Exhibit 10.1
TABCORP HOLDINGS LIMITED
and
XXXXXX'X ENTERTAINMENT, INC.
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MASTER AGREEMENT
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Xxxxxx Xxxxxxxx & Hedderwicks
Melbourne
Tel 0000 0000
TABLE OF CONTENTS
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1. INTERPRETATION; ANNOUNCEMENT; PAYMENT
2. ENTRY INTO SHARE SALE AGREEMENT (STAR CITY)
3. ENTRY INTO SHARE SALE AGREEMENT (SHOWBOAT)
4. ENTRY INTO MANAGEMENT SALE AGREEMENT
5. ENTRY INTO THE CASINO SERVICES AGREEMENT
6. CCA APPROVAL
7. SALE OF 5%
8. WARRANTIES - H
9. OBLIGATIONS OF H
10. WARRANTIES - T
11. TERMINATION BY T
12. TERMINATION BY H
13. TERMINATION BY PARTIES
14. SUBSTITUTION RIGHT
15. COSTS
16. MERGER
17. ASSIGNMENT
18. FURTHER ASSURANCES
19. ENTIRE AGREEMENT
20. WAIVER
21. NOTICES
22. GOVERNING LAW
23. COUNTERPARTS
SCHEDULE 1 - Warranties
ATTACHMENTS
A. Share Sale Agreement (Star City)
B. Share Sale Agreement (Showboat)
C. Management Sale Agreement
D. Casino Services Agreement
E. Share Sale Agreement (5%)
MASTER AGREEMENT
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THIS AGREEMENT is made on 15 April 1999 between:
1. TABCORP HOLDINGS LIMITED (ACN 063 780 709) (T); and
2. XXXXXX'X ENTERTAINMENT, INC. (H).
RECITALS
A. H owns all of the issued shares in XXX.
B. XXX owns, amongst other things:
(a) shares in Star City;
(b) shares in SCM; and
(c) through its interest in the Showboat Leighton
Partnership, an interest in the Management Agreement.
C. It is proposed that, subject to the satisfaction of certain
conditions precedent, the parties will enter into various agreements
contemplated by this Agreement.
IT IS AGREED as follows.
1. INTERPRETATION; ANNOUNCEMENT; PAYMENT
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
AUTHORISATION means:
(a) any consent, registration, filing, agreement,
notarisation, certificate, licence, approval, permit,
authority or exemption from, by or with a Governmental
Agency; and
(b) in relation to anything which may be forbidden or
restricted wholly or partly by law or otherwise if a
Governmental Agency intervenes or acts in any way within
a specified period after lodgment, registration or other
notification of anything, the expiration of that period
without intervention by that Governmental Agency.
CASINO CONTROL ACT means the Casino Control Xxx 0000 of New South
Wales.
CASINO CONTROL AUTHORITY means the New South Wales Casino Control
Authority established by the Casino Control Act.
CASINO MANAGEMENT RIGHTS means the rights and obligations of SCM and
the Showboat Leighton Partnership as constituted by the Management
Agreement.
CASINO SERVICES AGREEMENT means the agreement in the form attached as
Attachment D being an agreement relating to the provision by H of
certain management and support services in relation to the Star City
Casino.
CORPORATIONS LAW means the Corporations Law of Australia.
FINAL DATE means 31 December 1999 or such other date as the parties
may agree in writing.
GOVERNMENTAL AGENCY means the government of any country or any state,
territory, municipality or other political subdivision of a country,
and any minister, administrative or judicial body, department,
commission, authority, instrumentality, tribunal, agency or entity of
any such government.
HOLDING COMPANY has the meaning given to it in the Corporations Law.
LEIGHTON means Leighton Properties Pty Limited (ACN 000 000 000).
LIABILITIES means claims, losses, liabilities, costs or expenses of
any kind, including those which are prospective or contingent and
those the amount of which is not ascertained or ascertainable.
MANAGEMENT AGREEMENT means the Casino Complex Management Agreement of
that title dated 21 April 1994 between Sydney Casino Properties Pty
Limited and Sydney Harbour Casino Pty Limited (as Owner), XXX and
Leighton as the Showboat Leighton Partnership, and SCM as Manager.
MANAGEMENT SALE AGREEMENT means the agreement in the form attached as
Attachment C being an agreement providing for the sale and purchase
of the interest of XXX in the Showboat Leighton Partnership and the
shares of XXX in SCM.
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RELATED BODY CORPORATE has the meaning given to it in the
Corporations Law.
RELEVANT DATE means the later of:
(a) the date of completion under the Share Sale Agreement (Star
City); and
(b) the date of completion under the Share Sale Agreement
(Showboat) or, if T or H has given notice in accordance with
Clause 4.1, the date of completion under the Management Sale
Agreement.
XXX means Showboat Australia Pty Limited (ACN 061 299 625).
SCM means Sydney Casino Management Pty Ltd (ACN 060 462 053).
SHARE SALE AGREEMENT (SHOWBOAT) means the agreement in the form
attached as Attachment B being an agreement providing for the sale
and purchase of the shares in XXX.
SHARE SALE AGREEMENT (STAR CITY) means the agreement in the form
attached as Attachment A being an agreement providing for the sale
and purchase of certain of the voting shares in Star City held by XXX
(being ordinary shares in the capital of Star City) and certain
options over unissued shares of Star City held by XXX.
SHARE SALE AGREEMENT (5%) means the agreement in the form attached as
Attachment E providing for the sale and purchase of 5% of the voting
shares in Star City held by XXX (being ordinary shares in the capital
of Star City).
SHOWBOAT LEIGHTON PARTNERSHIP means the Partnership constituted by
the Showboat Leighton Partnership Agreement.
SHOWBOAT LEIGHTON PARTNERSHIP AGREEMENT means the partnership
agreement between XXX and Xxxxxxxx which has a commencement date of
22 April 1994.
STAR CITY means Star City Holdings Limited (ACN 000 000 000).
STAR CITY CASINO means the casino complex owned (whether directly or
indirectly) by Star City.
SUBSIDIARY has the meaning given to it in the Corporations Law.
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TAKEOVER means a take-over scheme under the Corporations Law which is
subject only to a condition to the effect of Clause 6.1 of this
Agreement and a condition as to prescribed occurrences (within the
meaning of the Corporations Law).
TAX means any income tax, capital gains tax, recoupment tax, land
tax, sales tax, payroll tax, fringe benefit tax, group tax,
withholding tax, municipal rates, stamp duties and other charges,
levies and impositions, assessed or charged, or assessable or
chargeable, by or payable to any governmental taxation or excise
authority and includes any additional tax, interest, penalty, charge,
fee or other amount imposed or made on or in relation to a failure to
file a relevant return or to pay a relevant tax.
TAX ACT means the Income Tax Assessment Xxx 0000 or the Income Tax
Assessment Xxx 0000 or both the Income Tax Assessment Xxx 0000 and
the Income Tax Assessment Xxx 0000, as appropriate.
WARRANTY means a warranty set out in Schedule 1.
WHOLLY OWNED SUBSIDIARY means a Subsidiary all of whose shares are
owned, directly or indirectly, by the relevant Holding Company.
$ means Australian dollars.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to an agreement or document (including,
without limitation, a reference to this Agreement) is to
the agreement or document as amended, varied,
supplemented, novated or replaced except to the extent
prohibited by this Agreement or that other agreement or
document.
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(f) A reference to legislation or to a provision of
legislation includes a modification or re-enactment of it,
a legislative provision substituted for it and a
regulation or statutory instrument issued under it.
(g) A reference to WRITING includes a facsimile transmission
and any means of reproducing words in a tangible and
permanently visible form.
1.3 Consents or Approvals
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
1.4 Announcement
As soon as practicable after entry into this Agreement T must make a
public announcement in relation to the transactions contemplated by
this Agreement and announcing its intention to undertake a Takeover
of all the voting shares in Star City. The public announcement must
be in the form agreed by the parties. Where practicable, a party will
consult with the other party in relation to the content and timing of
subsequent public announcement in relation to the transactions
contemplated by this Agreement which may materially affect the other
party's interests.
1.5 All payments required to be made under this Agreement or any of the
agreements referred to in this Agreement must be tendered in cash or
by a draft or cheque drawn by a bank as defined in the Banking Act of
the Commonwealth of Australia.
2. ENTRY INTO SHARE SALE AGREEMENT (STAR CITY)
On the condition referred to in Clause 6.1 being fulfilled:
(a) T must enter into as guarantor, and procure that one of
its Wholly Owned Subsidiaries enters into as purchaser;
and
(b) H must enter into and must procure that XXX enters into,
the Share Sale Agreement (Star City).
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3. ENTRY INTO SHARE SALE AGREEMENT (SHOWBOAT)
Unless a party has given to the other a notice in writing in
accordance with Clause 4.1, on the condition referred to in Clause
6.1 being fulfilled:
(a) T must enter into as guarantor, and procure that one of
its Wholly Owned Subsidiaries enters into as purchaser;
and
(b) H must enter into and must procure that the Wholly Owned
Subsidiaries of H which own all the issued capital of XXX
enter into,
the Share Sale Agreement (Showboat).
4. ENTRY INTO MANAGEMENT SALE AGREEMENT
4.1 At any time prior to the condition referred to in Clause 6.1 being
fulfilled, either party may give notice in writing to the other party
that the Management Sale Agreement is to be entered into. This notice
may only be given if each of T and H is satisfied at the time that
entry into and performance of the Management Sale Agreement would not
be inconsistent with the rights of Leighton under the Showboat
Leighton Partnership Agreement.
4.2 Where a party has given written notice to the other party in
accordance with Clause 4.1, on the condition referred to in Clause
6.1 being fulfilled:
(a) T must enter into as guarantor, and procure that one of
its Wholly Owned Subsidiaries enters into as purchaser;
and
(b) H must enter into and must procure that XXX enters into,
the Management Sale Agreement.
5. ENTRY INTO THE CASINO SERVICES AGREEMENT
On the day after the date on which the Share Sale Agreement (Star
City) is entered into in accordance with Clause 2, T and H must enter
into the Casino Services Agreement.
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6. CCA APPROVAL
6.1 The condition referred to in Clauses 2, 3 and 4.2 is that a notice in
writing is issued by or on behalf of the Casino Control Authority
under the Casino Control Act (without any term or condition which T
or H reasonably considers unacceptable) stating or to the effect that
all requisite approvals have been granted to:
(a) the acquisition by T of all the issued shares, and all of
the options over unissued shares, in the capital of Star
City;
(b) except where a notice is given in accordance with Clause
4.1, the entry into and performance of the Share Sale
Agreement (Showboat);
(c) where a notice in writing is given in accordance with
Clause 4.1, the entry into and performance of the
Management Sale Agreement;
(d) the entry into the Share Sale Agreement (Star City); and
(e) the entry into the Casino Services Agreement.
6.2 Each party must co-operate with the other and do all things necessary
to procure the fulfilment of the condition referred to in Clause 6.1.
7. SALE OF 5%
If either:
(a) a notice in writing is issued by or on behalf of the
Casino Control Authority under the Casino Control Act
stating or to the effect that any requisite approval as
referred to in Clause 6.1 has been refused; or
(b) this Agreement is terminated under Clause 13,
T must enter into as guarantor, and procure that one of its Wholly
Owned Subsidiaries enters into as purchaser, and H must enter, and
procure that XXX enters, into the Share Sale Agreement (5%).
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8. WARRANTIES - H
8.1 H represents and warrants to T to the best of its knowledge and
belief after making due inquiry that, except as set out in the
disclosure statement referred to in Clause 8.3, each statement in
Schedule 1 is true and correct.
8.2 H represents and warrants to T that, to the best of its actual
knowledge and belief at the date of this Agreement, without having
made any inquiries prior to the entry into this Agreement which would
be inconsistent with the confidentiality of the discussions between T
and H, each statement in Schedule 1 is true and correct.
8.3 Within 21 days of the date of this Agreement H must make all due
inquiry as to the statements in Schedule 1 and provide to T a
disclosure statement setting out in full the nature of any
qualification to each statement.
8.4 Despite any other provision of this Agreement T may terminate this
Agreement by notice in writing if any qualification contained in the
disclosure statement referred to in Clause 8.3 has a material adverse
effect on its assessment of the transactions contemplated by this
Agreement or its view of the assets the subject of this Agreement.
Any notice of termination under this clause must be given to H not
later than 14 days after receipt by T of the disclosure statement. On
termination by T under this clause neither party has any liability to
the other party.
8.5 Each of the representations and warranties given in Clauses 8.1 and
8.2::
(a) remains in full force and effect despite the completion of
any of the agreements referred to in Clauses 2, 3, 4, 5 or
7; and
(b) is given as at the date of this Agreement and as at the
time immediately before completion under each of the
agreements referred to in Clauses 2, 3 and 4.
8.6 Subject to Clauses 8.7 to 8.14, H indemnifies T against all
Liabilities (except to the extent they are due to any negligence or
default of T) that may be incurred by T as a result (directly or
indirectly) of a breach of any Warranty.
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8.7 Subject to Clause 8.6 to 8.14, H indemnifies T against any loss that
T (and, where the Share Sale Agreement (Showboat) is entered into,
XXX) may suffer by reason of any liability of XXX, the Showboat
Leighton Partnership or SCM to Tax that may be assessed against or
levied on XXX, the Showboat Leighton Partnership or SCM with respect
to:
(a) any income (including capital gains) earned or derived or
deemed to have been earned or derived by XXX, the
Showboat Leighton Partnership or SCM at any time prior to
or that may be assessed or levied as a result of any
transaction, act, matter or thing which took place or
happened on or before completion of the agreements
referred to in Clauses 2, 3 or 4;
(b) any payments made in relation to persons working for XXX,
the Showboat Leighton Partnership or SCM prior to
completion of the agreements referred to in Clauses 2, 3
and 4;
(c) any stamp duties payable in respect of any agreement,
deed, other document or transaction entered into prior to
completion of the agreements referred to in Clauses 2, 3
and 4 to which XXX or SCM is or has been a party or by
which XXX or SCM derives, has derived or will derive a
substantial benefit;
(d) any liability for Tax from which XXX, SCM, the Showboat
Leighton Partnership or H may have obtained relief
(whether by way of deferred capital gains tax or
otherwise) which has or will become payable as a result
of entry into this Agreement or the agreements referred
to in Clauses 2, 3 and 4; and
(e) any liability to any current or former Related Body
Corporate of XXX or SCM (including H) as a result of any
tax loss transferred by XXX or SCM to that current or
former Related Body Corporate prior to completion of the
agreements referred to in Clauses 2, 3 and 4 being
disallowed, in whole or in part.
Where the Share Sale Agreement (Showboat) is entered into,
indemnification of liabilities of XXX is limited to the amount of the
excess over the amount of any provision for liabilities in the
Completion Statement of Residual Management Agreement Net Assets (as
defined in the Share Sale Agreement (Showboat)).
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8.8 H is not obliged to pay any amount under Clause 8.7 unless T, within
60 days after receipt by XXX or SCM or the Showboat Leighton
Partnership of the relevant assessment from the taxation authority,
gives to H notice of the claim on the indemnity and a copy of the
relevant parts of that assessment.
8.9 Where:
(a) notice is given in accordance with Clause 8.8;
(b) H proposes to dispute on behalf of XXX, SCM, the Showboat
Leighton Partnership or T (as the case may be) the
assessment; and
(c) payment of the assessment is required in order to dispute
the assessment, H must pay the amount of the assessment.
8.10 Where:
(a) notice is given in accordance with Clause 8.8;
(b) H, within 30 days after receiving notice in accordance
with Clause 8.8, gives T notice that H proposes to dispute
on behalf of XXX, SCM or the Showboat Leighton Partnership
or T (as the case may be) the assessment; and
(c) H has complied with Clause 8.9,
T must take action as H may reasonably request (by notice to T) to
object to, appeal against or settle the assessment, if H bears all
the costs and expenses of taking such actions (including, without
limitation, the costs to T, SCM or the Showboat Leighton Partnership
or XXX (as the case may be) involved in engaging its staff in the
matter).
8.11 Where a payment has been made by H under Clause 8.9 and the matter in
respect of which the payment is made is ultimately resolved in favour
of XXX, SCM or the Showboat Leighton Partnership, T shall cause XXX,
SCM or the Showboat Leighton Partnership (as the case may be),
following receipt of the money from the relevant taxation authority,
to pay an equivalent amount to H.
8.12 H has the right to be actively involved in any Tax audit conducted by
the Australian Taxation Office concerning XXX, SCM or the Showboat
Leighton Partnership insofar as the audit relates to any period or
periods prior to the date of completion under the agreements referred
to in Clauses 2, 3 and 4.
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8.13 The liability of H to T under any of the provisions of Clause 8
includes costs and expenses and direct loss suffered by T and, should
T enter into each of the relevant agreements described in Clauses 2,
5 and either 3 or 4, includes all costs and expenses and direct loss
suffered by XXX and 85% of the costs and expenses and direct loss
suffered by SCM or the Showboat Leighton Partnership (as the case may
be), but does not include consequential damage of any kind.
8.14 T may not commence any claim for any breach of any representation or
warranty (other than in respect of Tax) more than two years after the
date of this Agreement.
8.15 No claim may be made by T for any breach of any representation or
warranty in any of the agreements referred to in this Agreement
unless the amount of the claim and all other claims for breach of
representations and warranties exceeds in the aggregate $1 million.
