Victorian Current Acts Victorian Current ActsSchedule 8—Seventh deed of variation to the management agreement
MELBOURNE CASINO PROJECT
DEED dated 7 May 2002
BETWEEN THE HONOURABLE JOHN PANDAZOPOULOS MP , the Minister of the Crown for the time being administering the Casino Control Act acting for and on behalf of the State of Victoria ( 'State' )
AND CROWN LIMITED ACN 006 973 262 with its registered office at Level 2, 54 Park Street, Sydney, New South Wales ( 'Company' )
RECITALS
A. The State and the Company entered into an agreement dated 20 September 1993 ratified by and scheduled to the Casino (Management Agreement) Act 1993 ( 'Management Agreement' ).
B. The Management Agreement has been varied by:
(a) a deed of variation dated 14 November 1994 ratified by and scheduled to the Casino (Management Agreement Amendment) Act 1994 and inserted as Schedule 2 to the Casino (Management Agreement) Act 1993 ;
(b) a deed of variation dated 12 October 1995 ratified by and scheduled to the Casino (Management Agreement) (Further Amendment) Act 1995 and inserted as Schedule 3 to the Casino (Management Agreement) Act 1993 ;
(c) a deed of variation dated 3 June 1996 ratified by the Gaming Acts (Amendment) Act 1996 and inserted as Schedule 4 to the Casino (Management Agreement) Act 1993 ;
(d) a deed of variation dated 7 November 1996 ratified by the Casino (Management Agreement) Amendment Act 1996 and inserted as Schedule 5 to the Casino (Management Agreement) Act 1993 ;
(e) a deed of variation dated 1 October 1998 ratified by the Gaming Acts (Further Amendment) Act 1998 and inserted as Schedule 6 to the Casino (Management Agreement) Act 1993 ; and
(f) a deed of variation dated 3 April 2000 ratified by the National Taxation Reform (Further Consequential Provisions) Act 2000 and inserted as Schedule 7 to the Casino (Management Agreement) Act 1993 .
C. The parties have agreed to further vary the Management Agreement as provided in this Deed of Variation.
AGREEMENT
1. Definitions
Unless the context otherwise requires or the contrary intention appears, terms defined in the Casino Control Act 1991 or the Management Agreement have the same meaning when used in this Deed.
2. Ratification and operation of provisions
2.1 A Minister of the State must introduce and sponsor a Bill in the Parliament of Victoria to ratify this Deed as soon as reasonably practicable after its execution.
2.2 This Deed shall come into operation once the Bill referred to in clause 2.1 has come into operation as an Act.
3. Variation of Management Agreement
The State and the Company agree to vary the Management Agreement so that:—
(a) the following definitions in clause 2 shall be deleted;
'Melbourne Casino Complex (excluding the Lyric Theatre and the Southern Tower of the Hotel)'
'Lyric Theatre'
(b) the definition of 'Completion' in clause 2 shall be varied by:
(i) deleting the words 'the Lyric Theatre and' after the word 'excluding'; and
(ii) deleting the words 'the Lyric Theatre' after the words 'the Training and Human Resource Centre,';
(c) the definition of 'Completion Date' in clause 2 shall be varied by deleting the words 'the Lyric Theatre and' in paragraphs (d) and (e);
(d) the definition of 'Completion Standards' in clause 2 shall be varied by:
(i) deleting the words 'the Lyric Theatre and' after the word 'excluding'; and
(ii) deleting the words 'the Lyric Theatre' after the words 'the Training and Human Resource Centre,';
(e) the definition of 'Melbourne Casino Complex' in clause 2 shall be varied by inserting the words 'and such other facilities as are nominated by the Company, with the approval of the Minister, as forming part of the Melbourne Casino Complex' after the words 'Ancillary Facilities';
(f) the definition of 'Site' in clause 2 shall be varied by deleting the words 'available for the construction of any part of the Melbourne Casino Complex' and inserting the words 'part of the Site';
(g) clause 10.1 shall be varied by deleting the words 'the Lyric Theatre and' after:
(i) the word 'excluding' in paragraph (c); and
(ii) the word 'Complete' in paragraph (d);
(h) clause 10.4 shall be varied:
(i) by deleting the words 'the Lyric Theatre and' after the words 'Training and Human Resource Centre,' where first appearing; and
(ii) by deleting the comma and words ', the Lyric Theatre' after the words 'Training and Human Resource Centre, where secondly appearing;
(i) clause 15.1 shall be varied by:
(i) deleting the words 'Lyric Theatre and' after the words 'excluding the'; and
(ii) deleting the words 'the Lyric Theatre' before the words 'the Southern Tower of the Hotel';
(j) clause 15.11 shall be deleted;
(k) clause 16.1 shall be varied by deleting the words 'the Lyric Theatre and' after the word 'excluding';
(l) clause 16.3 shall be varied by deleting the words 'Lyric Theatre and' after the word 'excluding';
(m) clause 17.1 shall be varied by:
(i) deleting the words 'the Lyric Theatre and' after the word 'excluding' in paragraph (c); and
(ii) deleting the words 'the Lyric Theatre and' in paragraph (d);
(n) clause 17.2 shall be varied by:
(i) deleting the words 'the Lyric Theatre and' wherever appearing in paragraphs (b) and (c);
(ii) deleting the words 'both the Lyric Theatre and' wherever appearing in paragraph (d); and
(iii) substituting the word 'is' for the word 'are' in paragraph (d) wherever appearing; and
(o) clause 17.3 shall be varied by deleting the words 'the Lyric Theatre and' in paragraph (a) wherever appearing.
