3.2 The Company will not be required to make any payment in respect of any accrued liability under clauses 22A.4 to 22A.9 (inclusive) in respect of the period from 1 July 2014 to the Operative Date.
4. Previous agreement
On and from the Operative Date, this Deed supersedes all previous agreements or understandings between the parties in connection with its subject matter, other than any confidentiality undertakings made by any party in favour of the other, which remain in force in accordance with their terms.
None of the negotiation, preparation and execution of this Deed, its ratification under clause 2 or any of the circumstances relating to or giving rise to the creation of this Deed has or will cause or create any Government Action, Force Majeure Event or breach of obligation under any Transaction Document and the Company and the State so acknowledge.
The parties acknowledge and confirm that except as varied by this Deed the terms and conditions of the Management Agreement remain in full force and effect.
Clauses 33 and 35 to 40 (inclusive) of the Management Agreement apply to this Deed as if expressly included in this Deed.
EXECUTED AS A DEED.
SIGNED SEALED AND DELIVERED by THE HONOURABLEEDWARD O'DONOHUE MLC
Minister for Liquor and Gaming Regulation for and on behalf
of the State of Victoria in the presence
of: ⎫⎪⎪⎬⎪⎭ (Signature) ……………………….……..EDWARD O’DONOHUE MLC
(Signature) …………………………………………..
Name of witness PHOEBE DUNN
EXECUTED in accordance with section 127 of the Corporations Act 2001 by CROWN MELBOURNE LIMITED (ACN 006 973 262): ⎫⎪⎭
1.1 Compensation is payable by the State to the Company if, after the date of the Tenth Deed of Variation, during the term of the Casino Licence, and without the Company's prior written consent, the State or the Authority or any State authority or State body takes any action or series of actions which has the effect of:
Section 49 - Casino (Management Agreement) Act 1993 - Elizabeth Street | Zoe
(a) removing, reducing, amending or rendering ineffective (partially or wholly) the then current exemption from the prohibition on smoking within the VIP areas at the Melbourne Casino Complex (being, as at the Tenth Variation Commencement Date, those areas declared pursuant to section 3E of the Tobacco Act 1987 as smoking areas) (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions); or
(b) adversely impacting the earnings before interest, taxes, depreciation and amortisation ("EBITDA") of the Company by:
(i) reducing any maximum bets on Table Games, Semi Automated Table Games and Fully Automated Table Games or gaming machines (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions);
(ii) removing, reducing in number or amending or restricting the then current manner in which gaming machines in unrestricted mode within the Melbourne Casino are permitted to operate;
(iii) removing, reducing in number or restricting or amending the then current manner in which Automated Teller Machines are permitted to operate within the Melbourne Casino Complex (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions);
(iv) introducing any form of mandatory pre-commitment other than the requirement for players of gaming machines operating in unrestricted mode to set time and net loss limits using the state-wide pre-commitment system (except where all other Australian State and Territory Governments have introduced mandatory pre-commitment with a similar effect); or
(v) restricting or amending the then current manner in which the Company’s loyalty scheme is permitted to operate (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions).
(each such action or series of actions is a "Trigger Event")
2. Methods of Calculating Compensation - Trigger Events
2.1 Calculation of Compensation
In the event of a Trigger Event, subject to the rest of this clause 2, the Company will be entitled to compensation, calculated as follows:
C = (M x A)
C is the amount of compensation;
A is the annualised negative impact on the EBITDA of the Company (normalised for a theoretical win rate of 1.35% applied to turnover of Commission Based Players) as a result of the Trigger Event; and
M is the multiple applicable at the time the relevant action or the first action in a relevant series of actions by the State or the Authority (or State authority or State body) occurred as set out in the table below:
(a) In respect of all Trigger Events occurring in any term of a Victorian Government ("Term") the amount of compensation (C) will not exceed the cap determined in accordance with paragraph (b) regardless of the number or types of Trigger Events occurring in that Term.
