Schedule 11—Tenth deed of variation to the management agreement
DEED dated 3 September 2014
BETWEEN:
THE HONOURABLE EDWARD O'DONOHUE MLC, the Minister of the Crown for the time being administering the Casino Control Act1991 acting for and on behalf of the State of Victoria ("State")
AND
CROWN MELBOURNE LIMITED ACN 006 973 262 with its registered office at 8 Whiteman Street, Southbank, 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").
(c) a deed of variation dated 3 June 1996 ratified by the Gaming Acts (Amendment) Act 1996 and inserted as Schedule 4 to the Casino (Management Agreement) Act 1993;
(d) a deed of variation dated 7 November 1996 ratified by the Casino (Management Agreement) (Amendment) Act 1996 and inserted as Schedule 5 to the Casino (Management Agreement) Act 1993;
(e) a deed of variation dated 1 October 1998 ratified by the Gaming Acts (Further Amendment) Act 1998 and inserted as Schedule 6 to the Casino (Management Agreement) Act 1993;
(f) a deed of variation dated 3 April 2000 ratified by the National Taxation Reform (Further Consequential Provisions) Act 2000 and inserted as Schedule 7 to the Casino (Management Agreement) Act 1993;
(g) a deed of variation dated 7 May 2002 ratified by the Casino (Management Agreement) (Amendment) Act 2002 and inserted as Schedule 8 to the Casino (Management Agreement) Act1993;
(h) a deed of variation dated 8 July 2005 ratified by the Casino Control (Amendment) Act 2005 and inserted as Schedule 9 to the Casino (Management Agreement) Act 1993;
(i) a deed of variation dated 4 June 2009 ratified by the Casino (Management Agreement (Amendment) Act1994 and inserted in Schedule 10 to the Casino (Management Agreement) Act1993.
Unless the context otherwise requires or the contrary intention appears, terms defined in the Casino Control Act 1991 or the Management Agreement have the same meaning when used in this Deed.
2.1 A Minister of the State must as soon as reasonably practicable after the execution of this Deed introduce and sponsor a Bill in the Parliament of Victoria to:
(a) ratify this Deed;
(b) amend the Casino Control Act 1991 to permit the increase in the maximum number of gaming machines available for gaming at any time while the Melbourne Casino is open for business as set out in clause 2.2(b)(ii) of this document;
(c) extend the date upon which the Casino Licence ceases to have effect to 18 November 2050; and
(d) make ancillary amendments to other legislation.
2.2 This Deed (other than clauses 1, 2, 5 and 7 which are effective on and from the date of this Deed) shall come into operation once all the following have occurred:
(b) the following amendments to the Casino Licence take effect:
(i) amendments to clause 8 (a) of the Casino Licence to:
(A) increase the maximum number of gaming tables in operation and available for the playing of Table Games at any time while the Melbourne Casino is open for business from 400 to 440; and
(B) increase the number of stations connected to any Fully Automated Table Games from 200 to 250 stations in operation and available for gaming at any time while the Melbourne Casino is open for business;
(ii) an amendment to clause 8(c) of the Casino Licence to increase the maximum number of gaming machines available for gaming at any time while the Melbourne Casino is open for business from 2,500 to 2,628; and
(c) an amended Casino Licence is provided to the Company that reflects the extension of the Casino Licence referred to in clause 2.1 (c),
(the date on which the last of those to occur being the "Operative Date").
3.1 The Management Agreement is varied from the Operative Date so that:
(a) all references to "Crown Casino Ltd" are replaced by references to "Crown Melbourne Ltd";
(b) all references to the Gaming Machine Control Act1991 are replaced by references to the Gambling Regulation Act2003;
(c) in clause 2:
(i) the definition of "Authority" is replaced by the following definition:
"Authority" means the Victorian Commission for Gambling and Liquor Regulation;
(ii) the definition of "Casino Licence" is amended to include the words "as varied from time to time" after the words "Casino Agreement";
(iii) in clause 2 the following new definitions are inserted in alphabetical order:
"Tenth Deed of Variation" means the Tenth Deed of Variation to the Management Agreement between the State and the Company dated on or about 1 September 2014;
"Tenth Variation Commencement Date" has the same meaning as the term "Operative Date" in the Tenth Deed of Variation to the Management Agreement;
(d) new clauses 21A, 21B and 21C are inserted as follows:
"21A Further payments
The Company will make the following payments to the State:
(a) $250,000,000, payable within seven (7) days after the Tenth Variation Commencement Date; and
(b) $250,000,000, payable on 1 July 2033.
