CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. AMENDED AND RESTATED TRANSITION AND ASSET PURCHASE AGREEMENT BETWEEN: MGE NIAGARA...

ARTICLE 1 INTERPRETATION

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

1.10

ARTICLE 2 TRANSITION

2.1

2.2

2.3

2.4

2.5

2.6

2.7

2.8

2.9

2.10

2.11

2.12

2.13

2.14

2.15

2.16

2.17

2.18

2.19

2.20

2.21

2.22

2.23

2.24

2.25

2.26

2.27

2.28

ARTICLE 3 PURCHASE AND SALE

ARTICLE 4 PURCHASE PRICE

ARTICLE 5 CLOSING LETTERS OF CREDIT

ARTICLE 6 LIQUOR LICENCES

ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF THE SELLER

ARTICLE 8 REPRESENTATIONS AND WARRANTIES OF SERVICE PROVIDER

ARTICLE 9 BACKGROUND INFORMATION

ARTICLE 10 COVENANTS

ARTICLE 11 COMPETITION ACT

ARTICLE 12 DAMAGE OR DESTRUCTION

ARTICLE 13 EMPLOYMENT, PENSION AND BENEFIT MATTERS

ARTICLE 14 INDEMNIFICATION

ARTICLE 15 CONDITIONS OF CLOSING

ARTICLE 16 TERM AND TERMINATION

ARTICLE 17 CONFIDENTIALITY

ARTICLE 18 GENERAL

OLG has the statutory authority to conduct and manage lottery schemes on behalf of and as an agent of the Crown.

OLG has the authority to enter into agreements with third parties regarding lottery schemes conducted and managed by OLG on behalf of and as an agent of the Crown.

OLG is party to the Existing Operating Agreement, which agreement will terminate immediately prior to the Closing.

As part of the Crown’s initiative to modernize land-based gaming in Ontario, in connection with the termination of the Existing Operating Agreement, OLG has been mandated to, among other things, engage a third-party service provider to provide certain operational services relating to the Subject Gaming Bundle, subject to OLG’s continuing obligation to conduct and manage lottery schemes carried out in the Subject Gaming Bundle.

MG&E Niagara Entertainment ULC (“MG&E ULC), a company incorporated pursuant to the Business Corporations Act (British Columbia) (the “BCBCA”) and the predecessor to the Service Provider, entered into a transition and asset purchase agreement with OLG and

MG&E ULC converted from an unlimited liability company to a limited company under the BCBCA and concurrently changed its name to “MGE Niagara Entertainment Inc.”, following which it was continued out of the jurisdiction of the BCBCA and into the jurisdiction of the Business Corporations Act (Ontario) by a certificate and accompanying articles of continuance that became effective on April 29, 2019 (the “Conversion and Continuance”).

OLG consented to the Conversion and Continuance pursuant to an acknowledgement and consent agreement made as of April 26, 2019 among MG&E ULC, Mohegan Tribal Gaming Authority, Mohegan Gaming Advisors, LLC, MG&E Niagara Entertainment Holdings ULC, OLG and OGAC.

As a result of the Conversion and Continuance, all references in this Agreement to the “Service Provider” refer to MGE Niagara Entertainment Inc., as successor to MG&E Niagara Entertainment ULC.

The Parties desire, in accordance with Section 18.7 of the Original Agreement, to amend and restate the Original Agreement in accordance with the terms hereof.

OLG and the Service Provider have agreed to perform, or cause to be performed, the Transition Activities on the terms and subject to the conditions of this Agreement in order to transition operational responsibility for the Subject Gaming Sites from the Existing Operator to the Service Provider in an orderly and efficient manner.

OLG and its wholly-owned subsidiary, OGAC and, to the Seller’s knowledge, the Existing Operator and the Existing General Partner, own the Purchased Assets.

OLG and OGAC have agreed to sell, convey, assign and transfer to the Service Provider, and to cause the Existing Operator and the Existing General Partner to sell, convey, assign and transfer to the Service Provider, and the Service Provider has agreed to purchase, acquire and accept from OLG, OGAC, the Existing Operator and the Existing General Partner, as applicable, the Purchased Assets, and assume the Assumed Liabilities, on the terms and subject to the conditions of this Agreement.

Definitions

any domestic or foreign statute, law, treaty, code, ordinance, rule, regulation, restriction or by-law (zoning or otherwise), including the Criminal Code and the Gaming Control Legislation;

any judgment, order, writ, injunction, decision, ruling, decree or award, guideline, policy, standard (including any standard of the AGCO), directive or bulletin, in each case, of any Governmental Authority; and

any franchise, licence, qualification, authorization, consent, exemption, waiver, right, permit or other approval, in each case, of any Governmental Authority,

the property disclosure assessment reports and other reports and reviews made available to the Service Provider in the folder entitled “RFP 1617-009 - Niagara\Background Information\4.0 Facility Reports\4.01 Property Disclosure Assessments\4.01.01 EXP Property Disclosure Assessments” in the Data Room as of the Data Room Cutoff Date; and

the property disclosure assessment reports and other reports and reviews made available to the Service Provider in the folder entitled “RFP 1617-009 - Niagara\Background Information\4.0 Facility Reports\4.01 Property Disclosure Assessments\4.01.02 Other Property Disclosure Assessments” in the Data Room as of the Data Room Cutoff Date.

the environmental reports and audit assessments and reports made available to the Service Provider in the folder entitled “RFP 1617-009 - Niagara\Background Information\4.0 Facility Reports\4.05 Environmental Reports\4.05.01 EXP Environmental Reports” in the Data Room as of the Data Room Cutoff Date; and

the environmental reports and audit assessments and reports made available to the Service Provider in the folder entitled “RFP 1617-009 - Niagara\Background Information\4.0 Facility Reports\4.03 Industrial Hygiene” and “RFP 1617-009 - Niagara\Background Information\4.0 Facility Reports\4.05 Environmental Reports\4.05.02 Other Environmental Reports” in the Data Room as of the Data Room Cutoff Date.

the CN Leased Real Property;

the NFEC Leased Real Property; and

the Dorchester Leased Real Property.

the default of OLG (including the failure of OLG to perform or cause to be performed the OLG Transition Activities in a timely manner) other than where the default is attributable to the failure of the Service Provider to perform its obligations contemplated in Article 2 of this Agreement in a timely manner; or

a Force Majeure Event; or

OLG’s exercise of its rights under Section 2.22 (other than where the exercise of such rights is attributable to the failure of the Service Provider to perform its obligations contemplated in Article 2 of this Agreement in a timely manner) that is not attributable to the reasons contemplated by paragraphs (a) or (b) above.

approval under Section 28 of the Financial Administration Act (Ontario) in respect of this Agreement, the Casino Operating and Services Agreement and the OLG Policies, to the extent that such agreements and policies contain any financial arrangement, financial commitment, guarantee, indemnity or similar transaction that would increase, directly or indirectly, the indebtedness or contingent liabilities of the Province of Ontario; and

approval of Chair of Management Board and the Minister of Finance under Section 4(2) of the Ontario Lottery and Gaming Corporation Act, 1999.

the Fallsview Owned Real Property; and

the Montrose Owned Real Property.

Encumbrances for Taxes, assessments, charges of a Governmental Authority or levies incurred by the Seller, the Existing Operator, the Existing General Partner or the Employee Holdco in the Ordinary Course that are not yet due and payable or delinquent;

subject to Sections 7.1(e)(x) and 7.1(e)(xi), mechanics’, construction, workmen’s, repairmen’s, warehousemen’s, processor’s, landlord’s, carrier’s, maritime, materialmen’s or other like liens, including all statutory Encumbrances, liens for electricity, power, gas, water and other services and utilities, arising or incurred in the Ordinary Course, for obligations which are not delinquent, or which are being contested in good faith and diligently by appropriate proceedings (it being acknowledged that such obligations shall be Excluded Liabilities for the purposes of this Agreement and subject to the indemnifications provided for in Section 14.1(a)) or which have not yet been filed or registered in accordance with Applicable Law or in respect of which written notice has not been given in accordance with Applicable Law;

rights reserved to or vested in any municipality or Governmental Authority by any statutory provision;

any subsisting reservations, limitations, restrictions, qualifications, provisions and conditions contained in any original grants from the Crown of any land or interests therein and reservations of undersurface rights to mines and minerals of any kind;

any minor imperfection or defect of title which do not and would not, individually or in the aggregate, reasonably be expected to impair in any material respect the use, development potential, operation, value or marketability of a Subject Gaming Site for the purposes for which it is presently held;

encroachments by any one or more of the Improvements or the Buildings on, at or in the Subject Gaming Sites over abutting lands and/or encroachments by improvements on, at or in any abutting lands over any one or more of the Subject Gaming Sites;

zoning, use and building by-laws and ordinances, and by-laws and regulations of any Governmental Authority as to the use of the Subject Gaming Sites or any part thereof;

any Encumbrances relating to the Assumed Liabilities;

the Encumbrances referred to in Schedule 4 to this Agreement, subject to the qualifications described in paragraphs (l) and (m) below;

permits, reservations, watercourses, rights of water, rights of access or user, easements, rights of way, restrictions, building schemes, licences, restrictive covenants and servitudes, airport zoning regulations and other similar rights in land (including, without limitation, licences, easements, rights of way, servitudes and rights in the nature of easements for walkways, sidewalks, public ways, sewers, drains, gas, soil, steam and water mains or pipelines, electrical lights and power, telephone, television and cable conduits, poles, wires or cables) granted to, reserved or taken by any Person which do not, individually or in the aggregate, materially impair the use, development potential, operation, value or marketability of a Subject Gaming Site for the purposes for which it is presently held and any rights reserved or vested in any Governmental Authority or public or private utility by the terms of any lease, licence, franchise, grant, agreement or permit, subdivision, development, servicing, encroachment, site plan or other similar agreement with any Governmental Authority or public or private utility;

the Real Property Leases and any notices of the Real Property Leases registered on title to the Subject Gaming Sites, including all easements, rights of way, restrictions, restrictive covenants, servitudes and other similar rights in land contained in such Real Property Leases, and any leasehold mortgages or security interests or other liens relating to tenants under such Real Property Leases or their interest in respect thereof and which do not encumber the interest of the Seller in and to a Subject Gaming Site;

any subdivision agreements, site plan control agreements, development agreements or other similar agreements with municipal or other Governmental Authorities or utilities affecting the development or the use of a Subject Gaming Site, including to the extent such agreements are referred to in Part A of Schedule 4 to this Agreement, provided, in each case, same have been complied with in all material respects as of Closing;

any facility, cost sharing, servicing, reciprocal or other similar agreements, which are necessary or of advantage to the use and/or operation of a Subject Gaming Site, including to the extent such agreements are referred to in Part A of Schedule 4 to this Agreement, provided (i) if any of such agreements are unregistered, copies of same have been made available to the Service Provider in the Data Room as of the Data Room Cutoff Date and (ii) such agreements have been complied with in all material respects as of Closing;

any Encumbrances for which OLG provides an indemnity to the Service Provider; and

any Encumbrance that is registered on title to a Subject Gaming Site in priority to the interest of the Seller in such Subject Gaming Site where such Encumbrance is either not identified in Schedule B to a Title Insurance Policy or where the title insurer issuing a Title Insurance Policy has otherwise agreed that such Encumbrance shall not constitute an exception to coverage under such Title Insurance Policy.

the CN Premises Lease;

the NFEC Lease; and

the Dorchester Premises Lease.

the reasonable out-of-pocket direct costs related solely to the performance by the Service Provider of the Service Provider Pre-Closing Transition Activities, including all legal and accounting costs;

the reasonable out-of-pocket direct costs related solely to the installation of any equipment and trade fixtures of the Service Provider in the NFEC Leased Real Property in accordance with Section 2.25;

any loss of profit suffered by the Service Provider or any of its contractors, subcontractors or suppliers of any tier as a result of the termination of this Agreement;

the reasonable out-of-pocket costs incurred by the Service Provider as a result of the termination of this Agreement, including notice, termination and severance payments for employees and breakage costs for leases and contracts (as specified in such leases and contracts), in each case, that are reasonably required to be incurred by the Service Provider as a result of the termination of this Agreement; and

an amount equal to [REDACTED],

agreements or arrangements entered into by the Service Provider or any of its contractors, subcontractors or suppliers of any tier to the extent that such agreements or arrangements were not entered into in connection with the Service Provider’s obligations in relation to the Service Provider Pre-Closing Transition Activities (including, for certainty, any agreements or arrangements for the acquisition, development, lease or licence of any real property in connection with a proposed relocation of any or all of the Subject Gaming Sites); or

agreements or arrangements entered into by the Service Provider or any of its contractors, subcontractors or suppliers of any tier other than in the Ordinary Course and on commercial arm’s length terms, save to the extent that such amounts would have arisen if such agreements or arrangements had been entered into in the Ordinary Course and on commercial arm’s length terms.