4. Payment to the State
4.1 The Company agrees to pay to the State $18 million ( 'Payment' ) by 6 instalments of $3 Million each payable within 30 days of invoice from the State for each instalment the first of which is to be issued on the date of ratification of this Deed in accordance with clause 2 and the further invoices to be issued on each anniversary of this Deed in the 5 years following.
4.2 The Payment will be paid by the State into a Trust Account established under Part 4 of the Financial Management Act 1994 in order that the principal and interest shall be applied by the State for the construction of high profile cultural facilities in the Southbank Arts Precinct Area.
4.3 If the Company fails to make the Payment on the due date, without prejudice to any other right or remedy arising because of that failure, the Company must pay to the State interest (calculated daily) on the amount in default (including accrued interest) at the Default Rate for the period from the due date until payment is made (including all interest due under this clause).
4.4 This clause 4 and clauses 5 and 6 are not conditions of the Casino Licence and their performance is not to be taken into account in the regulation of the Company under the Casino Control Act 1991 or the Casino (Management Agreement) Act 1993 . Any breach of these clauses will not be taken to be a breach of the Management Agreement and in particular for the purposes of clause 25.2 of the Management Agreement.
5. Alternative Project
5.1 The Company agrees to construct or procure an alternative project the nature and the timing of which is to be determined at the sole discretion of the Company. The Company, at its cost, shall be solely responsible for obtaining all permits and approvals necessary for such alternative project.
5.2 The estimated cost of the alternative project shall be not less than the estimated cost of constructing the Lyric Theatre of $42 million, the amount determined on 9 March 2001 by a quantity surveyor appointed by the State.
5.3 The Company shall submit drawings, plans, specifications and details relating to the alternative project to the State so that the State may have the estimated cost thereof verified by a quantity surveyor to be appointed by the State, acting reasonably. If the estimated cost so verified is less than $42 million, the Company agrees to construct or procure a further stage or stages of the alternative project (the nature and the timing of which is to be determined at the sole discretion of the Company) to make up the shortfall in estimated cost. Clauses 5.1 and 6, and the verification process in this clause apply to any such further stage.
6. Location of the Alternative Project
6.1 The Company may give notice to the State as to whether the alternative project will:
(a) form part of the Melbourne Casino Complex; or
(b) not form part of the Melbourne Casino Complex, but be located on land within the area bounded by Queensbridge Street, City Road, Clarendon Street and Whiteman Street and that such land:
(i) is designated by the Company as part of the Site; or
(ii) will not be part of the Site.
6.2 (a) If clause 6.1(a) applies, the parties must, within 6 months after the date of the notice under clause 6.1, enter into a further Deed of Variation of the Management Agreement that will provide for the alternative project to be part of the Melbourne Casino Complex and subject to the Company's discretion under clause 5.1 and to all the requirements mutatis mutandis of the Management Agreement and the Casino (Management Agreement) Act 1993 .
(b) If clause 6.1(b)(i) applies the Minister may approve or reject the Company's designation of that land as part of the Site. If the Minister approves that designation, the Minister must cause the Melbourne Casino Area to be increased, under section 128C(1)(b) of the Casino Control Act , so that it is the same area as the Site, within 6 months after the date of the notice under clause 6.1. The alternative project will not constitute a change to the Drawings .
7. Force Majeure Event
None of the negotiation, preparation and execution of this Deed, its ratification under clause 2 or any of the circumstances relating to or giving rise to the creation of this Deed has or will cause or create any Government Action, Force Majeure Event or breach of obligation under any Transaction Document and the Company and the State so acknowledge.
8. Confirmation of other terms
The parties acknowledge and confirm that except as varied by this Deed the terms and conditions of the Management Agreement remain in full force and effect.
9. Entire Agreement
This Deed is the entire agreement between the parties concerning the subject matter and replaces all previous representations, communications and agreements on the subject matter.
10. General provisions
Clauses 33 and 35 to 40 (inclusive) of the Management Agreement apply to this Deed as if expressly included in this Deed.
EXECUTED as a Deed.
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SIGNED SEALED AND DELIVERED by THE HONOURABLE |
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JOHN PANDAZOPOULOS |
(signature)
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witness
MARCELLE BÂGU
Name of witness
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THE COMMON SEAL of |
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Secretary Name STEPHEN WRIGHT
Director Name ASHOK JACOB
Witness Name .
Sch. 9 inserted by No. 47/2005 s. 11.