9. OBLIGATIONS OF H
Prior to the Relevant Date, except as expressly disclosed in this
Agreement (or contemplated by the agreements referred to in Clauses
2, 3 and 4) or consented to by T, H must ensure that:
(a) the business of XXX, SCM and the Showboat Leighton
Partnership is conducted only in the ordinary course,
which includes the maintenance of all existing insurance
policies;
(b) neither XXX nor SCM will merge or consolidate with any
other corporation or acquire all or substantially all of
the shares or the business or assets of any other person,
firm, association, corporation or business organisation,
or agree to do any of the foregoing;
(c) neither XXX nor SCM will issue or allot any shares or any
securities or loan capital convertible into shares, or
purchase, redeem, retire or acquire any such shares or
securities, or agree to do so, or sell or give any
option, right to purchase, mortgage, charge, pledge, lien
or other form of security or encumbrance over any such
shares or securities;
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(d) neither XXX nor SCM will enter into a material capital
commitment or declare itself trustee of or encumber any
assets or dispose of or deal with any assets other than in
the ordinary course of business and for full market value
or make any unusual or extraordinary expenditures;
(e) neither XXX nor SCM will enter into or terminate any
contract or commitment or engage in any activity or
transaction not in the ordinary course of business;
(f) XXX and SCM will perform their obligations under the
Management Agreement;
(g) the business of XXX and SCM is conducted so as to comply
in all material respects with all applicable laws and
regulations; and
(h) Subject to any legally binding obligations as to
confidentiality by which H is bound (and of which H gives
T reasonable details), T, its solicitors, accountants and
other authorised representatives, are given access during
normal business hours, throughout the period prior to the
Relevant Date, to all available books of account, books,
records, contracts, commitments and property of or
relating to XXX, SCM and the Showboat Leighton Partnership
which are in, or prior to the Relevant Date come into,
existence and (subject as above) H must furnish or must
procure that XXX, SCM and the Showboat Leighton
Partnership furnish to T during that period all
information concerning XXX, SCM and the Showboat Leighton
Partnership as T may reasonably request.
10. WARRANTIES - T
10.1 T represents and warrants to H that:
(a) T is not aware of any fact or circumstance which may
prejudice fulfilment of the condition contained in Clause
6.1;
(b) it will process the application to the Casino Control
Authority for the requisite approvals referred to in
Clause 6.1 as expeditiously as practicable; and
(c) it will progress the takeover as expeditiously as
practicable.
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10.2 Each of the representations and warranties given in Clause 10.1
remains in full force and effect despite the completion of any of the
agreements referred to in Clauses 2, 3, 4, 5 or 7.
10.3 Subject to Clauses 10.4 and 10.5, T indemnifies H against all
Liabilities that may be incurred by H as a result (directly or
indirectly) of a breach of any representation or warranty under
Clause 10.1.
10.4 The liability of T to H under any of the provisions of Clause 10.1
includes costs and expenses and direct loss suffered by H but does
not include consequential damage.
10.5 H may not commence any claim for any breach of any representation or
warranty more than two years after the date of this Agreement.
10.6 T must use its reasonable endeavours to assist H in resolving any
contractual or other difficulty with Commonwealth Bank arising out of
the entry into this Agreement or any of the agreements referred to in
this Agreement.
11. TERMINATION BY T
The obligation of T to enter into any of the agreements referred to
in Clauses 2, 3, 4 or 5 is subject to the conditions that:
(a) each of the Warranties is true and correct as at the date
of any obligation to enter into any of the agreements,
with the same force and effect as if made on that date.
This condition may be waived by T at its discretion but a
waiver is not a waiver of any rights or remedies that it
may have against H by reason of any breach of either
Clause 8.1 or Clause 8.2; and
(b) no disclosure or disclosures made to T under this
Agreement, singularly or in the aggregate, reveals any
circumstance which has had, has or will have a materially
adverse effect on the business of Star City, SCM or XXX.
This condition may be waived by T at its discretion.
If condition (a) above is not satisfied or the circumstance described
in condition (b) above is revealed, T may terminate this Agreement by
notice to H. If T terminates this Agreement, no party has any further
liability to any other party under this Agreement except that the
termination does not prejudice any rights or remedies that T may have
against H by reason of any breach of either Clause 8.1 or Clause 8.2.
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12. TERMINATION BY H
The obligation of H to enter into any of the agreements referred to
in Clauses 2, 3, 4 or 5 is subject to the condition that each of the
warranties in Clause 10.1 is true and correct. If this condition is
not satisfied, H may terminate this Agreement by notice to T. If H
terminates this Agreement, no party has any further liability to any
other party except that the termination does not prejudice any rights
or remedies that H may have against T by reason of any breach of
Clause 10.1.
13. TERMINATION BY PARTIES
This Agreement (other than Clause 7) may be terminated by a party
giving notice in writing to the other party if the condition referred
to in Clause 6.1 has not been fulfilled by the Final Date. If this
Agreement is terminated under this Clause, no party has any further
liability to any other party except that the termination does not
prejudice any rights or remedies a party may have by reason of any
breach of this Agreement.
14. SUBSTITUTION RIGHT
Despite anything in this Agreement, T has the right on or before the
date of the condition referred to in Clause 6.1 being fulfilled to
nominate one or more of its Wholly Owned Subsidiaries to enter into
any of the agreements referred to in Clauses 2, 3, 4, 5 and 7 in
place of T, in which case the parties must procure that the relevant
agreement is entered into with the Wholly Owned Subsidiary and T.
15. COSTS
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty
(including fines, penalties and interest) which may be payable on or
in connection with this Agreement and any instrument executed under
this Agreement must be borne by T.
16. MERGER
The rights and obligations of the parties do not merge on the
completion of any transaction contemplated by this Agreement. They
survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
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17. ASSIGNMENT
Subject to Clause 14, the rights and obligations of each party under
this Agreement are personal, and they cannot be assigned, encumbered
or otherwise dealt with and no party may attempt, or purport, to do
so without the prior written consent of all parties.
18. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with
respect to its subject matter and supersedes all prior agreements and
understandings between the parties in connection with it.
20. WAIVER
No failure to exercise nor any delay in exercising any right, power
or remedy by a party operates as a waiver. A single or partial
exercise of any right, power or remedy does not preclude any other or
further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the party granting that waiver
unless made in writing.
21. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
or made under this Agreement:
(a) must be in writing and signed by a person duly authorised
by the sender;
(b) must be delivered to the intended recipient by prepaid
post (if posted to an address in another country, by
registered airmail) or by hand or fax to the address or
fax number below or the address or fax number last
notified by the intended recipient to the sender:
(i) to T: TABCORP Holdings Limited
Xxxxx 00
0 Xxxxx Xxxxxxxx
Xxxxxxxxx XXX 0000
Attention: The Secretary
Fax No: (00) 0000 0000
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(ii) to H: Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx
XX 00000-0000
Attention: The Secretary
Fax No: (000) 000 0000
(c) is taken to be duly given or made:
(i) in the case of delivery in person, when
delivered;
(ii) in the case of delivery by post two business
days after the date of posting (if posted to an
address in the same country) or seven business
days after the date of posting (if posted to an
address in another country);
(iii) in the case of fax, on receipt by the sender of
a transmission control report from the
despatching machine showing the relevant number
of pages and the correct destination fax
machine number and indicating that the
transmission had been made without error,
but if the result is that a Notice would be taken to be
given or made on a day which is not a business day in the
place to which the Notice is sent or is later than 4.00pm
(local time) it is taken to have been duly given or made
at the commencement of business on the next business day
in that place.
22. GOVERNING LAW
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts are taken to constitute one instrument.
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SCHEDULE 1
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Warranties
Ownership of shares in Star City
1. XXX is the legal and beneficial owner of 135 million ordinary shares
in Star City. These shares are the only shares in Star City in which
XXX has a legal or beneficial interest or to which XXX is entitled
(within the meaning of the Corporations Law).
Authorisations - Star City and its Related Bodies Corporate
2. So far as H is aware, Star City and its Related Bodies Corporate have
all necessary Authorisations required by each of them to own and
operate the Star City Casino and to conduct their respective
businesses and have paid all fees due in relation to them and
complied in all material respects with all conditions under them.
3. There is no factor which might materially prejudice the continuance
or renewal of any Authorisation required under Warranty 2.
4. So far as H is aware, Star City is in compliance with its obligations
to the Casino Control Authority whether arising under the Casino
Control Act, any agreement or any other legislation and H is not
aware of any fact or circumstance which may lead to a claim that Star
City is in breach of the Casino Control Act, any agreement or other
legislation.
Authorisations - XXX and SCM
5. XXX and SCM have all material Authorisations required to conduct
their respective businesses and have paid all fees due in relation to
them and complied in all material respects with all conditions under
them.
6. There is no factor which might materially prejudice the continuance
or renewal of any Authorisation required under Warranty 5.
Management Agreement
7. Neither XXX, SCM nor the Showboat Leighton Partnership nor any other
party is in breach of the Management Agreement nor is H, after due
enquiry, aware of any impending or threatened breach by any party and
the Management Agreement is valid and legally enforceable in
accordance with its terms.
-17-
8. Without limiting Warranty 7 and except as provided for in the
Management Agreement, the Management Agreement is not subject to
termination or renegotiation or otherwise prejudicial materially as a
result of the change in ownership or control of XXX or SCM or other
action required or contemplated by this Agreement.
9. Neither the entry by H into this Agreement nor the performance by H
of any of its terms give rise to any rights or claims of any
description by Leighton or any other person on the basis of any claim
of a right of pre-emption, first right of refusal or other right in
respect of the Casino Management Rights other than as contained in
the Constitution of SCM or the Showboat Leighton Partnership
Agreement.
Showboat Leighton Partnership
10. (a) H is not, after due enquiry, aware of any actual,
impending or threatened breach of any agreement
constituting or affecting the Showboat Leighton
Partnership.
(b) Neither XXX nor SCM is a party to any other agreement or
arrangement (of whatever description and whether written,
oral or implied) that is subject to termination or
renegotiation or would otherwise be prejudiced materially
by any other party as a result solely of a change in the
ownership or control of XXX or SCM.
Casino Control Authority
11. Each of XXX, the Showboat Leighton Partnership and SCM is in
compliance with each of its obligations to the Casino Control
Authority whether arising under the Casino Control Act, any agreement
or any other legislation and neither XXX, the Showboat Leighton
Partnership or SCM is aware of any fact or circumstance which may
lead to a claim that any of them is in breach of the Casino Control
Act, any agreement or other legislation.
Proposals
12. H is not aware nor should it reasonably be aware of any proposals of
any Governmental Agency (including the Casino Control Authority) not
in the public arena, the implementation of which (whether by force of
law or voluntarily) might adversely affect Star City, XXX, SCM or the
Showboat Leighton Partnership.
-18-
Conduct of the business of XXX
13. Since the date of the last balance sheet of XXX, neither XXX nor SCM
has done or omitted to do anything which might prejudicially affect
the goodwill of XXX or SCM or the profitability of its business and
the business of XXX and SCM has been conducted only in the ordinary
course.
Legal proceedings
14. (a) No suit, cause of action, proceeding, application,
claim or investigation is current, pending, threatened or
in prospect against XXX, SCM or the Showboat Leighton
Partnership.
(b) No resolution has been passed for the winding up of XXX or
SCM.
(c) No resolution has been passed for the appointment of an
administrator to XXX or SCM.
(d) There is no unsatisfied judgment against XXX or SCM.
No default under agreements
15. To the best of H's knowledge, information and belief, no party to any
material agreement relating to the business of XXX, SCM or the
Showboat Leighton Partnership is in breach of or in default under any
of those agreements nor is H, after due enquiry, aware of any
impending or threatened breach or default by any party and all those
agreements are valid and legally enforceable in accordance with their
terms.
Compliance with Law
16. The ownership and use of SAL's and SCM's assets and the general
conduct of and practices related to the businesses of XXX and SCM
comply materially with all applicable laws.
Right to Use
17. XXX and SCM have ownership of or the continuing right to use all
assets materially necessary to enable them to continue to carry on
their respective businesses in the manner previously carried on and
there are no claims against XXX or SCM or disputes directly involving
XXX or SCM which may affect these assets and which may have a
material adverse effect on their respective businesses.
-19-
Change of control
18. Other than as contained in the Showboat Leighton Partnership
Agreement or the Constitution of SCM, neither XXX nor SCM is a party
to any material agreement relating to their respective businesses
under which any third party is entitled, as a result of a change in
ownership or control of XXX or SCM:
(a) to terminate the contract; or
(b) to impose or require the adoption of terms which are less
favourable to XXX or SCM (as the case may be) than the
current terms.
No notices
19. At the date of this Agreement neither XXX nor SCM has received any
written notice and to the knowledge of H does not know of any default
or any other matter not disclosed in this Agreement which might
affect any rights of XXX or SCM or the exercise of any rights by XXX
or SCM in respect of the Management Agreement or any other material
agreement relating to the business of XXX, SCM or the Showboat
Leighton Partnership.
Investigations or proceedings
20. Neither XXX, the Showboat Leighton Partnership nor SCM is:
(a) a party to any investigation, prosecution, litigation,
arbitration proceedings or any other form of mediation or
dispute resolution; or
(b) subject to any audit or investigation by any Governmental
Agency,
which may have a material adverse effect on the business of XXX, the
Showboat Leighton Partnership or SCM.
No litigation pending or threatened
21. No audit, investigation, prosecution, litigation, proceeding or any
other form of mediation or dispute resolution referred to in Warranty
20 is pending or threatened which reasonably could be expected to
have a material adverse effect on the business of XXX, SCM or the
Showboat Leighton Partnership nor does H know of any basis not
disclosed in this Agreement for or circumstances which are likely to
give rise to any such investigation, prosecution, litigation,
proceeding or other form of mediation or dispute resolution.
-20-
Material information
22. Prior to the entry of the parties into this Agreement H has informed
T of all information material to the making of a decision to enter
into this Agreement known to H which would ordinarily be relevant to
a party making a decision of this nature which is not subject to any
other warranty in this Agreement or any warranty in any other
agreement described in this Agreement.
EXECUTED by the parties.
TABCORP HOLDINGS LIMITED
by: /s/ Xxxx Xxxxxx
------------------------------
XXXXXX'X ENTERTAINMENT, INC.
by: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
ATTACHMENT A
--------------------------------------------------------------
Share Sale Agreement (Star City)
[H]
and
XXX
and
[T]
and
[T ENTITY]
-------------------------------------------
SHARE SALE AGREEMENT (STAR CITY)
-------------------------------------------
Xxxxxx Xxxxxxxx & Hedderwicks
Melbourne
Ref RJS:CRG
Tel 0000 0000
SHARE SALE AGREEMENT (STAR CITY)
--------------------------------------------------------------
THIS AGREEMENT is made on 1999 between:
1. [H] (H);
2. XXX (XXX);
3. [T] (T); and
4. [T ENTITY] (the PURCHASER).
RECITALS
A. XXX is a wholly owned subsidiary of H.
B. XXX is the registered and beneficial owner of the Shares and the
Options.
C. This Agreement records the terms on which H agrees to procure the
sale by XXX of, and XXX agrees to sell, the Shares and the Options to
the Purchaser.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context otherwise
requires:
CASINO CONTROL ACT means the Casino Control Xxx 0000 of New South
Wales.
CASINO CONTROL AUTHORITY means the New South Wales Casino Control
Authority established under the Casino Control Act.
COMPLETION means completion by XXX and the Purchaser of the sale and
purchase of the Shares and the Options as provided in Clause 4.
COMPLETION DATE means the fifth day after entry into this Agreement.
CORPORATIONS LAW means the Corporations Law of Australia.
MASTER AGREEMENT means the Master Agreement dated [#] 1999 between H
and T.
NOMINATED OPTIONS means that number of the Options nominated by T to
H in writing not less than seven days prior to the end of the
takeover period in respect of the Takeover referred to in Clause 1.4
of the Master Agreement or, failing nomination, all the Options.
OPTIONS means 37,400,000 options to acquire ordinary shares in the
capital of Star City exercisable between 1 July 1998 and 30 June
2000, both dates inclusive, at an exercise price of $1.15 per option.
SECURITY INTEREST means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in
any asset under a xxxx of sale, mortgage, charge, lien,
pledge, trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
SHARE SALE AGREEMENT (SHOWBOAT) has the meaning given to that term in
the Master Agreement.
SHARES means 109,450,000 fully paid ordinary shares in the capital of
Star City together with the benefit of all rights (including dividend
rights) attached or accruing to the shares as at the date of this
Agreement.
STAR CITY means Star City Holdings Limited (ACN 000 000 000).
WARRANTIES means the representations, undertakings and other
obligations of H and XXX of whatever kind contained in this Agreement
(including, without limitation, those set out in Schedule 1).
$ means Australian dollars.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
-2-
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to an agreement or document (including,
without limitation, a reference to this Agreement) is to
the agreement or document as amended, varied,
supplemented, novated or replaced except to the extent
prohibited by this Agreement or that other agreement or
document.
(f) A reference to legislation or to a provision of
legislation includes a modification or re-enactment of it,
a legislative provision substituted for it and a
regulation or statutory instrument issued under it.
(g) A reference to WRITING includes a facsimile transmission
and any means of reproducing words in a tangible and
permanently visible form.
