Foreign Cultural Objects Immunity from Seizure Act Determination

Pursuant to delegated authority and in accordance with subsection 1(1) of the Foreign Cultural Objects Immunity from Seizure Act, R.S.O. 1990, c.F-23, the works of art or objects of cultural significance listed in Schedule “A” attached hereto, which works or objects are to be on temporary exhibit during the Masterpieces of Islamic Art from the Collection of the State Hermitage Museum exhibition at The Aga Khan Museum in Toronto, Ontario pursuant to loan agreements with the lenders listed in the attached Schedule “A”, are hereby determined to be of cultural significance and the temporary exhibition of these works or objects in Ontario is in the interest of the people of Ontario.

date: October 2, 2017

Determined by Kevin Finnerty, Assistant Deputy Minister Culture Division

Ministry of Tourism, Culture and Sport

Schedule “A”

List of Works

Masterpieces of Islamic Art from the Collection of the State Hermitage Museum

The Aga Khan Museum

  Lender Artist Object/Art Date Medium Dimension Inventory #
1 The State Hermitage Museum Unknown Ewer 8th-9th centuries Bronze (brass) Casting, engraving Height: 40.5 cm inv. no. hp-2316
2 The State Hermitage Museum Unknown Little Pitcher 10th century Silver, chasing, engraving, gilding Height: 17 cm inv. no. v3-796
3 The State Hermitage Museum Unknown Figure of a Rooster late 10th – early 11th century Bronze (brass); Casting, engraving Height: 36 cm inv. no. hp-2323
4 The State Hermitage Museum Unknown Bucket second half of the 12th century Bronze (brass); Casting, engraving, Copper inlaid Hight: 32.5 cm (with handle), Diameter: 20 cm inv. no. ca-13694
5 The State Hermitage Museum Unknown Tray second half of the 13th century Bronze (brass); Forging, engraving Silver inlaid Diameter: 31.8 cm inv. no. vc-514
6 The State Hermitage Museum Unknown Ewer second half of the 12th century Bronze (brass): Forging, engraving, Silver inlaid Height: 39 cm inv. no. hp-1436

(150-G456)

Amended and Restated Post–2011 Contract Relating to Casino Rama
Ontario Lottery and Gaming Corporation
- and -
Chippewas of Rama First Nation
- and -
Casino Rama Inc.

Dated: June 13, 2017

Table of Contents

Article 1
Interpretation

1.1 Definitions. 2

1.2 References. 6

1.3 Accounting Terms. 6

1.4 Schedules. 6

1.5 Number and Gender. 6

1.6 Rama Entities. 6

1.7 Business Days. 6

1.8 Calculation of Interest. 6

1.9 Statute References. 7

1.10 Headings. 7

1.11 Recitals and Schedules. 7

1.12 Interpretation. 7

Article 2
Extension of Arrangements Between OLG and the Rama Entities

2.1 New OLG Sublease and Extension of Railway Lease. 7

2.2 Rent-Free Operation of the Retail and Warehouse Space. 7

2.3 Delivery of Replacement Agreements. 7

2.4 Termination of Existing Agreements and the Permits and Release of Interests. 7

2.5 Registration of Lease Interests. 8

2.6 Material Agreements. 8

2.7 Purpose of this Agreement. 8

2.8 Rama Revenue Share. 8

2.9 Additional Revenues and Reimbursements. 9

Article 3
Intentionally Deleted

Article 4
Operation of Complex

4.1 OLG to Operate Complex. 9

4.2 Limitation on Authority. 9

4.3 Operating Policies. 9

4.4 Strategic Advisory Committee. 9

4.5 Business Hours. 10

4.6 Concessions. 10

4.7 No Rama Role in Operations During Applicable Period. 10

Article 5
Rights and Obligations of the Parties

5.1 Performance of Agreements. 10

5.2 Liens. 10

5.3 Consent, Approvals. 10

5.4 Amendment of Ground Lease. 10

5.5 No Conflicts. 10

5.6 Policing and Security. 10

5.7 Utilities, Access. 10

5.8 Cost of Services. 11

5.9 General. 11

5.10 Negative Covenant. 11

5.11 Access. 11

5.12 Rama Road. 11

Article 6
Records and Reports

6.1 Books and Records. 11

6.2 Rama Attractions and Amenities. 11

6.3 Quarterly Gross Revenues Report. 11

6.4 Quarterly Meeting. 12

6.5 Rama Review of Quarterly Gross Revenues Report. 12

6.6 Annual Financial Statements for Complex. 12

Article 7
Intentionally Deleted

Article 8
Future Development

8.1 Planning for Future Developments on Complex Lands. 12

8.2 Future Developments on the Complex Lands. 12

8.3 Future Developments on Lands that are not Complex Lands. 12

Article 9
Water Supply and Treatment Agreement

9.1 Water Supply and Treatment Agreement. 12

Article 10
First Opportunity for Role of Development and Construction Manager

10.1 Rama’s First Opportunity. 13

Article 11
Financing of Future Developments

11.1 Financing. 13

Article 12
Revenue Streams

12.1 Ability of Rama Corporations to Assign Revenue Streams. 14

Article 13
Representations and Warranties

13.1 Representations and Warranties of OLG. 14

13.2 Representations and Warranties of Rama and Rama Corporations. 14

13.3 Survival of Representations and Warranties. 15

Article 14
Intellectual Property

14.1 Trade-Marks. 15

14.2 Operator Trade-Marks. 16

14.3 Intellectual Property. 16

Article 15
Intentionally Deleted

Article 16
Applicable Period and Termination

16.1 Applicable Period. 16

16.2 Extension of Applicable Period. 16

16.3 Termination by OLG. 16

16.4 Termination by Rama. 17

16.5 Curing Defaults. 17

16.6 Payments on Termination. 17

16.7 Equitable Remedies. 18

Article 17
Indemnification

17.1 Indemnity by OLG. 18

17.2 Indemnity by Rama Entities. 18

17.3 Timely Notice. 18

17.4 Third Party Claims. 18

17.5 Settlement of Third Party Claims. 18

17.6 Co-operation. 19

17.7 Miscellaneous Matters Regarding Third Party Claims. 19

17.8 No Subrogation. 19

17.9 Insured Claims. 19

Article 18
Title Matters

18.1 Title to Complex and the Improvements. 19

18.2 Access to Complex. 19

Article 19
Insurance

19.1 Insurance. 19

Article 20
Destruction/expropriation

20.1 Destruction. 20

20.2 Expropriation. 20

Article 21
Enforcement Provisions

21.1 Notice of Dispute. 20

21.2 Arbitration. 20

Article 22
Assignment of Agreement

22.1 Transfer/Assignment: 20

22.2 Successors and Assigns. 21

22.3 Remedies. 21

Article 23
General Provisions

23.1 Disclosure. 21

23.2 Notices. 21

23.3 No Partnership or Joint Venture. 21

23.4 Modification and Changes. 22

23.5 Enforceability. 22

23.6 Time of Essence; Extensions or Abridgements of Time. 22

23.7 Governing Law. 22

23.8 Submission to Jurisdiction: Waivers. 22

23.9 Survival of Covenants. 22

23.10 Third Parties. 22

23.11 Waivers. 22

23.12 Force Majeure. 22

23.13 Approvals. 22

23.14 Counterparts and Electronic Transmission. 23

23.15 Inconsistency. 23

Amended and Restated Post-2011 Contract Relating to Casino Rama

memorandum of agreement made the 13th day of June, 2017 (the “Effective Date”).

Between:

ontario lottery and gaming corporation, a Crown agency established pursuant to the Ontario Lottery and Gaming Corporation Act, 1999,

of the first part,

- and -

chippewas of rama first nation, also known as the chippewas of mnjikaning first nation, as represented by the chief, of the second part,

- and -

casino rama Inc., a corporation incorporated pursuant to the laws of the Province of Ontario, as bare trustee for the chippewas of rama first nation,

of the third part.

whereas the capitalized terms used herein have the respective meanings ascribed thereto in Section 1.1 unless the context otherwise requires;

and whereas on March 18, 1996, OLG (then its statutory predecessor, Ontario Casino Corporation), Rama, CHC and several other parties entered into the Development and Operating Agreement, which Development and Operating Agreement provided for the design, development and construction of the Project by Rama with advice and financial assistance from OLG and the operation of the Complex by CHC Canada, a Canadian subsidiary of CHC;

and whereas CHC Canada, by a Consent and Acknowledgement from OLG dated March 26, 2001, became controlled by Penn National Gaming Inc.;

and whereas in anticipation of the Development and Operating Agreement expiring on July 31, 2011, the Parties, Rama Access Inc. and 455457 Ontario Inc. entered into the Original Post-2011 Contract on July 17, 2009 setting out the basis of the relationship between Rama and OLG respecting the Complex commencing from and after August 1, 2011;

and whereas the Development and Operating Agreement terminated in accordance with its terms on July 31, 2011 and the Original Post-2011 Contract became effective on August 1, 2011;

and whereas the Parties, Rama Access Inc. and 455457 Ontario Inc. entered into the First Amending Agreement to the Original Post-2011 Contract on June 25, 2014 (the “First Amendment”);

and whereas Rama owns in fee simple certain lands that are used for access between parking lots that form part of the Complex, and Rama leases such lands to OLG pursuant to the Railway Lands Lease;

and whereas the Parties, Rama Access Inc. and 455457 Ontario Inc. entered into letter agreements in respect of the Original Post-2011 Contract on December 17, 2015, June 16, 2016, September 9, 2016, November 1, 2016, December 16, 2016, February 9, 2017, February 27, 2017, April 18, 2017, May 8, 2017 May 18, 2017 and May 29, 2017 (collectively, the “Letter Agreements” and, together with the Original Post-2011 Contract, as amended by the First Amendment, collectively, the “Post-2011 Contract”);

and whereas pursuant to the terms of the Post-2011 Contract, Rama has amended the designation by way of surrender dated July 8, 1974 registered in the reserve lands register for the Rama Indian Reserve no. 32 (the “Register”) as number 38182 and the designation by way of surrender dated November 12, 1980 registered in the Register as number 77186, which amended designation was registered in the Register as number 6093056 on June 24, 2016 in compliance with the Indian Act (Canada) in respect of some of the lands that are the subject of such existing designations and additional lands subject to the Permits (the “Replacement Land Designation”);

and whereas by virtue of the Replacement Land Designation, the Ground Lease and the Releases executed by the relevant parties contemporaneously with the execution of this Agreement, the land interests that were previously held by Rama Access Inc. and 455457 Ontario Inc. are vested in Casino Rama Inc.;

and whereas OLG is undergoing a process of modernization with respect to, inter alia, its land based gaming operations in Ontario (“Modernization”), and as part of Modernization, OLG will be retaining private sector service providers to provide day-to-day operational services at its gaming sites including the Complex, subject to OLG’s statutory mandate to conduct and manage gaming in Ontario;

and whereas in connection with the Replacement Land Designation and Modernization as it relates to the Complex, the Parties have agreed to enter into this Agreement;

now therefore, in consideration of the respective covenants, agreements, representations, warranties and indemnities herein contained and other good and valuable consideration (the receipt and sufficiency of which are acknowledged by each Party hereto), the Parties agree as follows:

Article 1
Interpretation

1.1 Definitions

As used herein, including the recitals and Schedules hereto, the following terms shall have the respective meanings indicated below:

“Additional Parking Lands Permits”
– collectively, (a) Permit 283929 made as of August 1, 2000 between HMQC, as permittor, and Casino Rama Inc., as permittee, respecting Lot 122 CLSR Plan 83864; and (b) Permit 283932 made as of August 1, 2000 between HMQC, as permittor, and Casino Rama Inc., as permittee, respecting Lot 107 CLSR Plan 80801, Lot 121 CLSR Plan 83863 and Lot 99-1 CLSR Plan 83864.
“Administration Building Lease”
– the Commercial Net Lease (Administration Building) between 455457 Ontario Inc., as landlord, and OLG, as lessee, dated August 1, 2011 relating to space in a building located on Lot 31-8, CLSR Plan 79146, as amended, modified, supplemented, replaced or restated from time to time.
“Affiliate”
– any Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agreement”
– this Amended and Restated Post-2011 Contract, as further amended, modified or supplemented from time to time.
“Applicable Agreements”
– this Agreement, the New OLG Sublease and the First Amendment to the Railway Lands Lease.
“Applicable Law”
– all public laws, statutes, ordinances, codes, acts, orders, by-laws, rules, regulations, Governmental Consents, permits, binding policies and guidelines, and requirements of all Governmental Authorities, which now or hereafter may be lawfully applicable to and enforceable against the Complex or any part thereof, including without limitation those relating to employment, zoning, building, life/safety, occupancy or possession of land, environment and health.
“Applicable Period”
– the period from and including August 1, 2011 until and including the date of termination of this Agreement (which will be July 31, 2031, subject to any extensions of the term of this Agreement made in accordance with Section 16.2 or to any early termination of this Agreement in accordance with the provisions hereof).
“Area Development Plan”
– the meaning ascribed thereto in the Ground Lease.
“Business Day”
– any day which is not a Saturday, Sunday or day observed as a holiday under the laws of the Province of Ontario or the federal laws of Canada applicable therein.
“Capital Renewals”
– additions or improvements to the Complex, including the acquisition, by way of purchase, lease or otherwise, on behalf of OLG of FF&E, by way of replacement, addition, construction or repair of property which under generally accepted accounting principles would be classified as a capital asset and, for greater certainty, including the lease of such items where the payments under such lease would constitute a capital lease under generally accepted accounting principles but excluding items with a cost of $500 or less.
“Capital Renewals Reserve”
– any reserve established by OLG during the Applicable Period for Capital Renewals.
“Casino”
– those areas in the Complex which are intended to be used or are used for the purpose of playing or operating a Game of Chance together with all support facilities relating to gaming.
“Casino Rama Financial Statements”
– the meaning ascribed thereto in Section 6.6 of this Agreement.
“Casino Rama Fire Protection Agreement”
– the Casino Rama Fire Protection Agreement dated August 1, 2011 among Rama, OLG and CHC Canada pursuant to which Rama provides fire protection services to the Complex, as amended, modified, supplemented or restated from time to time.
“Casino Rama Police Services Agreement”
– the Casino Rama Police Service Agreement dated August 1, 2011 among Rama, OLG and CHC Canada pursuant to which Rama provides police services to the Complex, as amended, modified, supplemented or restated from time to time.
“Casino Rama Revenue Agreement”
– the Casino Rama Revenue Agreement dated June 9, 2000 among the Province, OLG, OFNLP and Mnjikaning First Nation Limited Partnership, as amended, modified, supplemented or restated from time to time.
“CHC”
– CHC Holdings, Inc., being the successor corporation to the gaming interests and obligations of CHC International, Inc.
“CHC Canada”
– CHC Casinos Canada Limited, its successors and permitted assigns.
“CLSR”
– Canada Lands Survey Records.
“Community Centre”
– the facilities consisting of an arena, basketball court, weight room and youth facilities in a structure of approximately 60,000 square feet located on the Reserve but not on the Complex Lands.
“Community Facilities”
– the Community Centre and the Seniors Centre.
“Complex”
– the Complex Lands and all Improvements thereon, including the structures and improvements constructed on the lands described in the New OLG Sublease and Railway Lands Lease and any Future Developments and together with all related parking improvements, food and beverage businesses, shuttle and bus services, parking businesses, amenities and any other businesses that are integrated, physically or operationally, with the Casino regardless of whether such related Improvements are located on the Complex Lands but excluding, for greater certainty, the Community Facilities, the Off-Site Infrastructure Facilities.
“Complex Lands”
– all lands described in Schedule 1 hereto as well as any lands leased by OLG in respect of Future Developments.
“Complimentaries”
– goods and services that are accounted for as revenue and included in Gross Revenues (as set out in the Casino Rama Financial Statements), which OLG gives to customers and potential customers as an inducement to play Games of Chance at the Complex.
“Control” (including the terms “Controlling”, “Controlled by” and “under common Control with”)
– the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.
“CPI”
– the Consumer Price Index prepared by Statistics Canada (base year 2002 = 100) or its successor or successors for Ontario (all items) or any successor index or compilation prepared by Statistics Canada, its successor or successors; in the event that there ceases to be such an index or compilation, a similar measure selected by OLG and approved by Rama, in writing.
“CPI-Adjusted Rate”
–
  1. the annual rent payable by OLG under any lease for rental of lands or buildings forming part of the Complex (including Future Developments) and the total annual amount of any payments required under Sections 2.9(a) and 2.9(b) of this Agreement, shall be adjusted for each twelve-month period commencing April 1, 2018, such annual rent and payments shall be subject to an upward adjustment only by the number obtained by multiplying the annual rent or payment, as applicable, for the previous period by a fraction the numerator of which is the CPI for the month of January preceding the period for which the CPI-Adjusted Rate is being determined and the denominator of which is the CPI for the month of January preceding the commencement of the previous twelve month period; and
  2. subject to the provisions of Section 8.3, with respect to any lands located on the Reserve in the vicinity of the Complex, that become part of the Complex as part of any Future Development, shall be leased at an annual rental rate equal to the greater of: (A) $137,821 per acre per year, which annual amount shall be subject to an upward adjustment only for each twelve-month period commencing April 1, 2018 to be the number obtained by multiplying the annual amount for the previous twelve month period by a fraction the numerator of which is the CPI for the month of January preceding the period for which the CPI-Adjusted Rate is being determined and the denominator of which is the CPI for the month of January preceding the commencement of the previous twelve month period and (B) the Fair Market Rent for such lands.
“Credit Agreement”
– any credit agreement entered into by Rama or any Affiliate thereof and related to the Complex which has been approved by each of Rama and OLG.
“Debt”
– all indebtedness other than any indebtedness for trade payables, accounts payable, accruals or liabilities incurred or arising in the ordinary course of business but including all indebtedness for borrowed money.
“Development/Construction Management Terms”
– the meaning ascribed thereto in Section 10.1 of this Agreement.
“Development and Operating Agreement”
– the Agreement among OLG (then its statutory predecessor, Ontario Casino Corporation), Rama, Casino Rama Inc., Casino Rama Holdings Inc., Casino Rama Services Inc., Rama Access Inc., Rama Holdings Inc., Rama Parking Inc., CHC International, Inc. (CHC being the successor corporation to the gaming interests and obligations of CHC International, Inc.) and CHC Canada dated March 18, 1996, as amended by agreements dated as of April 15, 1996 and June 12, 2000, as amended, modified, supplemented or restated from time to time.
“Dispute”
– the meaning ascribed thereto in Section 21.1 of this Agreement.
“Dollars” or “$”
– unless otherwise noted, Canadian Dollars.
“Effective Date”
– the meaning ascribed thereto above the recitals of this Agreement.
“Election Date”
– the meaning ascribed thereto in Section 10.1 of this Agreement.
“Employee Parking Lot Licence”
– the Employee Parking Lot Licence agreement dated May 31, 2012 between Casino Rama Inc., as licensor, and OLG, as licensee, as amended, modified, supplemented or restated from time to time.
“Employee Parking Lot Permit”
– Permit 6064998 made as of May 1, 2012 between HMQC as permittor, and Casino Rama Inc., as permittee, respecting Lot 32-20 CLSR 100258.
“Enabling Legislation”
– the Ontario Lottery and Gaming Corporation Act, 1999 and the regulations made thereunder, as the same may be modified, amended or replaced from time to time.
“Engagement Notice”
– the meaning ascribed thereto in Section 10.1 of this Agreement.
“Entertainment Centre”
– the multi-purpose entertainment facility located on the Complex Lands.
“Environmental Claim”
– with respect to any Person, any written notice, claim, demand or other written communication alleging or asserting liability for investigatory costs, cleanup costs, Governmental Authority response costs, damages to natural resources or other property, personal injuries, fines or penalties arising out of, based on or resulting from (i) the presence, or release into the environment, of any hazardous material, or (ii) any violation, or alleged violation, of any lawfully applicable Environmental Law.
“Environmental Law”
– any law or order relating to the regulation or protection of human health or the environment, including without limitation, laws or orders relating to emissions, discharges, releases or threatened releases of pollutants, contaminants or toxic or hazardous substances or wastes into the environment or otherwise relating to the treatment, storage, disposal, transport or handling of pollutants, contaminants or toxic or hazardous substances or wastes.
“Event of Insolvency”
– with respect to a Person the occurrence of any one of the following events:
  1. if such Person shall admit its insolvency or make a general assignment for the benefit of creditors or any proceeding is instituted by it seeking relief or giving notice of its intention to seek relief on its behalf as debtor, or to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding-up, re-organization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or re-organization or relief of debtors, or seeking appointment of a receiver, receiver and manager, trustee, custodian or other similar official for it or any substantial part of its property and assets or it takes any action to authorize any of the foregoing; or
  2. any proceeding is instituted against any such Person seeking to have an order for relief entered against it as a debtor or to adjudicate it a bankrupt or insolvent or seeking liquidation, winding-up, re-organization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or re-organization or relief of debtors, or seeking appointment of a receiver, receiver and manager, trustee, custodian or similar official for it or any substantial part of its property and assets and such proceedings are not or are no longer being contested in good faith by appropriate proceedings but in no event longer than 90 days from the institution of such first-mentioned proceedings.
“Existing Complex Sublease”
– the Amended and Restated Complex Sublease dated July 17, 2009 between Casino Rama Inc., as sublandlord, and OLG, as subtenant, as amended, modified, supplemented, replaced or restated from time to time.
“Expansion Project Development Agreement”
– the agreement entered into between OLG (then its statutory predecessor, Ontario Casino Corporation), Rama, Casino Rama Inc., Rama Access Inc., CHC and CHC Canada dated June 12, 2000, as amended, restated, modified or supplemented from time to time.
“Expert”
– the meaning ascribed thereto in Section 21.1 of this Agreement.
“Fair Market Rent”
– the meaning ascribed thereto in the Ground Lease.
“First Amendment”
– the meaning ascribed thereto in the recitals of this Agreement.
“First Amendment to the Railway Lands Lease”
– the meaning ascribed thereto in Section 2.1(a) of this Agreement.
“FF&E”
– all furniture, furnishings, equipment (including all equipment relating to Games of Chance), trade fixtures, apparatus and other personal property used in, held in storage for use in, or required in connection with the operation of the Complex but does not include furniture, furnishings and equipment, trade fixtures and other personal property owned by a Rama Entity and located in premises subject to the Retail Stores and Warehouse Licence or the Tim Hortons Licence or stored in the Warehouse (but not in the space leased to the Operator or OLG pursuant to the Warehouse Lease).
“Force Majeure”
– any bona fide delay or state of affairs beyond the control of a Party hereto (other than as a result of financial incapacity of such Party or any Affiliate of such Party) which shall cause or contribute towards any such Party being unable to fulfil or being delayed or restricted in the fulfilment of such Party’s obligations, including any such delay or state of affairs attributable in whole or in part to:
  1. the non-supply, non-provision or non-delivery of any service or utility or the doing of any work or the making of any repairs;
  2. inability to obtain, or shortages in, any required material, goods, equipment, service, utility or labour;
  3. any Applicable Law or by reason of its inability to procure any Governmental Consent (excluding, in respect of Rama, laws, customs or consents of Rama other than those consents which in accordance with Applicable Law require the approval of the members of Rama);
  4. any strikes, lockouts, slowdowns or other combined action of workers or labour disputes;
  5. litigation or threatened litigation;
  6. accidents, acts of God, insurrection, war, riots or civil commotions;
  7. any Person (other than a Party hereto) failing to provide any consent or approval for which a request is made; or
  8. another Party failing to perform its obligations under this Agreement, the Material Agreements or any other agreement relating to the Complex to which any such other Party hereto is a party.
“Future Developments”
– the meaning ascribed thereto in Section 8.1 of this Agreement.
“Game of Chance”
– a Lottery Scheme that may be conducted and managed by a government of a province under the authority of paragraph 207(1)(a) of the Criminal Code (Canada).
“Gaming Control Commission”
– the Gaming Control Commission established under the Regulatory Legislation and any successor or replacement thereto.
“G.C.C. Levy”
– the payments to be made under Subsection 14(4)4 of the Enabling Legislation to the general fund of the Gaming Control Commission.
“Governmental Authority”
– any government, parliament, legislature, regulatory authority, council, agency, commission, board, court or instrumentality of Canada, the Province or Rama having jurisdiction over the Complex.
“Governmental Consent”
– any licence, right, permit, franchise, privilege, registration, direction, decree, consent, order, permission, approval or authority to be issued or provided by a Governmental Authority, including binding directives issued by the Gaming Control Commission.
“Gross Revenues”
– for any period, the aggregate of all revenues arising from the operation and use of the Complex or any part thereof (and any investment or interest income arising out of cash management), as determined on an accrual basis in accordance with generally accepted accounting principles consistently applied, and for greater certainty, after payment of winnings to players of Games of Chance:
  1. without deduction on account of:
    1. the Win Contribution;
    2. the G.C.C. Levy; or
    3. amounts representing HST on goods or services that are reasonably allocable to the conduct of Games of Chance;
  2. but excluding and deducting:
    1. any amounts representing HST on goods or services other than those reasonably allocable to the conduct of Games of Chance;
    2. any amounts representing investment or interest income in respect of the Operating Reserve or the Capital Renewals Reserve;
    3. any amounts representing Complimentaries; and
    4. any amounts received by any sub-sublessees, licensees or other users of space within the Complex operating under sub-subleases, licences or other occupancy agreements with OLG or with the Operator on its behalf (but including any rent, licencing fees and other compensation paid by any such sub-sublessees, licensees or other users of space).
“Ground Lease”
– the Commercial Lease dated June 13, 2017, between HMQC as represented by the Minister of Indian Affairs and Northern Development, as lessor, and Casino Rama Inc., as lessee, for the Complex Lands.
“HMQC”
– Her Majesty the Queen in right of Canada.
“HST”
– the tax imposed under Part IX of the Excise Tax Act (Canada) and the Retail Sales Tax Act (Ontario), or any tax replacing such imposition, including any interest thereon and penalties relating thereto.
“Hotel”
– the hotel and related patron facilities located on the Complex Lands.
“Improvements”
– all buildings, structures, works, facilities, services, landscaping, parking and other improvements which would constitute real estate made by any Person and which are at any time and from time to time situate on, under or above the Complex Lands excluding, for greater certainty, FF&E.
“Indemnified Party”
– the meaning ascribed thereto in Section 17.3 of this Agreement.
“Indemnifying Party”
– the meaning ascribed thereto in Section 17.3 of this Agreement.
“Insurance”
– the coverage to be provided in accordance with Schedule 3.
“Intellectual Property”
– all trade-names and brand names, trade-marks, trade-mark registrations and applications, works, copyrights, copyright registrations and applications, inventions, patents and patent applications, industrial designs, industrial design registrations and applications, trade secrets, know-how, policies (including the Operating Policies), equipment and parts lists and descriptions, instruction manuals, inventions, inventors’ notes, research data, unpatented blue prints, drawings and designs, formulae, processes, technology, software and all source and object code versions thereof and all related documentation, all data bases, including the customer data base, flow charts, service/operator manuals, internal control manuals and any enhancements, modifications or substitutions thereof and other intellectual property, together with all rights under licences, technology transfer agreements and other agreements or licences or instruments relating to any of the foregoing.
“Land Use By-law”
– the meaning ascribed thereto in Section 5.5 of this Agreement.
“Lease Expert”
– the meaning ascribed thereto in Section 16.6 of this Agreement.
“Leasehold Mortgage”
– a mortgage granted by Casino Rama Inc. in favour of a Lender in respect of the Ground Lease as contemplated by a Credit Agreement.
“Lender”
– any financial institution, any lending participants or assignees under a Credit Agreement and any other replacement financial institution, in each case, acceptable to Rama and OLG.
“Letter Agreements”
– the meaning ascribed thereto in the recitals of this Agreement.
“Licence”
– the meaning ascribed thereto in Section 18.2 of this Agreement.
“Licensees”
– the meaning ascribed thereto in Section 18.2 of this Agreement.
“Lien”
– an encumbrance, lien, charge, pledge, mortgage or security interest of any nature whatsoever.
“Losses”
– in respect of any matter, the amount of losses incurred by a Party respecting all claims, actions, demands, proceedings, suits, losses, obligations, damages, fines, penalties, liabilities, deficiencies, costs and expenses (including all reasonable legal and all other professional and consultant’s fees and disbursements, interest, penalties and amounts paid in settlement) arising from or in respect of such matter.
“Lottery Scheme”
– the meaning ascribed thereto in the Criminal Code (Canada).
“Material Agreements”
– the agreements listed in Section 2.6 of this Agreement together with any other agreement designated by the Parties as a material agreement.
“Mediation Period”
– the meaning ascribed thereto in Section 21.1 of this Agreement.
“Modernization”
– the meaning ascribed thereto in the recitals of this Agreement.
“Negotiation Period”
– the meaning ascribed thereto in Section 10.1 of this Agreement.
“New OLG Sublease”
– the meaning ascribed thereto in Section 2.1 of this Agreement.
“Notice of Election”
– the meaning ascribed thereto in Section 10.1 of this Agreement.
“Off-Site Infrastructure Facilities”
– collectively all buildings, structures, works, facilities, services, landscaping, parking and other improvements which would constitute real estate that are associated directly or indirectly with the Complex which are not situated on the Complex Lands (other than the Community Facilities), including: a water treatment plant located on the lake front and new water lines; a sewage treatment plant and new sewage lines located east of the Complex Lands; a storm drainage system and a retention pond; off-site parking; and all road and related improvements off-site as identified in Schedule 4 attached hereto.
“OFNLP”
– the Ontario First Nations Limited Partnership.
“OLG”
– Ontario Lottery and Gaming Corporation, the Crown agency established pursuant to the Enabling Legislation and its successors and permitted assigns, and the statutory successor to Ontario Casino Corporation.
“Operating Policies”
– a collective term for the standards, policies and procedures to be adopted by OLG, in its sole discretion, but subject to the provisions of Sections 4.3 and 4.5, during the Applicable Period in connection with the operation of the Complex, including hiring and training policies and procedures, human resource programs (including programs for the optimization of hiring and promotion of members of Rama), marketing programs, insurance and bonding, credit and collection, security (both physical and gaming), cash management and investment policies and purchasing and inventory policies and procedures.
“Operating Reserve”
– any reserve established by OLG during the Applicable Period which has the purpose to have sufficient funds on reserve to cover the expenses and liabilities of OLG in connection with this Agreement and any Material Agreement in the event that Gross Revenues actually received will be insufficient to pay or reserve for such expenses and liabilities to ensure the short and long term continuous and orderly operation of the Complex.
“Operating Year”
– an Operating Year shall be each period from April 1 to March 31, inclusive, to the end of the Applicable Period except that the first Operating Year shall be the period beginning on August 1, 2011 and ending on March 31, 2012 and, if this Agreement shall be terminated effective on a date other than March 31 in any year, then the period from the April 1 immediately preceding such effective date of termination to such effective date of termination shall be treated as an Operating Year.
“Operator”
– the entity, if any, appointed from time to time by OLG to operate the Complex, being CHC Canada as at the date hereof.
“Original Permits”
– collectively, (a) Permit 241187 made as of May 6, 1996 between HMQC as permittor and Weat Access Inc. (now Rama Access Inc.) as permittee respecting Lot 101 CLSR Plan 78406; and (b) Permit 241188 made as of May 6, 1996 between HMQC as permittor and Weat Access Inc. (now Rama Access Inc.) as permittee respecting Lots 103 and 104 CLSR Plan 78406.
“Original Post-2011 Contract”
– the Post-2011 Contract Relating to Casino Rama for the 20-year Period Commencing August 1, 2011 and Relating to Possible Future Development dated July 17, 2009 between OLG, Rama, Casino Rama Inc., Rama Access Inc. and 455457 Ontario Inc.
“Parties”
– the parties to this Agreement.
“Permits”
– the Original Permits, the Additional Parking Lands Permits and the Employee Parking Lot Permit.
“Permitted Debt”
– any Debt of:
  1. the Operator incurred from time to time in order to finance or refinance construction of any Improvements on the Complex Lands;
  2. the Operator incurred from time to time in respect of Modernization at the Complex, including without limitation, acquisition and/or working capital financing or refinancing related to an Operator’s interest in the Complex or the financing or refinancing of any Future Development; or
  3. any Person other than the Operator approved in writing by OLG and Rama in respect of either (a) or (b) above,
in each case, together with, in relation to any Improvements on the Complex Lands, Debt relating to purchase money security interests and capital lease obligations.
“Permitted Liens”
– with respect to the Complex:
  1. a Leasehold Mortgage and any other charge or security interest required by any Credit Agreements related to the Complex which have been approved by each of Rama and OLG;
  2. Liens for taxes, assessments and governmental charges not yet due or if due being contested in good faith and diligently by appropriate proceedings (and for the payment of which adequate provision has been made);
  3. any right reserved to or vested in any Governmental Authority pursuant to the Ground Lease;
  4. security given to a public utility or Governmental Authority in connection with the operations of the Complex, in the ordinary course of business;
  5. any Lien resulting from any judgment rendered, or claim filed, against any Party which such Party is contesting in good faith (and for the payment of which adequate provision has been made);
  6. undetermined or inchoate Liens, charges and privileges incidental to current construction or operations and statutory liens, charges, adverse claims of any nature whatsoever claimed or held by any Governmental Authority that have not at the time been filed or registered against the title to the asset or that relate to obligations not due or delinquent;
  7. Liens, charges and privileges relating to current construction or operations being contested in good faith and diligently by appropriate proceedings (and for the payment of which adequate provision has been made);
  8. assignments of insurance pursuant to the terms of the Ground Lease or the New OLG Sublease and Liens reserved in such leases for rent or for compliance with the terms of such lease;
  9. any Lien affecting any particular asset (and only such asset) and created to secure payment of all of the purchase price of only such asset;
  10. concessions, leases or licences or other arrangements relating to space in the Complex entered into in accordance with the terms hereof or the terms of the Material Contracts;
  11. Liens in respect of Permitted Debt; and
  12. such other Liens as Rama and OLG may jointly approve in writing from time to time.
“Person” or “person”
– includes an individual, corporation, partnership, firm, trust, joint venture, association, unincorporated organization, body corporate, personal representative, co-operative association or Governmental Authority.
“Post-2011 Contract”
– the meaning ascribed thereto in the recitals of this Agreement.
“Project”
– the Complex, together with the Off-Site Infrastructure Facilities and the Community Facilities.
“Province”
– Her Majesty the Queen in Right of Ontario.
“Qualified Future Development Project”
– a proposed project that either OLG or an Operator wish to proceed with during the Applicable Period and that satisfies all of the following criteria:
  1. the total hard costs to construct such project are estimated by OLG or the Operator to be greater than $1,000,000;
  2. the proposed project is to be located on a portion of the Complex Lands;
  3. the proposed project is the construction of new Improvements; and
  4. for greater certainty, the proposed project is not the repair, refurbishment, reconstruction or replacement of the existing Improvements listed in Schedule 1 hereto, including, without limitation, the repair, refurbishment, reconstruction or replacement of such existing Improvements as a result of damage or destruction.
“Quarterly Gross Revenues Report”
– the meaning ascribed thereto in Section 6.3 of this Agreement.
“Railway Lands Lease”
– the Amended and Restated Railway Lease dated August 1, 2011 between Rama, as landlord, and OLG, as tenant, with respect to Part 1 on Plan 51R-29344, as amended by the First Amendment to Railway Lands Lease, and as further amended, supplemented, restated, replaced or modified from time to time.
“Rama”
– the Chippewas of Mnjikaning First Nation, also known as the Chippewas of Rama First Nation.
“Rama Corporations”
– Casino Rama Inc., 1176290 Ontario Limited operating as Biindigen Gift Shop and any other corporation owned or controlled by Rama with an interest of any kind in or pertaining to the Project (excluding, for greater certainty, Rambots Construction Corporation and its successors and the corporations named in Section 13.2(l)).
“Rama Entities”
– collectively, Rama and the Rama Corporations.
“Rama Fee”
– the amount to be paid to Rama during the Applicable Period, as set out in Subsection 2.8(a) of this Agreement.
“Rama Road”
– the major thoroughfare from Highway 12 to Highway 169 on the east side of Lake Couchiching, a portion of which runs across the Reserve and which has been maintained as a public road.
“Real Estate Expert”
– the meaning ascribed thereto in Subsection 20.2(a) of this Agreement.
“Register”
– the meaning ascribed thereto in the recitals of this Agreement;.
“Regulatory Legislation”
– the Gaming Control Act, 1992 (Ontario) and the Alcohol and Gaming Regulation and Public Protection Act, 1996 (Ontario), and all regulations made thereunder and all mandatory directives and orders made and/or issues thereunder or pursuant thereto, all as amended from time to time.
“Replacement Land Designation”
– the meaning ascribed thereto in the recitals of this Agreement.
“Reserve”
– the lands in the Province of Ontario known as Rama Indian Reserve no. 32, which have been set apart for the use and benefit of the Chippewas of Rama Band of Indians in accordance with the Indian Act (Canada).
“Retail Stores Licence”
– the existing Casino Rama Retail Stores Licence dated July 17, 2009 between OLG, as licensor, 1176290 Ontario Limited (o/a Biindigen Gift Shop) and Rama, as amended, modified, supplemented, restated or replaced from time to time.
“Retail Stores and Warehouse Licence”
– the meaning ascribed thereto in Section 2.2 of this Agreement.
“Seniors Centre”
– a 16 unit, 32 bed facility located on the Reserve.
“Specific Local Services”
– the meaning ascribed thereto in Subsection 2.8(b) of this Agreement.
“Strategic Advisory Committee”
– a committee comprised of one representative of each of OLG, Rama and the Operator (if there is one).
“Strategic Advisory Committee Representative”
– the meaning ascribed thereto in Section 4.4 of this Agreement.
“Third Party Claim”
– any third party claim or proceeding against a Party hereto.
“Warehouse ”
– the Improvements on the lands described as Lot 106, CLSR Plan 78406.
“Warehouse Lease”
– the Commercial Net Lease (Warehouse Building) dated August 1, 2011 between 455457 Ontario Inc., as landlord, and OLG, as tenant, as amended, modified, supplemented, restated or replaced from time to time.
“Win Contribution”
– the payments to be made under Subsection 14(4)2 of the Enabling Legislation to the Consolidated Revenue Fund of the Province of Ontario.

