Common use of Application of Slippage Protection Clause in Contracts

Application of Slippage Protection. A. Beginning with the first Subsequent Year and thereafter in each Subsequent Year, within thirty (30) days after the close of the first six (6) months of such Subsequent Year, UTGR shall submit to the Division a calculation comparing its Adjusted Base Year Net Terminal Income for such year to the annualized actual Net Terminal Income for the first six (6) months of such year and its proposed adjustment in the Blended Rate together with such supporting documentation as the Division shall reasonably require. If twice the actual Net Terminal Income for the first six (6) months shall be less than ninety percent (90%) of the sum of the Adjusted Base Year Net Terminal Income and any Benchmark Excess for the immediately preceding Subsequent Year , then Blended Rate for the second six (6) months shall be equal to the fraction, expressed as percentage, the numerator of which is the positive difference, if any, between (x) the sum of (i) the product of the Adjusted Base Year Net Terminal Income for the Subsequent Year for which the calculation is being made and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and (y) the product of the actual Net Terminal Income for such six month period and the Blended Rate, and denominator of which is the actual Net Terminal Income for such six month period. Any such adjustment in the Blended Rate shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 A. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. The Division shall make payment for period between the Blended Rate Adjustment Date and the effective date of such adjustment within twenty (20) calendar days. B. Within sixty (60) days of the close of each Subsequent Year, UTGR shall certify to the Division, with such supporting documentation as the Division shall reasonably require, the amount of its share of Net Terminal Income for such Subsequent Year, the amount of Benchmark Excess, if any, and its proposed adjustment in the Blended Rate. In any Subsequent Year where there is a Benchmark Excess, the Blended Rate for the next Subsequent Year shall be equal to a fraction, expressed as a percentage, the numerator of which shall be (i) the sum of the product of the Adjusted Base Year Net Terminal Income for such Subsequent Year and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and the denominator of which shall the actual Net Terminal Income for the immediately preceding Subsequent Year. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 B. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. 6.3 In addition to the foregoing, commencing with the beginning of the 11th Year of the Term of this Agreement and each year thereafter, in addition to the Slippage Protection provided in the foregoing Section 6.2, the Blended Rate shall be adjusted by 25% of the difference between (i) the annual change in the December Consumer Price Index all relevant consumers (CPI-U) for the immediate preceding year as published by the Bureau of Labor Statistics of the United States Department of Labor, using the same base year (and in the event that such Index shall no longer be published, UTGR and the Division agree to use such Index that most closely approximates the Index as it was in effect immediately prior to the succession of publication) and (ii) the Annual Growth Rate in Net Terminal Income for the immediately preceding year ; provided, however, that in no case shall the annual adjustment increase or decrease the Blended Rate as the same may have been adjusted for Slippage Protection as provided for in Section 6.2 by more than one percent. Within thirty (30) days after the publication of the December Consumer Price Index, UTGR shall submit to the Division a calculation of any adjustment to be made to the Blended Rate as required by this Section 6.3 together with such reasonable supporting documentation as the Division may require together with a request to adjustment in the Blended Rate. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.3, notwithstanding any objections the Division may have to the calculation thereof but subject to the Division’s right to dispute the same as herein provided. Any such adjustment shall be retroactive to the Blended Rate Adjustment Date and in the case of a reduction in the Blended Rate, the Division shall make payment for the period between the Blended Rate Adjustment Date and the date of the adjustment within twenty (20) calendar days and similarly to the extent that there is an increase in the Blended Rate, UTGR shall make a payment to the Division of the amount due for the period between the Blended Rate Adjustment Date and the effective date of the adjustment within 20 calendar days. 6.4 In the event that after any adjustment in the Blended Rate pursuant to either Section 6.2 or 6.3 there shall be a further adjustment in the Blended Rate by agreement of UTGR and the Division, or as a result of a determination by an accounting firm chosen in accordance with Section 6.5 hereof, such adjustment in the Blended Rate o shall be retroactive to the Blended Rate Adjustment Date and any amounts due to a party shall be paid within twenty (20) days. 6.5 In the event of any dispute by the Division with respect to any adjustments in the Blended Rate