Other Terms

Rules of Construction

the division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement;

references in this Agreement to “Articles”, “Sections”, “Exhibits” and “Schedules” refer, respectively, to Articles of, Sections of, and Exhibits and Schedules to, this Agreement;

“hereunder”, “herein”, “hereto” and “hereof”, when used in this Agreement, refer to this Agreement and not to a particular Section or clause of this Agreement;

“including” means “including, but not limited to” and “include” or “includes” means “include, without limitation” or “includes, without limitation”;

words importing the singular number only will include the plural and vice versa and words importing the use of any gender will include all genders;

references to any document, instrument or agreement, including this Agreement, (i) will include all exhibits, schedules and other attachments thereto; (ii) will include all documents, instruments or agreements issued or executed in replacement thereof; and (iii) will mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, restated, amended and restated, modified or supplemented from time to time (to the extent permitted hereunder) and in effect at the given time;

references to any Person will include such Person’s successors and assigns (in the case of the Service Provider, to the extent permitted hereunder);

any time period within which a payment is to be made or any other action is to be taken hereunder (including the calculation of any interest payable under this Agreement for any period of time) will be calculated excluding the day on which the period commences and including the day on which the period ends;

whenever any payment is required to be made, action is required to be taken or period of time is to expire on a day other than a Business Day, such payment will be made, action will be taken or period will expire on the next following Business Day;

“month” means “calendar month”;

all sums of money that are referred to in this Agreement are expressed in lawful money of Canada;

references to “discretion” or “sole discretion” mean the absolute, sole, unqualified, subjective discretion of the Party having or exercising such discretion, and all references to “judgement” or “satisfaction” mean the absolute, sole, unqualified, subjective judgement or satisfaction of the Party having, exercising, or entitled to such judgement or satisfaction; and

the interpretation of this Agreement will not permit a revenue, Loss, recovery, receipt, payment, reserve or reimbursement to be duplicated.

Statutes

Accounting Principles

Priority of Documents

first, following Closing, the terms and conditions of the Casino Operating and Services Agreement;

next, following Closing, the terms and conditions of the Fallsview Lease;

next, the terms and conditions of this Agreement;

next, the terms and conditions of the Assignment and Assumption Documents;

next, the OLG Policies; and

finally, the Mandatory Service Provider Operating Procedures.

No Interference with Statutory Powers and Duties and Limitations on Power and Authority

Nothing in this Agreement, including any requirement for OLG to act reasonably, or to use commercially reasonable efforts, will be interpreted as requiring OLG to act in any manner contrary to, or that interferes with, the exercise by OLG of any legislative or statutory power or duty, including any statutes and regulations of OLG, whether existing prior to, on or after the Original Execution Date.

The Service Provider acknowledges and agrees that, as between OLG and the Service Provider, OLG has the sole authority to conduct and manage lottery schemes in the Province of Ontario, including in the Subject Gaming Bundle, in accordance with paragraph 207(1)(a) of the Criminal Code and in accordance with the Gaming Control Legislation. The respective rights and obligations of the Parties hereunder will be interpreted in light of and subject to, and so as to not restrict or abrogate, OLG’s authority to conduct and manage lottery schemes in the Province of Ontario.

In addition to the other limitations on the powers and authority of the Service Provider specified in this Agreement, in performing the Service Provider Transition Activities and its other obligations, covenants and agreements hereunder, the Service Provider will have no authority to take, and will not take, any action that is in any manner inconsistent with this Agreement or Applicable Law and without limiting the generality of the foregoing:

the Service Provider will at all times take into account the requirements of paragraph 207(1)(a) of the Criminal Code;

except:

as expressly permitted in writing by OLG;

as expressly provided herein; or

following Closing, as expressly provided in the Casino Operating and Services Agreement, the Service Provider will not enter into any agreement with any third party as agent of OLG, OGAC or of the Crown, or otherwise hold itself out as an agent acting on behalf of OLG, OGAC or of the Crown, as principal;

any provision of this Agreement that confers any right, power, authority, entitlement or obligation on the Service Provider will be deemed to reserve for OLG any aspect of the discharge of that right, power, authority, entitlement or obligation that constitutes in any respect OLG’s authority to conduct and manage lottery schemes in accordance with the Criminal Code, it being the mutual intention of the Parties that the rights, powers, authority, entitlements and obligations of the Service Provider under this Agreement will in no way restrict or abrogate OLG’s authority to conduct and manage lottery schemes in the Province of Ontario or result in the Service Provider conducting and managing, or being found to conduct and manage, in whole or in part, alone or together with OLG, any aspect of any lottery scheme in the Province of Ontario; and

the Service Provider will not, without obtaining the prior written consent of OLG, which consent may be withheld or conditioned in the sole discretion of OLG, take any action that might have an adverse effect on the conduct and management by OLG of lottery schemes in the Province of Ontario.

Exclusion of Crown Liability

the Service Provider covenants and agrees that, notwithstanding that OLG is an agent of the Crown or that any successor or permitted assignee of OLG that becomes party to or otherwise assumes OLG’s obligations under this Agreement may be an agent of the Crown, neither the Service Provider nor any other Service Provider Indemnified Person will make any Claim or seek to enforce any remedy, recourse or right against any Provincial Entity other than OLG or OGAC or their successors or permitted assignees; and

the Service Provider, for itself and for and on behalf of the other Service Provider Indemnified Persons, hereby waives and releases all Claims, remedies, recourse and rights that the Service Provider or any other Service Provider Indemnified Person ever had, now has or may hereafter have against any Provincial Entity other than the Seller or any successor or permitted assignee of the Seller that becomes party to or otherwise assumes the Seller’s obligations under this Agreement,

Schedules

Amendment and Restatement

Intention of the Parties

It is the intention of the Parties that operational responsibility for the Subject Gaming Sites will be transitioned from the Existing Operator to the Service Provider in an orderly and efficient manner by Closing. The Parties have jointly determined the Day 1 Critical Transition Activities required to be completed in order to achieve the transition of operational responsibility for the Subject Gaming Sites by Closing. The provisions of this Article 2 are intended to create a framework for an interactive and cooperative approach to the achievement of the Day 1 Critical Transition Activities by Closing and the timely completion of all other Transition Activities.

Notwithstanding Section 2.1(a) or anything to the contrary contained in this Agreement, the Parties agree that: (i) in no event shall any of the Pre-Closing Transition Activities identified in Part 1 of Schedule 6 under the heading “Gaming Operations - Fallsview Owned Real Property” be deemed to be Day 1 Critical Transition Activities; and (ii) the failure to complete any such Pre-Closing Transition Activities on or prior to the date identified in Part 1 of Schedule 6 under the column titled “Time Required to Complete” shall not delay or extend Closing, the Closing Date or the Outside Date.

Pre-Closing Transition Activities

the Service Provider shall perform the Service Provider Pre-Closing Transition Activities;

OLG shall perform or cause to be performed, whether by the Existing Operator or otherwise, the OLG Pre-Closing Transition Activities and for the purposes of this Article 2, references to OLG performing the OLG Pre-Closing Transition Activities, including, all covenants, liabilities and obligations relating thereto, shall be deemed to include those OLG Pre-Closing Transition Activities that are performed by the Existing Operator or otherwise on behalf of OLG,

Post-Closing Transition Activities

the Service Provider shall perform the Service Provider Post-Closing Transition Activities; and

OLG shall perform or cause to be performed the OLG Post-Closing Transition Activities and for the purposes of this Article 2, references to OLG performing the OLG Post-Closing Transition Activities, including all covenants, liabilities and obligations relating thereto, shall be deemed to include those OLG Post-Closing Transition Activities that are performed on behalf of OLG,

Central GMS and Existing Operator Customer Loyalty Program

The Service Provider is required to:

use the Central GMS, including utilizing the Existing Operator Customer Loyalty Program as the only Customer Loyalty Program for each Subject Gaming Site, until (in all cases) the date that GMS Interface has been achieved for the applicable Subject Gaming Site;

observe and comply with OLG’s internal control manuals, protocols and practices, copies of which have been made available to the Service Provider in the folders entitled “RFP 1617-009 - Niagara\Background Information\5.0 Operations\5.06 Operations Manuals”, “RFP 1617-009 - Niagara\Background Information\9.0 Information Technology\9.04 Niagara Bundle Specific Documents” and “RFP 1617-009 - Niagara\Background Information\8.0 Legal & Procurement\8.01.04 AGCO Registrar’s Standards for Gaming” in the Data Room as of the Data Room Cutoff Date, as same apply to the Central GMS for each Subject Gaming Site until the date that GMS Interface has been achieved for the applicable Subject Gaming Site; and

fully implement and achieve GMS Interface for each of the Subject Gaming Sites within the Subject Gaming Bundle in accordance with the OLG Policies no later than the Site GMS Roll Out Completion Date. For greater certainty, the Service Provider is not permitted to utilize or operate any portion of the Site GMS for a Subject Gaming Site until the date that the Service Provider has achieved GMS Interface for such Subject Gaming Site.

The liabilities associated with the Existing Operator Customer Loyalty Program shall be adjusted for on Closing in accordance with Section 4.3(f)(xi).

Pre-Closing Transition Objectives

to maintain the Subject Gaming Sites to the Closing Date as fully operational Gaming Sites while positioning the Subject Gaming Sites for operation by the Service Provider as at the Closing Date in accordance with this Agreement, the Casino Operating and Services Agreement and the OLG Policies;

to minimize the risk of business disruption during, and at the conclusion of, the Pre-Closing Transition Period;

subject to OLG’s continuing obligation to conduct and manage the Subject Gaming Sites, to effect a seamless transition of the Subject Gaming Sites and to transition the Subject Gaming Sites from the Existing Operator operational responsibility to the Service Provider operational responsibility effective as of the Closing Date; and

to prepare for the commencement of operations at the NFEC on or following the Closing Date.

Performance of Transition Activities

Standard of Care

Transition Expenses

Compliance with Applicable Law

Access to Subject Gaming Sites Prior to Closing

Insurance and Workplace Safety Prior to Closing

Prior to the Service Provider Personnel entering onto any Subject Gaming Site, the Service Provider shall deliver to OLG a certificate of insurance evidencing insurance coverage in compliance with the terms hereof. The Service Provider shall maintain and keep in effect or cause to be maintained and kept in effect, in each case, at the Service Provider’s sole expense, at all times during the Pre-Closing Transition Period:

a commercial general liability and property damage insurance policy having a combined liability limit of at least $25,000,000.00 per occurrence, which policy shall name the Seller, the Existing Operator, the Existing General Partner and the landlords under the applicable Real Property Leases as additional insureds and shall include cross liability and severability of interest clauses and employers liability coverage; and

motor vehicle liability insurance in the amount of $5,000,000.00 per accident, for vehicles used by the Service Provider or Service Provider Personnel while on or at a Subject Gaming Site.

As a condition of allowing access to a Subject Gaming Site, OLG may, in its sole discretion, require the Service Provider to provide or cause to be provided evidence acceptable to OLG that the employer of the Service Provider Personnel who are accessing the Subject Gaming Sites is registered with the Workplace Safety Insurance Board of Ontario, if such registration is required under Applicable Law, or, if such registration is not required under Applicable Law, to provide, or cause to be provided, evidence acceptable to OLG that the applicable employer of the Service Provider Personnel has worker’s compensation, disability or similar insurance in amounts and on terms and conditions acceptable to OLG, acting reasonably.

All insurers shall be reputable and financially creditworthy insurers with a financial strength rating by A.M. Best Company, Inc. of “A-” or higher and all insurance coverages set out in this Section 2.11 must be underwritten by insurers licensed to carry on insurance business in Canada.

Scope of Services Prior to Closing

Subject to Sections 2.12(b) and 2.12(c), during the Pre-Closing Transition Period, the Service Provider is not authorized under this Agreement to undertake any services or other activities at or in relation to the Subject Gaming Sites other than the Service Provider Pre-Closing Transition Activities.

OLG shall have the right, from time to time and at any time prior to Closing, by notice to the Service Provider, to request that the Service Provider perform additional duties, functions or services on such terms and conditions as may be approved by the Service Provider and OLG (including reasonable compensation therefor), each acting reasonably and having regard to the nature and purpose of the Transition Activities, in which event, such additional duties, functions or services, as the case may be, shall constitute and form part of the Service Provider Pre-Closing Transition Activities for any and all purposes of this Agreement.

The Service Provider shall have the right, from time to time and at any time prior to Closing, by notice to OLG, to request that the Service Provider perform additional duties, functions or services on such terms and conditions as may be approved by the Service Provider and OLG (including reasonable compensation therefor), each acting reasonably and having regard to the nature and purpose of the Transition Activities, in which event, such additional duties, functions or services, as the case may be, shall constitute and form part of the Service Provider Pre-Closing Transition Activities for any and all purposes of this Agreement.

Access to Historical Gaming Data, OLG Records, OLG Personal Information and Forward-Looking Historical Non-Gaming Information and Historical Non-Gaming Information Prior to Closing

Subject to Section 2.13(c) and Section 2.13(e) and following a date determined by the Transition Working Committee, and thereafter, during the Pre-Closing Transition Period (except for the Forward-Looking Historical Non-Gaming Information which may be used after the Closing for the purposes of compliance with Section 3.3(f) hereof and except for the Historical Non-Gaming Information in respect of which the Service Provider shall become the custodian from and after Closing and which may be used by the Service Provider only to the extent necessary in order to access and use the Forward-Looking Historical Non-Gaming Information and the Historical Gaming Data as permitted or required by this Agreement or the Casino Operating and Services Agreement), the Service Provider (and those Persons to whom the Service Provider is permitted to provide Casino Data and other Confidential Information pursuant to the Casino Operating and Services Agreement) shall be granted non-exclusive access to and/or be given copies of the following to the extent in the possession or control of the Seller:

the Background Information, including the Historical Gaming Data;

Equipment maintenance logs, Equipment and property systems operating manuals, guides, warranties and guarantees relating to the Subject Gaming Sites;

the Forward-Looking Historical Non-Gaming Information; and

the Historical Non-Gaming Information,

Without limiting Section 17.2, the Service Provider agrees that it shall not use or permit to be used any of the information or documents which it is given access to or copies of pursuant to Section 2.13(a) for any purpose other than in connection with the preparation for the performance of the Services under the Casino Operating and Services Agreement (in respect of (i) and (ii) in Section 2.13(a)), to comply with Section 3.3(f) of this Agreement (in respect of (iii) in Section 2.13(a)) and as necessary to access and use Forward-Looking Historical Non-Gaming Information and Historical Gaming Data as permitted by this Agreement and the Casino Operating and Services Agreement (in respect of (iv) in Section 2.13(a)). For greater certainty, (A) all such

Prior to the Service Provider being granted access to Historical Gaming Data, OLG Records, OLG Personal Information, the Forward-Looking Historical Non-Gaming Information and/or the Historical Non-Gaming Information, the Service Provider shall deliver to OLG:

An insurance policy evidencing that the Service Provider has obtained privacy liability and network security insurance (cyber insurance), on a claims made basis, covering the type and risk characteristics of each Subject Gaming Site in an amount of at least $15,000,000 per claim and otherwise meeting the requirements of the Casino Operating and Services Agreement. Such insurance policy shall be:

primary and non-contributing for all claims arising from an act or omission of the Service Provider Personnel or those for whom the Service Provider is responsible in law;

provide that it may not be cancelled without at least 30 days prior written notice to OLG; and

issued by reputable and financially creditworthy insurers with a financial strength rating by A.M. Best Company, Inc. of “A-” or higher and underwritten by insurers licensed to carry on insurance business in Canada.