1.2 References

Except as otherwise specifically indicated, all references to Article, Section and Subsection numbers refer to Articles, Sections and Subsections of this Agreement, and all references to Schedules refer to the Schedules attached hereto. The words “herein”, “hereof”, “hereunder”, “hereinafter” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or Subsection hereof.

1.3 Accounting Terms

Accounting terms used herein, unless otherwise defined, shall have the meaning accorded thereto by Canadian generally accepted accounting principles.

1.4 Schedules

The Schedules attached to this Agreement and listed below shall have the same force and effect as if the information contained therein were contained in the body of this Agreement:

Schedule 1 - Description of Complex Lands

Schedule 2 - Intentionally Deleted

Schedule 3 - Insurance

Schedule 4 - Off-site Road and Related Improvements

Schedule 5 - Intentionally Deleted

Schedule 6 - Form of First Amendment to the Railway Lands Lease

Schedule 7 - Form of New OLG Sublease

Schedule 8 - Form of Retail Stores and Warehouse Licence

Schedule 9 - Form of Tim Hortons Licence

Schedule 10 - Intentionally Deleted

Schedule 11 - Intentionally Deleted

Schedule 12 - Intentionally Deleted

Schedule 13 - Trade-Marks

Schedule 14 - Intentionally Deleted

Schedule 15 - Intentionally Deleted

Schedule 16 - Intentionally Deleted

Schedule 17 - Intentionally Deleted

Schedule 18 - Intentionally Deleted

1.5 Number and Gender

Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders.

1.6 Rama Entities

Where a representative is to be appointed on behalf of two or more of the Rama Entities, the approval of two or more of the Rama Entities is required or any other action of two or more of the Rama Entities is contemplated, all of the Rama Entities shall be treated as a single entity for all such purposes and will act collectively and with one voice through Casino Rama Inc.

1.7 Business Days

If any payment is required to be made or other action is required to be taken pursuant to this Agreement on a day which is not a Business Day, then such payment or action shall be made or taken on the next Business Day.

1.8 Calculation of Interest

In calculating interest payable under this Agreement for any period of time, the first day of such period shall be included and the last day of such period shall be excluded.

1.9 Statute References

Any reference in this Agreement to any statute or any section thereof shall, unless otherwise expressly stated, be deemed to be a reference to such statute or section as amended, restated or re-enacted from time to time.

1.10 Headings

The table of contents hereto and the headings of any Article, Section or part thereof are inserted for purposes of convenience only and do not form part hereof.

1.11 Recitals and Schedules

The recitals and Schedules hereto form part of this Agreement.

1.12 Interpretation

The interpretation of this Agreement shall not permit a revenue, expense, liability, recovery, receipt, payment, reserve or reimbursement to be duplicated.

Article 2
Extension of Arrangements Between OLG and the Rama Entities

2.1 New OLG Sublease and Extension of Railway Lease

The Parties acknowledge and agree that they shall enter into agreements regarding the lease and sublease of the Complex Lands and all of the Improvements located thereon that comprise the Complex for the duration of the Applicable Period. To effect same, the Parties agree that concurrently with the execution and delivery of this Agreement, Casino Rama Inc. will enter into the Ground Lease and OLG, Rama and Casino Rama Inc. will execute and deliver the following agreements:

  1. an agreement to extend the Railway Lands Lease to be concurrent with the Applicable Period, in the form attached as Schedule 6 (the “First Amendment to the Railway Lands Lease”); and
  2. a sublease relating the lands that are the subject of the Replacement Land Designation and the Improvements located thereon that comprise the Complex, in the form attached as Schedule 7 (the “New OLG Sublease”).

2.2 Rent-Free Operation of the Retail and Warehouse Space

The Parties acknowledge and agree that concurrently with the execution and delivery of this Agreement, they shall also enter into:

  1. an agreement providing for the occupation by Rama (or its designate) on a fully rent-free basis during the Applicable Period of certain space in the Casino building and the Warehouse to be used by Rama (or its designate) for or in connection with certain retail uses in accordance with the terms of the agreement in the form attached as Schedule 8 (the “Retail Stores and Warehouse Licence”); and
  2. an agreement providing for the occupation by Rama (or its designate) on a fully rent-free basis during the Applicable Period of certain space in the Casino building to be used by Rama (or its designate) for or in connection with certain food and beverage uses in accordance with the terms of the agreement in the form attached as Schedule 9 (the “Tim Hortons Licence”).

2.3 Delivery of Replacement Agreements

In addition to the execution and delivery of the Ground Lease, New OLG Sublease and First Amendment to the Railway Lands Lease required under Section 2.1, and the Retail Stores and Warehouse Licence and Tim Hortons Licence required under Section 2.2, concurrently with the execution and delivery of this Agreement, the Parties (as applicable) shall have delivered to each other the following fully executed agreements in such forms as are mutually agreeable to Rama and OLG:

  1. escrow agreement relating to the exchange of the documents referred to in this Section;
  2. non-disturbance agreement in favour of OLG from HMQC;
  3. release and surrender of the Existing Complex Sublease;
  4. authorization and direction of Rama permitting OLG to register a notice of or short form of Railway Lands Lease, in the applicable Land Titles Office where the lands subject to the Railway Lands Lease are located;
  5. the Band Council approvals in respect of the entering into of this Agreement, and the other Material Agreements contemplated hereby; and
  6. such other documents and certificates as are contemplated in this Agreement or are customary in transactions of this nature as the Parties may agree, each acting reasonably, provided that neither Party will be required to provide any legal opinions.

2.4 Termination of Existing Agreements and the Permits and Release of Interests

The Parties hereby acknowledge and agree that contemporaneously with the execution and delivery of this Agreement, the New OLG Sublease, the First Amendment to the Railway Lands Lease, the Retail Stores and Warehouse Licence and the Tim Hortons Licence pursuant to the terms hereof, the Existing Complex Sublease, the Administration Building Lease, the Employee Parking Lot Licence, the Warehouse Lease, the Retail Stores Licence and the Permits shall be automatically terminated and of no further force or effect, and the Parties hereby forever release any interest that any Party may have had in such terminated agreements and the Permits.

2.5 Registration of Lease Interests

As soon as practicable after the delivery of the documents listed in Section 2.3, (A) Casino Rama Inc. shall forthwith register the Ground Lease (if not previously registered) and the New OLG Sublease in the Register, and (B) OLG shall authorize and direct its legal counsel to proceed with the electronic registration of a notice of or short form Railway Lands Lease, as amended, in the applicable Land Titles Office.

2.6 Material Agreements

As of or on the Effective Date, OLG and/or all or certain of the Rama Entities are currently parties to the following Material Agreements:

  1. the Ground Lease (for greater certainty, OLG is not a party to this agreement);
  2. the New OLG Sublease;
  3. the Railway Lands Lease;
  4. the Casino Rama Fire Protection Agreement;
  5. the Casino Rama Police Services Agreement;
  6. the Retail Stores and Warehouse Licence; and
  7. the Tim Hortons Licence.

As of or on the Effective Date, the above-listed agreements are the only Material Agreements between OLG and the Rama Entities relating to the Complex.

2.7 Purpose of this Agreement

  1. The purpose of this Agreement is to amend and restate the basis on which OLG and the Rama Entities have agreed to continue to conduct the business of the Complex during the Applicable Period after the Effective Date.
  2. The Material Agreements described in Section 2.5 above govern the operation and conduct of the business of the Complex for the Applicable Period.
  3. The Parties confirm their continuing agreement that, since August 1, 2011, their respective rights, entitlements and obligations towards each other during the Applicable Period under the Post-2011 Contract and this Agreement (including the right of Rama to receive the Rama Fee) have replaced in their entirety the respective rights, entitlements and obligations of the parties in the Casino Rama Revenue Agreement and in the Development and Operating Agreement.
  4. The Parties confirm their continuing agreement that, since August 1, 2011, their respective rights, entitlements and obligations under the Casino Rama Revenue Agreement and the Development and Operating Agreement are complete, and all provisions of the aforesaid agreements are deemed to have terminated save and except for those provisions which are expressed in the such agreements to survive in accordance with their terms.
  5. The Parties confirm their continuing agreement that their respective rights, entitlements and obligations under the Expansion Project Development Agreement are complete, and all provisions of the aforesaid agreement are deemed to have terminated.
  6. The Parties confirm their continuing agreement that, since August 1, 2011, OLG has no interest in and no obligations towards the Off-Site Infrastructure Facilities and the Community Facilities, except as may be set out herein.

2.8 Rama Revenue Share

  1. In consideration of Rama:
    1. authorizing the extension of the operation of the Complex on the Reserve during the Applicable Period;
    2. carrying out during the Applicable Period its responsibilities as provided in this Agreement; and
    3. providing certain Intellectual Property rights for use relating to the Complex during the Applicable Period as provided in this Agreement,

    the Parties agree and acknowledge that Rama shall be entitled to receive, during the Applicable Period, an annual fee (the “Rama Fee”) equal to:

    1. the greater of (A) one and nine tenths percent (1.9%) of Gross Revenues for the period August 1, 2017 to March 31, 2018 and (B) $3,667,000 (Three Million Six Hundred Sixty Seven Thousand Dollars); and
    2. for each successive twelve month period thereafter commencing April 1, 2018 an amount equal to the greater of: (A) one and nine tenths percent (1.9%) of Gross Revenues for each such twelve month period; and (B) $5,500,000 (Five Million Five Hundred Thousand Dollars).

The Rama Fee shall be paid by OLG to Rama, or as Rama may from time to time direct, on a monthly basis in arrears, provided that OLG shall have the option, in its sole discretion, to cause the Operator to make such payment of the Rama Fee directly to Rama, provided that for greater certainty, any such option shall not relieve OLG from the primary responsibility for paying the Rama Fee to Rama.

  1. The Parties agree that the Rama Fee and the payments to be made under this Agreement and the Material Agreements including, without limitation, the New OLG Sublease, the Railway Lands Lease, the Casino Rama Fire Protection Agreement and the Casino Rama Police Services Agreement are intended to be the entire compensation to the Rama Entities for all services to be provided by any of them in connection with the development and operation of the Complex (including any profit from services to be provided in respect of parking) other than any services which may be provided by a Rama Entity with respect to water treatment and supply, sewage, garbage disposal, snow removal and any other items agreed to by OLG (the “Specific Local Services”).
  2. No Rama Entity shall be entitled under this Agreement or any of the other Material Agreements to receive any amounts out of the Gross Revenues other than as expressly provided herein or therein, including without limitation; (i) the Rama Fee, (ii) the rent pursuant to the New OLG Sublease, (iii) the rent pursuant to the Railway Lands Lease, (iv) the payments under the Casino Rama Fire Protection Agreement, (v) the payments under the Casino Rama Police Services Agreement, and (iv) payments for any Specific Local Services.
  3. In the event that OLG or the Operator fails to operate the Casino in accordance with Section 4.5 of this Agreement for a period of seven (7) consecutive days, then the Rama Fee for each day where the Casino is not operated in accordance with Section 4.5 of this Agreement shall be calculated on a per diem basis by using the greater of (i) an annual Rama Fee equal to the average annual Rama Fee paid or payable for the preceding fiscal year, and (ii) the annual Rama Fee that would otherwise be payable to Rama in accordance with Section 2.8(a) for the current fiscal year notwithstanding that the Casino was not operated in accordance with Section 4.5 of this Agreement for any period of time.
  4. Rama shall not be entitled to any compensation in lieu of profits which would have emanated from the operation by Rama of the non-gaming businesses within or pertaining to the Complex and the Off-Site Infrastructure Facilities.

2.9 Additional Revenues and Reimbursements

Notwithstanding Section 2.8 and in addition to the items specifically enumerated in Section 2.8 above, the Parties acknowledge that:

  1. the Casino has been contributing an amount on an annual basis to the costs of problem gambling treatment and counselling services for Rama members and this annual payment shall be paid by OLG or the Operator for the Applicable Period on a basis consistent with past practice, not to exceed $70,000 per year, which amount shall be adjusted each year to equal the CPI-Adjusted Rate.
  2. Rama has been paid by OLG or the Operator for reimbursement of audit costs for certain Rama Entities not directly related to those items described in Section 2.8(b) above, not to exceed $10,000 per year, which amount shall be adjusted each year to equal the CPI-Adjusted Rate; these payments shall continue to be paid by OLG or the Operator, as applicable, if those goods and services are desired by OLG or the Operator on a case by case basis, in a manner consistent with past practice for the Applicable Period.

Article 3
Intentionally Deleted

Article 4
Operation of Complex

4.1 OLG to Operate Complex

During the Applicable Period, unless this Agreement is terminated in accordance with its terms, OLG agrees to operate, or retain and appoint an Operator (who will be retained and appointed on terms that are in OLG’s sole discretion) to operate the Complex. OLG will and OLG will cause any Operator it retains or appoints to comply in all material respects at all relevant times with OLG’s obligations under this Agreement, the other Material Agreements and Applicable Law.

4.2 Limitation on Authority

The Parties hereby acknowledge and agree that the Province must conduct and manage all Games of Chance to be carried on in the Casino as required under paragraph 207(1)(a) of the Criminal Code (Canada). In acting hereunder in all matters relative to this Agreement and in approving or consenting to any matter hereunder not otherwise specifically provided for, OLG and the Rama Entities shall act in a reasonable manner taking into account the requirements of paragraph 207(1)(a) of the Criminal Code (Canada).

4.3 Operating Policies

OLG acknowledges that the Operating Policies will: (i) seek to maximize the training and employment of First Nations peoples at all levels in the operation of the Complex, (ii) to the extent permitted by Applicable Law, whenever reasonably practicable in the performance of OLG’s duties under this Agreement, and on the basis of comparable quality and price, purchase materials for, and retain the services of First Nations’ sources, particularly local First Nations’ services, and (iii) require all employment opportunities at the Complex to be posted internally prior to recruiting from outside. OLG will disclose to Rama such of its Operating Policies as may be relevant to OLG’s obligations pursuant to this Section 4.3 and shall provide Rama with prior written notice of proposed changes to such Operating Policies that are relevant to OLG’s obligations pursuant to this Section 4.3. OLG will and OLG will cause any Operator or other contractor it engages from time to time to abide by the Operating Policies contemplated by this Section 4.3.

4.4 Strategic Advisory Committee

Each of Rama, OLG and the Operator (if one) shall appoint a representative to the Strategic Advisory Committee (a “Strategic Advisory Committee Representative”), which committee will have the purpose of reporting on and discussing the operations of the Complex as they relate to the First Nations human resource and First Nations employee development policies and procedures in use at the Complex. Meetings of the Strategic Advisory Committee shall be held at least once every six months and otherwise upon the reasonable request of a Strategic Advisory Committee Representative. A quorum for the purpose of any Strategic Advisory Committee meeting shall be all Strategic Advisory Committee Representatives. Meetings of the Strategic Advisory Committee will be chaired by the Strategic Advisory Committee Representative of OLG. Written notice of a Strategic Advisory Committee meeting will be given by OLG’s Strategic Advisory Committee Representative at least two (2) Business Days prior to a meeting, unless such notice is waived by all Strategic Advisory Committee Representatives. A Strategic Advisory Committee Representative may choose to participate in a meeting by means of conference, telephone or similar communication equipment permitting all Persons participating in a meeting to hear each other, and participation in a meeting in such manner shall constitute attendance and presence at such meeting.

4.5 Business Hours

The Parties agree that the policy of the Complex shall be to operate the Casino for 24 hours a day, seven days a week, subject to Applicable Law, Force Majeure and any provisions relating thereto in the Operating Policies.

4.6 Concessions

No Party shall accept for its own account in the execution of its duties under this Agreement any commissions, reductions, finder’s fees or other concessions from tradesmen, suppliers, contractors, insurers or other third parties. If such concessions are received by any Party hereto as a payment or fee, and not a credit or reduction with respect to an expense, they shall be treated as Gross Revenues forthwith after receipt and if received by a Rama Entity, they shall be paid forthwith by such Rama Entity to OLG.

4.7 No Rama Role in Operations During Applicable Period

Rama confirms its continuing agreement that, effective as of August 1, 2011 and continuing throughout the Applicable Period, subject to the provisions of this Agreement and the other Material Agreements, Rama shall solely and exclusively be the landlord of the Complex (through its wholly-owned subsidiary Casino Rama Inc.) and neither Rama nor Casino Rama Inc. shall be entitled to be involved in, party to or otherwise participate in or be consulted with concerning any decisions, deliberations or other investigations or studies related to the operation, conduct and management of the Complex.

Article 5
Rights and Obligations of the Parties

5.1 Performance of Agreements

Each Party hereby covenants in favour of each of the other Parties hereto that it will perform promptly and faithfully all of its obligations under this Agreement and the Material Agreements to which it is a party.

5.2 Liens

The Parties will take all actions that are within their power or control to prevent the creation of any Liens, other than Permitted Liens, in respect of the Complex and the Complex Lands or, in respect of Rama and the Rama Corporations only, any adjacent lands where such Liens in respect of such adjacent lands could materially affect the efficient operation of the Complex. In the event that any Party becomes aware of any such potential or actual Lien in respect of the Complex, the Complex Lands or the adjacent lands, each Party will take all actions that are within its power or control to ensure the removal or extinguishment of such potential or actual Lien.

5.3 Consent, Approvals

Rama or the Rama Corporations, as appropriate, will provide any consents or approvals that are within their power or control under the Indian Act (Canada) or under any other Applicable Law that, in the reasonable opinion of the Parties, are necessary or desirable for the development, construction, efficient operation or financing of the Complex, where the applicant has completed the steps required to be completed prior to the issuance of such consent or approval.

5.4 Amendment of Ground Lease

Casino Rama Inc. will not amend, modify, supplement, waive any of its rights or agree to the surrender of the Ground Lease without the prior written approval of OLG. For greater certainty, nothing herein shall prevent Casino Rama Inc. from entering into arrangements with respect to the lands that are the subject of the Ground Lease provided such arrangements go into effect after the expiry or earlier termination of the Applicable Period, provided that such arrangements shall not be registered on title to the Complex Lands during the Applicable Period (except during the final 18 months of the Applicable Period if OLG has not exercised its option to extend the Applicable Period in accordance with Section 16.2 hereof) and that all such arrangements are subordinate at all times during the Applicable Period to OLG’s interests under this Agreement and the Material Agreements.

5.5 No Conflicts

No Party will, without the prior written approval of the other Parties, authorize or take any actions that could materially adversely affect the development, construction or efficient operation of the Complex by OLG or its Operator including, without limitation, the passage by Rama of any by-laws, or the issuance by Rama of any orders, permits, certificates or other instruments, under Applicable Law or otherwise that could materially adversely affect the Complex as aforesaid. Rama shall not levy any property or business taxes or other similar levies with respect to the Complex. The Parties agree that nothing in this Section 5.5 diminishes or adversely affects OLG’s right to make business and operational decisions, acting reasonably, in furtherance of its Province-wide mandate to conduct and manage all Games of Chance.

5.6 Policing and Security

Rama and OLG, in cooperation with any Operator, will arrange with appropriate police authorities to provide proper policing, security and law enforcement services on and off the Reserve sufficient to ensure the safety of the customers, personnel, monies and property of the Complex and the efficient operation of the Complex, in accordance with the Casino Rama Police Services Agreement. The Parties hereby acknowledge and agree that security within the Casino shall be the responsibility of the Gaming Control Commission. In the event the Parties agree to arrange private security service, each security officer shall be bonded in sufficient amounts commensurate with his/her enforcement duties and obligations.

5.7 Utilities, Access

Rama or the Rama Corporations, as appropriate, will, from time to time, enter into such agreements as are necessary or desirable in order to ensure adequate provision to the Complex of utilities such as hydro, water and sewage, and in order to ensure proper and efficient access and egress to the Complex Lands by customers and personnel.

5.8 Cost of Services

Subject always to the provisions of the specific agreements contemplated in this Agreement, as they may be required to be extended for the Applicable Period, Rama agrees that if any of the water treatment, sewage or other services, including with respect to garbage disposal, recycling, and snow removal (which are agreed to by the relevant Parties hereto) are used by the Complex, such services shall be provided by the Rama Entities to the Complex and the Complex shall be charged on the basis of the Complex’s use of such services by determining the Complex’s use of such services as a percentage of the total usage of all users of such services and multiplying such percentage by the operating, maintenance and necessary capital repairs and replacement costs incurred by the Rama Entities in providing such services; provided, however, any such cost shall be as agreed to by the Parties, acting reasonably, on a basis consistent with past practice with respect to the Complex. The Rama Entities shall provide to OLG on an annual basis within 180 days of the end of each Operating Year an audited statement setting out the operating and maintenance costs and necessary capital repairs and replacement costs incurred by the Rama Entities for such services. The cost of any garbage, recycling disposal or snow removal shall be as agreed to by the Parties, acting reasonably, on a basis consistent with past practice with respect to the Complex.

5.9 General

No Party will authorize any activity on or near the Reserve that would materially adversely affect the development, construction or efficient operation of the Complex without the approval of OLG and Rama, and the Parties will take all necessary steps to rectify any matter that may arise. The Parties agree that nothing in this Section 5.9 diminishes or adversely affects OLG’s right to make business and operational decisions, acting reasonably, in furtherance of its Province-wide mandate to conduct and manage all Games of Chance.

5.10 Negative Covenant

Neither Rama, the Rama Corporations, nor any other Person owned or controlled by any of them, will operate, permit or approve the operation of any other casino on the Reserve other than a casino conducted or managed by OLG and operated by OLG or an Operator. Notwithstanding the foregoing, on no more than twenty-four (24) occasions annually, a charitable or religious organization approved by Rama may conduct and manage a Lottery Scheme under paragraph 207(i)(b) of the Criminal Code (Canada) on the Reserve pursuant to special occasion permits issued by the Gaming Control Commission with a total prize payout not to exceed $5,000 respecting each event.

5.11 Access

The Rama Entities hereby confirm and acknowledge that OLG (and its officers, directors, employees, designees and their guests and invitees), all patrons of the Complex and the Operator: (i) shall be considered to be invitees for all purposes relating to or under the Ground Lease, the New OLG Sublease, the Railway Lands Lease, and all agreements relating to lands or buildings leased by or licensed to OLG on the Reserve and (ii) shall have free access to and the use of the Complex, all Complex Lands and Rama Road.

5.12 Rama Road

In the event that it is determined by HMQC and Rama that the portion of the Rama Road running through the Reserve is part of the Reserve, Rama shall, and hereby does, confirm the applicability thereto of all of the provisions hereof including, without limitation, Sections 5.7 (Utilities, Access), 5.11 (Access) and 18.2 (Access to Complex).

Article 6
Records and Reports

6.1 Books and Records

It is acknowledged and agreed that OLG shall keep or cause to be kept full and adequate books of account and such other records as are necessary to reflect the results of the operation of the Complex, in all material respects in accordance with Canadian generally accepted accounting principles consistently applied.

6.2 Rama Attractions and Amenities

In order to assist Rama in the promotion of attractions and amenities operated by Rama in the Reserve on lands not leased by OLG, and to assist Rama in developing Rama’s own initiatives that will benefit from OLG’s marketing initiatives concerning the Complex, OLG agrees that it will: (i) permit Rama to have its own linked page under Rama’s control advertising such activities accessed by clicking on a button on the Complex website and to have a link on the Complex website to Rama’s website and (ii) include notice of such activities on video notice boards in the Complex; provided that OLG may discontinue access to such linked page or Rama’s website and may discontinue placing notices on such video notice boards if OLG determines such activities or any content on such linked page (including further links) or Rama’s website, are inappropriate, including, without limitation, for reasons related to promotion of hate, pornography, full or partial nudity, marketing of gaming activities to minors, electronic gambling and other illegal activities. OLG will also advise Rama in advance of any significant marketing activity that will be undertaken by OLG concerning the Complex that could reasonably be expected to increase the number of visitors to the Complex.

6.3 Quarterly Gross Revenues Report

OLG shall prepare or cause to be prepared and submitted to Rama, within 60 days after the end of each calendar quarter of the Complex, a written report (the “Quarterly Gross Revenues Report”) for the account and expense of the Complex, in a format approved by OLG and Rama, acting reasonably, for the Complex setting out:

  1. the Gross Revenues for the Complex for the preceding calendar quarter and the year to date on an accrual basis; and
  2. any other information that may be requested by Rama, acting reasonably, that relates to Casino Rama Inc.’s responsibilities as landlord and to Rama’s entitlement to the Rama Fee.