required by Sections 6.2 and 6.3, the Division shall give notice to UTGR within twenty (20) days of the receipt by the Division of UTGR’s submission. Upon receipt of the Division’s objection, UTGR and the Division shall seek to mediate the same within thirty (30) days. If within such thirty (30) day period UTGR and the Division are unable to reach agreement, then within ten (10) days the Division shall submit to UTGR a list of three nationally recognized accounting firms none of whom shall have been engaged by UTGR and within the further ten (10) days, UTGR shall select one of such firms. Upon such selection, the matter shall be forthwith submitted by UTGR and the Division to the selected firm for a decision within thirty (30) days. Each of UTGR and the Division agrees to submit such information to such accounting firm as such accounting firm shall reasonably request. The decision of such accounting firm shall be final and binding on the parties absent fraud or manifest error. The non-prevailing party shall pay the costs and expenses of such accounting firm. 6.6 Except as currently exists for Lincoln Park and Newport Xxx Xxxx under the provisions of Rhode Island General Laws 42-61.2-7(a)(2), the State and the Division hereby expressly agrees not to enter into any agreement or adopt, modify or amend any law, rule or regulation that would impair the rights of UTGR under the Act and this Agreement. Notwithstanding anything above to the contrary, nothing in this Agreement shall limit the authority of the Division to enforce its rights under this Agreement or the State to enact, adopt and enforce laws and regulations which are of general application and not specifically directed to the operation of UTGR. Subject to the foregoing, the State and the Division expressly pledge and agree with UTGR that the State and the Division will not limit, alter, diminish or adversely impact the rights or economic benefits which vest in UTGR under the terms of this Agreement as authorized by the Act. 7. State Access/Egress Support. The State, acting through the Rhode Island Department of Transportation or other relevant agency shall provide the necessary road cuts, bridges, tunnels, highway widening, traffic lights and the related signage on and from Route 146 as may be necessary in order to improve access to and egress from Lincoln Park (and as set forth in the final highway improvement plans provided by BLB or a BLB Affiliate on or before June 3o, 2006 that are approved by the Rhode Island Department of Transportation). Such construction shall be designed so as to minimize the amount of motor vehicle traffic use and/or travel upon secondary roads and/or through residential neighborhoods surrounding Lincoln Park. UTGR shall provide and pay for the design of such improvements and upon completion thereof and approval by the State, the State shall take all reasonable steps to have such improvements included in the state transportation improvement plan or to cause such improvements to be exempt therefrom. UTGR or a UTGR Business Affiliate shall pay all costs for the construction of such improvements. 8. Project Labor Agreement. Promptly following the Effective Date, UTGR, or a UTGR Business Affiliate, as applicable, shall execute a Project Labor Agreement (the “Project Labor Agreement”) for the construction of improvements to Lincoln Park, subject to all applicable construction industry trade unions being parties thereto. 9. Limitation on Use of Lincoln Park and on Certain Activities of BLB and UTGR. 9.1 UTGR, and any UTGR Business Affiliate, including BLB, agrees that during the Term, it will not construct and/or operate a hotel at or in close proximity to Lincoln Park and it will not market Lincoln Park as a venue for conventions of the type which are part of the target market for the Rhode Island Convention Center Authority, the Providence Performing Arts Center, the Veterans Memorial Auditorium, including Broadway or Broadway type plays, or any theatrical performances of a musical, non-musical or comedic variety. 9.2 Notwithstanding the restrictions under Section 9.1 hereof, nothing shall prohibit UTGR from marketing to hold or host, or from holding or hosting at Lincoln Park holiday fairs for local businesses, concerts, sporting and other entertainment events which are open generally to the public and if held in an indoor events venue at Lincoln Park, with no stage house, and with a non-fixed seating capacity of such venue not to exceed 1,500 people for musical concerts and comedy shows, and 2,100 people for all other events. 9.3 Following completion of the Investment Requirements, UTGR will maintain Lincoln Park in a manner substantially consistent with a first class racino operated elsewhere in the United States pursuant to regulations duly adopted pursuant to state law. 10. Use of Lottery System Infrastructure; Other State Services During the Term, the Division will permit UTGR to use, and assist and cooperate with UTGR in its use of the Division’s Video Lottery Terminal systems infrastructure subject to the rights of third parties, such use to be pursuant to mutually agreed upon terms and conditions. UTGR shall provide access to the Division for purpose of the repair, maintenance and improvement of any such facilities during normal business hours and after reasonable notice. 11.