(b) The cap for the period from the Tenth Variation Commencement Date to 30 June 2015 will be $200,000,000. On 1 July 2015 and each 1 July thereafter (each being an "Adjustment Date"), the cap will be adjusted in accordance with the formula set out below:
cap =Image unavailable in extracted text
cap is the amount of the cap on and from the Adjustment Date;
X is the CPI number published for the quarter ending immediately before the Adjustment Date;
Y is the CPI number published for the quarter ending immediately before the previous Adjustment Date or, where there is no previous Adjustment Date, the quarter ending immediately before the Tenth Variation Commencement Date;
Z is the amount of the cap calculated in accordance with this formula on the previous Adjustment Date; and
CPI number is the Consumer Price Index (All Groups for Melbourne) published by the Australian Bureau of Statistics (or any other index published in substitution for this index).
The cap will be adjusted on each Adjustment Date in accordance with this clause 2.2(b) regardless of whether, at any time prior to the Adjustment Date, a claim for compensation has been made by the Company or a payment of compensation has been made by the State.
(c) The cap that is applicable to any compensation payable in respect of a Trigger Event which occurs in a Term ("Applicable Cap") is the cap applicable at the time at which the relevant action or the first of any series of actions which constitutes that Trigger Event occurs.
(d) If the compensation paid with respect to one or more Trigger Events occurring in a Term equals the Applicable Cap, no further compensation is payable to the Company with respect to any other Trigger Event that occurs during that Term.
(e) No compensation will be payable in any Term for any action or series of actions which constitutes a Trigger Event which occurred in a prior Term and for which compensation has already been paid (or not paid as a result of the cap). However, for the avoidance of doubt, the amount of compensation payable in respect of Trigger Events which occur during a Term will not be affected by any payment of compensation made in relation to any Trigger Event which occurred during a prior Term.
(f) For the purposes of this Annexure, the Term of each Victorian Government ends when a new Victorian Government is sworn in following a Victorian general election. For the avoidance of doubt, the Company’s entitlement to compensation in relation to Trigger Events which occur in any Term will not be extinguished as a result of a change of government following a Victorian general election.
2.3 Exclusions
No compensation will be due or payable to the Company under clause 24A.3 and this Annexure 1 with respect to actions which:
(a) have an adverse impact on the Company’s EBITDA of less than $1 million per annum as assessed by the Company acting reasonably;
(b) arise directly from disciplinary action validly taken against the Company; or
(c) advertise or promote the Victorian government’s responsible gambling, responsible service of alcohol or "quit smoking" programs, provided such actions are not targeted solely at the Company.
3. Process for Determining Compensation Payable
(a) Where the Company is entitled to recover any amount (whether by payment, discount, credit or otherwise) from any third party (including from an insurer or under an indemnity or guarantee) in relation to any matter for which a claim for compensation under this Annexure 1 could be made or brought against the State by the Company, the State is nevertheless liable for that Claim (the “Relevant Claim”) but, if and to the extent the Relevant Claim is satisfied by the State, the Company must assign to the State the benefit it may receive of any proceeds, debts, claims or other actions from any third party in respect of the Relevant Claim, and otherwise hold such benefit on trust for the State, save where to do so would be contrary to or in breach of the Company's insurer's rights of subrogation.
(b) The Company is obliged to take all reasonable steps to mitigate any loss that may otherwise arise in relation to any matter or for which a claim for compensation under this Annexure 1 could be made or brought against the State by the Company.
(c) The Company will not be entitled to make a claim under this Annexure 1 to the extent it has received (or, as a result of the cap, not received) a compensation payment under this Annexure 1 in respect of the same Trigger Event.
(d) The Company agrees that any compensation payable under this Annexure 1 is the entire remedy for the occurrence of the Trigger Events which may occur and it will not seek any other remedy against the State in connection with the Trigger Events.
(e) If the Company becomes aware that a Trigger Event has occurred, the Company must promptly provide a written notice to the State which must set out in reasonable detail the Trigger Event and, at any time within 2 years from becoming aware that a Trigger Event has occurred, the Company may provide a written notice ("Compensation Notice") to the State which must state that it is a Compensation Notice under this Annexure 1 and set out in reasonable detail:
(i) the Trigger Event giving rise to the claim for compensation; and
(ii) the amount which the Company considers to be the compensation payable ("Compensation Payable") by the State to the Company in respect of the relevant Trigger Event.