6.4 Quarterly Meeting

OLG, together with the Operator (at OLG’s option), agrees to meet with Rama on a quarterly basis to discuss each Quarterly Gross Revenues Report provided to Rama pursuant to Section 6.3 and such other matters as are significant to Casino Rama Inc.’s responsibilities as landlord and Rama’s financial entitlements under this Agreement and the other Material Agreements, such meeting to occur by the end of the second month after the end of the calendar quarter in respect of which the relevant Quarterly Gross Revenues Report has been provided.

6.5 Rama Review of Quarterly Gross Revenues Report

Rama shall be entitled to submit any objection it may have with respect to any Quarterly Gross Revenues Report, within 60 days after submission of the same to Rama. If Rama does not submit any objections in respect of such Quarterly Gross Revenues Report, within such 60 day period, then Rama shall not be entitled to object to or take issue with such Quarterly Gross Revenues Report, provided that it is expressly understood and agreed that the failure of Rama to object to or take issue with such Quarterly Gross Revenues Report, within such 60 day period shall not:

  1. preclude Rama from subsequently taking any action or exercising any remedies available at law by reason of any fraudulent or negligent misrepresentation contained in such Quarterly Gross Revenues Report, or
  2. preclude Rama from objecting to or taking issue with such financial statements or the computation of any item therein under any Applicable Law.

6.6 Annual Financial Statements for Complex

OLG shall deliver or cause to be delivered to Rama as soon as practicable and, in any event, within 90 days after the end of each Operating Year the audited annual financial statements of the Complex as at the end of each such year (the “Casino Rama Financial Statements”), such financial statements to consist of at least a balance sheet as at the end of the year and statements of income, all Quarterly Gross Revenues Reports related to such year, retained earnings and changes in financial position for the year then ended, with a report of the auditors on such financial statements.

Article 7
Intentionally Deleted

Article 8
Future Development

8.1 Planning for Future Developments on Complex Lands

If any Area Development Plan or amendment to an existing Area Development Plan for the Complex Lands is required to be prepared pursuant to the requirements of the Ground Lease, OLG shall invite, or cause the Operator to invite, Casino Rama Inc. to participate in the planning process for such Area Development Plan, including any future developments at the Complex (“Future Developments”) , and agrees that it shall consult with Casino Rama Inc. or shall cause the Operator to consult with Casino Rama Inc. with respect to any decisions regarding an Area Development Plan or amendment to an existing Area Development Plan for the Complex Lands.

8.2 Future Developments on the Complex Lands

OLG or an Operator shall have the sole discretion to decide whether to develop any Future Developments, provided such developments are on the Complex Lands, are developed in accordance with an Area Development Plan developed in accordance with Section 8.1, and are otherwise in compliance with the terms of the Sublease and Applicable Law.

8.3 Future Developments on Lands that are not Complex Lands

If OLG decides to proceed with any Future Developments that require lands in the vicinity of the Complex that (a) form part of the Reserve, or (b) are owned or controlled directly or indirectly by Rama, in addition to those lands already leased by OLG in connection with the operation of the Complex at such time, the Parties shall cooperate to agree upon the terms of a lease of such additional lands to OLG at an annual cost per acre at the CPI-Adjusted Rate (or such higher fair market rental rate established by the Federal government) and for a term terminating concurrently with the termination of the Applicable Period. The Parties acknowledge and agree that any such lease of additional lands to OLG may require that Rama first obtain the necessary Rama Band Council approvals, land designations and registrations to allow OLG to lease such lands, and Rama shall have the right to approve the Future Development opportunities on such lands.

Any lease granted to OLG in accordance with this Section 8.3 shall require that OLG assume full responsibility for obtaining all requisite environmental and other clearances at its cost prior to entering into such lease. If any Future Developments require lands in the vicinity of the Complex that (a) form part of the Reserve, or (b) are owned or controlled directly or indirectly by Rama, in addition to those lands already leased by OLG in connection with the operation of the Complex at any time, Casino Rama Inc. shall, at OLG’s request, expeditiously apply for and use commercially reasonable efforts to obtain any Rama Band Council approvals or other approvals, designations and/or registrations that may be required in a timely manner.

Article 9
Water Supply and Treatment Agreement

9.1 Water Supply and Treatment Agreement

OLG agrees that, upon receipt of a written request from Rama, it shall enter into good faith discussions with Rama for purposes of entering into an agreement relating to the supply of water to, and the treatment of water for, the Complex, including waste water treatment equipment and facilities for the Complex. Such agreement shall include terms agreed between the Parties, acting reasonably, on a basis consistent with past practice with respect to the Complex for the provision by Rama of water and wastewater services (including, if applicable and forming part of the past practice between the Parties, allocation of responsibility for the maintenance costs for cleaning the stormwater management pond(s) located on or immediately adjacent to the Complex) and rates for such services which rates shall have included in them the costs of operating and maintaining such equipment and facilities (including future incurred capital replacements and improvements on commercially reasonable terms, without any present commitment by OLG with respect to the creation of a capital reserve).

Article 10
First Opportunity for Role of Development and Construction Manager

10.1 Rama’s First Opportunity

OLG agrees that, in the event that OLG or an Operator decide, in each of their sole, absolute and subjective discretion, to proceed with a Qualified Future Development Project, Rama shall be given the first opportunity to be engaged as the development and construction manager for such Qualified Future Development Project in accordance with the following provisions, provided that, unless otherwise determined by the parties, Rama’s responsibilities will not include funding or financing:

  1. OLG or the Operator shall first provide notice (the “Engagement Notice”) to Rama of its intention to proceed with a Qualified Future Development Project, which notice shall contain: (1) a description of the extent of the Qualified Future Development Project, including, without limitation, the proposed location on the Complex Lands, the proposed use and the proposed square footage, and (2) the material terms and conditions upon which OLG or the Operator is prepared to engage Rama as the development and construction manager for the Qualified Future Development Project, including, without limitation, the development and construction management fee that is to be paid to Rama by OLG or the Operator, the scope of development and construction management services that will be required of Rama, the minimum insurance requirements to be procured by Rama and such other material terms and conditions ordinarily contained in a development and construction management agreement for a project in Ontario equivalent to the Qualified Future Development Project (the “Development/Construction Management Terms”);
  2. Rama shall have until 5:00 p.m. (Toronto time) on the fifteenth (15th) day (the “Election Date”) following the date of such Engagement Notice to notify OLG or the Operator whether or not it accepts the Development/Construction Management Terms and is prepared to negotiate with OLG or the Operator a development and construction management agreement which incorporates the Development/Construction Management Terms (the “Notice of Election”);
  3. Upon delivery by Rama of a Notice of Election in the manner and within the time herein specified, Rama and OLG or the Operator, as applicable, shall, for a period of thirty (30) days (the “Negotiation Period”) negotiate in good faith a development and construction management agreement for the Qualified Future Development Project, which agreement shall initially be based on OLG’s or the Operator’s standard form of development and construction management agreement and which shall incorporate the Development/Construction Management Terms;
  4. If Rama does not accept the Development/Construction Management Terms contained in the Engagement Notice, does not respond to the Engagement Notice by the Election Date or in the event that Rama and OLG or the Operator, as applicable, are unable to settle the development and construction management agreement prior to the expiry of the Negotiation Period, then OLG or the Operator, as applicable, may engage any other Person to be the development and construction manager for the applicable Qualified Future Development Project, provided that OLG or the Operator, as the case may be, engages such Person on financial terms and material non-financial terms no more favourable than the Development/Construction Management Terms presented to Rama; and
  5. If OLG or the Operator wish to offer financial terms and material non-financial terms to any such Person that are more favourable than the Development/Construction Management Terms, then OLG or the Operator shall not proceed with any negotiations with such Person without again complying with all relevant terms and provisions of this Section 10.1.
  6. Rama shall have the right:
    1. to subcontract all or any portion of its obligations under the development and construction management agreement to an Affiliate of Rama without notice or the consent of OLG or the Operator;
    2. to subcontract a portion or portions of its obligations under the development and construction management agreement to non-Affiliates of Rama with the prior consent of OLG, which consent may be withheld in OLG’s or the Operator’s sole discretion;

      provided that:

    3. Rama shall remain primarily liable to OLG or the Operator, as applicable, for the performance of the terms of the applicable development and construction management agreement;
    4. in respect of subsection (B) above, Rama is not subcontracting substantially all of its obligations under the applicable development and construction management agreement; and
    5. such subcontracting does not result in any increased costs to OLG or the Operator.

Article 11
Financing of Future Developments

11.1 Financing

Each of Rama and OLG agrees that it shall cooperate in a reasonable manner to provide commercially reasonable assurances to lenders to assist in obtaining financing for the development of any Future Development and Modernization as it relates to the Complex.

Article 12
Revenue Streams

12.1 Ability of Rama Corporations to Assign Revenue Streams

  1. Rama may, without the consent of any other Person, from time to time and at any time assign, sell, encumber or otherwise transfer its entitlement to receive the Rama Fee, free of all equities, in whole or in part, by way of absolute assignment, security or otherwise to any Person. Notwithstanding Section 16.7, OLG agrees not to assert any equitable remedies including, without limitation, rights of set off, that may arise or have arisen prior to, concurrently with or following any such assignment, sale, encumbrance or other transfer in its favour against Rama against any Person to whom such entitlement to receive the Rama Fee has been assigned, sold, encumbered or otherwise transferred. Rama agrees to provide to OLG a copy of any agreement or other document relating to any such assignment, sale, encumbrance or other transfer.
  2. In addition to Rama’s rights under Subsection 12.1(a), any of the Rama Corporations may, without the consent of any other Person, from time to time and at any time assign, sell, encumber or otherwise transfer its rights to any or all other revenue streams provided for in this Agreement and the other Material Agreements (including, for certainty, all other proceeds and moneys in respect of this Agreement and the other Material Agreements or at any time derived from this Agreement and the other Material Agreements) in whole or in part, by way of assignment, security or otherwise, to any Person, provided that such assignment does not adversely affect the rights of OLG under this Agreement or any other Material Agreement and the assignee, purchaser, secured party or other transferee provides OLG with an acknowledgement that its rights are subject to the rights of OLG as set out in this Agreement and any other relevant Material Agreement, including OLG’s right of set-off and OLG’s other equitable rights as set out in Section 16.7. Rama agrees to provide to OLG a copy of any agreement or other document relating to any such assignment, sale, encumbrance or other transfer.
  3. OLG shall enter into such agreement with proposed assignees, purchasers, secured parties or other transferees and Rama as may be reasonably requested by Rama or such Persons to provide such Persons reasonable assurances respecting security granted to them, including all revenue streams, proceeds and moneys in respect of or derived from this Agreement, which agreement shall include, without limitation, the following: (i) agreement by OLG to provide such Persons with a copy of any notice of default (including any payment default) OLG delivers to any of the Rama Corporations under this Agreement, together with any and all other notices delivered to any of the Rama Corporations under this Agreement; (ii) such other terms as may be reasonably requested by such Persons or Rama, acting reasonably; (iii) in the case of an assignment, sale, encumbrance or other transfer under Subsection 12.1(b) above, agreement by Rama or such Persons that such security and any entitlement to revenue streams, proceeds and moneys in respect of or derived from this Agreement are subject to the rights of OLG as set out in this Agreement and any other relevant Material Agreement; and (iv) in the case of an assignment, sale, encumbrance or other transfer under Subsection 12.1(b), such other terms as may be reasonably requested by OLG.

Article 13
Representations and Warranties

13.1 Representations and Warranties of OLG

OLG represents and warrants as of the date hereof as follows and acknowledges that Rama and each of the Rama Corporations which is a Party to this Agreement are relying on such representations and warranties in connection with the transactions contemplated by the Applicable Agreements:

  1. Organization. OLG is a corporation duly established under the Enabling Legislation.
  2. Capacity and Authority. OLG has all necessary capacity, power and authority to enter into the Applicable Agreements and to carry out the provisions of the Applicable Agreements. The Applicable Agreements have been duly authorized by OLG and each Applicable Agreement, when executed, will constitute a valid and binding obligation of OLG enforceable against OLG in accordance with its terms.
  3. No Violation. Neither the execution and delivery of the Applicable Agreements nor the fulfilment of or compliance with the terms and conditions thereof:
    1. conflicts with or results in a breach of any of the terms, conditions or provisions of or constitutes a default under the constating documentation of OLG (including the Enabling Legislation); or
    2. conflicts in a material respect with or results in a material breach by OLG of any of the terms, conditions or provisions of or constitutes a material default under any material agreement, licence or other instrument to which OLG is a party or by which it is bound.
  4. Litigation. To its knowledge after due inquiry, there are no actions, suits or proceedings pending against OLG which could reasonably be anticipated to materially adversely affect its ability to perform its obligations under the Applicable Agreements.
  5. Environmental. To its knowledge after due inquiry with the Operator, there is no pending or threatened Environmental Claim in respect of the Complex Lands, which could reasonably be anticipated to materially adversely affect its ability to perform its obligations under the Applicable Agreements.

13.2 Representations and Warranties of Rama and Rama Corporations

Rama and each of the Rama Corporations which is a Party to this Agreement jointly and severally represent and warrant as of the date hereof as follows and acknowledge that OLG is relying on such representations and warranties in connection with the transactions contemplated by the Applicable Agreements:

  1. Organization. Each of the Rama Corporations which is a Party to this Agreement is a corporation duly established and organized under the laws of the Province of Ontario.
  2. Ownership. All of the issued and outstanding shares of the Rama Corporations are owned, directly or indirectly, by Rama. Rama has provided OLG with a schedule which accurately sets out the ownership of and legal relationships between all of the Rama Entities.
  3. Options. No Person has any right or option, contingent or otherwise, to acquire any of the capital stock of any of the Rama Corporations.
  4. Capacity and Authority. Rama and the Rama Corporations have all the necessary capacity, power and authority to enter into and to carry out the provisions of the Applicable Agreements. The Applicable Agreements have been duly authorized by Rama and the Rama Corporations and each Applicable Agreement, when executed, will constitute a valid and binding obligation of each Rama Entity party thereto, enforceable against it in accordance with its terms.
  5. No Violation. Neither the execution and delivery of the Applicable Agreements nor the fulfilment of or compliance with the terms and conditions hereof:
    1. conflicts with or results in a breach of any of the terms, conditions or provisions of or constitutes a default under the constating documentation of the Rama Corporations;
    2. conflicts in a material respect with or results in a material breach by Rama Entities of any of the terms, conditions or provisions of or constitutes a material default under any material agreement, licence or other instrument to which Rama or any Rama Corporation is a party or by which it is bound;
    3. conflicts with or is inconsistent with the Indian Act (Canada) and regulations, by-laws enacted pursuant to that Act (including by-laws of Rama), or with any other Applicable Law; or
    4. conflicts with or is inconsistent with or any other Material Agreement.
  6. Replacement Land Designation. A valid Replacement Land Designation pursuant to section 38(2) the Indian Act (Canada) was accepted by the Minister of Indian Affairs and Northern Development, Canada, on June 24, 2016.
  7. Ground Lease. Casino Rama Inc. has a valid and subsisting leasehold interest in and the right to quiet or peaceful enjoyment of the Complex Lands (excepting only the lands that are the subject of the Railway Lands Lease) pursuant to the Ground Lease for the full term thereof. The Ground Lease is a legal, valid and binding agreement, enforceable in accordance with its terms, of Casino Rama Inc. and, to the knowledge of the Rama Corporations and Rama, of each other Person that is a party thereto. Neither Rama, any of the Rama Corporations nor, to the knowledge of the Rama Corporations and Rama, any other Person that is a party to the Ground Lease, is in default thereunder.
  8. Railway Lands Lease. Rama owns the fee simple interest in the lands that are the subject of the Railway Lands Lease, and has the legal right to lease the lands that are the subject of the Railway Lands Lease to OLG pursuant to the terms of the Railway Lands Lease.
  9. Complex Lands. The Rama Corporations and/or Rama have adequate rights of ingress and egress with respect to the Complex Lands so as to permit the efficient operation of the Complex. The Complex Lands are free and clear of all Liens, other than Permitted Liens, and one or more Rama Entities are in possession of all parts of the Complex Lands. No Persons other than OLG have any right, interest, permit, privilege or claim of any kind in or in respect of title to the Complex Lands that would have a material adverse impact on the operation of the Complex during the Applicable Period.
  10. New OLG Sublease. Subject to the proper execution and delivery of the New OLG Sublease in connection with the execution of this Agreement, the New OLG Sublease is a legal, valid and binding agreement of Casino Rama Inc., enforceable in accordance with its terms.
  11. Environmental Matters. All environmental assessments required under Applicable Law, including Environmental Law, that are the responsibility of the Rama Corporations and Rama to obtain, have been completed and all necessary and appropriate approvals or permits have been granted or obtained. To the knowledge of the Rama Corporations and Rama, there is no pending or threatened Environmental Claim in respect of the Complex Lands, or in respect of any adjacent lands that, in respect of such adjacent lands, could reasonably be expected to materially impact on the operation of the Complex. Rama has made available to OLG all environmental investigations, audits, assessments and reviews that are in its possession or of which it is aware with respect to the Complex Lands.
  12. Former Rama Corporations. Either prior to or upon the execution of this Agreement (considering the releases contained in Section 2.4), the following companies that formed part of the definition of “Rama Corporations” pursuant to the Original Post-2011 Contract no longer hold any interest with respect to the Complex and are not required to be parties to this Agreement or have any interest in this Agreement: Casino Rama Holdings Inc., Rama Holdings Inc., Rama Parking Inc., Rama Access Inc. and 455457 Ontario Inc.

13.3 Survival of Representations and Warranties

The representations and warranties of the parties contained herein are given as of the date hereof and shall survive the execution and delivery of this Agreement.

Article 14
Intellectual Property

14.1 Trade-Marks

Notwithstanding Section 14.3, the Parties acknowledge and agree that the trade-marks and trade-names “Casino Rama” (including the trade-mark attached hereto as Schedule 13) and any design relating thereto and any trade-mark, trade-name or design developed specifically for the sole and exclusive use in conjunction with or to solely and exclusively identify the Complex are the sole property of Rama, which property may be assigned to a Rama Corporation. These trade-marks shall be used to identify the Complex, and Rama and OLG shall agree as to any new name or trade-mark to identify the Complex.

OLG (and the Operator, if any, on OLG’s behalf) may, to the extent that it deems appropriate for the purposes of carrying out its agreements and obligations, but is not required to, utilize such trade-marks and trade-names in connection with the operation of the Complex during the Applicable Period. During the Applicable Period, Rama grants to OLG and the Operator (on OLG’s behalf) a royalty-free, non-transferable, exclusive right to use such trade-marks and trade-names and any design relating thereto in connection with the operation, advertising and promotion of the Complex and related activities and the right to sub-license such rights; provided that Rama retains the right to use, the trade-marks, trade-names and designs relating to (i) soft goods and novelties such as t-shirts, sweaters and caps; (ii) stationery, business cards and other items used by and pertaining to the Rama First Nation and (iii) subject to the prior written approval of OLG, activities, events or attractions sponsored by Rama.

14.2 Operator Trade-Marks

Rama agrees that it shall consider any proposal or plan for the trade-marks, trade-names and designs of the Operator to be used in connection with the trade-marks, trade-names and designs of Rama to identify the Complex (the “Operator’s Trade-marks Plan”). Rama, OLG and the Operator shall work together expeditiously and diligently to review and consider the Operator’s Trade-marks Plan, and if acceptable to all Parties, acting reasonably, approve the Operator’s Trade-marks Plan.

Once Rama’s consent for the Operator’s Trade-marks Plan has been granted OLG and/or the Operator shall be permitted to use the trade-marks, trade-names and designs of the Operator in connection with the trade-marks, trade-names and designs of Rama in connection with the operation of the Complex in accordance with the Operator’s Trade-marks Plan which has been approved by Rama.

14.3 Intellectual Property

Subject to Section 14.1, the Parties acknowledge and agree that (other than Intellectual Property that includes the name “Rama” or any other Intellectual Property of Rama described in Section 14.1 above) any Intellectual Property developed during the Applicable Period for use in conjunction with the Complex and paid for by OLG or out of the proceeds of the operations of the Complex shall be the property of OLG.

Article 15
Intentionally Deleted

Article 16
Applicable Period and Termination

16.1 Applicable Period

This Agreement shall be effective as of the date hereof. This Agreement and the Applicable Period shall, subject to earlier termination in accordance with the provisions hereof and subject to any extensions in accordance with Section 16.2, terminate on July 31, 2031.

16.2 Extension of Applicable Period

The Parties agree that OLG shall have two successive options to extend this Agreement for successive extension periods of ten years and then five years, with the first such extension commencing on August 1, 2031. The exercise of each of the extension options shall be in the sole discretion of OLG, following consultation with Rama. In order to be effectively exercised, each extension option must be exercised by written notice given by OLG to Rama no later than eighteen months prior to the commencement of that extension period which is the subject of the extension option. If an extension notice is not given as aforesaid, this Agreement and the Applicable Period shall terminate on the later of July 31, 2031 and the expiration of any extension period for which an extension option has been exercised. Rama agrees and acknowledges that at the end of the Applicable Period, whether or not any extension options have been exercised, it shall not bring any legal action against OLG or the Province seeking an Order requiring the exercise by OLG of any extension option(s) or seeking compensation for any determination by OLG not to exercise such option(s).

16.3 Termination by OLG

Subject to Section 16.5 and to any agreements entered into between OLG, any of the Rama Entities and any lender in relation to a Leasehold Mortgage and any agreements entered into between OLG, any of the Rama Entities, and HMQC in relation to the New OLG Sublease, if one of the following events shall happen:

  1. any Party fails to make any payment when due to OLG under this Agreement and any such failure remains unremedied for 10 Business Days after notice thereof by OLG to such Party;
  2. any Party (other than OLG) fails to perform or observe any other term, covenant or agreement contained in this Agreement in any material respect and any such failure remains unremedied for 30 days after such other Party receives notice of such failure from OLG or such longer period as may be reasonably regarded as necessary to remedy such failure, provided that such other Party has commenced within a reasonable time and in good faith the remedying of such failure within such 30 day period and thereafter proceeds to complete with diligence and continuity the remedying thereof;
  3. any Party (other than OLG) fails to perform or observe any term, covenant or agreement contained in a Material Agreement in any material respect which has a material adverse effect on the operation of the Complex and such failure remains unremedied for 30 days after the date on which such other Party receives notice of such failure from OLG, or for such shorter grace period as may be provided for in the applicable Material Agreement, or for such longer period as may be reasonably regarded as necessary to remedy such failure; provided, however, that in the latter case such other Party has commenced within a reasonable time and in good faith the remedying of such failure within such 30 day period or within such shorter grace period as may be provided for in the applicable Material Agreement, and thereafter proceeds to complete with diligence and continuity the remedying thereof; or
  4. an Event of Insolvency should occur in respect of any Party (other than OLG),

then, in addition to any other rights OLG may have under this Agreement, if OLG believes in its reasonable judgment that the default or event, if it continues to exist, will not permit the Casino to be viably operated and that alternate remedies available to OLG against the defaulting party are not adequate under the circumstances, OLG shall have the right, at its option, upon at least 120 days prior written notice to the other Parties, to terminate this Agreement, whereupon each of the Material Agreements (including any replacement lease that may have been granted to OLG by HMQC in respect of the Complex Lands pursuant to the terms of any non-disturbance agreement) shall be terminated concurrently with the termination of this Agreement without any other notice.

16.4 Termination by Rama

Subject to Section 16.5, to any agreements entered into between OLG, any of the Rama Entities, and any lender in relation to a Leasehold Mortgage and any agreements entered into between OLG, any of the Rama Entities, and HMQC in relation to the New OLG Sublease, one of the following events shall happen:

  1. any Party fails to make any payment when due to any Rama Entities under this Agreement and any such failure remains unremedied for 10 Business Days after notice thereof by the relevant Rama Entity to such Party;
  2. OLG fails to perform or observe any covenant, agreement or term contained in this Agreement in any material respect and, as a consequence, there is a material adverse impact on Rama and any such failure shall remain unremedied for 30 days after the date on which OLG receives notice of such failure from Rama, or such longer period as may be reasonably regarded as necessary to remedy such failure, provided that OLG has commenced, or caused to be commenced, within a reasonable time and in good faith the remedying of such failure within such 30 day period and thereafter proceeds to complete, or causes to be completed, the remedying thereof with diligence and continuity;
  3. OLG fails to perform or observe any term, covenant or agreement contained in a Material Agreement in any material respect which has a material adverse impact on Rama and such failure remains unremedied for 30 days after the date on which OLG receives notice of such failure from Rama, or for such shorter grace period as may be provided for in the applicable Material Agreement, or for such longer period as may be reasonably regarded as necessary to remedy such failure; provided, however, that in the latter case OLG has commenced, or caused to be commenced, within a reasonable time and in good faith the remedying of such failure within such 30 day period or within such shorter grace period as may be provided for in the applicable Material Agreement, and thereafter proceeds to complete, or causes to be completed, the remedying thereof with diligence and continuity; or
  4. an Event of Insolvency should occur in respect of OLG,

then, in addition to any other rights Rama may have under this Agreement, if Rama believes in its reasonable judgment that the default or event, if it continues to exist, will not permit the Casino to be viably operated, and that alternate remedies available to Rama against OLG are not adequate under the circumstances, or if a change in Applicable Law should occur pursuant to which OLG is no longer an agent of Her Majesty the Queen in Right of Ontario with the right to conduct and manage casino gaming in the Province of Ontario, Rama shall have the right, at its option, upon at least 120 days prior written notice to the other Parties, to terminate this Agreement, whereupon each of the Material Agreements (including any replacement lease that may have been granted to OLG by HMQC in respect of the Complex Lands pursuant to the terms of any non-disturbance agreement) shall be terminated concurrently with the termination of this Agreement without any other notice.

16.5 Curing Defaults

  1. Cure Through Payment of Money. If an event giving rise to a right of termination under Section 16.3 or 16.4 has occurred and such event can be cured by the payment of money, then any Party hereto, at its option, may make such payment within the applicable grace period and, upon such payment, no Party shall have any right to terminate this Agreement. Notwithstanding the preceding sentence, any Party which is not the Party responsible for an event giving rise to a right of termination shall have a period of 30 days from and after receipt of a notice of termination given by any other Party hereto which has the right to terminate because of such an event of termination, within which to make such payment and to cause such notice of termination to become null and void. Any Party electing to make a payment pursuant to this Subsection 16.5(a) shall retain full rights to pursue any other remedies it may have under this Agreement or otherwise in respect of the event giving rise to the payment, other than any rights it may have in respect of termination of this Agreement.
  2. Cure Other Than Through Payment of Money. If an event giving rise to a right of termination under Section 16.3 or 16.4 has occurred and such event cannot be cured by the payment of money, but can be otherwise cured, then any Party, which is not responsible for the event giving rise to the right to terminate, may effect such cure within 30 days after such Party’s receipt of a written notice of termination from any other Party who has a right to give such notice, or within such longer period as may be reasonably regarded as necessary to effect such cure, provided that cure has commenced within such 30 day period and is thereafter prosecuted to completion with diligence and continuity. No Party shall have the right to terminate this Agreement or any other Party’s rights hereunder until it shall have given written notice of termination to every other Party and until all periods for effecting cure have expired. If cure has occurred, then no Party shall have any further right to terminate this Agreement on account of an event of termination which has been cured. Any Party electing to effect a cure under this Subsection 16.5(b) shall retain full rights to pursue any other remedies it may have under this Agreement or otherwise in respect of the event giving rise to the event cured, other than any rights it may have in respect of termination of this Agreement.
  3. Disputes. In the event that there is a dispute as to whether an event giving rise to a right of termination has occurred or as to whether such event has been cured within the applicable grace or cure period, such dispute shall be subject to the provisions of Section 21.1 and any applicable grace or cure period shall not commence until the final determination of such dispute in accordance therewith.

16.6 Payments on Termination

In addition to its rights of termination under Section 16.3, OLG shall have the right, at its option, upon at least 120 days prior written notice to the other Parties to terminate this Agreement if, for any six consecutive quarters of three months each, the operations of the Complex suffer a loss for each such quarter on the quarterly income statement for the Complex prepared on an accrual basis in accordance with Canadian generally accepted accounting principles consistently applied, save and except that for the purposes of the aforesaid calculation, the amount of the Win Contribution shall not be considered as paid or payable; provided always that OLG agrees that it shall ensure that the Complex continues to operate during such six (6) consecutive quarters. Upon any termination of this Agreement by OLG pursuant to this Section 16.6, OLG shall pay to Rama the fair market value of the lease payments payable to Rama pursuant to the remaining term of the Applicable Period under the New OLG Sublease, the Railway Lands Lease, and any other agreements relating to the lease or rental of lands or buildings forming part of the Complex (including Future Developments). The Parties will use good faith efforts to agree to such fair market value within 30 Business Days, failing which they shall jointly retain a member of a major accounting firm with expertise in real estate leases (the “Lease Expert”) within a further 10 Business Days to determine such fair market value, failing which, upon notice given by any Party and no sooner than five Business Days from but no later than 10 Business Days from the date of such notice, any Party may apply to the Superior Court of Justice (Ontario) for the appointment of a Lease Expert. The Lease Expert shall promptly determine such fair market value within 30 Business Days of the Lease Expert’s appointment. The costs of such Lease Expert shall be borne solely by OLG. Such Lease Expert’s determination of fair market value shall be final and binding on the Parties, absent manifest error.

16.7 Equitable Remedies

Each of the Parties to this Agreement acknowledges that the subject matter of this Agreement is unique, because of, among other things, the nature of casinos and the laws governing the construction and operation of casinos and that the failure of performance of the duties of a Party hereunder may cause irreparable harm to other Parties hereto who are likely to be without an adequate remedy at law. Accordingly, the Parties agree that equitable remedies including, without limitation, the remedies of specific performance and mandatory and prohibitory injunction, shall be available under appropriate circumstances.

Article 17
Indemnification

17.1 Indemnity by OLG

OLG will, from time to time and at all times hereafter, well and truly save, defend and keep harmless and fully indemnify the Rama Entities and each of their respective officers, employees and agents, or any of them of, from and against all manner of Losses which may be brought against or made upon the Rama Entities, their respective officers, employees and agents, or any of them and of, from and against all Losses which may be sustained, incurred or paid by the Rama Entities, their respective officers, employees and agents, or any of them, by reason of, or on account of, or in consequence of the default or breach by OLG or any of its officers, employees, agents or Persons for whom it is responsible in law in connection with the performance of this Agreement and the Material Agreements (including, without limitation, any Operator) of OLG’s obligations hereunder and will pay to the Rama Entities and to each such officer, employee or agent on demand any Losses which may be sustained, incurred or paid by the Rama Entities or by any of their respective officers, employees and agents in consequence of or in settlement of or in discharge or on account thereof and on default of payment by OLG of any Losses in accordance with this Section 17.1; any and all such monies so paid or payable may be deducted from any monies owing to OLG by the Rama Entities under this Agreement or any Material Agreement, or on any account whatever, or may be recovered from OLG in any court of competent jurisdiction as monies paid at OLG’s request.