Application of Slippage Protection. A. Beginning with the first Subsequent Year and thereafter in each Subsequent Year, within thirty (30) days after the close of the first six (6) months of such Subsequent Year, UTGR shall submit to the Division a calculation comparing its Adjusted Base Year Net Terminal Income for such year to the annualized actual Net Terminal Income for the first six (6) months of such year and its proposed adjustment in the Blended Rate together with such supporting documentation as the Division shall reasonably require. If twice the actual Net Terminal Income for the first six (6) months shall be less than ninety percent (90%) of the sum of the Adjusted Base Year Net Terminal Income and any Benchmark Excess for the immediately preceding Subsequent Year , then Blended Rate for the second six (6) months shall be equal to the fraction, expressed as percentage, the numerator of which is the positive difference, if any, between (x) the sum of (i) the product of the Adjusted Base Year Net Terminal Income for the Subsequent Year for which the calculation is being made and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and (y) the product of the actual Net Terminal Income for such six month period and the Blended Rate, and denominator of which is the actual Net Terminal Income for such six month period. Any such adjustment in the Blended Rate shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 A. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. The Division shall make payment for period between the Blended Rate Adjustment Date and the effective date of such adjustment within twenty (20) calendar days. B. Within sixty (60) days of the close of each Subsequent Year, UTGR shall certify to the Division, with such supporting documentation as the Division shall reasonably require, the amount of its share of Net Terminal Income for such Subsequent Year, the amount of Benchmark Excess, if any, and its proposed adjustment in the Blended Rate. In any Subsequent Year where there is a Benchmark Excess, the Blended Rate for the next Subsequent Year shall be equal to a fraction, expressed as a percentage, the numerator of which shall be (i) the sum of the product of the Adjusted Base Year Net Terminal Income for such Subsequent Year and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and the denominator of which shall the actual Net Terminal Income for the immediately preceding Subsequent Year. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 B. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. 6.3 In addition to the foregoing, commencing with the beginning of the 11th Year of the Term of this Agreement and each year thereafter, in addition to the Slippage Protection provided in the foregoing Section 6.2, the Blended Rate shall be adjusted by 25% of the difference between (i) the annual change in the December Consumer Price Index all relevant consumers (CPI-U) for the immediate preceding year as published by the Bureau of Labor Statistics of the United States Department of Labor, using the same base year (and in the event that such Index shall no longer be published, UTGR and the Division agree to use such Index that most closely approximates the Index as it was in effect immediately prior to the succession of publication) and (ii) the Annual Growth Rate in Net Terminal Income for the immediately preceding year ; provided, however, that in no case shall the annual adjustment increase or decrease the Blended Rate as the same may have been adjusted for Slippage Protection as provided for in Section 6.2 by more than one percent. Within thirty (30) days after the publication of the December Consumer Price Index, UTGR shall submit to the Division a calculation of any adjustment to be made to the Blended Rate as required by this Section 6.3 together with such reasonable supporting documentation as the Division may require together with a request to adjustment in the Blended Rate. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.3, notwithstanding any objections the Division may have to the calculation thereof but subject to the Division’s right to dispute the same as herein provided. Any such adjustment shall be retroactive to the Blended Rate Adjustment Date and in the case of a reduction in the Blended Rate, the Division shall make payment for the period between the Blended Rate Adjustment Date and the date of the adjustment within twenty (20) calendar days and similarly to the extent that there is an increase in the Blended Rate, UTGR shall make a payment to the Division of the amount due for the period between the Blended Rate Adjustment Date and the effective date of the adjustment within 20 calendar days. 6.4 In the event that after any adjustment in the Blended Rate pursuant to either Section 6.2 or 6.3 there shall be a further adjustment in the Blended Rate by agreement of UTGR and the Division, or as a result of a determination by an accounting firm chosen in accordance with Section 6.5 hereof, such adjustment in the Blended Rate o shall be retroactive to the Blended Rate Adjustment Date and any amounts due to a party shall be paid within twenty (20) days. 6.5 In the event of any dispute by the Division with respect to any adjustments in the Blended Rate required by Sections 6.2 and 6.3, the