1.3 Consents or Approvals
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
2. SALE AND PURCHASE
2.1 H agrees to procure the sale of, and XXX agrees to sell, the Shares
and the Nominated Options to the Purchaser and the Purchaser agrees
to buy the Shares and the Nominated Options from XXX, free from all
Security Interests.
2.2 The purchase price for the Shares is $1.60 per Share.
2.3 The purchase price for the Options is 45 cents per Option.
-3-
2.4 The purchase price for the Shares and the Nominated Options must be
tendered on the Completion Date either by a cheque drawn on a bank as
defined in the Banking Act of the Commonwealth of Australia or by
other method of payment agreed by the parties.
3. WARRANTIES
3.1 H and XXX each represent to the Purchaser that each statement in
Schedule 1 is true and correct.
3.2 Each Warranty:
(a) remains in full force and effect after the Completion Date
despite Completion; and
(b) is given as at the date of this Agreement and as at the
time immediately before Completion.
3.3 H indemnifies the Purchaser on demand against all losses, costs and
liabilities that may be incurred by the Purchaser as a result
(directly or indirectly) of a breach of any Warranty.
4. COMPLETION
4.1 Completion of the sale and the purchase of the Shares and the Options
will take place on the Completion Date at [INSERT TIME AND VENUE].
4.2 On the Completion Date H and XXX must ensure that transfers of the
Shares and the Options are executed and delivered to the Purchaser
and that share certificates (if any) relating to the Shares and the
Options are delivered to the Purchaser, and the Purchaser must pay
the purchase price for the Shares and the Options to XXX.
5. TERMINATION
5.1 The obligation of the Purchaser to complete the purchase of the
Shares and the Options is subject to the condition that each of the
Warranties is true and correct on the Completion Date.
5.2 The condition referred to in Clause 5.1 may be waived by the
Purchaser in its discretion but a waiver is not a waiver of any
rights or remedies it may have against H by reason of any breach of
Clause 5.1.
5.3 If the condition referred to in Clause 5.1 is not satisfied the
Purchaser may terminate this Agreement by notice to H.
-4-
6. GUARANTEE OF PURCHASER'S OBLIGATIONS BY T
T guarantees to XXX the performance by the Purchaser of each of the
Purchaser's obligations under this Agreement, and T separately must
indemnify XXX against all liabilities that may be incurred by XXX as
a result (directly or indirectly) of any failure to perform those
obligations.
7. COSTS
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty
(including fines, penalties and interest) which may be payable on or
in connection with this Agreement and any instrument executed under
this Agreement must be borne by the Purchaser.
8. MERGER
The rights and obligations of the parties do not merge on the
completion of any transaction contemplated by this Agreement. They
survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
9. ENTIRE AGREEMENT
Apart from the Master Agreement and this Agreement, the parties
acknowledge and agree there are no agreements, arrangements or
understandings between the parties which relate in any way to the
voting or disposal of shares, options or other securities in Star
City.
10. ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no party may attempt, or purport, to do so without the prior
written consent of all parties.
11. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
-5-
12. WAIVER
No failure to exercise nor any delay in exercising any right, power
or remedy by a party operates as a waiver. A single or partial
exercise of any right, power or remedy does not preclude any other or
further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the party granting that waiver
unless made in writing.
13. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
or made under this Agreement:
(a) must be in writing and signed by a person duly authorised
by the sender;
(b) must be delivered to the intended recipient by prepaid
post (if posted to an address in another country, by
registered airmail) or by hand or fax to the address or
fax number below or the address or fax number last
notified by the intended recipient to the sender:
(i) to H or XXX: [#]
Attention: [#]
Fax No: [#]
(ii) to T or the Purchaser: [#]
Attention: [#]
Fax No: [#]
(c) is taken to be duly given or made:
(i) in the case of delivery in person, when
delivered;
(ii) in the case of delivery by post two business
days after the date of posting (if posted to
an address in the same country) or seven
business days after the date of posting (if
posted to an address in another country);
(iii) in the case of fax, on receipt by the sender
of a transmission control report from the
despatching machine showing the relevant
number of pages and the correct destination
fax machine number and indicating that the
transmission had been made without error,
-6-
but if the result is that a Notice would be taken to be
given or made on a day which is not a business day in the
place to which the Notice is sent or is later than 4.00pm
(local time) it is taken to have been duly given or made
at the commencement of business on the next business day
in that place.
14. GOVERNING LAW
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
EXECUTED by the parties.
-7-
SIGNED on behalf of [H] by its
authorised representative )
in the presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
Print Name
SIGNED on behalf of [XXX] by its
authorised representative in the )
presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
SIGNED on behalf of [T ENTITY] by
its authorised representative in )
the presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
SIGNED on behalf of [T] by its
authorised representative in the )
presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
-8-
SCHEDULE 1
Warranties
1. XXX:
(a) is the legal and beneficial owner of the Shares free from
all Security Interests;
(b) is the legal and beneficial owner of the Options free from
all Security Interests;
(c) has the full power and authority to transfer to the
Purchaser good legal and equitable title to the Shares
free from all Security Interests; and
(d) has the full power and authority to transfer to the
Purchaser good legal and equitable title to the Options
free from all Security Interests.
2. Without limiting Warranty 1, neither the entry by H or XXX into this
Agreement nor the performance by H or XXX of any of its terms give
rise to any rights or claims of any description by any person on the
basis of any claim of a right of pre-emption, first right of refusal
or other rights in respect of any of the Shares or Options.
-9-
ATTACHMENT B
Share Sale Agreement (Showboat)
[XXXXXX'x]
as Vendor
and
[TABCORP ENTITY]
as Purchaser
and
[H]
and
[T]
-------------------------------
SHARE SALE AGREEMENT (SHOWBOAT)
-------------------------------
Xxxxxx Xxxxxxxx & Hedderwicks
Melbourne
Ref RJS:CRG
Tel 0000 0000
SHARE SALE AGREEMENT (SHOWBOAT)
--------------------------------------------------------------------------------
THIS AGREEMENT is made on 1999 between:
1. [XXXXXX'X ENTITY] [(ACN [#])] (the VENDOR);
2. [TABCORP ENTITY] [(ACN [#])] (the PURCHASER);
3. XXXXXX'X ENTERTAINMENT, INC. (H); and
4. TABCORP HOLDINGS LIMITED (ACN 063 780 709) (T).
RECITALS
A. The Vendor is the registered holder and beneficial owner of the
Shares, which are all the issued shares in the capital of the
Company.
B. This Agreement records the terms on which the Vendor agrees to sell
the Shares to the Purchaser.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
AUDITOR means the Auditor nominated by T for the purposes of this
Agreement as notified to H.
AUDITOR'S REPORT has the meaning set out in Clause 4.2(c).
BALANCE DATE means the date of the balance sheet appearing in the
Financial Accounts.
CASH means Australian legal tender.
CASINO COMPLEX MANAGEMENT AGREEMENT means the agreement of that title
dated 21 April 1994 between Sydney Casino Properties Pty Limited and
Sydney Harbour Casino Pty Limited (as Owner), the Company and
Leighton as the Showboat Leighton Partnership, and SCM as Manager.
CASINO CONTROL ACT means the Casino Control Xxx 0000 of New South
Wales.
CASINO CONTROL AUTHORITY means the New South Wales Casino Control
Authority established under the Casino Control Act.
CASINO MANAGEMENT RIGHTS means the rights and obligations of SCM and
the Showboat Leighton Partnership as constituted by the Casino
Complex Management Agreement.
CASINO OPERATIONS AGREEMENT means the agreement of that title dated
14 December 1994 between the Casino Control Authority, SCM, Star City
and others.
COMPANY means Showboat Australia Pty Limited (ACN 061 299 625).
COMPLETION means completion by the parties of the sale and purchase
as provided in Clause 6.
COMPLETION ACCOUNTS means the Completion Statement of Net Assets and
the Completion Statement of Residual Management Agreement Net Assets.
COMPLETION DATE means the fifth day after the date on which T
receives a certificate from H under Clause 7 or any other date the
Vendor and the Purchaser may agree.
COMPLETION STATEMENT OF NET ASSETS has the meaning set out in Clause
4.1(a).
COMPLETION STATEMENT OF RESIDUAL MANAGEMENT AGREEMENT NET ASSETS has
the meaning set out in Clause 4.1(b).
CORPORATIONS LAW means the Corporations Law of Australia.
FINAL PAYMENT DATE means the date three business days after the
Completion Accounts have been finalised in accordance with Clause 4.
FINANCIAL ACCOUNTS means the consolidated audited balance sheet and
profit and loss account of the Company (including the Showboat
Leighton Partnership) for the year ended 31 December 1998.
INDEPENDENT AUDITOR means the President for the time being of the
Institute of Chartered Accountants in Australia or his or her
nominee.
-2-
INTELLECTUAL PROPERTY means any industrial or intellectual property
whether protectable by statute, at common law or in equity, including
all copyright, moral rights (and similar rights), inventions,
patents, designs (whether or not registrable), registered and
unregistered trademarks, circuit layout designs, rights in relation
to circuit layouts and know how.
LEIGHTON means Leighton Properties Pty Limited (ACN 000 000 000).
LIABILITIES means claims, losses, liabilities, costs or expenses of
any kind, including those which are prospective or contingent and
those the amount of which is not ascertained or ascertainable.
MASTER AGREEMENT means the agreement between T and H dated [#].
NON MANAGEMENT AGREEMENT ASSETS means all assets of the Company, the
Showboat Leighton Partnership or SCM not directly related to the
Casino Complex Management Agreement, other than the Residual Cash
Amount.
NON MANAGEMENT AGREEMENT LIABILITIES means all liabilities of the
Company, the Showboat Leighton Partnership or SCM not directly
related to the Casino Complex Management Agreement.
PURCHASE PRICE ADJUSTMENT means the calculation and payment of a
price adjustment under Clause 3 and PURCHASE PRICE ADJUSTMENT AMOUNT
means the amount of the adjustment.
RELATED BODY CORPORATE has the meaning given to it in the
Corporations Law.
RESIDUAL CASH AMOUNT means the amount of Cash equal to the aggregate
amount of Tax payable by the Company and SCM as referred to in Clause
7.1(a)(ii) less any amount of Tax prepaid to the Commissioner of
Taxation.
SECURITY INTEREST means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitation, any retention of title; or
-3-
(b) created or otherwise arising in or over any interest in
any asset under a xxxx of sale, mortgage, charge, lien,
pledge, trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
SHARE SALE AGREEMENT (STAR CITY) means the agreement of that title
referred to in Clause 2 of the Master Agreement.
SHARES means [#] ordinary shares in the capital of the Company
together with the benefit of all rights (including dividend rights)
attached or accruing to those shares as at the date of this
Agreement.
SHOWBOAT LEIGHTON PARTNERSHIP means the Partnership constituted by
the Showboat Leighton Partnership Agreement.
SHOWBOAT LEIGHTON PARTNERSHIP AGREEMENT means the partnership
agreement between the Company and Leighton which has a commencement
date of 22 April 1994.
STAR CITY CASINO means the casino complex owned (whether directly or
indirectly) by Star City.
SUBSIDIARY has the meaning given by the Corporations Law.
TAX means any income tax, capital gains tax, recoupment tax, land
tax, sales tax, payroll tax, fringe benefit tax, group tax,
withholding tax, municipal rates, stamp duties and other charges,
levies and impositions, assessed or charged, or assessable or
chargeable, by or payable to any governmental taxation or excise
authority and includes any additional tax, interest, penalty, charge,
fee or other amount imposed or made on or in relation to a failure to
file a relevant return or to pay a relevant tax.
TAX ACT means the Income Tax Assessment Xxx 0000 or the Income Tax
Assessment Xxx 0000 or both the Income Tax Assessment Xxx 0000 and
the Income Tax Assessment Xxx 0000, as appropriate.
WARRANTIES means the representations, warranties, undertakings and
other obligations of the Vendor of whatever kind contained in this
Agreement (including, without limitation, those set out in Schedule
1).
-4-
$ means Australian dollars.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to an agreement or document (including,
without limitation, a reference to this Agreement) is to
the agreement or document as amended, varied,
supplemented, novated or replaced except to the extent
prohibited by this Agreement or that other agreement or
document.
(f) A reference to legislation or to a provision of
legislation includes a modification or re-enactment of
it, a legislative provision substituted for it and a
regulation or statutory instrument issued under it.
(g) A reference to WRITING includes a facsimile transmission
and any means of reproducing words in a tangible and
permanently visible form.
1.3 Consents or Approvals
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
2. SALE AND PURCHASE
The Vendor agrees to sell the Shares to the Purchaser and the
Purchaser agrees to buy the Shares from the Vendor, free from all
Security Interests.
-5-
3. PRICE AND PAYMENT
3.1 The Purchase Price is $204 million to be paid on the Completion Date.
3.2 On the Final Payment Date, the Purchase Price Adjustment Amount must
be paid as follows:
(a) the Purchaser pays to the Vendor the amount (if any) by
which the Completion Statement of Residual Management
Agreement Net Assets shows a balance in excess of zero; or
(b) the Vendor pays to the Purchaser the amount (if any) by
which the Completion Statement of Residual Management
Agreement Net Assets shows a balance less than zero.
4. COMPLETION ACCOUNTS
4.1 As soon as reasonably practicable, and in any case within 20 business
days after the Completion Date, the Vendor must prepare and provide
to the Auditor drafts of:
(a) a statement of the consolidated net assets of the Company
(including the Showboat Leighton Partnership) as at the
Completion Date prepared in accordance with accounting
principles and practices generally accepted in Australia,
the Corporations Law and all other applicable statutes and
regulations (except that all assets shall be valued at the
lower of cost and net realisable value). (This is the
draft Completion Statement of Net Assets); and
(b) a statement of the consolidated net assets of the Company
(including the Showboat Leighton Partnership) excluding
the book value of the asset pertaining to the Company's
entitlement to management fees payable by Sydney Harbour
Casino Pty Ltd under Clause 12.1 of the Casino Complex
Management Agreement as at the Completion Date prepared in
accordance with accounting principles and practices
generally accepted in Australia, the Corporations Law and
all other applicable statutes and regulations (except that
all assets shall be valued at the lower of cost and net
realisable value). (This is the draft Completion Statement
of Residual Management Agreement Net Assets.)
-6-
4.2 The Vendor and the Purchaser must jointly instruct the Auditor to
prepare and deliver to each of them within 15 business days after
provision of the draft statements referred to in Clause 4.1:
(a) an audited Completion Statement of Net Assets;
(b) an audited Completion Statement of Residual Management
Agreement Net Assets; and
(c) an Auditor's Report in the form set out in Schedule 2.
4.3 The Vendor must:
(a) provide the Auditor full access to the books and records
of the Vendor and the Company to enable the Auditor to
prepare the audited statements referred to in Clause 4.2
(the AUDITED STATEMENTS); and
(b) provide the Auditor full access to the working papers used
in preparing the draft statements referred to in Clause
4.1.
4.4 The Vendor and the Purchaser must confer and use their best
endeavours to agree on the Audited Statements within five business
days after they are provided to the Vendor and the Purchaser by the
Auditor in accordance with Clause 4.2.
4.5 If the contents of the Audited Statements are agreed between the
Vendor and the Purchaser, the Audited Statements will be final and
binding on the parties, and will constitute the Completion Accounts.
4.6 If the Vendor and the Purchaser do not agree on the value of an item
in the Audited Statements within the period referred to in Clause
4.4, the Vendor and the Purchaser must within five days after the end
of that period refer the matter to the Independent Auditor for
determination in accordance with Clause 4.7.
4.7 (a) In referring a matter to the Independent Auditor for
determination under this Agreement, the parties must
instruct the Independent Auditor to complete the
determination within 14 business days of the referral.
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(b) The Vendor must provide the Independent Auditor full
access to its books and records, and the books and records
of the Company, and any information required by the
Independent Auditor to complete any determination under
this Agreement.
(c) Each party is entitled to make submissions to the
Independent Auditor in respect of any determination under
this Agreement.
(d) The Independent Auditor's written determination of any
matter referred to it under this Agreement is final and
binding on the parties and, where applicable, must be
incorporated in the Completion Accounts promptly after the
determination is made.
(e) In making a determination the Independent Auditor acts as
an expert not as an arbitrator.
(f) The costs of the Independent Auditor shall be borne by the
parties equally.
5. WARRANTIES
5.1 The Vendor represents and warrants to the Purchaser that to the best
of its knowledge and belief after making due enquiries (except as set
out in the disclosure statement referred to in Clause 8.1 of the
Master Agreement) each statement in Schedule 1 is true and correct.
5.2 Each Warranty:
(a) remains in full force and effect after the Completion Date
despite Completion; and
(b) is given as at the date of this Agreement and as at the
time immediately before Completion.
5.3 Subject to Clauses 5.4 to 5.11, the Vendor indemnifies the Purchaser
against all Liabilities (other than to the extent they are due to any
negligence or default of T) that may be incurred by the Purchaser as
a result (directly or indirectly) of a breach of any Warranty.