Evidence satisfactory to OLG, acting reasonably, that the Service Provider is complying with Section 17.6(a)(v) hereof.

The Service Provider shall, at its sole expense, maintain and keep the insurance coverages required by Section 2.13(c)(i) in effect at all times after the Service Provider has been granted access to any Historical Gaming Data, OLG Records, OLG Personal Information, the Forward-Looking Historical Non-Gaming Information and/or the Historical Non-Gaming Information.

For greater certainty, OLG shall own and retain ownership of the Historical Gaming Data, the Forward-Looking Historical Non-Gaming Information and the Historical Non-Gaming Information.

Transition Representatives

Transition Working Committee

During the Transition Period, OLG and the Service Provider will establish and maintain a committee (the “Transition Working Committee”) comprised of the Transition Representatives and one or more management representatives of OLG and of the Service Provider, in each case, having skills, expertise and familiarity in respect of the various Transition Activities to (i) facilitate and coordinate among the members of the Transition Working Committee and the Transition Representatives; (ii) work to achieve the Pre-Closing Transition Objectives; (iii) monitor and oversee the detailed implementation methodology of the Transition Plan, including in connection with appropriate changes approved by the Transition Representatives pursuant to Section 2.15(f) but specifically excluding the Transition Activities relating to the Central GMS and Site GMS, which shall be dealt with by the Operations Committee under the Casino Operating and Services Agreement; (iv) work to achieve an effective communication strategy for Employees; and (v) develop an approach to maximize the retention of non-union Employees by the Employee Holdco and, if required, develop strategies to address higher than expected employee attrition rates at the Employee Holdco, provided that such strategies will not require the Service Provider, the Seller, the Existing Operator or the Employee Holdco to incur any additional material obligations or Liabilities not otherwise provided for under this Agreement. Each of OLG and the Service Provider may from time to time replace any of its members on the Transition Working Committee, provided that any replacement possesses the appropriate skills, expertise and familiarity with the applicable Transition Activities. The Transition Working Committee may from time to time establish sub-committees of the Transition Working Committee, having substantially the same procedures and

The Transition Working Committee will review and discuss the performance, timing and sequencing of the Transition Activities, having regard to the intention of the Parties set out in Section 2.1. The agenda for each meeting of the Transition Working Committee will include a status report from the Transition Representatives. Each member of the Transition Working Committee will report on or raise any issues within his or her area of expertise that may be discussed by the Transition Working Committee.

The Transition Working Committee will work cooperatively to establish project management tools and techniques for reporting on the status of the implementation of the Transition Plan.

The Transition Working Committee will meet at least once every week during the Pre-Closing Transition Period, or with such other frequency as may be otherwise agreed between the Parties and thereafter, will meet with such frequency as the Transition Working Committee shall determine; provided, however, that either OLG or the Service Provider will have the right, acting reasonably, to require more frequent meetings of the Transition Working Committee during the Pre-Closing Transition Period. The OLG Transition Representative will act as chair of all meetings of the Transition Working Committee (or, failing him or her, the most senior representative of OLG in attendance at such meeting) and such chair will be responsible for (i) scheduling meetings of such committee in consultation with the Service Provider Transition Representative; (ii) setting the agenda for each meeting in consultation with the Service Provider; and (iii) directing the meetings.

Meetings of the Transition Working Committee will take place in person, by teleconference or by similar means of communication and OLG and the Service Provider will make available their respective representatives, and any other subject-matter experts reasonably requested by the other Party, to attend or participate in the meetings scheduled in accordance with this Section 2.15. Each of OLG and the Service Provider will use commercially reasonable efforts to ensure that all of its members of the Transition Working Committee participate in every meeting scheduled in accordance with this Section 2.15 or, if a member is not able to participate, will use commercially reasonable efforts to provide an appropriate replacement. The Transition Working Committee will maintain written minutes of each meeting of the Transition Working Committee, which minutes will include a record of all action items discussed in such meeting relating to the performance, timing or sequencing of the Transition Activities, including the progress of all actions taken or to be taken following each meeting. OLG and the Service Provider will use commercially reasonable efforts to address and resolve all action items raised and recorded in the minutes in a timely fashion.

Subject to Section 2.15(g), any unanimous decision of the Transition Representatives shall be final and binding on the Parties. If the Transition Representatives are unable to reach a unanimous decision, either Party may refer the matter for resolution in accordance with Section 18.1.

The following decisions or approvals of the Transition Working Committee shall be recorded by the giving of notice by the OLG Transition Representative of such decision or approval to each of the Parties in the manner required by Section 18.2:

the date after which the Service Provider is permitted access to the Subject Gaming Sites (Section 2.10);

the date after which the Service Provider is permitted access to the Historical Gaming Data (Section 2.13(a));

approval of the Post-Closing OLG Policies Transition Plan (Section 2.19(b)); and

any extension of the time period for completion of the Day 1 Critical Transition Activities (Section 2.21(a), 2.22(b)(i)).

Notwithstanding anything to the contrary contained in this Agreement, the Transition Representatives and the Transition Working Committee shall not have authority to make decisions with respect to or approve:

any amendment to or waiver of any provision of this Agreement (which, for certainty, would be governed by Section 18.7);

any change that may reasonably be expected to affect the achievement of the Day 1 Critical Transition Activities by Closing (which, for certainty, would be governed by Section 18.7);

any matter with respect to which OLG or the Service Provider has a right of consent or approval or in respect of which OLG may exercise discretion pursuant to this Article 2;

any matter not directly related to the Transition Activities; or

any matter relating to the Central GMS and Site GMS, which shall be dealt with by the Operations Committee under the Casino Operating and Services Agreement.

Transition Reports

The Service Provider shall provide transition related reports in accordance with the schedule and frequency determined by the Transition Working Committee. In addition, the Service Provider shall provide such additional reports as OLG or its Transition Representative may reasonably request regarding the performance of the Service Provider Transition Activities and the then current status with respect to the timetable, in each case, as set forth in the Transition Plan. In any event, the Service Provider shall provide regular disclosure to OLG and the Transition Working Committee regarding the feasibility and achievement of the timetable set out in the Transition Plan.

Promptly upon the Service Provider or the Service Provider Transition Representative receiving any information indicating that the Service Provider or OLG will not be able to perform any of the Transition Activities or meet the timetable set out in the Transition Plan, the Service Provider shall notify OLG and its Transition Representative in writing of such delays and shall work with the OLG Transition Representative to identify and implement specific measures to address such delays and mitigate the risks associated therewith, and in the case of the Day 1 Critical Transition Activities, alternative work-around plans or other means of achieving the Day 1 Critical Transition Activities.

Promptly upon OLG or the OLG Transition Representative receiving any information indicating that OLG or the Service Provider will not be able to perform any of the Transition Activities or meet the timetable set out in the Transition Plan, OLG shall notify the Service Provider and its Transition Representative in writing of such delays and shall work with the Service Provider to identify and implement specific measures to address such delays and mitigate the risks associated therewith, and in the case of the Day 1 Critical Transition Activities, alternative work-around plans or other means of achieving the Day 1 Critical Transition Activities.

First Annual Business Plan

Mandatory Service Provider Operating Procedures

in compliance with this Agreement, the Casino Operating and Services Agreement, Applicable Law and the OLG Policies;

not inconsistent with the provisions of this Agreement, the Casino Operating and Services Agreement and the OLG Policies;

developed based on the SP Group’s industry knowledge and experience operating, or providing services to, other gaming facilities and entertainment, hospitality and other non-gaming services, facilities and amenities, as applicable, all with a view to promoting the reputation and goodwill of the Service Provider, OLG and the Casinos; and

subject to the prior written approval of OLG, which approval will not be unreasonably withheld.

Post-Closing OLG Policies Transition Plan

The Service Provider acknowledges and agrees that, subject to the provisions of this Section 2.19, the Service Provider is required to comply with the OLG Policies (including the development of the Standard Service Provider Operating Procedures in accordance with Section 7.02 of the Casino Operating and Services Agreement) effective from and after Closing pursuant to the Casino Operating and Services Agreement. If the Service Provider determines that, as at Closing, it will not be able to: (A) comply with all or certain of those OLG Policies that have not been identified by OLG as Day 1 Critical Transition Activities and that are not a requirement of Applicable Law (the “Post-Closing OLG Policies”), and/or (B) develop and deliver the Standard Service Provider Operating Procedures in accordance with Section 7.02 of the Casino Operating and Services Agreement, then the Service Provider may deliver a plan (the “Post-Closing OLG Policies Transition Plan”) to OLG pursuant to Section 2.19(b). The Post-Closing OLG Policies Transition Plan shall be a plan setting forth the high-level critical path milestones and timetable for bringing the Service Provider into compliance with each Post-Closing OLG Policy and/or delivering each Standard Service Provider Operating Procedure, as applicable, provided that (X) the Service Provider shall use commercially reasonable efforts to bring itself into compliance with the Post-Closing OLG Policies and deliver the applicable Standard Service Provider Operating Procedures as soon as possible after Closing; and (Y) the Service Provider must be in compliance with all Post-Closing OLG Policies and have delivered all Standard Service Provider Operating Procedures within 1 year of the Closing Date.

If the Service Provider desires to implement a Post-Closing OLG Policies Transition Plan, it shall deliver a draft of the plan required by Section 2.19(c) no later than 90 days prior to Closing to the Transition Working Committee for its review and approval. The Transition Working Committee shall advise the Service Provider not less than 30 days prior to Closing of any changes that the Transition Working Committee requires to the Post-Closing OLG Policies Transition Plan and the Post-Closing OLG Policies Transition Plan shall be deemed to be amended to incorporate such changes.

The Service Provider covenants and agrees to achieve compliance with each Post-Closing OLG Policy and/or deliver each Standard Service Provider Operating Procedure, as applicable, in accordance with the timetable set forth in the approved Post-Closing OLG Policies Transition Plan.

Within 30 days following the Closing Date, the Service Provider shall submit to OLG a detailed implementation schedule describing how the Service Provider will meet each critical path milestone and how it will achieve compliance with each Post-Closing OLG Policy and/or deliver each Standard Service Provider Operating Procedure, as applicable, within the timetable set forth in the approved Post-Closing OLG Policies Transition Plan.

Failure by Service Provider to Perform Service Provider Pre-Closing Transition Activities

to direct the Service Provider to accelerate the performance of the Service Provider Pre-Closing Transition Activities to bring the progress of such activities back on schedule in accordance with the Transition Plan, and the Service Provider will comply with any such direction; or

if the delay has not been cured within 10 Business Days following notice from OLG (or if such delay cannot reasonably be cured within such 10 Business Day period, the Service Provider has not taken or is not continuing to take all reasonable steps to cure the delay as soon as reasonably practicable thereafter following notice from OLG), without any obligation to do so, to cure or attempt to cure the delay, with all costs and expenses reasonably incurred by OLG in curing or attempting to cure the delay payable by the Service Provider to OLG on demand, and without limiting the foregoing, in order to fund the costs and expenses of curing or attempting to cure the delay, OLG may draw on any of the Closing Letters of Credit.

No Fault Delay

the time period for completion of such Day 1 Critical Transition Activities and, if necessary to accommodate such delay, the Closing Date, shall be automatically extended for the period of delay, as such period of delay and impact to the Closing Date is determined by the Transition Working Committee pursuant to Section 2.15(f); and

if the failure of the Service Provider to perform any Service Provider Pre-Closing Transition Activities is a result of the default of OLG (including the failure of OLG to perform the OLG Pre-Closing Transition Activities in a timely manner) other than where the default is attributable to the failure of the Service Provider to perform the Service Provider Pre-Closing Transition Activities in a timely manner, the Service Provider may require OLG to reimburse the Service Provider for any additional costs reasonably incurred by the Service Provider in respect of the Transition Activities as a result of such No Fault Delay, provided the Service Provider uses commercially reasonable efforts to minimize such costs.

Suspension of Transition Activities

Subject to Section 2.22(b)(ii), at any time and from time to time during the Pre-Closing Transition Period, OLG shall have the right to cease, suspend or delay all or any part of the Pre-Closing Transition Activities if (i) any part of the Pre-Closing Transition Activities contravenes Applicable Law, (ii) OLG reasonably determines that same poses a material risk or material hazard to OLG’s business interests or the operations of the Subject Gaming Sites, or (iii) the Service Provider fails to perform any Service Provider Pre-Closing Transition Activities for any reason other than a No Fault Delay.