Division shall give notice to UTGR within twenty (20) days of the receipt by the Division of UTGR’s submission. Upon receipt of the Division’s objection, UTGR and the Division shall seek to mediate the same within thirty (30) days. If within such thirty (30) day period UTGR and the Division are unable to reach agreement, then within ten (10) days the Division shall submit to UTGR a list of three nationally recognized accounting firms none of whom shall have been engaged by UTGR and within the further ten (10) days, UTGR shall select one of such firms. Upon such selection, the matter shall be forthwith submitted by UTGR and the Division to the selected firm for a decision within thirty (30) days. Each of UTGR and the Division agrees to submit such information to such accounting firm as such accounting firm shall reasonably request. The decision of such accounting firm shall be final and binding on the parties absent fraud or manifest error. The non-prevailing party shall pay the costs and expenses of such accounting firm. 6.6 Except as currently exists for Lincoln Park and Newport Xxx Xxxx under the provisions of Rhode Island General Laws 42-61.2-7(a)(2), the State and the Division hereby expressly agrees not to enter into any agreement or adopt, modify or amend any law, rule or regulation that would impair the rights of UTGR under the Act and this Agreement. Notwithstanding anything above to the contrary, nothing in this Agreement shall limit the authority of the Division to enforce its rights under this Agreement or the State to enact, adopt and enforce laws and regulations which are of general application and not specifically directed to the operation of UTGR. Subject to the foregoing, the State and the Division expressly pledge and agree with UTGR that the State and the Division will not limit, alter, diminish or adversely impact the rights or economic benefits which vest in UTGR under the terms of this Agreement as authorized by the Act. 7. State Access/Egress Support. The State, acting through the Rhode Island Department of Transportation or other relevant agency shall provide the necessary road cuts, bridges, tunnels, highway widening, traffic lights and the related signage on and from Route 146 as may be necessary in order to improve access to and egress from Lincoln Park (and as set forth in the final highway improvement plans provided by BLB or a BLB Affiliate on or before June 3o, 2006 that are approved by the Rhode Island Department of Transportation). Such construction shall be designed so as to minimize the amount of motor vehicle traffic use and/or travel upon secondary roads and/or through residential neighborhoods surrounding Lincoln Park. UTGR shall provide and pay for the design of such improvements and upon completion thereof and approval by the State, the State shall take all reasonable steps to have such improvements included in the state transportation improvement plan or to cause such improvements to be exempt therefrom. UTGR or a UTGR Business Affiliate shall pay all costs for the construction of such improvements. 8. Project Labor Agreement. Promptly following the Effective Date, UTGR, or a UTGR Business Affiliate, as applicable, shall execute a Project Labor Agreement (the “Project Labor Agreement”) for the construction of improvements to Lincoln Park, subject to all applicable construction industry trade unions being parties thereto. 9. Limitation on Use of Lincoln Park and on Certain Activities of BLB and UTGR. 9.1 UTGR, and any UTGR Business Affiliate, including BLB, agrees that during the Term, it will not construct and/or operate a hotel at or in close proximity to Lincoln Park and it will not market Lincoln Park as a venue for conventions of the type which are part of the target market for the Rhode Island Convention Center Authority, the Providence Performing Arts Center, the Veterans Memorial Auditorium, including Broadway or Broadway type plays, or any theatrical performances of a musical, non-musical or comedic variety. 9.2 Notwithstanding the restrictions under Section 9.1 hereof, nothing shall prohibit UTGR from marketing to hold or host, or from holding or hosting at Lincoln Park holiday fairs for local businesses, concerts, sporting and other entertainment events which are open generally to the public and if held in an indoor events venue at Lincoln Park, with no stage house, and with a non-fixed seating capacity of such venue not to exceed 1,500 people for musical concerts and comedy shows, and 2,100 people for all other events. 9.3 Following completion of the Investment Requirements, UTGR will maintain Lincoln Park in a manner substantially consistent with a first class racino operated elsewhere in the United States pursuant to regulations duly adopted pursuant to state law. 10. Use of Lottery System Infrastructure; Other State Services During the Term, the Division will permit UTGR to use, and assist and cooperate with UTGR in its use of the Division’s Video Lottery Terminal systems infrastructure subject to the rights of third parties, such use to be pursuant to mutually agreed upon terms and conditions. UTGR shall provide access to the Division for purpose of the repair, maintenance and improvement of any such facilities during normal business hours and after reasonable notice. 11.

