Part 1
Preliminary
Part 1—Preliminary
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Victoria act
What this law does, in plain English
This Act formally ratifies (makes legally effective) the written management agreement between the State of Victoria and the Melbourne casino operator (originally Crown Casino Ltd, later Crown Melbourne Ltd). (See section 6 and Schedule 1.)
Because the management agreement is incorporated by the Act, its terms have the force of statute for the Melbourne Casino licence. The Act also records and ratifies a long series of deed variations (10 deeds, set out in Schedules 2–11) that have changed the original agreement over time. (See definition of “the Agreement” in section 4 and Schedules.)
The Act establishes a legal hierarchy and special rules for the Melbourne Casino: where the Agreement and the general Casino Control Act conflict, the Agreement governs the Melbourne casino to the extent of inconsistency. (See section 7.)
The Act implements specific commercial and regulatory arrangements between the State and the operator, including:
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Direct links to the current provisions in Casino (Management Agreement) Act 1993.
Part 1—Preliminary
1 Purpose
The purpose of this Act is to ratify the management agreement for the Melbourne Casino.
2 Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3 Principal Act
In this Act, the Casino Control Act 1991 is called the Principal Act.
4 Definitions
In this Act—
S. 4 def. of Authority substituted by No. 37/1994 s. 230, substituted as def. of Commission by No. 114/2003 s. 12.1.3(Sch. 6 item 2.1), amended by No. 58/2011 s. 99, substituted by No. 54/2021 s. 40(a).
Commission means Victorian Gambling and Casino Control Commission established under Part 2 of the Victorian Gambling and Casino Control Commission Act 2011;
Melbourne Casino Licence has the same meaning as "Casino Licence" has in the Agreement;
Melbourne Casino Operator has the same meaning as "Company" has in the Agreement;
the Agreement amended by Nos 93/1994 s. 4(a), 89/1995 s. 4(a), 17/1996 s. 42(a), 62/1996
s. 4(a), 90/1998 s. 6(a), 24/2000 s. 6(a), 22/2002 s. 3(a), 47/2005 s. 8(a), 84/2009 s. 5(a), 73/2014 s. 5(a), 54/2021 s. 29, 30/2023 s. 27.
the Agreement means the management agreement for the Melbourne Casino, a copy of which is set out in Schedule 1, and includes the Agreement as varied by the first Deed of Variation and the second Deed of Variation and the third Deed of Variation and the fourth Deed of Variation and the fifth Deed of Variation and the sixth Deed of Variation and the seventh Deed of Variation and the eighth Deed of Variation and the ninth Deed of Variation and the tenth Deed of Variation and as varied by sections 7A, 7C, 7CA and 7D;
the first Deed of Variation inserted by No. 93/1994 s. 4(b), amended by No. 89/1995 s. 4(b).
the first Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 2;
the second Deed of Variation inserted by No. 89/1995 s. 4(c).
the second Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 3;
the third Deed of Variation inserted by No. 17/1996 s. 42(b).
the third Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 4;
the fourth Deed of Variation inserted by No. 62/1996 s. 4(b).
the fourth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 5;
the fifth Deed of Variation inserted by No. 90/1998 s. 6(b).
the fifth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 6;
the sixth Deed of Variation inserted by No. 24/2000 s. 6(b).
the sixth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 7;
the seventh Deed of Variation inserted by No. 22/2002 s. 3(b), amended by No. 47/2005 s. 8(b).
the seventh Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 8;
the eighth Deed of Variation inserted by No. 47/2005 s. 8(c), amended by No. 84/2009 s. 5(b).
the eighth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 9;
the ninth Deed of Variation inserted by No. 84/2009 s. 5(c), amended by No. 73/2014 s. 5(b).
the ninth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 10;
the tenth Deed of Variation inserted by No. 73/2014 s. 5(c).
the tenth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 11.
5 Crown to be bound
This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all other capacities.
Part 2—Ratification and implementation
6 Ratification and implementation of Agreement
(1) The Agreement is ratified and takes effect as if it had been enacted in this Act.
S. 6(2) amended by Nos 44/1995 s. 8, 114/2003 s. 12.1.3 (Sch. 6 item 2.2).
(2) The Minister administering this Act, the Treasurer and the Commission are authorised and required to do all things necessary to implement and give full effect to the Agreement and the other Transaction Documents within the meaning of the Agreement.
S. 6(3) inserted by No. 16/1997 s. 118, substituted by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.3).
(3) A reference in clause 24.1 of the Agreement to the Gaming Machine Control Act 1991, the Lotteries Gaming and Betting Act 1966, the Tattersall Consultations Act 1958 or the Club Keno Act 1993 must, so far as it relates to any period on or after the commencement of section 12.2.1 of the Gambling Regulation Act 2003, be construed as a reference to the Gambling Regulation Act 2003.
S. 6A inserted by No. 93/1994 s. 5.
6A Ratification of the first Deed of Variation
S. 6A(1) amended by No. 89/1995 s. 5.
(1) The first Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
S. 6A(2) amended by No. 89/1995 s. 5.
(2) The Agreement is amended as provided in the first Deed of Variation.
S. 6B inserted by No. 89/1995 s. 6.
6B Ratification of the second Deed of Variation
(1) The second Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the second Deed of Variation.
S. 6C inserted by No. 17/1996 s. 43.
6C Ratification of the third Deed of Variation
(1) The third Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the third Deed of Variation.
(3) A reference in clause 2.2 of the third Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of Part 7 of the Gaming Acts (Amendment) Act 1996.
S. 6D inserted by No. 62/1996 s. 5.
6D Ratification of the fourth Deed of Variation
(1) The fourth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the fourth Deed of Variation.
(3) A reference in clause 2.2 of the fourth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino (Management Agreement) (Amendment) Act 1996.
S. 6E inserted by No. 90/1998 s. 7.
6E Ratification of the fifth Deed of Variation
(1) The fifth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the fifth Deed of Variation.
(3) A reference in clause 2.2 of the fifth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the date on which the Gaming Acts (Further Amendment) Act 1998 receives the Royal Assent.
S. 6F inserted by No. 24/2000 s. 7.
6F Ratification of the sixth Deed of Variation
(1) The sixth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the sixth Deed of Variation.
S. 6G inserted by No. 22/2002 s. 4.
6G Ratification of the seventh Deed of Variation
(1) The seventh Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the seventh Deed of Variation.
(3) A reference in clause 2.2 of the seventh Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino (Management Agreement) (Amendment) Act 2002.
S. 6H inserted by No. 47/2005 s. 9.
6H Ratification of the eighth Deed of Variation
(1) The eighth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the eighth Deed of Variation.
(3) A reference in clause 2.2 of the eighth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino Control (Amendment) Act 2005.
S. 6I inserted by No. 84/2009 s. 6.
6I Ratification of the ninth Deed of Variation
(1) The ninth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the ninth Deed of Variation.
(3) A reference in clause 2.2 of the ninth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of Part 3 of the Casino Legislation Amendment Act 2009.
S. 6J inserted by No. 73/2014 s. 6.
6J Ratification of the tenth Deed of Variation
(1) The tenth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the tenth Deed of Variation.
(3) A reference in clause 2.2(a) of the tenth Deed of Variation to the coming into operation of the Bill is taken to be a reference to the commencement of the Casino and Gambling Legislation Amendment Act 2014.
7 Agreement to prevail if inconsistent with Casino Control Act
(1) If a provision of the Agreement is inconsistent with a provision of the Principal Act—
(a) the provision of the Agreement prevails; and
(b) the application of the Principal Act in relation to the Melbourne Casino Licence and Melbourne Casino Operator is modified accordingly.
S. 7(2) amended by Nos 93/1994 s. 6, 89/1995 s. 7, 17/1996 s. 44, 62/1996 s. 6, 90/1998 s. 8, 24/2000 s. 8(a), 22/2002 s. 5, 47/2005 s. 10, 84/2009 s. 7, 73/2014 s. 7.
(2) Nothing in this section derogates from the operation of section 6(1) or 6A(1) or 6B(1) or 6C(1) or 6D(1) or 6E(1) or 6F(1) or 6G(1) or 6H(1) or 6I(1) or 6J(1).
S. 7(3) inserted by No. 54/2021 s. 30.
(3) Nothing in this section applies in relation to Division 4 of Part 3 of the Principal Act.
Section 36R(1) of the Principal Act provides that Division 4 of Part 3 of that Act applies despite anything to the contrary in this Act.
S. 7A inserted by No. 54/2021 s. 31.
7A Variation of Agreement
Despite anything to the contrary in this Act or the Agreement—
(a) the Agreement is taken to have been varied on 15 October 2021 by deleting Part 5A and Annexure 1, as inserted by the tenth Deed of Variation and ratified by section 6J; and
(b) Part 5A of and Annexure 1 to the Agreement, as they take effect under section 6J, are taken to have been repealed on 15 October 2021.
S. 7B inserted by No. 54/2021 s. 31.
7B No liability
(1) On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 or 24A of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a) the enactment of the Casino and Gambling Legislation Amendment Act 2021; or
(b) the variation of the Agreement and the repeal of Part 5A and Annexure 1 by section 7A; or
(c) the appointment of a special manager and the cancellation of the Melbourne Casino Licence under the Casino Control Act 1991.
(2) For the purpose of clause 25 of the Agreement or any other purpose, any liability of the State that may have arisen under Part 5A of the Agreement on or after 15 October 2021 and before the commencement of this section is extinguished.
(e) an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
S. 7C inserted by No. 42/2022 s. 48.
7C Variation of Agreement—junkets
(a) the Agreement is varied on the commencement of this section by deleting "or a junket" (where first occurring) and "or a junket player (as the case may be)" in the definition of "Commission Based Player" in clause 2, as inserted by the second Deed of Variation and ratified by section 6B; and
(b) the definition of "Commission Based Player" in clause 2 of the Agreement, as it takes effect under section 6B, is amended on the commencement of this section by omitting—
(i) "or a junket" (where first occurring); and
(ii) "or a junket player (as the case may be)".
(2) On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a) the enactment of section 48 of the Casino Legislation Amendment (Royal Commission Implementation and Other Matters) Act 2022; or
(e) an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
S. 7CA inserted by No. 14/2023 s. 64.
7CA Variation of Agreement—taxation
(a) the Agreement is varied on the commencement of this section by deleting clauses 22.1(b) and (d), 22.2, 22.3, 22.4, 22.5, 22.6, 22.7 and 22A; and
(b) clauses 22.1(b) and (d), 22.2, 22.3, 22.4, 22.5, 22.6, 22.7 and 22A of the Agreement, as they take effect under sections 6, 6B, 6I and 6J (as the case requires), are repealed on the commencement of this section.
(2) On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a) the enactment of section 64 of the Gambling Taxation Act 2023; or
(e) an agent, representative, advisor, consultant or contractor or a person referred to in paragraph (a), (b), (c) or (d).
S. 7D inserted by No. 42/2022 s. 49.
7D Variation of Agreement—Melbourne Casino Sublease Area
(a) clause 26 of the Agreement, as ratified by section 6, is varied on the commencement of this section by—
(i) deleting "Melbourne Casino" in clauses 26.5(a), (c), (e), (f) (where secondly occurring), (g) and (i), 26.6(a), (c), (d) and (e) and 26.7 and substituting "Melbourne Casino Sublease Area"; and
(ii) adding the following clause as clause 26.9—
'26.9 In this clause—
"Melbourne Casino Sublease Area" means the area within the boundaries of the casino to which this Agreement relates as determined and varied from time to time under section 17 of the Casino Control Act.';
(b) clause 26 of the Agreement, as it takes effect under section 6, is amended on the commencement of this section by—
(i) for "Melbourne Casino" in clauses 26.5(a), (c), (e), (f) (where secondly occurring), (g) and (i), 26.6(a), (c), (d) and (e) and 26.7 substituting "Melbourne Casino Sublease Area"; and
(ii) inserting the following after clause 26.8—
'26.9 In this clause—
"Melbourne Casino Sublease Area" means the area within the boundaries of the casino to which this Agreement relates as determined and varied from time to time under section 17 of the Casino Control Act.'.
(2) On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a) the enactment of section 49 of the Casino Legislation Amendment (Royal Commission Implementation and Other Matters) Act 2022; or
(e) an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
S. 8
(Heading) inserted by No. 47/2005 s. 12, amended by Nos 58/2011 s. 100, 54/2021 s. 40(b).
S. 8 amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.4).
8 Powers of Commission
In addition to the functions and powers conferred on the Commission under the Principal Act, the Commission has the functions and powers conferred, or purporting to be conferred, on it, whether directly or indirectly, by the Agreement.
9 Transfer of Melbourne Casino Licence
(1) Despite anything to the contrary in the Principal Act, the Melbourne Casino Licence may be sold, transferred, assigned or otherwise disposed of by the Melbourne Casino Operator to another person if—
(a) the Minister has, in writing, approved the transfer or assignment to that person of the rights, liabilities and obligations of the Melbourne Casino Operator under the Agreement; and
S. 9(1)(b) amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.4).
(b) the Commission has, in writing, approved that person.
(2) Subsection (1)(a) does not apply to an assignment of rights under the Agreement which, under clause 36.1 of the Agreement, does not require the prior written consent of the State.
S. 9(3) amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.4).
(3) The Commission must not approve a person for the purpose of subsection (1) unless the Commission is satisfied that, if the person were an applicant for a licence under the Principal Act, the Commission would grant the application under the Principal Act.
(4) Upon the sale, transfer, assignment or disposal of the Melbourne Casino Licence to another person as referred to in this section, this Act and the Agreement have effect as if a reference to the Melbourne Casino Operator were a reference to that other person.
S. 10 amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.4).
10 Commission may enter into agreement on postponement of action
Without affecting their rights under the Principal Act, the Commission and the Minister are authorised, and deemed always to have been authorised, from time to time to enter into an agreement with the Melbourne Casino Operator and any other person or persons under which the Commission or the Minister agrees to give such notices or take such action as is specified in the agreement before the Commission exercises powers under Part 2 of the Principal Act in relation to the Melbourne Casino Licence.
11 Taxes and charges
S. 11(1) amended by Nos 89/1995 s. 8(1), 14/2023 s. 65(1)(a).
(1) The payments to the State for which provision is made by Part 4 of the Agreement as varied from time to time are taxes, fees, charges and other payments payable by the Melbourne Casino Operator in lieu of tax payable under section 112A of the Principal Act.
S. 11(2) amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.5).
(2) Payments referred to in subsection (1) must be made to the Commission for payment to the Consolidated Fund.
S. 11(3) amended by No. 14/2023 s. 65(1)(b).
(3) Section 112A of the Principal Act does not apply to the Melbourne Casino Operator or the Melbourne Casino Licence.
S. 11(3A) inserted by No. 42/2022 s. 50.
(3A) For the avoidance of doubt, sections 112B and 112C of the Principal Act apply to the Melbourne Casino Operator.
Sections 112B and 112C of the Principal Act provide for payment of a supervision charge by a casino operator.
(4) The reference in clause 22.9 of the Agreement to exclusivity casino tax is deemed to be a reference to additional casino tax referred to in clause 22.1(c) of the Agreement.
S. 11(5) inserted by No. 89/1995 s. 8(2), amended by Nos 24/2000 s. 8(b), 14/2023 s. 65(1)(c).
(5) For the avoidance of doubt, clauses 22B, 22C and 22D of the Agreement are in Part 4 of the Agreement.
S. 11(6) inserted by No. 14/2023 s. 65(2).
(6) For the avoidance of doubt, the Gambling Taxation Act 2023 applies to the Melbourne Casino Operator.
S. 12 amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.6).
12 Payments under Master Security Agreement
If, under clause 4.9 or 11 of the Master Security Agreement (within the meaning of the Agreement), the State or the Commission is required to pay an amount, the amount (not exceeding, in the case of a payment under clause 11, the amount received by or on behalf of the State for the issue of a new casino licence) is payable from the Consolidated Fund which is, to the necessary extent, appropriated accordingly.
13 Application of casino earnings if licence cancelled etc.
(1) If, while the Master Security Agreement (within the meaning of the Agreement) is in force, there is a manager of the Melbourne casino (within the meaning of the Agreement) appointed under section 22 of the Casino Control Act 1991, the net earnings of the casino must be applied in accordance with clause 4.1(b) to (f) of the Master Security Agreement.
(2) In subsection (1), net earnings means gross gaming revenue (as defined in the Master Security Agreement) less casino taxes (as so defined) and operating expenses, other than interest and financing costs.
14 Change in situation of casino operator
A reference in section 28(1)(a) of the Principal Act to a person becoming an associate of the casino operator does not include a reference to a receiver appointed in accordance with the Master Security Agreement within the meaning of the Agreement.
15 Certain agreements not controlled contracts
The Facility Agreement within the meaning of the Management Agreement, and Financing Documents within the meaning of the Facility Agreement, are not controlled contracts within the meaning of section 29 of the Principal Act.
16 Development conditions under the Agreement
(1) Despite anything to the contrary in clause 10 of the Agreement, the Company (within the meaning of the Agreement) may make such changes to the Drawings (within the meaning of the Agreement) as are authorised in writing by the Minister.