17.2 Indemnity by Rama Entities

Rama will, from time to time and at all times hereafter, well and truly save, defend and keep harmless and fully indemnify OLG and its officers, employees and agents, or any of them, from and against all manner of Losses which may be brought against or made upon OLG and its officers, employees and agents, or any of them and of, from and against all Losses which may be sustained, incurred or paid by OLG and its officers, employees and agents, or any of them, by reason of, or on account of, or in consequence of the default or breach by any Rama Entity or any of a Rama Entity’s officers, employees, agents or persons for whom such Rama Entity is responsible in law in connection with the performance of this Agreement and the Material Agreements of any Rama Entity’s obligations hereunder and will pay to OLG and to each such officer, employee or agent on demand any Losses which may be sustained, incurred or paid by OLG, or by any of its officers, employees and agents in consequence of or in settlement of or in discharge or on account thereof and on default of payment by Rama of any Losses in accordance with this Section 17.2; any and all such monies so paid or payable may be deducted from any monies owing to any Rama Entity by OLG under this Agreement or any Material Agreement, or on any account whatever, or may be recovered from any Rama Entity in any court of competent jurisdiction as monies paid at such Rama Entity’s request.

17.3 Timely Notice

Whenever a Party (the “Indemnified Party”) shall become aware of any claim, whether threatened or actual, which would subject another Party (the “Indemnifying Party”) to the provisions of this Article 17, the Indemnified Party shall provide timely and written notice thereof to the Indemnifying Party, and each other Party to this Agreement, such notice stating whether the claim arises as a result of a Third Party Claim against the Indemnified Party and specifying with reasonable particularity the factual basis for the claim and the amount of the claim, if known. Upon the written request of an Indemnified Party, after receipt by it of any such notice, the Indemnifying Party shall furnish the Indemnified Party copies of all documents and provide any other material information relating to such claim that is in the possession or control of the Indemnifying Party (to the extent the Indemnifying Party may lawfully do so).

17.4 Third Party Claims

With respect to any Third Party Claim which gives rise to a claim for indemnity under Section 17.1 or Section 17.2, the Indemnifying Party shall have the right, at its expense, to participate in or assume control of the negotiation, settlement or defence of the Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s out of pocket expenses. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). In such circumstances, the Indemnified Party’s choice of counsel shall be subject to the prior written approval of the Indemnifying Party, acting reasonably; it being acknowledged by the Rama Entities that OLG may withhold its approval if a Rama Entity’s proposed counsel does not agree to retainer terms, including fees, which are acceptable to OLG. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party has elected to assume control, the Indemnified Party shall take all reasonable steps necessary to secure and preserve its rights in respect of any claim and, to the extent that the Indemnified Party has a right to commence a proceeding against another person (whether for damages, indemnification or otherwise) in respect of a matter for which the Indemnified Party is entitled to indemnification hereunder, the Indemnified Party shall assign that right to the Indemnifying Party and subrogate the Indemnifying Party to that right to the extent of the amounts for which the Indemnifying Party is liable under its indemnity.

17.5 Settlement of Third Party Claims

If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the liability of the Indemnifying Party shall be limited to the proposed settlement amount if any such consent is not provided by the Indemnified Party for any reason.

17.6 Co-operation

The Indemnified Party and the Indemnifying Party shall co-operate fully with each other with respect to Third Party Claims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available).

17.7 Miscellaneous Matters Regarding Third Party Claims

  1. If an Indemnifying Party is not a party to a Third Party Claim, the Indemnified Party shall consent to any order or leave that may be applied for by the Indemnifying Party to be added as a party or to be allowed to make representations on its own behalf without being a party.
  2. The expenses incurred by an Indemnified Party in investigating, defending or appealing any Third Party Claim shall, at the Indemnified Party’s written request, be paid by the Indemnifying Party on an ongoing basis, as is appropriate to allow the Indemnified Party to properly investigate, defend or appeal such Third Party Claim; provided that, if it is ultimately determined that the Indemnified Party is not entitled to be indemnified hereunder, the Indemnified Party shall immediately repay to the Indemnifying Party all amounts advanced. In the event that the Indemnifying Party is OLG, amounts so repayable to it shall be deemed to be payable as a debt due to the Crown in right of Ontario.

17.8 No Subrogation

Nothing in this Agreement shall be deemed to create any right of recovery whether by way of subrogation or otherwise on the part of any insurance or surety company.

17.9 Insured Claims

Notwithstanding the provisions of Sections 17.1 and 17.2, no Party will be required to make any payments pursuant thereto to any other Party of any such Losses to the extent such Losses are covered by insurance.

Article 18
Title Matters

18.1 Title to Complex and the Improvements

The Parties agree and acknowledge that first leasehold title to the lands identified as the Complex Lands and the existing Improvements listed in Schedule 1 hereto will be vested in Casino Rama Inc., subject, however, to the leasehold and subleasehold rights of OLG under the Railway Lands Lease and the New OLG Sublease, respectively, and the rights of any Operator pursuant to any further sublease, sub-sublease and/or licence granted under Section 18.2.

To the extent permitted by law and notwithstanding anything contained in this Agreement to the contrary, Rama, each of the Rama Entities and OLG acknowledges and agrees that title to any new Improvements constructed on the Complex Lands during the Applicable Period shall be vested and remain in OLG and/or the Operator during the Applicable Period even though the same may be attached, in whole or in part, to the Complex Lands and shall be held by OLG and/or the Operator free and clear of any claims and/or interest of the Rama Entities or those claiming through the Rama Entities until the expiration or earlier termination of the Applicable Period. In furtherance of the foregoing, OLG and/or the Operator, as the case may be, will have the exclusive right to claim all taxable benefits associated with the ownership of such new Improvements, including the amortization and depreciation of the same from time to time. At the expiry or the earlier termination of the Applicable Period, ownership of all of the Improvements shall automatically and without any formality be deemed to be vested in Casino Rama Inc., free and clear of any claims and/or interest of OLG and/or the Operator.

At all times during the Applicable Period, Rama shall not claim any ownership interest in any of the assets used in the Complex (save and except for furniture, furnishings and equipment, trade fixtures and other personal property owned by a Rama Entity and located in the premises subject to the Retail Stores and Warehouse Licence or the Tim Hortons Licence), including for greater certainty the FF&E.

18.2 Access to Complex

Rama hereby grants to OLG and to all Persons deriving access rights through OLG including any Operator engaged by OLG, and their respective officers, directors, employees, agents and representatives and permitted assigns (collectively, the “Licensees”), a royalty-free licence coupled with an interest in land (the “Licence”) pursuant to which the Licensees shall be entitled to full and unimpeded access to the Complex during the Applicable Period for all purposes consistent with the performance by OLG of its services hereunder and by OLG or any Operator of its services to operate the Complex. The Licence shall enure to the benefit of OLG, all Persons deriving access rights through OLG (including any Operator engaged by OLG) and their respective successors and permitted assigns and shall be binding upon the successors and assigns of Rama. Upon the written request of OLG, Rama will, subject to any required consents, execute a registerable document evidencing the grant of the Licence and OLG shall be entitled to register the same against title to the Complex Lands and any lands adjacent to the Complex Lands which are owned or controlled by any of the Rama Entities or any associated entities or persons thereof.

Article 19
Insurance

19.1 Insurance

OLG and/or the Operator shall purchase and maintain throughout the term of this Agreement, insurance that complies with the requirements of Schedule 3. OLG shall provide to Rama any information concerning such insurance as may be reasonably requested by Rama. OLG shall comply, and shall cause the Operator to comply, with all laws related to Workers Compensation and shall from time to time produce, or cause the Operator to produce, certificates evidencing such compliance.

Article 20
Destruction/expropriation

20.1 Destruction

Subject to the terms of any agreement to the contrary, if all or substantially all of the Complex shall be destroyed by fire or other casualty during the Applicable Period, OLG by written notice to Rama given within 120 days after the occurrence of such event, may elect to rebuild or restore the Complex or replacement facility. If OLG does not so elect during such 120 day period, the proceeds of any Insurance shall be paid to Rama, except as such proceeds relate to assets owned by OLG pursuant to Section 18.1.

20.2 Expropriation

If all or substantially all of the Complex is expropriated, this Agreement shall be deemed to be frustrated and the proceeds of compensation shall be distributed as follows:

  1. Rama shall receive from the expropriation proceeds an amount that is equal to (i) the fair market value of the Complex used for its highest and best use other than as a Casino, Hotel, Entertainment Centre and all businesses related to or ancillary to the operation of a Casino, Hotel and Entertainment Centre and (ii) the then present value of the Rama Fee (using an appropriate discount rate for the commercial real estate market at such time and using an annual Rama Fee that is equal to the average annual Rama Fee paid or payable over the preceding five years) for the remaining term of this Agreement (presuming the non-exercise of any extension options which had not already then been exercised). The Parties will use good faith efforts to agree to such fair market value, present value and discount rate within 30 Business Days of the expropriation proceeds being determined, failing which they shall jointly retain a member of a major accounting firm with expertise in real estate (the “Real Estate Expert”) within a further 10 Business Days to determine such fair market value, present value and discount rate, failing which, upon notice given by any Party and no sooner than five Business Days from but no later than 10 Business Days from the date of such notice, any Party may apply to the Superior Court of Justice (Ontario) for the appointment of a Real Estate Expert. The Real Estate Expert shall promptly determine such fair market value, present value and discount rate within 30 Business Days of the Real Estate Expert’s appointment. The costs of such Real Estate Expert shall be borne equally by OLG and Rama. Such Real Estate Expert’s determination of fair market value, present value and discount rate shall be final and binding on the Parties, absent manifest error.
  2. OLG shall receive the remainder of the expropriation proceeds.

Article 21
Enforcement Provisions

21.1 Notice of Dispute

In the event any dispute, claim, difference or question (a “Dispute”) arises among any of the Parties concerning the construction, meaning, effect, implementation of or compliance with this Agreement and a Party wishes to resolve such matter, then such Party shall provide notice to the other Parties of same. Where there is a Dispute, the Dispute shall, unless the Parties have determined to arbitrate the dispute in accordance with Section 21.2, be the subject of non-binding and without prejudice mediation by recourse to a Person or Persons generally recognized as having familiarity with and expertise in the matter which is the subject to the Dispute (an “Expert”), which, in the case of financial matters, shall be a member of a major accounting firm with experience in casino operations. Any Party may initiate such mediation by giving notice to the other Parties to that effect. Within 10 Business Days after the delivery of such notice, the Parties shall meet and attempt to appoint a single Expert for non-binding and without prejudice mediation of such Dispute. If the Parties are unable to agree on a single Expert within such 10 Business Day period then, upon notice given by any of them and within five Business Days of such notice, any Party may apply to a judge of the Superior Court of Justice (Ontario) for the appointment of an Expert. The Expert selected shall then promptly mediate the Dispute between the Parties and shall render its recommendation within 30 days of its appointment (the “Mediation Period”). The costs related to such mediation shall, in the absence of agreement between the Parties to the contrary, be borne equally by OLG and Rama. Each of the Parties agrees that it will use best efforts in engaging in any mediation and it will give substantial weight and due regard for the recommendation of the Expert. Notwithstanding the foregoing, following the Mediation Period, each of the Parties shall be entitled to seek resolution of such Dispute in accordance with its normal remedies and recourses available at law.

21.2 Arbitration

The Parties agree to give good faith consideration on a case by case basis to arbitration of any Dispute as a means of resolution of same.

Article 22
Assignment of Agreement

22.1 Transfer/Assignment:

Subject to the provisions of Article 12 respecting the assignment of revenue streams and Section 5.2, the Rama Entities may assign their rights and obligations under this Agreement in whole or in part (including the Rama Fee) by way of security or otherwise provided that (i) such assignment does not adversely affect the rights of OLG or any Operator; (ii) the assignee, to the extent it assumes obligations hereunder, agrees to be bound by the terms hereof in a form satisfactory to OLG, and (iii) such assignment is to a Person that has received the prior written consent of OLG as assignee, provided always that no assignment by any of the Rama Entities to such associated entities as may be necessary or desirable to implement a reorganization of relationships relating to interests in land on the Reserve for the purposes of the First Nations Land Management Act, S.C. 1999, c.24 shall require consent by OLG provided always that in each instance the assigning Rama Entity shall give OLG its continuing guarantee of the obligations of any relevant assignee.

OLG may not assign its rights and obligations under this Agreement in whole or in part without the prior written consent of Rama which can be arbitrarily withheld. OLG acknowledges being advised by Rama that a request to assign OLG’s rights and obligations under this Agreement to any Person other than a Person controlled by a Governmental Authority that may lawfully conduct and manage the operation of a Lottery Scheme is unlikely to receive consent.

22.2 Successors and Assigns

Subject to the foregoing, this Agreement shall enure to the benefit of and be binding upon the Parties hereto, their respective heirs, legal representatives, successors and permitted assigns.

22.3 Remedies

Any assignment, transfer, mortgage or other transaction by the Parties hereto in violation of the provisions of this Article 22 shall be null and void.

Article 23
General Provisions

23.1 Disclosure

Each of the Parties hereto acknowledges, agrees and consents to the disclosure of this Agreement and the Material Agreements as a matter of public record and further acknowledges and agrees that Applicable Law may require disclosure of information provided by any Party hereto to any Party or Parties hereto pursuant to or in connection with this Agreement or the Material Agreements. However, the Parties acknowledge and agree that information provided by any Party hereto to any other Party or Parties hereto pursuant to or in connection with this Agreement or the Material Agreements, including the Operating Policies (including all documents and correspondence relating to the negotiation hereof) may include trade secrets or scientific, technical, commercial, financial or labour relations information, supplied in confidence, disclosure of which could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of one or all of the Parties or result in undue loss to one or all of the Parties or undue gain to others. Further, such information may include information the disclosure of which could reasonably be expected to prejudice the economic interests of Rama, OLG or other Provincial government institutions or its or their competitive position and the proposed plans, policies or projects of Rama, OLG or other Provincial government institutions or the disclosure of which would reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a Person. Accordingly, except as may be required by Applicable Law, all such information provided by any Party hereto pursuant to or in connection with this Agreement or the Material Agreements shall be kept confidential by the Parties and shall only be made available to such of a Party’s employees, advisors and consultants as are required to have access to the same in order for the recipient Party to adequately use such information for the purposes for which it was furnished who shall be similarly bound to these provisions and, in the case of the Rama Entities, to Governmental Authorities or to their lenders in order to comply with financial disclosure requirements. The Parties agree that any lender of a loan related to the Complex approved by Rama and OLG shall be entitled to disclosure of such confidential information provided that any such lender enters into a confidentiality agreement acceptable to OLG and Rama. The Parties further agree that this Section shall not apply to prevent any Party from disclosing any information provided by any Party hereto pursuant to or in connection with this Agreement or the Material Agreements to the Operator.

23.2 Notices

Any notice, demand, request, consent, agreement or approval which may be or is required to be given pursuant to this Agreement or the Material Agreements shall be in writing and shall be sufficiently given or made if served personally upon the Party for whom it is intended, or mailed by registered mail, return receipt requested or sent by facsimile or email transmission and in the case of:

  1. OLG, addressed to it at:

    4120 Yonge Street
    Suite 420
    Toronto, Ontario
    M2P 2B8

    Telecopier: 416-224-1772
    Attention: Vice President Gaming
    E-mail: jmacfarlane@OLG.ca

  2. any of the Rama Entities, addressed to it at:

    Chief and Council
    Chippewas of Rama First Nation

    Suite 200
    5884 Rama Road
    Rama, Ontario
    L3V 6H6

    Telecopier: 705-325-0879
    Attention: Chief
    Email: chief@ramafirstnation.ca

or to such other address or in care of such other officers as a Party may from time to time advise to the other Parties by notice in writing. The date of receipt of any such notice, demand, request, consent, agreement or approval if served personally or by facsimile or email transmission shall be deemed to be the date of delivery thereof (if such day is a Business Day and if not, the next following Business Day), or if mailed as aforesaid, the date of delivery by a postal authority.

23.3 No Partnership or Joint Venture

Nothing contained in this Agreement shall be construed to be or create a partnership or joint venture between the Parties, their successors and permitted assigns nor, to render any of them, the agent or other authorized representative of another for any purpose.

23.4 Modification and Changes

This Agreement cannot be changed or modified except by another agreement in writing signed by the Parties sought to be charged therewith, or by their duly authorized agent(s).

23.5 Enforceability

If any provision of this Agreement is determined to be invalid, illegal or unenforceable as written, such provision shall be enforced to the maximum extent permitted by Applicable Law.

23.6 Time of Essence; Extensions or Abridgements of Time

Time shall in all respects be of the essence hereof. The time for doing or completing any matter provided for herein may be extended or abridged by an agreement in writing signed by the Parties or by their respective counsel who are hereby expressly appointed in that regard.

23.7 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada and Rama First Nation applicable therein. In the event of a conflict of laws, the laws of the Province of Ontario shall prevail.

23.8 Submission to Jurisdiction: Waivers

Each of the Parties irrevocably agrees that any action or proceeding with respect to this Agreement or for recognition and enforcement of any judgment in respect thereof brought by any other Party hereto or its successors or assigns, may be brought and determined in the Superior Court of Justice (Ontario), and each of the Parties hereby irrevocably submits generally and unconditionally, to the nonexclusive jurisdiction of the aforesaid court; provided, however, that such consent to jurisdiction is solely for the purpose referred to in this Section 23.8 and shall not be deemed to be a general submission to the jurisdiction of said court or in the Province of Ontario other than for such purpose. Each of the Parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defence, counterclaim or otherwise in any action or proceeding with respect to this Agreement any claim that it is not personally subject to the jurisdiction of the above-named court for any reason other than the failure to serve process in accordance with this Section 23.8, that it is exempt or immune from jurisdiction of such court or from any legal process commenced in such court.

23.9 Survival of Covenants

Any covenant, term or provision of this Agreement which, in order to be effective must survive the termination of this Agreement, shall survive any such termination.

23.10 Third Parties

None of the rights or obligations hereunder of any Party shall enure to the benefit of or be enforceable by or against any party other than the Parties to this Agreement and their respective successors and permitted assigns.

23.11 Waivers

Failure by any Party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement, or to exercise any right or remedy consequent upon the breach thereof, shall not constitute a waiver of any such breach or any subsequent breach of such covenant, agreement, term and condition. No covenant, agreement, term or condition of this Agreement and no breach thereof shall be waived, altered or modified except by written instrument. No waiver of any breach shall affect or alter this Agreement, but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.

23.12 Force Majeure

Notwithstanding any other provision of this Agreement, if, by reason of Force Majeure, a Party is unable to perform in whole or in part its obligations under this Agreement, then in such event and only during such period of inability to perform, such Party shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform, so caused, shall not make such Party liable to any other, and any time period in which such obligation is to be performed shall be extended for such period of inability to perform. Any Party so affected shall use all reasonable commercial efforts to otherwise comply with its obligations hereunder.

23.13 Approvals

Wherever the provisions of this Agreement contemplate an approval or consent of or to or a decision with respect to any action, person, firm, corporation, document or plan by any Party, this Agreement (unless the text hereof expressly states that such approval or consent may be arbitrarily or unreasonably withheld) shall be deemed to provide that:

  1. such request for approval, consent or decision shall:
    1. clearly set forth the matter in respect of which such approval, consent or decision is being sought;
    2. form the sole subject matter of the correspondence containing such request for approval, consent or decision; and
    3. clearly state that such approval, consent or decision is being sought;

    otherwise such request shall be deemed never to have been made;

  2. such approval, consent or decision shall be in writing; and
  3. such approval, consent or decision shall not be unreasonably withheld or delayed.

23.14 Counterparts and Electronic Transmission

This Agreement may be executed in counterparts and may be delivered originally or by facsimile, email or other electronic communication, and each such original, facsimile or electronic copy when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.

23.15 Inconsistency

In the case of any inconsistency between the terms and conditions of a Material Agreement other than the Ground Lease and this Agreement, the terms and provisions of this Agreement shall prevail. In the case of any inconsistency between the terms and conditions of the Ground Lease and this Agreement, the terms and provisions of this Agreement shall prevail unless such inconsistency would put Casino Rama Inc. in breach of the provisions of the Ground Lease in which case the terms of the Ground Lease shall prevail.

[signature pages follow]

in witness whereof, the Parties hereto have executed or caused this Agreement to be executed, all as of the day and year first above written.

ontario lottery and gaming corporation

by:

Name:

Title:

Name:

Title:

chippewas of rama first nation

by:

Name:

Title:

casino rama Inc.

by:

Name:

Title:

For the purposes only of the termination of the agreements and the Permits as described in Section 2.4 of this Agreement, the following persons have executed or caused this Agreement to be executed, all as of the day and year first above written.

455457 ontario inc.

by:

Name:

Title:

Name:

Title:

1176290 ontario limited (o/a biindigen gift shop)

by:

Name:

Title:

rama access Inc.

by:

Name:

Title:

Schedule 1
Description of Complex Lands

Complex Lands:

Lots 101, 102, 103, 104, 105, and 106, Plan 78406 CLSR

Lots 31-8 and 31-9, Plan 79146 CLSR

Lot 107, Plan 80801 CLSR

Lot 121, Plan 83863 CLSR

Lots 99-1 and 122, Plan 83864 CLSR

Lots 32-20, 98-1 and 98-2, Plan 100258 CLSR

Part 1 on Plan 51R-29344, being the lands leased under the Railway Lands Lease.

Schedule 1: Improvements existing on the Effective Date:

Site Plan of the Complex Lands which includes lands described in Schedule 1 of the Post-2011 Contract.

Schedule 2

[Intentionally Deleted]

Schedule 3
Insurance

All policies will comprise coverage in respect of the lands and Improvements subject to the:

  1. Ground Lease and New OLG Sublease;
  2. Railway Lands Lease; and
  3. such other lands and Improvements as may become part of the Complex, from time to time,

and as the above-referenced documents may be extended, modified or replaced, from time to time; but, for greater certainty, shall not comprise coverage in respect of the Community Facilities, the Off-Site Infrastructure Facilities or those insurance coverages required to be maintained by the Rama Entity that is licensee pursuant to the Retail Stores and Warehouse Licence or the Tim Hortons Licence.

Each such policy shall contain a waiver by the insurer of the rights of recourse or subrogation by the insurer against OLG, the Operator (if any), Rama, the Rama Corporations and HMQC as represented by the Minister of Aboriginal Affairs and Northern Development Canada (“INAC”)

All insurance shall be in such form and with such companies as shall be satisfactory to OLG. The policies shall specify that they are primary and if any other policies of insurance are determined to apply to any claim, such other policy coverages shall be deemed to be in excess of the policies purchased pursuant to this Agreement. All policies shall provide for a minimum of sixty (60) days’ notice of cancellation or non-renewal.

All insurance policies shall be written by insurers acceptable to OLG and that have an A.M. Best rating of A- or higher.

All insurers shall be authorized to do business in the Province of Ontario and shall have demonstrated an ability and a ready willingness to defend and settle claims or actions brought in jurisdictions other than the Province of Ontario.

A. Property Insurance, Machinery and Equipment Breakdown and Business Interruption

Property Insurance: OLG and/or the Operator shall maintain “All Risk of Loss” Property Insurance with limits equal to the full “Replacement Cost” of the structures insured. The policy shall contain terms and conditions consistent with industry standards. Such insurance shall also extend to all property of every description contained within or associated with the structure. In addition, flood, earthquake and/or other special perils and hazards are to be insured where reasonable and with limits in accordance with industry norms and standards. Deductibles will be the direct responsibility of OLG and/or the Operator and the amount of any deductibles will be determined by OLG. OLG and/or the Operator will provide written notice to Rama within 30 days of any increase in deductibles to an amount greater than two hundred and fifty thousand dollars ($250,000 Canadian).

In addition, the policy shall be endorsed to provide protection for “Increased Cost of Construction Due to by Laws”.

Machinery and Equipment Breakdown: OLG and/or the Operator shall maintain insurance on a comprehensive form for the full value of all boiler and machinery equipment including air conditioning equipment and shall include all piping, valves, pressure tanks, hoses, liens and related apparatus and shall include coverage “on-site”, “in transit” and “testing”.

Business Interruption: OLG and/or the Operator shall maintain business interruption insurance, with recovery under the policy equal to the projected profits for a minimum period of twelve (12) months and include terms and conditions consistent with a standard “Profits” form. In the event of a claim on this insurance, the Rama Fee payable by OLG to Rama shall be the greater of: (i) 1.9% (one and nine-tenths per cent) of the Gross Revenues that form the basis of the amount of profits paid by the insurer under the Business Income insurance; and (ii) the $5.5 million dollar ($5,500,000) annual minimum calculated on a pro rata basis for the time period in respect of which the business interruption insurance is paid.

For each of the above coverages, OLG, Casino Rama Inc. and HMQC shall be additional named insureds, and Rama and the Operator shall be added to the policy as a loss payee as their interests may appear.

B. General Liability Insurance

OLG and/or the Operator shall maintain comprehensive general liability insurance with terms and conditions no less restrictive than is customary for similar operations. OLG and/or the Operator shall be the named insured on the general liability policy. OLG and/or the Operator, Rama, the Rama Corporations and HMQC shall be added to the policy as additional insureds. The policy shall contain cross liability and severability of interest clauses. Such policy shall have a minimum twenty-five million dollar ($25,000,000 Canadian) per occurrence limit of liability.

The foregoing minimum insurance requirement may be achieved by combining general liability, umbrella and excess liability policy limits.

C. Automobile Liability Insurance

OLG and/or the Operator shall maintain automobile liability insurance covering all owned, leased, hired and borrowed vehicles used in support of the operation of the Complex, such insurance having a minimum policy limit of at least five million dollars ($5,000,000) per occurrence.

D. Crime Insurance

OLG and/or the Operator shall maintain crime insurance on a claims made basis covering money, securities and other property for loss inside and outside the Complexes in an amount of at least five million dollars ($5,000,000) per claim.

E. Other Coverages

OLG and/or the Operator shall maintain such other coverages in respect of such other risks against which it is now, or hereafter may be, customary to insure in the operation of similar properties, but for greater certainty shall not include any insurance required by the Ground Lease.

Schedule 4

off-site road and related improvements

  1. The Intersection of County Road 44 and Highway 12
    • Dedicated southbound right-hand turn lane
    • Signalization improvements
  2. Highway 12 and Atherley Road Intersection
    • Signalization
    • Turn lane improvements
  3. Casino Entrance at Country Line Road #44
    • Northbound right-hand turn lane
    • Resurfacing of roadway
    • Signalization

Schedule 5

[Intentionally Deleted]

Schedule 6
First Amendment to the Railway Lands Lease

(See Attached)

First Amendment to the Amended and Restated Lease

this first amendment to the amended and restated lease is made as of the ___ day of June, 2017 (the “Extension Date”).

between:

chippewas of rama first nation, also known as the chippewas of mnjikaning first nation (hereinafter referred to as the “Lessor”),

of the first part,

- and -

ontario lottery and gaming corporation (hereinafter referred to as the “Lessee”),

of the second part.

whereas pursuant to a lease made as of August 1, 2000 between the Lessor and the Lessee (as amended restated, supplemented and/or otherwise modified, collectively, the “Original Railway Lands Lease”), the Lessor leased the Lands to the Lessee on the terms and conditions set forth therein for a term that expires on March 13, 2021;

and whereas pursuant to an amended and restated lease made as of August 1, 2011 between the Lessor and the Lessee (the “Amended and Restated Railway Lands Lease”), the Lessor and the Lessee amended and restated the terms and conditions of the Original Railway Lands Lease for a term that expires on March 13, 2021;

and whereas pursuant to an agreement entitled Amended and Restated Post-2011 Contract made as of June ___, 2017 between OLG, the Lessor and Casino Rama Inc., as may be amended, restated or replaced from time to time (the “Amended and Restated Post-2011 Contract”) the Lessor and the Lessee agreed to amend the terms and conditions and extend the term of the Amended and Restated Railway Lands Lease, with effect as of the date hereof (the “First Amendment”);

and whereas unless otherwise defined herein, all capitalized terms and expressions used in this First Amendment have the meaning attributed thereto in the Amended and Restated Railway Lands Lease.

now therefore in consideration of the respective covenants of the Parties hereinafter contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the Parties), the Parties covenant and agree as follows:

  1. The Amended and Restated Railway Lands Lease is hereby extended and further amended as follows:
    1. A new definition of “Basic Rent” is added to Section 1 as follows:
      ““Basic Rent”
      has the meaning given thereto in Section 4 of this Lease.”
    2. The definition of “Commercial Ground Lease Agreement” in Section 1 is hereby deleted and replaced as follows:
      ““Commercial Ground Lease Agreement”
      means the lease entered into between Her Majesty the Queen in Right of Canada and Casino Rama Inc. registered in the Indian Lands Registry as Instrument no. ____________________, as amended, supplemented, restated or replaced from time to time.”;
    3. A new definition of “Extension Date” is added to Section 1 as follows:
      ““Extension Date”
      means the ____ day of June, 2017.”
    4. The definition of “Post-2011 Contract” in Section 1 is deleted and the new definition of “Amended and Restated Post-2011 Contract” is added as follows:
      ““Amended and Restated Post-2011 Contract ”
      means the agreement entitled Amended and Restated Post-2011 Contract made as of June ___, 2017 between the Lessor, the Lessee, and Casino Rama Inc., as such agreement may be amended, restated and/or replaced from time to time.”;
    5. The definition of “Term” in Section 1 is hereby deleted and replaced with the following:
      ““Term”
      means the period commencing on the date of the Original Railway Lands Lease and terminating concurrently with the expiry or earlier termination of the Applicable Period under the Amended and Restated Post-2011 Contract, as the Applicable Period may be extended from time to time thereunder.”
    6. Section 3 of the Amended and Restated Railway Lands Lease by adding the words “and the Improvements thereon” after “the Lessor hereby leases the Lands”.
    7. Section 4 of the Amended and Restated Railway Lands Lease is hereby deleted and replaced with the following:

      “The Lessee shall pay annual rent in the amount of $155,697.59 (“Basic Rent”) for the use and occupation of the Lands and the Improvements thereon.

      For each successive twelve-month period commencing April 1, 2018, the annual Basic Rent shall be subject to an upward adjustment only based on the number obtained by multiplying the annual Basic Rent for the previous period by a fraction the numerator of which is the CPI for the month of January in the year for which the annual Basic Rent adjustment is being determined and the denominator of which is the CPI for the month of January preceding the commencement of the previous twelve month period.

      Basic Rent shall be payable, in advance, in equal monthly installments calculated on the basis of a twelve-month year on the first day of each and every month beginning on the Effective Date. Where any month during the Term is less than a whole month, the Lessee shall pay to the Lessor the monthly Basic Rent on a pro rata basis based on the number of days in the month that the Lessee has possession of the Lands and the Improvements thereon.”

    8. The following is added as the second paragraph of Section 5:

      “Notwithstanding anything contained herein and/or in the Amended and Restated Railway Lands Lease, the Lessor acknowledges and agrees that the Lessee is under no obligation to occupy and/or operate in all or part of the Lands at any time so long as the Lessee continues to pay the rent in the manner contained herein.”

  2. Each of the parties hereto acknowledges and agrees that the Lease as amended by this First Amendment remains in good standing and in full force and effect and is hereby ratified and confirmed.
  3. Each of the parties hereto agrees to do, make and execute all such further documents, agreements, assurances, acts, matters and things and take such further actions as may be reasonably required from time to time in order to more effectively carry out the true intent of this First Amendment.
  4. This First Amendment shall be governed by the laws of the Province of Ontario and the Federal laws applicable thereto.
  5. This First Amendment shall enure to the benefit of and be binding upon the parties and their legal respective successors and permitted assigns.
  6. This First Amendment may be executed by the parties in separate counterparts each of which when so executed and delivered to all of the parties shall be deemed to be and shall be read as a single agreement among the parties. In addition, execution of this First Amendment by any of the parties may be evidenced by way of a PDF transmission of such party’s signature (which signature may be by separate counterpart), or a photocopy of such PDF transmission, and such PDF signature, or photocopy of such PDF signature, shall be deemed to constitute the original signature of such party to this First Amendment.