5.4 Subject to Clause 5.5 to 5.11, the Vendor indemnifies the Purchaser
against any loss that the Purchaser may suffer by reason of any
liability of the Company or SCM to Tax that may be assessed against
or levied on the Company or SCM with respect to:
-8-
(a) any income (including capital gains) earned or derived or
deemed to have been earned or derived by the Company or
SCM at any time prior to the Completion Date or that may
be assessed or levied as a result of any transaction, act,
matter or thing which took place or happened on or before
the Completion Date;
(b) any payments made in relation to persons working for the
Company or SCM prior to the Completion Date;
(c) any stamp duties payable in respect of any agreement,
deed, other document or transaction entered into prior to
Completion to which the Company or SCM is or has been a
party or by which the Company or SCM derives, has derived
or will derive a substantial benefit;
(d) any liability for Tax from which the Company, SCM, the
Showboat Leighton Partnership or the Vendor may have
obtained relief (whether by way of deferred capital gains
tax or otherwise) which has or will become payable as a
result of entry into this Agreement; and
(e) any liability to any current or former Related Body
Corporate of the Company or SCM (including the Vendor) as
a result of any tax loss transferred by the Company or SCM
to that current or former Related Body Corporate prior to
the Completion Date being disallowed, in whole or in part,
but only to the amount of the excess over the amount of any relevant
provision for them in the Completion Statement of Residual Management
Agreement Net Assets.
5.5 The Vendor is not obliged to pay any amount under Clause 5.4 unless
the Purchaser, within 60 days after receipt by the Company or SCM or
the Showboat Leighton Partnership of the relevant assessment from the
taxation authority, gives to the Vendor notice of the claim on the
indemnity and a copy of the relevant parts of that assessment.
5.6 Where:
(a) notice is given in accordance with Clause 5.5;
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(b) the Vendor proposes to dispute on behalf of the Company,
SCM, the Showboat Leighton Partnership or the Purchaser
(as the case may be) the assessment; and
(c) payment of the assessment is required in order to dispute
the assessment,
the Vendor must pay the amount of the assessment.
5.7 Where:
(a) notice is given in accordance with Clause 5.5;
(b) the Vendor, within 30 days after receiving notice in
accordance with Clause 5.5, gives the Purchaser notice
that the Vendor proposes to dispute on behalf of the
Company, SCM or the Showboat Leighton Partnership or the
Purchaser (as the case may be) the assessment; and
(c) the Vendor has complied with Clause 5.6,
the Purchaser shall take such action as the Vendor may reasonably
request (by notice to the Purchaser) to object to, appeal against or
settle the assessment, if the Vendor bears all the costs and expenses
of taking such actions (including, without limitation, the costs to
the Purchaser, SCM or the Showboat Leighton Partnership or the
Company (as the case may be) involved in engaging its staff in the
matter).
5.8 Where a payment has been made by the Vendor under Clause 5.6 and the
matter in respect of which the payment is made is ultimately resolved
in favour of the Company, SCM or the Showboat Leighton Partnership,
the Purchaser shall cause the Company, SCM or the Showboat Leighton
Partnership (as the case may be), following receipt of the money from
the relevant taxation authority, to pay an equivalent amount to the
Vendor.
5.9 The Vendor has the right to be actively involved in any Tax audit
conducted by the Australian Taxation Office concerning the Company,
SCM or the Showboat Leighton Partnership insofar as the audit relates
to any period or periods prior to the Completion Date.
5.10 The liability of the Vendor to the Purchaser under this Clause 5 and
of H under Clause 10 includes costs and expenses and direct loss
suffered (and in respect of SCM or the Showboat Leighton Partnership,
is restricted to the Vendor's 85% interest) but does not include
consequential damage.
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5.11 The Purchaser and T may not commence any claim in respect of any
breach of any representation or warranty (other than in respect of
Tax) more than two years after the date of this Agreement.
6. COMPLETION
6.1 Completion of the sale and purchase of the Shares must take place on
the Completion Date at [#].
6.2 On the Completion Date the Vendor must (subject to any necessary
Casino Control Authority approval):
(a) ensure that a duly convened board meeting of the Company
and SCM is held at which a quorum of directors is present
and acting throughout at which:
(i) persons nominated by the Purchaser by notice
to the Vendor are appointed as directors of
the Company and SCM, subject to the receipt
of signed consents to act;
(ii) persons nominated by the Purchaser by notice
to the Vendor are appointed as the
secretaries and public officers of the
Company and SCM, subject to the receipt of
signed consents to act;
(iii) persons nominated by the Purchaser by notice
to the Vendor resign as directors,
secretaries and public officers of the
Company and SCM; and
(iv) in the case of the board meeting of the
Company only, the transfer of the Shares to
the Purchaser (subject to the payment of
stamp duty on the instruments of transfer
which must be borne by the Purchaser), the
cancellation of the existing share
certificate for the Shares and the sealing
and delivery by the Company to the Purchaser
of a new share certificate for the Shares in
the name of the Purchaser are each approved;
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(b) deliver to (or at the direction of) the Purchaser the
minute books, statutory books and registers (all in good
order and fully and accurately entered up as at the
Completion Date in accordance with all relevant statutory
requirements), books of account, trading and financial
records, copies of taxation returns and other documents
and papers, and any common seal, duplicate seal or
official seal, of the Company and SCM; and
(c) deliver to the Purchaser executed instruments of transfer
of the Shares in favour of the Purchaser together with the
share certificates relating to the Shares.
6.3 On the Completion Date and subject to the due performance by the
Vendor of the obligations on its part to be performed under Clause
6.2 the Purchaser will pay the Purchase Price to the Vendor.
7. COMPLETION OF PRE-COMPLETION EVENTS
7.1 Not later than twenty-one business days after completion under the
Share Sale Agreement (Star City), H must ensure that:
(a) the Company repatriates to H an amount equal to the
aggregate of:
(i) (A) the purchase prices payable to the
Company in respect of the sale of
shares and options in Star City by
the Company pursuant to the Share
Sale Agreement (Star City); and
(B) any consideration paid to the
Company pursuant to the disposal by
the Company of the shares in Star
City referred to in Clause 7.1(b);
LESS
(ii) the aggregate amount of any Tax (whether
capital gains tax or otherwise) payable by the
Company or SCM (as applicable) as a result of
the sale or disposal of shares and options in
Star City referred to in Clause 7.1(a)(i) or as
a result of the disposal of any Non Management
Agreement Assets as required by Clause 7.1(c);
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(b) the Company disposes of (and ceases to be the legal and
beneficial owner of) the ordinary shares in Star City
which it held as at the date of this Agreement or which
arise from exercise of any options and which are not the
subject of the Share Sale Agreement (Star City), whether
the disposal is to a Related Body Corporate of H or
otherwise; and
(c) the Company and SCM (as applicable) dispose of all Non
Management Agreement Assets and repay in full, or
otherwise settle or extinguish, all Non Management
Agreement Liabilities,
and, on the requirements of this Clause being met, H must immediately
certify that to T in writing.
7.2 H will ensure that as at the Completion Date the Company will hold an
amount of Cash equal to the Residual Cash Amount.
7.3 H undertakes that to the extent that there is at the date of this
Agreement any agreement or arrangement between the Company, SCM or
the Showboat Leighton Partnership and H or any Related Body Corporate
or affiliate of H pursuant to which the Company, SCM or the Showboat
Leighton Partnership is required or obliged to pay any amount to H or
its Related Bodies Corporate or affiliates, then H will terminate, or
procure the termination of, any such agreement or arrangement prior
to the Completion Date so that as at the Completion Date neither the
Company, SCM nor the Showboat Leighton Partnership will have any
liability or ongoing obligation to H or its Related Bodies Corporate
or affiliates in connection with or in relation to the Casino Complex
Management Agreement, the provision of any services, the operations
of the Star City Casino or otherwise, and H will indemnify the
Purchaser, the Company, SCM and the Showboat Leighton Partnership in
respect of any liability incurred or loss or damage suffered as a
result of any breach of this covenant.
-13-
8. INFORMATION, TECHNOLOGY AND INTELLECTUAL PROPERTY
H acknowledges that it has supplied to, amongst others, Star City,
the Company, the Showboat Leighton Partnership and SCM certain
information, technology, know how and other Intellectual Property
which is used or has been used by them in or in connection with the
operations of Star City Casino or the Casino Management Rights. H
grants to the Purchaser, the Company, SCM, Star City, the Showboat
Leighton Partnership and any other person who may presently use or
have used the information, technology, know how and other
Intellectual Property referred to above a non-exclusive royalty free
licence in perpetuity to use all the information, technology, know
how and other Intellectual Property in or in connection with the
operations of Star City Casino or the Casino Management Rights, so
that the Purchaser, the Company, SCM, Star City, the Showboat
Leighton Partnership and any such other person may continue after the
Completion Date to use such information, technology, know how and
other Intellectual Property in the same manner as it had done at any
time before the Completion Date. H will use its reasonable endeavours
to ensure that the key executives engaged in connection with the
operations of Star City Casino or the Casino Management Rights
continue to be engaged in those operations after the Completion Date.
9. TERMINATION
9.1 The obligation of the Purchaser to complete the purchase of the
Shares is subject to the conditions that:
(a) each of the Warranties is true and correct as at the
Completion Date, with the same force and effect as if
made on the Completion Date. This condition may be waived
by the Purchaser at its discretion but a waiver is not a
waiver of any rights or remedies that it may have against
the Vendor by reason of any breach of Clause 5.1; and
(b) no disclosure or disclosures made to the Purchaser under
this Agreement, singularly or in the aggregate, reveals
any circumstance which has had, has or will have a
materially adverse effect on the business of the Company,
SCM or Star City. This condition may be waived by the
Purchaser at its discretion.
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If condition (a) above is not satisfied or the circumstance described
in condition (b) above is revealed, the Purchaser may terminate this
Agreement by notice to the Vendor. If the Purchaser terminates this
Agreement, no party has any further liability to any other party
under this Agreement except that the termination will not prejudice
any rights or remedies that the Purchaser may have against the Vendor
by reason of any breach of Clause 5.1.
10. GUARANTEE BY H
10.1 In consideration of T entering into this Agreement at the request of
H, H:
(a) unconditionally and irrevocably guarantees to the
Purchaser on demand the due and punctual performance by
the Vendor of all its obligations under this Agreement;
and
(b) separately indemnifies the Purchaser against any
Liabilities (other than to the extent they are due to any
negligence or default of T) which may be incurred or
sustained by the Purchaser in connection with any default
or delay by the Vendor in the due and punctual performance
of any of its obligations under this Agreement.
10.2 The liability of H under this Clause is not affected by any act,
omission or thing which, but for this provision, might in any way
operate to release or otherwise exonerate or discharge H from any of
its obligations including (without limitation) the grant to the
Vendor or any other person of any time, waiver or other indulgence,
or the discharge or release of the Vendor or any other person from
any obligation.
10.3 This Clause is a continuing guarantee and indemnity and, despite
Completion, remains in full force and effect for so long as the
Vendor has any liability or obligation to the Purchaser under this
Agreement and until all of those liabilities or obligations have been
fully discharged.
11. GUARANTEE BY T
11.1 In consideration of H entering into this Agreement at the request of
T, T:
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(a) unconditionally and irrevocably guarantees to the Vendor
on demand the due and punctual performance by the
Purchaser of all its obligations under this Agreement; and
(b) separately indemnifies the Purchaser against any
Liabilities (other than to the extent they are due to any
negligence or default of H) which may be incurred or
sustained by the Vendor in connection with any default or
delay by the Purchaser in the due and punctual performance
of any of its obligations under this Agreement.
11.2 The liability of T under this Clause is not affected by any act,
omission or thing which, but for this provision, might in any way
operate to release or otherwise exonerate or discharge T from any of
its obligations including (without limitation) the grant to the
Purchaser or any other person of any time, waiver or other
indulgence, or the discharge or release of the Purchaser or any other
person from any obligation.
11.3 This Clause:
(a) extends to cover this Agreement as amended, varied or
replaced, whether with or without the consent of T; and
(b) is a continuing guarantee and indemnity and, despite
Completion, remains in full force and effect for so long
as the Purchaser has any liability or obligation to the
Vendor under this Agreement and until all of those
liabilities or obligations have been fully discharged.
12. COSTS
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty
(including fines, penalties and interest) which may be payable on or
in connection with this Agreement and any instrument executed under
this Agreement must be borne by the Purchaser.
13. MERGER
The rights and obligations of the parties do not merge on the
completion of any transaction contemplated by this Agreement. They
survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
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14. ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no party may attempt, or purport, to do so without the prior
written consent of all parties.
15. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
16. ENTIRE AGREEMENT
This Agreement and the Master Agreement contain the entire agreement
between the parties with respect to its subject matter and supersedes
all prior agreements and understandings between the parties in
connection with it.
17. WAIVER
No failure to exercise nor any delay in exercising any right, power
or remedy by a party operates as a waiver. A single or partial
exercise of any right, power or remedy does not preclude any other or
further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the party granting that waiver
unless made in writing.
18. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
or made under this Agreement:
(a) must be in writing and signed by a person duly authorised
by the sender;
(b) must be delivered to the intended recipient by prepaid
post (if posted to an address in another country, by
registered airmail) or by hand or fax to the address or
fax number below or the address or fax number last
notified by the intended recipient to the sender:
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(i) to the Purchaser: [#]
Attention: [#]
Fax No: [#]
(ii) to the Vendor: [#]
Attention: [#]
Fax No: [#]
(iii) to H: [#]
Attention: [#]
Fax No: [#]
(iv) to T: [#]
Attention: [#]
Fax No: [#]
(c) is taken to be duly given or made:
(i) in the case of delivery in person, when
delivered;
(ii) in the case of delivery by post two business
days after the date of posting (if posted to an
address in the same country) or seven business
days after the date of posting (if posted to an
address in another country);
(iii) in the case of fax, on receipt by the sender of
a transmission control report from the
despatching machine showing the relevant number
of pages and the correct destination fax
machine number and indicating that the
transmission had been made without error,
but if the result is that a Notice would be taken to be
given or made on a day which is not a business day in the
place to which the Notice is sent or is later than 4.00pm
(local time) it is taken to have been duly given or made
at the commencement of business on the next business day
in that place.
19. GOVERNING LAW
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
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20. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts will be taken to constitute one instrument.
-19-
SCHEDULE 1
--------------------------------------------------------------------------------
Warranties
Ownership of the Shares
1. The Vendor:
(a) is the legal and beneficial owner of the Shares free from
all Security Interests; and
(b) has full power and authority to transfer to the Purchaser
good legal and equitable title to the Shares free from all
Security Interests.
Shares - the Company, SCM
2. There are no outstanding subscription agreements, options, rights or
other analogous entitlements of any description to acquire from the
Company or SCM any unissued shares or stock of any class of the
Company or SCM, or any securities convertible into or exchangeable
for or which otherwise confer on the holder of it any right (whether
or not upon the happening of any contingency or after any lapse of
time and whether or not upon the payment or delivery of any
consideration) to acquire any unissued shares or stock of any class
of the Company or SCM nor is the Company or SCM committed to grant or
issue any such option, right or security.
3. The Shares are the only issued shares in the capital of the Company
and are validly issued and fully paid. The shares in SCM consist of
85 ordinary shares and are the only issued shares in the capital of
SCM other than 15 shares held by Leighton, are validly issued, fully
paid and legally and beneficially owned by the Company free from all
Security Interests.
Permanent establishments outside Australia
4. Neither the Company nor SCM has a permanent establishment (as that
expression is defined in any applicable double taxation convention)
outside Australia.
-20-
Subsidiaries
5. The Company does not control any entity other than SCM. Neither the
Company nor SCM is a member of a partnership or other unincorporated
association except that the Company is a member of the Showboat
Leighton Partnership. In this warranty control of an entity means
control of the entity within the meaning of the accounting standards
made for the purposes of section 295(2)(d) of the Corporations Law.
Financial Accounts
6. The Financial Accounts have been prepared in accordance with
accounting principles and practices generally accepted in Australia
and comply with the requirements of the Corporations Law and all
other applicable statutes and regulations.
7. The balance sheet appearing in the Financial Accounts:
(a) discloses a true and fair view of the consolidated state
of affairs of the Company as at the Balance Date;
(b) is true and accurate in all material respects;
(c) includes adequate reserves or provisions for all
liabilities (including Tax Liabilities) of the Company,
the Showboat Leighton Partnership and SCM as at the
Balance Date.
8. There are no loans, guarantees, indemnities, undertakings, mortgages,
charges, debentures, leases or other encumbrances or unusual
liabilities (including contingent liabilities) which have been given
or made or incurred by or assigned to or vested in or are outstanding
on behalf of the Company, the Showboat Leighton Partnership or SCM
other than as disclosed or taken into account in the Financial
Accounts.
9. The Financial Accounts contain fully adequate provisions for holiday
pay, sick leave and long service leave in amounts which are at least
equal to the accrued legal liability of the Company, SCM and the
Showboat Leighton Partnership as at the Balance Date.
10. The profit and loss account appearing in the Financial Accounts
discloses a true and fair view of the consolidated profit or loss of
the Company for the period covered in those accounts and is true and
accurate in all material
-21-
Completion Accounts
11. To the date of the Completion Accounts, there has been no change in
the total amount of the Liabilities or the trading position,
profitability or financial condition of the Company, the Showboat
Leighton Partnership and SCM from that set forth in the Financial
Accounts except changes in the ordinary course of business.
11A. (a) The Company has not been nor will it be;
(b) neither the Showboat Leighton Partnership nor SCM has
been;
(c) neither the Showboat Leighton Partnership nor SCM will be
(to the extent it is within the reasonable control of XXX
or the Vendor),
materially and adversely affected by any act, event or circumstance,
whether covered by insurance or not and except for the changes
required to be made under Clause 7 of this Agreement.