Application of Slippage Protection. A. Beginning with the first Subsequent Year and thereafter in each Subsequent Year, within thirty (30) days after the close of the first six (6) months of such Subsequent Year, UTGR Newport Grand shall submit to the Division a calculation comparing its Adjusted Base Year Net Terminal Income for such year to the annualized actual Net Terminal Income for the first six (6) months of such year and its proposed adjustment in the Blended Rate together with such supporting documentation as the Division shall reasonably require. If twice the actual Net Terminal Income for the first six (6) months shall be less than ninety percent (90%) of the sum of the Adjusted Base Year Net Terminal Income and any Benchmark Excess for the immediately preceding Subsequent Year Year, then the Blended Rate for the second six (6) months shall be equal to the fraction, expressed as a percentage, the numerator of which is the positive difference, if any, between (x) the sum of (i) the product of the Adjusted Base Year Net Terminal Income for the Subsequent Year for which the calculation is being made and multiplied by the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and (y) the product of the actual Net Terminal Income for such six month period and multiplied by the Blended Rate, and the denominator of which is the actual Net Terminal Income for such six month period. Any such adjustment in the Blended Rate shall be effective ten (10) days after the submission by UTGR Newport Grand in accordance with this Section 6.2 A. 5.2A. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. The Division shall make payment for the period between the Blended Rate Adjustment Date and the effective date of such adjustment within twenty (20) calendar days. B. Within sixty (60) days of the close of each Subsequent Year, UTGR shall certify to the Division, with such supporting documentation as the Division shall reasonably require, the amount of its share of Net Terminal Income for such Subsequent Year, the amount of Benchmark Excess, if any, and its proposed adjustment in the Blended Rate. In any Subsequent Year where there is a Benchmark Excess, the Blended Rate for the next Subsequent Year shall be equal to a fraction, expressed as a percentage, the numerator of which shall be (i) the sum of the product of the Adjusted Base Year Net Terminal Income for such Subsequent Year and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and the denominator of which shall the actual Net Terminal Income for the immediately preceding Subsequent Year. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 B. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. 6.3 In addition to the foregoing, commencing with the beginning of the 11th Year of the Term of this Agreement and each year thereafter, in addition to the Slippage Protection provided in the foregoing Section 6.2, the Blended Rate shall be adjusted by 25% of the difference between (i) the annual change in the December Consumer Price Index all relevant consumers (CPI-U) for the immediate preceding year as published by the Bureau of Labor Statistics of the United States Department of Labor, using the same base year (and in the event that such Index shall no longer be published, UTGR and the Division agree to use such Index that most closely approximates the Index as it was in effect immediately prior to the succession of publication) and (ii) the Annual Growth Rate in Net Terminal Income for the immediately preceding year ; provided, however, that in no case shall the annual adjustment increase or decrease the Blended Rate as the same may have been adjusted for Slippage Protection as provided for in Section 6.2 by more than one percent. Within thirty (30) days after the publication of the December Consumer Price Index, UTGR shall submit to the Division a calculation of any adjustment to be made to the Blended Rate as required by this Section 6.3 together with such reasonable supporting documentation as the Division may require together with a request to adjustment in the Blended Rate. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.3, notwithstanding any objections the Division may have to the calculation thereof but subject to the Division’s right to dispute the same as herein provided. Any such adjustment shall be retroactive to the Blended Rate Adjustment Date and in the case of a reduction in the Blended Rate, the Division shall make payment for the period between the Blended Rate Adjustment Date and the date of the adjustment within twenty (20) calendar days and similarly to the extent that there is an increase in the Blended Rate, UTGR shall make a payment to the Division of the amount due for the period between the Blended Rate Adjustment Date and the effective date of the adjustment within 20 calendar days. 6.4 In the event that after any adjustment in the Blended Rate pursuant to either Section 6.2 or 6.3 there shall be a further adjustment in the Blended Rate by agreement of UTGR and the Division, or as a result of a determination by an accounting firm chosen in accordance with Section 6.5 hereof, such adjustment in the Blended Rate o shall be retroactive to the Blended Rate Adjustment Date and any amounts due to a party shall be paid within twenty (20) days. 6.5 In the event of any dispute by the Division with respect to any adjustments