If OLG suspends all or any part of the Day 1 Critical Transition Activities pursuant to Section 2.22(a):

the time period for completion of such Day 1 Critical Transition Activities and, if necessary to accommodate such delay, the Closing Date, shall be automatically extended for the period of delay, as such period of delay and impact to the Closing Date is determined by the Transition Working Committee pursuant to Section 2.15(f), provided that Closing shall not occur later than the Outside Date; and

the Service Provider may require OLG to reimburse the Service Provider for any additional costs reasonably incurred by the Service Provider as a result of such suspension, provided the Service Provider uses commercially reasonable efforts to minimize such costs. Notwithstanding the foregoing, if such cessation, suspension or delay was initiated by OLG as a result of delays, risks or hazards created by the Service Provider’s failure to perform any Service Provider Pre-Closing Transition Activities for any reason other than a No Fault Delay, including any contravention by the Service Provider of Applicable Law, then the Service Provider shall not be entitled to recover any such additional costs.

Failure to Perform Service Provider Post-Closing Transition Activities

Pre-Closing Claims and Existing Litigation

From and after the Closing, as part of the Service Provider Post-Closing Transition Activities, upon the reasonable request by OLG from time to time, the Service Provider will cooperate with OLG and the Existing Operator in connection with the

From and after the Closing, the Service Provider shall cause the Employee Holdco [REDACTED]

NFEC Tenant Installation Period and Fixturing Period

The Service Provider will be entitled to non-exclusive access to the NFEC Leased Real Property during each of the Tenant Installation Period and the Fixturing Period (i) for purposes of installing, at the Service Provider’s expense, any equipment and trade fixtures of the Service Provider, including any signage or branding, that are required by the Service Provider to carry on the Permitted Use in the NFEC Leased Real Property, and (ii) to undertake such other activities as may be permitted under the NFEC Lease during such periods, with any such installation or undertaking, as the case may be, subject to OLG’s prior written consent (which consent may be withheld in OLG’s sole discretion). The Service Provider shall not interfere with, or cause any delays in, the completion of construction of the building or any other improvements located on the NFEC Leased Real Property. All access by the Service Provider pursuant to this Section 2.25 shall be subject to all Applicable Law, the NFEC Lease and requirements of the NFEC Landlord, OLG, AGCO and other Governmental Authorities, including requirements for advance notice for access and restricted or escorted access to the NFEC Leased Real Property or designated areas of the NFEC Leased Real Property. The Transition Working Committee will be responsible for facilitating and coordinating the exercise by the Service Provider of its rights under this Section 2.25 during each of the Tenant Installation Period and the Fixturing Period.

During each of the Tenant Installation Period and the Fixturing Period, the Service Provider shall not be obligated to pay Rent (as such term is defined in the NFEC Lease), but the Service Provider shall be subject to all of the other terms and conditions of the NFEC Lease applicable to the NFEC Tenant in respect of any of the Tenant Installation Activities under and as defined in the NFEC Lease (regardless of whether such Tenant Installation Activities are carried out or performed by the Service Provider or another Person acting for or on behalf of the Service Provider, in each case whether on-site or off-site), including the obligation to maintain insurance. The Service Provider shall immediately and without delay fully repair and restore, at its sole cost and expense, in a good and workmanlike manner, any damage to the NFEC Leased Real Property caused by the Service Provider Personnel.

All costs and expenses incurred by the Service Provider pursuant to this Section 2.25, including all costs and expenses relating to the purchase and installation of any equipment and trade fixtures of the Service Provider, will be the sole responsibility of the Service Provider. In the event that the Service Provider fails to pay any of such costs and expenses, in whole or in part, and OLG becomes responsible therefor, then without limiting OLG’s other rights under this Agreement, OLG may draw on any of the Closing Letters of Credit in order to fund such costs and expenses.

Pre-Term Financial Statements

Subject to Section 2.26(b), as part of the Service Provider Post-Closing Transition Activities, the Service Provider shall cooperate with OLG in causing to be prepared audited financial statements in respect of the Complex (other than the NFEC) as at and for the period ended immediately prior to the Closing Date, such financial statements to consist of a statement of financial position, a statement of comprehensive income and expenses, a statement of cash flows and a statement of changes in equity, in each case, for the period then ended, and to be accompanied by a report thereon by the existing auditors for the Casino Complex, KPMG LLP, (the “Existing Auditors”) and a management letter prepared by the Existing Auditors outlining any internal control deficiencies and any performance improvement opportunities identified by the Existing Auditors, together with the notes and schedules thereto (collectively, the “Audited Pre-Term Financial Statements”). The Audited Pre-Term Financial Statements shall be prepared by Employees who were familiar with the operation of the Complex by the Existing Operator prior to the Closing and who have knowledge of relevant matters (“Knowledgeable Employees”), and in accordance with generally accepted accounting principles applied on a basis consistent with those used in the preparation of the audited financial statements for the Complex prior to the Closing. In furtherance of the foregoing, subject to Section 2.26(b), the Service Provider shall ensure that the Existing Auditors have such reasonable access to relevant information, documentation and records (to the extent in the possession or control of the Service Provider or the Employee Holdco following the Closing), systems, facilities and Knowledgeable Employees as the Existing Auditors may determine, in their professional judgement, to be appropriate, including for the purpose of the preparation and execution of necessary management representation letters by such Knowledgeable Employees. The Service Provider shall cause the Audited Pre-Term Financial Statements to be delivered to OLG within 45 Business Days following the Closing.

The Seller shall make available to the Service Provider and the Employee Holdco such information, documentation and records as may reasonably be required in connection with the preparation of the Audited Pre-Term Financial Statements.

The Service Provider acknowledges that OLG may provide the Existing Operator the opportunity to review the Audited Pre-Term Financial Statements, and the Service Provider shall, and shall cause the Employee Holdco (including the Knowledgeable Employees) to, cooperate with OLG in connection therewith. If the Existing Operator objects to any of the Audited Pre-Term Financial Statements within 10 days after delivery thereof to OLG by the Service Provider, then the Service Provider shall, and

The direct out-of-pocket costs and expenses reasonably incurred by the Service Provider and the Employee Holdco in connection with the performance of the Service Provider’s obligations under this Section 2.26 shall be the responsibility of OLG and OLG shall promptly reimburse the Service Provider and the Employee Holdco therefor following receipt of a written notice, together with reasonable substantiating documentation, identifying such costs and expenses.

OLG shall engage the Existing Auditors for purposes of the audit engagement contemplated by this Section 2.26, and OLG shall be responsible for and shall pay the costs and expenses of the Existing Auditors in connection therewith.

Employee Holdco Pre-Term Financial Statements

As part of the Service Provider Post-Closing Transition Activities, the Service Provider shall cause to be prepared audited financial statements in respect of the Employee Holdco as at and for the period ended immediately prior to the Closing Date, such financial statements to consist of a statement of financial position and a statement of cash flows, in each case, for the period then ended, and to be accompanied by a report thereon by the Existing Auditors and a management letter prepared by the Existing Auditors outlining any internal control deficiencies and any performance improvement opportunities identified by the Existing Auditors, together with the notes and schedules thereto (collectively, the “Audited EH Pre-Term Financial Statements”). The Audited EH Pre-Term Financial Statements shall be prepared by the Employee Holdco in accordance with generally accepted accounting principles applied on a basis consistent with those used in the preparation of the audited financial statements for the Employee Holdco prior to the Closing. The Service Provider shall cause the Audited EH Pre-Term Financial Statements to be delivered to OLG within 45 Business Days following the Closing.

The Service Provider acknowledges that OLG may provide the Existing Operator the opportunity to review the Audited EH Pre-Term Financial Statements. In connection therewith, the Service Provider shall provide written consent to the Existing Auditors, in the standard form required by the Existing Auditors to comply with their professional standards, including section 303 of the CPA Ontario Code of Professional Conduct, to enable the Existing Auditors to permit the Existing Operator and its authorized representatives to examine all working papers, schedules and other documentation used or prepared by the Existing Auditors in connection with the preparation of the Audited EH Pre-Term Financial Statements. If the Existing Operator objects to any of the

The Service Provider shall, or shall cause the Employee Holdco to, engage the Existing Auditors for purposes of the audit engagement contemplated by this Section 2.27, and the Service Provider shall be responsible for and shall pay the costs and expenses of the Existing Auditors in connection therewith.

Tax Returns

As part of the Service Provider Post-Closing Transition Activities, the Service Provider shall cause to be prepared all non-resident tax withholding returns and HST returns required to be filed with any Governmental Authority pursuant to the Tax Act, the Excise Tax Act (Canada) or other relevant federal or provincial legislation in respect of the operation of the Complex (other than the NFEC) for all taxable periods ending on or before the Closing Date and not filed prior to or on the Closing Date (each, a “Tax Return” and collectively, the “Tax Returns”). The Seller shall make available to the Service Provider such information, documents and records as may reasonably be required in connection with the preparation of the Tax Returns. In addition, the Seller shall ensure that the Service Provider and its designated personnel are properly authorized with the applicable Governmental Authorities to perform the obligations under this Section 2.28 on the Seller’s behalf, and the Seller shall provide evidence thereof to the Service Provider. Prior to filing any Tax Return with the relevant Governmental Authority, the Service Provider shall provide a substantially final draft of such Tax Return to the Seller no later than 10 Business Days prior to the date on which such Tax Return is required to be timely filed. Five Business Days thereafter, the Service Provider shall file such Tax Return with the relevant Governmental Authority as required by Applicable Law. The Service Provider shall provide evidence of such filing to the Seller.

The Parties acknowledge that the Seller shall be responsible for paying or remitting directly to the relevant Governmental Authority the aggregate amount of Taxes payable by the Seller pursuant to each Tax Return on or prior to the date such payment is required to be made pursuant to Applicable Law.

The direct out-of-pocket costs and expenses reasonably incurred by the Service Provider in connection with the performance of its obligations under this Section 2.28 shall be the responsibility of OLG and OLG shall promptly reimburse the Service Provider therefor following receipt of a written notice, together with reasonable substantiating documentation, identifying such costs and expenses.

Books and Records

As part of the Service Provider Post-Closing Transition Activities, upon reasonable advance written notice, the Service Provider shall, and the Service Provider shall cause the Employee Holdco to, cooperate with OLG to facilitate reasonable access by the Existing Operator to the books and records of the Employee Holdco and the books and records relating to the business, assets, liabilities and operations of the Complex (or copies thereof), in each case, (i) in respect of the period prior to Closing and (ii) to the extent such books and records are in the possession or control of the Employee Holdco or the Service Provider.

The direct out-of-pocket costs and expenses reasonably incurred by the Service Provider and the Employee Holdco in connection with the performance of their respective obligations under this Section 2.29 shall be the responsibility of OLG and OLG shall promptly reimburse the Service Provider therefor following receipt of a written notice, together with reasonable substantiating documentation, identifying such costs and expenses.

OLG Access to and Destruction of Historical Non-Gaming Information and Forward-Looking Historical Non-Gaming Information

OLG shall be responsible for the destruction and/or deletion of the Historical Non-Gaming Information and Forward-Looking Historical Non-Gaming Information in the custody of the Service Provider as may be required pursuant to the OLG Policies relating to records retention and/or applicable Privacy Law. At OLG’s request from time to time, the Service Provider shall cause the destruction and/or deletion of the Historical Non-Gaming Information and the Forward-Looking Historical Non-Gaming Information in the manner and to the extent instructed by OLG.

OLG shall be entitled at any time or times to access and use Historical Non-Gaming Information and Forward-Looking Historical Non-Gaming Information in the custody of the Service Provider and to cause any or all of such information to be destroyed and/or deleted or to take custody thereof and store same in or at an OLG premises or elsewhere, in OLG’s sole discretion.

The Service Provider shall act in accordance with OLG’s instructions and reasonably cooperate with OLG (including by making appropriate employees and personnel reasonably available) and provide reasonable access to OLG and its representatives to such information, systems and equipment as reasonably required by OLG in connection with the performance of its obligations or requests under Section 2.30(a) or its entitlements under Section 2.30(b).

The direct out-of-pocket costs and expenses reasonably incurred by the Service Provider in connection with the performance of its obligations under Sections 2.30(a) and 2.30(c) shall be the responsibility of OLG and OLG shall promptly reimburse the Service Provider therefor following receipt of a written notice, together with reasonable substantiating documentation, identifying such costs and expenses.

OLG Access to and Destruction of Historical Gaming Data

be in addition to, and shall not limit, any of OLG’s rights relating to the Historical Gaming Data under the Casino Operating and Services Agreement or the OLG Policies;

not limit any of the Service Provider’s rights or licence in respect of the Historical Gaming Data pursuant to Section 13.04 of the Casino Operating and Services Agreement; and

not limit any of the Service Provider’s obligations in respect of the Historical Gaming Data under the Casino Operating and Services Agreement or the OLG Policies (including the OLG Policies relating to records retention and/or applicable Privacy Law) except to the extent that any instructions provided by OLG pursuant to this Section 2.31 are inconsistent with or different than such obligations of the Service Provider, in which case OLG’s instructions pursuant to this Section 2.31 shall prevail.

Purchase and Sale of the Purchased Assets

subject to Section 12.3, the Real Property Leases and the NFEC Related Agreements;

the CN Licence;

the Parking Licence;

the Kent Street Parking Licence;

the Fallsview Retail Subleases;

the Contracts (other than the NFEC Related Agreements which are addressed in Section 3.1(a));

the Equipment;

the Inventories;

the IT Hardware and OLG Owned Software;

the Markers Receivable;

the Pre-Closing Hotel Amounts;

the Prepaid Items;

the Claimed Amounts; and

the Employee Holdco Shares.