(2) If the Minister authorises changes to the Drawings, the Minister must cause a copy of the changes to be tabled in each House of the Parliament within 6 sitting days of the House after the changes are authorised.
(3) The changes are disallowed if—
(a) notice of a resolution to disallow the changes is given in a House of the Parliament within 6 sitting days of the House after a copy of the changes is laid before it; and
(b) the House passes the resolution within 6 sitting days after the giving of the notice.
(4) If a House of the Parliament is prorogued or the Legislative Assembly is dissolved—
(a) the prorogation or dissolution does not affect the power of either House to pass a resolution disallowing the changes; and
(b) the calculation of sitting days of the House shall be made as if there had been no prorogation or dissolution.
(5) The disallowance of changes to the Drawings under this section has the same effect as if the changes had not been authorised.
17 Cancellation and refunds
If the Melbourne Casino Licence is cancelled, the licensing payment amounts shall be refunded in accordance with the Agreement and the Consolidated Fund is to the necessary extent appropriated accordingly.
Pts 3, 4 (Headings and ss 18–20) repealed by No. 70/2013 s. 3(Sch. 1 item 5).
Pt 5 (Heading and ss 21, 22) inserted by No. 58/2011 s. 101.
Part 5—Transitional provisions—Victorian Commission for Gambling and Liquor Regulation Act 2011
S. 21 inserted by No. 58/2011 s. 101.
21 Definitions
In this Part—
commencement day means the day on which section 101 of the Victorian Commission for Gambling and Liquor Regulation Act 2011 comes into operation;
former Commission means the Victorian Commission for Gambling Regulation established by section 10.1.1 of the Gambling Regulation Act 2003, as in force immediately before the commencement day;
new Commission means Victorian Commission for Gambling and Liquor Regulation established under Part 2 of the Victorian Commission for Gambling and Liquor Regulation Act 2011.
S. 22 inserted by No. 58/2011 s. 101.
22 Things commenced by the former Commission before abolition of former Commission
(1) This section applies if immediately before the commencement day—
(a) the former Commission has commenced to do something required or permitted to be done under the Act; and
(b) the former Commission has not completed doing that thing before that day.
(2) On and after the commencement day, the new Commission may continue to do and complete that thing in accordance with the Act, as if the Act had not been amended by the Victorian Commission for Gambling and Liquor Regulation Act 2011.
(3) For the purposes of this section, anything done by the former Commission before the commencement day in respect of that thing is, on and after that day, taken to have been done by the new Commission.
Pt 6 (Heading and s. 23) inserted by No. 14/2023 s. 66.
Part 6—Transitional provisions—Gambling Taxation Act 2023
S. 23 inserted by No. 14/2023 s. 66.
23 Tax and community benefit levy in relation to periods before 1 July 2023
(1) This Act and the Agreement, as in force immediately before 1 July 2023, continue to apply on and after 1 July 2023 in relation to the Gross Gaming Revenue and Commission Based Players' Gaming Revenue of the Melbourne Casino Operator in respect of any period before that day.
(2) Without limiting subsection (1)—
(a) clauses 22.1(b) and (d), 22.2, 22.3, 22.4, 22.5, 22.6 and 22.7 of the Agreement continue to apply on and after 1 July 2023 to require the Melbourne Casino Operator to pay casino tax, a community benefit levy and additional casino tax on Gross Gaming Revenue in respect of any period before that day; and
(b) clause 22A of the Agreement continues to apply on and after 1 July 2023 to require the Melbourne Casino Operator to pay casino tax, a community benefit levy and additional casino tax on Commission Based Players' Gaming Revenue in respect of any period before that day.
Schedules
Schedule 1
AGREEMENT dated 20 September 1993
BETWEEN THE HONOURABLE HADDON STOREY QC MLC 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 CASINO LTD. ACN 006 973 262 with its registered office at Hudson Conway House, 311 Glenferrie Road, Malvern, Victoria ("Company").
A. The Authority has power to grant a casino licence under the provisions of the Casino Control Act.
B. Under section 15 of the Casino Control Act it is a condition precedent to the grant of a casino licence that an agreement in writing be entered into between the Minister for and on behalf of the State and the proposed casino operator identifying the casino to be the subject of the casino licence and containing any terms and conditions that the Minister thinks fit.
C. The Company has made application for a casino licence for the Melbourne Casino and pursuant to such application has provided information and submissions, including the Melbourne Casino Complex Development Proposals and the Temporary Casino Complex Development Proposals, to the State and the Authority.
D. The Authority has, in accordance with sections 9 and 10 of the Casino Control Act, carried out investigations and enquiries in relation to the Company and other persons required to be investigated.
E. Upon execution of this document the Authority and the Company will enter into the Casino Agreement.
F. Subject to the terms and conditions of this document and the Casino Agreement, the Authority has agreed to grant the Casino Licence to the Company.
G. The Casino Licence will enable the Company to operate a casino from temporary premises.
H. The Minister has authority to enter into this document on behalf of the State and this document is made pursuant to section 15 of the Casino Control Act.
I. The State acknowledges that the establishment of the Melbourne Casino Complex is a large scale development project requiring significant capital expenditure and that it is necessary to provide to the Company certain assurances contained in this document and other Transaction Documents to facilitate the financing of the Melbourne Casino Complex.
J. The Company acknowledges that the establishment of the Melbourne Casino Complex and the Temporary Casino Complex is a major project for the State and that the State is reliant upon timely completion and operation of the Temporary Casino and the Melbourne Casino and accordingly certain assurances are given by the Company in this document and other Transaction Documents.
K. Certain provisions of this document are not effective unless and until this document has been ratified by Act of Parliament (as contemplated by clause 3).
This document is divided into Parts as follows:
PART 1—PRELIMINARY
PART 2—APPROVAL OF DEVELOPMENT PROPOSALS AND CASINO LOCATION
PART 3—DEVELOPMENT
PART 4—PAYMENTS TO THE STATE
PART 5—EXCLUSIVITY
PART 6—TERMINATION
PART 7—GENERAL
PART 1—PRELIMINARY
In this document, unless the context otherwise requires or the contrary intention appears, terms defined in the Casino Control Act have the same meanings and the following terms have the meanings indicated if they start with a capital letter:
"Agent" means National Australia Bank Limited ACN 004 044 937 and any successor to it as agent under the Facility Agreement;
"Agreement Act" means the bill referred to in clause 3.2(a) when that bill is passed and comes into operation as an Act of Parliament as contemplated by that clause;
"Assets and Rights" means all the present and future undertaking, property, assets and rights of or held by the Company;
"Associate" has the same meaning as in sections 10 to 17 of the Corporations Law;
"Authorisation" includes a consent, approval, licence, permit, franchise, permission, filing, registration, resolution, direction, declaration and exemption;
"Authority" means the Victorian Casino Control Authority;
"Ancillary Facilities" means all facilities ancillary to the Temporary Casino or the Melbourne Casino identified in the Melbourne Casino Complex Development Proposals or the Temporary Casino Complex Development Proposals (as the case may be) to be constructed on or located within the Temporary Casino Site or the Site, including an hotel, restaurant, retail, recreation, entertainment and carparking facilities, residential and office accommodation, staff facilities, staff carparking, coach storage facilities and open space areas;
"Bank Bill" means a Bill which has been accepted by a bank authorised under the Banking Act 1959 to carrying on banking business in Australia;
"Bank Guarantees" means the guarantees or letters of credit to be provided by the Company pursuant to clauses 18.1 and 22.9;
"Bill" has the meaning given to the expression "Bill of Exchange" in the Bills of Exchange Act 1909 (but does not include a cheque) and any reference to the drawing, acceptance or other dealing of or with a Bill has the relevant meaning set out in that Act;
"Bill Rate" means on any day the rate (expressed as a yield per annum) which is—
(a) the rate quoted as the average bill rate on the Reuters Monitor System Page "BBSY" (or any page which replaces that page) by about 10.30 a.m. (Melbourne time) on that day for Bank Bills having a tenor of one month; or
(b) if no average bill rate is published for bills of that tenor in accordance with paragraph (a), the bid rate quoted to the State by Westpac Banking Corporation on that date for the purchase of Bank Bills having a tenor of one month;
"Business Day" means a day (other than a Saturday or Sunday) on which banks (as defined in the Banking Act 1959 (Commonwealth)) are generally open for business in Melbourne;
"Casino Agreement" means the agreement between the Authority and the Company providing, among other things, for the grant of the Casino Licence;
"Casino Asset" means an asset or undertaking of the Company which forms part of the Secured Property and which consists of—
(a) the Casino Licence;
(b) the Melbourne Casino;
(c) the Temporary Casino;
(d) all gaming equipment used in the Melbourne Casino or the Temporary Casino;
(e) all revenue derived from the Melbourne Casino or the Temporary Casino (other than revenues which have been deposited or are standing to the credit of the Debt Protection Account or the Debt Service Reserve Account (each as defined in the Facility Agreement) in accordance with the Facility Agreement and any Authorised Investments (as defined in the Facility Agreement) from either of those Accounts (or the proceeds of any such Authorised Investment)); and
(f) all other assets of the Company necessary for the operation of the Melbourne Casino or the Temporary Casino;
and a reference to the "Casino Assets" includes any part of them;
"Casino Control Act" means the Casino Control Act 1991 (Victoria);
"Casino Licence" means a casino licence as defined in the Casino Control Act in relation to the Temporary Casino and the Melbourne Casino in the form of the licence set out in Schedule One to the Casino Agreement;
"Casino Supervision and Control Charge" means—
(a) for the period from the Licensing Date until 30 June 1994, $5 000 000; and
(b) for each Financial Year from 1 July 1994 until 30 June 1997, $5 000 000;
"Commissioning" means the checking, testing and acceptance of the operational readiness of and the procedures for the various components of the Melbourne Casino Complex or the Temporary Casino Complex as the case may be (including all staff, facilities and equipment);
"Completion" means the completion of the construction, the Fit-Out and the Commissioning of the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex, as the case may be, to a state of operational readiness which complies with the Completion Standards, as determined pursuant to clause 15, and "Complete" and "Completed" have corresponding meanings;
"Completion Date" means (subject in each case to clause 16)—
(a) in relation to the Temporary Casino, the day immediately following the expiration of 34 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative;
(b) in relation to the Temporary Casino Complex, the day immediately following the expiration of 34 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative;
(c) in relation to the Melbourne Casino, the day immediately following the expiration of 143 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative; and
(d) in relation to the Melbourne Casino Complex, the day immediately following the expiration of 143 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative;
"Completion Standards" means—
(a) for construction of the Melbourne Casino, the Melbourne Casino Complex, the Temporary Casino or the Temporary Casino Complex when—
(i) a certificate of occupancy is issued by the responsible authority;
(ii) the Melbourne Casino, the Melbourne Casino Complex, the Temporary Casino or the Temporary Casino Complex is fit for use by the Company;
(iii) the Fit-Out and Commissioning has been completed in accordance with the requirements of this document; and
(iv) all other requirements under this document have been complied with; and
(b) in respect of the Melbourne Casino or the Temporary Casino, when a certificate is issued by the Authority pursuant to clause 20 of the Casino Agreement;
"Construction Agreement" means the proposed building agreement between the Company and a proposed builder substantially in the form of the draft agreement a copy of which has been signed on behalf of the Authority and the Company for the purposes of identification;
"Contractor' s Deed" has the meaning ascribed to that term in the Supplemental Development Agreement;
"Control Acts" means the Building Control Act 1981 and the Planning and Environment Act;
"Default Rate" means the rate set under the Penalty Interest Rates Act 1983 (Victoria) as at the date of any default;
"Deal with" means deal with property in any way (other than enter into an arm' s length agreement to sell dependent for effect on the State's consent) including, but not limited to, offer for sale, grant an option in respect of, create or Dispose of a right in respect of, render or permit to be subject to an Encumbrance, convert, deposit, compromise or allow a counterclaim or right of set-off to arise in respect of;
"Design and Construction Programme" means the programme for the design, documentation, construction, Fit-ut, Commissioning and Completion of the Temporary Casino Complex or the Melbourne Casino Complex (as the case may be) set out in Schedule One, as amended from time to time with the prior written approval of the State;
"Development Agreement" means the agreement dated 30 August 1993 between the Company and Hudson Conway Management Limited ACN 006 742 294 providing for the construction of the Temporary Casino Complex and the procuring of the construction of the Melbourne Casino Complex;
"Dispose of" means sell, transfer, assign, alienate, surrender, dispose of, deposit, Lease, part with possession of and enter into any agreement or arrangement to do or allow any of these things;
"Drawings" means the plans, designs and working drawings relating to the Temporary Casino Complex or the Melbourne Casino Complex (as the case may be) provided by the Company and described in Schedule Two;
"Encumbrance" means a mortgage, charge, pledge, lien, assignment, hypothecation, retention of title (other than a retention of title in respect of trading stock), or any other right (including, without limitation, under a trust, agency, hire purchase, sale and repurchase, sale and leaseback or flawed asset arrangement) of a creditor to have its claims satisfied prior to other creditors with, or from the proceeds of or by recourse to any asset, and includes any agreement, arrangement or document conferring such a right or having substantially the same economic effect;
"Extension Event" has the meaning given in clause 16.8;
"Facility Agreement" means the $300 000 000 multi-option facility agreement dated 30 August 1993 between the Company, the Financiers and the Agent;
"Finance Documents" means the Facility Agreement and the Financiers' Securities;
"Financial Year" means from 1 July to 30 June (inclusive);
"Financiers" means the National Australia Bank Limited, Australia and New Zealand Banking Group Limited, Hongkong Bank of Australia Limited, R & I Bank of Western Australia Limited and State Bank of New South Wales Limited and their successors, assigns and substitutes;
"Financiers' Securities" means the following securities given to the Agent as agent for the Financiers—
(a) a first registered fixed and floating charge over the undertaking and all the assets of the Company including a mortgage over the Casino Licence;
(b) a mortgage of the Site Lease and a mortgage of the Temporary Casino Leases; and
(c) each other security given to the Agent or the Financiers as security for the liabilities of the Company under the Facility Agreement;
"Fit-Out" means the application of finishing material, gaming equipment, furniture, fittings, furnishings and such other built-in and loose items required to bring any part of the Temporary Casino Complex or the Melbourne Casino Complex (as the case may be) to a stage to enable Commissioning to take place;
"Fixed and Floating Charge" means the second registered fixed and floating charge of 30 August 1993 by the Company in favour of the Minister on behalf of the State;
"Force Majeure Event" means any explosion, earthquake, natural disaster, Government Action, sabotage, act of a public enemy, war (declared or undeclared) or revolution which causes or results in delay in the performance by a party of any of its obligations under this document where the event, circumstance, default or delay could not have been prevented, overcome or remedied by the exercise by the affected party of a standard of care and diligence consistent with that of a prudent, experienced and competent person including but not limited to the expenditure of all reasonable sums of money, but does not include—
(a) fire or flood;
(b) lightning, storm, hurricane or other action of the elements;
(c) strikes, lockouts, industrial disputes, labour disputes, industrial difficulties, labour difficulties, work bans, blockages, picketing action, secondary boycotts or any other labour action or lack of action except those caused by Government Action;
(d) action or inaction by a court, government or authority, including denial, refusal or failure to grant any permit, authorisation, licence, approval or acknowledgement other than Government Action;
(e) mechanical, electrical or equipment breakdown or failure; or
(f) riot, civil commotion or blockade;
"Founding Shareholders Agreement" means the agreement dated 30 August 1993 between each Sponsor, Carlton and United Breweries Limited ACN 004 056 106 and the Company providing for the subscription for Shares by the Sponsors and Carlton and United Breweries Limited;
"Further Amendment Act" means the bill referred to in clause 3.2(b) when that bill is passed and comes into operation as an Act of Parliament as contemplated by that clause;
"Government Action" means—
(a) any breach by the State or the Authority of any obligation or duty arising under the Casino Control Act or any Transaction Document;
(b) any negligent act or omission or any default or delay by a Government Authority in the exercise of its rights, powers, privileges or discretions conferred on it by law directly in connection with any matter arising under the Casino Control Act or any Transaction Document; or
(c) any combination of any of the activities in each of (a) or (b) above;
other than any of the activities described in (a) to (c) above in this definition which occur in circumstances where the State or Government Authority, as the case may be, acts in good faith—
(i) in satisfying a conflicting obligation or duty arising under the Casino Control Act or any Transaction Document;
(ii) in exercising a conflicting right, power, privilege or discretion conferred on it by law; or
(iii) in pursuing a matter which is in the public interest;
and for the purposes of this definition of "Government Action" "delay by a Government Authority" means a delay by a Government Authority which, having regard to the workloads and usual practices and procedures of that Government Authority, would be considered extraordinary;
"Government Authority" means—
(a) the Parliament of the State;
(b) the Governor of the State whether or not acting in Council;
(c) any minister of the State (including the Minister), department or official administering power or authority (other than judicial or quasi judicial power) under any State law which regulates any of the matters contemplated in any Transaction Document;
