Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading amended: No. 19 of 2010 s. 4.]
CASINO (BURSWOOD ISLAND) AGREEMENT
SEVENTH SUPPLEMENTARY AGREEMENT
THIS AGREEMENT made the ninth day of June 1997
B E T W E E N :
THE HONOURABLE GEORGE MAXWELL EVANS MBE, FCA, MLC, the Minister of the Crown
for the time being charged with the administration of the Control Act acting
for and on behalf of the State of Western Australia and its instrumentalities
from time to time (“the State”);
PERPETUAL TRUSTEES W.A. LTD. (ACN 008 666 886) of 89 St. George’s
Terrace Perth in the State of Western Australia as trustee of the Burswood
Property Trust (“the Trustee”);
AND
BURSWOOD RESORT (MANAGEMENT) LIMITED (ACN 009 396 945) of 40 The Esplanade
Perth in the State of Western Australia as manager of the Burswood Property
Trust (“the Manager”) of the third part.
RECITALS:
A. The State, the Trustee (by virtue of the
West Australian Trustees Limited (Merger) Act 1989 ) and the Manager (by
virtue of a deed of retirement and appointment of manager made on 13 August
1990 and a deed of assumption and covenant made on 13 November 1991) are
parties to an agreement dated 20 February 1985 ratified by and scheduled to
the Casino (Burswood Island) Agreement Act 1985 as amended by two agreements
dated 14 September 1987 and 3 May 1990 also ratified by and scheduled to the
Casino (Burswood Island) Agreement Act 1985 and by four other agreements made
pursuant to clause 5 of the 20 February 1985 Agreement dated 13 November 1991,
30 March 1992, 3 April 1995 and 22 June 1996 (the 20 February 1985 Agreement
as so amended “the State Agreement”).
B. The parties have agreed to further amend the
State Agreement for the purpose of more efficiently or satisfactorily
implementing or facilitating certain of its objectives.
THE PARTIES AGREE AS FOLLOWS:
Definitions and Interpretation
1. Words and expressions defined in the State
Agreement when used in this Agreement have, unless the context otherwise
requires, the same meanings as in the State Agreement and the provisions of
clause 2 of the State Agreement as to interpretation apply to this Agreement.
Variation
2. (1) The State shall
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement and endeavour to secure its passage as an Act.
(2) The following
provisions of this Agreement shall be of no force or effect if the Bill
referred to in sub-clause (1) is not passed as an Act on or before 20
September 1997.
Clause 2 amended
3. Clause 2 of the State Agreement is amended-
(a) by
inserting after the definition of “Anniversary Date” the following
definition-
“
“Approved Company” means a company approved by the Minister under
clause 17A(1)”;
(b) by
deleting the definition of “Burswood Park Technical Committee”;
(c) by
inserting after the definition of “Committee’s Nominated
Representative” the following definition-
“
“Commission” means the Gaming Commission of Western Australia
established by the Gaming Commission Act 1987 ”;
(d) by
deleting the definition of “Manager”, and substituting the
following-
“
“Manager” means any Person for the time being appointed, subject
to the provisions of this Agreement, Manager under and pursuant to the terms
of the Trust Deed, provided that if there is no person appointed Manager or
the Trustee is appointed Manager, then references in this agreement to Manager
will be read as references to the Trustee, except where the context so
requires.”;
(e) by
inserting after the definition of “Manager”, the following
definition -
“
“Mandatory Articles” means the provisions to be included in the
articles of association of the Approved Company in accordance with the
requirements of clauses 17A(2)(b) and 17A(2)(c)”;
(f) in
the definition of “Resort Complex”, by inserting after
“Stage 2 but” the following:-
“subject to
paragraph (c) of the definition of “Site” ”;
(g) by
deleting the definition of “Resort Site”, and substituting the
following -
“ “Resort
Site” means those parts of Burswood Island as are-
(a)
shown bordered red on Department of Land Administration Miscellaneous Plan
1512;
(b)
designated as Swan Location 12057 on Department of Land Administration Plan
18634; and
(c)
designated as Swan Location 11877 on Department of Land Administration Diagram
91378
or, if some other area
is for the time being notified in the Government Gazettte pursuant to clause
6(2B), that other area, but subject to clause 6(2A) does not include the Site
or any land which ceases to be part of the Site by virtue of an order made
under section 21F(1b) of the Control Act;”; and
(h) by
deleting the definition of “Site”, and substituting the following-
“
“Site” means-
(a) Swan
Location 10661 and 10662 as surveyed and shown on Department of Land
Administration Original Plan 16284;
(b)
except in clauses 6, 9(1) and 9(3), any additional land granted or leased to
the Trustee for the purposes of this Agreement whether pursuant to clause 6(5)
or otherwise; and
(c) any
land in respect of which an order made under section 21F(1b) of the Control
Act is revoked
but, subject to
paragraph (c), does not include, on and from the date specified in an order
made under section 21F(1b) of the Control Act, any part of that land which is
by the order excluded from the operation of this Agreement;”.