Excluded Assets

Assumption of Liabilities

save and except as otherwise provided herein, all such Liabilities relating to the Purchased Assets or the Subject Gaming Sites, including under the Real Property Leases, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the Fallsview Retail Subleases and the Contracts, arising from or relating to events or matters (i) occurring or becoming due and payable prior to the Closing Time, to the extent that the Service Provider receives a credit for such Liabilities in accordance with Section 4.3(f), or (ii) occurring or becoming due or payable after the Closing Time;

all such Liabilities relating to amounts that are, or become, due and payable but which have not been paid for (i) goods ordered but not delivered, or (ii) services ordered but not rendered, in each case, in the Ordinary Course to the Subject Gaming Sites prior to the Closing;

all such Liabilities relating to maintenance of the IT Hardware, arising from or relating to events or matters (i) occurring or becoming due or payable prior to the Closing Date, to the extent that the Service Provider receives a credit for such Liabilities in accordance with Section 4.3(f), or (ii) occurring or becoming due or payable on or after the Closing Date;

all such Liabilities relating to the Existing Operator Customer Loyalty Program, including the obligation to ensure the continuation of the honouring of all benefits and rewards accrued to Players thereunder on and subject to the terms and conditions under which such benefits were earned or received;

all such Liabilities relating to the Site Gift Certificates, including the obligation to ensure the continuation of the honouring of all Site Gift Certificates on and subject to the terms and conditions under which such Site Gift Certificates were issued; and

all such Liabilities relating to the reservations and bookings described in the Forward-Looking Historical Non-Gaming Information.

Excluded Liabilities

all Liabilities relating to the Purchased Assets other than the Employee Holdco Shares, including under the Real Property Leases, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the Fallsview Retail Subleases and the Contracts, arising from or relating to events or matters occurring prior to the Closing Time except to the extent that the Service Provider receives a credit for such Liabilities in accordance with Section 4.3(f) (including Liabilities for Taxes relating to the Purchased Assets arising prior to the Closing Time not otherwise adjusted for on the Closing Date and except those which are the express responsibility of the Service Provider pursuant to this Agreement), and including any Liabilities to the extent arising from or relating to events, matters or items disclosed in the Environmental Reports or the Building Condition Reports, regardless of whether the Liabilities relating to such events, matters or items occur or arise before or after the Closing Time;

all Liabilities in respect of any Claim against OLG or the Existing Operator relating to the Subject Gaming Sites or the Purchased Assets arising on or before or relating to the period prior to the Closing Time;

all Liabilities for amounts that are due and payable for goods delivered and services rendered to the Subject Gaming Sites prior to the Closing which have not been paid as at the Closing Time, except to the extent that the Service Provider receives a credit for such Liabilities in accordance with Section 4.3(f);

all Liabilities relating to Local Progressive Jackpots;

all costs and expenses incurred by OLG or the Existing Operator relating to maintenance of the IT Hardware arising from or relating to events or matters occurring prior to the Closing Time and not paid by or otherwise adjusted for on the Closing Date;

any and all amounts payable by OLG to the Existing Operator relating to the operation of the Subject Gaming Sites by the Existing Operator during the period prior to the Closing Time;

all Liabilities relating to the Win Tax;

all Liabilities recorded as provisions on the financial statements in respect of the Complex as at the Closing Date; and

except as otherwise specifically provided herein, all Liabilities relating to the Excluded Assets.

Closing

No later than 10 days prior to the Closing Date, the Service Provider will deliver to the Seller drafts of all documents referred to in Section (A) of Schedule 11 and the Seller shall deliver to the Service Provider drafts of all documents referred to in Section (B) of Schedule 11 that are not also listed in Section (A) of Schedule 11 (other than the Closing Estimate which is dealt with in Section 4.2).

No later than 5:00 p.m. (Toronto time) on the Pre-Closing Date (unless an earlier delivery time is expressly required by another provision of this Agreement):

the Service Provider shall deliver or cause to be delivered to the Seller’s solicitors, in escrow, the documents referred to in Section (A) of Schedule 11;

the Seller shall deliver or cause to be delivered to the Service Provider’s solicitors, in escrow, the documents referred to in Section (B) of Schedule 11; and

the Service Provider shall pay or cause to be paid the Purchase Price, subject to adjustment pursuant to Article 4, together with the HST referred to in Section 3.7(b), if any (collectively, the “Closing Payment”), to the Seller’s solicitors, in escrow, by wire transfer of immediately available funds and the Seller’s solicitors shall have confirmed receipt of the Closing Payment to the Service Provider’s solicitors by no later than 5:00 p.m. (Toronto time) on the Pre-Closing Date,

The Closing shall take place at the offices of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 40^th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time or at such other place and time as may be agreed upon by the Parties in writing.

At the Closing, the following will occur:

the Closing Payment shall be automatically released from escrow and the Seller’s solicitors shall be irrevocably authorized and directed to deliver the Closing Payment to the Seller, or as OLG may otherwise direct;

the Service Provider will assume the Assumed Liabilities; and

the Seller will assign and transfer or will cause to be assigned and transferred to the Service Provider good and valid title in and to the Purchased Assets (provided that the Service Provider acknowledges and agrees that any registrations in respect of the assignment and transfer of the Leased Real Property may only be completed after Closing in accordance with Section 3.10), free and clear of all Encumbrances other than Permitted Encumbrances and Assumed Liabilities and the documents referred to in Section (A) of Schedule 11 and the documents referred to in Section (B) of Schedule 11 shall, in each case, be automatically released from escrow and become effective in accordance with their terms.

Each Party shall reasonably cooperate with the other on the exchange of information pertaining to the Assumed Liabilities and the Excluded Liabilities.

Non-Assignable Rights

each of the Parties shall, at the request of the other, apply for and use all commercially reasonable efforts to obtain all consents or approvals contemplated by such Contracts or Claimed Amounts, provided that (and without affecting the interpretation of “commercially reasonable efforts” as such term is used elsewhere in this Agreement and for greater certainty only in respect of the matters subject to commercially reasonable efforts as described in this Section 3.6(a)) nothing herein shall require the Seller or the Existing Operator to make any payment, give any guarantee or other financial contribution or incur any obligation to any other party to the Contracts or Claimed Amounts or to any Governmental Authority or to institute or threaten any legal or other proceedings against any Person;

the Parties shall co-operate with each other, at the Service Provider’s expense, in any reasonable and lawful arrangements designed to provide the benefits of such Non-Assignable Rights to the Service Provider, including, holding any such Non-Assignable Rights in trust for the Service Provider, sub-contracting, sub-licensing or sub-leasing;

the Seller shall, or shall cause the Existing Operator to, at the request, expense and risk of the Service Provider, enforce any rights of the Seller or the Existing Operator, as applicable, arising from such Non-Assignable Rights against the issuer thereof or the other party or parties thereto;

the Seller shall, or shall cause the Existing Operator to, at the request, expense and risk of the Service Provider, take all such actions and do, or cause to be done, all such things as shall be reasonably necessary and proper in order that the value of any Non-Assignable Rights shall be preserved and shall enure to the benefit of the Service Provider;

each of the Seller and the Service Provider shall keep the other reasonably informed of any progress in obtaining any required consents and waivers with respect to the Non-Assignable Rights and, in any event, shall provide notice promptly following receipt of any such consents or waivers; and

without limiting the rights and obligations of the Parties under this Section 3.6, once a consent or waiver has been obtained with respect to such Non-Assignable Right, such Non-Assignable Right shall be deemed to be automatically assigned to the Service Provider and the Service Provider shall be deemed to automatically assume the obligations under such Non-Assignable Right without any further act or formality.

Payment of Taxes

The Service Provider shall pay or otherwise remit on the Closing Date to the Seller or directly to the Governmental Authority as required by Applicable Law in addition to the Purchase Price (as adjusted), all applicable Taxes properly payable by the Service Provider on and in connection with the sale, conveyance and transfer of the Purchased Assets and the entering into by the Service Provider of the Fallsview Lease (the “Transfer Taxes”). Where payment is made other than to the Seller, the Service Provider shall provide evidence thereof to the Seller. The Service Provider shall indemnify and save harmless the Seller Indemnified Persons from all Claims and Losses incurred or suffered by any of the Seller Indemnified Persons as a result of the failure by the Service Provider to pay in a timely manner any of the Transfer Taxes payable by it, whether arising from reassessment or otherwise.

The Service Provider shall pay to the Seller’s solicitors, in trust, no later than 5:00 p.m. (Toronto time) on the Pre-Closing Date, by wire transfer of immediately available funds, all HST applicable to the sale and transfer of the Seller’s, the Existing Operator’s and the Existing General Partner’s respective right, title and interest in the Purchased Assets conveyed to the Service Provider or self-assess and remit any HST to the Receiver General Canada and/or provincial agency, if applicable, when and to the extent required by the Excise Tax Act (Canada) or relevant provincial legislation.

Tendering

Extension of Closing Date

Escrow Arrangements

The Seller and the Service Provider acknowledge that the electronic registration system (hereinafter referred to as the “TERS”) is operative on a mandatory basis in the Land Titles Office where the Leased Real Property is located and, accordingly, the following provisions shall prevail, namely:

the Service Provider’s solicitors and the Seller’s solicitors shall each be obliged to be authorized TERS users and in good standing with the Law Society of Upper Canada, and they are hereby authorized by the Parties to enter into a document registration agreement based on the form adopted by the Joint LSUC CBAO Committee on Electronic Registration of Title Documents on March 29, 2004 or any successor version thereto, subject to such amendments as are necessary to reflect the specific closing procedures set out in this Section 3.10 (the “DRA”), together with the additional requirement that the Service Provider’s solicitors shall also be obliged to provide the Seller’s solicitors with a copy of the registration report printed by TERS upon the registration of the

The delivery and exchange of documents to be delivered at Pre-Closing and the Closing Payment and the release thereof to the Seller and the Service Provider, as the case may be, on Closing, shall be governed by the DRA, pursuant to which the solicitor receiving any documents to be delivered at Pre-Closing, or the Closing Payment, will be required to hold same in escrow, and will not be entitled to release same except in strict accordance with the provisions of the DRA; and

For greater certainty, the DRA shall provide that Closing shall occur automatically at the Closing Time, without the requirement of any further action on the part of the Seller or the Service Provider or their respective solicitors, subject only to the Pre-Closing having occurred and as otherwise provided for in Section 3.10(d).

Each of the Parties agrees that the delivery of any of the documents to be delivered at Pre-Closing not intended or required to be registered on title to that part of the Leased Real Property that is the subject of the CN Premises Lease or the Fallsview Lease shall, unless the Parties otherwise agree, be by way of delivery of originally signed copies thereof on the Pre-Closing Date to the other Party.

Notwithstanding anything contained in this Agreement or in the DRA to the contrary, it is expressly understood and agreed by the Parties that an effective tender shall be deemed to have been validly made by either Party (in this Section called the “Tendering Party”) upon the other Party (in this Section called the “Other Party”) when the solicitor for the Tendering Party has:

delivered all applicable documents to be delivered at Pre-Closing and, if applicable, the Closing Payment, to the Other Party’s solicitor in accordance with the provisions of this Agreement and the DRA;

advised the solicitor for the Other Party, in writing, that the Tendering Party is ready, willing and able to complete the Transactions in accordance with the terms and provisions of this Agreement; and

completed all steps required by TERS in order to complete the applicable portions of the Transactions that can be performed or undertaken by the Tendering Party’s solicitor without the cooperation or participation of the Other

No later than 5:00 p.m. (Toronto time) on the Pre-Closing Date, each of the Seller’s solicitors and the Service Provider’s solicitors shall confirm to the other that the respective obligations of the Seller and the Service Provider as set forth in Section 3.5(b) have been completed in full, that the Seller and the Service Provider are otherwise in a position to complete the Closing effective as of the Closing Time and accordingly, that Pre-Closing has occurred. Closing shall thereafter occur automatically as of the Closing Time, subject only to Section 12.2 and the non-satisfaction of any of the conditions to Closing as set out in Sections 15.1 (subject to Section 7.2) and 15.3 that are not otherwise waived or deemed waived by the Seller or the Service Provider in accordance with this Agreement.

The Service Provider acknowledges and agrees that to the extent the Service Provider intends to register on title any instruments evidencing its interest in any of the Leased Real Property, that it shall only be possible to register such instruments subsequent to the Closing Time. Accordingly, given that Closing shall occur automatically as of the Closing Time (subject to the provisions of Section 3.10(d)) without any such registrations being completed, it shall be at the option of the Service Provider to consider obtaining, at its sole cost and risk, a Title Insurance Policy in respect of its interest in any of the Leased Real Property, with such policy being effective as of the Closing Time. For greater certainty and notwithstanding anything to the contrary contained in this Agreement, the Service Provider acknowledges and agrees that Closing is not, under any circumstances, conditional upon registrations evidencing the Service Provider’s interest in any of the Leased Real Property being completed as at the Closing Time and accordingly, provided that the Pre-Closing has otherwise occurred, the Closing shall occur at the Closing Time in accordance with the provisions of this Section 3.10.

Joinder Agreement

Purchase Price for the Assets

Subject to Sections 4.2, 4.3 and 4.4 and in addition to the assumption, payment, discharge, performance and fulfillment of the Assumed Liabilities by the Service Provider, the Service Provider shall pay to the Seller as the purchase price for the Purchased Assets the amount of Eighty-Eight Million Eight Hundred Thirty-Seven Thousand and One Dollars ($88,837,001) (the “Purchase Price”), plus applicable Taxes, which amount, for greater certainty, does not include the amount to be adjusted for pursuant to Section 4.3(f)(x) in respect of the value of the Inventory as at the Cutoff Time.