(d) the relevant authority under the Local Government Act 1989 having jurisdiction over the Site or the Temporary Casino Site;
"Gross Gaming Revenue" means the total of all sums, including cheques and other negotiable instruments whether collected or not, received in any period by the Company from the conduct or playing of games within the Temporary Casino or the Melbourne Casino (as the case may be) less the total of all sums paid out as winnings during that period in respect of such conduct or playing of games;
"Lease" means an agreement or arrangement under which property is or may be used, occupied, retained, operated or managed by a person for consideration (of whatever form) including, but not limited to, a lease, licence, charter, hire purchase or hiring arrangement;
"Licensing Date" means the date which is 2 Business Days after the conditions precedent in clause 5.1 are satisfied;
"Licensing Payment Amounts" means the amounts payable by the Company under clause 21.1;
"Master Security Agreement" means the agreement between the State, the Authority, the Company, the Agent and the Sponsors relating, among other things, to the priority of the Financiers' Securities and the Fixed and Floating Charge;
"Melbourne Casino" means those areas identified in the Drawings of the Melbourne Casino Complex as the areas which constitute a casino and includes the areas in which money counting, surveillance, storage and other activities related to the conduct and playing of games are carried on;
"Melbourne Casino Complex" means the Melbourne Casino and Ancillary Facilities to be constructed on or located within the Site in accordance with the provisions of this document and the Casino Agreement;
"Melbourne Casino Complex Development Proposals" means the proposals of the Company in relation to the construction, development and establishment of the Melbourne Casino Complex, a copy of which has been signed on behalf of the Authority and the Company for the purposes of identification;
"Minister" means the Minister for the time being administering the Casino Control Act;
"Mortgagee" means any person other than the State with any Encumbrance (whether as mortgagee, chargee or otherwise) affecting or in relation to the Assets and Rights of the Company;
"Operations Agreement" means the agreement dated 30 August 1993 between the Company and Crown Management Pty Ltd ACN 059 301 610 providing for the conduct of the operations of the Temporary Casino and the Melbourne Casino;
"Permitted Encumbrance" means an encumbrance permitted under clause 29.1 of the Casino Agreement;
"Planning Amendments" means the planning scheme amendments referred to in clause 9;
"Planning and Environment Act" means the Planning and Environment Act 1987 (Victoria);
"Premium Payment" means $10 000 000 being the amount determined by the Treasurer of the State under section 112A of the Casino Control Act as the amount payable by the Company under this document;
"Public Authority" means any government or minister or any governmental, semi-governmental or judicial entity, department, instrumentality or authority;
"Receiver" means receiver, receiver and manager or agent for a mortgagee in possession, according to the nature of the appointment;
"Secured Property" means at any time, any present or future right, property or undertaking of the Company, (other than an amount which has been deposited to, or which is standing to the credit of, the Debt Service Reserve Account or the Debt Protection Account (each as defined in the Facility Agreement) and any Authorised Investment (as defined in the Facility Agreement) from either of those Accounts (or the proceeds of any such Authorised Investment)) of whatever kind or wherever situated which is subject at that time to both—
(a) the Fixed and Floating Charge; and
(b) any one or more of the Financiers' Securities;
and a reference to "Secured Property" includes any part of it;
"Share" means a fully paid ordinary share of $0.50 in the capital of the Company;
"Site" means that part of the land bounded by the Yarra River, Clarendon Street, Whiteman Street and Queensbridge Street in the City of South Melbourne and more particularly described as part of Crown Allotments 58D and 58E, County of Bourke, Parish of Melbourne South, City of South Melbourne, as identified in the draft Plan of Survey annexed as Schedule Three;
"Site Lease" means the lease of the Site from the Minister for Finance on behalf of the State to the Company;
"Site Lease Supplemental Agreement" means the agreement between the Minister for Finance on behalf of the State, the Company and the Agent;
"Sponsors" mean Hudson Conway Limited ACN 009 556 629 and The Federal Hotels Limited ACN 004 108 249;
"Sponsor's Guarantees" means the guarantees by Hudson Conway Limited in favour of the Authority and in favour of the State;
"State" means the State of Victoria;
"State's Nominated Representative" means the person appointed from time to time under clause 6.4;
"Supplemental Development Agreement" means the agreement between the State, the Company, the Sponsors and Hudson Conway Management Limited ACN 006 742 294 which is supplemental to the Development Agreement;
"Supplemental Operations Agreement" means the agreement between the Authority, the Company, the Sponsors and Crown Management Pty Ltd ACN 059 301 610 which is supplemental to the Operations Agreement;
"Supplemental Sponsors' Agreement" means the agreement between the Authority, the Company and the Sponsors which is supplemental to the Founding Shareholders Agreement;
"Temporary Casino" means those areas identified in the Drawings of the Temporary Casino Complex as the areas which constitute a casino and includes the areas in which money counting, surveillance, storage and other activities related to the conduct and playing of games are carried on;
"Temporary Casino Complex" means the Temporary Casino and Ancillary Facilities to be constructed on or located within the Temporary Casino Site in accordance with the provisions of the Casino Agreement;
"Temporary Casino Complex Development Proposals" means the proposals of the Company in relation to the construction, development and establishment of the Temporary Casino Complex a copy of which has been signed on behalf of the Authority and the Company for the purposes of identification;
"Temporary Casino Leases" means—
(a) the lease from the Port of Melbourne Authority to the Company; and
(b) the sub-lease between the Urban Land Authority, Allco Nominees (Vic) Pty Ltd ACN 006 837 289 and the Company;
"Temporary Casino Leases Supplemental Agreements" means—
(a) the agreement between the Port of Melbourne Authority, the Company and the Agent; and
(b) the Temporary Casino Sub-lease Supplemental Agreement;
"Temporary Casino Site" means that part of the World Trade Centre on the land bounded by Spencer Street, Flinders Street Extension and the River Yarra identified in the Plan of Survey annexed to the lease referred to in paragraph (a) of the definition of Temporary Casino Leases;
"Temporary Casino Sub-lease Supplemental Agreement" means the agreement between the Urban Land Authority, Allco Nominees (Vic) Pty Ltd ACN 006 837 289, the Company and the Agent;
"Transaction Document" means each of this document, the Casino Agreement, the Casino Licence, the Site Lease, the Temporary Casino Leases, the Fixed and Floating Charge, the Sponsor' s Guarantees, the Master Security Agreement, the Site Lease Supplemental Agreement, the Temporary Casino Leases Supplemental Agreements, the Supplemental Sponsors' Agreement, the Supplemental Development Agreement, the Contractor' s Deed, the Bank Guarantees and the Supplemental Operations Agreement;
"Underwriting Agreement" means both the underwriting agreements of 13 August 1993 and 23 August 1993 between the Company, E. L. & C. Baillieu Limited ACN 006 519 393, Rothschild Australia Securities Limited ACN 008 591 768, Macquarie Underwriting Limited ACN 001 374 572, Ord Minnett Securities Limited ACN 003 245 234, James Capel Australia Limited ACN 002 786 272 and the Sponsors; and
"Warranties" means the representations and warranties of the Company set out in Schedule Four.
3.1 This clause and clauses 2, 4, 5, 9 and 25 40 (inclusive) commence on the date of this document.
3.2 Following satisfaction or waiver of the conditions in clauses 5.1(a) (except for the execution of the Construction Agreement, the Contractor' s Deed, the Site Lease and the Site Lease Supplemental Agreement) a minister of the State must—
(a) introduce and sponsor in the Parliament of Victoria a bill to ratify this document and endeavour to secure its passage as an Act prior to 31 December 1993; and
(b) introduce and sponsor in the Parliament of Victoria a bill contiguous to the bill referred to in paragraph (a) to amend the Casino Control Act and endeavour to secure its passage as an Act prior to 31 December 1993.
3.3 The provisions of this document other than those referred to in clause 3.1 will come into operation on the day on which all of the conditions precedent in clause 5.1 are satisfied.
3.4 If by 31 December 1993 or such later date as may be agreed by the parties in writing those parts of the Agreement Act and the Further Amendment Act which relate to the construction, Fit-Out, Commissioning, Completion and operation of the Melbourne Casino Complex and the Temporary Casino Complex each in the form and substance reasonably satisfactory to the Company to enable the Company to comply with its obligations under the Transaction Document have not come into operation, this document will terminate.
3.5 Unless termination under clause 3.4 arose because of a failure to satisfy the conditions in clause 5.1(a) or (b), following that termination neither party shall have any claim against the other with respect to any matter or thing antecedent to or arising out of or done, performed or omitted to be done or performed under this document.
4.1 Subject to clauses 4.2 and 4.3, the parties may from time to time by agreement in writing vary any provision of this document.
4.2 A minister of the State must introduce and sponsor a bill in the Parliament of Victoria to ratify any agreement made pursuant to clause 4.1 as soon as reasonably practicable following its execution.
4.3 The provisions of any agreement made pursuant to clause 4.1 shall come into operation once the bill referred to in clause 4.2 has come into operation as an Act.
4.4 Clauses 4.2 and 4.3 shall not apply to the giving of a waiver, a failure of a party to require full or part performance of an obligation or the granting of or agreement to an extension of time under this document.
5.1 This document (other than clauses 2, 4, 5, 9 and 25 40 (inclusive)) is subject to the satisfaction or waiver by the parties, as conditions precedent, of all of the following conditions—
(a) the execution of—
(i) the Transaction Documents except for the Casino Licence and the Bank Guarantees;
(ii) the Finance Documents;
(iii) the Development Agreement;
(iv) the Operations Agreement;
(v) the Construction Agreement;
(vi) the Founding Shareholders Agreement;
(vi) the Underwriting Agreement;
(vii) the Equity Funding Agreement (Federal)—as defined in the Casino Agreement;
(viii) the Shareholders Agreement—Crown Management Pty Ltd as defined in the Casino Agreement; and
(ix) the Guarantee and Indemnity for Development Agreement as defined in the Casino Agreement;
(b) each of the conditions precedent in each document referred to in paragraph (a) being satisfied other than—
(i) conditions precedent contained in paragraphs (14), (15), and (28) of Part 1 of Appendix A to and clause 4.2 of the Facility Agreement and those conditions precedent in Appendix A to the Facility Agreement that are factual or procedural matters that cannot be satisfied until the time of drawdown; and
(ii) the issue of the Casino Licence;
(c) approval of the Planning Amendments; and
(d) the coming into operation of those parts of the Agreement Act and the Further Amendment Act which relate to the construction, Fit-Out, Commissioning, Completion and operation of the Melbourne Casino Complex and the Temporary Casino Complex each in the form and substance reasonably satisfactory to the Company to enable the Company to comply with its obligations under the Transaction Documents.
5.2 Subject to clause 5.3, if all of the conditions in clause 5.1 are not satisfied or waived on or before 31 December 1993 or such later date agreed by the parties in writing, then either party may terminate this document by notice in writing to the other party.
5.3 A party cannot exercise the right of termination referred to in clause 5.2 where any of the conditions in clause 5.1 remain unsatisfied due to an act or omission of that party.
PART 2—APPROVAL OF DEVELOPMENT PROPOSALS AND CASINO LOCATION
6.1 The parties acknowledge that the Melbourne Casino Complex Development Proposals and the Temporary Casino Complex Development Proposals and the Drawings describe the Company' s proposals for the design, development, construction, Fit-Out and Commissioning of the Melbourne Casino Complex and the Temporary Casino Complex.
6.2 The Company must develop the Melbourne Casino Complex and the Temporary Casino Complex in accordance with the requirements of this document and the Casino Agreement.
6.3 The Company acknowledges that it is required to obtain approvals under the Control Acts and otherwise comply with the Control Acts.
6.4 The State shall procure that the minister for the time being administering the Planning and Environment Act appoints a person who will represent the persons responsible for the granting of approvals under or otherwise administering the Control Acts.
6.5 The Company may deliver all documents and other information required to obtain approvals or to otherwise comply with the Control Acts to the State's Nominated Representative.
6.6 The State's Nominated Representative shall use its best endeavours to procure the making of all decisions required to be made under the Control Acts in respect of the obligations of the Company under clause 6.2.
6.7 The State shall procure that the State's Nominated Representative complies with the obligations of the State's Nominated Representative under the Casino Agreement.
The State approves—
(a) the Site as the site upon which the Melbourne Casino Complex will be developed in accordance with the Melbourne Casino Complex Development Proposals, the relevant Planning Amendments and the requirements of this document and the Casino Agreement; and
(b) the Temporary Casino Site as the site upon which the Temporary Casino Complex will be developed in accordance with the Temporary Casino Complex Development Proposals, the relevant Planning Amendments and the requirements of this document and the Casino Agreement.
On and subject to the provisions of this document and the Casino Agreement, the State approves of the grant by the Authority to the Company of the Casino Licence which provides for a casino to be located at the Temporary Casino and then at the Melbourne Casino.
9.1 The Minister will recommend to the minister administering the Planning and Environment Act that a planning scheme amendment be prepared, adopted and approved by the minister administering the Planning and Environment Act to allow the use and development of the Site for the purposes of the Melbourne Casino Complex generally in accordance with the Melbourne Casino Complex Development Proposals.
9.2 The Minister will recommend to the minister administering the Planning and Environment Act that a planning scheme amendment be prepared, adopted and approved by the minister administering the Planning and Environment Act to allow the use and development of the Temporary Casino Site for the purposes of the Temporary Casino Complex generally in accordance with the Temporary Casino Complex Development Proposals.
9.3 Section 38 of the Planning and Environment Act will not apply to the Planning Amendments.
9.4 Clause 9.3 will not apply if the Planning Amendments are approved prior to the beginning of the 1993 Spring Parliamentary session.
PART 3—DEVELOPMENT
10.1 The Company must—
(a) Construct, Fit-Out, Commission and Complete the Melbourne Casino Complex in accordance with—
(i) the Melbourne Casino Complex Development Proposals, the Drawings and the further working drawings and specifications provided to the State and the Authority together with any approved variations;
(ii) the Design and Construction Programme;
(iii) the Planning Amendments; and
(iv) the terms of this document and the Casino Agreement;
(b) Complete the Melbourne Casino by the Completion Date; and
(c) Complete the Melbourne Casino Complex by the Completion Date.
10.2 The Company must—
(a) Construct, Fit-Out, Commission and Complete the Temporary Casino Complex in accordance with—
(i) the Temporary Casino Complex Development Proposals, the Drawings and the further working drawings and specifications provided to the State and the Authority together with any approved variations;
(ii) the Design and Construction Programme;
(iii) the Planning Amendments; and
(iv) the terms of this document and the Casino Agreement;
(b) Complete the Temporary Casino by the Completion Date; and
(c) Complete the Temporary Casino Complex by the Completion Date.
11.1 The Company must provide to the State's Nominated Representative for the approval or otherwise of the State's Nominated Representative—
(a) within 12 weeks following the Licensing Date, such drawings, specifications and other documents as are required by the State's Nominated Representative so that the State's Nominated Representative may be satisfied that the Melbourne Casino Complex and the Temporary Casino Complex will be Completed in accordance with this document; and
(b) within 12 weeks following the Licensing Date, an itemised Design and Construction Programme for all phases of the development of the Melbourne Casino Complex and the Temporary Casino Complex up to and including Completion.
11.2 On the first Business Day of each month the Company must provide to the State's Nominated Representative a report in a form satisfactory to the State's Nominated Representative as to the progress of construction of the Melbourne Casino Complex and the Temporary Casino Complex.
12.1 Where the Company submits documents to the State's Nominated Representative under clause 11.1, the State's Nominated Representative may—
(a) approve the documents;
(b) approve the documents subject to any reasonable condition or conditions the State's Nominated Representative decides to impose;
(c) require amendment to the documents as specified by the State's Nominated Representative; or
(d) reject the documents.
12.2 Where the Company submits documents to the State's Nominated Representative, the State's Nominated Representative must respond in writing to the Company in the manner contemplated within 14 days of receiving the documents or proposal from the Company or such further period agreed between the State's Nominated Representative and the Company.
12.3 If the State's Nominated Representative has not responded in writing to the Company as required within 14 days or such further period as agreed the State's Nominated Representative will be taken to have given its approval.
12.4 In exercising any powers under clauses 12, 15 and 18 the State's Nominated Representative must not act unreasonably and have regard to the contents of the Melbourne Casino Complex Development Proposals, the Temporary Casino Complex Development Proposals and the Planning Amendments.
12.5 Subject to the rights, obligations or powers of the State or the State's Nominated Representative under the Control Acts and this document including without limitation the obligations of the Company under clause 13, the State's Nominated Representative will not impose conditions or amendments which have the effect of substantially increasing the cost to Complete the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex from the cost to develop, design and construct set out in the Melbourne Casino Complex Development Proposals and the Temporary Casino Development Proposals.
13.1 The Company must ensure that all materials, fittings, equipment and workmanship utilised in carrying out the construction of the Melbourne Casino Complex—
(a) are of a quality commensurate with an international class casino complex;
(b) comply with standards specified in the Melbourne Casino Complex Development Proposals; and
(c) comply with the provisions of the Building Control Act 1981 (Victoria) and the Building Code of Australia relevant to the materials, fittings, equipment or workmanship.