12. The Completion Accounts have been prepared in accordance with the
accounting principles and practices generally accepted in Australia
and comply with the requirements of the Corporations Law and all
other applicable statutes and regulations and the accounting
principles and practices determined by the Auditor or, in the event H
disagrees with these accounting principles and practices when
established, by the Independent Auditor.
13. The Completion Accounts:
(a) disclose a true and fair view of the state of affairs of
the Company, the Showboat Leighton Partnership and SCM as
at the date to which they are made up;
(b) are true and correct in all material respects;
(c) include adequate reserves or provisions for all
liabilities (including Tax Liabilities) of the Company,
the Showboat Leighton Partnership and SCM as at that date.
-22-
14. The Vendor has ensured that there is sufficient Cash held by the
Company as at the Completion Date to satisfy the aggregate amount of
any Tax (whether capital gains tax or otherwise) payable but unpaid
by the Company or SCM as a result of the sale or disposal of all the
Company's shares and options in Star City as required by the Master
Agreement, this Agreement and the Share Sale Agreement (Star City)
and the disposal of the Non Management Agreement Assets as required
by Clause 7.1(c) of this Agreement. Any Cash (net of any receivables
appearing in the Completion Statement of Residual Management
Agreement Net Assets) held by the Company shall be invested by the
Company with any interest accruing to the benefit of H on the
following terms:
(a) the Cash shall be invested with a trading bank or other
agreed financial institution of up to 90 day call; and
(b) all interest thereon (net of any Tax) will accrue to H and
be paid to H on demand.
15. The Completion Accounts contain fully adequate provisions for holiday
pay, sick leave and long service leave in amounts which are at least
equal to the accrued legal liability of the Company, the Showboat
Leighton Partnership and SCM as at the Completion Date.
16. Except to the extent of the amounts provided in the Completion
Accounts, neither the Company, the Showboat Leighton Partnership nor
SCM is under, nor will it assume prior to the Completion Date, any
liability to any person for any pension, lump sum retiring allowance
or redundancy payment or any liability with respect to holiday, long
service or sick leave entitlement.
17. As at the Completion Date, neither the Company, the Showboat Leighton
Partnership nor SCM has any Non Management Agreement Assets or Non
Management Agreement Liabilities.
Taxation
18. All Tax returns required by law to be lodged or filed by the Company,
SCM or the Showboat Leighton Partnership have been duly lodged or
filed and fully and accurately completed and each deduction, rebate
or credit claimed in them has been properly claimed and is duly
allowable.
-23-
19. All Taxes (other than those which may still be paid without penalty
or interest) on or payable by the Company, SCM or the Showboat
Leighton Partnership have been paid or adequate provisions, reserves
or accruals for their payment (whether or not assessed) have been
made or provided for in the balance sheet appearing in the Financial
Accounts.
20. There are no outstanding disputes or Tax audits by or with or
threatened by the Commissioner of Taxation or any other authority or
instrumentality or officer concerning the liability of the Company,
SCM or the Showboat Leighton Partnership to any Tax.
21. Neither the Company nor SCM has paid any dividend:
(a) in respect of which the required franking amount (as
provided for in section 160AQE of the Tax Act) has
exceeded the franked amount (as defined in section 160APA
of the Tax Act) of the dividend; or
(b) which has been franked in excess of the required franking
amount which would result in the Company or SCM being
liable to pay franking deficit tax as provided for in
section 160AQJ of the Tax Act or additional tax under
section 160ARX of the Tax Act.
23. No asset revaluation dividend (as defined in section 46E(1) of the
Tax Act) has at any time been paid to the Company or SCM.
24. The Company, SCM and the Showboat Leighton Partnership has complied
with the requirements of all legislation imposing Taxes in respect of
the retention of records and those records can be reconciled to the
returns lodged by the Company, SCM and the Showboat Leighton
Partnership. In particular, but without limitation, each of the
Company, SCM and the Showboat Leighton Partnership:
(a) has complied with section 262A and 160ZZU of the Tax Act;
(b) has retained duly prepared and executed election notices
required to be prepared under the Tax Act, has retained
duly completed and executed declarations required for the
purpose of ascertaining their liability to fringe
benefits tax; and
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(c) has retained accurate records of franking credits and
franking debits in respect of its current and prior
accounting periods.
Legal Proceedings
25. (a) There is no suit, cause of action, proceeding,
application, arbitration, claim or investigation current,
pending, threatened or in prospect against the Company,
SCM and the Showboat Leighton Partnership and in
particular there is no outstanding product liability or
workers' compensation claim.
(b) No resolution has been passed for the winding up of the
Company or SCM.
(c) No resolution has been passed for the appointment of an
administrator to the Company or SCM.
(d) There is no unsatisfied judgment against the Company or
SCM.
(e) There are no facts, matters or circumstances which give
any person the right to apply to wind up the Company or
SCM or to appoint a controller within the meaning of
section 9 of the Corporations Law or an administrator or
an inspector under the Corporations Law in respect of the
Company or SCM or any part of its undertaking or assets or
income.
Agreements and Arrangements
26. Neither the Company, SCM nor the Showboat Leighton Partnership has
sold, transferred, assigned, created a Security Interest over,
declared itself a trustee of, parted with the benefit of or otherwise
disposed of the Casino Management Rights (or any interest in them or
any part of them) including without limitation by agreeing to pay,
assign, transfer or otherwise dispose of its right to management fees
payable under the Casino Complex Management Agreement, except for the
Security Interest created by the Commonwealth Bank over assets of the
Showboat Leighton Partnership under the primary finance facility
provided by the Commonwealth Bank to Star City and the trust
relationship between Leighton and National Mutual Limited.
-25-
27. Pursuant to the Casino Complex Management Agreement, the Showboat
Leighton Partnership will receive during each Fiscal Year of the
Operating Term (as defined in the Casino Complex Management
Agreement) net income equal to the Management Fee prescribed in
Clause 12.1 of the Casino Complex Management Agreement, and all costs
or expenses incurred by the Company, SCM or the Showboat Leighton
Partnership are capable of being charged back to, and will be
reimbursed by, Star City or its Subsidiaries and neither the Company,
SCM nor the Showboat Leighton Partnership has or will have at the
Completion Date any ongoing liability or obligation to make any
payment to H or its Related Bodies Corporate or affiliates (or to any
other person other than in the ordinary course of business) in
connection with or related to the Casino Complex Management
Agreement, the provision of any services, the operations of the Star
City Casino or otherwise.
Related party transactions
28. At Completion, there will be no outstanding contracts or transactions
between the Company, SCM or the Showboat Leighton Partnership and H
or any Related Body Corporate of H, other than the Management
Services Agreement (as defined in the Master Agreement).
-26-
SCHEDULE 2
--------------------------------------------------------------------------------
Form of Auditor's Report
(Clause 4.2)
-27-
EXECUTED as an Agreement.
[Each attorney executing this [#] Agreement states that he or she has no notice
of revocation or suspension of his or her power of attorney.]
NOTE: INSERT THE APPROPRIATE EXECUTION CLAUSES.
-28-
ATTACHMENT C
--------------------------------------------------------------------------------
Management Sale Agreement
[XXX]
as Vendor
and
[TABCORP ENTITY]
as Purchaser
and
[H]
and
[T]
-------------------------
MANAGEMENT SALE AGREEMENT
--------------------------
Xxxxxx Xxxxxxxx & Hedderwicks
Melbourne
Ref RJS:CRG
Tel 0000 0000
MANAGEMENT SALE AGREEMENT
--------------------------------------------------------------------------------
THIS AGREEMENT is made on 1999 between:
1. SHOWBOAT AUSTRALIA PTY LTD (ACN 061 299 625) (XXX);
2. [TABCORP ENTITY] [(ACN [#])] (the PURCHASER);
3. XXXXXX'X ENTERTAINMENT, INC. (H); and
4. TABCORP HOLDINGS LIMITED (ACN 063 780 709) (T).
RECITALS
A. XXX is a party to the Showboat Leighton Partnership Agreement
whereunder XXX and Xxxxxxxx are, through SCM and in accordance with
the Management Agreement, to provide services to certain Related
Bodies Corporate of Star City in relation to the Star City Casino.
B. This Agreement records the terms on which XXX agrees to sell the
Shares and all of SAL's right, title and interest in the Casino
Management Interests to the Purchaser.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
AUDITOR means the Auditor nominated by T for the purposes of this
Agreement as notified to H.
AUDITOR'S REPORT has the meaning set out in Clause 4.2(c).
BALANCE DATE means the date of the balance sheet appearing in the
Financial Accounts.
CASH means Australian legal tender.
CASINO CONTROL ACT means the Casino Control Xxx 0000 of New South
Wales.
CASINO CONTROL AUTHORITY means the New South Wales Casino Control
Authority established under the Casino Control Act.
CASINO MANAGEMENT INTERESTS means all of SAL's rights and interests
(whether direct or indirect, and whether legal or equitable), and
associated liabilities and obligations, in and under the Management
Agreement (including, without limitation, all rights, interests,
liabilities and obligations under the Showboat Leighton Partnership).
CASINO MANAGEMENT RIGHTS means the rights and obligations of SCM and
the Showboat Leighton Partnership as constituted by the Management
Agreement.
COMPLETION means completion by the parties of the sale and purchase
as provided in Clause 6.
COMPLETION ACCOUNTS means the Completion Statement of Net Assets and
the Completion Statement of Residual Management Agreement Net Assets.
COMPLETION DATE means the fifth day after the date on which T
receives a certificate from H under Clause 7.1 or such later date as
the parties may agree.
COMPLETION STATEMENT OF NET ASSETS has the meaning set out in Clause
4.1(a).
COMPLETION STATEMENT OF RESIDUAL MANAGEMENT AGREEMENT NET ASSETS has
the meaning set out in Clause 4.1(b).
CORPORATIONS LAW means the Corporations Law of Australia.
FINAL PAYMENT DATE means the date three business days after the
Completion Accounts have been finalised in accordance with Clause 4.
FINANCIAL ACCOUNTS means the audited balance sheets and profit and
loss accounts of SCM and the Showboat Leighton Partnership prepared
in accordance with Clause 18 of the Showboat Leighton Partnership
Agreement for the year ended 31 December 1998.
INDEPENDENT AUDITOR means the President for the time being of the
Institute of Chartered Accountants in Australia or his or her
nominee.
-2-
INTELLECTUAL PROPERTY means any industrial or intellectual property
whether protectable by statute, at common law or in equity, including
all copyright, moral rights (and similar rights), inventions,
patents, designs (whether or not registrable), registered and
unregistered trademarks, circuit layout designs, rights in relation
to circuit layouts and know how.
LEIGHTON means Leighton Properties Pty Limited (ACN 000 000 000).
LIABILITIES means claims, losses, liabilities, costs or expenses of
any kind, including those which are prospective or contingent and
those the amount of which is not ascertained or ascertainable.
MANAGEMENT AGREEMENT means the Casino Complex Management Agreement of
that title dated 21 April 1994 between Sydney Casino Properties Pty
Limited and Sydney Harbour Casino Pty Limited (as Owner), XXX and
Leighton as the Showboat Leighton Partnership, and SCM as Manager.
MASTER AGREEMENT means the agreement between T and H dated [#].
NON MANAGEMENT AGREEMENT ASSETS means all assets of SCM or the
Showboat Leighton Partnership not directly related to the Management
Agreement, other than the Residual Cash Amount.
NON MANAGEMENT AGREEMENT LIABILITIES means all liabilities of SCM or
the Showboat Leighton Partnership not directly related to the
Management Agreement.
PURCHASE PRICE ADJUSTMENT means the calculation and payment of a
price adjustment under Clause 3 and PURCHASE PRICE ADJUSTMENT AMOUNT
means the amount of the adjustment.
RELATED BODY CORPORATE has the meaning given to it in the
Corporations Law.
RESIDUAL CASH AMOUNT means the amount of Cash equal to the aggregate
amount of Tax (whether capital gains tax or otherwise) payable by SCM
as a result of the disposal of the Non Management Agreement Assets as
required by Clause 7.1 less any amount of Tax prepaid to the
Commissioner of Taxation.
SCM means Sydney Casino Management Pty Ltd (ACN 060 462 053).
-3-
SECURITY INTEREST means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in
any asset under a xxxx of sale, mortgage, charge, lien,
pledge, trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
SHARES means 85 ordinary shares in the capital of SCM (representing
85% of the issued shares in SCM) together with the benefit of all
rights (including dividend rights) attached or accruing to those
shares as at the date of this Agreement.
SHOWBOAT LEIGHTON PARTNERSHIP means the Partnership constituted by
the Showboat Leighton Partnership Agreement.
SHOWBOAT LEIGHTON PARTNERSHIP AGREEMENT means the partnership
agreement between XXX and Xxxxxxxx which has a commencement date of
22 April 1994.
STAR CITY means Star City Holdings Limited (ACN 000 000 000).
STAR CITY CASINO means the casino complex owned (whether directly or
indirectly) by Star City.
SUBSIDIARY has the meaning given by the Corporations Law.
TAX means any income tax, capital gains tax, recoupment tax, land
tax, sales tax, payroll tax, fringe benefit tax, group tax,
withholding tax, municipal rates, stamp duties and other charges,
levies and impositions, assessed or charged, or assessable or
chargeable, by or payable to any governmental taxation or excise
authority and includes any additional tax, interest, penalty, charge,
fee or other amount imposed or made on or in relation to a failure to
file a relevant return or to pay a relevant tax.
-4-
TAX ACT means the Income Tax Assessment Xxx 0000 or the Income Tax
Assessment Xxx 0000 or both the Income Tax Assessment Xxx 0000 and
the Income Tax Assessment Xxx 0000, as appropriate.
WARRANTIES means the representations, warranties, undertakings and
other obligations of XXX of whatever kind contained in this Agreement
(including, without limitation, those set out in Schedule 1).
$ means Australian dollars.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to an agreement or document (including,
without limitation, a reference to this Agreement) is to
the agreement or document as amended, varied,
supplemented, novated or replaced except to the extent
prohibited by this Agreement or that other agreement or
document.
(f) A reference to legislation or to a provision of
legislation includes a modification or re-enactment of
it, a legislative provision substituted for it and a
regulation or statutory instrument issued under it.
(g) A reference to WRITING includes a facsimile transmission
and any means of reproducing words in a tangible and
permanently visible form.
-5-
1.3 Consents or Approvals
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
2. SALE AND PURCHASE
2.1 XXX agrees to sell to the Purchaser and the Purchaser agrees to buy
from XXX:
(a) the Casino Management Interests; and
(b) the Shares,
free from all Security Interests.
3. PRICE AND PAYMENT
3.1 The Purchase Price for the Casino Management Interests and the Shares
is $204 million to be paid on the Completion Date.
3.2 On the Final Payment Date, the Purchase Price Adjustment Amount must
be paid as follows:
(a) the Purchaser pays to XXX the amount (if any) by which
the Completion Statement of Residual Management Agreement
Net Assets shows a balance in excess of zero; or
(b) XXX pays to the Purchaser the amount (if any) by which
the Completion Statement of Residual Management Agreement
Net Assets shows a balance less than zero.
4. COMPLETION ACCOUNTS
4.1 As soon as reasonably practicable, and in any case within 20 business
days after the Completion Date, XXX must prepare and provide to the
Auditor drafts of:
-6-
(a) a consolidated statement showing the aggregate of SAL's
85% interest in the net assets of SCM and the Showboat
Leighton Partnership as at the Completion Date prepared in
accordance with accounting principles and practices
generally accepted in Australia, the Corporations Law and
all other applicable statutes and regulations (except that
all assets shall be valued at the lower of cost and net
realisable value). (This is the draft Completion Statement
of Net Assets); and
(b) a consolidated statement showing the aggregate of SAL's
85% interest in the net assets of SCM and the Showboat
Leighton Partnership excluding the book value of the asset
pertaining to the entitlement to management fees payable
by Sydney Harbour Casino Pty Ltd under Clause 12.1 of the
Management Agreement as at the Completion Date prepared in
accordance with accounting principles and practices
generally accepted in Australia, the Corporations Law and
all other applicable statutes and regulations (except that
all assets shall be valued at the lower of cost and net
realisable value). (This is the draft Completion Statement
of Residual Management Agreement Net Assets.)
4.2 XXX and the Purchaser must jointly instruct the Auditor to prepare
and deliver to each of them within 15 business days after provision
of the draft statements referred to in Clause 4.1:
(a) an audited Completion Statement of Net Assets;
(b) an audited Completion Statement of Residual Management
Agreement Net Assets; and
(c) an Auditor's Report in the form set out in Schedule 2.
4.3 XXX must:
(a) provide the Auditor full access to the books and records
of XXX, SCM and the Showboat Leighton Partnership to
enable the Auditor to prepare the audited statements
referred to in Clause 4.2 (the audited statements); and
(b) provide the Auditor full access to the working papers used
in preparing the draft statements referred to in Clause
4.1.
-7-
4.4 XXX and the Purchaser must confer and use their best endeavours to
agree on the Audited Statements within five business days after they
are provided to XXX and the Purchaser by the Auditor in accordance
with Clause 4.2.
4.5 If the contents of the Audited Statements are agreed between XXX and
the Purchaser, the Audited Statements will be final and binding on
the parties, and will constitute the Completion Accounts.
