-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.

(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.

§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-

§7.3 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”):

(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.

§7.6 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

-29-

§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.

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

§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).

§8.3 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:

(d) Additional Materials.

-31-

(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.

-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.

(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:

-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.

(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

(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

-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.

§11.	MISCELLANEOUS.

-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.

-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.

§11.11 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.

-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.

-39-

§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__

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

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.

-47-

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

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

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-

Exhibit 10.8

REVOLVING PROMISSORY NOTE

$10,000,000.00

Date: October 21, 2015

a. The principal amount of Ten Million and no/100 Dollars ($10,000,000.00) (or, if less, the aggregate unpaid principal amount of Advances made pursuant to the Credit Agreement referred to below), which shall be due and payable at the times and in the manner set forth in §§3.2(a), 3.2(b) and 3.6 of the Credit Agreement referred to below; 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 and not reborrowed, at the times, at the rates and in the manner provided in the Credit Agreement referred to below.

This Revolving Promissory Note (“this Note”) evidences Advances made by Bank under, has been issued by Borrower in accordance with the terms of, and is the Revolving Note referred to in, that certain Credit Agreement (Revolving Facility), of even date herewith, between Borrower and Bank as amended, modified, supplemented or restated and in effect from time to time (the “Credit Agreement”). 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. Subject to the limitations set forth in the Credit Agreement, Borrower may borrow, repay and reborrow 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.

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; provided, that the foregoing shall not constitute a waiver of the right of Borrower to receive any notice from Bank to Borrower expressly required by the provisions of the Credit Agreement or any other Credit Document.

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: /s/: Robert Stewart
	Name:	Robert Stewart
	Title:	President

Ark Restaurants (NASDAQ:ARKR)
Historical Stock Chart
From Mar 2024 to Apr 2024

Click Here for more Ark Restaurants Charts.

Ark Restaurants (NASDAQ:ARKR)
Historical Stock Chart
From Apr 2023 to Apr 2024

Market Data

News

Trading Tools

Markets

Discover

Hot Features

Follow Feed

Options Flow

Monitor

ARKR Ark Restaurants Corporation

Latest ARKR Messages

Loading Messages....

Ark Restaurants Corp News

Loading Messages....

Your Recent History

Company

Business

Popular

Get The App

Trending Now

Toplists

Market Data

News

Trading Tools

Markets

Discover

Hot Features

Follow Feed

Options Flow

Monitor

ARKR Ark Restaurants Corporation

Latest ARKR Messages

Loading Messages....

Ark Restaurants Corp News

Loading Messages....

Your Recent History

Company

Business

Popular

Get The App