13.2 The Company must ensure that all materials, fittings, equipment and workmanship utilised in carrying out the construction of the Temporary Casino Complex—
(a) are of a quality commensurate with the proposed use of the Temporary Casino Site, the nature of the premises on the Temporary Casino Site and the proposed term of occupation of the Temporary Casino Site by the Company;
(b) comply with standards specified in the Temporary Casino Complex Development Proposals; and
(c) comply with the provisions of the Building Control Act 1981 (Victoria) and the Building Code of Australia relevant to the materials, fittings, equipment or workmanship.
13.3 The builder to be appointed by the Company in relation to the construction of the Melbourne Casino Complex or the Temporary Casino Complex, as the case may be, must be approved in writing by the State's Nominated Representative prior to the builder' s appointment.
The Company must—
(a) pay to the State or, as the case may be, the instrumentality of the State concerned, the costs incurred in carrying out any works necessary to provide services or change existing services, including without limitation, water, sewerage, drainage, electricity and gas, to the Site and the Melbourne Casino Complex; or
(b) if required by the State or the relevant instrumentality, carry out such works at the Company' s cost and in accordance with all directions of the State or instrumentality.
15.1 The Company must give not less than 7 Business Days notice in writing to the State's Nominated Representative that the Company anticipates that the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex, as the case may be, ("Relevant Works") will be Completed on the date specified in the notice.
15.2 On the date agreed between the Company and the State's Nominated Representative (and if no date is agreed, then on the date specified in the Company' s notice under clause 15.1) the State's Nominated Representative must inspect the Relevant Works and consider all matters relevant to the Completion of the Relevant Works.
15.3 If the State's Nominated Representative is of the opinion that the Relevant Works are not Completed, the State's Nominated Representative must within 10 Business Days of the inspection under clause 15.2 give notice to the Company of this opinion and state in that notice the reason or reasons why the State's Nominated Representative is of this opinion.
15.4 If the State's Nominated Representative is of the opinion that the Relevant Works are Completed, the State's Nominated Representative must within 10 Business Days of the inspection under clause 15.2 issue a certificate to the Company stating the date on which it believes those Relevant Works reached Completion and those Relevant Works shall, for the purpose of this document, be taken to have been Completed on that date.
15.5 Upon receipt of a notice from the State's Nominated Representative under clause 15.3, the Company must immediately attend to any matters stated in the notice as requiring attention and upon the Company attending to these matters the Company must give a further notice in writing to the State's Nominated Representative pursuant to clause 15.1.
15.6 Any determination by the State's Nominated Representative that any Relevant Works have been Completed is not acceptance that the Company has complied with the Transaction Documents and any right which the State or the State's Nominated Representative may have had prior to that determination is preserved absolutely.
15.7 If the State's Nominated Representative does not deliver a notice to the Company under clause 15.3 or a certificate under clause 15.4 within the period of 10 Business Days referred to in those clauses, the Relevant Works will be taken to have been Completed on the date on which those Relevant Works were inspected under clause 15.2 and a certificate of Completion will be taken to have been issued by the State's Nominated Representative with a date of Completion on that date.
15.8 A certificate of Completion under clause 15 does not excuse the Company from compliance with all relevant legislation in relation to the Relevant Works.
16.1 Provided the Company complies with clause 16.2, the performance by the Company of the terms and conditions of this document relating to the design, development, construction, Fit-Out, Commissioning and Completion of the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex, as the case may be, is subject to any Force Majeure Event which interferes with the performance of those terms and conditions.
16.2 The Company must—
(a) immediately give notice to the State's Nominated Representative of—
(i) a Force Majeure Event and its nature;
(ii) the actual or likely extent and effect of the Force Majeure Event on the Company' s performance of its obligations in relation to the matters referred to in clause 16.1;
(iii) the likely duration of the Force Majeure Event;
(b) meet with the State's Nominated Representative within 2 Business Days of receipt of a request from the State's Nominated Representative to discuss the Force Majeure Event and attempt to determine what action if any may be taken to ameliorate, remedy or overcome the Force Majeure Event; and
(c) use its best endeavours—
(i) to minimise the effect of that Force Majeure Event as soon as possible after the occurrence; and
(ii) to prevent, overcome or remedy any delay which would or might otherwise be caused by a Force Majeure Event,
including if necessary by the commitment of additional resources.
16.3 If the Company complies with clause 16.2, the State's Nominated Representative will by notice in writing to the Company extend the relevant Completion Date to a date to be specified by the State's Nominated Representative to allow for any delay caused by the Force Majeure Event and the Company will not be liable to the State for any delay in the Completion of the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex (as the case may be) for the period from the Completion Date until the new Completion Date specified by the State's Nominated Representative.
16.4 If an Extension Event occurs which is not a Force Majeure Event but which delays the performance by the Company of any of the terms and conditions of this document relating to the design, development, construction, Fit-Out, Commissioning or Completion, the relevant Completion Date shall be extended by the period it would take a reasonable person acting diligently to overcome or remedy the delay, provided that the Company—
(a) as soon as reasonably practicable after becoming aware of the occurrence of the event gives notice to the State of—
(i) the event and its nature;
(ii) the actual or likely extent and effect of the event on Completion; and
(iii) the likely delay to Completion; and
(b) pays Liquidated Damages to the State in accordance with clause 17.2.
16.5 The cessation of casino operations by the Company at the Temporary Casino after the Completion of the Temporary Casino caused directly or indirectly by an Extension Event which results in the physical destruction of all or a material part of the Temporary Casino shall not be a contravention of a condition of the Casino Licence or any Transaction Document provided that the Company—
(a) as soon as reasonably practicable after becoming aware of the occurrence of the Extension Event gives notice to the State of—
(i) the Extension Event and its nature;
(ii) the actual or likely extent and effect of the Extension Event on the operations of the Temporary Casino; and
(iii) the likely duration of the cessation of operations of the Temporary Casino;
(b) commences reinstatement of the Temporary Casino within 3 months of the date of the cessation of the Extension Event; and
(c) if paragraph (b) applies, the Company is diligently proceeding with the construction of the reinstatement of the Temporary Casino;
provided that paragraphs (b) and (c) shall apply subject to any requirements or actions of the lessors or sub-lessors under the Temporary Casino Leases, the relevant insurers, or any authorities and if it is practicable and permitted by each relevant lessor or sub-lessor and each other applicable authority for the Company to reinstate or attempt to reinstate the Temporary Casino.
16.6 The cessation of casino operations by the Company at the Melbourne Casino after the Completion of the Melbourne Casino caused by an Extension Event which results in the physical destruction of all or a material part of the Melbourne Casino shall not be a contravention of a condition of the Casino Licence or any Transaction Document provided that—
(a) as soon as reasonably practicable after becoming aware of the occurrence of the Extension Event the Company gives notice to the State of—
(i) the Extension Event and its nature;
(ii) the actual or likely extent and effect of the Extension Event on the operations of the Melbourne Casino; and
(iii) the likely duration of the cessation of operations of the Melbourne Casino;
(b) if requested by the State within 1 month of the occurrence of the Extension Event, the Company must submit a proposal to the State within 3 months of the State's request for the construction of a replacement temporary casino ("Replacement Temporary Casino");
(c) if the Company, the State and the Financiers have agreed, as contemplated in clause 16.7, on the basis for the construction of the Replacement Temporary Casino, the Company completes the construction of the Replacement Temporary Casino within the time periods agreed in relation thereto; and
(d) the Company commences reinstatement of the Melbourne Casino within 12 months of the date of the cessation of the Extension Event, subject to any requirements of the relevant insurers or any authorities, and diligently pursues a course of action which will reasonably be expected to reinstate the Melbourne Casino in a period of time reasonably acceptable to the State and is making satisfactory progress in the reinstatement.
16.7 The Company, the State and the Financiers shall consult in good faith in relation to the Company's proposal submitted under clause 16.6(b) to agree on the terms for the establishment and operation of the Replacement Temporary Casino including—
(a) the site of the Replacement Temporary Casino;
(b) the size, features and specifications of the Replacement Temporary Casino;
(c) the amendments to the Transaction Documents and the additional documents necessary (including the issue of a new casino licence under the Casino Control Act);
(d) all planning and zoning approvals, permits and requirements;
(e) any extensions of the exclusivity periods for the Casino Licence; and
(f) the cost of the Replacement Temporary Casino and the funding of those costs.
16.8 For the purposes of this document—
(a) "Extension Event" means—
(i) a Force Majeure Event;
(ii) a Labour Dispute where the Labour Dispute could not have been prevented, overcome or remedied by the exercise by the affected party of a standard of care and diligence consistent with that of a prudent, experienced and competent person; or
(iii) any other event or circumstance which causes disruption, illegality or physical damage and which is outside the control of the Company and has not been directly or indirectly caused by an act or omission of the Company;
(b) "Labour Dispute" means a strike, lockout, industrial dispute, labour dispute, industrial difficulty, labour difficulty, work ban, blockage, picketing action, secondary boycott or any other labour action or lack of action.
16.9 (a) The Company agrees that the proceeds of any insurance policy for business interruption insurance taken out by or on behalf of the Company will, on receipt by the Company, be paid to the State in compensation to the State for the loss of fees and taxes calculated for a period in accordance with paragraph (b) and otherwise to the Agent in respect of moneys owing to the Financiers under the Finance Documents.
(b) The amount of the insurance proceeds received by the Company in respect of a period which shall be paid as compensation to the State under paragraph (a) for that period shall be an amount equal to 20% (and after 1 July 1997, 211/4%) of the amount of the assumed Gross Gaming Revenue for that period, based on the assumption that Gross Gaming Revenue had been earned at the average daily rate calculated for the six months period immediately prior to the commencement of that period.
17.1 Subject only to clause 16.3, if the Company fails to Complete and open for business—
(a) the Temporary Casino by the Completion Date; or
(b) the Melbourne Casino by the Completion Date,
the State's Nominated Representative may give notice in writing to the Company that this clause 17 is to apply.
17.2 If a notice is given under clause 17.1 the Company must pay to the State liquidated damages—
(a) in the event that the Temporary Casino is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3), at the rate of $50 000 for each day from that date to the date the Temporary Casino is Completed and open for business; and
(b) in the event that the Melbourne Casino is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3), at the rate of $50 000 for each day from that date to the date the Melbourne Casino is Completed and open for business.
17.3 The parties agree that the liquidated damages calculated and provided for in clause 17.2—
(a) constitute a genuine pre-estimate of the loss or damage anticipated to be actually suffered by the State if the Company breaches its obligations to Complete and open for business the Temporary Casino or the Melbourne Casino by the respective Completion Dates;
(b) are intended to avoid the cost and difficulty of proof of damages in the event of that breach;
(c) are reasonable and not intended to be a penalty; and
(d) subject to clause 25.5, are the only damages payable by the Company for late Completion.
17.4 If all payments due under clause 17.2 are made, then notwithstanding clause 25.2(a), the Authority shall not be entitled to serve a notice pursuant to section 20(2) of the Casino Control Act by reason of the Company failing to comply with clause 10.1 if—
(a) completion of the Melbourne Casino Complex has occurred within a period of 12 months commencing on the Completion Date;
(b) the Authority is not entitled to do so under the Master Security Agreement; or
(c) the failure to comply with clause 10.1 was caused by an Extension Event subject to compliance with such other obligations as arise under clause 16.
18.1 In order to secure the obligations of the Company under clause 17.2 of this document to pay liquidated damages, the Company must on or before the Licensing Date provide to the State an unconditional guarantee or letter of credit issued by a bank or banks acceptable to the State's Nominated Representative and in such form approved by the State's Nominated Representative to pay to the State on demand up to $25 000 000.
18.2 Unless demand under the Bank Guarantee has been previously made and has not been satisfied, the Bank Guarantee will be returned to the Company 18 months after the Melbourne Casino Complex has been Completed.
19.1 The Company must, at the cost of the Company, construct and complete or procure the construction and completion of the Off-Site works specified in the Melbourne Casino Complex Development Proposals, the Temporary Casino Complex Development Proposals and Schedule Five ("Off‑Site Works") in accordance with the terms of this clause 19 and the reasonable requirements of the State.
19.2 The Company must prepare all plans, specifications and computations necessary for the obtaining of all relevant approvals.
19.3 Subject to clause 19.8, the State will issue or procure the issue of all approvals within its power in order that the Off‑Site Works may be completed.
19.4 Subject to clauses 19.5 to 19.7 (inclusive), the Company must construct, complete and maintain the Off-Site Works such that—
(a) subject to paragraph (c), in the case of those Off-Site Works which relate to the Temporary Casino Complex or the Temporary Casino, the Off-Site Works are constructed promptly and their construction completed so as to coincide with the Completion and opening for business of the Temporary Casino;
(b) subject to paragraph (c), in the case of those Off-Site Works which relate to the Melbourne Casino Complex or the Melbourne Casino, the Off-Site Works are constructed promptly and their construction completed so as to coincide with the Completion and opening for business of the Melbourne Casino;
(c) each item of Off-Site Works is to be constructed and completed by a date that the State may reasonably direct having regard to—
(i) the nature of that item of Off-Site Works;
(ii) the impact the completion of that item of Off‑Site Works will have on the amenity of the area where that item of Off-Site Works will be located; and
(iii) the desirability of having that item of Off-Site Works completed having regard to the community' s need for it; and
(d) the Off-Site Works are to be constructed, completed and maintained by the Company in compliance with the Control Acts and the Planning Amendments using all materials, fittings, equipment and workmanship that—
(i) are of a similar standard to those used in constructing the Melbourne Casino Complex;
(ii) are of a standard specified in Schedule Five, the Melbourne Casino Complex Development Proposals and the Temporary Casino Complex Development Proposals; and
(iii) comply with the provisions of the Control Acts and the Building Code of Australia relevant to the materials, fittings, equipment or workmanship.
19.5 The State may give a notice to the Company by 31 March 1994 excluding the Queensbridge Square Access Tunnel identified as part of the Off-Site Works described in Schedule Five ("Tunnel") from the obligations referred to in clauses 19.1 to 19.4 and the Company shall not and will not be obliged to construct or complete the Tunnel.
19.6 In consideration of the State excluding the Tunnel from the obligations referred to in clauses 19.1 to 19.4, the Company shall pay to the State the amount identified in item 6 of the Off-Site Works applicable to the Tunnel within 30 days from the date of the notice given by the State pursuant to clause 19.5.
19.7 The State may give a notice to the Company by 31 March 1994 excluding the Modification to North River Bank identified as part of the Off-Site Works described in Schedule Five ("North River Bank Modifications") from the obligations referred to in clauses 19.1 to 19.4 and the Company shall not and will not be obliged to construct, complete or maintain the North River Bank Modifications and the State shall not be entitled to any payment in lieu of the exclusion of the North River Bank Modifications.
20.1 Following Completion of the Melbourne Casino Complex, the Company must use all reasonable endeavours and have the firm objective at all times to—
(a) do all things necessary or desirable to ensure that all parts of the Melbourne Casino Complex are fully let and are kept let in accordance with the Melbourne Casino Complex Development Proposals and the relevant Planning Amendments;
(b) ensure that there is at all times a variety of retail businesses operating from or in the Melbourne Casino Complex of a type and nature necessary to attract customers and tourists to the Melbourne Casino Complex consistent with the use of the Melbourne Casino Complex as a high quality, international class casino complex; and
(c) ensure that each business in the Melbourne Casino Complex is kept open for business and carried on in a manner compatible with and complementary to the use of the Melbourne Casino Complex as a high quality, international class casino complex.
20.2 Following Completion of the Melbourne Casino Complex, the Company must at all times—
(a) advertise and promote the Melbourne Casino Complex so as to endeavour to ensure that the Melbourne Casino Complex is fully and regularly patronised; and
(b) properly and diligently manage the Melbourne Casino Complex in accordance with good, modern and proven management methods and practices and with due skill, expertise, diligence and vigour, using good and sufficient materials and services and in strict accordance and compliance with all applicable laws, regulations and requirements.
PART 4—PAYMENTS TO THE STATE
21.1 In consideration of the agreement of the Authority to grant to the Company the Casino Licence and of the other assurances from the State and the Authority contained in this document and the Casino Agreement, the Company shall pay on the Licensing Date—
(a) the Premium Payment; and
(b) a further amount of $190 000 000.
21.2 The Licensing Payment Amounts must be paid in same day settlement funds before 2.00 p.m. on the Licensing Date.
21.3 If the Company fails to pay the Licensing Payment Amounts on the Licensing 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 Licensing Date until the Licensing Payment Amounts and all interest payable have been paid.