4.6 If XXX and the Purchaser do not agree on the value of an item in the
Audited Statements within the period referred to in Clause 4.4, XXX
and the Purchaser must within five days after the end of that period
refer the matter to the Independent Auditor for determination in
accordance with Clause 4.7.
4.7 (a) In referring a matter to the Independent Auditor for
determination under this Agreement, the parties must
instruct the Independent Auditor to complete the
determination within 14 business days of the referral.
(b) XXX must provide the Independent Auditor full access to
its books and records, and the books and records of SCM
and the Showboat Leighton Partnership, and any information
required by the Independent Auditor to complete any
determination under this Agreement.
(c) Each party is entitled to make submissions to the
Independent Auditor in respect of any determination under
this Agreement.
(d) The Independent Auditor's written determination of any
matter referred to it under this Agreement is final and
binding on the parties and, where applicable, must be
incorporated in the Completion Accounts promptly after the
determination is made.
(e) In making a determination the Independent Auditor acts as
an expert not as an arbitrator.
(f) The costs of the Independent Auditor shall be borne by the
parties equally.
4.8 All payments required to be made under this Agreement must be
tendered either in cash or by a draft or cheque drawn by a bank as
defined in the Banking Act of the Commonwealth of Australia or by
such other method of payment agreed by the parties.
-8-
5. WARRANTIES
5.1 XXX represents and warrants to the Purchaser that to the best of its
knowledge and belief after making due enquiries (except as set out in
the disclosure statement referred to in Clause 8.1 of the Master
Agreement) each statement in Schedule 1 is true and correct.
5.2 Each Warranty:
(a) remains in full force and effect after the Completion Date
despite Completion; and
(b) is given as at the date of this Agreement and as at the
time immediately before Completion.
5.3 Subject to Clauses 5.4 to 5.11, XXX indemnifies the Purchaser against
all Liabilities (other than to the extent that they are due to any
negligence or default of T) that may be incurred by the Purchaser as
a result (directly or indirectly) of a breach of any Warranty.
5.4 Subject to Clause 5.5 to 5.11, XXX indemnifies the Purchaser against
any loss that the Purchaser may suffer by reason of any liability of
the Purchaser or SCM to Tax that may be assessed against or levied on
the Purchaser or SCM with respect to:
(a) any income (including capital gains) earned or derived or
deemed to have been earned or derived by XXX or SCM at any
time prior to the Completion Date or that may be assessed
or levied as a result of any transaction, act, matter or
thing which took place or happened on or before the
Completion Date;
(b) any payments made in relation to persons working for XXX
or SCM prior to the Completion Date;
(c) any stamp duties payable in respect of any agreement,
deed, other document or transaction entered into prior to
Completion to which XXX or SCM is or has been a party or
by which XXX or SCM derives, has derived or will derive a
substantial benefit;
(d) any liability for Tax from which XXX, SCM, the Showboat
Leighton Partnership or XXX may have obtained relief
(whether by way of deferred capital gains tax or
otherwise) which has or will become payable as a result of
entry into this Agreement; and
-9-
(e) any liability to any current or former Related Body
Corporate of XXX or SCM (including H) as a result of any
tax loss transferred by XXX or SCM to that current or
former Related Body Corporate prior to the Completion Date
being disallowed, in whole or in part,
but only to the amount of the excess over the amount of any relevant
provision for them in the Completion Statement of Residual Management
Agreement Net Assets.
5.5 XXX is not obliged to pay any amount under Clause 5.4 unless the
Purchaser, within 60 days after receipt by the Purchaser or SCM or
the Showboat Leighton Partnership of the relevant assessment from the
taxation authority, gives to XXX notice of the claim on the indemnity
and a copy of the relevant parts of that assessment.
5.6 Where:
(a) notice is given in accordance with Clause 5.5;
(b) XXX proposes to dispute on behalf of the SCM, the Showboat
Leighton Partnership or the Purchaser (as the case may be)
the assessment; and
(c) payment of the assessment is required in order to dispute
the assessment,
XXX must pay the amount of the assessment.
5.7 Where:
(a) notice is given in accordance with Clause 5.5;
(b) XXX, within 30 days after receiving notice in accordance
with Clause 5.5, gives the Purchaser notice that XXX
proposes to dispute on behalf of SCM or the Showboat
Leighton Partnership or the Purchaser (as the case may be)
the assessment; and
(c) XXX has complied with Clause 5.6,
the Purchaser shall take such action as XXX may reasonably request
(by notice to the Purchaser) to object to, appeal against or settle
the assessment, if XXX bears all the costs and expenses of taking
such actions (including, without limitation, the costs to the
Purchaser, SCM or the Showboat Leighton Partnership (as the case may
be) involved in engaging its staff in the matter).
-10-
5.8 Where a payment has been made by XXX under Clause 5.6 and the matter
in respect of which the payment is made is ultimately resolved in
favour of XXX, SCM or the Showboat Leighton Partnership, the
Purchaser shall cause SCM or the Showboat Leighton Partnership (as
the case may be), following receipt of the money from the relevant
taxation authority, to pay an equivalent amount to XXX.
5.9 XXX has the right to be actively involved in any Tax audit conducted
by the Australian Taxation Office concerning SCM or the Showboat
Leighton Partnership insofar as the audit relates to any period or
periods prior to the Completion Date.
5.10 The liability of XXX to the Purchaser under this Clause 5 and of H
under Clause 9 includes costs and expenses and direct loss suffered
(and, in respect of SCM or the Showboat Leighton Partnership, is
restricted to SAL's 85% interest) but does not include consequential
damage.
5.11 The Purchaser and T may not commence any claim in respect of any
breach of any representation or warranty (other than in respect of
Tax) more than two years after the date of this Agreement.
6. COMPLETION
6.1 Completion of the sale and purchase of the Casino Management
Interests and the Shares will take place on the Completion Date at
[#].
6.2 On the Completion Date XXX must deliver to the Purchaser all such
documents, agreements, assignments, instruments of transfer or
conveyance to transfer and assign the Casino Management Interests to
the Purchaser.
6.3 On the Completion Date XXX must (subject to any necessary Casino
Control Authority approval):
(a) ensure that a duly convened board meeting of SCM is held
at which a quorum of directors is present and acting
throughout at which:
(i) persons nominated by the Purchaser by notice
to XXX are appointed as directors of SCM,
subject to the receipt of signed consents to
act;
-11-
(ii) persons nominated by the Purchaser by notice
to XXX are appointed as the secretaries and
public officers of SCM, subject to the
receipt of signed consents to act;
(iii) persons nominated by the Purchaser by notice
to XXX resign as directors, secretaries and
public officers of SCM; and
(iv) the transfer of the Shares to the Purchaser
(subject to the payment of stamp duty on the
instruments of transfer which must be borne
by the Purchaser), the cancellation of the
existing share certificate for the Shares
and the sealing and delivery by SCM to the
Purchaser of a new share certificate for the
Shares in the name of the Purchaser are each
approved;
(b) deliver to (or at the direction of) the Purchaser the
minute books, statutory books and registers (all in good
order and fully and accurately entered up as at the
Completion Date in accordance with all relevant statutory
requirements), books of account, trading and financial
records, copies of taxation returns and other documents
and papers, and any common seal, duplicate seal or
official seal, of SCM; and
(c) deliver to the Purchaser executed instruments of transfer
of the Shares in favour of the Purchaser together with
the share certificates relating to the Shares.
6.4 On the Completion Date and subject to the due performance by XXX of
the obligations on its part to be performed under Clauses 6.2 and 6.3
the Purchaser will pay the Purchase Price to XXX.
7. COMPLETION OF PRE-COMPLETION EVENTS
7.1 Not later than twenty-one business days after completion under the
Share Sale Agreement (Star City), H must ensure that SCM and the
Showboat Leighton Partnership dispose of all Non Management Agreement
Assets and repay in full, or otherwise settle or extinguish, all Non
Management Agreement Liabilities and, on the requirements of this
Clause being met, H must immediately certify that to T in writing.
-12-
7.2 XXX will ensure that as at the Completion Date SCM will hold an
amount of Cash equal to the Residual Cash Amount.
7.3 H undertakes that to the extent that there is at the date of this
Agreement any agreement or arrangement between XXX, SCM or the
Showboat Leighton Partnership and H or any Related Body Corporate or
affiliate of H pursuant to which XXX, SCM or the Showboat Leighton
Partnership is required or obliged to pay any amount to H or its
Related Bodies Corporate or affiliates, then H will terminate, or
procure the termination of, any such agreement or arrangement prior
to the Completion Date so that as at the Completion Date neither XXX,
SCM nor the Showboat Leighton Partnership will have any liability or
ongoing obligation to H or its Related Bodies Corporate or affiliates
in connection with or in relation to the Casino Complex Management
Agreement, the provision of any services, the operations of the Star
City Casino or otherwise, and H will indemnify the Purchaser, XXX,
SCM and the Showboat Leighton Partnership in respect of any liability
incurred or loss or damage suffered as a result of any breach of this
covenant.
8. INFORMATION, TECHNOLOGY AND INTELLECTUAL PROPERTY
H acknowledges that it has supplied to, amongst others, XXX, Star
City, the Showboat Leighton Partnership and SCM certain information,
technology, know how and other Intellectual Property which is used or
has been used by them in or in connection with the operations of Star
City Casino or the Casino Management Rights. H grants to the
Purchaser and its Related Bodies Corporate, SCM, Star City, the
Showboat Leighton Partnership and any other person who may presently
use or have available to it the information, technology, know how and
other Intellectual Property referred to above a non-exclusive royalty
free licence in perpetuity to use all the information, technology,
know how and other Intellectual Property in or in connection with the
operations of Star City Casino or the Casino Management Rights, so
that the Purchaser, SCM, Star City, the Showboat Leighton Partnership
and any such other person may continue after the Completion Date to
use such information, technology, know how and other Intellectual
Property in the same manner as it had done at any time before the
Completion Date. H will use its reasonable endeavours to ensure that
the key executives engaged in connection with the operations of Star
City Casino or the Casino Management Rights continue to be engaged in
those operations after the Completion
-13-
9. TERMINATION
9.1 The obligation of the Purchaser to complete the purchase of the
Casino Management Interests and the Shares is subject to the
conditions that:
(a) each of the Warranties is true and correct as at the
Completion Date, with the same force and effect as if made
on the Completion Date. This condition may be waived by
the Purchaser at its discretion but a waiver is not a
waiver of any rights or remedies that it may have against
XXX by reason of any breach of Clause 5.1; and
(b) no disclosure or disclosures made to the Purchaser under
this Agreement, singularly or in the aggregate, reveals
any circumstance which has had, has or will have a
materially adverse effect on the business of the Showboat
Leighton Partnership, SCM or Star City. This condition may
be waived by the Purchaser at its discretion.
If condition (a) above is not satisfied or the circumstance described
in condition (b) above is revealed, the Purchaser may terminate this
Agreement by notice to XXX. If the Purchaser terminates this
Agreement, no party has any further liability to any other party
under this Agreement except that the termination will not prejudice
any rights or remedies that the Purchaser may have against XXX by
reason of any breach of Clause 5.1.
10. GUARANTEE by H
10.1 In consideration of T entering into this Agreement at the request of H, H:
(a) unconditionally and irrevocably guarantees to the
Purchaser on demand the due and punctual performance by
XXX of all its obligations under this Agreement; and
(b) separately indemnifies the Purchaser against any
Liabilities (other than to the extent they are due to any
negligence or default of T) which may be incurred or
sustained by the Purchaser in connection with any default
or delay by XXX in the due and punctual performance of any
of its obligations under this Agreement.
-14-
10.2 The liability of H under this Clause is not affected by any act,
omission or thing which, but for this provision, might in any way
operate to release or otherwise exonerate or discharge H from any of
its obligations including (without limitation) the grant to XXX or
any other person of any time, waiver or other indulgence, or the
discharge or release of XXX or any other person from any obligation.
10.3 This Clause:
(a) extends to cover this Agreement as amended, varied or
replaced, whether with or without the consent of H; and
(b) is a continuing guarantee and indemnity and, despite
Completion, remains in full force and effect for so long
as XXX has any liability or obligation to the Purchaser
under this Agreement and until all of those liabilities or
obligations have been fully discharged.
11. GUARANTEE by T
11.1 In consideration of H entering into this Agreement at the request of
T, T:
(a) unconditionally and irrevocably guarantees to XXX on
demand the due and punctual performance by the Purchaser
of all its obligations under this Agreement; and
(b) separately indemnifies the Purchaser against any
Liabilities (other than to the extent they are due to any
negligence or default of H) which may be incurred or
sustained by XXX in connection with any default or delay
by the Purchaser in the due and punctual performance of
any of its obligations under this Agreement.
11.2 The liability of T under this Clause is not affected by any act,
omission or thing which, but for this provision, might in any way
operate to release or otherwise exonerate or discharge T from any of
its obligations including (without limitation) the grant to the
Purchaser or any other person of any time, waiver or other
indulgence, or the discharge or release of the Purchaser or any other
person from any obligation.
-15-
11.3 This Clause is a continuing guarantee and indemnity and, despite
Completion, remains in full force and effect for so long as the
Purchaser has any liability or obligation to XXX under this Agreement
and until all of those liabilities or obligations have been fully
discharged.
12. COSTS
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty
(including fines, penalties and interest) which may be payable on or
in connection with this Agreement and any instrument executed under
this Agreement must be borne by the Purchaser.
13. MERGER
The rights and obligations of the parties do not merge on the
completion of any transaction contemplated by this Agreement. They
survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
14. ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no party may attempt, or purport, to do so without the prior
written consent of all parties.
15. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
16. ENTIRE AGREEMENT
This Agreement and the Master Agreement contain the entire agreement
between the parties with respect to its subject matter and supersedes
all prior agreements and understandings between the parties in
connection with it.
-16-
17. WAIVER
No failure to exercise nor any delay in exercising any right, power
or remedy by a party operates as a waiver. A single or partial
exercise of any right, power or remedy does not preclude any other or
further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the party granting that waiver
unless made in writing.
18. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
or made under this Agreement:
(a) must be in writing and signed by a person duly authorised
by the sender;
(b) must be delivered to the intended recipient by prepaid
post (if posted to an address in another country, by
registered airmail) or by hand or fax to the address or
fax number below or the address or fax number last
notified by the intended recipient to the sender:
(i) to the Purchaser: [#]
Attention: [#]
Fax No: [#]
(ii) to XXX: [#]
Attention: [#]
Fax No: [#]
(iii) to H: [#]
Attention: [#]
Fax No: [#]
(iv) to T: [#]
Attention: [#]
Fax No: [#]
(c) is taken to be duly given or made:
(i) in the case of delivery in person, when
delivered;
(ii) in the case of delivery by post two business
days after the date of posting (if posted to an
address in the same country) or seven business
days after the date of posting (if posted to an
address in another country);
-17-
(iii) in the case of fax, on receipt by the sender of
a transmission control report from the
despatching machine showing the relevant number
of pages and the correct destination fax
machine number and indicating that the
transmission had been made without error,
but if the result is that a Notice would be taken to be
given or made on a day which is not a business day in the
place to which the Notice is sent or is later than 4.00pm
(local time) it is taken to have been duly given or made
at the commencement of business on the next business day
in that place.
19. GOVERNING LAW
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts are taken to constitute one instrument.
-18-
SCHEDULE 1
--------------------------------------------------------------------------------
Warranties
Ownership of the Casino Management Interests
1 XXX:
(a) is the legal and beneficial owner of the Casino Management
Interests free from all Security Interests; and
(b) has full power and authority to transfer to the Purchaser
good legal and equitable title to the Casino Management
Interests free from all Security Interests.
Ownership of the Shares
2. XXX:
(a) is the legal and beneficial owner of the Shares free from
all Security Interests; and
(b) has full power and authority to transfer to the Purchaser
good legal and equitable title to the Shares free from all
Security Interests.
Shares
3. There are no outstanding subscription agreements, options, rights or
other analogous entitlements of any description to acquire from SCM
any unissued shares or stock of any class of SCM, or any securities
convertible into or exchangeable for or which otherwise confer on the
holder of it any right (whether or not upon the happening of any
contingency or after any lapse of time and whether or not upon the
payment or delivery of any consideration) to acquire any unissued
shares or stock of any class of SCM nor is SCM committed to grant or
issue any such option, right or security.
4. The Shares are the only issued shares in the capital of SCM other
than 15 shares held by Leighton, and represent 85% of the issued
shares in SCM.
-19-
5. Neither the entry by XXX into this Agreement nor the performance by
XXX of any of its terms give rise to any rights or claims of any
description by Leighton or any other person on the basis of any claim
of a right of pre-emption, first right of refusal or other right in
respect of the Shares.
Authorisations - Showboat Leighton Partnership and SCM
6. The Showboat Leighton Partnership and SCM have all material
Authorisations required to conduct their respective businesses and
have paid all fees due in relation to them and complied in all
material respects with all conditions under them.
7. There is no factor which might materially prejudice the continuance
or renewal of any Authorisation required under Warranty 6.
Management Agreement
8. Neither SCM, XXX nor the Showboat Leighton Partnership nor any other
party is in breach of the Management Agreement nor is XXX, after due
enquiry, aware of any impending or threatened breach by any party and
the Management Agreement is valid and legally enforceable in
accordance with its terms.
