Schedule 4—Third deed of variation to the management agreement
DEED dated 3 June 1996.
BETWEEN THE HONOURABLE ROGER M. HALLAM 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 LIMITED ACN 006 973 262 with its registered office at Level 1, 99 Queensbridge 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').
B. The Management Agreement was varied by:
(a) a deed of variation dated 14 November 1994 ratified by and scheduled to the Casino (Management Agreement) (Amendment) Act 1994; and
(b) a deed of variation dated 12 October 1995 ratified by and scheduled to the Casino (Management Agreement) (Further Amendment) Act 1995;
C. The parties have agreed to further vary the Management Agreement as provided in this document.
Definitions
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.
Ratification and operation of provisions
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:
(b) the changes to the Drawings referred to in clause 4 have been authorised in writing by the Minister and the period for disallowance under section 16 of the Casino (Management Agreement) Act 1993 has expired without the changes being disallowed.
2.3 Clauses 1, 2, 4, 5, 6 and 7 of this document shall come into operation on the date of this document.
2.4 If the conditions in clause 2.2 are not satisfied by 31 July 1996 or such later date agreed by the parties, this document other than clause 5 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.
Variation of Management Agreement
The State and the Company agree to vary the Management Agreement in the following manner:
(a) the definition of 'Melbourne Casino Complex (excluding the Southern Tower of the Hotel)' in clause 2 shall be deleted;
(b) the following definitions shall be included in clause 2 in their appropriate alphabetical order:
'Lyric Theatre' means a theatre with at least 1800 seats which is capable of accomodating major theatrical productions, to be constructed by the Company on the Site in accordance with the Drawings and this document;
'Melbourne Casino Complex (excluding the Lyric Theatre and the Southern Tower of the Hotel)' means all of the Melbourne Casino Complex except the Lyric Theatre and the Southern Tower of the Hotel;
(c) the definition of 'Completion' in clause 2 shall be varied by:
(ii) adding the words 'the Lyric Theatre,' after the words 'the Training and Human Resource Centre,';
(d) the definition of 'Completion Date' in clause 2 shall be varied by:
(i) adding the words 'the Lyric Theatre and' after the word 'excluding' in paragraph (d); and
(ii) deleting paragraph (e) and substituting:
'(e) in relation to the Lyric Theatre and the Southern Tower of the Hotel, 30 November 1999 or such later date as is agreed by the State's Nominated Representative;'
(e) the definition of 'Completion Standards' shall be varied by:
(ii) adding the words 'the Lyric Theatre,' after the words 'the Training and Human Resource Centre,';
(f) the definition of 'Southern Tower of the Hotel' in clause 2 shall be deleted and the following substituted:
'Southern Tower of the Hotel' means the building to be constructed by the Company comprising not less than 465 hotel rooms and to be located on the Site;';
(g) the definition of 'Training and Human Resource Centre' in clause 2 shall be deleted and the following substituted:
''Training and Human Resource Centre' means the staff facilities (including training and administration) to be incorporated within the building which incorporates the car park referred to in clause 10.3.';
(h) the definition of 'Site' in clause 2 shall be varied by deleting 'F3263, V5867 F3264 and V6087 F365 together with' and substituting the following:
'F263, V5867 F264 and V6087 F365, together with such other land within the area bounded by Queensbridge Street, City Road, Clarendon Street and Whiteman Street which the Company shall designate, with the Minister's approval, as available for the construction of any part of the Melbourne Casino Complex and';
(i) clause 10.1 shall be varied by adding the words 'the Lyric Theatre and' after:
(i) the word 'excluding' in paragraph (c); and
(ii) the word 'Complete' in paragraph (d);
(j) clause 10.3 shall be varied by:
(i) adding the words 'in accordance with the Drawings and this document' after the word 'construct' in the first sentence; and
(ii) deleting the words 'of 7 levels above ground' in the first sentence;
(k) clause 10.4 shall be varied:
(i) by adding the words ',the Lyric Theatre' after the words 'Training and Human Resource Centre' wherever appearing; and
(ii) by adding the words '(including approval of drawings under section 16 of the Casino (Management Agreement) Act 1993)' after the word 'Minister';
(l) clause 15.1 shall be varied by:
(ii) adding the words 'the Lyric Theatre,' before the second reference to 'the Southern Tower of the Hotel';
(m) the following clause shall be added as clause 15.11:
'15.11 Notwithstanding clause 25.2, the obligation of the Company to Complete the Lyric Theatre in accordance with this document is not a condition of the Casino Licence and a breach of such obligation does not enable the Authority to serve a notice on the Company pursuant to section 20(2) of the Casino Control Act.';
(n) clause 16.1 shall be varied by adding the words 'the Lyric Theatre and' after the word 'excluding';
(o) clause 16.3 shall be varied by adding the word 'the Lyric Theatre and' after the word 'excluding';
(p) clause 17.1 shall be varied by:
(i) adding the words 'the Lyric Theatre and' after the word 'excluding' in paragraph (c);
(ii) deleting the comma at the end of paragraph (c) and substituting '; and'; and
(iii) adding the following as paragraph (d):
'(d) the Lyric Theatre and the Southern Tower of the Hotel by the Completion Date,';
(q) clause 17.2 shall be varied by:
(i) adding the words 'the Lyric Theatre and' after the word 'excluding' wherever appearing;
(ii) deleting 'or' after paragraph (b);
(iii) deleting the full stop at the end of paragraph (c) and substituting '; or'; and
(iv) adding the following as paragraph (d):
'(d) in the event that both the Lyric Theatre and the Southern Tower of the Hotel are 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 both the Lyric Theatre and the Southern Tower of the Hotel are Complete and open for business.'; and
(r) clause 17.3 shall be varied in paragraph (a) by:
(ii) adding the words 'or the Lyric Theatre and the Southern Tower of the Hotel' after the words 'Southern Tower of the Hotel)'.
Drawings
The parties acknowledge that the Company has submitted to the Minister for authorisation by the Minister and tabling in Parliament in accordance with the Casino (ManagementAgreement) Act 1993 drawings incorporating changes to the Drawings of the Melbourne Casino Complex.
Force Majeure Event
The Company acknowledges that none of the negotiation, preparation and execution of this document, its ratification under clause 2, the approval of changes in the Drawings under clause 4 and their tabling in Parliament in accordance with the Casino (Management Agreement) Act 1993 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.
Confirmation of other terms
6.1 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.
(a) 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
(b) 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.
General provisions
Clauses 33 and 35 to 40 (inclusive) of the Management Agreement apply to this document as if expressly included in this document.
EXECUTED as a deed.
| SIGNED by THE HONOURABLE ROGER M. HALLAM MLC for and on behalf of the State of Victoria in the presence of | ⎫ ⎬ ⎪ ⎭ | ROGER M HALLAM |
TIMOTHY P. HENDERSignature of witness
| THE COMMON SEAL of CROWN LIMITED is affixed in accordance with its articles of association in the presence of | ⎫ ⎬ ⎪ ⎭ | L.S. |