22.1 While the Casino Licence remains in force, the Company must pay—
(a) to the State, for each Financial Year or part thereof until 30 June 1997, the Casino Supervision and Control Charge, the first payment being due and payable on the Licensing Date in respect of the period until 30 June 1994 and thereafter the Casino Supervision and Control Charge will be paid annually in advance, commencing on 1 July 1994;
(b) to the State, in respect of each month in which gaming is conducted in the Temporary Casino or the Melbourne Casino, casino tax in an amount equal to—
(i) for the period until 30 June 1997, 20% of the Gross Gaming Revenue for the month in question; and
(ii) on and from 1 July 1997, 211/4% of the Gross Gaming Revenue for the month in question;
payable in each case within 7 days following the end of each month, the first payment to be made in relation to the month in which the Temporary Casino is Completed;
(c) to the State, in respect of each month beginning on 1 July 1994 and ending on 30 June 1996 additional casino tax in an amount of $2 400 000 payable within 7 days of the end of each month;
(d) to the State, in respect of each month in which gaming is conducted in the Temporary Casino or the Melbourne Casino, a community benefit levy in an amount equal to 1% of the Gross Gaming Revenue for the month in question, on the same dates as payments are made to the State pursuant to paragraph (b); and
(e) any other fees and payments payable under the Casino Control Act.
22.2 In addition to the casino tax payable under clause 22.1(b), while the Casino Licence remains in force the Company must pay to the State in respect of each Financial Year in which Gross Gaming Revenue exceeds the Base Amount, additional casino tax calculated in accordance with clause 22.3.
22.3 In this clause 22 "Base Amount" means, subject to clause 22.6—
(a) to 30 June 1994, $500 000 000; and
(b) on 1 July 1994 and each anniversary of that date ("Review Date") the amount determined at any time after that review date in accordance with the following formula:
R = A/B x C
R is the Base Amount in respect of the year commencing on the relevant Review Date;
A is the Consumer Price Index (All Groups for Melbourne) published from time to time in the Australian Statistician' s Summary of Australian Statistics ("CPI Index") published for the day immediately preceding the relevant Review Date;
B is the CPI Index for the day one year and one day prior to the relevant Review Date; and
C is the Base Amount (as amended from time to time in accordance with this clause) for the year immediately preceding the relevant Review Date.
22.4 The amount of the additional casino tax payable under clause 22.2 shall be calculated in accordance with the following table—
| Amount of EGGR $ | Amount of additional casino tax $ | ||||
|---|---|---|---|---|---|
| Nil | — | 19 999 999 | Nil | + | 1% of the Excess |
| 20 000 000 | — | 39 999 999 | 200 000 | + | 2% of the Excess |
| 40 000 000 | — | 59 999 999 | 600 000 | + | 3% of the Excess |
| 60 000 000 | — | 79 999 999 | 1 200 000 | + | 4% of the Excess |
| 80 000 000 | — | 99 999 999 | 2 000 000 | + | 5% of the Excess |
| 100 000 000 | — | 119 999 999 | 3 000 000 | + | 6% of the Excess |
| 120 000 000 | — | 139 999 999 | 4 200 000 | + | 7% of the Excess |
| 140 000 000 | — | 159 999 999 | 5 600 000 | + | 8% of the Excess |
| 160 000 000 | — | 179 999 999 | 7 200 000 | + | 9% of the Excess |
| 180 000 000 | — | 199 999 999 | 9 000 000 | + | 10% of the Excess |
| 200 000 000 | — | 219 999 999 | 11 000 000 | + | 11% of the Excess |
| 220 000 000 | — | 239 999 999 | 13 200 000 | + | 12% of the Excess |
| 240 000 000 | — | 259 999 999 | 15 600 000 | + | 13% of the Excess |
| 260 000 000 | — | 279 999 999 | 18 200 000 | + | 14% of the Excess |
| 280 000 000 | — | 299 999 999 | 21 000 000 | + | 15% of the Excess |
| 300 000 000 | — | 319 999 999 | 24 000 000 | + | 16% of the Excess |
| 320 000 000 | — | 339 999 999 | 27 200 000 | + | 17% of the Excess |
| 340 000 000 | — | 359 999 999 | 30 600 000 | + | 18% of the Excess |
| 360 000 000 | — | 379 999 999 | 34 200 000 | + | 19% of the Excess |
| 380 000 000 | or more | 38 000 000 | + | 20% of the Excess |
"EGGR" is the amount by which Gross Gaming Revenue in a Financial Year exceeds the Base Amount for that Financial Year; and
"Excess" means in respect of any row in the above table, the amount by which EGGR exceeds the number first appearing in the first column of that row.
22.5 The casino tax calculated under clause 22.4 and payable under clause 22.2 must be paid to the State within 7 days following the end of each Financial Year.
22.6 If the Australian Statistician updates the reference base for the CPI Index an appropriate adjustment shall be made to the definition of "Base Amount" in clause 22.3 to preserve the intended continuity of calculation by using an alternative appropriate factor determined by the Statistician in lieu of "A/B" in the definition of "Base Amount".
22.7 If the CPI Index referred to in the definition is discontinued, suspended or otherwise altered to such an extent that an adjustment under clause 22.6 cannot in the reasonable opinion of the State be made, the Base Amount shall be determined by substituting for "A/B" in the definition of "Base Amount" such other comparable index as the State may reasonably require.
22.8 The Casino Supervision and Control Charge will not be levied on the Company after 1 July 1997.
22.9 To secure to the State the payment of the additional casino tax pursuant to clause 22.1(c), the Company must on or before the Licensing Date provide to the State an unconditional letter of credit issued by a bank or banks acceptable to the State's Nominated Representative and in such form approved by the State's Nominated Representative to pay to the State an amount not less than $57 600 000 provided that the amount required to be secured to the State by the letter of credit from time to time shall be reduced by an amount equal to each amount of exclusivity casino tax paid under this document.
PART 5—EXCLUSIVITY
23.1 The Minister approves of the undertaking given by the Authority to the Company under clause 26.2 of the Casino Agreement.
23.2 Subject to clauses 23.3 and 24 and to the rights conferred on the Company under the Casino Agreement and the Casino Licence, while the Casino Licence remains in force the conduct or playing of any game approved by the Authority under section 60 of the Casino Control Act or the use of any premises for the conduct and playing of any such game shall not be permitted by the State—
(a) within the State prior to 6 years from the Licensing Date; and
(b) for those parts of the State within a radius of 150 kilometres from the Site, prior to 12 years from the Licensing Date.
23.3 If clause 26.3 of the Casino Agreement applies, the exclusivity periods referred to in clause 23.2 shall be extended to the same dates that the exclusivity periods in clause 26.2 of the Casino Agreement are extended under clauses 26.3 and 26.4 of the Casino Agreement (if any).
24.1 Nothing in this document shall be construed so as to limit or affect the power of the State to authorise, permit or approve in any manner whatever—
(a) the playing on any gaming machines (in accordance with the provisions of the Gaming Machine Control Act 1991 (Victoria)) of—
(i) any game not referred to in clause 27.1 of the Casino Agreement;
(ii) any machine derivative of any game not referred to in clause 27.1 of the Casino Agreement; or
(iii) any machine derivative of any game referred to in clause 27.1 of the Casino Agreement which is played on a gaming machine at the date of this document;
(b) any lottery, bingo or other game approved or permitted under the Lotteries Gaming and Betting Act 1966 (Victoria);
(c) any sweepstake, lottery or other game approved or permitted under the Tattersall Consultations Act 1958 (Victoria);
(d) the conduct of the game of club keno in accordance with the Club Keno Act 1993 (Victoria); or
(e) any other game which may legally be played or conducted in the State of Victoria as at the date of this document.
24.2 Notwithstanding clause 24.1, the State shall restrict the playing of gaming machines within the following limits—
(a) during the period prior to the date 12 years from the Licensing Date, the maximum number of gaming machines permitted to be used at any approved venue located within a radius of 100 kilometres from the Site shall be 105; and
(b) the total number of gaming machines permitted to be used in the State during the period prior to the date 12 years from the Licensing Date shall not exceed 45 000.
PART 6—TERMINATION
25.1 This document will automatically terminate—
(a) without notice to the Company, if the Casino Licence is—
(i) surrendered; or
(ii) cancelled; or
(b) when the Casino Licence expires due to the effluxion of time.
Such termination, however, does not affect the ability of either party to enforce a right which may have accrued to it under this document prior to such termination.
25.2 Subject to the Master Security Agreement, it shall be a contravention of a condition of the Casino Licence enabling the Authority to serve a notice on the Company pursuant to section 20(2) of the Casino Control Act if any of the following events occurs—
(a) the Company commits a breach of any provision of this document and the State has given a notice ("Notice") to the Company detailing the particulars of the breach unless—
(i) if the breach is capable of remedy—
(A) it is remedied within the cure period allowed in the Notice (which shall not be less than 60 days) to the reasonable satisfaction of the State; or
(B) the Company—
(i) is diligently pursuing a course of action which could reasonably be expected to remedy the breach in a period of time reasonably acceptable to the State; and
(ii) is making satisfactory progress with such course of action; or
(ii) if the breach to which the Notice refers is not capable of remedy—
(A) the Company is complying to the reasonable satisfaction of the State with any reasonable requirements of the State in relation to the breach or is attending to the reasonable redress of the prejudice arising from the breach, default or event in the manner specified in the Notice; or
(B) the payment of damages constitutes in the reasonable opinion of the State proper redress and the required amount of damages is paid within 15 Business Days of the date for payment as specified in the Notice;
(b) any of the following occurs and the Company does not within 10 Business Days of the occurrence of the event establish to the reasonable satisfaction of the State that despite the occurrence of the event the Company will be able to perform its obligations under the Transaction Documents—
(i) a provisional liquidator or administrator is appointed to the Company;
(ii) a Receiver is appointed to any of the Casino Assets;
(iii) any Encumbrance becomes enforceable and the holder of the Encumbrance takes possession of any of the Casino Assets;
(iv) a judgment is obtained against the Company and execution or other process of any Court or other authority is issued against or is levied or enforced upon any of the Casino Assets;
(c) a liquidator is appointed to the Company;
(d) prior to Completion, the Financiers terminate their obligations under the Facility Agreement, or otherwise permanently refuse to permit any further drawings under the Facility Agreement or the facilities provided or available under the Facility Agreement, and the Company does not within 20 Business Days of the occurrence of the event establish to the reasonable satisfaction of the Authority that despite the occurrence of the event the Company will be able to perform its obligations under the Transaction Documents;
(e) a Notice of Intention pursuant to the Supplemental Development Agreement is given by the Developer under that agreement and is not withdrawn within 10 Business Days;
(f) a Notice of Intention pursuant to the Contractor' s Deed is given by the Contractor under that agreement and is not withdrawn within 10 Business Days;
(g) except with the prior consent in writing of the Authority the members resolve to wind up the Company;
(h) the Site Lease is terminated or surrendered;
(i) prior to Completion of the Melbourne Casino any one of the Temporary Casino Leases is terminated (other than by effluxion of time) or surrendered;
(j) prior to the subscription by the Founding Shareholders for all the Shares for which they have agreed to subscribe under the Founding Shareholders Agreement, any of the following occurs and the Company does not within 10 Business Days after the State has given notice to the Company remedy the event or redress the prejudice arising from the event or establish to the reasonable satisfaction of the Authority that despite the occurrence of the event the Company will be able to perform its obligations under the Transaction Documents—
(i) a Founding Shareholder fails to comply with any obligation to subscribe for Shares in accordance with the provisions of the Founding Shareholders Agreement;
(ii) a Receiver, provisional liquidator, liquidator or administrator is appointed to a Sponsor;
(iii) except with the prior consent in writing of the Authority the members resolve to wind up a Sponsor;
(k) Shares having an aggregate subscription amount of $210 000 000 have not been subscribed for by the Licensing Date by persons other than the Founding Shareholders and within 10 Business Days of the Licensing Date the Company has not established to the reasonable satisfaction of the State that the Company will despite this be able to perform its obligations under the Transaction Documents.
25.3 The State may in its absolute discretion extend any time period referred to in clause 25.2.
25.4 Subject to clause 26, on termination of this document—
(a) except as otherwise provided by this document all rights of the Company to, in or under this document will cease but without prejudice to the liability of any party in respect of any antecedent breach or default under this document or in respect of any indemnity or other payment obligation under this document;
(b) all moneys owing or remaining unpaid (and whether actually or contingently) to the State will (to the extent not then due) become immediately due and payable and the Company must immediately pay all those moneys to the State; and
(c) except as otherwise provided in this document or the Master Security Agreement, neither the Company nor any Sponsor or any other person will have any claim against the State or both with respect to any matter or thing in or arising out of this document and in particular, but without limiting the generality of the preceding paragraphs, the Company will have no claim to the repayment of all or any part of the Licensing Payment Amounts.
25.5 Without limiting the powers of the State under the Fixed and Floating Charge, if this document is terminated prior to Completion of the Temporary Casino Complex or the Melbourne Casino Complex and a Mortgagee does not agree to or does not Complete the Temporary Casino Complex or the Melbourne Casino Complex or both (as the case may be) in accordance with the Master Security Agreement or otherwise on terms approved by the State—
(a) the State may Complete or arrange for the Completion of the Temporary Casino Complex or the Melbourne Casino Complex or both at the cost of the Company; and
(b) any moneys expended by the State in or in connection with Completing or attempting to Complete the Temporary Casino Complex or the Melbourne Casino Complex or both, and the amount of any loss, damages or costs suffered or incurred by the Authority or the State as a result of the termination of this document or any event giving rise to the termination of this document, will be a debt due and payable by the Company to the State and the Company indemnifies the State against all those losses, damages or costs.
25.6 In the event that the State exercises its rights under clause 25.5 or otherwise to Complete the Melbourne Casino Complex or the Temporary Casino Complex or both, the State—
(a) will do so in all material respects in accordance with the Design and Construction Programme, the Temporary Casino Complex Development Proposal and the Melbourne Casino Complex Development Proposal but subject to such variations as the State and the Financiers may agree; and
(b) will be responsible as if the State were doing so as chargee under the Fixed and Floating Charge.
25.7 Interest will be payable by the Company to the State on all moneys expended by the State under clause 25.5 at the rate equal to the aggregate of the Bill Rate and 2% per annum on the first Business Day of each month and will accrue daily and be calculated monthly in arrears on the basis of the actual number of days elapsed and a 365 day year and added to the amount owing by the Company to the State and may be debited to any account of the Company with the State and itself accrue interest in accordance with this clause.
25.8 All moneys payable by the Company to the State under clause 25.5 and all interest payable under clause 25.7 must be paid by the Company to the State on demand.
26.1 If the Casino Licence is cancelled or if this document is terminated, the provisions of clauses 26.2 to 26.8 will apply and shall continue to bind the parties.
26.2 If the Casino Licence is cancelled after the date specified in clause 23.2(b), the Company shall not be entitled to a refund of the Licensing Payment Amounts or any part of them.
26.3 If the Casino Licence is cancelled before the last date of the period specified in clause 23.2(b) on grounds for disciplinary action—
(a) which are specified in paragraphs (a), (b) or (d) of the definition of grounds for disciplinary action in section 20(1) of the Casino Control Act; or
(b) (i) which are specified in paragraphs (c) or (e) of the definition of grounds for disciplinary action in section 20(1) of the Casino Control Act; and
(ii) the grounds arose, directly or indirectly, as a result of any act or omission of the Company, or any director of the Company or any Sponsor;
the Company shall not be entitled to a refund of the Licensing Payment Amounts or any part of them.
26.4 If the Casino Licence is cancelled before the last date of the period specified in clause 23.2(b) on grounds other than those specified in clause 26.3, the State must refund the Licensing Payment Amounts to the Company as follows—
(a) the refund must be made within 3 months after the cancellation of the Casino Licence;
(b) the amount of the refund shall be that amount which bears the same proportion to the amount of the Licensing Payment Amounts as the unexpired portion as at the date of cancellation of the Casino Licence of the period commencing on the Licensing Date and terminating on the last day of the period specified in clause 23.2(b) bears to the whole of that period.
26.5 If the Casino Licence is cancelled or surrendered at any time, and the State determines that it wishes a licence to be granted to a person other than the Company for the operation of a casino in the Melbourne Casino Complex, the following provisions will apply—
(a) the State shall give a notice to the Company informing the Company that the State requires the Company to grant to the new casino operator a sub-lease of the Melbourne Casino and the Company must do so in accordance with clauses 26.5(b) to (i) inclusive;
(b) the sub-lease will commence on the date of issue of the new licence and end on the termination of the new licence or the termination of the Site Lease, whichever is the earlier;
(c) the initial rental payable under the sub-lease will be the market rental as at the date of commencement of the sub-lease of the Melbourne Casino, as agreed between the State and the Company, and will be payable monthly in advance on the first Business Day of each month;
(d) the sub-lease rent will be reviewed annually to the market rental as agreed between the sub-lessor and the sub-lessee, and failing agreement, determined in accordance with clause 26.6 as if a notice had been issued under this clause on the anniversary of the commencement of the sub-lease;
(e) the sub-lessee will be liable to pay to the sub-lessor all outgoings which are properly attributable to the occupation and use of the Melbourne Casino;
(f) the sub-lease will contain all appropriate rights, including rights of access and egress over the Melbourne Casino Complex to the Melbourne Casino, as are necessary to enable the casino operator to operate a casino in the Melbourne Casino Complex;
(g) the other terms and conditions of the sub-lease will be similar to the terms and conditions of the Site Lease in so far as they relate to the Melbourne Casino and to the extent that it is appropriate to include them in the sub-lease;
(h) the form of the sub-lease shall be as determined by the State;
(i) the Company must use its best endeavours to facilitate the operation of the Melbourne Casino within the Melbourne Casino Complex and this obligation shall also be a term of the sub-lease.