(f) Within 3 months after the Company provides the Compensation Notice to the State under clause 3(e), the State must by written notice to the Company, either:
(i) accept the amount set out in the Compensation Notice as the "Compensation Payable" in which case that amount will constitute the compensation payable by the State to the Company in respect of the relevant Trigger Event; or
(ii) request from the Company such further details in relation to, or clarification of, information provided in the Compensation Notice or the methodology used to determine the amount set out in the Compensation Notices as the "Compensation Payable" as the State may reasonably require to assist the State in understanding the impact of the Trigger Event on the Company's EBITDA or the calculation of the amount set out in the Compensation Notice as the "Compensation Payable"; or
(iii) dispute the correctness of the amount set out in the Compensation Notice as the "Compensation Payable" setting out in reasonable detail:
(A) the basis on which the State disputes he amount set out in the Compensation Notice as the "Compensation Payable"; and
(B) the amount which the State considers to be the Compensation Payable or, if not precisely known, its best estimate of that amount.
(g) If the State submits a request for further details or clarification under clause 3(f)(ii):
(i) the Company must provide such further details or clarification to the extent that it can reasonably do so promptly following the request; and
(ii) within 20 Business Days of receipt of the response from the Company, the State must by written notice to the Company, either:
(A) accept the amount set out in the Compensation Notice as the "Compensation Payable", in which case that amount will constitute the compensation payable by the State to the Company in respect of the relevant Trigger Event; or
(B) dispute the correctness of the amount set out in the Compensation Notice as the "Compensation Payable".
(h) If the State does not take any of the actions required of it under and within the time frames set out in clause 3(f) and 3(g)(ii), the amount set out in a Compensation Notice as the "Compensation Payable" will constitute the compensation payable by the State to the Company in respect of the relevant Trigger Event.
(i) If the State issues a notice in accordance with clause 3(f)(iii) or 3(g)(ii)(B) (a "Compensation Dispute Notice"):
(i) the dispute must be resolved in accordance with the procedure set out in clause 3(j); and
(ii) the compensation (if any) payable by the State to the Company in respect of the relevant Trigger Event will be the amount (if any) determined in accordance with clause 3(j).
(j) If the State issues a Compensation Dispute Notice in accordance with clause 3(f)(iii) or 3(g)(ii)(B) then the following procedure will apply:
(i) Within 20 Business Days of the State giving the Compensation Dispute Notice ("Negotiation Period"), the Senior Management Representative from each of the parties must meet at least once to attempt to resolve the dispute ("Dispute").
(ii) The Senior Management Representatives may meet more than once to resolve the Dispute. The Senior Management Representatives may meet in person, via telephone, videoconference or any other agreed means of instantaneous communication to effect the meeting.
(iii) Each party warrants that its Senior Management Representative has full authority to resolve any dispute as to the compensation payable.
(iv) If the Senior Management Representatives are unable to resolve the Dispute during the Negotiation Period, the State must nominate an Expert by notice in writing to the Company within 30 Business Days from the date of expiration of the Negotiation Period ("Nomination Period").
(v) Within the Nomination Period, the Company must also nominate an Expert by notice in writing to the State.
(vi) Within 30 Business Days of the date of expiration of the Nomination Period, the Experts so nominated will endeavour jointly to determine the compensation (if any) payable in accordance with clause 3(j)(vii). The Experts must give to the parties any joint determination and their reasons in writing within that 30 Business Day period. If the experts jointly determine that compensation is payable, the written determination must set out the Experts' calculation of each component of the formula.
(vii) In determining the compensation (if any) payable, each Expert must:
(A) act as expert and not as arbitrator;
(B) have regard to the provisions of this Agreement and apply the principles set out in Annexure 1; and
(C) have regard to any written submissions made to it by the State and the Company, and either Expert may make such enquiries as it considers in its absolute discretion to be necessary or desirable.
(viii) If either the Company or the State has failed to nominate an Expert within the Nomination Period, the determination of the compensation (if any) payable will be made within 30 Business Days of the date of expiration of the Nomination Period by the sole Expert nominated by either the Company or the State as the case may be.