Subject to Section 4.2(b), the Purchase Price shall be payable no later than 5:00 p.m. (Toronto time) on the Pre-Closing Date by wire transfer of immediately available funds to the Seller’s solicitor’s trust account specified by the Seller in writing prior to the Pre-Closing.

The Seller and the Service Provider acknowledge and agree that the allocation of the aggregate Purchase Price for the Purchased Assets relating to each Subject Gaming Site is set out at Schedule 18 and the Parties agree to cause their books and records of account and all governmental returns, representations and other submission to any Governmental Authority to represent and reflect the fact and accuracy of such allocation. Subject to the foregoing, each of the Seller and the Service Provider may allocate the Purchase Price among the several classes of the Purchased Assets as they pertain to each particular Subject Gaming Site (a “Class Allocation”) as may be determined by each Party, provided that for the purposes only of determining any Taxes payable or collectable on Closing by the Seller under this Agreement, the Class Allocation shall be deemed to be the allocation as set out in Schedule 18.

Closing Estimate

The Seller will prepare and deliver to the Service Provider at least 5 days prior to the Pre-Closing Date a draft closing statement (the “Closing Estimate”), in the form set out in Schedule 12 containing the Seller’s best estimate of the Net Working Capital as at the Cutoff Time (the “Estimated Closing Net Working Capital”). The amounts set out in the Closing Estimate shall be the basis upon which the prorations and adjustments provided for herein shall be made.

The Purchase Price payable no later than 5:00 p.m. (Toronto time) on the Pre-Closing Date will be adjusted as follows:

if the Estimated Closing Net Working Capital set out in the Closing Estimate exceeds the Target Working Capital, then there shall be a credit in favour of the Seller on a dollar-for-dollar basis equal to such excess, as an adjustment to the Purchase Price, and such amount, together with the Purchase Price, shall be payable in the manner set out in Section 4.1(b);

if the Estimated Closing Net Working Capital set out in the Closing Estimate is less than the Target Working Capital, then there shall be a credit in favour of the Service Provider on a dollar-for-dollar basis equal to the amount of such shortfall, as an adjustment to the Purchase Price and such shortfall shall be deducted from the Purchase Price; or

if the Estimated Closing Net Working Capital set out in the Closing Estimate is equal to the Target Working Capital, there shall not be any adjustment to the Purchase Price pursuant to this Section 4.2.

Closing Statement

The Service Provider shall provide to the Seller not later than 45 Business Days after the Closing Date, a statement certified by the Service Provider’s Chief Financial Officer that shall set out the Net Working Capital as at the Cutoff Time (the “Closing Statement”, and the Net Working Capital as at the Cutoff Time determined in accordance with this Agreement and set out in the Closing Statement, the “Closing Net Working Capital”), in the form set out in Schedule 12. The Seller will make available to the Service Provider such information and documentation in its possession or control as may be reasonably required in order for the Service Provider to prepare the Closing Statement. Upon request by the Seller, the Service Provider shall provide such information and documentation in its possession or control as may be reasonably required by the Seller in order to confirm the Closing Statement.

The Closing Statement shall become final and binding on the Parties on the 30th Business Day following receipt thereof by the Seller unless the Seller gives written notice of its objections with respect to the Closing Statement (a “Notice of Objection”) to the Service Provider on or prior to such date. Any Notice of Objection shall specify in reasonable detail the nature of any objections so asserted, including the dollar amount involved and the basis therefor.

If a Notice of Objection is delivered to the Service Provider during the aforementioned 30 Business Day period, the Service Provider and the Seller shall work in good faith in an attempt to resolve in writing any differences that they may have with respect to any matter specified in the Notice of Objection. If, at the end of such 30 Business Day period, the Service Provider and the Seller have not reached agreement on all of such matters, the matters that remain in dispute shall be submitted to a mutually agreeable (each Party acting reasonably) partner at any one of KPMG, PricewaterhouseCoopers, Ernst & Young or Deloitte (the “Accountants”) who shall be instructed to resolve such items within 20 Business Days. The Accountants shall determine the Net Working Capital as at the Cutoff Time, which shall be either the Seller’s proposed adjustment or the Service Provider’s proposed calculation as set out in the Closing Statement or such

If a Notice of Objection is received by the Service Provider within the 30 Business Day period specified in Section 4.3(b), then the Closing Statement shall become final and binding upon the Parties on the earlier of (i) the date the Parties resolve in writing any differences they have with respect to all matters specified in the Notice of Objection, or (ii) the date all disputed matters specified in the Notice of Objection are finally resolved in writing by the Accountants. The Closing Statement shall be deemed amended to reflect the resolution in accordance with this Agreement of any differences or disputed matters, and upon becoming final and binding in accordance with this Agreement, shall constitute the “Final Closing Statement” and the Closing Net Working Capital set out therein shall constitute the “Final Closing Net Working Capital”. For greater certainty, the final and binding nature of the Final Closing Statement shall not prejudice or limit the rights or obligations of the Parties under Section 14.1.

The provisions of Section 4.3(f) shall apply for the purposes of the calculation contemplated by each of Sections 4.2 and 4.3.

The following matters and items pertaining to the Subject Gaming Sites shall be apportioned between the Parties or, where applicable, credited in total to a particular Party, as of the Cutoff Time. Net credits in favour of the Service Provider shall be deducted from the balance of the Purchase Price at the Closing and net credits in favour of the Seller shall be paid in cash at the Closing. Unless otherwise indicated below, the Service Provider shall receive a credit for any of the following items to the extent the same are accrued but unpaid as of the Cutoff Time (whether or not due, owing or delinquent as of the Cutoff Time), and the Seller shall receive a credit to the extent any of the following items shall have been paid by the Seller or the Existing Operator on or prior to the Closing Date to the extent the payment thereof relates to any period of time after the Cutoff Time:

All restaurant and bar facilities which are not subject to any Contracts will be closed as of the Cutoff Time and the Seller shall receive the income from the same until the Cutoff Time and the Service Provider shall receive the income from the same after the Cutoff Time.

Subject to Section 4.3(i), all Taxes in the nature of special or general assessments, real property taxes, water and sewer rents, rates and charges, and any municipal permit fees. If the amount of any such item is not ascertainable on the Closing Date, the credit therefor shall be based on the most recent available ▇▇▇▇ and notwithstanding the final and binding nature of the Final Closing Statement, the Parties shall re-prorate such taxes, assessments and levies based upon the actual tax bills within 20 Business Days after such tax bills are received.

Subject to Section 4.3(i), telephone and telex contracts and contracts for the supply of heat, steam, electric power, gas, lighting and any other utility service, with the Seller receiving a credit for all deposits, if any, made by the Seller or the Existing Operator as security under any such public service contracts if the same are transferable and provided such deposits remain on deposit for the benefit of the Service Provider. Where possible, cutoff readings will be secured for all utilities as of the Cutoff Time. To the extent they are not available, the cost of such utilities shall be apportioned between the Parties on the basis of the latest actual (not estimated) ▇▇▇▇ for such service and notwithstanding the final and binding nature of the Final Closing Statement, the Parties shall re-prorate such cost based upon the actual bills within 30 days after such bills are received.

All amounts due by the Seller, the Existing Operator or the Employee Holdco, as applicable, under the Real Property Leases, the Fallsview Retail Subleases, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the Contracts and the Employee Holdco Contracts with reference to periods prior to the Closing Date shall be paid by the Seller or credited to the Service Provider as a reduction of the Purchase Price. The Seller shall receive a credit for Prepaid Items and Employee Holdco Prepaid Items as of the Cutoff Time, including all advance payments or deposits made with respect to Inventories ordered but not delivered to the Subject Gaming Sites prior to the Closing Date, prepaid expenses under the Real Property Leases, the Fallsview Retail Subleases, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the Contracts and the Employee Holdco Contracts, advertising expenses, fees for permits, prepaid expenses in connection with any covenants, conditions, and restrictions or other similar documents. The Service Provider shall receive a credit for (A) any amounts prepaid to the Seller, the Existing Operator or the Employee Holdco under the Real Property Leases, the Fallsview Retail Subleases, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the Contracts and the Employee Holdco Contracts, and (B) the Customer Prepaid Items, in each case, with reference to periods after the Closing Date.

The Seller shall be credited on Closing for the prorated amount of monthly rent payable by the Service Provider pursuant to each Real Property Lease, as applicable, for the remaining number of days in the month in which the Closing Date occurs (including the Closing Date).

Fees paid for Liquor Licences and Consents (except for Excluded Assets) in the current period.

Vending machine, laundry machine, pay telephones and other non-gaming coin-operated equipment monies as of the Cutoff Time will be for the benefit of the Seller.

The Service Provider shall purchase and the Seller shall sell to the Service Provider (or receive a credit therefor) all Cash at 100% of the face value as of the Cutoff Time. In addition, the Seller shall receive a credit equal to the amount of funds held on deposit in the bank accounts of the Employee Holdco as at the Cutoff Time.

The Service Provider shall be entitled to a credit for all security and other deposits held by the Seller or the Existing Operator as of the Cutoff Time with respect to any Contracts, the Real Property Leases, the CN Licence, the Parking Licence and the Kent Street Parking Licence.

The Seller shall be credited with the book value of all of the Inventory as at the Cutoff Time. Immediately prior to the Cutoff Time, the Seller and the Service Provider shall cause a physical count and tally of the Inventory to be prepared by representatives of the Seller (and if requested by OLG, the Existing Operator) and the Service Provider, and the results of such physical count and tally shall be incorporated into the Closing Statement.

The Service Provider shall be credited with an amount equal to all Liabilities accrued and outstanding as at the Cutoff Time in respect of the Existing Operator Customer Loyalty Program originating at the Casinos and redeemable after Closing at the Casinos.

The Service Provider shall be credited with the amount of all outstanding Site Gift Certificates that have not been redeemed and have not expired as at the Cutoff Time.

The Seller shall be credited with an amount in respect of the Markers Receivable that have not been paid to or collected by or on behalf of OLG as of the Cutoff Time equal to the aggregate amount of the Markers Receivable less an allowance for doubtful markers as calculated and determined in accordance with the credit issuance and credit collection policies and procedures of the Existing Operator described in the files in the folder entitled “RFP 1617-009 - Niagara\Background Information\3.0 Finance\3.23 Credit Markers Receivable Information” made available to the Service Provider in the Data Room as at the Data Room Cutoff Date.

The Seller shall be credited with an amount equal to all Prepaid Items in respect of entertainers or other events taking place at the Subject Gaming Sites on or after the Closing Date, including for greater certainty any marketing costs incurred by or on behalf of OLG.

The Service Provider shall be credited with an amount equal to all deposits, advance payments and credits for bookings and reservations for guest, conference, meeting and banquet rooms or other facilities at the Subject Gaming Sites relating to a period of time after the Closing Date that have been collected and received by or on behalf of OLG or the Existing Operator before the Closing Date.

The Seller shall receive a credit in an amount equal to the Pre-Closing Hotel Amounts, save and except for all such amounts charged following the guest check-in time (4:00:00 p.m. Toronto time) on the Pre-Closing Date until the guest check-out time (11:00 a.m. Toronto time) on the Closing Date, during which period of time all amounts charged to the open accounts of any guests shall be shared between the Seller and the Service Provider equally, and the Service Provider shall be entitled to retain all deposits made and amounts collected for such open guest accounts.

Without duplication of any of the items referred to in this Section 4.3(f), all Prepaid Items and all Employee Holdco Prepaid Items.

Such other items as are provided for in this Agreement or as are normally prorated and adjusted in the transactions similar to the Transactions.

For greater certainty, the aggregate amount of all Cash and Cash Equivalents, collected or otherwise received from Players and other customers and validly accrued in respect of the funding of Local Progressive Jackpots relating to the Subject Gaming Sites prior to Closing shall not be adjusted for or otherwise form part of the calculation of Net Working Capital, and the liabilities and obligations of the Parties with respect to Local Progressive Jackpots following Closing shall be as provided for in the Casino Operating and Services Agreement.

All actual costs and liabilities in respect of the Employees that are accrued up to the Closing Date and that require adjustment, including premiums for employment insurance, Canada Pension Plan, employer health tax, applicable statutory hospitalization insurance, workers compensation assessments, accrued wages, salaries, commissions and other compensation, accrued vacation pay and Benefit Plan and Pension Plan contributions or other payments (for greater certainty, excluding contingent liabilities that could actually be incurred following the Closing, including any notice of termination or pay in lieu of notice, severance pay or damages for wrongful dismissal owing to or claimed by any Employee following the Closing) shall be appropriately adjusted such that OLG shall be responsible for all such costs and liabilities up to the Closing Date, and the Service Provider shall be responsible for such costs and liabilities from and after the Closing Date.

Notwithstanding anything to the contrary in Section 4.3(f), and without limiting the generality of Section 1.3(m), the Purchase Price will not be adjusted in respect of any amount that is recoverable from and payable by the Service Provider, in its capacity as tenant, as Additional Rent under and as defined in the Fallsview Lease from and after the Closing.

Purchase Price Adjustment

At the time the Closing Statement becomes final and binding on the Parties as provided herein, certain payments shall be made to the Service Provider or the Seller, as the case may be, as follows:

If the Final Closing Net Working Capital set forth in the Final Closing Statement exceeds the Estimated Closing Net Working Capital, then the Service Provider shall pay an amount equal to such excess to the Seller, as an adjustment to the Purchase Price.