26.6 If within 1 month after the service of the notice under clause 26.5 the State and the Company have not agreed on the market rental to be payable under the sub-lease, the market rental will be determined in accordance with the following provisions—
(a) within 10 Business Days after the expiration of the period of 1 month from the date of service of the notice, the State and the Company will each appoint a valuer (each a "Representative Valuer") to act on its behalf in relation to the determination of the market rental of the Melbourne Casino;
(b) an independent valuer ("Independent Valuer") will be appointed—
(i) by agreement in writing by the Representative Valuers; or
(ii) failing such agreement within 20 Business Days after the appointment of the Representative Valuers, then at the request of either Representative Valuer by the President of the Victorian Division of the Australian Institute of Valuers and Land Economists Inc;
(c) the Independent Valuer must as soon as practicable establish a procedure by which submissions are to be made by each Representative Valuer as to the market rental of the Melbourne Casino but so that all submissions are made to the Independent Valuer within 20 Business Days of his appointment;
(d) following completion of the period referred to in clause 26.6(c) the Independent Valuer must consider the submissions made, seek further submissions if required and, within 20 Business Days after the end of the period referred to in clause 26.6(c) and having regard to the matters referred to in clause 26.7, determine the market rental of the Melbourne Casino;
(e) in determining the market rental of the Melbourne Casino the Independent Valuer will be acting as an expert and not as an arbitrator and his decision will be final and binding on the parties.
26.7 In determining the market rental of the Melbourne Casino under clause 26.6 the Independent Valuer must have regard to all matters to which the valuer believes the valuer should have regard to in making such a determination including but not restricted to casino facilities in Australia and overseas, first class international hotels, major convention facilities and other entertainment and tourist related facilities.
26.8 If following the expiration of the Casino Licence the State determines that it wishes a licence to be granted to a person other than the Company for the operation of a casino in the Melbourne Casino Complex, the provisions contained in clauses 26.5 to 26.7 will apply with all necessary changes in point of detail so as to confer a sub-lease on the new licensee.
PART 7—GENERAL
27.1 The Company makes the Warranties to the State as at the date of this document and for each day up to and including the Licensing Date.
27.2 Each Warranty shall be construed separately and the meaning of each shall in no way be limited by reference to any other representation or warranty contained in this document.
28.1 Save where a statement, representation or warranty is given in its favour under this document or any Transaction Document, the Company acknowledges that it is entering into this document and the other Transaction Documents in reliance on its own judgment and following review of the Site and the Temporary Casino Site and the business opportunity provided by, among other things, the Casino Licence, and not in reliance on any conduct of or statements, warranties or representations made to the Company or to any other person by or on behalf of the State or any of its servants, agents or consultants.
28.2 Save for any statement, representation or warranty made in its favour under this document or any Transaction Document, the Company acknowledges and agrees that no action lies against the State or any of its servants, agents or consultants and that no compensation of any kind is payable to the Company in relation to anything done or purported to be done or not done for the purposes of the establishment or operation of the Temporary Casino, Temporary Casino Complex, Melbourne Casino or Melbourne Casino Complex prior to the execution of this document.
28.3 Nothing in this clause 28 limits any liability of Golder Associates Pty Ltd to the Company.
29.1 The Company indemnifies and will keep indemnified the State and its servants, agents and consultants in respect of all actions, claims, demands or costs of third parties arising out of or in connection with any work carried out by or on behalf of the Company pursuant to this document or relating to the Company's operations (including but not limited to the operations of the Temporary Casino Complex and the Melbourne Casino Complex) or arising out of or in connection with the construction, financing, maintenance or use of the Temporary Casino Complex or the Melbourne Casino Complex except expenses of the Authority which are covered by the Casino Supervision and Control Charge.
29.2 The indemnity in clause 29.1 does not apply to the extent that any actions, claims, demands or costs arise as a result of the negligence or wilful default of the State.
29.3 The Casino Supervision and Control Charge reimburses the Authority for expenses incurred in respect of—
(a) the supervision and monitoring by the Authority of the establishment of the Temporary Casino and the Melbourne Casino; and
(b) the supervision of the Temporary Casino and the Melbourne Casino by the Authority.
30.1 All documents and information provided by one party to another party under this document must be kept confidential and not disclosed to any person without the consent of the other party unless—
(a) the information is in the public domain;
(b) disclosure is required by law;
(c) the disclosure is necessary for the purpose of obtaining any consent, authorisation, approval or licence from any government or public body or authority;
(d) it is necessary or desirable that the disclosure be made to any taxation or fiscal authority;
(e) the disclosure is made on a confidential basis to the officers, employees or agents of a party or to the professional advisers of a party for the purposes of obtaining professional advice in relation to any Transaction Document or the enforcement of any Transaction Document or otherwise for the purpose of consulting those professional advisers;
(f) the disclosure is made by the Company on a confidential basis to any actual or prospective financier or agent of a financier to the Company;
(g) the disclosure is necessary in relation to any procedure for discovery of documents or any proceedings before any court, tribunal or regulatory body; or
(h) the disclosure is necessary for the purposes of obtaining listing on the Australian Stock Exchange.
30.2 The obligations in clause 30.1 shall apply after termination of this document.
If any day for the payment of money under this document falls on a day which is not a Business Day, the payment will be due on the next day which is a Business Day.
32.1 A notice or approval required or to be given under this document must be—
(a) in writing;
(b) delivered by hand or served by prepaid post or facsimile to the recipient at its address or facsimile number appearing in this clause or such other address or facsimile number as the recipient may have notified the other party—
(i) in the case of the State—
The Secretary to the Department of Treasury
1 Treasury Place
Facsimile: (03) 651 6228
with a copy to the Authority—
Chairman
Victorian Casino Control Authority
Level 27, 459 Collins Street
Facsimile: (03) 621 1803
(ii) in the case of the Company—
Lloyd J. Williams
Chief Executive Officer
Crown Casino Ltd.
311 Glenferrie Road
MALVERN VIC 3144
Facsimile: (03) 823 6105
32.2 A notice or approval given in accordance with clause 32.1 is taken to be received—
(a) if hand delivered, on the day of delivery if delivered before 4.00 p.m. on a Business Day and otherwise on the Business Day next following;
(b) if sent by prepaid post, 3 days after the date of posting; or
(c) if sent by facsimile, on the day on which the message confirmation is received if received before 4.00 p.m. on a Business Day and otherwise on the Business Day next following.
32.3 The provisions of clause 32 are in addition to any other mode of service permitted by law.
32.4 A copy of each notice given under this document to the State must be given to the Authority.
33.1 Each party must pay its own costs of preparing and executing this document.
33.2 The Company must pay all stamp duty on this document and on any document executed to give effect to this document.
A failure of a party at any time to require full or part performance of any obligations under this document will not affect in any way the rights of that party to require that performance subsequently.
35.1 This document is governed by the laws applying in Victoria.
35.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from those courts.
36.1 The Company must not without the prior written consent of the State—
(a) assign any of its rights under this document; or
(b) effect the assumption of any of its duties and obligations under this document by any other person,
other than pursuant to a Permitted Encumbrance as defined in the Casino Agreement.
36.2 The State may assign, transfer or dispose of its rights under this document or any other Transaction Document—
(a) to the Authority or to any agency of the government of the State or statutory authority or corporation which has taken over the objects and functions of the Authority under the Casino Control Act; or
(b) with the approval in writing of the Company to any person, such approval not to be unreasonably withheld;
provided that the assignee enters into an agreement with the Company agreeing to be bound by the provisions of this document and each other Transaction Document to which the State is a party.
Each party must do or cause to be done anything necessary or desirable to give effect to this document, and will refrain from doing anything which might prevent full effect being given to this document.
38.1 This document may be executed in any number of counterparts.
38.2 All counterparts taken together will be deemed to constitute the one document.
39.1 The parties agree that a construction of this document which results in all provisions being enforceable is to be preferred to a construction which does not so result.
39.2 If, despite the application of clause 39.1, a provision of this document is illegal or unenforceable—
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; and
(b) in any other case, the whole provision is severed,
and the remainder of this document continues to have full force and effect.
39.3 Clause 39.2 does not apply where its application alters the basic nature of this document or is contrary to public policy.
40.1 In this document, unless the context otherwise requires or the contrary intention appears—
(a) the singular includes the plural and vice versa and words importing a gender include other genders;
(b) terms importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies;
(c) a reference to any legislation, statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Commonwealth) or the equivalent State legislation, as applicable, and includes any re-enactment or amendment to that legislation, statutory instrument or regulation;
(d) other grammatical forms of defined words or phrases have corresponding meanings;
(e) a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this document and a reference to this document includes any schedules and annexures;
(f) where a party comprises two or more persons the provisions of this document binding that party bind those persons jointly and severally;
(g) terms defined in the Corporations Law as at the date of this document have the meanings given to them in the Corporations Law at that date;
(h) "party" means a party to this document;
(i) a reference to a party to this document or any other document or agreement includes its successors and permitted assigns;
(j) a reference to a document or agreement, including this document, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(k) a reference to "$A", "dollar", "AUD" or "$" is a reference to Australian currency;
(l) a reference to writing includes typewriting, printing, lithography, photography and any other method of representing or reproducing words, figures or symbols in a permanent and visible form; and
(m) a reference to a specific time for the performance of an obligation is a reference to that time in the State.
40.2 In this document headings are for ease of reference only and do not affect the construction of this document.
41.1 The Company must—
(a) maintain its corporate existence;
(b) comply with all laws applicable to the matters the subject of this document from time to time in force including, without limitation, the Gaming Machine Control Act, and all mandatory requirements of any Public Authority;
(c) obtain and renew at the proper times and maintain all Authorisations required—
(i) for the Company to perform its obligations under this document;
(ii) for the Company to perform its obligations under each Transaction Document; and
(iii) to allow this document and each Transaction Document to be enforced against it;
(d) obtain and renew at the proper times and maintain all licences and other Authorisations required or advisable or relied on for or in connection with the carrying on of the Company's business;
(e) comply with the terms and conditions of each Lease to which it is a party where a failure to do so would have a material adverse effect on the Casino Assets or the operation of the Temporary Casino or the Melbourne Casino;
(f) comply with its payment obligations under any agreement for the purchase of property where a failure to do so would have a material adverse effect on the Casino Assets or the operation of the Temporary Casino or the Melbourne Casino;
(g) protect the Casino Assets and at the Company's expense prosecute or defend all legal proceedings that are, or the defence of which is, necessary or advisable for the protection of the Casino Assets to the extent appropriate in accordance with prudent business practice; and
(h) carry out all work reasonably and properly required by any Public Authority in relation to the Casino Assets where a failure to do so would have a material adverse effect on the Casino Assets or the operation of the Melbourne Casino or the Temporary Casino.
41.2 The Company must not, without the prior consent in writing of the State—
(a) Deal with or Dispose of any of the Casino Assets other than by way of maintenance, repair or replacement;
(b) Deal with or Dispose of any of the Casino Assets other than in the ordinary course of the Company's business;
(c) execute, create or permit to subsist any Encumbrance over or affecting the Casino Assets other than a Permitted Encumbrance;
(d) pull down, alter, extend or remove any building, improvement or fixture forming part of the Casino Assets where to do so would materially adversely affect the Casino Assets or the operation of the Melbourne Casino or the Temporary Casino;
(e) take on or under a Lease, or acquire for consideration, any asset other than in the ordinary course of the Company's business;
(f) declare or pay a dividend if a demand has been properly made on the Company under this document or any Transaction Document and has not been satisfied in full;
(g) do anything or allow anything to be done in derogation of the rights of the State or any other party under any Transaction Document;
except to the extent permitted by clause 29 of the Casino Agreement.
SCHEDULES
SCHEDULE ONE
Design and Construction Programme
Temporary Casino Complex
Melbourne Casino Complex
View image in the official source
SCHEDULE TWO
Drawings
Schematic design drawings described in the following list relating to the Temporary Casino Complex, each of which has been initialled on behalf of the Authority and the Company for the purposes of identification.
Schematic design drawings described in the following list relating to the Melbourne Casino Complex, each of which has been initialled on behalf of the Authority and the Company for the purposes of identification.
| Casino Complex | | | | Locality Plan | | Scale 1:1000 | | Casino Level | RL + 2.4 | Scale 1:500 | | Inspectorate Level | RL +5.7 | Scale 1:500 | | Ballroom Level | RL +9.0 | Scale 1:500 | | Lower Casino Garden | RL +14.0 | Scale 1:500 | | Main Casino Garden | RL +18.0 | Scale 1:500 | | Upper Casino Garden | RL +24.0 | Scale 1:500 | | Typical Hotel | RL +30.0 | Scale 1:500 | | Lower Basement | RL -3.9 | Scale 1:500 | | Upper Basement | RL -1.2 | Scale 1:500 | | Hotel Plans | | Scale 1:250 | | River Elevation | | Scale 1:500 | | Longitudinal Section— | | | | Whiteman Street Elevation | | Scale 1:500 | | Clarendon Street Elevation— | | | | Queensbridge Square Elevation | | Scale 1:500 | | Crown Entertainment Section | | | | Cross-Wintergarden Section | | Scale 1:500 | | Gaming Room Layout | | Scale 1:250 | | | | | | Temporary Casino | | | | Flinders Street Entrance Plan—Part 1 | | Scale 1:200 | | Flinders Street Entrance Plan—Part 2 | | Scale 1:200 | | Forecourt Section and Elevation | | Scale 1:200 | | Ground Plan | | Scale 1:100 | | Galleria Level Gaming Plan | | Scale 1:100 | | Concourse Level Gaming Plan | | Scale 1:100 | | Concourse Level Plan West | | Scale 1:100 | | East-West Section | | Scale 1:100 | | North-South Section | | Scale 1:100 | | Off-Site Options/Infrastructure | | | | Off-Site Ancillary Works | | Scale 1:100 | | Traffic Management | | | | Pedestrian and Vehicular Circulation | | Scale 1:1000 | | Road Network Drawing 1B | | Scale 1:500 | | Road Network Drawing 2 | | Scale 1:500 | | Road Network Drawing 3 | | Scale 1:500 | | Road Network Drawing 4 | | Scale 1:500 | | Road Network Drawing 5 | | Scale 1:500 | | Road Network Overall Layout Plan | | Scale 1:1000 |
SCHEDULE THREE
Draft Plan of Survey of the Site
The attached Plan is subject to the reservations and conditions set out in the Site Lease.
View image in the official source
SCHEDULE FOUR
Warranties of the Company
The Company has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation, with full power and authority to enter into this document and perform its obligations under this document.
This document has been duly authorised, executed and delivered by the Company and constitutes (except to the extent limited by equitable principles, laws relating to penalties and laws affecting creditors' rights generally) a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, and no other proceedings on the part of the Company are necessary to authorise this document and the completion of the transactions contemplated under this document.
The execution and delivery by the Company of this document and the performance by the Company of its obligations under the document in accordance with its terms do not—
(a) conflict with the constitution or bylaws of the Company;
(b) constitute a violation of or default under any agreements or arrangements to which the Company is a party;
(c) except as provided in this document, cause the creation of any Encumbrance upon any of the property of the Company; or
(d) contravene any law.
A Receiver has not been appointed to the whole or any part of the assets or undertaking of the Company and no such appointment has been threatened or is envisaged by the Company.
The Company is not in liquidation or administration and no order, petition, application, proceedings, meeting or resolution has been made, presented, brought, called or passed for the purposes of liquidating the Company or placing the Company under or in administration.
The Company is not insolvent within the meaning of section 95A of the Corporations Law or otherwise and there is no unfulfilled or unsatisfied judgment or court order outstanding against the Company.
SCHEDULE FIVE
Preliminary Estimate—Off-site External Works Options
EXCLUSIONS:
The following items have not been included in the above preliminary cost assessment:
(i) Capital or operating costs of the tram link proposed for Whiteman Street;
(ii) Private Land Acquisition and Transaction Costs;
(iii) Performance Guarantees;
(iv) Interest;
(v) Finance Charges and Establishment.