Clause 6 amended
4. Clause 6 of the State Agreement is amended-
(a) in
clause 6(1)(c)(iii) by deleting the following-
“of the
Committee”;
(b)
after clause 6(2), by inserting the following clauses:-
“(2A) The State
may from time to time
(a)
determine the boundaries of the Resort Site; or
(b)
amend the boundaries of the Resort Site-
(i)
to increase the area of the Resort Site with the consent
of the Trustee and the Manager;
(ii)
to decrease the area of the Resort Site pursuant to
clause 23(3)(a);
(iii)
to decrease the area of the Resort Site otherwise than
pursuant to clause 23(3)(a), with the consent of the Trustee and the
Manager.”
(2B) Subject to
subclause (2C), a determination of the boundaries of the Resort Site or an
amendment of the boundaries of the Resort Site pursuant to subclause (2A) is
effective from the date on which notice of the amendment is published in the
Government Gazette .
(2C) A determination
of the boundaries of the Resort Site pursuant to subclause (2A) may, in the
notice published pursuant to subclause (2B), be expressed to be effective as
of a date, prospective or retrospective, specified in the notice.
(2D) If the Resort
Site is amended pursuant to subclause (2A), the State must amend the reserve
created pursuant to clause 6(1)(c) accordingly.”; and
(c) by
inserting after clause 6(4), the following clause-
“(5)
Notwithstanding the provisions of the Public Works Act 1902 , the
Financial Administration and Audit Act 1985 or of any other Act the State
may-
(a) on
the recommendation of the Minister cause part or parts of any land excised
from the Resort Site not exceeding in the aggregate 10 hectares to be granted
or leased to the Trustee on terms and conditions approved by the Minister by
notice published in the Government Gazette ; and
(b) pay
or direct the payment of all or any part of any money payable by the Trustee
to the State for land granted or leased to the Trustee under paragraph (a) to
the person who was registered as the proprietor of that land immediately prior
to its acquisition by or on behalf of the State.”.
Clause 9 amended
5. Clause 9(5) of the State Agreement is amended-
(a) by
deleting after “of the State and Commonwealth” the following-
“and, in
addition in relation to the Resort Site, with the Burswood Park Technical
Committee,”; and
(b) by
deleting “instrumentalities and such Committee” and substituting
the following-
“and instrumentalities”.
The heading of “The Committee’s Nominated Representative” in
Part II, amended
6. Part II of the State Agreement is amended in
the heading “The Committee’s Nominated Representative” by
deleting “Committee’s” and substituting the following-
“Commission’s”.
Clause 12 deleted
7. Clause 12 of the State Agreement is deleted.
The heading of “The Burswood Property Trust Issue of Units and Options
to the Founders” in Part III, amended
8. Part III of the State Agreement is amended in
the heading “The Burswood Property Trust Issue of Units and Options to
the Founders” by deleting the following-
“to the Founders”.