(ix) If the Experts are unable jointly to determine the Dispute within the period of 30 Business Days referred to in clause 3(j)(vi), then the Company and the State jointly must, within 2 Business Days of the expiry of that period, request the Law Institute of Victoria President to nominate, within 10 Business Days of the date of the request, another Expert ("Umpire") to make a final determination of the compensation (if any) payable in accordance with the following provisions of this clause 3(j).
The Umpire must give its determination and its reasons in writing within 30 Business Days of its appointment. If the Umpire determines that compensation is payable, the written determination must set out the Umpire's calculation of each component of the formula.
(x) Any determination of the Experts (or, in the circumstances contemplated by clause 3(j)(viii), the sole Expert) or the Umpire in accordance with this Annexure 1 will be final and binding on the parties in respect of the relevant Trigger Event. However, within 20 Business Days of the determination being notified to the Parties, either the Company or the State is entitled to make an application to the court for a declaration that, in reaching the determination, the Experts, the sole Expert or the Umpire, as the case may be, made an error in relation to a question of law.
(xi) If the court issues a declaration to the effect that an error has been made in relation to the relevant question of law, whichever of the Company or the State sought the declaration must immediately inform the Experts, the sole Expert or the Umpire, as the case may be, provide them with a copy of the declaration and request that they issue an updated determination, together with reasons, in writing within 20 Business Days of receiving a copy of the declaration. That updated determination will be final and binding on the parties in respect of the relevant Trigger Event.
If the updated determination is to be issued by the Experts and they are unable to agree on the determination within the period of 20 Business Days referred to above, the matter must be referred to the Umpire in accordance with clause 3(j)(ix).
(xii) If the court issues a declaration to the effect that no error has been made in relation to the relevant question of law, the original determination of the Experts, the sole Expert or the Umpire, as the case may be, will be final and binding on the parties in respect of the relevant Trigger Event.
(xiii) To the extent of any inconsistency between the terms of this Agreement and the applicable rules for expert determination published by the Law Institute of Victoria, the terms of this Agreement prevail.
(xiv) In determining the compensation (if any) payable, the Umpire:
(A) must act as expert and not as arbitrator;
(B) must have regard to the provisions of this Agreement and apply the principles set out in Annexure 1;
(C) must have due regard to any evidence submitted by the Experts appointed in accordance with clauses 3(j)(iv) and (v) as to their respective assessments of the compensation (if any) payable;
(D) must act fairly and impartially as between the parties, giving each party a reasonable opportunity to:
(I) put its case and deal with the case of the opposing Party; and
(II) make submissions on the conduct of the expert determination;
(E) subject to clauses 3(j)(xiv)(A) to 3(j)(xiv)(D), inclusive, may:
(I) proceed in any manner he or she thinks fit;
(II) conduct any investigation which he or she considers necessary to resolve the Dispute;
(III) examine such documents, and interview such persons, as he or she may require and may make such directions for the conduct of the determination as he or she considers necessary;
(F) must within 3 Business Days of nomination, disclose to the parties any:
(I) interest he or she has in the outcome of the determination;
(II) conflict of interest;
(III) conflict of duty;
(IV) personal relationship that the Umpire has with either party, or either party's representatives or Experts; and
(V) other fact, matter or thing which a reasonable person may regard as giving rise to the possibility of bias; and
within 5 Business Days of receipt of any disclosure referred to in this paragraph (F) a party may object to the Umpire. If so, the Company and the State jointly must, within a further 2 Business Days, request the Law Institute of Victoria President to nominate, within 10 Business Days of the date of the request, a replacement Umpire for the purpose of this clause 3; and
(G) must not communicate with one party without the knowledge of the other party.
(xv) Each party must do all things reasonably necessary for the proper, expeditious and cost-effective conduct of the expert determination process contemplated by this clause 3**.**
(k) Within 20 Business Days of the amount of compensation that is payable by the State to the Company being agreed or determined in accordance with this clause 3, the State must pay that amount to the Company in cleared funds.
(l) Except as contemplated in clause 3(m), each party must bear its own costs in complying with this clause 3.
(m) (i) Subject to paragraph (ii), the aggregate costs of the Experts (and the Umpire, if applicable) will be borne equally by the parties.