1.00 Modifications to North River Bank
1.01 Construct 2 metre wide timber wharf/pier like structure along river bank at current river edge alignment m 480 1 500 720 000
—blue stone steps Item 80 000
1.02 Pedestrian Promenade Sunday market paving m2 1 440 125 180 000
1.03 Boat mooring facilities and fittings to wharf Item 10 000
1.04 Landscaping, grassing and planting including gravel paths Item 150 000
1.05 External seating and civic furniture Item 50 000
1.06 External lighting poles Item 45 000
1 235 000
Contingency 5% 62 000
Design Fees 8% 104 000
Total Modifications to North River Bank 1 401 000
2.00 Kingsway Bridge Abutments and Enhancements (North Side)
2.01 Obelisk feature tower at each side of bridge, including special lighting No. 2 185 000 370 000
2.02 Feature lighting to Kingsway handrails Item 50 000
420 000
Contingency 5% 21 000
Design Fees 8% 35 000
Total Kingsway Bridge Abutments and Enhancements (North Side) 476 000
3.00 Low Level Bridge Access Ramps Regrading
3.01 Jacking and temporary support No. 2 250 000 500 000
3.02 Demolition and cut-down existing piles and crosshead No. 2 55 000 110 000
3.03 Reconstruct crosshead and bridge bearing No. 2 180 000 360 000
3.04 Construct shore access ramps with flood water isolation upstand walls to RL 2.20 No. 2 85 000 170 000
3.05 Articulated slab between bridge deck and ramps No. 2 20 000 40 000
1 180 000
Contingency 5% 59 000
Design Fees 8% 99 000
Total Low Level Bridge Access Ramps Regrading 1 338 000
4.00 Queensbridge Square Works
4.01 Beacon Towers No. 3 185 000 555 000
4.02 Roadway reconstruction including kerbs and channels m2 5 120 90 460 800
4.03 Plaza paving with bluestone bands and granite sets m2 6 080 225 1 368 000
4.04 Landscaping, planting and trees Item 120 000
4.05 Realignment of tram tracks in Queensbridge Street between river and Whiteman/Power Streets—
Dual track m 250 1 100 275 000
Overhead electrical m 250 300 75 000
Safety zone Item 15 000
PTC Design and Management 18% 65 700
4.06 Traffic signals Queensbridge Square Item 200 000
4.09 Civic furniture including seats, rubbish bins, information boards and bollards Item 50 000
4.10 External lighting poles Item 25 000
3 210 000
Contingency 5% 161 000
Design Fees 8% 270 000
Total Queensbridge Square Works 3 641 000
5.00 Queensbridge Square Tunnel Access
The following works are additional to the works included in item 4 above
5.01 Additional services diversions and relocations including water, gas, electricity and Telecom Item 1 500 000
5.02 Dual lane vehicle tunnel approximately 180 metres long from Casino and exiting in South Bank Boulevard. (Tunnel constructed by cut and cover method) Item 1 850 000
5.03 Traffic lights, tunnel exit/entry in Southbank Boulevard Item 100 000
5.04 Additional roadworks to Southbank Boulevard Item 350 000
3 800 000
Contingency 5% 190 000
Design Fees 8% 319 000
Total Queensbridge Square Tunnel Access 4 309 000
6.00 Whiteman Street Upgrade Works
6.01 Reconstruct road pavement including bluestone kerbs and channels m2 7 500 125 937 500
6.02 New bluestone pedestrian paving with granite bands m2 2 400 145 348 000
6.03 Bluestone and granite feature to roadway at Casino entrance m2 2 500 200 500 000
6.04 Street lighting and poles Item 35 000
6.05 Traffic signals Queensbridge Street/Power Street intersection Item 200 000
6.06 Traffic signals Clarendon Street intersection Item 200 000
6.07 Traffic signals basement carpark entry/exit Item 200 000
6.08 Landscaping and street trees Item 120 000
6.09 Civic furniture including seats, rubbish bins and information boards Item 20 000
2 560 500
Contingency 5% 128 000
Design Fees 8% 215 000
Total Whiteman Street Upgrade Works 2 904 000
7.00 Clarendon Street Plaza
7.01 Roadway plaza paving incorporating light coloured granite bands m2 3 000 125 375 000
7.02 Landscaping (including trees) Item 25 000
7.03 Pedestrian operated traffic lights Item 40 000
7.04 Civic furniture, bollards etc. Item 10 000
450 000
Contingency 5% 23 000
Design Fees 8% 38 000
Total Clarendon Street Plaza 511 000
8.00 Power Street Extension Roadworks
8.01 Reconstruct road pavement including new concrete kerbs and channels m2 3 750 90 337 500
8.02 New concrete pedestrian paving m2 900 35 31 500
8.03 Overhead street lighting and poles Item 15 000
8.04 Landscaping and street trees Item 45 000
8.05 Civic furniture Item 5 000
8.06 Traffic signals Power Street/City Road intersection Item 200 000
634 000
Contingency 5% 32 000
Design Fees 8% 53 000
Total Power Street Extension Roadworks 719 000
9.00 Kingsway South Access Ramps
9.01 Dual lane access ramps each side of Kingsway bridge providing access from Whiteman Street for southern access to Kingsway Item 8 000 000
8 000 000
Contingency incl.
Design Fees incl.
Total Kingsway South Access Ramps 8 000 000
EXECUTED as an agreement.
| SIGNED by the Honourable HADDON STOREY, QC MLC for and on behalf of THE STATE OF VICTORIA in the presence of— | | HADDON STOREY Hon. Haddon Storey, QC MLC | | Signature of Witness KARIN PUELS Name of Witness (please print) KARIN PUELS | | | | THE COMMON SEAL of CROWN CASINO LTD. is affixed in accordance with its articles of association in the presence of— | | LS | | PETER JONSON Signature of Secretary/Director<br>PETER JONSON Name of Secretary/Director (please print) | | B. J. HAMILTON Signature of Director<br>BARRY J. HAMILTON Name of Director (please print) |
Sch. 2 inserted by No. 93/1994
s. 7.
Schedule 2—Deed of variation to the management agreement
DEED dated 14 November 1994
BETWEEN THE HONOURABLE HADDON STOREY QC MLC, 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 CASINO LTD. ACN 006 973 262 with its registered office at Level 1, 99 Queensbridge Street, South Melbourne, Victoria ("Company")
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 parties have agreed to vary the Management Agreement as provided in this document.
Unless the context otherwise requires or the contrary intention appears, terms defined in the Casino Control Act or the Management Agreement have the same meaning when used in this document.
2.1 A minister of the State must introduce and sponsor a bill in the Parliament of Victoria to ratify this document as soon as reasonably practicable after its execution.
2.2 Clause 3 of this document shall come into operation once the bill referred to in clause 2.1 has come into operation as an Act.
2.3 Clauses 1, 2, 4, 5 and 6 of this document shall come into operation on the date of this document.
2.4 If the bill referred to in clause 2.1 has not come into operation as an Act by 30 June 1995 or such later date agreed by the parties this document other than clause 4 will terminate. Following such termination neither party shall have any claim against the other with respect to any matter or thing antecedent to or arising out of or done, performed or omitted to be done or performed under this document.
3.1 The Management Agreement shall be varied in the following manner—
(a) the definition of "Drawings" in clause 2 shall be deleted and the following shall be substituted—
' "Drawings" means:
(a) the plans, designs and working drawings relating to the Temporary Casino Complex provided by the Company and initialled by the State's Nominated Representative on behalf of the State and the Company for the purposes of identification and described in Schedule Two; or
(b) the plans, designs and working drawings relating to the Melbourne Casino Complex provided by the Company and initialled by the State's Nominated Representative on behalf of the State and the Company for the purposes of identification and described in Schedule Two;
or such other plans, designs and working drawings authorised in writing by the Minister in accordance with section 16 of the Casino (Management) Agreement Act 1993;'
(b) the definition of "Melbourne Casino Complex Development Proposals" in clause 2 shall be deleted and the following shall be substituted—
' "Melbourne Casino Complex Development Proposals" means the proposals of the Company in relation to the construction, development and establishment of the Melbourne Casino Complex (including without limitation—
(a) proposals in relation to traffic management, taxi holding areas and availability;
(b) the design of, public access to and amenity of the roof garden;
(c) wind diffusion from the tower building to public open spaces; and
(d) the quality of finishes),
a copy of which has been signed by or on behalf of the State's Nominated Representative and the Company for the purposes of identification;'
(c) the following clause shall be added as clause 10.3—
"10.3 The Company must construct on the land located at 1–21 Clarke Street, South Melbourne being more particularly described in Certificates of Title Volume 5867 and Folios 3263 and 3264 a car park comprising not less than 600 car parking spaces which shall be available for use by patrons of the Melbourne Casino Complex. The Company must provide weather protection and security access from such car park to the Melbourne Casino Complex. In addition to all approvals required under the Control Acts, the design of the car park must be approved in advance by the Minister. The Company must use its best endeavours—
(a) to obtain as soon as practicable all necessary approvals under the Control Acts and from the Minister for the construction of the car park; and
(b) to complete the car park prior to the opening of the Melbourne Casino."
(d) the following clause shall be added as clause 11.3—
"11.3 If the Company wishes to vary any drawings, specifications or other documents approved by the State's Nominated Representative under clause 11.1, the Company must submit the proposed variation to the State's Nominated Representative for approval."
(e) clause 12.1 shall be varied by deleting the words "clause 11.1" and substituting "clauses 11.1 and 11.3";
(f) clause 12.2 shall be varied by adding the words "under clauses 11.1 or 11.3" after the words "State's Nominated Representative" where first appearing in that clause;
(g) clause 15.4 shall be varied by deleting the word "If" and substituting "Subject to clause 15.9, if";
(h) the following clause should be added as clause 15.9—
"15.9 The State's Nominated Representative, acting reasonably, must issue the certificate for the Melbourne Casino pursuant to clause 15.4, if—
(a) all the requirements of clause 15.4 are satisfied; and
(b) the Company is, at the time, diligently pursuing the Completion of the Melbourne Casino Complex.
If, having issued a certificate under clause 15.4 for the Melbourne Casino, the State's Nominated Representative acting reasonably determines that the Company is not diligently pursuing the Completion of the Melbourne Casino Complex the Company will be considered to have committed a breach of this document enabling action to be taken under clause 25".;
(i) clause 17.1 shall be deleted and the following shall be substituted—
"17.1 Subject only to clause 16.3, if the Company fails to Complete and open for business—
(a) the Temporary Casino by the Completion Date;
(b) the Melbourne Casino by the Completion Date; or
(c) the Melbourne Casino Complex by the Completion Date,
the State's Nominated Representative may give notice in writing to the Company that this clause 17 is to apply.";
(j) clause 17.2 shall be deleted and the following shall be substituted—
"17.2 If a notice is given under clause 17.1, the Company must pay to the State liquidated damages—
(a) in the event that the Temporary Casino is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3), at the rate of $50 000 for each day from that date to the date the Temporary Casino is Completed and open for business;
(b) subject to paragraph (c), in the event that the Melbourne Casino Complex is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3), at the rate of $50 000 for each day from that date to the date that the Melbourne Casino Complex is Completed and open for business; or
(c) in the event that the Melbourne Casino Complex is not Completed and open for business by the Completion Date (as varied by any Force Majeure Event pursuant to clause 16.3) but the Melbourne Casino is Completed and open for business, at the rate of $5 500 for each day from the date that is the later of the date that the Melbourne Casino is Completed and open for business and the Completion Date for the Melbourne Casino Complex (as varied by any Force Majeure Event pursuant to clause 16.3) until the Melbourne Casino Complex is Completed and open for business."
(k) clause 17.3 shall be varied by adding the words "or the Melbourne Casino Complex" after the words "Melbourne Casino" in paragraph (a);
(l) the following clause shall be added as clause 20.3—
"20.3 For a period of five years from 30 June 1995 the Company—
(a) agrees that it will commit to a major marketing programme at national and international level, to be co-ordinated with Tourism Victoria and the Melbourne Tourism Authority. The programme will incorporate strategies to address the marketing of exhibitions, conventions and incentive travel, recognising the role of Melbourne Tourism Authority in managing the promotion to these market segments. The programme is to be reviewed annually in advance with the first review to be completed by 30 June 1995;
(b) will participate in, and contribute to, the operation of the Melbourne Tourism Authority; and
(c) will support the efforts of the State and its representatives to attract hallmark events to Victoria."
(m) Schedule Two shall be varied by deleting the existing Schedule and substituting the attached Schedule in its place.
The Company acknowledges that none of the negotiation, preparation and execution of this document, its ratification under clause 2 or any of the circumstances relating to or giving rise to the creation of this document has or will cause or create any Government Action or Force Majeure Event.
5.1 The parties acknowledge and confirm that except as varied by this document the terms and conditions of the Management Agreement remain in full force and effect.
5.2 Without limiting clause 5.1, the Company acknowledges and confirms—
(a) that the Melbourne Casino Complex must be Completed by the Completion Date;
(b) that subject to clause 16.3 of the Management Agreement, the Company shall be liable for liquidated damages under clause 17 of the Management Agreement if the Melbourne Casino is not Completed and open for business by the Completion Date; and
(c) that the Company must comply with the requirements of clause 13.1 of the Management Agreement in relation to materials, fittings, equipment and workmanship utilised in carrying out the construction of the Melbourne Casino Complex.
Clauses 33 and 35 to 40 (inclusive) of the Management Agreement apply to this document as if expressly included in this document.
EXECUTED as an agreement.
| SIGNED by THE HONOURABLE HADDON STOREY QC MLC for and on behalf of the State of Victoria in the presence of<br> A. G. SANTIAGO | ⎪ ⎪ ⎪ | <br> HADDON STOREY | |
|---|---|---|---|
| Signature of witness<br>ARMINDA SANTIAGO | HON HADDON STOREY QC MLC | ||
| Name of witness (print) | |||
| THE COMMON SEAL of CROWN CASINO LTD. is affixed in accordance with its articles of association in the presence of PETER JONSON | ⎪ ⎪ | LS LLOYD WILLIAMS | |
| Director | Director |
SCHEDULE TWO
DRAWINGS
Casino Complex
| Locality Plan | | Scale 1:1000 | | Floor Plan, Level Ground/M | RL 2.4/6.0 | Scale 1:500 | | Floor Plan Level 1 | RL 9.0/9.6 | Scale 1:500 | | Floor Plan Level 2 | RL 13.8/14.6/15.6 | Scale 1:500 | | Floor Plan Level 3 | RL 16.4/17.2/18.3 | Scale 1:500 | | Roof Plan Level 4 | RL 20.4 | Scale 1:500 | | Hotel Tower Plan | | Scale 1:200 | | Floor Plan Level B2 | RL 3.9 | Scale 1:500 | | Floor Plan Level B1 | RL 0.8 | Scale 1:500 | | River Elevation | | Scale 1:500 | | Longitudinal Section and Whiteman Street Elevation | | Scale 1:500 | | Clarendon Street and Queensbridge Square Elevation | | Scale 1:500 | | Crown Entertainment and Wintergarden Section | | Scale 1:500 |
Temporary Casino
| Locality Plan | Scale 1:500 | | Ground Level Plan | Scale 1:100 | | Galleria Plan | Scale 1:100 | | Concourse Plan | Scale 1:100 | | Concourse West Plan | Scale 1:100 | | External Elevations | Scale 1:200 | | Ground Floor Staff Area Facilities Plan | Scale 1:100 | | Galleria Level Garden Terrace Floor Plan and Reflected Ceiling Plan | Scale 1:100 |
Temporary Casino South Extension
| Promenade Floor and Ceiling Plan | Scale 1:100 | | Galleria and Concourse Floor Plan | Scale 1:100 | | Sections, South Extension Elevations, South Extension | Scale 1:100 | | Galleria and Concourse Table/Furniture/Slot Machine Plans | Scale 1:100 | | Staff Uniform Storage and Change Facility Site Plan | Scale 1:100 | | | | | Staff Uniform Storage and Change Facility Floor Plan | Scale 1:100 | | Staff Uniform Storage and Change Facility—Elevations and Sections | Scale 1:50 |
Off-Site Options/Infrastructure
| Off-Site Ancillary Works | Scale 1:1000 |
Traffic Management
| Pedestrian and Vehicular Circulation | Scale 1:1000 | | Road Network Drawing 1B | Scale 1:500 | | Road Network Drawing 2 | Scale 1:500 | | Road Network Drawing 3 | Scale 1:500 | | Road Network Drawing 4 | Scale 1:500 | | Road Network Drawing 5 | Scale 1:500 | | Road Network Overall Layout Plan | Scale 1:1000 |
Sch. 3 inserted by No. 89/1995
s. 9.
Sourced from Victorian Legislation (legislation.vic.gov.au), CC BY 4.0.
Version No. 047
Casino (Management Agreement) Act 1993
No. 94 of 1993
Version incorporating amendments as at
9 November 2023
table of provisions
Section Page
Part 1—Preliminary 1
1 Purpose 1
2 Commencement 1
3 Principal Act 1
4 Definitions 2
5 Crown to be bound 4
Part 2—Ratification and implementation 5
6 Ratification and implementation of Agreement 5
6A Ratification of the first Deed of Variation 5
6B Ratification of the second Deed of Variation 6
6C Ratification of the third Deed of Variation 6
6D Ratification of the fourth Deed of Variation 6
6E Ratification of the fifth Deed of Variation 6
6F Ratification of the sixth Deed of Variation 7
6G Ratification of the seventh Deed of Variation 7
6H Ratification of the eighth Deed of Variation 7
6I Ratification of the ninth Deed of Variation 8
6J Ratification of the tenth Deed of Variation 8
7 Agreement to prevail if inconsistent with Casino Control Act 8
7A Variation of Agreement 9
7B No liability 9
7C Variation of Agreement—junkets 11
7CA Variation of Agreement—taxation 12
7D Variation of Agreement—Melbourne Casino Sublease Area 13
8 Powers of Commission 16
9 Transfer of Melbourne Casino Licence 16
10 Commission may enter into agreement on postponement of action 17
11 Taxes and charges 17
12 Payments under Master Security Agreement 18
13 Application of casino earnings if licence cancelled etc. 19
14 Change in situation of casino operator 19
15 Certain agreements not controlled contracts 19
16 Development conditions under the Agreement 19
17 Cancellation and refunds 20
Part 5—Transitional provisions—Victorian Commission for Gambling and Liquor Regulation Act 2011 21
21 Definitions 21
22 Things commenced by the former Commission before abolition of former Commission 21
Who it affects
The Melbourne Casino Operator (the company holding the Melbourne Casino licence) — primary obligated party for construction, operation, payments, reporting and compliance under the Agreement (see Agreement definitions and multiple operative clauses).