in the Blended Rate required by Sections 6.2 and 6.3, the Division shall give notice to UTGR within twenty (20) days of the receipt by the Division of UTGR’s submission. Upon receipt of the Division’s objection, UTGR and the Division shall seek to mediate the same within thirty (30) days. If within such thirty (30) day period UTGR and the Division are unable to reach agreement, then within ten (10) days the Division shall submit to UTGR a list of three nationally recognized accounting firms none of whom shall have been engaged by UTGR and within the further ten (10) days, UTGR shall select one of such firms. Upon such selection, the matter shall be forthwith submitted by UTGR and the Division to the selected firm for a decision within thirty (30) days. Each of UTGR and the Division agrees to submit such information to such accounting firm as such accounting firm shall reasonably request. The decision of such accounting firm shall be final and binding on the parties absent fraud or manifest error. The non-prevailing party shall pay the costs and expenses of such accounting firm. 6.6 Except as currently exists for Lincoln Park and Newport Xxx Xxxx under the provisions of Rhode Island General Laws 42-61.2-7(a)(2), the State and the Division hereby expressly agrees not to enter into any agreement or adopt, modify or amend any law, rule or regulation that would impair the rights of UTGR under the Act and this Agreement. Notwithstanding anything above to the contrary, nothing in this Agreement shall limit the authority of the Division to enforce its rights under this Agreement or the State to enact, adopt and enforce laws and regulations which are of general application and not specifically directed to the operation of UTGR. Subject to the foregoing, the State and the Division expressly pledge and agree with UTGR that the State and the Division will not limit, alter, diminish or adversely impact the rights or economic benefits which vest in UTGR under the terms of this Agreement as authorized by the Act. 7. State Access/Egress Support. The State, acting through the Rhode Island Department of Transportation or other relevant agency shall provide the necessary road cuts, bridges, tunnels, highway widening, traffic lights and the related signage on and from Route 146 as may be necessary in order to improve access to and egress from Lincoln Park (and as set forth in the final highway improvement plans provided by BLB or a BLB Affiliate on or before June 3o, 2006 that are approved by the Rhode Island Department of Transportation). Such construction shall be designed so as to minimize the amount of motor vehicle traffic use and/or travel upon secondary roads and/or through residential neighborhoods surrounding Lincoln Park. UTGR shall provide and pay for the design of such improvements and upon completion thereof and approval by the State, the State shall take all reasonable steps to have such improvements included in the state transportation improvement plan or to cause such improvements to be exempt therefrom. UTGR or a UTGR Business Affiliate shall pay all costs for the construction of such improvements. 8. Project Labor Agreement. Promptly following the Effective Date, UTGR, or a UTGR Business Affiliate, as applicable, shall execute a Project Labor Agreement (the “Project Labor Agreement”) for the construction of improvements to Lincoln Park, subject to all applicable construction industry trade unions being parties thereto. 9. Limitation on Use of Lincoln Park and on Certain Activities of BLB and UTGR. 9.1 UTGR, and any UTGR Business Affiliate, including BLB, agrees that during the Term, it will not construct and/or operate a hotel at or in close proximity to Lincoln Park and it will not market Lincoln Park as a venue for conventions of the type which are part of the target market for the Rhode Island Convention Center Authority, the Providence Performing Arts Center, the Veterans Memorial Auditorium, including Broadway or Broadway type plays, or any theatrical performances of a musical, non-musical or comedic variety. 9.2 Notwithstanding the restrictions under Section 9.1 hereof, nothing shall prohibit UTGR from marketing to hold or host, or from holding or hosting at Lincoln Park holiday fairs for local businesses, concerts, sporting and other entertainment events which are open generally to the public and if held in an indoor events venue at Lincoln Park, with no stage house, and with a non-fixed seating capacity of such venue not to exceed 1,500 people for musical concerts and comedy shows, and 2,100 people for all other events. 9.3 Following completion of the Investment Requirements, UTGR will maintain Lincoln Park in a manner substantially consistent with a first class racino operated elsewhere in the United States pursuant to regulations duly adopted pursuant to state law. 10. Use of Lottery System Infrastructure; Other State Services During the Term, the Division will permit UTGR to use, and assist and cooperate with UTGR in its use of the Division’s Video Lottery Terminal systems infrastructure subject to the rights of third parties, such use to be pursuant to mutually agreed upon terms and conditions. UTGR shall provide access to the Division for purpose of the repair, maintenance and improvement of any such facilities during normal business hours and after reasonable notice. 11.