(ii) If the amount of compensation that is payable by the State is determined by an Expert, Experts or Umpire and is:
(A) more than 10% below the amount set out in the Company's Compensation Notice under clause 3(e), the Company will bear the costs of the Expert, Experts and Umpire, as applicable; or
(B) more than 10% above the amount set out in the Company's Compensation Notice under clause 3(e), the State will bear the costs of the Expert, Experts and Umpire, as applicable.
(n) Nothing in this clause 3 will prevent a party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute as to the compensation payable.
(o) Time is of the essence of the parties' obligations under this clause 3.
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 6 October 1993
Legislative Council: 11 November 1993
The long title for the Bill for this Act was "A Bill to ratify the management agreement for the Melbourne Casino, to amend the Casino Control Act 1991 and the Gaming Machine Control Act 1991 and for other purposes.".
The Casino (Management Agreement) Act 1993 was assented to on 16 November 1993 and came into operation on 16 November 1993: section 2.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Casino (Management Agreement) Act 1993 by Acts and subordinate instruments.
| Assent Date: | 2.6.94 |
| Commencement Date: | S. 230 on 3.6.94: Special Gazette (No. 31) 2.6.94 p. 1 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 14.6.95 |
| Commencement Date: | S. 8 on 14.6.95: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 2.7.96 |
| Commencement Date: | Pt 7 on 2.7.96: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 6.5.97 |
| Commencement Date: | S. 118 on 31.3.98: s. 2(4) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 24.11.98 |
| Commencement Date: | Ss 5–9 on 24.11.98: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
National Taxation Reform (Further Consequential Provisions) Act 2000, No. 24/2000
| Assent Date: | 16.5.00 |
| Commencement Date: | Ss 6–9 on 17.5.00: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 16.12.03 |
| Commencement Date: | S. 12.1.3(Sch. 6 items 2.1–2.6) on 1.7.04: Government Gazette 1.7.04 p. 1843 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Casino Control (Amendment) Act 2005, No. 47/2005
| Assent Date: | 24.8.05 |
| Commencement Date: | Ss 8–12 on 25.8.05: s. 2 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 15.12.09 |
| Commencement Date: | Ss 5–8 on 16.12.09: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Victorian Commission for Gambling and Liquor Regulation Act 2011, No. 58/2011
| Assent Date: | 2.11.11 |
| Commencement Date: | Ss 99–101 on 6.2.12: Special Gazette (No. 423) 21.12.11 p. 4 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Statute Law Revision Act 2013, No. 70/2013
| Assent Date: | 19.11.13 |
| Commencement Date: | S. 3(Sch. 1 item 5) on 1.12.13: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Casino and Gambling Legislation Amendment Act 2014, No. 73/2014
| Assent Date: | 21.10.14 |
| Commencement Date: | Ss 5–8 on 22.10.14: s. 2 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Casino and Gambling Legislation Amendment Act 2021, No. 54/2021
| Assent Date: | 14.12.21 |
| Commencement Date: | Ss 29–31, 40 on 1.1.22: Special Gazette (No. 733) 21.12.21 p. 1 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Casino Legislation Amendment (Royal Commission Implementation and Other Matters) Act 2022, No. 42/2022
| Assent Date: | 27.9.22 |
| Commencement Date: | Ss 48, 50 on 28.9.22: s. 2(1); s. 49 on 1.8.23: s. 2(3) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Gambling Taxation Act 2023, No. 14/2023
| Assent Date: | 6.6.23 |
| Commencement Date: | Ss 64–66 on 1.7.23: s. 2 |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
| Assent Date: | 8.11.23 |
| Commencement Date: | S. 27 on 9.11.23: s. 2(1) |
| Current State: | This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993 |
Losses carried forward in accordance with s. 126-15 of the GST Act in respect of the activity of all players (CBPs and OPs). ↑
To account for adjustments as defined in s. 126-5(2) of the GST Act (please indicate the direction of the adjustment with a plus or minus sign). Please itemise and explain all of the components of this adjustment in the space provided at item 28. Any new items required as the result of future changes to the GST Act that cannot be elsewhere included, could also be included here. ↑
Adjustments required under clauses 22C.3 and 22C.5. ↑
Should be Item 17 (GST for all players) less Item 18 (losses carried forward from prior period) plus Item 19 (Adjustments). ↑