[Remainder of this page intentionally left blank]

in witness whereof the Lessor and the Lessee have entered into this agreement as of the date first written above.

chippewas of rama first nation

Per:

Name:

Title:

Per:

Name:

Title:

I/We have the authority to bind the First Nation

ontario lottery and gaming corporation

Per:

Name: Gregory McKenzie

Title: Executive Vice President, Chief Operating Officer

Per:

Name: Barbara Anderson

Title: Senior Vice President, Chief Financial Officer

We have the authority to bind the corporation

Schedule 7
New OLG Sublease

(See Attached)

Complex Sublease

this sublease made as of the ____ day of June, 2017.

between:

casino rama inc., (hereinafter referred to as the “Sublessor”)

of the first part;

- and -

ontario lottery and gaming corporation, (hereinafter referred to as the “Sublessee”)

of the second part.

Recitals

whereas pursuant to the Lease, the Sublessor, as lessee, leases the Premises from the Crown, as lessor;

and whereas the Demised Land is described in the Amended Designation on lands known as the Rama Indian Reserve no. 32, which have been set apart for the use and benefit of the First Nation;

and whereas the Amended Designation, amongst other things, permits the Premises to be leased by the Crown for those purposes set forth in the Lease and for the Lease to allow subleases;

and whereas immediately prior to the execution and delivery of the Lease and this Sublease the Sublessee released and surrendered any interest it held in the Premises including pursuant to the Original Sublease, the Administration Building Lease, the Warehouse Lease, the Complex Parking Lands Permits, and the Employee Parking Lot Licence;

and whereas immediately prior to the execution and delivery of the Lease and this Sublease the Sublessor released and surrendered any interest it held in the Premises including pursuant to the Original Lease, the Original Sublease, certain Complex Parking Lands Permits, the Employee Parking Lot Permit, and the Employee Parking Lot Licence;

and whereas immediately prior to the execution and delivery of the Lease and this Sublease Affiliates of the Sublessor released and surrendered any interest they held in the Premises including pursuant to the Original 455457 Lease, the Warehouse Lease the Administration Building Lease, and certain Complex Parking Lands Permits;

and whereas the First Nation, as lessor, leases the Railway Lands Premises to the Sublessee, as lessee, pursuant to the Railway Lands Lease;

and whereas the Sublessor and the Sublessee have agreed to enter into this Sublease to sublease the Premises from and after the Effective Date;

and whereas the Band Council has by Resolution Number ___________ dated the ____day of _____________________, 2017, consented to the subleasing of the Premises to the Sublessee under the terms and conditions of this Sublease;

now therefore this indenture witnesses that in consideration of the premises and the covenants and agreements herein set forth and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each party hereto), the parties hereto agree as follows:

1. definitions:

In this Sublease:

“Affiliate”
means any Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the party specified;
“Administration Building Lease”
means the Commercial Net Lease (Administration Building) between 455457 Ontario Inc. (an Affiliate of the Sublessor), as lessor, and OLG, as lessee, dated August 1, 2011 relating to space in a building located on Lot 31-8, CLSR Plan 79146;
“Alterations”
has the meaning ascribed thereto in the Lease;
“Amended Designation”
means the Amended Designation (Instrument of Non-Absolute Surrender), and accepted by the Minister by Ministerial Order dated the 9th day of June, 2016, and registered in the Registry on June 24, 2016 as Instrument no. 6093056;
“Area Development Plan”
has the meaning ascribed thereto in the Lease;
“Architect”
has the meaning ascribed thereto in the Lease;
“Artifact”
has the meaning ascribed thereto in the Lease;
“Band Council”
means the Chippewas of Rama First Nation Band Council;
“Basic Rent”
has the meaning ascribed thereto in Section 3 below;
“Building Permit”
has the meaning ascribed thereto in the Lease;
“Business Day”
means any day which is not Saturday, Sunday or a day observed as a holiday under the applicable Laws in the Province of Ontario;
“Complex Parking Lands Permits”
means, collectively(a) Permit 241187 made as of May 6, 1996 between the Crown, as permittor, and Weat Access Inc. (now Rama Access Inc.), as permittee, respecting Lot 101 CLSR Plan 78406; and (b) Permit 241188 made as of May 6, 1996 between the Crown, as permittor, and Weat Access Inc. (now Rama Access Inc.), as permittee, respecting Lots 103 and 104 CLSR Plan 78406, (c) Permit 283929 made as of August 1, 2000 between the Crown, as permittor, and Sublessor, as permittee, respecting Lot 122 CLSR Plan 83864; and (d) Permit 283932 made as of August 1, 2000 between the Crown, as permittor, and Sublessor, as permittee, respecting Lot 107 CLSR Plan 80801, Lot 121 CLSR Plan 83863 and Lot 99-1 CLSR Plan 83864;
“Construction Plan”
has the meaning ascribed thereto in the Lease;
“Contaminant”
has the meaning ascribed thereto in the Lease;
“Control” (including the terms “Controlling”, “Controlled by” and “under common Control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise;
“CLSR”
means the Canada Lands Survey Records maintained by the Department of Indian Affairs and Northern Development;
“CPI”
means the Consumer Price Index prepared by Statistics Canada (base year 2002 = 100) or its successor or successors for Ontario (all items) or any successor index or compilation prepared by Statistics Canada, its successor or successors; in the event that there ceases to be such an index or compilation, a similar measure selected by OLG and approved by Rama, in writing;
“Crown”
means Her Majesty The Queen in Right of Canada;
“Demised Land”
means the lands that are the subject of the Amended Designation, being those certain parcels or tracts of land situate and lying within and being part of the Rama Indian Reserve no. 32, in the Province of Ontario as more particularly described in Schedule A attached hereto;
“Effective Date”
means the date of this Sublease;
“Employee Parking Lot Licence”
means the Employee Parking Lot Licence agreement dated May 31, 2012 between the Sublessor, as licensor, and the Sublessee, as licensee;
“Employee Parking Lot Permit”
means Permit 6064998 made as of May 1, 2012 between the Crown, as permittor, and the Sublessor, as permittee, respecting Lot 32-20 CLSR 100258;
“Engineer”
has the meaning ascribed thereto in the Lease;
“Environment”
has the meaning ascribed thereto in the Lease;
“Environmental Laws”
has the meaning ascribed thereto in the Lease;
“Environmental Review”
has the meaning ascribed thereto in the Lease;
“FF&E”
means all furniture, furnishings, equipment (including all equipment relating to any Lottery Scheme conducted and managed by the Sublessee), Trade Fixtures, apparatus and other personal property used in, held in storage for use in, or required in connection with the operation of the Premises from time to time, but does not include First Nation FF&E;
“First Nation”
means the Chippewas of Rama First Nation, a “band” within the meaning of the Indian Act;
“First Nation FF&E ”
means all furniture, furnishings and equipment, Trade Fixtures and other personal property, in each case, owned by the First Nation or the Sublessor or their respective Affiliates and located in those parts of the Premises that are subject to the Retail Stores and Warehouse Licence;
“Governmental Authority”
means any federal, provincial, municipal, or other governmental authority having jurisdiction in respect of the Premises , or the occupation or use of the Premises, including the First Nation, the Band Council and any utility company lawfully acting under its statutory power;
“Improvements”
means improvements, as determined according to the common law, and includes any buildings, structures, works, facilities, infrastructure, services, landscaping, and other improvements (including any equipment, machinery, apparatus, and other such fixtures forming part of or attached to the Improvements), made by any Person that are, from time to time, situated on, under, or above the Demised Land, but excludes FF&E and First Nation FF&E;
“Indian Act”
means the Indian Act, R.S.C. 1985, c. I-5;
“Laws”
means all laws, statutes, regulations, codes and by-laws;
“Lease”
means the lease of the Premises dated on or about the Effective Date, between the Crown, as lessor, and the Sublessor, as lessee, to be registered in the Registry;
“Leasehold Mortgagee”
means the holder from time to time of any mortgage granted by the Sublessor of the Sublessor’s interest under the Lease and in the Premises and its successors and permitted assigns;
“Lottery Scheme”
has the meaning ascribed thereto in the Criminal Code of Canada, R.S.C. 1985, c C-46;
“Minerals”
has the meaning ascribed thereto in the Lease;
“Minister”
means the Minister of Indian Affairs and Northern Development or any Person authorized to act on his/her behalf;
“Operator”
means the Person, if any, appointed from time to time by the Sublessee to operate the Premises and includes its successors and permitted assigns (including its lenders);
“Original 455457 Lease”
means the lease dated October 30, 1981 from the Crown to Calum Construction Ltd. and 455457 Ontario Inc. respecting a part of the Premises as more particularly described therein and registered in the Registry as instrument no. 78553, as amended from time to time;
“Original Lease”
means the lease dated March 15, 1986 from the Crown to the Sublessor respecting a part of the Premises as more particularly described therein and registered in the Registry as instrument no. 241181, as amended from time to time;
“Original Post-2011 Contract”
means, collectively, the Post-2011 Contract Relating to Casino Rama dated July 17, 2009 between the Sublessor, the Sublessee ,the First Nation, Rama Access Inc. and 455457 Ontario Inc., as amended by the Post-2011 Contract First Amending Agreement dated June 25, 2014 and as further amended by letter agreements dated December 17, 2015, June 16, 2016, September 9, 2016, November 1, 2016, December 16, 2016, February 9, 2017, February 27, 2017, April 18, 2017, May 8, 2017, May 18, 2017 and May 29, 2017;
“Original Sublease”
means, collectively, the sublease made as of April 15, 1996 between the Sublessor, as sublandlord, and the Sublessee (then its statutory predecessor, Ontario Casino Corporation), as subtenant, and the Amended and Restated Complex Sublease made as of July 17, 2009 between the Sublessor and the Sublessee;
“Permitted Uses”
has the meaning ascribed thereto in Section 4 below;
“Person”
includes any individual, partnership, firm, company, corporation, incorporated or unincorporated association or society, co-tenancy, joint venture, syndicate, fiduciary, estate, trust, bank, government, governmental or quasi-governmental agency, board, commission or authority, organization or any other form of entity however designated or constituted, or any group, combination or aggregation of any of them;
“Planner”
has the meaning ascribed thereto in the Lease;
“Post-2011 Contract”
means the Amended and Restated Post-2011 Contract made as of the Effective Date among the Sublessee, the First Nation and the Sublessor;
“Premises”
means the Demised Land, including all Improvements located thereon or any part of the Demised Land and Improvements;
“Project”
has the meaning ascribed thereto in the Lease;
“Registry”
means the Reserve Land Register under section 21 of the Indian Act;
“Railway Lands”
means part of PIN no. 74018-0040 (LT), being part of Lots 5 and 6, in the Front Range of Lots on Lake Couchiching, in Township of Ramara, formerly the Township of Rama, in the County of Simcoe, designated as Part 1 on Plan 5 lR-29344, having an area of approximately 1.465 acres;
“Railway Lands Lease”
means the Amended and Restated Lease of the Railway Lands dated August 1, 2011 between the First Nation, as lessor, and the Sublessee, as lessee, as amended by the First Amending Agreement made as of the Effective Date;
“Railway Lands Premises”
means the Railway Lands, together with all other Improvements of any kind erected or located on the Railway Lands from time to time;
“Release”
has the meaning ascribed thereto in the Lease;
“Retail Stores and Warehouse Licence”
means, collectively, the Casino Rama Retail Stores and Warehouse Licence agreement made as of the Effective Date and the Casino Rama Tim Hortons Retail Licence agreement made as of the Effective Date, in each case, between the Sublessee, as licensor, 1176290 Ontario Limited (o/a Biindigen Gift Shop), as licensee, and the First Nation, as indemnitor;
“Sublease”
means and refers to this sublease, including the schedules attached hereto, and any written amendments hereof, made from time to time and executed by both parties;
“Sublessee”
means Ontario Lottery and Gaming Corporation, its successors and permitted assigns;
“Sublessor”
means Casino Rama Inc., its successors and permitted assigns;
“Sublessor’s Surrender Notice”
has the meaning ascribed thereto in Section 28(b) below;
“Substantial Completion”
has the meaning ascribed thereto in the Lease;
“Taxes”
has the meaning ascribed thereto in the Lease;
“Term”
means, unless sooner terminated in accordance with Section 26 below, the period commencing on the Effective Date and terminating on July 31, 2031, provided that the Term shall be extended for successive extension periods of ten years (from August 1, 2031 to July 31, 2041) and then five years (August 1, 2041 to July 31, 2046) if OLG exercises its options to extend the Applicable Period for the same successive 10 year and 5 year time periods in accordance with Section 16.2 of the Post-2011 Contract.
“Trade Fixtures”
means trade fixtures as determined at common law and, for greater certainty, includes the personal chattels installed during the Term by or on behalf of the Sublessee or any of its sublessees, licensees or other Persons occupying the Premises in, on, or which serve the Premises for the sole purpose of the Sublessee or any of its sublessees, licensees or other Persons occupying and carrying on its trade in the Premises, but do not include Improvements;
“Unavoidable Delay”
collectively, has the meaning ascribed thereto in the Lease and the meaning ascribed to “Force Majeure” under the Post-2011 Contract;
“Utilities Expenses”
has the meaning ascribed thereto in Section 5(a) below; and
“Warehouse Lease”
means the Commercial Net Lease (Warehouse Building) dated August 1, 2011 between 455457 Ontario Inc. (an Affiliate of the Sublessor), as lessor, and OLG, as lessee.

2. Demise and Quiet Enjoyment:

The Sublessor hereby subleases the Premises to the Sublessee to hold during the Term, and the Sublessee, provided it is not in default of its obligations under this Sublease beyond any applicable cure period, is entitled to quiet enjoyment of the Premises, subject to every other part of this Sublease.

3. Basic Rent:

The Subtenant agrees to pay to the Sublessor annual rent in the amount of $9,002,587.70 (the “Basic Rent”) during the Term.

For each twelve-month period commencing April 1, 2018, the annual Basic Rent shall be subject to an upward adjustment only based on the number obtained by multiplying the annual Basic Rent for the previous period by a fraction the numerator of which is the CPI for the month of January in the year for which the annual Basic Rent adjustment is being determined and the denominator of which is the CPI for the month of January preceding the commencement of the previous twelve month period.

Basic Rent shall be payable, in advance, in equal monthly installments calculated on the basis of a twelve-month year on the first day of each and every month beginning on the Effective Date. Where any month during the Term is less than a whole month, the Sublessee shall pay to the Sublessor the monthly Basic Rent on a pro rata basis based on the number of days in the month that the Sublessee has possession of the Premises.

4. Permitted Uses:

The Premises shall be used only for the purposes of the construction, operation, management, maintenance and/or replacement of any Lottery Scheme, casino, hotel, entertainment complex, storage facility, offices for the administration of the Premises, retail stores, restaurants, conference facility, parking lots, access roads and uses that are ancillary to the foregoing from time to time (the “Permitted Uses”). Without limiting the foregoing, the Sublessor confirms that the uses of the Premises that exist on the Effective Date are Permitted Uses.

5. Utilities:

  1. During the Term, the Sublessee shall contract and pay for all water, gas, telephone, light, power, heat, air-conditioning, sewer and garbage disposal services and facilities used in, supplied to, or consumed in connection with the use of the Premises (collectively, “Utilities Expenses”) when the same become due and payable.
  2. No interruption of any services or facility provided to the Premises which is not caused by the Crown or the Sublessor or their respective officials, employees or agents will be or will be deemed to be a disturbance of the Sublessee’s enjoyment of the Premises or render the Sublessor liable for injury or damages to the Sublessee or relieve the parties hereto from their obligations under this Sublease.

6. Improvements and Alterations:

  1. The Sublessor agrees that, subject to any consultation rights of the Sublessor contained in the Post-2011 Contract and herein, the Sublessee shall be entitled during the Term to cause Improvements and Alterations to be made, constructed, demolished, altered, remodelled or replaced (including the construction of roads and the provision of water, sewer, electricity or gas systems on the Demised Land), provided that such Improvements and Alterations comply with the Permitted Uses and the balance of this Section 6.
  2. Prior to beginning any construction of Improvements or making any Alterations on the Premises (including any Project), the Sublessee shall:
    1. obtain all necessary Building Permits, permits and licences at its expense;
    2. if required pursuant to article 6 of the Lease, prepare and deliver, or cause to be prepared and delivered to the Sublessor, a Construction Plan. Any such Construction Plan shall be certified by an Architect or Engineer and completed on the basis that it may be relied on by the Crown and the Sublessor;
    3. if required pursuant to article 6 of the Lease, prepare and deliver, or cause to be prepared and delivered to Sublessor, an Area Development Plan or an amendment to the Area Development Plan for the Premises certified by an Architect, Engineer or Planner and completed on the basis that it may be relied on by the Crown and the Sublessor. The Sublessee acknowledges and agrees that:
      1. prior to delivering or causing the delivery of an Area Development Plan or an amendment to the Area Development Plan, Sublessee shall invite the Sublessor (or cause the Sublessor to be invited) to participate in the planning process for such Area Development Plan or amendment to the Area Development Plan for the Premises, and agrees that the Sublessee shall consult with the Sublessor (or cause the Person preparing the Area Development Plan or amendment to the Area Development Plan for the Premises to consult with the Sublessor) with respect to any decisions regarding such Area Development Plan or amendment to the Area Development Plan for the Premises; and
      2. the Sublessee shall submit or cause to be submitted to the Sublessor details of the proposed construction including plans and specifications prepared by an Architect, Engineer or Planner, and such other information as may be required under section 6 of the Lease;
    4. if required pursuant to section 6.6 of the Lease, provide to the Crown (or cause to be provided) a performance bond, letter of credit or other similar security meeting the requirements of the Lease. Security will be in such form that is consistent with industry standards from time to time, or in such other form satisfactory to the Crown with sureties, if required, approved by the Crown.
    5. if required pursuant to section 15.2 of the Lease, prepare and deliver, or cause to be prepared and delivered to the Crown, an Environmental Review of the proposed Project that includes identifying the potential environmental effects of the Project, whether the Project is likely to cause significant adverse environmental effects and any required mitigation measures to address such significant adverse environmental effects, for Crown’s review and approval. The Sublessee acknowledges and agrees that:
      1. if the report delivered in connection with the Environmental Review does not meet with the satisfaction of the Crown, acting reasonably, the Sublessor will cause the Crown to identify and notify the Sublessee in writing of each inadequacy in the report and the Sublessee will ensure that the inadequacies are addressed to the satisfaction of the Crown, acting reasonably, in a revised written report; and
      2. the Sublessee acknowledges and agrees that approval of the Environmental Review and the Project may be withheld, unless the Crown determines that the Project is unlikely to cause significant adverse environmental effects.
  3. The Sublessee covenants and agrees that all construction of additional Improvements and the making of all Alterations:
    1. shall comply with Laws, and with the Ontario building, fire, electrical, and other similar codes, in effect at the time of the construction, to the same extent as if such construction had been on fee simple lands in the Province of Ontario;
    2. shall be planned and completed promptly in a good and workmanlike manner;
    3. shall be developed in accordance with, as applicable, the Area Development Plan, the Construction Plans, any mitigation measures required under an Environmental Review of a Project proposed for the Premises and any environmental, use or other development conditions or restrictions in the Lease;
    4. shall not be occupied or used until such construction has reached Substantial Completion, provided that Substantial Completion may occur in respect of portions of such additional Improvements and Alterations; and
    5. once construction has started will proceed with diligence to complete construction, will notify Sublessor if there is an Unavoidable Delay and will act diligently and take all commercially reasonable steps to remove any Unavoidable Delay.
  4. After the construction of any additional Improvements or Alterations, the Sublessee will promptly deliver to the Sublessor reproducible and as-built drawings certified by an Architect or Engineer and confirming that industry standards and codes have been met with respect to the construction of such additional Improvements or Alterations, as the case may be..

7. Improvements:

  1. The parties hereto confirm that those certain Improvements shown on Schedule 1 to the Post-2011 Contract exist on the Demised Land as of the Effective Date. The Sublessor and the Sublessee acknowledge and agree that first leasehold title to the Demised Land and the existing Improvements shown on Schedule 1 to the Post-2011 Contract will be vested in the Sublessor, subject, however, to the exclusive possessory rights of the Sublessee under this Sublease and the rights of any Person pursuant to any further grant of any interest in the Premises by the Sublessee in accordance with Section 34 of this Sublease from time to time.
  2. To the extent permitted by Laws and notwithstanding anything contained in this Agreement to the contrary, the Sublessor and the Sublessee acknowledge and agree that title to any new Improvements and Alterations constructed on the Demised Land from and after the Effective Date shall, during the Term, be vested and remain in the Sublessee and/or its sublessees during the Term even though the same may be attached, in whole or in part, to the Demised Land and shall be held by the Sublessee and/or any of its further sublessees, free and clear of any claims and/or interests of the Sublessor or those claiming through the Sublessor until the expiration or earlier termination of the Term. In furtherance of the foregoing, the Sublessee and/or any of its further sublessees, as determined between the Sublessee and its further sublessees, will have the exclusive right to claim all taxable benefits associated with the ownership of such new Improvements and Alterations, including the amortization and depreciation of the same from time to time. At the expiry or the earlier termination of the Term, title and ownership of all of the Improvements and Alterations shall automatically and without any formality be deemed to be vested in the Sublessor, free and clear of any claims and/or interest of the Sublessee or any of its further sublessees.
  3. At all times during the Term, the Sublessor or those claiming through the Sublessor shall not claim any ownership interest in any of the FF&E of the Sublessee and/or its sublessees, licensees or, except for the First Nation FF&E, that may be located at the Premises from time to time. The Sublessee may grant the right of ownership of any FF&E and the right to remove such FF&E to any of its sublessees, licensees or other Persons occupying the Premises, provided that the Sublessee repairs or causes such sublessees, licensees or other Persons occupying the Premises to repair any damage caused to the Premises by removing such FF&E. Any FF&E left on the Premises after the expiry of the Term, and not removed by the Sublessee within a reasonable period of time after Notice from the Sublessor specifying any such FF&E to be removed, shall automatically become the property of the Sublessor and may be used by it or disposed of by it without reference to any of the Sublessee’s sublessees, licensees or other Persons occupying the Premises. Unless otherwise agreed, Sublessee shall pay to the Sublessor all of its costs incurred for removing FF&E at the end of the Term, including the costs of repairing damage caused by the removal of such FF&E.
  4. Notwithstanding the provisions of Section 7(c), the Sublessee shall remove any mechanical, electronic and other equipment, devices, fixtures, signs and other items used in or held for use in connection with any of the casino games from the Premises within a reasonable period of time following the expiry of the Term. In the event that the Sublessee fails to remove such items, the Sublessor agrees that it shall not use or dispose of such items, except in accordance with applicable Laws.

8. State of Repair:

In accordance with and subject to the limitations hereinafter provided, the Sublessee shall cause the Premises to be kept in a good and tenantable state of repair, subject to reasonable wear and tear and to any damage caused by fire or any other casualty (which shall be governed by Section 9 of this Sublease), including but not limited to, the Premises and appurtenances and equipment thereof, both inside and outside, including but not limited to all fixtures, walls, foundations, roofs, heating and air-conditioning equipment, sidewalks, yards, and other like areas, water and sewer mains and connections, water, steam, gas and electric pipes and conduits and all other fixtures and appurtenances to the Premises, and machinery and equipment used or required in the operation thereof, whether or not enumerated herein. The foregoing includes causing any and all necessary repairs, ordinary or extraordinary, foreseen or unforeseen, structural or otherwise, to be made and, subject as aforesaid, cause the Improvements and appurtenances and equipment to be kept fully usable for all the purposes for which the Improvements were erected and constructed and the aforesaid appurtenances and equipment were supplied and installed and it is agreed that, subject as aforesaid, such obligations shall be undertaken in all respects to a standard at least substantially equal in quality of material and workmanship to the original work and material in the Improvements. The Sublessor confirms that it is not aware of any breach of the foregoing requirement with respect to the Premises as of the date hereof.

9. Damage to, or Destruction of, Improvements:

If any Improvements are damaged or destroyed during the Term, then:

  1. the Sublessee must promptly notify the Sublessor;
  2. this Sublease will not be deemed to have ended;
  3. there will be no reduction or postponement of the Basic Rent;
  4. if less than all or less than substantially all of the Improvements at the Premises are destroyed by fire or other casualty during the Term the Sublessee will repair or replace the Improvements within a reasonable time in accordance with the terms of this Sublease, except where such damage or destruction occurs:
    1. when the Sublessee’s option(s) to extend the Applicable Period under the Post-2011 Contract has or have expired or when the Sublessee has given written notice to the Sublessor within 12 months from the last day for exercising its option to extend the Applicable Term that it does not intend to exercise its option to extend the Applicable Period;
    2. after July 31, 2043; or
    3. where the Improvements that were damaged or destroyed were identified in the Sublessor’s Surrender Notice as an Improvement to be removed in accordance with Section 28(b) hereof,

then, in each case, the provisions of Section 9(e) shall apply;

  1. if all or substantially all of the Premises are destroyed by fire or other casualty during the Term, or one of subsections 9(d)(i), 9(d)(ii) or 9(d)(iii) applies, then, in each case, the Sublessee by written notice to the Sublessor and the Crown, given within 120 days after the occurrence of such event, may elect to repair or replace the Improvements. If the Sublessee does not so elect within such 120 day period the proceeds of insurance shall be paid to the Crown, except such proceeds that relate to the personal assets of the Sublessee and Sublessor, including FF&E. The Sublessor may then at its option enter upon the Demised Land in accordance with Section 27 hereof, and may cause such repairs to be effected at the Sublessor’s expense.

10. Compliance with Applicable Laws:

The Sublessee shall comply with all applicable Laws regarding the Lease, this Sublease, the Premises, or any activity on the Premises, provided that the Sublessee shall have the right to contest the validity of any Laws that may be imposed by the First Nation from time to time. Subject to the foregoing, the Sublessee will require that any of its further sublessees (but excluding any Persons occupying any part of the Premises pursuant to the Retail Stores and Warehouse Licence) also comply with all applicable Laws.

The Sublessee will promptly deliver to the Sublessor copies of any notice it receives from a Governmental Authority requiring something to be done, or stop being done, on the Premises. Once the matter under such notice has been resolved to the Governmental Authority’s satisfaction, the Sublessee will promptly deliver proof, satisfactory to the Sublessor acting reasonably, evidencing the resolution.

11. Authorization of Crown to Receive Information:

On written request from the Crown, the Sublessee will promptly deliver to the Crown written authorization to allow the Crown to receive information from a Governmental Authority regarding the Sublessee’s compliance or non-compliance with applicable Laws. The Sublessee will also require that, on written request from the Crown, any of its further sublessees (but excluding any Persons occupying any part of the Premises pursuant to the Retail Stores and Warehouse Licence) promptly deliver to the Crown written authorization to receive information from a Governmental Authority about the Person’s compliance or non-compliance with applicable Laws regarding this Sublease, the Premises, or any activity on the Premises.

12. Fire Services:

To the extent that the Fire Protection and Prevention Act (Ontario), does not apply to the Premises or the activities carried out on the Premises under this Sublease, the Sublessee will ensure that the Premises are inspected in accordance with that Act and, in addition, are inspected once every three years for compliance with that Act by a Person who is licensed in the Province of Ontario to conduct such inspections. That Person must prepare and deliver to the Sublessor and Sublessee an inspection report addressed to each of them which would include any recommended actions resulting from the inspection. The Sublessee shall promptly comply with (or cause to be complied with) the recommended actions in the inspection report and notify the Sublessor (or cause the Sublessor to be notified) of that compliance when completed.

13. Payment of Taxes:

  1. Without limiting the generality of Section 10, the Sublessee will pay, or cause to be paid, on or before the due date in each and every year during the Term, all applicable Taxes, trade licences, rates, levies, duties, and assessments of any kind together with all charges, penalties and interest imposed by any Authority, whether regarding the Premises, Improvements, sales, transactions, or business related to the Premises or the occupation of the Premises by any Person (but excluding any Persons occupying any part of the Premises pursuant to the Retail Stores and Warehouse Licence) or regarding payment of Rent or other amounts payable by the Sublessee hereunder, but excluding any Taxes, rates, levies, duties and/or assessments that are personal to the Sublessor.
  2. Without in any way relieving or modifying the foregoing, the Sublessee may at its own expense, contest or appeal the validity or amount of any Tax, trade licence, rate, levy, duty, assessment, charge, penalty, or interest referred to above, provided that the Sublessee promptly commences any proceedings to contest or appeal the validity or amount and continues the proceedings with all due diligence and does not cause a charge, encumbrance or claim to be made against the Premises.
  3. The Sublessee will, on request by the Crown, provide the Crown with official receipts of any applicable Governmental Authority or other proof satisfactory to the Sublessor evidencing payment of any applicable Taxes

14. Environmental Standards: The Sublessee will use and occupy the Premises in compliance with applicable Environmental Laws. The Sublessee will not use or permit the use of the Premises to generate, manufacture, refine, treat, transport, store, handle, transfer, produce, release or process any Contaminant, except as may be reasonably required for the Permitted Uses and in strict compliance with applicable Environmental Laws.

The Sublessee will not carry out, or permit to be carried out, any operations or activities or construct any Alterations or Improvements that in the opinion of the Crown, acting reasonably, materially increase the risk of liability to the Crown (whether direct or indirect) as a result of the application of applicable Environmental Laws.

The Sublessor may, at its option, consider the Sublessee to be in default of this Sublease upon the default by the Sublessee of any provision contained in this Section 14, provided, however, that the Sublessor shall give the Sublessee notice of the default containing reasonable details in respect of such default, and allow the Sublessee an opportunity to cure such default within the times specified in Section 19.1.2 of the Lease.

15. Removal of Contaminants: The parties acknowledge that the Sublessee shall pay or cause to be paid the costs of any remedial action on the Demised Land which may be required by any applicable Environmental Law to mitigate any damage to the environment arising from or attributable to the use of the Demised Land by, or the operation and activities of, the Sublessee, its officers, directors, agents, employees and that any of its further sublessees (but excluding any Persons occupying any part of the Premises pursuant to the Retail Stores and Warehouse Licence) during the Term.

16. Release of Contaminants: Upon the discovery by the Sublessee of a Release of any Contaminants, in, on, or under the Demised Land, in each and every case, in breach of applicable Environmental Laws, or the Sublessee’s receipt of notice by any Person following their discovery of a Release of any Contaminants in breach of applicable Environmental Laws, in, on, or under the Demised Land, the Sublessee will:

  1. immediately deliver written notice to the Sublessor and any appropriate Governmental Authority of the occurrence of the Release;
  2. ensure any written notice includes details relating to the Release including the time and extent of the Release, the estimated amount of Contaminants Released, the remedial action taken prior to the delivery of the notice (if any), the remedial action to be taken in order to contain the Release, and any Persons observed who appeared to have caused or who were in the vicinity of the Release;
  3. immediately remove from the Premises any Contaminants Released, and take all remedial action necessary to fully rectify the effects of the Release in, on or under the Premises in compliance with all reasonable requests by the Crown and all applicable Environmental Laws, provided that, in the event the Release of Contaminants which gives rise to such remedial action is caused by or arises out of the actions or inactions of the Sublessor or those for whom it is responsible for at law, the Sublessor shall fully reimburse and indemnify the Sublessee for any costs and expenses associated with the remedial action required by this Section 16(c);
  4. provide the Sublessor with an environmental site assessment report, prepared by a qualified independent consultant, specifying the Sublessee’s activities under Section 16(c) and the state of the Demised Land after such activities as compared with the state of the Demised Land prior to the Release; this report will be addressed to the Sublessee, the Sublessor and the Crown, and will state that such report may be relied upon by them; and,
  5. undertake such further activities as the Sublessor may reasonably require to remove Contaminants Released in breach of applicable Environmental Laws and rectify the Release, based on the report referred to in Section 16(d).