Application of Slippage Protection. A. Beginning with the first Subsequent Year and thereafter in each Subsequent Year, within thirty (30) days after the close of the first six (6) months of such Subsequent Year, UTGR shall submit to the Division a calculation comparing its Adjusted Base Year Net Terminal Income for such year to the annualized actual Net Terminal Income for the first six (6) months of such year and its proposed adjustment in the Blended Rate together with such supporting documentation as the Division shall reasonably require. If twice the actual Net Terminal Income for the first six (6) months shall be less than ninety percent (90%) of the sum of the Adjusted Base Year Net Terminal Income and any Benchmark Excess for the immediately preceding Subsequent Year Year, then Blended Rate for the second six (6) months shall be equal to the fraction, expressed as percentage, the numerator of which is the positive difference, if any, between (x) the sum of (i) the product of the Adjusted Base Year Net Terminal Income for the Subsequent Year for which the calculation is being made and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and (y) the product of the actual Net Terminal Income for such six month period and the Blended Rate, and denominator of which is the actual Net Terminal Income for such six month period. Any such adjustment in the Blended Rate shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 A. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. The Division shall make payment for period between the Blended Rate Adjustment Date and the effective date of such adjustment within twenty (20) 200 calendar days. B. Within sixty (60) days of the close of each Subsequent Year, UTGR shall certify to the Division, with such supporting documentation as the Division shall reasonably require, the amount of its share of Net Terminal Income for such Subsequent Year, the amount of Benchmark Excess, if any, and its proposed adjustment in the Blended Rate. In any Subsequent Year where there is a Benchmark Excess, the Blended Rate for the next Subsequent Year shall be equal to a fraction, expressed as a percentage, the numerator of which shall be (i) the sum of the product of the Adjusted Base Year Net Terminal Income for such Subsequent Year and the Blended Rate and (ii) the Benchmark Excess for the immediately preceding Subsequent Year and the denominator of which shall the actual Net Terminal Income for the immediately preceding Subsequent Year. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.2 B. and shall be retroactive to the Blended Rate Adjustment Date notwithstanding any objections the Division may have with respect to the calculation thereof, but subject nevertheless to the Division’s right to dispute the same as herein provided. 6.3 In addition to the foregoing, commencing with the beginning of the 11th Year of the Term of this Agreement and each year thereafter, in addition to the Slippage Protection provided in the foregoing Section 6.2, the Blended Rate shall be adjusted by 25% of the difference between (i) the annual change in the December Consumer Price Index all relevant consumers (CPI-U) for the immediate preceding year as published by the Bureau of Labor Statistics of the United States Department of Labor, using the same base year (and in the event that such Index shall no longer be published, UTGR and the Division agree to use such Index that most closely approximates the Index as it was in effect immediately prior to the succession of publication) and (ii) the Annual Growth Rate in Net Terminal Income for the immediately preceding year ; provided, however, that in no case shall the annual adjustment increase or decrease the Blended Rate as the same may have been adjusted for Slippage Protection as provided for in Section 6.2 by more than one percent. Within thirty (30) days after the publication of the December Consumer Price Index, UTGR shall submit to the Division a calculation of any adjustment to be made to the Blended Rate as required by this Section 6.3 together with such reasonable supporting documentation as the Division may require together with a request to adjustment in the Blended Rate. Any adjustment in the Blended Rate required by the UTGR submission shall be effective ten (10) days after the submission by UTGR in accordance with this Section 6.3, notwithstanding any objections the Division may have to the calculation thereof but subject to the Division’s right to dispute the same as herein provided. Any such adjustment shall be retroactive to the Blended Rate Adjustment Date and in the case of a reduction in the Blended Rate, the Division shall make payment for the period between the Blended Rate Adjustment Date and the date of the adjustment within twenty (20) calendar days and similarly to the extent that there is an increase in the Blended Rate, UTGR shall make a payment to the Division of the amount due for the period between the Blended Rate Adjustment Date and the effective date of the adjustment within 20 calendar days. 6.4 In the event that after any adjustment in the Blended Rate pursuant to either Section 6.2 or 6.3 there shall be a further adjustment in the Blended Rate by agreement of UTGR and the Division, or as a result of a determination by an accounting firm chosen in accordance with Section 6.5 hereof, such adjustment in the Blended Rate o shall be retroactive to the Blended Rate Adjustment Date and any amounts due to a party