21B Contingent payments
(a) In addition to the payments referred to in clause 21A, the Company will pay to the State the following additional amounts on 1 September 2022:
(i) if the Compound Annual Growth Rate of Normalised Gaming Revenue from the Financial Year ending 30 June 2014 to the Financial Year ending 30 June 2022 exceeds 4.0%, then the Company will pay to the State an amount of $100,000,000; and
(ii) if the Compound Annual Growth Rate of Normalised Gaming Revenue from the Financial Year ending 30 June 2014 to the Financial Year ending 30 June 2022 exceeds 4.7%, then the Company will pay to the State, in addition to the payment referred to in sub-paragraph (a)(i), a further amount of $100,000,000.
(b) In this clause 21B:
(i) "Compound Annual Growth Rate" is calculated as follows (and expressed as a percentage):
(Ending Value/Beginning Value)1/8 - 1
| Ending Value | is the Normalised Gaming Revenue for the Financial Year ending 30 June 2022; and |
| Beginning Value | is the Normalised Gaming Revenue for the Financial Year ending 30 June 2014; |
(ii) "Normalised Gaming Revenue" means Gross Gaming Revenue, plus Normalised Revenue from Commission Based Play; and
(iii) "Normalised Revenue from Commission Based Play" means the total turnover from Commission Based Players, multiplied by 1.35%.
(c) The State may request details from the Company of the total turnover from Commission Based Players at any time (but no more frequently than twice in any one year). The Company must provide such details promptly following the request.
21C Interest
21C.1 The amounts referred to in clauses 21A and 21B must be paid in same day settlement funds before 2.00pm on the due date.
21C.2 If the Company fails to pay any amount due under clause 21A or clause 21B by the due date, without prejudice to any other right or remedy arising because of that failure, the Company must pay to the State interest (calculated daily) on the amount in default (including accrued interest) at the Default Rate for the period from the due date until the amount due and all interest payable has been paid.”
(e) a new clause 22.10 is inserted as follows:
"22.10 (a) Gross Gaming Revenue and Commission Based Players' Gaming Revenue from New Gaming Product must be separately accounted for by the Company and verified by the Authority.
(b) If casino tax paid to the State in accordance with clauses 22.1(b)(iii), 22.1(f) and 22A.1 in respect of Gross Gaming Revenue and Commission Based Players' Gaming Revenue from New Gaming Product in any Financial Year during the Guarantee Period is less than $35,000,000, the Company must pay to the State within 60 days following the end of that Financial Year, as additional casino tax, an amount equal to $35,000,000 less the casino tax paid in respect of Gross Gaming Revenue and Commission Based Players' Gaming Revenue from New Gaming Product for that Financial Year.
(c) New Gaming Product will be deployed throughout the Guarantee Period at the Melbourne Casino on the following basis:
(i) no less than 80 per cent of the new gaming machines will be placed in Non-VIP areas and no less than 75 per cent of those new gaming machines placed in Non-VIP areas will be operated in Restricted Mode only;
(ii) no less than 75 per cent of the new Gaming Tables will be placed in Non‑VIP areas and all of the remaining new Gaming Tables will be placed in Non-smoking areas within the VIP areas; and
(iii) 100 per cent of the additional stations connected to Fully Automated Table Games will be placed in Non-VIP areas.
In this clause 22.10:
"Fully Automated Table Game" has the same meaning as in the Casino Licence;
"Gaming Table" has the same meaning as in the Casino Licence;
“Guarantee Period" means the period from 1 July 2015 to 30 June 2021;
"New Gaming Product" means the new gaming products permitted to be installed as a consequence of the amendments to the Casino Licence referred to in clause 2.2(b) of the Tenth Deed of Variation and does not include any gaming product installed at the Melbourne Casino as at the Tenth Variation Commencement Date;
"Non-smoking areas" means all areas of the Melbourne Casino except those areas declared pursuant to section 3E of the Tobacco Act 1987 as smoking areas;
"Non-VIP areas" means all areas of the Melbourne Casino except VIP areas;
"Restricted Mode" means the usual mode of operation of a gaming machine that is not operating in Unrestricted Mode;
"Semi Automated Table Game" has the same meaning as in the Casino Licence;
“Unrestricted Mode” means the mode of operation of a gaming machine operated at the Melbourne Casino within “Specified Areas” pursuant to the notice issued by the Authority dated 17 August 2012 and permitted pursuant to Ministerial Directions dated 17 August 2012 issued under section 3.2.3 (1) of the Gambling Regulation Act 2003;
“VIP areas” means those areas in the Melbourne Casino reserved for the use of Commission Based Players and certain designated members of the Company’s complex wide loyalty program and guests and comprising as at the Tenth Variation Commencement Date those areas known as “Teak Room”, “Mahogany Room”, “Riverside Slots” and the private salons on levels 29 and 39 of “Crown Towers”.”