9. Without limiting Warranty 8, the Management Agreement is not subject
to termination or renegotiation or otherwise prejudicial materially
as a result of the assignment of the Casino Management Interests or
the change in ownership or control of SCM or other action required or
contemplated by this Agreement.
10. Neither the entry by XXX into this Agreement nor the performance by
XXX of any of its terms give rise to any rights or claims of any
description by Leighton or any other person on the basis of any claim
of a right of pre-emption, first right of refusal or other right in
respect of the Casino Management Interests.
Showboat Leighton Partnership
11. XXX is not, after due enquiry, aware of any actual, impending or
threatened breach of any agreement constituting or affecting the
Showboat Leighton Partnership.
-20-
Casino Control Authority
12. Each of XXX, the Showboat Leighton Partnership and SCM is in
compliance with each of its obligations to the Casino Control
Authority whether arising under the Casino Control Act, any agreement
or any other legislation and neither XXX, the Showboat Leighton
Partnership nor SCM is aware of any fact or circumstance which may
lead to a claim that any of them is in breach of the Casino Control
Act, any agreement or other legislation.
Proposals
13. XXX is not aware nor should it reasonably be aware of any proposals
of any Governmental Agency (including the Casino Control Authority)
not in the public arena, the implementation of which (whether by
force of law or voluntarily) might adversely affect Star City, SCM or
the Showboat Leighton Partnership.
Permanent establishments outside Australia
14. SCM does not have a permanent establishment (as that expression is
defined in any applicable double taxation convention) outside
Australia.
Subsidiaries
15. SCM does not control any entity. SCM is not a member of a partnership
or other unincorporated association. In this warranty CONTROL of an
entity means control of the entity within the meaning of the
accounting standards made for the purposes of section 295(2)(d) of
the Corporations Law.
Financial Accounts
16. The Financial Accounts have been prepared in accordance with
accounting principles and practices generally accepted in Australia
and comply with the requirements of the Corporations Law and all
other applicable statutes and regulations.
17. The balance sheet appearing in the Financial Accounts:
(a) discloses a true and fair view of the state of affairs of
SCM and the Showboat Leighton Partnership (as the case may
be) as at the Balance Date;
-21-
(b) is true and accurate in all material respects;
(c) includes adequate reserves or provisions for all
liabilities of SCM and the Showboat Leighton Partnership
(as the case may be) (including Tax Liabilities) as at the
Balance Date.
18. There are no loans, guarantees, indemnities, undertakings, mortgages,
charges, debentures, leases or other encumbrances or unusual
liabilities (including contingent liabilities) which have been given
or made or incurred by or assigned to or vested in or are outstanding
on behalf of SCM or the Showboat Leighton Partnership other than as
disclosed or taken into account in the Financial Accounts.
19. The Financial Accounts contain fully adequate provisions for holiday
pay, sick leave and long service leave in amounts which are at least
equal to the accrued legal liability of SCM or the Showboat Leighton
Partnership as at the Balance Date.
20. The profit and loss accounts appearing in the Financial Accounts
disclose a true and fair view of the profit or loss of SCM and the
Showboat Leighton Partnership for the period covered in those
accounts and is true and accurate in all material respects.
Completion Accounts
21. To the date of the Completion Accounts, there has been no change in
the total amount of the Liabilities or the trading position,
profitability or financial condition of SCM or the Showboat Leighton
Partnership from that set forth in the Financial Accounts except
changes in the ordinary course of business.
21A. (a) The Company has not been nor will it be;
(b) Neither the Showboat Leighton Partnership nor SCM has
been;
(c) Neither the Showboat Leighton Partnership nor SCM will be
(to the extent it is within the reasonable control of XXX
or the Vendor),
materially and adversely affected by any act, event or circumstance,
whether covered by insurance or not and except for the changes
required to be made under Clause 7 of this Agreement.
-22-
22. The Completion Accounts have been prepared in accordance with the
accounting principles and practices generally accepted in Australia
and comply with the requirements of the Corporations Law and all
other applicable statutes and regulations and the accounting
principles and practices determined by the Auditor or, in the event H
disagrees with these accounting principles and practices when
established, by the Independent Auditor.
23. The Completion Accounts:
(a) disclose a true and fair view of the state of affairs of
SCM and the Showboat Leighton Partnership as at the date
to which they are made up;
(b) are true and correct in all material respects;
(c) include adequate reserves or provisions for all
liabilities (including Tax Liabilities) of SCM and the
Showboat Leighton Partnership as at that date.
24. XXX has ensured that there is sufficient Cash held by SCM as at the
Completion Date to satisfy the aggregate amount of any Tax (whether
capital gains tax or otherwise) payable but unpaid by SCM as a result
of the disposal of the Non Management Agreement Assets as required by
Clause 7.1 of this Agreement. Any Cash (net of any receivables
appearing in the Completion Statement of Residual Management
Agreement Net Assets) held by SCM shall be invested by SCM with any
interest accruing to the benefit of H on the following terms:
(a) the Cash shall be invested with a trading bank or other
agreed financial institution of up to 90 day call; and
(b) all interest thereon (net of any Tax) will accrue to H and
be paid to H on demand.
25. The Completion Accounts contain fully adequate provisions for holiday
pay, sick leave and long service leave in amounts which are at least
equal to the accrued legal liability of SCM and the Showboat Leighton
Partnership as at the Completion Date.
-23-
26. Except to the extent of the amounts provided in the Completion
Accounts, neither SCM nor the Showboat Leighton Partnership is under,
nor will it assume prior to the Completion Date, any liability to any
person for any pension, lump sum retiring allowance or redundancy
payment or any liability with respect to holiday, long service or
sick leave entitlement.
27. As at the Completion Date, neither SCM nor the Showboat Leighton
Partnership has any Non Management Agreement Assets or Non Management
Agreement Liabilities.
Taxation
28. All Tax returns required by law to be lodged or filed by SCM or the
Showboat Leighton Partnership have been duly lodged or filed and
fully and accurately completed and each deduction, rebate or credit
claimed in them has been properly claimed and is duly allowable.
29. All Taxes (other than those which may still be paid without penalty
or interest) on or payable by SCM or the Showboat Leighton
Partnership have been paid or adequate provisions, reserves or
accruals for their payment (whether or not assessed) have been made
or provided for in the balance sheet appearing in the Financial
Accounts.
30. There are no outstanding disputes or Tax audits by or with or
threatened by the Commissioner of Taxation or any other authority or
instrumentality or officer concerning the liability of SCM or the
Showboat Leighton Partnership to any Tax.
31. SCM has not paid any dividend:
(a) in respect of which the required franking amount (as
provided for in section 160AQE of the Tax Act) has
exceeded the franked amount (as defined in section 160APA
of the Tax Act) of the dividend; or
(b) which has been franked in excess of the required franking
amount which would result in XXX or SCM being liable to
pay franking deficit tax as provided for in section 160AQJ
of the Tax Act or additional tax under section 160ARX of
the Tax Act.
32. No asset revaluation dividend (as defined in section 46E(1) of the
Tax Act) has at any time been paid to SCM.
-24-
33. SCM and the Showboat Leighton Partnership has complied with the
requirements of all legislation imposing Taxes in respect of the
retention of records and those records can be reconciled to the
returns lodged by SCM and the Showboat Leighton Partnership. In
particular, but without limitation, each of SCM and the Showboat
Leighton Partnership:
(a) has complied with section 262A and 160ZZU of the Tax Act;
(b) has retained duly prepared and executed election notices
required to be prepared under the Tax Act, has retained
duly completed and executed declarations required for the
purpose of ascertaining their liability to fringe benefits
tax; and
(c) has retained accurate records of franking credits and
franking debits in respect of its current and prior
accounting periods.
Legal Proceedings
34. (a) There is no suit, cause of action, proceeding,
application, arbitration, claim or investigation current,
pending, threatened or in prospect against XXX, SCM and
the Showboat Leighton Partnership and in particular there
is no outstanding product liability or workers'
compensation claim.
(b) No resolution has been passed for the winding up of XXX or
SCM.
(c) No resolution has been passed for the appointment of an
administrator to XXX or SCM.
(d) There is no unsatisfied judgment against XXX or SCM.
(e) There are no facts, matters or circumstances which give
any person the right to apply to wind up XXX or SCM or to
appoint a controller within the meaning of section 9 of
the Corporations Law or an administrator or an inspector
under the Corporations Law in respect of XXX or SCM or any
part of its undertaking or assets or income.
-25-
Agreements and Arrangements
35. Neither XXX, SCM nor the Showboat Leighton Partnership has sold,
transferred, assigned, created a Security Interest over, declared
itself a trustee of, parted with the benefit of or otherwise disposed
of the Casino Management Rights (or any interest in them or any part
of them) including without limitation by agreeing to pay, assign,
transfer or otherwise dispose of its right to management fees payable
under the Management Agreement, except for the Security Interest
created by the Commonwealth Bank over assets of the Showboat Leighton
Partnership under the primary finance facility provided by the
Commonwealth Bank to Star City and the trust relationship between
Leighton and National Mutual Limited.
Related party transactions
36. At Completion, there will be no outstanding contracts or transactions
between SCM or the Showboat Leighton Partnership and H or any Related
Body Corporate of H.
37. Pursuant to the Casino Complex Management Agreement, the Showboat
Leighton Partnership will receive during each Fiscal Year of the
Operating Term (as defined in the Casino Complex Management
Agreement) net income equal to the Management Fee prescribed in
Clause 12.1 of the Casino Complex Management Agreement, and all costs
or expenses incurred by XXX, SCM or the Showboat Leighton Partnership
are capable of being charged back to, and will be reimbursed by, Star
City or its Subsidiaries and neither XXX, SCM nor the Showboat
Leighton Partnership has or will have at the Completion Date any
ongoing liability or obligation to make any payment to H or its
Related Bodies Corporate or affiliates (or to any other person other
than in the ordinary course of business) in connection with or
related to the Casino Complex Management Agreement, the provision of
any services, the operations of the Star City Casino or otherwise.
-26-
SCHEDULE 2
--------------------------------------------------------------------------------
Form of Auditor's Report
(Clause 4.2)
-27-
EXECUTED as an Agreement.
[Each attorney executing this [#] Agreement states that he or she has no notice
of revocation or suspension of his or her power of attorney.]
NOTE: INSERT THE APPROPRIATE EXECUTION CLAUSES.
-28-
ATTACHMENT D
--------------------------------------------------------------------------------
Casino Services Agreement
T
and
H
---------------------------
CASINO SERVICES AGREEMENT
---------------------------
Xxxxxx Xxxxxxxx & Hedderwicks
Melbourne
Tel: 0000 0000
CASINO SERVICES AGREEMENT
--------------------------------------------------------------------------------
THIS AGREEMENT is made on 1999 between:
1. T (ACN ) of [ ] (T); and
2. H of [ ] (H).
RECITALS
A. H currently provides, or makes available, services, information,
technology and Intellectual Property for use in connection with the
operations of Star City Casino.
B. This Agreement is entered into in accordance with Clause 5 of the
Master Agreement. The objective of this Agreement is that, in
consideration for the services fee, T will gain access to the
knowledge and experience of H in operating casinos for use in the
future management of the operations of Star City. This Agreement will
in particular provide T with a mechanism to benchmark all aspects of
Star City's operations against H's hotel and casino properties, in
the areas of financial controls, human resource management and casino
and hotel operations.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Master Agreement Definitions to Apply
Subject to Clause 1.2, words and expressions which are defined in the
Master Agreement have the same meaning in this Agreement.
1.2 Defined Terms
ADVISORY COMMITTEE means the committee established under Clause 4.1.
COMMENCEMENT DATE means the date of this Agreement.
CONFIDENTIAL INFORMATION means information of one party (the
Disclosing Party) or its subsidiaries which is disclosed to or
observed by the other party (the Receiving Party) or its subsidiaries
in the course of performing this Agreement and which is regarded by
the Disclosing Party as confidential and which includes (but is not
limited to) information relating to technology and processes used or
developed by the Disclosing Party, and trade secrets and know-how and
information of a commercially sensitive nature, but does not include
any information which:
(a) at the time of the first disclosure to or observation by
the Receiving Party, was already in the lawful possession
of the Receiving Party;
(b) is in or comes into the public domain otherwise than by
disclosure in breach of the terms of this Agreement; or
(c) becomes available to the Receiving Party from any other
source provided that it was not acquired directly or
indirectly from the Disclosing Party.
DEFINED OPERATIONS means any of H's casino businesses and locations
including any attached hotel or other ancillary activity located in
Las Vegas, Nevada, Lake Tahoe, Nevada, Atlantic City, New Jersey,
East Chicago, Indiana, Shreveport, Louisiana and North Kansas City,
Missouri and, subject to agreement with H, any of H's other
Operations.
INTELLECTUAL PROPERTY means any industrial or intellectual property
whether protectable by statute, at common law or in equity, including
all copyright, moral rights (and similar rights), inventions,
patents, designs (whether or not registrable), registered and
unregistered trademarks, circuit layout designs, rights in relation
to circuit layouts, trade secrets and know-how.
MASTER AGREEMENT means the agreement dated [ ] between T and H.
OPERATIONS means any of H's casino businesses and locations including
any attached hotel or other ancillary activity.
-2-
SERVICES means advice, consultation and rights to inspection in
respect of all the operational know-how, methodology and technology
which H or any of its subsidiaries currently uses in Star City or any
of its Defined Operations or other businesses including but not
limited to:
(a) "Gold Card" Player tracking system and data base
methodology;
(b) gaming machine, table game and other casino games design
including rules of play, game denomination, pricing and
payment patterns;
(c) systems for measuring and monitoring and recording speed
of play, rating of players, dealers and supervisors;
(d) systems for measurement and optimisation of gaming machine
and table game and other casino game performance and
profitability;
(e) accounting systems, audit manuals and internal control
methodology systems and procedures;
(f) customer rating, marketing and complimentary reward
programs (including for premium, VIP and international
premium and VIP players);
(g) security and surveillance technology systems and
procedures;
(h) hotel car park and food and beverage yield management
systems;
(i) human resources policies not limited to employee
remuneration, training, recruitment and organisational
structures; and
(j) provision of H employees for the Advisory Committee as
described in Clause 4, access to information technology
and intellectual property as described in Clause 5, access
to Goods and Services as described in Clause 8 and rights
of inspection as contained in Clause 9.
YEAR means each consecutive period of twelve months, with the first
such period commencing on the Commencement Date.
-3-
1.3 Master Agreement Interpretation Provisions to Apply
The provisions of Clauses 1.2 and 1.3 of the Master Agreement apply,
mutatis mutandis, in the interpretation of this Agreement.
2. PROVISION OF SERVICES
On execution of this Agreement, as requested by T, H must provide for
the use of T, XXX, SCM and Star City, Services as set out in and,
where applicable, in accordance with procedures in this Agreement and
in particular as described in Clauses 4, 5, 6, 8 and 9. The provision
must be for a period commencing on the Commencement Date and expiring
on the earlier of three Years after that date or the termination of
this Agreement under Clause 10 (whichever occurs first). H is not
obligated to provide Services to the extent the provision of the
Services requires H to procure the Services from a third party (not
being a company controlled by H).
3. SERVICES FEE
3.1 In consideration for the provision of the Services in accordance with
this Agreement, T must pay to H in respect of each Year a services
fee payable quarterly in arrears within one month after the end of
each quarter.
3.2 The services fee applicable in respect of each Year will be either $7
million or $10 million, the fee applicable being dependent on T's
election at the beginning of each Year to a minimum level of Services
or to a maximum level of Services as set out in Clauses 4 and 9. The
$7 million fee applies to the minimum level of Services and the $10
million fee applies to the maximum level of Services.
4. ADVISORY COMMITTEE
4.1 As soon as practicable after the Commencement Date, the parties must
establish a committee (the Advisory Committee) which will have the
function of reviewing the operations of Star City Casino and must
meet for that purpose up to three times per year (minimum level of
Service) or if requested by T up to five times per year (maximum
level of Service).
-4-
4.2 As requested by T, H must appoint three persons as members of the
Advisory Committee (minimum level of Services) or, as requested by T,
up to five members (maximum level of Services). The persons appointed
as members will be as requested by T and agreed by H. With the
permission of or as requested by T, may from time to time remove any
member so appointed and appoint another person in his or her place,
except that:
(a) a person may only be appointed to the Advisory Committee
by a party where that person is a senior manager employed
by that party; and
(b) all of the persons who are appointed by a party as members
of the Advisory Committee at any one time must have
between them extensive experience in or knowledge of
casino operations including but not limited to management,
finance, human resources and marketing.
4.3 The parties acknowledge that the principal objectives of the Advisory
Committee are:
(a) to enable the members appointed by H to provide to the
members appointed by T the expertise, knowledge and
know-how of H and its subsidiaries in relation to casino
and hotel operations and finance and human resources in
the context of such operations for the purposes of the
operations of Star City Casino; and
(b) to enable T to benchmark all aspects of the operations of
Star City Casino against the Defined Operations.
4.4 H must provide such support and resources as is necessary to enable
the members appointed by it to the Advisory Committee to fulfil the
objectives of the Advisory Committee, including in particular the
objectives referred to in Clause 4.3.
4.5 Meetings of the Advisory Committee must be held at such locations as
are notified by T from time to time and members of the Advisory
Committee shall meet in person or by telephone. No meeting of the
Advisory Committee is to exceed three days in duration.