17. Environmental Inspection: Subject in all cases and at all times to Section 27 of this Sublease, the Crown may, at any time during the Term, access and inspect the Premises and conduct any environmental site assessment or other testing, audit or investigation that the Crown deems necessary to determine the compliance of the Sublessee’s use of the Premises with applicable Environmental Laws. The Sublessee shall reimburse the Sublessor for any costs assessed against it by the Crown pursuant to Section 15.5 of the Lease.

18. Survival of Environment Sections: Sections 14, 15 and 16 of this Sublease survive the expiration or earlier termination of this Sublease.

19. Insurance:

The Sublessee shall cause the insurance specified in the Post-2011 Contract to be obtained and maintained throughout the Term.

20. Waste:

Subject to the other provisions of this Sublease, the Sublessee will not cause, permit or suffer the commission of any waste of the Premises.

21. Garbage:

Without limiting any of the Sublessee’s obligations under this Sublease, the Sublessee will not cause, permit or suffer any garbage or debris to be placed or left at the Premises except as is reasonably necessary in accordance with the Permitted Uses or as otherwise permitted in writing by the Sublessor.

22. Nuisance:

Except as required by the construction or removal of the Improvements or making Alterations, the Sublessee will not cause, permit or suffer any nuisance at the Premises. The Sublessor acknowledges and agrees that the Permitted Uses of the Demised Land, including without limitation, the lawful operation of a Lottery Scheme and casino entertainment complex with ancillary uses and facilities and infrastructure related thereto shall not be construed as a nuisance.

23. Mineral Rights:

The Sublessee acknowledges that it is aware of the provisions of Section 3.4 of the Lease and in particular the rights of the Crown set forth therein. The Sublessor agrees that in the event it receives any notice from the Crown regarding the Crown’s exercise of its Mineral rights under the Lease or any compensation relating thereto, that it shall provide such notice to the Sublessee forthwith. The Sublessee agrees to co-operate with the Sublessor and the Crown to permit the Crown to exercise its rights under Section 3.4 of the Lease.

In the event that the Crown exercises any of its Mineral rights under the Lease:

  1. the Sublessor and the Sublessee shall co-operate with each other so that each of the Sublessor and the Sublessee (including any of its further sublessees) may receive the maximum compensation to which it may be entitled pursuant to the terms of the Lease or applicable Laws; and
  2. if requested by the Sublessee, Sublessor agrees to provide authorization to the Sublessee to independently pursue its own claim for compensation against the Crown.

24. Artifacts and Survey Monuments:

If any Artifact is discovered on the Demised Land at any time during the Term, then:

  1. the Sublessee will immediately cease any work and promptly notify the Sublessor of the Artifact and send a copy of the notification to the Band Council ;
  2. if there are no applicable First Nation or federal Laws relating to the disturbance of the Artifact, then the Sublessee must comply with (or cause compliance with) the requirements set out in the Ontario Heritage Act (Ontario), and with the requirements of the Band Council; and
  3. if any legal survey monument is disturbed, damaged, or destroyed during the Term, the Sublessee shall ensure that it is replaced by a licensed surveyor to the satisfaction of the Surveyor General of Canada.

25. Insolvency:

If the Sublessee shall at any time during the Term:

  1. file a petition in bankruptcy or make an assignment for the benefit of creditors;
  2. be adjudicated a bankrupt or insolvent;
  3. file any petition or institute any proceeding under any bankruptcy or insolvency act seeking to effect a reorganization or a composition;
  4. be subject to the appointment of a receiver or trustee who is not discharged within 60 days from the date of such appointment; or
  5. commence proceedings to wind up,

then, in addition to any remedies set forth in the Post-2011 Contract, accelerated Basic Rent for the period three months next following the date of bankruptcy or other event, calculated at the same rate as would have been payable if no bankruptcy or other event enumerated herein had taken place, shall immediately become due and payable, provided, however, that notwithstanding the foregoing, this Sublease shall only be terminable prior to the end of the Term as provided in Section 26 below.

26. Termination:

This Sublease shall terminate prior to the end of the Term if and only if:

  1. the Lease is terminated in accordance with section 18.2 or subsection 19.1.3 thereof, subject, however, to the rights of the Sublessee to continue to occupy the Demised Land pursuant to any non-disturbance agreement between the Sublessee and Crown; or
  2. the Post-2011 Contract is terminated in accordance with Section 16.3, Section 16.4 or Section 16.6 thereof.

27. Inspection of and Access to the Demised Land:

It is acknowledged and agreed that the Sublessor’s authorized representative, or an authorized representative on behalf of the Crown, shall have the right at all reasonable times during the Term to enter upon the Demised Land for the purpose of inspecting any of the Improvements made thereon. Whenever the Sublessor exercises the rights of access granted to the Sublessor pursuant to this Sublease or the Crown exercises the rights of access granted to the Crown pursuant to the Lease:

  1. the Sublessor or the Crown, shall provide reasonable notice to the Sublessee regarding the exercise of the right of access, except in the case of an emergency, where the Sublessor or the Crown shall not be required to provide such notice, but shall provide notice to the Sublessee of any such emergency access as soon as reasonably possible thereafter, and
  2. notwithstanding anything to the contrary in this Sublease, the Sublessor and the Crown shall not be granted access to sensitive or secure areas related to the conduct and management of a Lottery Scheme at the Premises without first complying with the Sublessee’s policies and procedures for such access, including the Sublessor and/or the Crown, as the case may be, being accompanied by the Sublessee at all times when accessing such areas.

28. Surrender of Demised Land:

  1. At the expiration or earlier termination of the Term, the Sublessee shall peaceably surrender and yield up unto the Sublessor, the Demised Land and subject to the remainder of this Section 28, all Improvements, and the Sublessee shall surrender all keys for the Improvements and other locking devices to the Sublessor at the place then fixed for the payment of the Basic Rent, or at the Sublessor’s direction, to the Band Council.
  2. Upon written notice from the Sublessor (the “Sublessor’s Surrender Notice”) delivered in accordance with the terms of this Sublease at least sixteen (16) months before the expiry of the Term, the Sublessee will, in an expeditious manner and no later than six (6) months after the expiry of the Term (the “Restoration Period”), remove from the Demised Land any or all of the Improvements listed, described and designated for removal by the Sublessee in the Sublessor’s Surrender Notice. Subject to the rights of the Sublessee to choose not to rebuild Improvements after damage or destruction as set forth in Section 9 hereof, the Sublessee will leave the remainder of the Improvements not listed, described and designated for removal in the Sublessor’s Surrender Notice in good and substantial repair and condition, reasonable wear and tear excepted, and free from all debris in accordance with the standard required by this Sublease.
  3. Where any Improvements are required to be removed from the Demised Land in accordance with the Sublessor’s Surrender Notice, the Sublessee shall tear down such Improvement(s), remove all debris, fill in all excavations, restore grading and return the Demised Land where such Improvement(s) previously existed to the Sublessor in a vacant state.
  4. If the Sublessee does not remove the Improvements listed, described and designated for removal in the Sublessor’s Surrender Notice prior to the expiry of the Restoration Period, then the Sublessor may remove them and dispose of them in the Sublessor’s sole and absolute discretion. Upon notice from the Sublessor, the Sublessee will expeditiously pay to the Sublessor all the Sublessor’s reasonable out-of-pocket costs and expenses incurred in the removal and disposal of such Improvements and in making good all damage caused to the Demised Land by such removal. The Sublessor will not be responsible to the Sublessee for any loss suffered by the Sublessee as a result of the removal or disposal of the Improvements.
  5. If the Sublessor does not deliver the Sublessor’s Surrender Notice, the Sublessee shall have no obligation to remove any of the Improvements from the Demised Land at the expiry of the Term.
  6. The Sublessor hereby grants a license to the Sublessee to access the Premises after the Sublease ends at reasonable times and only to the extent required to be able to perform any of the Sublessee’s obligations that survive after the Sublease ends, including the removal of any Improvements listed, described and designated for removal in the Sublessor’s Surrender Notice. The Sublessee will not be construed as being in possession of all or any part of the Premises solely by the exercise of the Sublessee’s obligations under this section.
  7. To the extent necessary to allow the Sublessee to perform its obligations under subsection (e) above, this Section 28 shall survive the expiration of this Sublease.

29. Sublessor Covenants re: Lease:

The Sublessor covenants in favour of the Sublessee:

  1. to perform those obligations under the Lease which have not been expressly assumed by the Sublessee pursuant to the Post-2011 Contract or hereunder, including the payment of any rent when due to the Crown thereunder and, except as expressly assumed by the Sublessee hereunder or in the Post-2011 Contract, the Sublessor agrees that the Sublessee shall have no obligations to perform any of the Sublessor’s obligations under the Lease;
  2. to enforce against the Crown for the benefit of the Sublessee the duties and obligations of the Crown under the Lease;
  3. not to alter, amend, modify, restate, supplement, surrender, release, forfeit or otherwise terminate the Lease (including exercising its option to terminate pursuant to Section 3.5 of the Lease) or take or fail to take any action that would (1) increase the Sublessor’s covenants or obligations or (2) reduce the Sublessor’s rights or remedies under the Lease, without the prior written consent of the Sublessee, which consent may be withheld by the Sublessee in its sole and absolute discretion;
  4. as between the Sublessor and the Sublessee, not to grant any mortgage which results in a charge of the Sublessor’s leasehold interest under the Lease to any Leasehold Mortgagee (including any debenture, deed of trust, bond, assignment of rent, or any other means) except as may be permitted under the Post-2011 Contract or with the Sublessee’s prior written consent, which consent shall not be unreasonably withheld, but which consent may be withheld if the Sublessor has not delivered a non-disturbance and attornment agreement from such Leasehold Mortgagee in favour of the Sublessee which recognizes the Sublessee’s rights under this Sublease in form and substance acceptable to the Sublessee, acting reasonably; and
  5. to promptly forward to the Sublessee any formal notices, statements or written communications which the Sublessor receives from the Crown in connection with the Lease, the Sublease or the Demised Land and give rise to or which could reasonably be expected to give rise to an obligation of the Sublessee under this Sublease,

it being understood that, for greater certainty, as between the Crown and the Sublessor, nothing in this Sublease shall relieve the Sublessor from any of its obligations to the Crown under the Lease.

The Sublessor will indemnify and save harmless the Sublessee from those liabilities, damages, expenses, actions, causes of action, suits, claims, judgments or demands, arising from or caused by reason of a breach by the Sublessor of any of the covenants to be observed and performed by the Sublessor under the Lease or this Section 29 of the Sublease. The foregoing indemnity shall survive the expiration or early termination of this Sublease.

30. Lease Defaults; Right to Cure under the Lease:

  1. The Sublessor covenants and agrees that in the event it receives any default notice from the Crown under the Lease, that the Sublessor shall forthwith provide such notice to the Sublessee.
  2. In the event that the default notice received under the Lease relates to a default caused by the default of the Sublessee of any provision of this Sublease or the Post-2011 Contract, the Sublessee agrees that it shall take all such measures necessary to cure the default identified in any such default notice in accordance with the terms of this Sublease as soon as reasonably possible after receipt of same. If the Sublessee fails to forthwith proceed to cure such default then the Sublessor may, at its option and in its sole and absolute discretion, cure such default and shall be permitted to take all actions, make any payments and incur any costs, expenses and liabilities deemed necessary by the Sublessor in its sole and absolute discretion to cure the default described in any default Notice received in respect of the Lease.
  3. The Sublessee hereby agrees to reimburse the Sublessor for all payments, liabilities, costs and expenses made or incurred by the Sublessor pursuant to Section 30(b). The foregoing obligation of the Sublessee to pay the Sublessor’s payments, liabilities, costs and expenses (including interest, if applicable) shall survive the expiration or early termination of this Sublease.
  4. Unless the default notice relates to a default that is caused by the default of the Sublessee under this Sublease or the Post-2011 Contract, the Sublessor agrees that it shall take all such measures necessary to cure the default identified in any default notice received in respect of the Lease in accordance with the terms of the Lease as soon as reasonably possible after receipt of same. If the Sublessor fails to forthwith proceed to cure the default then the Sublessee may, at its option and in its sole and absolute discretion, cure such default, and shall be permitted to take all actions, make any payments and incur any costs, expenses and liabilities deemed necessary by the Sublessee in its sole and absolute discretion to cure the default described in any default Notice received in respect of the Lease.
  5. The Sublessor hereby agrees to reimburse the Sublessee for all payments, liabilities, costs and expenses made or incurred by the Sublessee pursuant to Section 30(d). The foregoing obligation of the Sublessor to pay the Sublessee’s payments, liabilities, costs and expenses (including interest, if applicable) shall survive the expiration or early termination of this Sublease.

31. Sublessee’s Right to Set Off:

If the Sublessor does not reimburse the Sublessee for its payments, liabilities, costs and expenses (and interest, if applicable) made or incurred by the Sublessee in accordance with Section 30(e) prior to the following payments of Basic Rent due to the Sublessor from the Sublessee under this Sublease, the Sublessor hereby agrees that the Sublessee shall, without limiting any other rights and remedies available to the Sublessee under this Sublease or otherwise, be permitted to set off such payments, liabilities, costs and expenses made or incurred by the Sublessee (and interest, if applicable) not reimbursed by the Sublessor to the Sublessee, against (A) the Basic Rent that would otherwise be due and payable by the Sublessee to the Sublessor under this Sublease and/or (B) any payments owning by the Sublessee to any party under the Post-2011 Contract.

32. Sublessee Lease Obligations:

Pursuant to section 16.2.2 of the Lease, but subject to the terms of any non-disturbance agreement, the Sublessee acknowledges in favour of the Crown:

  1. that the Sublessee is not relying on the Crown’s judgment or expertise in the its review of Area Development Plans and Construction Plans and the Sublessee hereby releases the Crown from any liability for the Crown’s review;
  2. the Sublessee will include a provision similar to Section 32(a) in any further sublease that the Sublessee grants;
  3. subject to the terms and provisions of any non-disturbance agreement to which the Crown, the Sublessor and the Sublessee are parties and the Sublessor’s covenants in Section 29 hereof, this Sublease is expressly subject and subordinate to the Lease;
  4. any further sublease granted by a Sublessee in respect of its interest under this Sublease will be subject and subordinate to the Lease;
  5. upon the written request from the Crown, the Sublessee will promptly deliver to the Crown written authorization to receive information from a Governmental Authority about the Sublessee’s compliance or non-compliance with all applicable Laws regarding the Sublease, the Premises, and any activity on the Premises; and
  6. the Crown shall not be liable for any losses or expenses of the Sublessee due to the Crown curing or attempting to cure a default under section 19.1 of the Lease.

33. Transfer/Assignment:

The Sublessee may not assign its interest in this Sublease without the prior written consent of the Sublessor which can be arbitrarily withheld. The Sublessee acknowledges being advised by the Sublessor that a request to assign the Sublessee’s interest in this Sublease to any Person other than a Person controlled by a Governmental Authority that may lawfully conduct and manage the operation of a Lottery Scheme is unlikely to receive consent.

Subject to Section 29(d), the Sublessor may assign its rights and obligations under this Sublease in whole or in part by way of security or otherwise provided that (i) such assignment does not adversely affect the rights of the Sublessee or any Operator; (ii) the assignee, to the extent it assumes obligations hereunder, agrees to be bound by the terms hereof in a form satisfactory to the Sublessee, acting reasonably; and (iii) such assignment is to a Person that has received the prior written consent of the Sublessee as the Sublessor’s assignee, provided always that no assignment by the Sublessor to its Affiliates as may be necessary or desirable to implement a reorganization of relationships relating to interests in land on the Reserve for the purposes of the First Nations Land Management Act (Canada) shall require consent by the Sublessee, and provided always that in each instance the Person assigning this Sublease shall first give the Sublessee its continuing guarantee of the obligations of any relevant assignee.

34. Right to Further Sublease:

The Sublessee may further sublease all, but not less than all, of its interest in the Premises under this Sublease to any Person, and license or grant the right to occupy the Premises granted by this Sublease to such Person, and may cause any such Person to assume and perform any of the Sublessee’s obligations hereunder, all without the consent of the Sublessor.

In the event that the Sublessee grants any further sublease of its interest in the Premises under this Sublease, the Sublessee shall provide notice to the Sublessor of such further sublease and shall deliver to the Sublessor an executed acknowledgement from any such sublessee in favour of the Sublessor substantially in the form attached hereto as Schedule B.

35. Severability:

If any part of this Sublease is declared or held invalid for any reason, the invalidity of that part will not affect the validity of the remainder of the Sublease , which will continue in full force and effect and be construed as if this Sublease had been executed without the invalid part.

36. Amendments:

This Sublease may not be surrendered, amended or altered except by instrument in writing signed by the Sublessor and the Sublessee.

37. Waiver:

No waiver on behalf of the Sublessor or the Sublessee of any breach shall take place or be binding unless the same be expressed in writing over the signature of the waiving party or its authorized representative and any waiver so expressed shall extend only to that particular breach to which such waiver specifically relates and shall not be deemed to be a general waiver or to limit or affect the rights of the Sublessor or the Sublessee with respect to any other breach.

38. Remedies/Non-Exclusive:

No remedy herein conferred upon or reserved to the Sublessor or the Sublessee is intended to be exclusive of any other remedy herein contained or by applicable Laws provided that such remedies shall be cumulative and shall be in addition to every other remedy given hereunder or hereafter existing at law or in equity. Notwithstanding the foregoing, the Sublessor shall not have the right to terminate this Sublease or repossess the Premises save as set out in Section 26 hereof.

39. Effect of Termination:

The termination of this Sublease shall in no way prejudice the Sublessor’s right to recover unpaid rent or to pursue any other right of action with respect to a breach of any covenant or agreement herein contained.

40. Time: Time is of the essence in this Sublease and time will remain of the essence notwithstanding any extension of any time granted to a party.

41. Arbitration:

  1. In the event any dispute arises between the Sublessor and the Sublessee concerning any matter pertaining to this Sublease, including, without limitation, any dispute as to whether a party has acted reasonably or has unreasonably withheld any consent or approval in situations where such party is expressly required under this Sublease to act reasonably or not to unreasonably withhold any consent or approval, as the case may be, and any inability of the parties to reach an agreement or understanding required or contemplated by this Sublease and a party wishes to resolve such matter, the matter shall be resolved pursuant to the provisions of Article 21 of the Post-2011 Contract.
  2. Notwithstanding the foregoing, to the extent that the Crown is a party to the dispute, the proceedings shall be governed by the provisions of Article 23 of the Lease. In such circumstances or with respect to any other dispute which may be submitted to arbitration pursuant to the arbitration provisions of the Lease, the parties representing the Sublessor and the position taken in connection therewith shall be determined by the Sublessee after having consulted with the Sublessor.

42. Gender:

This Sublease shall be read with all changes of gender or number required by the context.

43. Notice:

Whenever in this Sublease it is required or permitted that any notice or demand be given or served by either party to this Sublease to or on the other, such notice shall be given or served in writing and forwarded by hand delivery, fax or registered mail, return receipt requested as follows:

  1. to the Sublessor at:

    Casino Rama Inc.
    Casino Rama Industrial Park
    Rama Road
    P.O. Box 178, R.R. #6Rama, ON L3V 6H6

    Attention: President
    Fax: 705-329-3329

  2. to the Sublessee at:

    4120 Yonge Street
    Suite 500
    Toronto, Ontario
    M2P 2B8

    Attention: Chief Executive Officer
    Fax: 416-224-7003

    to the Crown at:

    Indigenous and Northern Affairs Canada
    25 St. Clair Ave. East 8th Floor
    Toronto, ON M4T 1M2

    Attention: Regional Manager, Lands
    Fax no.: 416-954-6329

If any question arises as to the date on which payment, notice, or demand was made, it will be deemed to have been delivered: (a) if sent by fax or e-mail on a Business Day, the day of transmission if transmitted before 3:00 p.m., otherwise, the next Business Day; (b) if sent by mail, on the sixth Business Day after the notice was mailed; (c) if sent by any means other than fax, e-mail or mail, the day it was received; or, if the postal service is interrupted or threatened to be interrupted, then any payment, notice, or demand will only be sent by means other than mail. Any party may change its contact information shown in this Sublease by informing the respective party of the new contact information, and the change will take effect 30 days after the notice is delivered.

44. Non-Disturbance and Attornment:

The Sublessor covenants and agrees that, at Sublessee’s option, it will use commercially reasonable efforts to obtain from any Leasehold Mortgagee, at no cost to the Sublessee, a non-disturbance and attornment agreement in favour of the Sublessee which recognizes this Sublease and is in form and substance acceptable to the Sublessee, acting reasonably, and the Sublessee covenants and agrees that it will enter into such a non-disturbance and attornment agreement with any such Leasehold Mortgagee.

45. Paramountcy:

The terms of this Sublease are subject and subordinate to the Lease and the rights of the Crown thereunder.

As between the Sublessor and the Sublessee:

  1. in the event of any conflict or inconsistency between the terms of this Sublease and/or the Post-2011 Contract and the Lease, the terms of this Sublease and/or the Post-2011 Contract, as the case may be, shall prevail to the extent of said conflict or inconsistency, unless such an interpretation would put the Sublessor in breach of the provisions of the Lease in which case the terms of the Lease shall prevail;
  2. in the event of any conflict or inconsistency between the terms of this Sublease and the terms of the Post-2011 Contract, the terms of the Post-2011 Contract shall prevail to the extent of said conflict or inconsistency; and
  3. in each case, the Sublessee’s rights and obligations herein shall not be modified or reduced, unless an interpretation of this Sublease would put the Sublessor in breach of the provisions of the Lease.

46. Entire Agreement and Termination of Original Sublease:

  1. This Sublease and the schedules annexed hereto and forming a part hereof, and the Post-2011 Contract, set forth all of the covenants, promises, agreements, conditions and understandings between the Sublessor and the Sublessee concerning the Premises and there are no covenants, promises, agreements, conditions or understandings either oral or written, between them other than as herein or therein set forth.

47. Consent:

Unless any part of this Sublease states otherwise, when a party is required to provide consent or approval under a part of this Sublease, that consent or approval will not be unreasonably withheld, conditioned or delayed.

48. Representations and Warranties of the Sublessor:

The Sublessor represents and warrants that, as of the Effective Date:

  1. it has all the necessary capacity, power and authority to enter into and to carry out the provisions of this Sublease;
  2. this Sublease has been duly authorized by the Sublessor and, if necessary, any of its Affiliates, the First Nation and the Crown;
  3. this Sublease, when executed, will constitute a valid and binding obligation of the Sublessor, enforceable against it in accordance with its terms;
  4. the Lease is a good, valid and subsisting lease, in good standing and in full force and effect in accordance with its terms and has not become void or voidable; the rents, covenants and conditions reserved in the Lease have been duly paid, observed and performed up to the date of the execution hereof by the Sublessor; the Lease has not been surrendered or terminated and the Lease constitutes the entire agreement with the owners with respect to the Demised Land; and
  5. the reserve lands described in the Amended Designation have been validly surrendered by the First Nation to the Crown on or about June 9, 2016 in accordance with sections 37 through 41 of the Indian Act, and the First Nation has received all approvals as may be required from the Minister and/or the Crown pursuant to section 53 of the Indian Act in respect of the Amended Designation and to enter into this Sublease.

49. Representations and Warranties of the Sublessee:

The Sublessee represents and warrants that, as of the Effective Date:

  1. it has all the necessary capacity, power and authority to enter into and to carry out the provisions of this Sublease,
  2. this Sublease has been duly authorized by the Sublessee; and
  3. this Sublease, when executed, will constitute a valid and binding obligation of the Sublessee enforceable against it in accordance with its terms.

50. Unavoidable Delay:

A bona fide default or other failure to comply, observe or perform any term of this Sublease will be deemed not to be a default or failure to comply, observe or perform any term by a party if such default or failure to comply, observe or perform a term was due to or caused by or materially contributed to by Unavoidable Delay.

A party claiming the benefit of Unavoidable Delay will promptly provide the other party with written notice of the Unavoidable Delay upon learning of such default or other failure to comply. Such party will observe or perform any term of this Sublease and will promptly, in good faith and in a commercially reasonable manner, put itself in a position to carry out the terms of this Sublease notwithstanding any Unavoidable Delay.

51. Succession:

This Sublease enures to the benefit of and is binding upon each of the Sublessor and the Sublessee and their respective successors and permitted assigns.

52. Interpretation:

Except as otherwise specifically provided in this Sublease and unless the context otherwise requires, the following rules of construction will apply to this Sublease:

  1. the division of this Sublease into sections and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation of this Sublease;
  2. references in this Sublease to “Sections” and “Schedules” refer, respectively, to Sections of and Schedules to this Sublease;
  3. “hereunder”, “herein”, “hereto” and “hereof”, when used in this Sublease, refer to this Sublease and not to a particular Section or clause of this Sublease;
  4. “including” means “including, but not limited to” and “include” or “includes” means “include, without limitation” or “includes, without limitation”;
  5. 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;
  6. references to any document, instrument or agreement, including this Sublease, (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 thereto (but not any predecessor document), as amended, restated, amended and restated, replaced, modified, extended, renewed or supplemented from time to time (to the extent permitted hereunder) and in effect at the given time;
  7. references to any Person will include such Person’s successors and assigns (and in the case of Sublessor and Sublessee, to the extent permitted hereunder);
  8. the phrases “if this Sublease ends”, “if this Sublease ends early”, “the ending of this Sublease ” and “earlier termination” include an ending by expiration, cancellation, termination, surrender or mutual agreement.
  9. 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;
  10. “month” means “calendar month”;
  11. all sums of money that are referred to in this Sublease are expressed in lawful money of Canada; and
  12. the interpretation of this Sublease will not permit a revenue, loss, recovery, receipt, payment, reserve or reimbursement to be duplicated.

53. Governing Laws:

This Sublease will be governed by and interpreted in accordance with the applicable Laws of Canada and of the Province of Ontario.

54. Statutes:

Unless otherwise indicated, any reference to a statute or law means that statute or law, and any regulations made under it, all as amended, replaced, enacted or re-enacted from time to time and references to it or them are to be read as if it or they are followed by the phrase “as if it or they were to apply” or similar words as the context allows.

55. Counterparts and Electronic Signature:

This Sublease and any subsequent notices and/or agreements in connection herewith from time to time may be executed by fax, email, PDF and/or in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same lease, notice and/or agreement, and which shall become effective when one or more counterparts have been signed by each of the parties and delivered (by fax, email, PDF or otherwise) to the other parties.

[signature pages to follow]

in witness whereof the Sublessor, the Sublessee and the First Nation have executed this Sublease as of the date first above written.

executed in the presence of:

As to casino rama Inc.’s authorized signatory

executed in the presence of:

As to ontario lottery and gaming corporation’s authorized signatory

As to ontario lottery and gaming corporation’s authorized signatory

casino rama Inc.

Name:

Title:

I have authority to bind the corporation

ontario lottery and gaming corporation

Name:

Title:

Name:

Title:

I/We have authority to bind the corporation

For the purposes only of being subject to the obligations of the First Nation as set out in Section 31 of this Sublease, the First Nation has executed or caused this Sublease to be executed, all as of the day and year first above written.

executed in the presence of:

As to the chippewas of rama first nation’s authorized signatory

the chippewas of rama first nation

Name:

Title:

I have authority to bind the First Nation

Schedule A
Demised Land

Firstly:

All of Lots 31-8 and 31-9 as shown on a plan recorded in the Canada Lands Surveys Records (CLSR) at Ottawa as Plan 79146 CLSR ON, a copy of which is recorded in the Land Registry Office for the Registry Division of Simcoe (no. 51) as Instrument no. 01326393, containing 1.55 hectares, more or less;

Secondly:

All of Lots 32-20, 98-1 and 98-2 as shown on a plan recorded in the Canada Lands Surveys Records at Ottawa as Plan 100258 CLSR ON, containing 16.1 hectares, more or less;

Thirdly:

All of Lots 99-1 and 122 as shown on a plan recorded in the Canada Lands Surveys Records at Ottawa as Plan 83864 CLSR ON, a copy of which is recorded in the Land Registry Office for the Registry Division of Simcoe (no. 51) as Instrument no. 01442247, containing 4.86 hectares, more or less;

Fourthly:

All of Lots 101,102, 103, 104,105 and 106 as shown on a plan recorded in the Canada Lands Surveys Records at Ottawa as Plan 78406 CLSR ON, a copy of which is recorded in the Land Registry Office for the Registry Division of Simcoe (no. 51) as Instrument no. 01308929, containing 2.37 hectares, more or less;

Fifthly:

All of Lot 107 as shown on a plan recorded in the Canada Lands Surveys Records at Ottawa as Plan 80801 CLSR ON, a copy of which is recorded in the Land Registry Office for the Registry Division of Simcoe (no. 51) as Instrument no. 01371242, containing 1.33 hectares, more or less;

Sixthly:

All of Lot 121 as shown on a plan recorded in the Canada Lands Surveys Records at Ottawa as Plan 83863 CLSR ON, a copy of which is recorded in the Land Registry Office for the Registry Division of Simcoe (no. 51) as Instrument no. 01442248, containing 2.34 hectares, more or less;

excepting all mines and minerals, whether precious or base, solid, liquid or gaseous.