Clause 14 amended
9. Clause 14 is amended by inserting after clause
14(c), the following clause-
“(ca) with the
prior approval of the Minister, issue further Units to the public or otherwise
at a price, and on terms and conditions as to payment of the price, approved
by the Minister”.
Clause 17 amended
10. Clause 17 is amended -
(a) by
inserting after clause 17(e), the following clauses:-
“(ea) the
Memorandum and Articles of Association of an Approved Company shall not be
altered or amended without the prior approval of the Minister;
(eb) an
Approved Company may not sell or otherwise dispose of any Units without the
prior approval of the Minister;”;
(b) in
clause 17(g)-
(i)
by inserting after “subject to”, the
following-
“any approval
given under clause 17A and to”;
(ii)
by deleting “Associated Stock Exchanges” and
substituting the following-
“Stock Exchange
Limited”;
(iii)
by deleting “five” and substituting the
following-
“ten”; and
(iv)
by deleting “5” and substituting the
following -
“10”;
(c) by
inserting after clause 17(g) the following clause-
“(ga) there
shall be no breach of the Mandatory Articles;”;
(d) by
inserting after clause 17(i) the following clause-
“(ia) there
shall be no change in the ownership or control of the Manager as defined in
the Operation Management Agreement without the prior approval of the
Minister;”;
(e) by
inserting after clause 17(l) the following clause-
“(m) except for
holding Units as authorised under clause 17A, any Approved Company will not
without the Minister’s consent be engaged, concerned or interested in,
any investment or business activity which the Trustee would not have power
under the Trust Deed to be engaged, concerned or interested in.”; and
(f) by
inserting after clause 17, the following clause-
“17A(1)
Notwithstanding anything in clause 17(1), the Minister may approve:
(a) the
acquisition by a Company of up to all the Units in the Trust; and/or
(b) the
redemption or cancellation of some or all of the Units in the Trusts
so that all of the
Units in the Trust are held by a company, if, but only if the requirements of
subclause (2) are satisfied in relation to that company.
(2) For the purposes
of subclause (1)-
(a) the
company must be a public company incorporated in Australia the voting shares
of which are capable of being quoted on the Australian Stock Exchange Limited
and the Minister must be reasonably satisfied that the company’s voting
shares will be quoted on the Australian Stock Exchange Limited;
(b) the
articles of association of the company must comply with the requirements set
out in Schedule B; and
(c) the
memorandum and articles of association of the company must have been approved
by the Minister.
The heading of “Excess holdings of Units and Options” in Part III,
amended
11. Part III of the State Agreement is amended
after clause 17 in the heading “Excess holdings of Units and
Options” by inserting after “Units and Options”, the
following-
“and breach of Mandatory Articles”.
Clause 18 amended
12. Clause 18 of the State Agreement is amended-
(a) by
inserting after “18.” the following-
“(1)”;
(b) by
inserting after “clause 17(1)” the following-
“and which is
not authorised under clause 17A”; and
(c) by
inserting after clause 18 the following clause-
“(2)
Notwithstanding paragraph (ga) of clause 17(1), a breach of the Mandatory
Articles of an Approved Company shall not constitute a breach of this
Agreement if the directors of the Approved Company as soon as possible upon
becoming aware of a breach of the Mandatory Articles enforce compliance with
the Mandatory Articles under the enforcement provisions of the Mandatory
Articles.”.