If the Final Closing Net Working Capital set forth in the Final Closing Statement is less than the Estimated Closing Net Working Capital, then the Seller shall repay an amount equal to such difference to the Service Provider, as an adjustment to the Purchase Price.

If the Final Closing Net Working Capital set forth in the Final Closing Statement is equal to the Estimated Closing Net Working Capital, there shall not be any payment to either Party pursuant to this Section 4.4.

All such amounts shall be paid by wire transfer of immediately available funds within 10 Business Days of the date that the Closing Statement becomes final and binding on the Parties.

Property Tax Appeals and Reassessments

Pre-Closing OLG Amounts

Pre-Closing Employee Holdco Amounts

Closing Letters of Credit

On or before the Original Execution Date, the Service Provider shall have delivered to OLG pursuant to the RFP, and shall thereafter maintain (in accordance with Section 5.1(b)), one or more irrevocable, unconditional standby letters of credit in an aggregate amount of [REDACTED], in favour of OLG (each, a “Closing Letter of Credit”, and together, the “Closing Letters of Credit”).

In the event that any Closing Letter of Credit must be renewed or replaced at any time, the Service Provider agrees to provide to OLG reasonable evidence of the renewal or replacement of such Closing Letter of Credit no later than 15 calendar days prior to the renewal or expiry date, if any, of such Closing Letter of Credit.

Draws on any Closing Letter of Credit pursuant to this Agreement shall only be requested by OLG as provided for in Section 2.20, this Section 5.1, Section 14.8 and Section 16.4 hereof.

Without limiting Section 5.1(c), OLG shall be entitled to draw the full amount of each and every Closing Letter of Credit:

upon the failure of the Service Provider to renew or replace a Closing Letter of Credit pursuant to Section 5.1(b);

without limiting Section 16.4, upon an Act of Insolvency of the Service Provider except where, in the case of paragraphs (b) or (c) in the definition of Act of Insolvency, such proceedings or occurrences have been withdrawn, stayed, discharged, or are otherwise of no further effect within 15 days of their occurrence or commencement or upon the forfeiture, disclaimer, repudiation or other termination of this Agreement in connection with, as a result of or in relation to any such Act of Insolvency;

upon the downgrading of any of the banks or other financial institutions that issued a Closing Letter of Credit that would cause such bank or financial institution to no longer be an Eligible Institution, unless the Service Provider has provided to OLG a replacement for such Closing Letter of Credit meeting the requirements of the RFP within 10 Business Days following such downgrading; or

upon the Act of Insolvency of any of the banks or other financial institutions that issued a Closing Letter of Credit.

In the event that a Closing Letter of Credit is drawn down in accordance with Section 5.1(d), OLG shall hold the cash proceeds thereof without interest in a bank account selected by OLG and such cash proceeds shall thereupon stand in place of such Closing Letter of Credit until the Service Provider delivers (or causes the delivery of) a replacement for such Closing Letter of Credit to OLG meeting the requirements of the RFP. OLG shall be entitled to make withdrawals of such cash proceeds in the same manner that it is permitted to draw upon a Closing Letter of Credit under Section 5.1(c). Upon the replacement of such Closing Letter of Credit by the Service Provider with a replacement for such Closing Letter of Credit meeting the requirements of the RFP, OLG shall return all remaining cash proceeds, without interest (from such bank account) to the Service Provider or as the Service Provider may direct within 5 Business Days.

OLG may request multiple draws on any Closing Letter of Credit in accordance with this Section 5.1.

OLG shall give 2 Business Days prior written notice to the Service Provider of its intention to draw on a Closing Letter of Credit except in the case of a draw pursuant to Section 5.1(d)(ii) or Section 5.1(d)(iv) where no prior notice shall be required. If the Service Provider notifies the OLG Transition Representative in writing that the Service Provider disputes OLG’s right to draw on a Closing Letter of Credit and to retain the proceeds as liquidated damages, then OLG shall nonetheless be entitled to draw on a Closing Letter of Credit, but will remain liable to repay all or a portion of the amount drawn, together with interest charges at the default rate of interest prescribed in the Casino Operating and Services Agreement if such Dispute is finally resolved in favour of the Service Provider in accordance with the Dispute Resolution Procedure.

Return of Closing Letters of Credit

if the Transactions to be completed on the Closing Date are completed, provided that if a Dispute relating to the Service Provider Pre-Closing Transition Activities has arisen or is ongoing, OLG shall be entitled to retain each Closing Letter of Credit until such time as the Dispute has been resolved in accordance with Section 18.1; or

in the circumstances set out in Section 16.5.

Performance Security

No Assignment of Liquor Licences

Applications

in respect of the Liquor Licences, the Service Provider shall prepare and the Service Provider shall execute and OLG shall cause to be executed by the Existing General Partner (i) an application for transfer of the applicable Liquor Licences; and (ii) an Authorization to Contract Out in respect of each Liquor Licence; and

the Service Provider shall file (or cause to be filed) with the applicable Governmental Authority, at the Service Provider’s expense, each of the documents referred to in Section 6.2(a).

No Representations

Indemnity by the Service Provider

Authorization to Contract Out

Costs

Representations and Warranties of the Seller

Corporate Organization, Standing and Qualifications.

OLG is a non-share capital corporation established under the Enabling Legislation and OGAC is a corporation duly incorporated and validly existing under the laws of the Province of Ontario and has not been dissolved.

To the knowledge of the Seller, the Existing Operator is a limited partnership formed under the laws of the Province of Ontario and has not been wound up.

The Existing General Partner is a corporation incorporated under the laws of the Province of Nova Scotia and has not been dissolved.

The Employee Holdco is a corporation existing under the laws of the Province of Ontario and has not been dissolved.

Pursuant to the Enabling Legislation, OLG is for all its purposes an agent of the Crown.

Each of OLG, OGAC and, to the knowledge of the Seller, the Existing Operator and the Existing General Partner, has all requisite corporate power, authority and capacity to own, lease and operate its property and assets and, subject to Section 7.1(b), to sell the Purchased Assets, or cause the Purchased Assets to be sold, to the Service Provider and otherwise perform its obligations pursuant to this Agreement.

Authorization. Each of OLG and OGAC has the corporate capacity, authority and power to execute, deliver and perform this Agreement. This Agreement has been duly and validly authorized, executed and delivered by OLG and OGAC, and constitutes a legal, valid and binding obligation of OLG and OGAC, enforceable against it in accordance with its terms, subject only to (i) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, reorganization and similar Applicable Law affecting creditors’ rights generally; (ii) general principles of equity, regardless of whether asserted in a proceeding in equity or at law and that a court may stay proceedings or the execution of judgments regardless of whether asserted in a proceeding in equity or at law; (iii) statutory limitations of general application respecting the enforceability of claims against the Crown or its property; and (iv) the condition set out in the approval that has been provided in connection with this Agreement for the purposes of Section 28 of the Financial Administration Act (Ontario) and Section 4(2) of the Enabling Legislation which is as follows:

OLG shall ensure that the conduct and management of lottery schemes at each Gaming Site continues to be in accordance with the Criminal Code and all applicable provincial law.

No Violations. Except as set out in Schedule 13, the execution and delivery of this Agreement, the consummation of the Transactions and compliance by OLG and OGAC with any provisions hereof will not conflict with or result (with or without notice, lapse of time or both) in a breach of any of the terms, conditions or provisions of (i) the Enabling Legislation; (ii) the articles, by-laws or other constating documents of OGAC; (iii) any Material Contract, except for such conflict, breach or default which would not materially impair or delay the ability of OLG and OGAC to consummate the Transactions and except for such conflict, breach or default as to which requisite waivers or consents shall have been obtained before Closing; or (iv) any Applicable Law applicable to OLG or OGAC or, to the Seller’s knowledge to the Existing Operator, the Existing General Partner or the Employee Holdco.

Consents and Approvals.

Except as set out in Schedule 14, and subject to Section 3.6, no Consent by, or any notification or filing with, any Governmental Authority or any other Person is required to be obtained or made by or with respect to OLG or OGAC or, to the Seller’s knowledge, by the Existing Operator, in connection with the execution, delivery or performance by OLG or OGAC of this Agreement.

All Ontario Ministerial Approvals have been obtained by OLG on terms and conditions that permit OLG to observe and perform its obligations under this Agreement.

Real Property.

The Seller has delivered or made available to the Service Provider true, correct and complete copies of the Real Property Leases, the CN Licence, the Parking Licence and the Fallsview Retail Subleases, including all amendments, modifications, assignments, consents, notices, renewals and supplements thereto or otherwise in respect thereof. The CN Premises Lease, the CN Licence, the Parking Licence and the Kent Street Parking Licence are in full force and effect, and the CN Premises Lease creates a good and valid leasehold estate in the CN Leased Real Property. To the knowledge of the Seller, (A) the Dorchester Premises Lease and the Fallsview Retail Subleases are in full force and effect, and (B) the Dorchester Premises Lease creates a good and valid leasehold estate in the Dorchester Leased Real Property. The NFEC Lease is in full force and effect, and the NFEC Lease will, at the NFEC Commencement Date, create a good and valid leasehold estate in the NFEC Leased Real Property.

The CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property, the Existing Retail Lease, the NFEC Leased Real Property, the Dorchester Leased Real Property, the Fallsview Retail Subleases and the Owned Real Property comprise all of the real property that is owned, leased or licensed by the Seller, and to the Seller’s knowledge, the Existing Operator in the Subject Gaming Bundle and being used by any of them in connection with the Subject Gaming Sites.

There are no arrears of rent under the CN Premises Lease, the CN Licence or the NFEC Lease or, to the Seller’s knowledge, the Parking Licence, the Kent Street Parking Licence or the Dorchester Premises Lease which will not be adjusted for on Closing in accordance with the provisions of this Agreement, and, except as disclosed in Schedule 13, there exists no material default, or any event which upon the giving of notice or the passage of time or both, would give rise to any material default in the performance of the Seller, or to the Seller’s knowledge, the Existing Operator’s or the Seller’s subtenants, licensees, sublicensees and other occupants or the lessor thereunder, of any material obligation under the CN Premises Lease, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the NFEC Lease or the Dorchester Premises Lease.

Neither the Seller nor, to the Seller’s knowledge, the Existing Operator has received written notice of any existing or proposed expropriation or similar proceedings relating to all or any material part of the Seller’s interest or Existing Operator’s interest, as applicable, in the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property, the NFEC Leased Real Property, the Dorchester Premises Lease or the Owned Real Property.

No written notice of violation of any Applicable Law or of any covenant, restriction or easement affecting the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property, the NFEC Leased Real Property or any part thereof for which the Seller is responsible under the terms of the CN Premises Lease, the CN Licence, the Parking Licence, the Kent Street Parking Licence or the NFEC Lease, respectively, or with respect to the use or occupancy of the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property or the NFEC Leased Real Property by the Seller or any part thereof that are outstanding and that would have a material adverse effect on the value or use thereof following the Closing Date, has been received by the Seller from any Governmental Authority or from any other Person entitled to enforce the same. The current gaming use and, to the Seller’s knowledge, the non-gaming uses by the Seller of the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property and the NFEC Leased Real Property are permitted pursuant to Applicable Law.

To the Seller’s knowledge, no written notice of violation of any Applicable Law or of any covenant, restriction or easement affecting the Parking Licensed Property or the Dorchester Leased Real Property or any part thereof for which the Existing Operator is responsible under the terms of the Parking Licence or the Dorchester Premises Lease, respectively, or with respect to the use or occupancy of the Parking Licensed Property or the Dorchester Leased Real Property by the Existing Operator or any part thereof that are outstanding and that would have a material adverse effect on the value or use thereof following the Closing Date, has been received by the Existing Operator from any Governmental Authority or from any other Person entitled to enforce the same. To the Seller’s knowledge, the current use by the Existing Operator of the Parking Licensed Property and the Dorchester Leased Real Property is permitted pursuant to Applicable Law.

No written notice of violation of any Applicable Law or of any covenant, restriction or easement affecting the Owned Real Property or any part thereof or with respect to the use or occupancy of the Owned Real Property by the Seller or any part thereof that are outstanding and that would have a material adverse effect on the value or use thereof following the Closing Date, has been received by the Seller from any Governmental Authority or from any other Person entitled to enforce the same. The current gaming use and, to the Seller’s knowledge, the non-gaming uses by the Seller of the Owned Real Property are permitted pursuant to Applicable Law.

The Seller has delivered or made available to the Service Provider true, correct and complete copies of the Building Condition Reports in the possession of the Seller, and during the Post-Submission Period, subject in all cases, to any normal wear and tear and to any damage or destruction dealt with in Article 12, there has been no material adverse change to the state and condition of:

the Improvements situated on the CN Leased Real Property that the Seller is responsible to maintain and repair under the terms of the CN Premises Lease;

the Fallsview Buildings situated on the Fallsview Owned Real Property; and

the buildings, structures and fixed improvements located on, in or under the property municipally known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, and improvements and fixtures contained in or on such buildings and structures used in the operation of the same, but excluding improvements and fixtures not owned by or on behalf of OLG,

Subject to any damage or destruction dealt with in Article 12, and subject to matters disclosed in the Building Condition Reports or the Environmental Reports, neither the Seller nor, to the Seller’s knowledge, the Existing Operator has received written notice of any work orders, deficiency notices or other similar notices of non-compliance issued by any Governmental Authority with respect to:

the Improvements situated on the CN Leased Real Property that the Seller is responsible to maintain and repair under the terms of the CN Premises Lease,

the Improvements situated on the CN Licensed Property that the Seller is responsible to maintain and repair under the terms of the CN Licence;

the Improvements situated on the NFEC Leased Real Property that the Seller is responsible to maintain and repair under the terms of the NFEC Lease;

the Improvements situated on the Dorchester Leased Real Property that the Existing Operator is responsible to maintain and repair under the Dorchester Premises Lease; or

the Buildings forming part of the Owned Real Property,

All accounts for work and services performed or materials placed or furnished upon or in respect of any construction or repair of the Improvements in respect of the CN Leased Real Property, the CN Licensed Property or the NFEC Leased Real Property by the Seller (excluding, for greater certainty, all such construction or repairs undertaken by or on behalf of the landlord under such Real Property Leases or the licensor under the CN Licence), which are due and payable, will have been fully paid by Closing and, to the knowledge of the Seller, no one will be entitled on Closing to claim a lien in respect of the CN Leased Real Property, the CN Licensed Property or the NFEC Leased Real Property under the Construction Act (Ontario) for work performed by or on behalf of the Seller (excluding for greater certainty, all work undertaken by or on behalf of the landlord under such Real Property Leases or the licensor under the CN Licence).