(f) clauses 22A.4 to 22A.9 (inclusive) are deleted in their entirety;
(g) a new Part 5A is inserted as follows:
"PART 5A – REGULATORY CERTAINTY
24A.1 In this clause 24A and Annexure 1 the following terms have the meanings indicated:
"Expert" means a partner or director of an independent, internationally recognised chartered accounting firm or investment bank (or other professional organisation agreed by the parties) which is not the then current auditor of the Company or the Authority or (unless otherwise agreed) has not been during the past twelve month period an adviser to Crown, the Authority, the Department of Treasury and Finance or the Department of Justice (in relation to gambling matters) and who has experience of the gaming industry;
"Senior Management Representative" means:
(a) in the case of the State, the representative from time to time nominated by the Minister of the Crown for the time being administering the Casino Control Act; and
(b) in the case of the Company, the Chief Executive Officer of the Company, or if that position does not exist, a position of equivalent seniority or higher;
"Trigger Event" has the meaning given in section 1 of Annexure 1.
24A.2 (a) The State or the Authority must not without the Company's prior written consent, take any action or series of actions that has or will have the effect of:
(i) cancelling or varying the Casino Licence, other than the revocation, termination, suspension or variation by the Authority of the Casino Licence in accordance with section 20 of the Casino Control Act (except where the Authority is relying on section 20(1)(e) of the Casino Control Act as a ground for disciplinary action);
(ii) increasing the then current rates of casino tax (or any part of it) such that the increased rate exceeds the rate of that casino tax (or part of it) set out in this Agreement as at the date of the Tenth Deed of Variation or such higher rate as may be agreed by the parties from time to time;
(iii) imposing any new tax or increasing any tax (including levies or similarly described payments) on the Company, except where such new or increased tax:
(A) applies generally to Victorian businesses or property owners or occupiers;
(B) applies generally to businesses or property owners or occupiers in the Melbourne CBD or a similar geographic location (but is not specifically directed at the Company or the Melbourne Casino Complex); or
(C) applies generally to businesses in the hospitality industry (including non-gaming businesses).
(b) The State acknowledges that the Company will suffer loss and damage in the event of breach of paragraph (a) and the State and the Company acknowledge that the ordinary principles for breach of contract apply.
24A.3 The State and the Company agree that certain other actions or series of actions by the State or the Authority may give rise to compensation being payable by the State to the Company.
24A.4 The actions or series of actions by the State and/or the Authority referred to in clause 24A.3 and the principles and process for determining the amount of compensation payable (if any) are set out in Annexure 1.
24A.5 If any variation of the Casino Licence constitutes a Trigger Event, the Company will not be entitled to bring or maintain a claim for breach of clause 24A.2 in respect of that variation.
24A.6 (a) For the avoidance of doubt, for the purposes of this clause 24A and Annexure 1, the State does not include the Commonwealth, local government or any Commonwealth or local government authority or body.
(b) For the avoidance of doubt, no damages for breach of clause 24A.2 or compensation under clause 24A.3 and Annexure 1 will be due or payable by the State or the Authority with respect to:
(i) the granting of one or more casino licences or similar authorities to any person or persons other than the Company or the granting of licences or authorities permitting the operation or playing of gaming product to any person or persons other than the Company; or
(ii) action or actions necessary to put in place the Victorian government’s current state-wide voluntary pre-commitment system, including the prohibition of any alternative limit setting system (which, for the avoidance of doubt, includes the Company’s existing loss and time limit setting system known as "Play Safe") from 1 December 2015.”
(i) A new Annexure 1 is inserted in the form of Annexure 1 to this Deed.
(j) sub-paragraphs 32.1(b)(i) and (ii) are deleted in their entirety and replaced with the following:
"(i) in the case of the State-
The Secretary to the Department of Treasury and Finance
1 Treasury Place
Facsimile: (03) 9651 6228
with a copy to the Authority-
Chairman
Victorian Commission for Gambling and Liquor Regulation