Clause 23 amended
13. Clause 23 of the State Agreement is amended-
(a) in
clause 23(2)(b)-
(i)
by inserting after “subject to” the
following-
“clause 6(2A)
and to”;
(ii)
by deleting after “Resort Site” the
following-
“as determined
by survey,”; and
(iii)
by deleting “remains unchanged” and
substituting the following-
“is not
decreased”; and
(b) by
inserting after clause 23(2A) the following clause-
“(2B) For the
purposes of subclause (2) the Resort Site shall be taken to remain under the
control and management of the Board even if the Board, with the prior approval
of the Minister and the Trustee, leases the whole or part of that part of the
Resort Site as now comprises Swan Location 11877 on Department of Land
Administration Diagram 91378”.
(c) in
clause 23(3) -
(i)
by inserting before clause 23(3)(a), the following clause
-
“(aa) excise
from the Resort Site any part or parts of the Resort Site agreed to be granted
or leased to the Trustee under clause 6(5)”;
(ii)
in subclause 23(3)(a), by deleting after “ consent
of the Trustee” the following-
“exceed 10% of
the area of the Resort Site as determined by the survey referred to in
subclause (2)(b); and”
(iii)
in clause 23(3)(a) by inserting after “ consent of
the Trustee” the following-
“exceed -
(i)
10% of the area of the Resort Site as at 3 January 1986;
or
(ii)
10% of the aggregate of the area of (A) the Resort Site
at the time of excision; and (B) any land which has been excised from the
Resort Site pursuant to paragraph (aa)
whichever area is the
greater; and”.
Clause 24 amended
14. Clause 24(2)(aa) of the State Agreement is
amended after “paragraph (a)” by deleting “is” and
substituting the following
“has at any time been”.
Clause 35 amended
15. Clause 35(2) of the State Agreement is amended
by inserting after “referred to in clauses” the following-
“6(5),14(ca), 17(1)(ea), 17(1)(eb),
17(1)(ia), 17A”.
Clause 36 amended
16. Clause 36 of the State Agreement is amended-
(a) in
clause 36(b)-
(i)
by deleting “telex” in the first place where
it occurs and substituting the following-
“facsimile (to
be immediately confirmed by postal or hand delivery)”;
(ii)
by deleting “West Australian” and
substituting the following-
“Perpetual”;
(iii)
by inserting after “Trustees” the following-
“WA”;
(iv)
by deleting “135 St George’s Terrace”
and substituting the following -
“C/- Level 7, 1
Castlereagh Street”;
(v)
by deleting “Perth 6000” in the first place
where it occurs, and substituting the following-
“Sydney NSW
2000”;
(vi)
by deleting “Telex AA92516” and substituting
the following-
“Facsimile: (02)
9223 7688”;
(vii)
by deleting “Manager- Trust Services”, and
substituting the following-
“National
Manager- Property Trusts”
(viii)
by inserting after “Burswood” the following-
“Resort”;
(ix)
by deleting “8 St George’s Terrace” and
substituting the following-
“40 The
Esplanade”; and
(x)
by deleting “Telex AA96577” and substituting
the following-
“Facsimile: 08
9481 0892”
(b) in
clause 36(c) -
(i)
by deleting “telex” in the first place where
it occurs, and substituting the following-
“facsimile (to
be immediately confirmed by postal or hand delivery)”;
(ii)
by deleting “15th” in the first place where
it occurs and substituting the following-
“11th”;
(iii)
by deleting after “15th Floor” in the first
place where it occurs, the following-
“City Mutual
Tower”;
(iv)
by deleting “197” in the first place where it
occurs, and substituting the following-
“216”;
(v)
by deleting “Telex AA96555” and substituting
the following-
“Facsimile:(08)
9481 4613”;
(vi)
by deleting “Casino Control Committee” and
substituting the following-
“Gaming
Commission of Western Australia”
(vii)
by deleting “City Mutual Tower” in the second
place where it occurs, and substituting the following-
“Hyatt
Centre”;
(viii)
by deleting “197 St. George’s Terrace”
in the second place where it occurs, and substituting the following -
“87 Adelaide
Terrace”;
(ix)
by deleting “Perth 6000” in the second place
where it occurs, and substituting the following-
“East Perth
6004”
(x)
by deleting “Telex: [To be advised]” and
substituting the following-
“Facsimile:(08)
9325 1636”;
(xi)
by deleting “telex upon receipt of the recipients
answerback” and substituting the following-
“facsimile upon
report of successful transmission to the correct facsimile number”; and
(xii)
by deleting “telex” in the third and fourth
places where it occurs, and substituting the following-
“facsimile”.