shall be paid within twenty (20) days. 6.5 In the event of any dispute by the Division with respect to any adjustments in the Blended Rate required by Sections 6.2 and 6.3, the Division shall give notice to UTGR within twenty (20) days of the receipt by the Division of UTGR’s submission. Upon receipt of the Division’s objection, UTGR and the Division shall seek to mediate the same within thirty (30) days. If within such thirty (30) day period UTGR and the Division are unable to reach agreement, then within ten (10) days the Division shall submit to UTGR a list of three nationally recognized accounting firms none of whom shall have been engaged by UTGR and within the further ten (10) days, UTGR shall select one of such firms. Upon such selection, the matter shall be forthwith submitted by UTGR and the Division to the selected firm for a decision within thirty (30) days. Each of UTGR and the Division agrees to submit such information to such accounting firm as such accounting firm shall reasonably request. The decision of such accounting firm shall be final and binding on the parties absent fraud or manifest error. The non-prevailing party shall pay the costs and expenses of such accounting firm. 6.6 Except as currently exists for Lincoln Park and Newport Xxx Xxxx under the provisions of Rhode Island General Laws 42-61.2-7(a)(2), the State and the Division hereby expressly agrees not to enter into any agreement or adopt, modify or amend any law, rule or regulation that would impair the rights of UTGR under the Act and this Agreement. Notwithstanding anything above to the contrary, nothing in this Agreement shall limit the authority of the Division to enforce its rights under this Agreement or the State to enact, adopt and enforce laws and regulations which are of general application and not specifically directed to the operation of UTGR. Subject to the foregoing, the State and the Division expressly pledge and agree with UTGR that the State and the Division will not limit, alter, diminish or adversely impact the rights or economic benefits which vest in UTGR under the terms of this Agreement as authorized by the Act. 7. State Access/Egress Support. The State, acting through the Rhode Island Department of Transportation or other relevant agency shall provide the necessary road cuts, bridges, tunnels, highway widening, traffic lights and the related signage on and from Route 146 as may be necessary in order to improve access to and egress from Lincoln Park (and as set forth in the final highway improvement plans provided by BLB or a BLB Affiliate on or before June 3o, 2006 that are approved by the Rhode Island Department of Transportation). Such construction shall be designed so as to minimize the amount of motor vehicle traffic use and/or travel upon secondary roads and/or through residential neighborhoods surrounding Lincoln Park. UTGR shall provide and pay for the design of such improvements and upon completion thereof and approval by the State, the State shall take all reasonable steps to have such improvements included in the state transportation improvement plan or to cause such improvements to be exempt therefrom. UTGR or a UTGR Business Affiliate shall pay all costs for the construction of such improvements. 8. Project Labor Agreement. Promptly following the Effective Date, UTGR, or a UTGR Business Affiliate, as applicable, shall execute a Project Labor Agreement (the “Project Labor Agreement”) for the construction of improvements to Lincoln Park, subject to all applicable construction industry trade unions being parties thereto. 9. Limitation on Use of Lincoln Park and on Certain Activities of BLB and UTGR. 9.1 UTGR, and any UTGR Business Affiliate, including BLB, agrees that during the Term, it will not construct and/or operate a hotel at or in close proximity to Lincoln Park and it will not market Lincoln Park as a venue for conventions of the type which are part of the target market for the Rhode Island Convention Center Authority, the Providence Performing Arts Center, the Veterans Memorial Auditorium, including Broadway or Broadway type plays, or any theatrical performances of a musical, non-musical or comedic variety. 9.2 Notwithstanding the restrictions under Section 9.1 hereof, nothing shall prohibit UTGR from marketing to hold or host, or from holding or hosting at Lincoln Park holiday fairs for local businesses, concerts, sporting and other entertainment events which are open generally to the public and if held in an indoor events venue at Lincoln Park, with no stage house, and with a non-fixed seating capacity of such venue not to exceed 1,500 people for musical concerts and comedy shows, and 2,100 people for all other events. 9.3 Following completion of the Investment Requirements, UTGR will maintain Lincoln Park in a manner substantially consistent with a first class racino operated elsewhere in the United States pursuant to regulations duly adopted pursuant to state law. 10. Use of Lottery System Infrastructure; Other State Services During the Term, the Division will permit UTGR to use, and assist and cooperate with UTGR in its use of the Division’s Video Lottery Terminal systems infrastructure subject to the rights of third parties, such use to be pursuant to mutually agreed upon terms and conditions. UTGR shall provide access to the Division for purpose of the repair, maintenance and improvement of any such facilities during normal business hours and after reasonable notice. 11.