Schedule C
Form of Sub-sublessee Acknowledgment

To: casino rama inc. and its successors and assigns (the “Sublessor”)

re: Commercial ground lease for the premises (the “Premises”) made as of •, 2017 between the Her Majesty the Queen in Right of Canada, as lessor, and the Sublessor, as lessee, as same may be amended, restated, amended and restated, replaced, modified, extended, renewed or supplemented in writing and executed by the parties thereto from time to time (collectively, the “Head Lease”)

and re: Complex Sublease for the Premises made as of •, 2017 between the Sublessor, as sublessor, and Ontario Lottery and Gaming Corporation (the “Sublessee”), as sublessee, as same may be amended, restated, amended and restated, replaced, modified, extended, renewed or supplemented in writing and executed by the parties thereto from time to time (collectively, the “Sublease”)

and re: Casino Rama Net Sublease and Sub-Sublease made as of •, 2017 for the Premises and the Railway Lands between the Sublessee, as landlord, and the undersigned as tenant (the “Operator”), as same may be amended, restated, amended and restated, replaced, modified, extended, renewed or supplemented in writing and executed by the parties thereto from time to time (collectively, the “Sub-Sublease”)

In consideration of the covenants and agreements between the parties contained herein and the sum of two dollars ($2.00) that has been paid by the Sublessor to the Operator, the receipt and sufficiency of which is acknowledged by the Operator, the Operator covenants and agrees in favour of the Sublessor as follows:

  1. Without limiting the rights of the Operator against the Sublessee under the Sub-Sublease, the Operator acknowledges that the rights granted to it pursuant to the Sub-Sublease are subordinate and subject to the Head Lease.
  2. If the Sublease is terminated, surrendered, rejected, repudiated, resiliated, forfeited, disclaimed, cancelled or otherwise deemed unenforceable, including, without limitation, a disclaimer of the Lease by a trustee in bankruptcy of the Sublessee for any reason (each a “Termination Event”), the Operator must forthwith vacate the entire Premises. If a Termination Event occurs, the Operator unconditionally and irrevocably releases the Sublessor and waives and renounces any rights or remedies that the Operator may have under any legal, equitable or other rule of law or under any insolvency, bankruptcy, landlord and tenant or commercial tenancies legislation, as each may be amended from time to time, or any other legislation, to apply to a court or to otherwise elect to: (a) retain the unexpired Term or the unexpired term of the Sub-Sublease; (b) obtain any right to enter into any lease, sublease, license or other agreement directly with the Sublessor for the Premises in whole or in part; and (c) otherwise remain in possession or control of all or any part of the Premises.
  3. This Acknowledgment and the Sub-Sublease does not constitute a waiver or forfeiture nor may it be construed or interpreted as a waiver or forfeiture of any of the rights or remedies of the Sublessor in the Sublease, at law or otherwise. Nothing contained herein or in the Sub-Sublease shall constitute an assignment of the Sublessee’s right, title or interest in the Sublease or the Premises.
  4. The Sublessor does not acknowledge or approve of any of the terms of the Sub-Sublease (or any other related agreements) as between the Sublessee and the Operator from time to time, except for the sub-subletting of the Premises itself.
  5. This Acknowledgment shall enure to the benefit of the Sublessor and its successors and assigns and shall be binding upon the Operator and its heirs, executors, administrators and permitted successors and permitted assigns.
  6. This Acknowledgment and any subsequent notices and/or agreements in connection herewith from time to time may be executed by fax, email, PDF and/or in one or more counterparts.

in witness whereof the undersigned has duly executed and delivered this Acknowledgment as of the ___ day of __________, 2017.

[insert name of operator]

by

Name:

Title:

Name:

Title:

I/We have authority to bind the corporation.

Schedule 8
Retail Stores and Warehouse Licence

(See Attached)

Casino Rama Retail Stores and Warehouse Licence

this licence made the ____ day of June, 2017 (the “Effective Date”),

between:

ontario lottery and gaming corporation (hereinafter called the “Licensor”)

of the first part

- and -

1176290 ontario limited (o/a biindigen gift shop), (hereinafter called the “Licensee”)

of the second part

- and -

chippewas of rama first nation, also known as the chippewas of mnjikaning first nation, (hereinafter called the “Indemnifier”)

of the third part

whereas the Licensor is the subtenant of the Casino Rama complex situated and lying within the Rama Indian Reserve no. 32 in the Province of Ontario (the “Casino Complex”) pursuant to a sublease made as of the ____ day of June, 2017 between Casino Rama Inc., as sublessor, and the Licensor, as sublessee, as the same may be amended, restated and/or replaced by the parties thereto from time to time (the “Sublease”);

whereas pursuant to a ground lease made as of the ____ day of June, 2017, Casino Rama Inc., as lessee, leases the Casino Complex from Her Majesty the Queen in right of Canada (the “Crown”), as lessor, as the same may be amended, restated and/or replaced by the parties thereto from time to time (the “Ground Lease”);

and whereas the Indemnifier and the Licensor are parties to the Amended and Restated Post-2011 Contract made as of the ____ day of June, 2017 between the Licensor, the Indemnifier and Casino Rama Inc. (the “Amended and Restated Post-2011 Contract”);

and whereas all of the issued and outstanding shares in the capital of the Licensee (the “Shares”) are owned directly or indirectly by the Indemnifier;

and whereas the Licensor may from time to time, at its sole discretion, appoint a third party operator to operate the Casino Complex (the “Operator”);

and whereas the Licensor has agreed to grant to the Licensee a licence in respect of certain retail premises comprising approximately 3,296 square feet in the hotel rotunda and the gaming floor of the Casino Complex as shown shaded in purple on Schedule A and approximately 6,500 square feet in the Casino Complex warehouse outlined in green on Schedule C for the purposes set out in Section 1.1 (collectively, the “Licensed Area”) subject to the terms and conditions set forth herein (the “Licence”);

NOW therefore in consideration of the mutual covenants contained herein, the parties agree as follows:

Article 1
Grant of Licence

1.1 The Licensor hereby grants to the Licensee a licence to enter upon and use the Licensed Area as described as follows and for the following purposes:

  1. Retail HGF-021 (Explore) – an area of approximately 1,560 square feet in the hotel rotunda of the Casino Complex and being specifically the space identified as “Retail HGF-021” and shown shaded in purple on Schedule A to be used for the display and sale of general merchandise, clothing, home accessories, jewellery, lottery scratch tickets, tobacco items and miscellaneous food and beverage products.
  2. Biindigen (Gift Shop) – an area of approximately 541 square feet on the gaming floor of the Casino Complex and being specifically the space identified as “Retail Biindigen” and shown shaded in purple on Schedule A to be used for the sale of tobacco and convenience items (including snacks, beverages, candy and health/beauty products), giftware, crafts, cards, footwear, lottery scratch tickets and clothing.
  3. Gallery (Indulge) – an area of approximately 1,195 square feet in the hotel rotunda of the Casino Complex and being specifically the space identified as “Retail” and shown shaded in purple on Schedule A to be used for the display and sale of art, sculpture, clothing, music, crafts, jewellery, footwear, souvenirs, cards, giftware and other art related products (the areas described in Sections 1.1(a), 1.1(b) and 1.1(c) being, collectively, the “Retail Areas”).
  4. Warehouse Space – an area of approximately 6,500 square feet in the Casino Complex warehouse outlined in green and identified as RSW-102on Schedule C to be used for the storage for items sold in the Retail Areas (the “Warehouse Area”).

The Licensee will not use or permit any area or part of the Licensed Area to be used for any purpose other than those purposes described and specifically attributed to that respective area or part of the Licensed Area in this Section 1.1 and those uses reasonably ancillary thereto (collectively, the “Permitted Uses”) and the Licensee shall actively use each area or part of the Licensed Area for their respective Permitted Uses.

1.2 The Licensee shall obtain the prior written approval of the Licensor for any change of use of any area or part of the Licensed Area. If any area or part of the Licensed Area is used for any other purpose other than as set forth in Section 1.1 for that area or part without the approval of the Licensor, the Licensor may, at its option, terminate this Licence pursuant to Section 7.3.

1.3 The Licensee acknowledges that located adjacent to those areas and parts of the Licensed Area set forth in Section 1.1 (excluding the Warehouse Area) and shown cross-hatched in green on Schedule A are certain common areas (the “Common Areas”), which the Licensee must not use for any purpose unless approved in advance in writing by the Licensor and the Licensee shall take all steps necessary to keep the Common Areas open to provide free and clear access for all others using or passing through such Common Areas.

1.4 The Licensor agrees that the Licensee’s employees shall have access to the Licensed Areas (excluding the Warehouse Area) at reasonable times during operating hours to the areas indicated in red on the servicing plan attached hereto as Schedule B (the “Servicing Areas”). The Licensee must not use the Servicing Areas for any purpose except the purposes described on Schedule B unless approved in advance in writing by the Licensor. The Licensee agrees that it shall not use any other part of the Casino Complex to service the Licensed Area. The Licensee agrees that it shall take all steps necessary to keep the Servicing Areas open and clear of the Licensee’s equipment, chattels, materials and debris and to provide free and clear access for all others using or passing through such Servicing Areas. If Licensor or the Operator determines, in their sole judgement that the Licensee has not complied with this subsection, the Licensor or the Operator may, at the Licensee’s sole cost and expense, take any reasonable action to ensure free and continuous use of the Servicing Areas. To the extent required by the Operator, or upon request by the Licensee for access to the back of house area of the Complex, the Licensee shall use proximity cards issued by the Operator to access the Servicing Areas. If the Licensee’s employees are issued proximity cards, the Licensee agrees to cause its employees to comply with all directions from the Licensor or Operator regarding the use of the proximity cards and access through the Casino Complex.

1.5 The Licensee shall ensure that its employees and agents only park in areas designated as Casino staff parking. The Licensee’s employees and agents shall have no access to the Casino employee restaurant or Casino employee change rooms or showers. The Licensee’s employees and agents shall wear appropriate attire at all times while accessing the Licensed Areas (excluding the Warehouse Area) through the Casino Complex and comply with all reasonable directions, rules and regulations that the Licensor or Operator may impose from time to time.

1.6 The Licensee’s employees shall only access the Warehouse Area via the access points shown on Schedule C of this Licence. The Licensee’s employees and agents shall comply with all reasonable directions, rules and regulations that the Licensor or Operator may impose from time to time while accessing the Warehouse Area through the Casino Complex.

1.7 The Licensee shall be permitted to use the delivery dock of the Casino Complex for deliveries in accordance with the Licensor’s hours of operation for the delivery dock and with such priority of use and access for the delivery dock as determined by the Licensor, in its sole discretion, from time to time. All deliveries for the Licensed Areas shall be segregated from the deliveries of the Licensor and the Operator.

1.8 The Licensee will not, at any time during the Term, carry on or permit to be carried on, in the Licensed Area, Common Areas or Servicing Areas anything which is noxious or offensive or damaging or dangerous to the environment (including, without limitation, causing offensive noise or odours) and will, at its sole cost and expense, comply with all requirements of applicable laws (including, without limitation, environmental laws, by-laws, rules, regulations or other directives of any applicable governmental authority) and the rules and regulations of and reasonable directions from the Licensor and the Operator. Further, the Licensee shall not do or permit to be done anything whatsoever upon the Licensed Area, Common Areas or Servicing Areas which would annoy or disturb or cause nuisance or damage to the guests, employees, or occupiers of the Casino Complex and premises adjoining or in the vicinity of the Common Areas or Servicing Areas of the Casino Complex.

1.9 The Licensee will at its expense obtain and-maintain in full force and effect at all times during the Term, the following insurance coverage:

  1. all risks property insurance for the full replacement-cost of all property owned by the Licensee or for which the Licensee is legally liable, or installed by or on behalf of the Licensee and located within the Licensed Area including but not limited to all furniture, fixtures and equipment and all other leasehold improvements. All property of the Licensee kept or stored outside-of the Licensed Area shall be so kept or stored at the risk of the Licensee only and the Licensee shall hold the Licensor harmless from any claims arising from damage to the same; and
  2. comprehensive general liability insurance with inclusive limits of at least Five Million Dollars ($5,000,000.00) per occurrence for bodily injury, property damage or death and including coverage for product liability. Such policy shall include the Licensor and the Operator as an additional insured and shall include a cross liability/severability of interests clause.

In the event of cancellation of any insurance coverage listed above, the Licensee shall provide thirty (30) days written notice of cancellation to the Licensor. All insurance maintained by the Licensee shall be primary and shall not call into contribution any insurance maintained by the Licensor. The Licensee shall provide the Licensor with certificates of insurance evidencing the foregoing insurance on the date hereof and thereafter from time to time during the Term promptly following the Licensor’s request. The Licensee shall use reasonable commercial efforts to obtain a waiver of subrogation from its property insurer in favour of the Licensor and Operator. Without limiting the indemnities in Article 8, the Licensee hereby releases, indemnifies and saves harmless the Licensor and its directors, officers, servants, agents, employees and contractors and those for whom it is in law responsible, (collectively, the “Indemnified Parties”) from any and all liability for losses, damages and claims of any kind against which the Licensee is required to insure under this Licence or has otherwise insured.

1.10 The Licensee agrees and acknowledges that it shall be bound by and shall comply with all rules and regulations enacted by the Licensor or the Operator with respect to the use of the Licensed Area and the operation of the Casino Complex (including but not limited to those related to deliveries and loading, design, erection and display of signs, window displays, stage events, displays, and demonstrations in areas adjacent to the Licensed Area, sanitation and disposal and segregation of waste and garbage); and (b) all requirements of laws, by-laws, rules, regulations or other directives of any applicable governmental authority If the Licensee fails to comply with this Section 1.10, the Licensor may, at its option, terminate this Licence pursuant to Section 7.3.

Article 2
Term of Licence

2.1 The term of this Licence shall be for a period commencing on the Effective Date and terminating concurrently with the expiry or earlier termination of the Applicable Period (as defined in the Amended and Restated Post-2011 Contract) under the Amended and Restated Post-2011 Contract, as the Applicable Period may be extended from time to time thereunder, unless sooner terminated in accordance herewith (the “Term”).

Article 3
Payment by Licensee of Fees and Charges

3.1 The Licensor hereby acknowledges receipt from the Licensee of the sum of $10.00, being the fee payable for the Licensed Area for the entire Term (the “Licence Fee”). The License Fee will not be considered as revenue of the Casino Complex.

3.2 In respect of the Licensed Areas, the Licensee shall not be charged by the Licensor for shared utilities – gas, hydro, water and sewage–provided such utilities are consumed in amounts which are consistent with normal retail and warehouse use (as the case may be) in the Licensor’s reasonable opinion and in the normal course of the Licensee’s business. Neither the Licensor nor the Operator will be responsible at any time for any loss or damage caused by the cessation or suspension of services or utilities to the Licensed Area.

3.3 The Licensee shall be responsible for the installation, maintenance, repair and all costs associated with all other utilities and services used or consumed upon or in respect of the Licensed Area, including without limitation, any:

  1. telephone systems;
  2. television systems;
  3. computer systems, including Wi-Fi access; and
  4. communications systems.

Article 4
Repairs, Maintenance and Alterations

4.1 The Licensee throughout the Term and at its expense will repair, maintain and keep the Licensed Area and all appurtenances, equipment, fixtures and personal property therein and thereon in a clean, attractive, good repair and operating condition and will make all repairs and maintenance to the Licensed Area (including all appurtenances, equipment, fixtures and personal property therein) if so instructed by the Licensor or the Operator, acting reasonably. For greater certainty, the parties agree that the obligations of the Licensee set forth in this Section 4.1 shall only apply to the interior of the Licensed Area and shall not include the obligation to make any structural repairs to the Licensed Area or the Casino Complex.

4.2 The Licensee shall take responsible care to avoid any unnecessary or excessive littering or soiling of the Licensed Area, the Common Areas, the Servicing Areas and any other areas of the Casino Complex that are used by the Licensee in accordance with the terms of this Licence.

4.3 The Licensee will not undertake any alterations or changes to the Licensed Area or any area or part thereof without the prior written consent of the Licensor, other than ‘minor’ alterations or changes, the cost of which does not exceed $1,000. The Licensee shall not be permitted to make any structural changes to the Licensed Area or undertake any work that would require the consent of Casino Rama Inc. under the Sublease or the Crown under the Ground Lease without the prior written consent of the Licensor.

4.4 For any alterations or changes to the Licensed Area requiring the Licensor’s consent, the Licensee shall deliver architectural plans and specifications, construction plans (including provisions for security and safety procedures and necessary construction insurance), any documents, plans or specifications required under the Sublease and/or the Ground Lease, and any other documents that the Licensor reasonably requires, all of which shall be certified by a licensed architect or licensed engineer (collectively, “Construction Plans”) to the Licensor at least sixty (60) days prior to commencing any construction work. The Licensee shall make any reasonable modifications to the Construction Plans as requested by the Licensor in the Licensor’s sixty (60) day review period.

4.5 The Licensee shall ensure all construction in the Licensed Area is completed in accordance with all applicable laws and substantially in accordance with the Construction Plans approved by Licensor. The Licensee shall obtain all required governmental approvals and permits required for any construction of alterations or changes in the Licensed Area at its sole cost and expense. After the completion of any construction in the Licensed Area, the Licensee shall promptly provide the Licensor with complete “as-built” Constriction Plans in electronic and paper forms.

4.6 The Licensee shall use commercially reasonable efforts to ensure that any construction within the Licensed Area causes as little disruption to the ordinary operations of the Casino Complex as possible. The schedule and location for delivery of materials, construction activities, debris removal and all other activities associated with construction within the Licensed Area shall be coordinated and approved by the Licensor in advance in writing. At all times where construction is ongoing in any part of the Licensed Area, the Licensee shall carry commercial construction insurance in a form approved by and satisfactory to the Licensor.

4.7 The Licensee will pay or cause to be paid all charges for all work done in the Casino Complex for or on behalf of the Licensee, including, without limitation all labour and materials for all repairs, alterations, and additions, to or upon the Licensed Area during the Term. The Licensee will not suffer or permit any construction or similar liens to be maintained or filed against the Licensed Area or the Casino Complex; and if any such lien shall be filed or registered, the Licensee shall at its sole cost and expense cause such lien to be vacated and/or discharged within ten (10) days after notice of the registration or filing, as the case may be, failing which the Licensor, without any obligation to do so, may satisfy, vacate or discharge such lien or encumbrance on behalf of the Licensee, in which event the amount paid by the Licensor for such purpose, including without limitation ancillary expenses, legal fees and bond premiums, shall be paid by the Licensee forthwith upon demand from the Licensor.

4.8 At the expiration or earlier termination of the Term, the Licensee shall surrender the Licensed Area in the condition required to be maintained by the Licensee pursuant to the terms of this Licence, reasonable wear and tear, loss by fire or other unavoidable casualty not due to the Licensee’s negligence or willful act excepted. Before such surrender, the Licensee shall remove all of the Licensee’s personal property, any alterations made and fixtures installed in the Licensed Area by the Licensee and perform any necessary restoration work in connection therewith, unless otherwise agreed to in writing by the Licensor. The cost of removing and disposing of the Licensee’s personal property and such alterations, fixtures and repairing any damage to the Licensed Area caused by such removal shall be paid by the Licensee or reimbursed to the Licensor (if the Licensee fails to comply with the requirements of this section) upon demand. The requirements of this section shall survive the expiration or earlier termination of this Licence.

Article 5
Use of the Licensed Area

5.1 The Licensee and its sublicensee(s) shall not install any advertising, signs or undertake any promotions in any areas of the Casino Complex outside the Licensed Area without the prior written approval of the Licensor, which approval may be withheld in the sole discretion of the Licensor. All advertising, signs and promotions undertaken by the Licensee and its sublicensee(s) in the Casino Complex must be in compliance with the Gaming Control Act (Ontario) and all other applicable legislation. Any advertising or signs of the Licensee and its sublicensee(s) located outside of the Licensed Area shall be erected and maintained by the Operator, and all costs associated with the installation and maintenance of any advertising, signs or promotions shall be at the cost of the Licensee (or, as applicable, its sublicensee(s)).

5.2 The Licensor and its agents and authorized representatives, upon reasonable prior notice, shall have access to the Licensed Area during normal business hours for the purposes of examining or inspecting the condition of same. Such inspection shall be performed in such a manner as to minimize, to the extent practicable, interference with the Licensee’s conduct of its business. In the event of any emergency, the Licensor shall have access to the Licensed Area without prior notice for the purpose of examining, inspecting or repairing the damage done to the Licensed Area.

5.3 At all times during the Term, the Licensee shall:

  1. maintain an adequate number of personnel and products in all parts of the Licensed Area (excluding the Warehouse Area) to ensure a high level of customer service for the patrons of the Casino Complex;
  2. provide well-managed, clean and efficient facilities and services and high-quality products to the patrons of the Casino Complex;
  3. provide good, prompt, friendly, courteous and efficient service adequate to meet all reasonable demands of the patrons of the Casino Complex;
  4. ensure that all employees who have contact with customers of the Casino Complex complete appropriate customer service training; and
  5. promptly provide to the Licensor copies of all inspections of the Licensed Area from any governmental or regulatory authorities.

Article 6
Property and Equipment Of Licensee

6.1 The Licensee shall provide its own furniture and equipment for use within the Licensed Area.

6.2 The Licensee shall comply with all applicable laws (including, without limitation, all federal fire safety and protection standards) with respect to fire suppression systems and related equipment for the Licensed Area, all of which shall be complied with in a timely manner at the Licensee’s sole expense. At the request of the Licensor, the Licensee will provide certification and verification that all fire suppression systems and related equipment is in working order and being maintained in accordance with all applicable law.

Article 7
Early Termination

7.1 The Licensee shall have the right at any time, to (a) surrender all or any part of the Licensed Area, or (b) terminate this Licence by giving written notice to the Licensor. Such notice shall be given to the Licensor not less than 60 days prior to the intended date of termination. Such notice shall be sent to it at:

4120 Yonge Street
Suite 420
Toronto, Ontario
M2P 2B8

Telecopier: 416-224-7000

Attention: Chief Executive Officer

7.2 The Licensee acknowledges and agrees that the rights granted to it pursuant to this Licence are subordinate and subject to the rights granted to the Licensor pursuant to the Sublease and the rights granted to Casino Rama Inc. under the Ground Lease. During the Term, the Licensee shall not do or omit to do any act that would result in a breach of Licensor’s obligations as subtenant under the Sublease or Casino Rama Inc.’s obligations as lessee under the Ground Lease. The Licensee hereby acknowledges and agrees that it has received and reviewed a copy of the Sublease and the Ground Lease and is familiar in all respects with the terms thereof. If the Sublease or the Ground Lease is terminated, surrendered, forfeited, disclaimed, cancelled or otherwise deemed unenforceable for any reason, the Licensee agrees that it must forthwith vacate the entire Licensed Area.

7.3 The Licensor shall have the right to terminate this Licence in whole or in part by written notice with immediate effect in the event that: (a) the Licensee defaults in the performance of any of its obligations or otherwise fails to comply with any of the provisions of this Licence or its acts or omissions cause a breach of the Sublease or the Ground Lease and such default and/or non-compliance has not been cured within 15 days of the Licensor providing the Licensee written notice thereof; or (b) the Licensed Area is damaged by fire, or otherwise, to such an extent that in the opinion of the Licensor the Licensed Area is not fit for occupation; (c) the Licensee shares possession of or allows any person to occupy any part of the Licensed Area, without the prior written consent of the Licensor not to be unreasonably withheld, or (d) any of the goods or chattels of the Licensee shall be at any time during the Term seized or taken in execution or attachment, or if the Licensee shall make an assignment for the benefit of creditors, or shall become bankrupt or insolvent, or make a proposal to its creditors. Such notice shall be sent to it at:

5884 Rama Road, Suite 200
Rama, Ontario
L3V 6H6

Telecopier: 705-325-0879
Attention: President

Article 8
Indemnities

8.1 The Licensee agrees that the Indemnified Parties shall not be liable or in any way responsible for, and shall be indemnified and saved harmless by the Licensee from and against any/all actions, claims, demands, proceedings, liabilities, damages, costs (including all legal costs on a solicitor/client full indemnity basis) and expenses whatsoever which may be brought, assessed, incurred or made against the Licensor and/or the Operator in respect of injury, loss or damage to persons or property arising out of, or by reason of, or in any way relating to:

  1. any bodily injury or death arising from any occurrence in, upon or at the Licensed Area or any area or part thereof
  2. any loss or damage to any property belonging to the Licensee or its employees or licensees or any other person in, upon or at the Licensed Area or any area or part thereof;
  3. any act or omission of the Licensee or any of its servants, agents, employees, contractors or persons for whom the Licensee is in law responsible in the Licensed Area or any area or part thereof; or
  4. the failure of the Licensee to promptly perform or observe or otherwise comply with any provision of this Licence to be performed or observed or otherwise complied with by the Licensee.

8.2 The Indemnifier agrees with the Licensor and the other Indemnified Parties as follows:

  1. during the Term, the Indemnifier shall be the sole owner, either directly or indirectly, of the Shares;
  2. if the Licensee defaults in the payment of any amount payable under this Licence or in the due performance of any other obligation of the Licensee under this Licence, the Indemnifier shall forthwith upon demand by the Licensor, pay to the Licensor any amount so payable and all damages that may arise upon the default by the Licensee in the payment thereof or in the due performance of any such obligation;
  3. the Indemnifier shall be jointly and severally bound with the Licensee to the Licensor for the performance of the obligations of the Licensee under this Licence and its liability shall be that of a direct and primary obligor and not merely that of a surety;
  4. if the Licensee defaults under this Licence, the Licensor may proceed against the Indemnifier as if it were the Licensee, without waiving any of its rights against the Licensee and without any requirement that the Licensor shall first have proceeded against the Licensee or had recourse to or exhausted any of its remedies against the Licensee;
  5. the obligations of the Indemnifier and the rights of the Licensor hereunder shall not be affected or in any way prejudiced or impaired by any delay, neglect or forbearance by the Licensor in enforcing performance by the Licensee of its obligations under this Licence or by the granting by the Licensor to the Licensee of any extension of time or by any waiver by the Licensor of any of the Licensee’s obligations or by any assignment or sublicense or other dealing by the Licensee with this Licence or the Licensed Area whether with or without the consent of the Licensor or by any want of notice to the Indemnifier or by any dealing between the Licensor and the Licensee with or without notice to the Indemnifier whereby the respective obligations and rights of either the Licensor or the Licensee are amended including any amendment of the Licence or by any other act or failure to act by the Licensor which would release, discharge or affect the obligations of the Indemnifier if it were a mere surety, and with the intent that this indemnity shall not be released or affected or the rights of the Licensor hereunder in any way impaired until such time as all the obligations of the Licensee under this Licence have been fully performed and satisfied;
  6. the obligations of the Indemnifier hereunder shall not be released, discharged or affected by the bankruptcy or insolvency of the Licensee or any proposal made by it to its creditors or any disclaimer of this Licence pursuant to the Bankruptcy and Insolvency Act (Canada) or any successor or similar legislation, or any disclaimer by any trustee in bankruptcy of the Licensee or by the Licensee ceasing to exist (whether by winding-up, forfeiture, cancellation or surrender of charter, or any other circumstance) or by any event terminating this Licence; and
  7. the obligations of the Indemnifier hereunder may be assigned by the Licensor, will benefit and be enforceable by the successors and assigns of the Licensor and shall bind the heirs, executors and legal representatives and the successors and assigns of the Indemnifier.

8.3 The indemnities set forth in Sections 1.9, 8.1, and 8.2, shall survive the expiration or earlier termination of this Licence.

Article 9
General

9.1 This Licence is personal to the Licensee. The Licensee shall not assign or sublicense all or any part of the Licensed Area without the prior written consent of the Licensor, not to be unreasonably withheld.

9.2 This Licence may not be modified or amended except by an instrument in writing signed by the parties hereto.

9.3 It is mutually agreed that any and all prior agreements, written or verbal, express or implied between the parties, relating to or in any way connected with the Licensed Area are declared null and void and are superseded by the terms of the present Licence. The parties agree that this Licence constitutes the entire agreement between the parties and neither party is bound by any representation, warranty, promise, agreement or inducement not embodied therein.

9.4 This Licence and the rights and obligations and relations of the parties hereto shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable herein (but without giving effect to any conflict of laws rules). The parties agree that the Courts of the Province of Ontario shall have jurisdiction to entertain any action or legal proceedings based on any provisions of this Licence. Each party hereto does hereby attorn to the jurisdiction of the Courts of the province of Ontario.

9.5 During the Term, the Licensee shall not suffer or permit any construction liens or other liens or encumbrances to be filed or registered against the Licensed Area or the Casino Complex or upon the estate of the Licensor therein. If such a lien or encumbrance, is filed or registered, the Licensee shall at its sole cost and expense cause it to be vacated and/or discharged within 10 days after notice of registration or filing, as the case may be, failing which the Licensor, without obligation to do so, may satisfy, vacate or discharge such lien or encumbrance in which event the amount paid by the Licensor for such purpose, including ancillary expenses and bond premiums, shall thereupon become forthwith due and payable to the Licensor by the Licensee.

9.6 The parties agree that the Licensor may delegate any of its obligations or rights of approval under this Licence to the Operator from time to time without notice to the Licensee. As of the date of this Licence the Operator is CHC Casinos Canada Limited. The Licensor may, from time to time in its discretion, appoint a different Operator for the Casino Complex. If the Licensor appoints a new Operator during the Term, the Licensor shall provide reasonable written notice to the Licensee of the identity and contact information of the new Operator.

9.7 This Licence and any subsequent notices and/or agreements in connection herewith from time to time may be executed by fax, email, PDF and/or in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same lease, notice and/or agreement, and which shall become effective when one or more counterparts have been signed by each of the parties and delivered (by fax, email, PDF or otherwise) to the other parties.

[signature pages to follow]

in witness whereof the parties hereto have executed this Licence as of the date first above written

chippewas of rama first nation

Per:

Name:

Title:

Per:

Name:

Title:

I/We have the authority to bind the First Nation

ontario lottery and gaming corporation

Per:

Name: Gregory McKenzie

Title: Executive Vice President, Chief Operating Officer

Per:

Name: Barbara Anderson

Title: Senior Vice President, Chief Financial Officer

I/We have the authority to bind the corporation

1176290 ontario limited

Per:

Name:

Title:

Per:

Name:

Title:

I/We have the authority to bind the corporation

Schedule A
Licensed Area and Common Areas

(See Attached)

Schedule to the Casino Rama Retail Stores and Warehouse Licence showing the licensed Retails Areas and Common Areas.

Schedule B
Servicing Areas

(See Attached)

Schedule to the Casino Rama Retail Stores and Warehouse Licence showing the Servicing Areas.

Schedule C
Warehouse Area

Schedule to the Casino Rama Retail Stores and Warehouse Licence showing the Warehouse Area.

Schedule 9
Tim Hortons Licence

(See Attached)

Casino Rama Tim Hortons Licence

this licence made the ____ day of June, 2017 (the “Effective Date”),

between:

ontario lottery and gaming corporation (hereinafter called the “Licensor”)

of the first part

- and -

1176290 ontario limited (o/a biindigen gift shop), (hereinafter called the “Licensee”)

of the second part

- and -

chippewas of rama first nation, also known as the chippewas of mnjikaning first nation, (hereinafter called the “Indemnifier”)

of the third part

whereas the Licensor is the subtenant of the Casino Rama complex situated and lying within the Rama Indian Reserve no. 32 in the Province of Ontario (the “Casino Complex”) pursuant to a sublease made as of the ____ day of June, 2017 between Casino Rama Inc., as sublessor, and the Licensor, as sublessee, as the same may be amended, restated and/or replaced by the parties thereto from time to time (the “Sublease”);

whereas pursuant to a ground lease made as of the ____ day of June, 2017, Casino Rama Inc., as lessee, leases the Casino Complex from Her Majesty the Queen in right of Canada (the “Crown”), as lessor, as the same may be amended, restated and/or replaced by the parties thereto from time to time (the “Ground Lease”);

and whereas the Indemnifier and the Licensor are parties to the Amended and Restated Post-2011 Contract made as of the ____ day of June, 2017 between the Licensor, the Indemnifier and Casino Rama Inc. (the “Amended and Restated Post-2011 Contract”);

and whereas all of the issued and outstanding shares in the capital of the Licensee (the “Shares”) are owned directly or indirectly by the Indemnifier;

and whereas the Licensor may from time to time, at its sole discretion, appoint a third party operator to operate the Casino Complex (the “Operator”);

and whereas the Licensor has agreed to grant to the Licensee a licence in respect of the certain retail premises comprising approximately 1,352 square feet in the hotel rotunda of the Casino Complex as shown shaded in purple on Schedule A for the purposes set forth in Section 1.1 (the “Tim Hortons Area”) subject to the terms and conditions set forth herein (the “Licence”);

now therefore in consideration of the mutual covenants contained herein, the parties agree as follows:

Article 1
Grant of Licence

1.1 The Licensor hereby grants to the Licensee a licence to enter upon and use the Tim Hortons Area as described as follows and for the following purposes:

  1. Retail HGF-022 (Tim Hortons) – an area of approximately 1,352 square feet in the hotel rotunda of the Casino Complex and being specifically the space identified as “Retail HGF-022” and shown shaded in purple on Schedule A to be used for the sale of Tim Horton’s products that include coffee, tea, sandwiches, wraps, chili, soup, donuts, panini and non-alcoholic beverages, provided such items are offered in at least eighty percent (80%) of full-service Tim Hortons restaurants in the Province of Ontario.