17. The State Agreement is amended by deleting
“Committee” in each place where is occurs in the clauses referred
to in the Table to this clause and substituting in each case the following-
“Commission”.
Table
2 (definition of “Casino Gross
Revenue”) 15(e)
2 (definition of “Commissioning”)
19
2 (definition of “Committee’s
Nominated Representative) 20(1)
6(1)(c) 20(2)
7(8)(a) 21(d)
11(1) 21(e)
11(2) 22(2)
11(3) 23(b)
14(d) 33(2)
15(a)(B) 35(1)
15(b)(i) 35(2)
15(c) 36(b)
15(d) 36(c)
18. The State Agreement is amended by deleting
“Committee’s” in each place where it occurs in the clauses
referred to in the Table to this subclause and substituting in each case the
following-
“Commission’s”.
Table
2 (definition of “Committee’s Nominated Representative)
7(8)(b) 11(2)
7(8)(c) 11(3)
7(8)(d) 19
11(1) 20(1)
19. The State Agreement is amended by inserting
after Schedule A, the following-
“SCHEDULE B
(Clause 17A - Mandatory Articles)
1. (1) The articles of
association of any Approved Company must:
(a)
impose restrictions on the issue, acquisition and ownership (including joint
ownership) of shares in the Approved Company so as to prevent foreign persons
having relevant interests in shares in the Approved Company that represent, in
total, more than 40% of the voting shares of the issued share capital of the
Approved Company provided that the Minister may by notice to the Approved
Company exempt any existing or future holding of shares in the Approved
Company by a specified Person from the provisions of this paragraph for a
period specified in the notice and during that period those shares shall be
disregarded for the purposes of this paragraph; and
(b)
impose restrictions on the issue, acquisition and ownership (including joint
ownership) of shares in the Approved Company so as to prevent an individual
Person having relevant interests in shares in the Approved Company that
represent more than 10% of the voting shares of the issued share capital of
the Approved Company provided that the Minister may by notice to the Approved
Company exempt any existing or future holding of shares in the Approved
Company by a specified Person from the provisions of this paragraph for a
period specified in the notice and during that period those shares shall be
disregarded for the purposes of this paragraph; and
(c)
impose restrictions on the counting of votes in respect of the appointment,
replacement and removal of a director of the Approved Company so as to prevent
the votes attaching to all substantial foreign shareholdings being counted in
respect of the appointment, replacement or removal of more than one-third of
the directors of the Approved Company who hold office at any particular time,
so that at any particular time not less than two thirds of the directors of
the Approved Company have been appointed by a resolution of shareholders in
respect of which no votes attaching to any substantial foreign shareholding
was counted; and
(d)
confer the following powers on the directors of the Approved Company to enable
the directors to enforce the restrictions referred to in paragraphs (a), (b)
and (c);
(i)
the power to do anything necessary to effect the transfer
of shares or divestment held by a Person;
(ii)
the power to remove or limit the right of a Person to
exercise voting rights attached to voting shares;
(iii)
subject to the Corporations Law, the power to end the
appointment of a person to the office of director of the Approved Company;
(iv)
the power to suspend dividend rights attaching to a
share; and
(v)
the power to require or cause the divestiture of shares
held by a Person”; and
(e)
without the prior approval of the Minister, prohibit the Approved Company from
taking any action to bring about a change of its company name to a name that
does not include the word “Burswood”; and
(f)
require that the head office of the Approved Company always be located in
Western Australia; and
(g)
prohibiting any one shareholder of the Approved Company nominating or
appointing more than one member of the Board of Directors of the Approved
Company; and
(h)
require that, at all times, at least two-thirds of the directors of the
Approved Company are Australian citizens; and
(i)
require that, at a meeting of the board of directors of
the Approved Company, the director presiding at the meeting (however
described) must be an Australian citizen; and
(j)
prohibit the Approved Company, at all times, from taking any action to become
incorporated outside Australia; and
(k) the
appointment of the auditors of the Approved Company to be in accordance with
the provisions of the Corporations Law but no person shall be appointed as
such auditor unless that person’s appointment has first been approved by
the Minister;
(l)
include provisions in the same terms as clauses 19 and 20 as if references in
those clauses to the Burswood Property Trust were references to the Approved
Company.
