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.
Costs and stamp duty
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.
No waiver
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.
Governing law
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.
Assignment
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.
Further assurances
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.
Counterparts
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.
Severability
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.
Interpretation
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.
General obligations
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
Image unavailable in extracted text
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.
The attached Plan is subject to the reservations and conditions set out in the Site Lease.
Image unavailable in extracted text
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
SUMMARY:
1.00 Modifications to North River Bank 1 401 000
2.00 Kingsway Bridge Abutments and Enhancements (North Side) 476 000
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
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) |