The Licensee will not use or permit any area or part of the Tim Hortons Area to be used for any purpose other than those purposes described and specifically attributed to the Tim Hortons Area in this Section 1.1 and those uses reasonably ancillary thereto (collectively, the “Permitted Uses”) and the Licensee shall actively use each area or part of the Tim Hortons Area for their respective Permitted Uses.

1.2 The Licensee shall obtain the prior written approval of the Licensor for any change of use of any area or part of the Tim Hortons Area. If any area or part of the Tim Hortons Area is used for any other purpose other than as set forth in Section 1.1 for that area or part without the approval of the Licensor, the Licensor may, at its option, terminate this Licence pursuant to Section 7.3.

1.3 The Licensee acknowledges that located adjacent to those areas and parts of the Tim Hortons Area set forth in Section 1.1 and shown cross-hatched in green on Schedule A are certain common areas (the “Common Areas”), which the Licensee must not use for any purpose unless approved in advance in writing by the Licensor and the Licensee shall take all steps necessary to keep the Common Areas open to provide free and clear access for all others using or passing through such Common Areas. For greater certainty, the Licensee shall maintain all queueing relating to its use of the Tim Hortons Area wholly within each respective part of the Tim Hortons Area. If Licensor determines, in its sole judgement that the Licensee has not complied with this subsection, the Licensor may, at the Licensor’s direction and at the Licensee’s sole cost and expense, install temporary and removable crowd control devices to ensure free and continuous use of the Common Areas.

1.4 The Licensor agrees that the Licensee’s employees shall have access at reasonable times during operating hours to the areas indicated in red on the servicing plan attached hereto as Schedule B (the “Servicing Areas”). The Licensee must not use the Servicing Areas for any purpose except the purposes described on Schedule B unless approved in advance in writing by the Licensor. The Licensee agrees that it shall not use any other part of the Casino Complex to service the Tim Hortons Area. The Licensee agrees that it shall take all steps necessary to keep the Servicing Areas open and clear of the Licensee’s equipment, chattels, materials and debris and to provide free and clear access for all others using or passing through such Servicing Areas. If Licensor or the Operator determines, in their sole judgement that the Licensee has not complied with this subsection, the Licensor or the Operator may, at the Licensee’s sole cost and expense, take any reasonable action to ensure free and continuous use of the Servicing Areas.

1.5 The Licensee’s employees shall only enter the Casino Complex using a proximity card issued by the Operator via the designated hotel employee entrance as shown on Schedule B of this Licence, and the Licensee’s employees shall only be permitted to walk between that entrance, the hotel employee washroom, the designated delivery and garbage room locations, and the Tim Hortons Area according to the routes specifically designated on Schedule B. Proximity cards will be issued by the Operator to the Licensee directly or to Licensee employees and agents on the same terms and conditions as employees of the Licensor and Operator. The Licensee agrees to cause its employees to comply with all directions from the Licensor or Operator regarding the use of the proximity cards and access through the Casino Complex. The Licensee shall ensure that its employees and agents only park in areas designated as Casino staff parking. The Licensee’s employees and agents shall have no access to the Casino employee restaurant or Casino employee change rooms or showers. The Licensee’s employees and agents shall wear appropriate attire at all times while accessing the Tim Hortons Area through the Casino Complex and comply with all reasonable directions, rules and regulations that the Licensor or Operator may impose from time to time.

1.6 The Licensee shall be permitted to use the delivery dock of the Casino Complex for deliveries in accordance with the Licensor’s hours of operation for the delivery dock and with such priority of use and access for the delivery dock as determined by the Licensor, in its sole discretion, from time to time. All deliveries for the Tim Hortons Area shall be segregated from the deliveries of the Licensor and the Operator. The Licensor shall provide a space of approximately sixty-six (66) square feet, designated as storage on Schedule B, for the sole purpose of storage of the Licensee’s supplies for the Tim Hortons Area. The Licensee shall be responsible, at its own cost, for securing the storage space and the Licensor shall have no liability to the Licensee in connection with the Licensee’s use of the storage space. The storage area is deemed to form part of the Tim Hortons Area.

1.7 The Licensee will not, at any time during the Term, carry on or permit to be carried on, in the Tim Hortons Area, Common Areas or Servicing Areas anything which is noxious or offensive or damaging or dangerous to the environment (including, without limitation, causing offensive noise or odours) and will, at its sole cost and expense, comply with all requirements of applicable laws (including, without limitation, environmental laws, by-laws, rules, regulations or other directives of any applicable governmental authority) and the rules and regulations of and reasonable directions from the Licensor and the Operator. Further, the Licensee shall not do or permit to be done anything whatsoever upon the Tim Hortons Area, Common Areas or Servicing Areas which would annoy or disturb or cause nuisance or damage to the guests, employees, or occupiers of the Casino Complex and premises adjoining or in the vicinity of the Common Areas or Servicing Areas of the Casino Complex.

1.8 The Licensee will at its expense obtain and-maintain in full force and effect at all times during the Term, the following insurance coverage:

  1. all risks property insurance for the full replacement-cost of all property owned by the Licensee or for which the Licensee is legally liable, or installed by or on behalf of the Licensee and located within the Tim Hortons Area including but not limited to all furniture, fixtures and equipment and all other leasehold improvements. All property of the Licensee kept or stored outside-of the Tim Hortons Area shall be so kept or stored at the risk of the Licensee only and the Licensee shall hold the Licensor harmless from any claims arising from damage to the same; and
  2. comprehensive general liability insurance with inclusive limits of at least Five Million Dollars ($5,000,000.00) per occurrence for bodily injury, property damage or death and including coverage for product liability. Such policy shall include the Licensor and the Operator as an additional insured and shall include a cross liability/severability of interests clause.

In the event of cancellation of any insurance coverage listed above, the Licensee shall provide thirty (30) days written notice of cancellation to the Licensor. All insurance maintained by the Licensee shall be primary and shall not call into contribution any insurance maintained by the Licensor. The Licensee shall provide the Licensor with certificates of insurance evidencing the foregoing insurance on the date hereof and thereafter from time to time during the Term promptly following the Licensor’s request. The Licensee shall use reasonable commercial efforts to obtain a waiver of subrogation from its property insurer in favour of the Licensor and the Operator. Without limiting the indemnities in Article 8, the Licensee hereby releases, indemnifies and saves harmless the Licensor and its directors, officers, servants, agents, employees and contractors and those for whom it is in law responsible, (collectively, the “Indemnified Parties”) from any and all liability for losses, damages and claims of any kind against which the Licensee is required to insure under this Licence or has otherwise insured.

1.9 The Licensee agrees and acknowledges that it shall be bound by and shall comply with all rules and regulations enacted by the Licensor or the Operator with respect to the use of the Tim Hortons Area and the operation of the Casino Complex (including but not limited to those related to deliveries and loading, design, erection and display of signs, window displays, stage events, displays, and demonstrations in areas adjacent to the Tim Hortons Area, sanitation and disposal and segregation of waste, garbage and cooking oil); and (b) all requirements of laws, by-laws, rules, regulations or other directives of any applicable governmental authority If the Licensee fails to comply with this Section 1.9, the Licensor may, at its option, terminate this Licence pursuant to Section 7.3.

Article 2
Term of Licence

2.1 The term of this Licence shall be for a period commencing on the Effective Date and terminating concurrently with the expiry or earlier termination of the Applicable Period (as defined in the Amended and Restated Post-2011 Contract) under the Amended and Restated Post-2011 Contract, as the Applicable Period may be extended from time to time thereunder, unless sooner terminated in accordance herewith (the “Term”).

Article 3
Payment by Licensee of Fees and Charges

3.1 The Licensor hereby acknowledges receipt from the Licensee of the sum of $10.00, being the fee payable for the Tim Hortons Area for the entire Term (the “Licence Fee”). The License Fee will not be considered as revenue of the Casino Complex.

3.2 The Licensee shall directly arrange and pay for all gas, electricity, water and sewage utilities for the Tim Hortons Area. The Licensee shall, at its expense and in accordance with plans approved in advance in writing by the Licensor, make all necessary connections to the utility infrastructure of the Casino Complex, including the installation of sub-meters to measure the use of utilities in the Tim Hortons Area, for the supply of gas, electricity, water, and sewage to the Tim Hortons Area. The Licensee shall maintain any such connections and sub-meters throughout the Term at its sole cost and expense. The sub-meters shall be automated or arranged in such a manner that any utilities consumed in the Tim Hortons Area are charged directly to the Licensee (or the Licensee’s designate). At the option of the Licensor, to be exercised by notice to the Licensee in writing, the Licensor may require that the installation of the necessary connections to the utility infrastructure of the Casino Complex and the sub-meters or the maintenance thereof during the Term be performed by the Licensor or the Operator and at the option of the Licensor or the Operator, the costs and expenses associated with such installation and maintenance will be paid by the Licensee forthwith upon receipt of an invoice for same from the Licensor or the Operator.

3.3 The Licensee shall ensure that its use of electricity in the Tim Hortons Area does not exceed the capacity of the existing electrical wiring and infrastructure of the Tim Hortons Area. If the Licensee requires modifications or improvements to any of the utility infrastructure in the Tim Hortons Area, the Licensee shall obtain, at its sole cost and expense, the Licensor’s prior written approval of the plans for such modifications or improvements. Any approved modifications or improvements shall be installed by the Licensee at the Licensee’s sole cost and expense.

3.4 Neither the Licensor nor the Operator will be responsible at any time for any loss or damage caused by the cessation or suspension of services or utilities to the Tim Hortons Area.

3.5 The Licensee shall be responsible for the installation, maintenance, repair and all costs associated with all other utilities and services used or consumed upon or in respect of the Tim Hortons Area, including without limitation, any:

  1. telephone systems;
  2. television systems;
  3. garbage and waste disposal;
  4. cooking oil removal;
  5. computer systems, including Wi-Fi access;
  6. communications systems; and
  7. security systems.

Article 4
Repairs, Maintenance and Alterations

4.1 The Licensee throughout the Term and at its expense will repair, maintain and keep the Tim Hortons Area and all appurtenances, equipment, fixtures and personal property therein and thereon in a clean, attractive, good repair and operating condition and will make all repairs and maintenance to the Tim Hortons Area (including all appurtenances, equipment, fixtures and personal property therein) if so instructed by the Licensor or the Operator, acting reasonably. For greater certainty, the parties agree that the obligations of the Licensee set forth in this Section 4.1 shall only apply to the interior of the Tim Hortons Area and shall not include the obligation to make any structural repairs to the Tim Hortons Area or the Casino Complex.

4.2 The Licensee shall take responsible care to avoid any unnecessary or excessive littering or soiling of the Tim Hortons Area, the Common Areas, the Servicing Areas and any other areas of the Casino Complex that are used by the Licensee in accordance with the terms of this Licence.

4.3 The Licensee will not undertake any alterations or changes to the Tim Hortons Area or any area or part thereof without the prior written consent of the Licensor, other than ‘minor’ alterations or changes, the cost of which does not exceed $1,000. The Licensee shall not be permitted to make any structural changes to the Tim Hortons Area or undertake any work that would require the consent of Casino Rama Inc. under the Sublease or the Crown under the Ground Lease without the prior written consent of the Licensor.

4.4 For any alterations or changes to the Tim Hortons Area requiring the Licensor’s consent, the Licensee shall deliver architectural plans and specifications, construction plans (including provisions for security and safety procedures and necessary construction insurance), any documents, plans or specifications required under the Sublease and/or the Ground Lease, and any other documents that the Licensor reasonably requires, all of which shall be certified by a licensed architect or licensed engineer (collectively, “Construction Plans”) to the Licensor at least sixty (60) days prior to commencing any construction work. The Licensee shall make any reasonable modifications to the Construction Plans as requested by the Licensor in the Licensor’s sixty (60) day review period.

4.5 The Licensee shall ensure all construction in the Tim Hortons Area is completed in accordance with all applicable laws and substantially in accordance with the Construction Plans approved by Licensor. The Licensee shall obtain all required governmental approvals and permits required for any construction of alterations or changes in the Tim Hortons Area at its sole cost and expense. After the completion of any construction in the Tim Hortons Area, the Licensee shall promptly provide the Licensor with complete “as-built” Constriction Plans in electronic and paper forms.

4.6 The Licensee shall use commercially reasonable efforts to ensure that any construction within the Tim Hortons Area causes as little disruption to the ordinary operations of the Casino Complex as possible. The schedule and location for delivery of materials, construction activities, debris removal and all other activities associated with construction within the Tim Hortons Area shall be coordinated and approved by the Licensor in advance in writing. At all times where construction is ongoing in any part of the Tim Hortons Area, the Licensee shall carry commercial construction insurance in a form approved by and satisfactory to the Licensor.

4.7 The Licensee will pay or cause to be paid all charges for all work done in the Casino Complex for or on behalf of the Licensee, including, without limitation all labour and materials for all repairs, alterations, and additions, to or upon the Tim Hortons Area during the Term. The Licensee will not suffer or permit any construction or similar liens to be maintained or filed against the Tim Hortons Area or the Casino Complex; and if any such lien shall be filed or registered, the Licensee shall at its sole cost and expense cause such lien to be vacated and/or discharged within ten (10) days after notice of the registration or filing, as the case may be, failing which the Licensor, without any obligation to do so, may satisfy, vacate or discharge such lien or encumbrance on behalf of the Licensee, in which event the amount paid by the Licensor for such purpose, including without limitation ancillary expenses, legal fees and bond premiums, shall be paid by the Licensee forthwith upon demand from the Licensor.

4.8 At the expiration or earlier termination of the Term, the Licensee shall surrender the Tim Hortons Area in the condition required to be maintained by the Licensee pursuant to the terms of this Licence, reasonable wear and tear, loss by fire or other unavoidable casualty not due to the Licensee’s negligence or willful act excepted. Before such surrender, the Licensee shall remove all of the Licensee’s personal property, any alterations made and fixtures installed in the Tim Hortons Area by the Licensee and perform any necessary restoration work in connection therewith, unless otherwise agreed to in writing by the Licensor. The cost of removing and disposing of the Licensee’s personal property and such alterations, fixtures and repairing any damage to the Tim Hortons Area caused by such removal shall be paid by the Licensee or reimbursed to the Licensor (if the Licensee fails to comply with the requirements of this section) upon demand. The requirements of this section shall survive the expiration or earlier termination of this Licence.

Article 5
Use of the Tim Hortons Area

5.1 At least twice a year, or on a more frequent basis as may be reasonably required for the use of the Tim Hortons Area by the Licensee, the Licensee will retain a pest extermination contractor (approved by the Licensor, acting reasonably) at its sole cost and expense to provide pest extermination services for the Tim Hortons Area. The Licensee shall ensure that its pest extermination contractor complies with all applicable laws governing the use of pesticides and shall ensure that its pest extermination contractor uses only those pesticides which are least detrimental to the environment. In the event that the Licensee fails to engage such pest extermination contractor in accordance with the requirements of this section, or if the Licensor reasonably determines that the Licensee’s pest extermination contractor is not performing its duties effectively, then the Licensor may, without notice, engage its own pest extermination contractor on the Licensee’s behalf without incurring any liability in respect thereof and the Licensee will pay the Licensor the costs and expenses associated with such pest extermination contractor.

5.2 The Licensee and its sublicensee(s) shall be permitted to erect within the Tim Hortons Area such interior signs and advertising with the Licensee’s and the sublicensee’s name and logo and conduct any promotions as the Licensee and its sublicensee(s) may desire, all at their sole cost and expense and in accordance with all applicable laws. All advertising, signs or promotions shall be wholly contained within the Tim Hortons Area and shall remain the property of the Licensee (or, as applicable, its sublicensee(s)).

5.3 The Licensee and its sublicensee(s) shall not install any advertising, signs or undertake any promotions in any areas of the Casino Complex outside the Tim Hortons Area without the prior written approval of the Licensor, which approval may be withheld in the sole discretion of the Licensor. All advertising, signs and promotions undertaken by the Licensee and its sublicensee(s) in the Casino Complex must be in compliance with the Gaming Control Act (Ontario) and all other applicable legislation. Any advertising or signs of the Licensee and its sublicensee(s) located outside of the Tim Hortons Area shall be erected and maintained by the Operator, and all costs associated with the installation and maintenance of any advertising, signs or promotions shall be at the cost of the Licensee (or, as applicable, its sublicensee(s)).

5.4 The Licensor and its agents and authorized representatives, upon reasonable prior notice, shall have access to the Tim Hortons Area during normal business hours for the purposes of examining or inspecting the condition of same. Such inspection shall be performed in such a manner as to minimize, to the extent practicable, interference with the Licensee’s conduct of its business. In the event of any emergency, the Licensor shall have access to the Tim Hortons Area without prior notice for the purpose of examining, inspecting or repairing the damage done to the Tim Hortons Area.

5.5 The Licensee shall continuously operate the Tim Hortons Area at a minimum between the hours of 7:00 a.m. and 1:00 a.m. (18 hours), every day of the year including all statutory holidays. Any changes to these hours of operation shall require the prior written approval of the Licensor.

5.6 If requested by the Licensor, in its sole discretion, the Licensee shall (or shall cause its sublicensee(s) to) participate in one or more of the Licensor’s complimentary food and beverage programs for patrons of the Casino Complex, provided that the terms of any participation by the Licensee (and, if applicable, its sublicensee(s)) shall be agreed to in a separate agreement on terms and conditions mutually acceptable to the Licensor and the Licensee.

5.7 The Licensor agrees to forward to the Licensee any direct customer feedback regarding any of the services or operations conducted by the Licensee in the Tim Hortons Area. Upon receipt of such customer feedback, the Licensee shall promptly take commercially reasonable efforts to respond to and address concerns raised by any such feedback. Upon the request of the Licensor, the Licensee shall deliver evidence to the Licensor of the actions taken by the Licensee to appropriately respond to and address the customer feedback. In addition, the Licensee agrees to promptly respond to and keep copies of any customer feedback in accordance with the requirements of this Section. The Licensee agrees to forward to the Licensor any customer feedback or complaints which are received directly by the Licensee.

5.8 At all times during the Term, the Licensee shall:

  1. maintain an adequate number of personnel and products in all parts of the Tim Hortons Area to ensure a high level of customer service for the patrons of the Casino Complex;
  2. provide well-managed, clean and efficient facilities and services and high-quality products to the patrons of the Casino Complex;
  3. provide good, prompt, friendly, courteous and efficient service adequate to meet all reasonable demands of the patrons of the Casino Complex;
  4. ensure that all employees who have contact with customers of the Casino Complex complete appropriate customer service training; and
  5. promptly provide to the Licensor copies of all inspections of the Tim Hortons Area from any governmental or regulatory authorities.

Article 6
Property and Equipment of Licensee

6.1 The Licensee shall provide its own furniture and equipment for use within the Tim Hortons Area.

6.2 The Licensee shall obtain the Licensor’s prior written consent before the installation of any heating, ventilation and air condition system or ventilation equipment (“HVAC System”) in any part of the Tim Hortons Area. Any HVAC System in the Tim Hortons Area shall be maintained and replaced by the Licensee at its sole cost and expense, and the Licensee shall ensure that such HVAC System complies with all applicable laws and building codes at all times. The Licensee shall ensure that the HVAC System and the ducts used in or supporting the HVAC System for the Tim Hortons Area are kept free and clear of obstructions at all times and will promptly comply with the directions of the Licensor or the Operator with respect to clearance, if any, between such vents and ducts and any fixtures or personal property located in the Tim Hortons Area.

6.3 The Licensee shall comply with all applicable laws with respect to any drainage and sewage systems including, without limitation, all appropriate machinery, equipment, grease traps, fixtures and improvements on or used in connection with the Tim Hortons Area, all of which shall be maintained to the appropriate industry standard at the Licensee’s sole expense. Any grease traps required for the Tim Hortons Area shall be the responsibility of the Licensee to maintain and clean, and shall be installed wholly within the Tim Hortons Area.

6.4 The Licensee shall comply with all applicable laws (including, without limitation, all federal fire safety and protection standards) with respect to fire suppression systems and related equipment for the Tim Hortons Area, including all appropriate machinery, equipment, furnishings, fixtures and improvements on or used in connection with the Tim Hortons Area, all of which shall be complied with in a timely manner at the Licensee’s sole expense. For greater certainty, such standards shall include those applicable to electrical wiring and apparatus, the storage and handling of flammable liquids, and the installation of fire protection devices in and for the Tim Hortons Area. At the request of the Licensor, the Licensee will provide certification and verification that all fire suppression systems and related equipment is in working order and being maintained in accordance with all applicable law.

Article 7
Early Termination

7.1 The Licensee shall have the right at any time, to terminate this Licence by giving written notice to the Licensor. Such notice shall be given to the Licensor not less than 60 days prior to the intended date of termination. Such notice shall be sent to it at:

4120 Yonge Street
Suite 420
Toronto, Ontario
M2P 2B8

Telecopier: 416-224-7000
Attention: Chief Executive Officer

7.2 The Licensee acknowledges and agrees that the rights granted to it pursuant to this Licence are subordinate and subject to the rights granted to the Licensor pursuant to the Sublease and the rights granted to Casino Rama Inc. under the Ground Lease. During the Term, the Licensee shall not do or omit to do any act that would result in a breach of Licensor’s obligations as subtenant under the Sublease or Casino Rama Inc.’s obligations as lessee under the Ground Lease. The Licensee hereby acknowledges and agrees that it has received and reviewed a copy of the Sublease and the Ground Lease and is familiar in all respects with the terms thereof. If the Sublease or the Ground Lease is terminated, surrendered, forfeited, disclaimed, cancelled or otherwise deemed unenforceable for any reason, the Licensee agrees that it must forthwith vacate the entire Licensed Area.

7.4 The Licensor shall have the right to terminate this Licence in whole or in part by written notice with immediate effect in the event that: (a) the Licensee defaults in the performance of any of its obligations or otherwise fails to comply with any of the provisions of this Licence or its acts or omissions cause a breach of the Sublease or the Ground Lease and such default and/or non-compliance has not been cured within 15 days of the Licensor providing the Licensee written notice thereof; or (b) the Tim Hortons Area is damaged by fire, or otherwise, to such an extent that in the opinion of the Licensor the Tim Hortons Area is not fit for occupation; (c) the Licensee shares possession of or allows any person to occupy any part of the Tim Hortons Area, without the prior written consent of the Licensor not to be unreasonably withheld, or (d) any of the goods or chattels of the Licensee shall be at any time during the Term seized or taken in execution or attachment, or if the Licensee shall make an assignment for the benefit of creditors, or shall become bankrupt or insolvent, or make a proposal to its creditors. Such notice shall be sent to it at:

5884 Rama Road, Suite 200
Rama, Ontario
L3V 6H6

Telecopier: 705-325-0879
Attention: President

Article 8
Indemnities

8.1 The Licensee agrees that the Indemnified Parties shall not be liable or in any way responsible for, and shall be indemnified and saved harmless by the Licensee from and against any/all actions, claims, demands, proceedings, liabilities, damages, costs (including all legal costs on a solicitor/client full indemnity basis) and expenses whatsoever which may be brought, assessed, incurred or made against the Licensor and/or the Operator in respect of injury, loss or damage to persons or property arising out of, or by reason of, or in any way relating to:

  1. any bodily injury or death arising from any occurrence in, upon or at the Tim Hortons Area or any area or part thereof
  2. any loss or damage to any property belonging to the Licensee or its employees or licensees or any other person in, upon or at the Tim Hortons Area or any area or part thereof;
  3. any act or omission of the Licensee or any of its servants, agents, employees, contractors or persons for whom the Licensee is in law responsible in the Tim Hortons Area or any area or part thereof; or
  4. the failure of the Licensee to promptly perform or observe or otherwise comply with any provision of this Licence to be performed or observed or otherwise complied with by the Licensee.

8.2 The Indemnifier agrees with the Licensor and the other Indemnified Parties as follows:

  1. during the Term, the Indemnifier shall be the sole owner, either directly or indirectly, of the Shares;
  2. if the Licensee defaults in the payment of any amount payable under this Licence or in the due performance of any other obligation of the Licensee under this Licence, the Indemnifier shall forthwith upon demand by the Licensor, pay to the Licensor any amount so payable and all damages that may arise upon the default by the Licensee in the payment thereof or in the due performance of any such obligation;
  3. the Indemnifier shall be jointly and severally bound with the Licensee to the Licensor for the performance of the obligations of the Licensee under this Licence and its liability shall be that of a direct and primary obligor and not merely that of a surety;
  4. if the Licensee defaults under this Licence, the Licensor may proceed against the Indemnifier as if it were the Licensee, without waiving any of its rights against the Licensee and without any requirement that the Licensor shall first have proceeded against the Licensee or had recourse to or exhausted any of its remedies against the Licensee;
  5. the obligations of the Indemnifier and the rights of the Licensor hereunder shall not be affected or in any way prejudiced or impaired by any delay, neglect or forbearance by the Licensor in enforcing performance by the Licensee of its obligations under this Licence or by the granting by the Licensor to the Licensee of any extension of time or by any waiver by the Licensor of any of the Licensee’s obligations or by any assignment or sublicense or other dealing by the Licensee with this Licence or the Tim Hortons Area whether with or without the consent of the Licensor or by any want of notice to the Indemnifier or by any dealing between the Licensor and the Licensee with or without notice to the Indemnifier whereby the respective obligations and rights of either the Licensor or the Licensee are amended including any amendment of the Licence or by any other act or failure to act by the Licensor which would release, discharge or affect the obligations of the Indemnifier if it were a mere surety, and with the intentthat this indemnity shall not be released or affected or the rights of the Licensor hereunder in any way impaired until such time as all the obligations of the Licensee under this Licence have been fully performed and satisfied;
  6. the obligations of the Indemnifier hereunder shall not be released, discharged or affected by the bankruptcy or insolvency of the Licensee or any proposal made by it to its creditors or any disclaimer of this Licence pursuant to the Bankruptcy and Insolvency Act (Canada) or any successor or similar legislation, or any disclaimer by any trustee in bankruptcy of the Licensee or by the Licensee ceasing to exist (whether by winding-up, forfeiture, cancellation or surrender of charter, or any other circumstance) or by any event terminating this Licence; and
  7. the obligations of the Indemnifier hereunder may be assigned by the Licensor, will benefit and be enforceable by the successors and assigns of the Licensor and shall bind the heirs, executors and legal representatives and the successors and assigns of the Indemnifier.

8.3 The indemnities set forth in Sections 1.8, 8.1, and 8.2, shall survive the expiration or earlier termination of this Licence.

Article 9
General

9.1 This Licence is personal to the Licensee. The Licensee shall not assign or sublicense all or any part of the Tim Hortons Area without the prior written consent of the Licensor, not to be unreasonably withheld. The Licensor hereby consents to Morningstar Hospitality Services Inc. exercising the rights granted to the Licensee hereunder pursuant to a Food Services Agreement with the Indemnifier. The Licensee and the Indemnifier hereby agree that, notwithstanding the exercise of rights granted to the Licensee hereunder by Morningstar Hospitality Services Inc. pursuant to the Food Services Agreement, the Licensee and the Indemnifier remain liable for the performance of all of the obligations and covenants of the Licensee and the Indemnifier hereunder. The Licensee and the Indemnifier hereby acknowledge that the Licensor has not reviewed, has not been provided a copy of and does not in any way whatsoever approve the terms, conditions and provisions of the Food Services Agreement with Morningstar Hospitality Services Inc.

9.2 This Licence may not be modified or amended except by an instrument in writing signed by the parties hereto.

9.3 It is mutually agreed that any and all prior agreements, written or verbal, express or implied between the parties, relating to or in any way connected with the Tim Hortons Area are declared null and void and are superseded by the terms of the present Licence. The parties agree that this Licence constitutes the entire agreement between the parties and neither party is bound by any representation, warranty, promise, agreement or inducement not embodied therein.

9.4 This Licence and the rights and obligations and relations of the parties hereto shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable herein (but without giving effect to any conflict of laws rules). The parties agree that the Courts of the Province of Ontario shall have jurisdiction to entertain any action or legal proceedings based on any provisions of this Licence. Each party hereto does hereby attorn to the jurisdiction of the Courts of the province of Ontario.

9.5 During the Term, the Licensee shall not suffer or permit any construction liens or other liens or encumbrances to be filed or registered against the Tim Hortons Area or the Casino Complex or upon the estate of the Licensor therein. If such a lien or encumbrance, is filed or registered, the Licensee shall at its sole cost and expense cause it to be vacated and/or discharged within 10 days after notice of registration or filing, as the case may be, failing which the Licensor, without obligation to do so, may satisfy, vacate or discharge such lien or encumbrance in which event the amount paid by the Licensor for such purpose, including ancillary expenses and bond premiums, shall thereupon become forthwith due and payable to the Licensor by the Licensee.

9.6 The parties agree that the Licensor may delegate any of its obligations or rights of approval under this Licence to the Operator from time to time without notice to the Licensee. As of the date of this Licence the Operator is CHC Casinos Canada Limited. The Licensor may, from time to time in its discretion, appoint a different Operator for the Casino Complex. If the Licensor appoints a new Operator during the Term, the Licensor shall provide reasonable written notice to the Licensee of the identity and contact information of the new Operator.

9.7 This Licence and any subsequent notices and/or agreements in connection herewith from time to time may be executed by fax, email, PDF and/or in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same lease, notice and/or agreement, and which shall become effective when one or more counterparts have been signed by each of the parties and delivered (by fax, email, PDF or otherwise) to the other parties.

[signature pages to follow]

in witness whereof the parties hereto have executed this Licence as of the date first above written

chippewas of rama first nation

Per:

Name:

Title:

Per:

Name:

Title:

I/We have the authority to bind the First Nation

ontario lottery and gaming corporation

Per:

Name: Gregory McKenzie

Title: Executive Vice President, Chief Operating Officer

Per:

Name: Barbara Anderson

Title: Senior Vice President, Chief Financial Officer

I/We have the authority to bind the corporation

1176290 ontario limited

Per:

Name:

Title:

Per:

Name:

Title:

I/We have the authority to bind the corporation

Schedule A
Tim Hortons Area and Common Areas

(See Attached)

Schedule to the Casino Rama Tim Hortons Licence showing the Tim Hortons Area and Common Areas.

Schedule B
Servicing Areas

(See Attached)

Schedule to the Casino Rama Tim Hortons Licence showing the Servicing Areas.

Schedule 10

[Intentionally Deleted]

Schedule 11

[Intentionally Deleted]

Schedule 12

[Intentionally Deleted]

Schedule 13
Trade-marks

Schedule 13, Trade-marks. Casino Rama Logo

Schedule 14

[Intentionally Deleted]

Schedule 15

[Intentionally Deleted]

Schedule 16

[Intentionally Deleted]

Schedule 17

[Intentionally Deleted]

Schedule 18

[Intentionally Deleted]

(150-G457)