(2) For the purposes
of this Schedule, a person has a relevant interest in a share if, and only if,
the person would be taken because of Division 5 of Part 1.2 of the
Corporations Law to have a relevant interest in the share if section 33 of
that Law were disregarded.
(3) For the purposes
of this Schedule, the question whether a person who is not an Australian
citizen is ordinarily resident in Australian at a particular time is to be
determined in the same manner as that question is determined under the
Foreign Acquisitions and Takeovers Act 1975 (Commonwealth) .
(4) For the purposes
of this Schedule, a reference to a substantial foreign shareholding is a
reference to a shareholding of 10% or more of the voting shares in the
Approved Company in which a particular foreign person has a relevant interest.
(5) In this Schedule -
“Australian
citizen” has the same meaning as in the Australian Citizenship Act 1948
(Commonwealth) ;
“ Australian
person” means:
(a) an
individual who is an Australian citizen or is ordinarily resident in
Australia; or
(b) the
Commonwealth, a State or a Territory; or
(c) a
person who is a nominee of the Commonwealth or of a State or a Territory; or
(d) a
Commonwealth, State or Territory authority; or
(e) a
person who is a nominee of a Commonwealth, State or Territory authority; or
(f) a
local government body (whether incorporated or not) formed by or under a law
of a State or a Territory; or
(g) a
person who is a nominee of a local government body referred to in paragraph
(f); or
(h) a
body corporate that:
(i)
is incorporated by or under a law of the Commonwealth or
of a State or a Territory; and
(ii)
is substantially owned and effectively controlled by
persons referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (i); or
(i)
a person in the capacity of a trustee, or manager, of a
fund in which the total interests (if any) of persons referred to in paragraph
(a), (b), (c), (d), (e), (f), (g) or (h) represent 80% or more of the total
interests in the fund;
“company
name” , in relation to an Approved Company, has the same meaning as in
the Corporations Law;
“Corporations
Law” means the Corporations Law of the Commonwealth of Australia as
applying in each State and Territory of Australia;
“foreign
person” means a person who is not an Australian person;
“head
office” , in relation to an Approved Company, means the place of
business of the Approved Company where central management and control are
exercised.
AS WITNESS the execution of this Agreement by or on behalf of the parties the
day and year first hereinbefore written.
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SIGNED by THE HONOURABLE GEORGE MAXWELL EVANS MBE, FCA, MLC for and on behalf
of the State of Western Australia in the presence of: |
) |
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__________________________________
WILLIAM JOHN SHEPHERD
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SIGNED by ROBERT PETER JENKINS for and on behalf of Perpetual Trustees W.A.
Ltd. under Power of Attorney dated 5 June 1997 |
) | |
__________________________________
R JENKINS
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THE COMMON SEAL of BURSWOOD RESORT (MANAGEMENT) LIMITED (ACN 009 396 9450)
was hereunto affixed by authority of the Board of Directors in the presence of
|
) |
|
__________________________________
Director DONALD
MICHAEL WATT
__________________________________
Secretary YEW
SENG KWA
[Schedule 4 inserted: No. 20 of 1997 s. 8.]