To the Seller’s knowledge, all accounts for work and services performed or materials placed or furnished upon or in respect of any construction or repair of the Improvements in respect of the Parking Licensed Property or the Dorchester Leased Real Property by the Existing Operator (excluding, for greater certainty, all such construction or repairs undertaken by or on behalf of the licensor under the Parking Licence or the landlord under the Dorchester Premises Lease), which are due and payable, will have been fully paid by Closing and, to the knowledge of the Seller, no one will be entitled on Closing to claim a lien in respect of the Parking Licensed Property or the Dorchester Leased Real Property under the Construction Act (Ontario) for work performed by or on behalf of the Existing Operator (excluding for greater certainty, all work undertaken by or on behalf of the licensor under the Parking Licence or the landlord under the Dorchester Premises Lease).

All accounts for work and services performed or materials placed or furnished upon or in respect of any construction or repair of the Buildings in respect of the Owned Real Property by the Seller (excluding, for greater certainty, all such construction or repairs undertaken by or on behalf of the Existing Operator), which are due and payable, will have been fully paid by Closing and, to the knowledge of the Seller, no one will be entitled on Closing to claim a lien in respect of the Owned Real Property under the Construction Act (Ontario) for work performed by or on behalf of the Seller (excluding, for greater certainty, all such construction or repairs undertaken by or on behalf of the Existing Operator).

All Taxes in the nature of special or general assessments and real property taxes and/or payments in lieu of real property taxes that are payable by the Seller

To the Seller’s knowledge, all Taxes in the nature of special or general assessments and real property taxes and/or payments in lieu of real property taxes that are payable by the Existing Operator under the Parking Licence or the Dorchester Premises Lease that, in each case, are due, have either been paid in full or will be adjusted on Closing in accordance with Section 4.3(f)(ii) and, except as disclosed in Part B of Schedule 19, to the Seller’s knowledge, the Existing Operator has not received written notice from any Governmental Authority of any proposed local improvement charges or special levies relating to the Parking Licensed Property or the Dorchester Leased Real Property.

All accounts or charges for water, hydro and gas, if applicable, that are payable by the Seller under the CN Premises Lease, the CN Licence, the NFEC Lease or in respect of the Owned Real Property and that are due, have either been paid in full or will be adjusted on Closing in accordance with Section 4.3(f)(iii).

To the Seller’s knowledge, all accounts or charges for water, hydro and gas, if applicable, that are payable by the Existing Operator under the Parking Licence or the Dorchester Premises Lease and that are due, have either been paid in full or will be adjusted on Closing in accordance with Section 4.3(f)(iii).

Since the Data Room Cutoff Date, there have been no amendments to the NFEC Lease or any of the NFEC Related Agreements that are adverse to the interest of the NFEC Tenant thereunder.

Environmental Matters.

Except as disclosed in the Environmental Reports and the Building Condition Reports, in the 24 month period prior to the Closing Date, neither the Seller nor, to the Seller’s knowledge, the Existing Operator has received any written notice from a Governmental Authority of any violation or possible violation of any Environmental Laws occurring with respect to the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property, the NFEC Leased Real Property, the Dorchester Leased Real Property or the Fallsview Retail Subleases for which the Seller or the Existing Operator would be responsible pursuant to the CN Premises Lease,

Except as disclosed in the Environmental Reports and the Building Condition Reports, in the 24 month period prior to the Closing Date, the Seller has not received any written notice from a Governmental Authority of any violation or possible violation of any Environmental Laws occurring with respect to the Owned Real Property.

The Seller has made available to the Service Provider true, correct and complete copies of:

the Environmental Reports; and

any material correspondence received from Governmental Authorities in the 24 month period prior to the Data Room Cutoff Date and which relate to environmental matters in respect of the Subject Gaming Sites that is in the possession or control of the Seller and which has been made available to the Service Provider in the folder entitled “RFP 1617-009 - Niagara\Background Information\4.0 Facility\4.06 Environmental Correspondence” in the Data Room as at the Data Room Cutoff Date.

Except as disclosed in the Environmental Reports and the Building Condition Reports, to the Seller’s knowledge, during the occupation by the Seller or the Existing Operator, as applicable, of the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property, the NFEC Leased Real Property and the Dorchester Leased Real Property, respectively, each of the Seller and, to the Seller’s knowledge, the Existing Operator has been in compliance in all material respects with the covenants and obligations under the CN Premises Lease, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the NFEC Lease and the Dorchester Premises Lease pertaining to environmental matters for which the Seller or the Existing Operator, as applicable, would be responsible pursuant to the CN Premises Lease, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the NFEC Lease and the Dorchester Premises Lease, as the case may be.

Each of the Seller and, to the Seller’s knowledge, the Existing Operator has obtained all material licences, approvals, permits and other authorizations required pursuant to Environmental Laws relating to its use of the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the Kent Street Parking Licensed Property, the NFEC Leased Real Property and the Dorchester Leased Real Property if the Seller is responsible for obtaining same under the CN Premises Lease, the CN Licence, the Parking Licence, the Kent

The Seller has obtained all material licences, approvals, permits and other authorizations required pursuant to Environmental Laws relating to its use of the Owned Real Property, and all such licences, approvals, permits and other authorizations are valid and in good standing, in all material respects.

Except as disclosed in the Environmental Reports and the Building Condition Reports, to the knowledge of OLG, the Improvements forming part of the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the NFEC Leased Real Property and the Dorchester Leased Real Property have not been insulated with any Hazardous Substance except in compliance in all material respects with Applicable Law.

Except as disclosed in the Environmental Reports and the Building Condition Reports, to the knowledge of the Seller, the Buildings forming part of the Owned Real Property have not been insulated with any Hazardous Substance except in compliance in all material respects with Applicable Law.

During the Post-Submission Period, to the knowledge of OLG, there has been no material adverse change to the environmental state and condition of the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the NFEC Leased Real Property or the Dorchester Leased Real Property from the environmental state and condition described in the Environmental Reports relating to the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the NFEC Leased Real Property or the Dorchester Leased Real Property, if any, or the Building Condition Reports and for which the Seller or the Existing Operator, as applicable, would be responsible pursuant to the CN Premises Lease, the CN Licence, the NFEC Lease or the Dorchester Premises Lease.

During the Post-Submission Period, to the knowledge of the Seller, there has been no material adverse change to the environmental state and condition of the Owned Real Property from the environmental state and condition described in the Environmental Reports relating to the Owned Real Property, if any, or the Building Condition Reports and for the Owned Real Property, if any.

Title to Purchased Assets. Except as set out in Part B of Schedule 4, OLG, OGAC and, to the Seller’s knowledge, the Existing Operator and the Existing General Partner are the sole legal and beneficial owners of all of the Purchased Assets, with good and valid title, free and clear of all Encumbrances except Permitted Encumbrances. As of the Original Execution Date, OLG is the sole legal and OGAC is the sole beneficial owner of the Owned Real Property, with good and valid title, free and clear of all

No Litigation. Except as set out in Schedule 8 and Schedule 13, there is no Claim against the Seller or, to the Seller’s knowledge, the Existing Operator or the Existing General Partner relating to or affecting the Purchased Assets or the Subject Gaming Sites (including any appeal or review thereof or any application for leave for appeal or review) in progress, pending or settled in the 24 month period prior to the Original Execution Date or, to the knowledge of the Seller, threatened against the Seller, the Existing Operator or the Existing General Partner and relating to or affecting the Purchased Assets or the Subject Gaming Sites and except as set out in Schedule 8 and Schedule 13, there is not presently outstanding against the Seller or, to the Seller’s knowledge, the Existing Operator or the Seller’s or, to the knowledge of OLG, the Existing Operator’s interest in the CN Leased Real Property, the CN Licensed Property, the Parking Licensed Property, the NFEC Leased Real Property, the Dorchester Leased Real Property or the Owned Real Property any material judgment, decree, injunction, rule or order of any Governmental Authority issued to or made against the Seller or, to the Seller’s knowledge, the Existing Operator or the Existing General Partner which affects the Purchased Assets or the Subject Gaming Sites, in all cases which would directly result in a material and adverse effect on the value or use of the Purchased Assets or the Subject Gaming Sites.

Material Contracts. Except as set out in Schedule 2, none of OLG, OGAC, or, to the knowledge of OLG, the Existing Operator or any of the other parties to any of the Material Contracts is in breach of its obligations thereunder in any material respect and no act or event has occurred which with notice or lapse of time or both, would constitute a material breach of any of the Material Contracts. The Seller has delivered or made available, or has caused to be delivered or made available, to the Service Provider true, correct and complete copies of the Material Contracts, including, all amendments, modifications, assignments, consents, notices, renewals and supplements thereto or otherwise in respect thereof, a complete list of which is set out in Schedule 2.

Taxes.

Each of OLG and OGAC is not a non-resident of Canada for the purposes of the Tax Act.

Each of OLG and OGAC is duly registered under Subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to HST and their registration numbers are:

OLG:                    [REDACTED]

OGAC:                 [REDACTED]

Financial Information.

The following Background Information made available to the Service Provider in the folder entitled “RFP 1617-009 – Niagara \ Background Information \ 3.0 Finance” (the “Finance Folder”) in the Data Room as at the Data Room Cutoff Date is true and correct in all material respects as at the respective dates thereof (subject to any updates to Schedule 8 as same may be updated from time to time pursuant to the terms thereof):

the documents posted under Section 3.04.01 “Audited Annual Financial Statements” in the Finance Folder; and

the documents posted under Section 3.05 “Asset Summary and Capital Expenditures” in the Finance Folder.

The Financial Statements have been prepared in accordance with GAAP consistently applied throughout the periods to which they relate and subject, in the case of any interim financial statements included in the Financial Statements, to usual year-end adjustments and the exclusion of footnotes. Subject to the qualifications above, the Financial Statements fairly present the revenues and results of operations of the Subject Gaming Sites for the periods indicated therein and are accurate and complete in all material respects and consistent in all material respects with the Seller’s financial records.

To the knowledge of OLG and subject to any updates to Schedule 8 (as same may be updated from time to time pursuant to the terms thereof), (1) the costs described or disclosed in the files made available to the Service Provider in the folder “RFP 1617-009 – Niagara\Background Information\3.0 Finance\3.04 Audited Annual Financial Statements” in the Data Room as of the Data Room Cutoff Date, and (2) the Disclosed AGCO Fees (as such term is defined in the Casino Operating and Services Agreement) described or disclosed in the files made available to the Service Provider in the folder “RFP 1617-009 - Niagara\Background Information\3.0 Finance\3.03 AGCO Fee Summary” in the Data Room as of the Data Room Cutoff Date, collectively constitute or describe all of the material costs that, in each case, are associated with the Seller’s operation of the Subject Gaming Sites in the Ordinary Course but, for greater certainty, do not include any costs that may arise in connection with the GMS Interface of the Site GMS to the Central GMS.

Employment Matters.

Schedule 8 (as same may be updated from time to time pursuant to the terms thereof) sets out in respect of each Employee:

his or her employee number;

his or her position or title;

his or her job band/grade;

his or her employment status (e.g., full time, part time, temporary, casual, seasonal, co-op student) and the terms of any applicable flexible work arrangement or secondment;

his or her location of work;

his or her current wages, base salary or hourly rate of pay;

his or her eligibility with respect to payment of overtime or lieu time;

whether he or she participates in an annual bonus program;

whether he or she participates in the Benefit Plans and/or the Pension Plan;

his or her annual vacation entitlement and number of vacation days accrued and unused;

his or her employment service date/seniority date recognized by the Employee Holdco for any employment-related purpose;

whether he or she is on a lay-off, on statutory or approved leave of absence or otherwise inactive (including any extended sick or disability leave or receiving benefits pursuant to workers’ compensation legislation) and if so, the type of such leave of absence, the date the Employee commenced the leave and, if known, his or her anticipated date of return;

whether he or she is party to a written employment agreement with the Employee Holdco;

whether his or her employment is governed by a Collective Agreement; and

on a date agreed to by the Transition Working Committee, his or her name.

Schedule 8 sets out all of the collective agreements (“Collective Agreements”) to which the Employee Holdco is a party or by which it is otherwise bound, either directly or indirectly by operation of Applicable Law, with respect to the Subject Gaming Sites. True, correct and complete copies of the Collective Agreements have been made available to the Service Provider in the folder

Except as disclosed in Schedule 8, with respect to the Subject Gaming Sites, no Union:

holds bargaining rights with respect to any Employees by way of certification, interim certification, voluntary recognition, designation or successor rights;

has, to OLG’s knowledge, applied to be certified as the bargaining agent of any Employees; or