The State of Victoria (Minister, Treasurer, the Commission/Authority) — the State is the counter‑party, entitled to payments and certain controls, and authorised to take steps to implement the Agreement (see sections 6, 11, 12 and many Agreement clauses).
The Victorian gambling regulator (currently the Victorian Commission for Gambling and Liquor Regulation or its successor) — given express powers under the Act to exercise powers conferred by the Agreement (see section 8).
Financiers, mortgagees and other secured parties referenced in the Agreement (Facility Agreement, Master Security Agreement) — the Act recognises security arrangements and preserves certain finance priorities and remedies (see Agreement schedules and sections 12, 15, 25).
The Victorian public and taxpayers — indirectly affected because the Agreement sets large payments to the Consolidated Fund, creates contingent State obligations (payments under Master Security Agreement, potential compensation payments under the regulatory certainty provisions), and constrains some future regulatory choices (see sections 11, 12 and Schedule 11’s regulatory certainty Annexure).
How it works mechanically (key points a non‑lawyer needs to know)
Ratification: The Agreement and each deed of variation listed in the Act are treated as if enacted in the statute; the Minister, Treasurer and Commission are required to implement them (section 6 and Schedules 2–11).
Priority: If any part of the Agreement contradicts the general Casino Control Act in relation to the Melbourne casino, the Agreement provision prevails and the Principal Act’s application is modified accordingly (section 7).
Taxes and payments: The Agreement’s Part 4 sets licence payments, monthly casino tax, community benefit levies and a schedule for additional taxes based on thresholds. The Act declares those payments are taxes/charges payable to the Commission for the Consolidated Fund and confirms the Gambling Taxation Act 2023 applies to the Melbourne Casino Operator (section 11, clause 22 in the Agreement; section 23 transitional rules).
Licence transfers: The operator may sell or transfer the Melbourne Casino licence subject to prior written approval by the Minister and the Commission; the Commission must be satisfied that the transferee would meet licensing standards (section 9).
Variations added later: the legislature has inserted specific statutory variations and protections at different times — examples include removing the Agreement’s liability on the State for a particular Part (section 7B), removing “junket” references from the definition of commission‑based play (section 7C), and deleting or amending taxation clauses (section 7CA). Those variations are brought into effect by statute, sometimes with explicit extinguishment of past State liability.
Tenth deed / 2014 package (prominent commercial changes): the Tenth Deed (set out in Schedule 11) implemented major, later commercial changes: an extension of the licence term (requires a legislative amendment to take effect), increases in machine/table caps in the Casino Licence, large upfront and deferred payments by the operator to the State (clauses 21A–21C), contingent performance payments tied to gaming revenue growth (clause 21B), and a new regulatory certainty regime (Part 5A and Annexure 1) that creates a defined process and formula for compensation if certain government regulatory actions (Trigger Events) materially reduce Crown’s EBITDA (Schedule 11 — see in particular clauses 21A–21C, 22.10, Part 5A and Annexure 1).
Official purpose claim and a brief test against costs, incentives and trade‑offs
Official rationale: the Act’s stated purpose is to ratify and implement the Melbourne Casino management agreement and subsequent variations so that the project and licence operate under a clear statutory framework (see section 1 and the Preamble).
Testing that claim against concrete mechanisms:
Key costs, implementation risks and compliance burdens (mechanisms, not judgments)
Fiscal exposure: the State’s potential payment obligations appear via (a) amounts payable under the Master Security Agreement (s.12); (b) the regulatory‑certainty compensation mechanism (Schedule 11 Annexure 1) which requires calculation of EBITDA impacts, application of multipliers and may result in significant payouts (subject to a cap indexed by CPI); and (c) the appropriation of funds to pay refunds if the licence is cancelled (clause 17 and 26). Those are concrete contingent costs borne by the Consolidated Fund if triggered.
Complexity and measurement risk: calculating compensation under the Annexure requires normalising EBITDA, estimating annualised impacts, using Expert/Umpire determinations and reconciling tax/GST returns (Schedule 6). That generates measurement and litigation/dispute resolution costs and administrative burden.
Compliance/administrative obligations on the operator: the Agreement imposes extensive performance, reporting and record‑keeping duties (design approvals, progress reports, tax returns, Schedule Six GST returns, provision of bank guarantees, and cooperation with auditors/Authority inspections). Failure to meet some obligations can trigger licence‑related consequences (see Agreement Parts 2–4 and Schedule 6).
Concentration of benefits and diffusion of costs: payments and protections are concentrated (benefit to the operator in the form of long‑term licence certainty and to the State in immediate payments), while the contingent liabilities created by protective clauses (compensation) are dispersed across the public budget. The mechanism for compensation (Annexure 1) and for tax offsets (Schedule 6) concrete how benefits and costs are allocated.
Practical takeaways — who pays, who decides, what changes
Who pays: the Melbourne Casino Operator pays licence fees, casino tax and community levies, large negotiated payments to the State (including the two $250m payments in the Tenth Deed), and may receive compensation from the State if certain regulatory actions occur (mechanisms in Schedule 11). The State may pay under Master Security arrangements and compensation obligations.
Who decides: the Minister and the Commission/Authority are the State decision makers required to implement and authorise many actions under the Agreement (section 6). The Commission has enforced powers under the Principal Act and is expressly authorised to exercise functions conferred by the Agreement (section 8). Expert panels and an Umpire resolve compensation disputes where required (Annexure 1 dispute process).
Behaviour changes: the Agreement and its statutory ratification commit the operator to construction and performance schedules, reporting and taxation obligations; they constrain some future regulatory actions (because of compensation mechanics) and create a structured process for licence transfer and for dealing with default, receivership and completion by mortgagees.
Useful statutory references
(If you want, I can extract the Agreement’s tax and payment tables into a short spreadsheet‑style summary, or map which deed introduced each major change with exact clause citations.)
Part 6—Transitional provisions—Gambling Taxation Act 2023 23
23 Tax and community benefit levy in relation to periods before 1 July 2023 23
Schedules 24
Schedule 1 24
Schedule 2—Deed of variation to the management agreement 94
Schedule 3—Second deed of variation to the management agreement 103
Schedule 4—Third deed of variation to the management agreement 120
Schedule 5—Fourth deed of variation to the management agreement 127
Schedule 6—Fifth deed of variation to the management agreement 131
Schedule 7—Sixth deed of variation to the management agreement 135
Schedule 8—Seventh deed of variation to the management agreement 142
Schedule 9—Eighth deed of variation to the management agreement 148
Schedule 10—Ninth deed of variation to the management agreement 152
Schedule 11—Tenth deed of variation to the management agreement 157
Endnotes 181
1 General information 181
2 Table of Amendments 183
3 Explanatory details 186
Version No. 047
Casino (Management Agreement) Act 1993
No. 94 of 1993
Version incorporating amendments as at
9 November 2023
Preamble
Recognising—
(a) that the Casino Control Authority proposes, subject to certain terms and conditions, to grant to Crown Casino Ltd a licence for a casino under the Casino Control Act 1991;
(b) that it is a condition precedent to the granting of a casino licence that an agreement in writing be entered into between the Minister and Crown Casino Ltd;
(c) that it is expedient to ratify and approve that agreement:
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1 Purpose
The purpose of this Act is to ratify the management agreement for the Melbourne Casino.
2 Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3 Principal Act
In this Act, the Casino Control Act 1991 is called the Principal Act.
4 Definitions
In this Act—
S. 4 def. of Authority substituted by No. 37/1994 s. 230, substituted as def. of Commission by No. 114/2003 s. 12.1.3(Sch. 6 item 2.1), amended by No. 58/2011 s. 99, substituted by No. 54/2021 s. 40(a).
Commission means Victorian Gambling and Casino Control Commission established under Part 2 of the Victorian Gambling and Casino Control Commission Act 2011;
Melbourne Casino Licence has the same meaning as "Casino Licence" has in the Agreement;
Melbourne Casino Operator has the same meaning as "Company" has in the Agreement;
S. 4 def. of
the Agreement amended by Nos 93/1994 s. 4(a), 89/1995 s. 4(a), 17/1996 s. 42(a), 62/1996
s. 4(a), 90/1998 s. 6(a), 24/2000 s. 6(a), 22/2002 s. 3(a), 47/2005 s. 8(a), 84/2009 s. 5(a), 73/2014 s. 5(a), 54/2021 s. 29, 30/2023 s. 27.
the Agreement means the management agreement for the Melbourne Casino, a copy of which is set out in Schedule 1, and includes the Agreement as varied by the first Deed of Variation and the second Deed of Variation and the third Deed of Variation and the fourth Deed of Variation and the fifth Deed of Variation and the sixth Deed of Variation and the seventh Deed of Variation and the eighth Deed of Variation and the ninth Deed of Variation and the tenth Deed of Variation and as varied by sections 7A, 7C, 7CA and 7D;
S. 4 def. of
the first Deed of Variation inserted by No. 93/1994 s. 4(b), amended by No. 89/1995 s. 4(b).
the first Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 2;
S. 4 def. of
the second Deed of Variation inserted by No. 89/1995 s. 4(c).
the second Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 3;
S. 4 def. of
the third Deed of Variation inserted by No. 17/1996 s. 42(b).
the third Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 4;
S. 4 def. of
the fourth Deed of Variation inserted by No. 62/1996 s. 4(b).
the fourth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 5;
S. 4 def. of
the fifth Deed of Variation inserted by No. 90/1998 s. 6(b).
the fifth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 6;
S. 4 def. of
the sixth Deed of Variation inserted by No. 24/2000 s. 6(b).
the sixth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 7;
S. 4 def. of
the seventh Deed of Variation inserted by No. 22/2002 s. 3(b), amended by No. 47/2005 s. 8(b).
the seventh Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 8;
S. 4 def. of
the eighth Deed of Variation inserted by No. 47/2005 s. 8(c), amended by No. 84/2009 s. 5(b).
the eighth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 9;
S. 4 def. of
the ninth Deed of Variation inserted by No. 84/2009 s. 5(c), amended by No. 73/2014 s. 5(b).
the ninth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 10;
S. 4 def. of
the tenth Deed of Variation inserted by No. 73/2014 s. 5(c).
the tenth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 11.
5 Crown to be bound
This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all other capacities.
Part 2—Ratification and implementation
6 Ratification and implementation of Agreement
(1) The Agreement is ratified and takes effect as if it had been enacted in this Act.
S. 6(2) amended by Nos 44/1995 s. 8, 114/2003 s. 12.1.3 (Sch. 6 item 2.2).
(2) The Minister administering this Act, the Treasurer and the Commission are authorised and required to do all things necessary to implement and give full effect to the Agreement and the other Transaction Documents within the meaning of the Agreement.
S. 6(3) inserted by No. 16/1997 s. 118, substituted by No. 114/2003 s. 12.1.3 (Sch. 6 item 2.3).
(3) A reference in clause 24.1 of the Agreement to the Gaming Machine Control Act 1991, the Lotteries Gaming and Betting Act 1966, the Tattersall Consultations Act 1958 or the Club Keno Act 1993 must, so far as it relates to any period on or after the commencement of section 12.2.1 of the Gambling Regulation Act 2003, be construed as a reference to the Gambling Regulation Act 2003.
S. 6A inserted by No. 93/1994 s. 5.
6A Ratification of the first Deed of Variation
S. 6A(1) amended by No. 89/1995 s. 5.
(1) The first Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
S. 6A(2) amended by No. 89/1995 s. 5.
(2) The Agreement is amended as provided in the first Deed of Variation.
S. 6B inserted by No. 89/1995 s. 6.
6B Ratification of the second Deed of Variation
(1) The second Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the second Deed of Variation.
S. 6C inserted by No. 17/1996 s. 43.
6C Ratification of the third Deed of Variation
(1) The third Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the third Deed of Variation.
(3) A reference in clause 2.2 of the third Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of Part 7 of the Gaming Acts (Amendment) Act 1996.
S. 6D inserted by No. 62/1996 s. 5.
6D Ratification of the fourth Deed of Variation
(1) The fourth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the fourth Deed of Variation.
(3) A reference in clause 2.2 of the fourth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino (Management Agreement) (Amendment) Act 1996.
S. 6E inserted by No. 90/1998 s. 7.
6E Ratification of the fifth Deed of Variation
(1) The fifth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the fifth Deed of Variation.
(3) A reference in clause 2.2 of the fifth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the date on which the Gaming Acts (Further Amendment) Act 1998 receives the Royal Assent.
S. 6F inserted by No. 24/2000 s. 7.
6F Ratification of the sixth Deed of Variation
(1) The sixth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the sixth Deed of Variation.
S. 6G inserted by No. 22/2002 s. 4.
6G Ratification of the seventh Deed of Variation
(1) The seventh Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the seventh Deed of Variation.
(3) A reference in clause 2.2 of the seventh Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino (Management Agreement) (Amendment) Act 2002.
S. 6H inserted by No. 47/2005 s. 9.
6H Ratification of the eighth Deed of Variation
(1) The eighth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the eighth Deed of Variation.
(3) A reference in clause 2.2 of the eighth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino Control (Amendment) Act 2005.
S. 6I inserted by No. 84/2009 s. 6.
6I Ratification of the ninth Deed of Variation
(1) The ninth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the ninth Deed of Variation.
(3) A reference in clause 2.2 of the ninth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of Part 3 of the Casino Legislation Amendment Act 2009.
S. 6J inserted by No. 73/2014 s. 6.
6J Ratification of the tenth Deed of Variation
(1) The tenth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2) The Agreement is amended as provided in the tenth Deed of Variation.
(3) A reference in clause 2.2(a) of the tenth Deed of Variation to the coming into operation of the Bill is taken to be a reference to the commencement of the Casino and Gambling Legislation Amendment Act 2014.
7 Agreement to prevail if inconsistent with Casino Control Act
(1) If a provision of the Agreement is inconsistent with a provision of the Principal Act—
(a) the provision of the Agreement prevails; and
(b) the application of the Principal Act in relation to the Melbourne Casino Licence and Melbourne Casino Operator is modified accordingly.
S. 7(2) amended by Nos 93/1994 s. 6, 89/1995 s. 7, 17/1996 s. 44, 62/1996 s. 6, 90/1998 s. 8, 24/2000 s. 8(a), 22/2002 s. 5, 47/2005 s. 10, 84/2009 s. 7, 73/2014 s. 7.
(2) Nothing in this section derogates from the operation of section 6(1) or 6A(1) or 6B(1) or 6C(1) or 6D(1) or 6E(1) or 6F(1) or 6G(1) or 6H(1) or 6I(1) or 6J(1).
S. 7(3) inserted by No. 54/2021 s. 30.
(3) Nothing in this section applies in relation to Division 4 of Part 3 of the Principal Act.
Note
Section 36R(1) of the Principal Act provides that Division 4 of Part 3 of that Act applies despite anything to the contrary in this Act.
S. 7A inserted by No. 54/2021 s. 31.
7A Variation of Agreement
Despite anything to the contrary in this Act or the Agreement—
(a) the Agreement is taken to have been varied on 15 October 2021 by deleting Part 5A and Annexure 1, as inserted by the tenth Deed of Variation and ratified by section 6J; and
(b) Part 5A of and Annexure 1 to the Agreement, as they take effect under section 6J, are taken to have been repealed on 15 October 2021.
S. 7B inserted by No. 54/2021 s. 31.
7B No liability
(1) On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 or 24A of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a) the enactment of the Casino and Gambling Legislation Amendment Act 2021; or
(b) the variation of the Agreement and the repeal of Part 5A and Annexure 1 by section 7A; or
(c) the appointment of a special manager and the cancellation of the Melbourne Casino Licence under the Casino Control Act 1991.
(2) For the purpose of clause 25 of the Agreement or any other purpose, any liability of the State that may have arisen under Part 5A of the Agreement on or after 15 October 2021 and before the commencement of this section is extinguished.
(3) In this section—
State includes—
(a) State within the meaning of section 38 of the Interpretation of Legislation Act 1984; and
(b) a Minister; and
(c) the Commission; and
(d) a public sector employee within the meaning of the Public Administration Act 2004; and
(e) an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
Note
Section 38 of the Interpretation of Legislation Act 1984 defines State as the State of Victoria.
S. 7C inserted by No. 42/2022 s. 48.
7C Variation of Agreement
This is an opening excerpt, not the complete document.