4.6 One of the H appointed members of the Advisory Committee, as
nominated by T, must act as the nominated point of contact for all
matters pertaining to the operation of this Agreement.
-5-
4.7 Meetings of the Advisory Committee must be convened in accordance
with this Agreement by a member appointed by T.
5. INFORMATION
During the term of this Agreement H must, on being given reasonable
notice by T, make available for inspection (and copying as agreed by
H) by T (at the Defined Operations) all documents and other records
as are necessary to access the Services in relation to the operation
of Star City. The right of T under this clause does not extend to
customer lists, whether contained in data bases or otherwise (save to
the extent it is necessary to understand customer tracking
methodology), documents or records disclosure of which would breach
obligations of confidence to third parties or require the consent of
third parties, or which constitutes an unwarranted intrusion into H's
affairs in the context of the intentions of the parties evidenced by
this Agreement.
6. LIBERTY TO T TO MERGE H INFORMATION WITH ITS OWN
H agrees that T will be at liberty to merge and use any information
supplied by it to T under Clause 5 with other information in the
possession of T (principally for use in connection with the operation
of Star City). The parties recognise that the merged information may
be available for use by T in other T operations in either Australia
and New Zealand or elsewhere (except that, during the currency of
this Agreement, T requires H's consent to the use of merged
information in T operations outside Australia and New Zealand).
7. CONFIDENTIALITY
7.1 Each party in this Clause 7 (referred to as the Disclosing Party)
undertakes not to disclose, or to allow the disclosure by its
subsidiaries or their respective officers, employees, contractors or
agents, or former subsidiaries or their respective officers,
employees, contractors or agents bound by this Agreement of,
Confidential Information of the other party or its subsidiaries,
except with the prior written consent of the second-mentioned party.
7.2 Nothing in this Clause 7 prohibits the disclosure of Confidential
Information by any Disclosing Party:
(a) to any Related Body Corporate of the Disclosing Party;
-6-
(b) if and to the extent required pursuant to any necessarily
applicable legislation or other legal requirement or
pursuant to the rules or regulations of any recognised
stock exchange which are applicable to the Disclosing
Party or any Related Body Corporate of the Disclosing
Party;
(c) to employees, officers, agents, professional advisers
(including legal advisers) and consultants of the
Disclosing Party whose duties in relation to the
Disclosing Party or under this Agreement necessarily
require the disclosure; or
(d) pursuant to a binding order of any court of competent
jurisdiction or other competent authority.
7.3 The provisions of this Clause 7 survive and continue to bind the
parties following the expiry or termination of this Agreement.
8. SUPPLIERS OF GOODS AND SERVICES
8.1 T and H must work together to gain maximum economic benefit in
relation to all purchases of Goods or Services for the mutual benefit
of each party. If requested by T from time to time, H or any of its
subsidiaries must:
(a) use its reasonable endeavours to ensure that the
suppliers of any Goods or Services which are purchased by
them and reasonably requested by T will supply those
Goods or Services for use in the operations of Star City
Casino at the same prices as those charged to H or its
subsidiaries; or
(b) purchase such Goods or Services as T may reasonably
request and on-sell them for use in the operations of
Star City Casino at the same prices as those charged to H
or its subsidiaries, adjusted only for taxes, duties and
other direct costs incurred by H or its subsidiaries.
8.2 In this Clause 8, Goods or Services means all goods or services used
or able to be used in the operations of Star City Casino and includes
but is not limited to casino technology, gaming machine equipment,
table game equipment and insurance.
-7-
9. INSPECTION OF KNOW-HOW, METHODOLOGY AND TECHNOLOGY
9.1 On the provision of 15 days notice by T, H must permit three persons
nominated by T, up to three times in any calendar year (minimum level
of Services) and up to five times in any calendar year (maximum level
of Services) for the purposes of meaningfully making benchmark
comparisons against Star's operations, to inspect the Defined
Operations. T's inspections cannot take place at times which are
disruptive to H's Operations.
9.2 For the inspections notified under Clause 9.1, H must designate a
contact person at each Defined Operation to be responsible for
arranging and co-ordinating with T access to the Defined Operation
and assistance in the inspection, including access to key management
and documents. H must also assist T (as reasonably requested by T) to
develop a plan of implementation of know-how, methodology and
technology of H's Operations into Star City's Operations and to
provide T with advice (as reasonably requested by T) on the
implementation of the plan. H will have the benefit of any
operational know-how, methodology and technology that T or any of its
subsidiaries develops with the assistance of H during the term of
this Agreement.
9.3 Additional to the periodic rights of inspection required by T, H must
allow T general access by telephone to any key personnel in any of
the Defined Operations following notification by T to the nominated
point of contact for H (refer Clause 4.6). The access by telephone
cannot take place at times which are disruptive to H's Operations.
10. TERMINATION
10.1 Either party may terminate this Agreement immediately by notice to
the other party if:
(a) the other party commits a material breach of this
Agreement and, if the breach is capable of being remedied,
the other party fails to remedy the breach within seven
days after being required in writing to do so;
(b) the other party:
(i) stops or suspends or threatens to stop or
suspend payment of all or a class of its debts;
-8-
(ii) is insolvent within the meaning of section 95A
of the Corporations Law;
(iii) must be presumed by a court to be insolvent by
reason of section 459C(2) of the Corporations
Law;
(iv) fails to comply with a statutory demand (within
the meaning of section 459F(1) of the
Corporations Law);
(v) has an administrator appointed over all or any
of its assets or undertaking or any step
preliminary to the appointment of an
administrator is taken;
(vi) has a controller within the meaning of section
9 of the Corporations Law or similar officer
appointed to all or any of its assets or
undertaking; or
(vii) has an application or order made, proceedings
commenced, a resolution passed or proposed in a
notice of meeting, an application to a court
made or other steps taken against or in respect
of it (other than frivolous or vexatious
applications, proceedings, notices or steps)
for its winding up or dissolution or for it to
enter an arrangement, compromise or composition
with or assignment for the benefit of its
creditors, a class of them or any of them;
(c) any event occurs in relation to a party which, under the
laws applicable to the party in its place of
incorporation, has the same or substantially similar
effect as any of the events specified in Clause 10.1(b);
or
(d) either T or H forms the reasonable opinion that
continuation of this Agreement may prejudice any licence
or licence application in relation to any casino or
wagering or gaming operation.
-9-
11. INDEMNITY
H indemnifies T, its subsidiaries and their respective officers,
employees, contractors and agents (each an Indemnified Person)
against all claims, losses, liabilities, damages, costs and expenses
(including, without limitation, court and legal costs, but excluding
claim losses, liabilities, damages, costs and expenses to the extent
they are due to any negligence or default of T) arising out of or
otherwise in connection with any action or claim by a person alleging
that the possession or use by the Indemnified Person of any
information, technology or Intellectual Property provided or made
available by H or any of its subsidiaries pursuant to this Agreement
infringes any Intellectual Property rights of that person.
12. BENEFIT OF AGREEMENT EXTENDS TO T's SUBSIDIARIES
12.1 H acknowledges that any wholly-owned subsidiary (within the meaning
of the Corporations Law) of T is entitled to the benefit of all
rights conferred on T by this Agreement and shall be entitled to
enforce those rights as if they were parties to this Agreement. In
particular H acknowledges that the subsidiaries of T are entitled to
the benefit of any licence which is granted to T under this
Agreement.
12.2 T is responsible for any breach of this Agreement which results from
the actions or omissions of any subsidiary of T.
13. COSTS
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty
(including fines, penalties and interest) which may be payable on or
in connection with this Agreement and any instrument executed under
this Agreement must be borne by T.
14. MERGER
The rights and obligations of the parties do not merge on the
completion of any transaction contemplated by this Agreement. They
survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
-10-
15. ASSIGNMENT
15.1 H may not assign the whole or any part of its rights and obligations
under this Agreement.
15.2 T may not assign the whole or any part of its rights and obligations
under this Agreement:
(a) to a direct competitor of H;
(b) to a person which is not of good financial standing able
to discharge the obligations of T under this Agreement; or
(c) to any other person without the consent of H.
15.3 If H refuses its consent under Clause 15.2(c), T at its option may
terminate this Agreement by notice in writing to H.
16. NON-SOLICITATION
T undertakes to H that it will not solicit employees of H during the
term of this Agreement.
17. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
18. ENTIRE AGREEMENT
This Agreement and the Master Agreement contain the entire agreement
between the parties with respect to its subject matter and supersedes
all prior agreements and understandings between the parties in
connection with it.
-11-
19. WAIVER
No failure to exercise nor any delay in exercising any right, power
or remedy by a party operates as a waiver. A single or partial
exercise of any right, power or remedy does not preclude any other or
further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the party granting that waiver
unless made in writing.
20. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
or made under this Agreement:
(a) must be in writing and signed by a person duly authorised
by the sender;
(b) must be delivered to the intended recipient by prepaid
post (if posted to an address in another country, by
registered airmail) or by hand or fax to the address or
fax number below or the address or fax number last
notified by the intended recipient to the sender:
(i) to T: [#]
Attention: [#]
Fax No: [#]
(ii) to H: [#]
Attention: [#]
Fax No: [#]
(c) is taken to be duly given or made:
(i) in the case of delivery in person, when
delivered;
(ii) in the case of delivery by post two business
days after the date of posting (if posted to an
address in the same country) or seven business
days after the date of posting (if posted to an
address in another country);
(iii) in the case of fax, on receipt by the sender of
a transmission control report from the
despatching machine showing the relevant number
of pages and the correct destination fax
machine number and indicating that the
transmission had been made without error,
-12-
but if the result is that a Notice would be taken to be
given or made on a day which is not a business day in the
place to which the Notice is sent or is later than 4.00pm
(local time) it is taken to have been duly given or made
at the commencement of business on the next business day
in that place.
21. GOVERNING LAW
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together are taken to constitute one instrument.
EXECUTED in Melbourne.
[Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.]
[INSERT APPROPRIATE EXECUTION CLAUSES]
-13-
ATTACHMENT E
--------------------------------------------------------------------------------
Share Sale Agreement (5%)
[H]
and
XXX
and
[T]
and
[T ENTITY]
-------------------------
SHARE SALE AGREEMENT (5%)
-------------------------
Xxxxxx Xxxxxxxx & Hedderwicks
Melbourne
Ref RJS:CRG
Tel 0000 0000
SHARE SALE AGREEMENT (5%)
--------------------------------------------------------------------------------
THIS AGREEMENT is made on 1999 between:
1. [H] (H);
2. XXX (XXX);
3. [T] (T); and
4. [T ENTITY] (the PURCHASER).
RECITALS
A. XXX is a wholly owned subsidiary of H.
B. XXX is the registered and beneficial owner of the Shares.
C. This Agreement records the terms on which H agrees to procure the
sale by XXX of, and XXX agrees to sell, the Shares to the Purchaser.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context otherwise
requires:
CASINO CONTROL ACT means the Casino Control Xxx 0000 of New South
Wales.
CASINO CONTROL AUTHORITY means the New South Wales Casino Control
Authority established under the Casino Control Act.
COMPLETION means completion by XXX and the Purchaser of the sale and
purchase of the Shares as provided in Clause 4.
COMPLETION DATE means the fifth day after entry into this Agreement.
CORPORATIONS LAW means the Corporations Law of Australia.
MASTER AGREEMENT means the Master Agreement dated [#] 1999 between H
and T.
SECURITY INTEREST means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in
any asset under a xxxx of sale, mortgage, charge, lien,
pledge, trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
SHARES means 27,500,000 ordinary shares in the capital of Star City
together with the benefit of all rights (including dividend rights)
attached or accruing to the shares as at the date of this Agreement.
STAR CITY means Star City Holdings Limited (ACN 000 000 000).
WARRANTIES means the representations, undertakings and other
obligations of H and XXX of whatever kind contained in this Agreement
(including, without limitation, those set out in Schedule 1).
$ means Australian dollars.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
-2-
(e) A reference to an agreement or document (including,
without limitation, a reference to this Agreement) is to
the agreement or document as amended, varied,
supplemented, novated or replaced except to the extent
prohibited by this Agreement or that other agreement or
document.
(f) A reference to legislation or to a provision of
legislation includes a modification or re-enactment of it,
a legislative provision substituted for it and a
regulation or statutory instrument issued under it.
(g) A reference to WRITING includes a facsimile transmission
and any means of reproducing words in a tangible and
permanently visible form.
1.3 Consents or Approvals
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
2. SALE AND PURCHASE
2.1 H agrees to procure the sale of, and XXX agrees to sell, the Shares
to the Purchaser and the Purchaser agrees to buy the Shares from XXX,
free from all Security Interests.
2.2 The purchase price for the Shares is $1.60 per Share.
3. WARRANTIES
3.1 H and XXX each represent to the Purchaser that each statement in
Schedule 1 is true and correct.
3.2 Each Warranty:
(a) remains in full force and effect after the Completion Date
despite Completion; and
(b) is given as at the date of this Agreement and as at the
time immediately before Completion.
3.3 H indemnifies the Purchaser on demand against all losses, costs and
liabilities that may be incurred by the Purchaser as a result
(directly or indirectly) of a breach of any Warranty.
-3-
4. COMPLETION
4.1 Completion of the sale and the purchase of the Shares will take place
on the Completion Date at [INSERT TIME AND VENUE].
4.2 On the Completion Date H and XXX must ensure that transfers of the
Shares are executed and delivered to the Purchaser and that share
certificates (if any) relating to the Shares are delivered to the
Purchaser, and the Purchaser must pay the purchase price for the
Shares to XXX.
5. TERMINATION
5.1 The obligation of the Purchaser to complete the purchase of the
Shares is subject to the condition that each of the Warranties is
true and correct on the Completion Date.
5.2 The condition referred to in Clause 5.1 may be waived by the
Purchaser in its discretion but a waiver is not a waiver of any
rights or remedies it may have against H by reason of any breach of
Clause 5.1.
5.3 If the condition referred to in Clause 5.1 is not satisfied the
Purchaser may terminate this Agreement by notice to H.
6. GUARANTEE OF PURCHASER'S OBLIGATIONS BY T
T guarantees to XXX the performance by the Purchaser of each of the
Purchaser's obligations under this Agreement, and T separately must
indemnify XXX against all liabilities that may be incurred by XXX as
a result (directly or indirectly) of any failure to perform those
obligations.
7. COSTS
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty
(including fines, penalties and interest) which may be payable on or
in connection with this Agreement and any instrument executed under
this Agreement must be borne by the Purchaser.
-4-
8. MERGER
The rights and obligations of the parties do not merge on the
completion of any transaction contemplated by this Agreement. They
survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
9. ENTIRE AGREEMENT
Apart from the Master Agreement, this Agreement and the Share Sale
Agreement (Showboat), the parties acknowledge and agree there are no
agreements, arrangements or understandings between the parties which
relate in any way to the voting or disposal of shares, options or
other securities in Star City.
10. ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no party may attempt, or purport, to do so without the prior
written consent of all parties.
11. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
12. WAIVER
No failure to exercise nor any delay in exercising any right, power
or remedy by a party operates as a waiver. A single or partial
exercise of any right, power or remedy does not preclude any other or
further exercise of that or any other right, power or remedy. A
waiver is not valid or binding on the party granting that waiver
unless made in writing.
13. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
or made under this Agreement:
(a) must be in writing and signed by a person duly authorised
by the sender;
-5-
(b) must be delivered to the intended recipient by prepaid
post (if posted to an address in another country, by
registered airmail) or by hand or fax to the address or
fax number below or the address or fax number last
notified by the intended recipient to the sender:
(i) to H or XXX: [#]
Attention: [#]
Fax No: [#]
(ii) to T or the Purchaser: [#]
Attention: [#]
Fax No: [#]
(c) is taken to be duly given or made:
(i) in the case of delivery in person, when
delivered;
(ii) in the case of delivery by post two business
days after the date of posting (if posted to an
address in the same country) or seven business
days after the date of posting (if posted to an
address in another country);
(iii) in the case of fax, on receipt by the sender of
a transmission control report from the
despatching machine showing the relevant number
of pages and the correct destination fax
machine number and indicating that the
transmission had been made without error,
but if the result is that a Notice would be taken to be
given or made on a day which is not a business day in the
place to which the Notice is sent or is later than 4.00pm
(local time) it is taken to have been duly given or made
at the commencement of business on the next business day
in that place.
14. GOVERNING LAW
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
EXECUTED by the parties.
-6-
SIGNED on behalf of [H] by its
authorised representative )
in the presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
Print Name
SIGNED on behalf of [XXX] by its
authorised representative in the )
presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
SIGNED on behalf of [T ENTITY] by
its authorised representative in )
the presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
SIGNED on behalf of [T] by its
authorised representative in the )
presence of: )
---------------------------------
Authorised signatory
----------------------------------
Witness
---------------------------------
Print Name
----------------------------------
-7-
SCHEDULE 1
Warranties
1. XXX:
(a) is the legal and beneficial owner of the Shares free from
all Security Interests;
(b) has the full power and authority to transfer to the
Purchaser good legal and equitable title to the Shares
free from all Security Interests.
2. Without limiting Warranty 1, neither the entry by H or XXX into this
Agreement nor the performance by H or XXX of any of its terms give
rise to any rights or claims of any description by any person on the
basis of any claim of a right of pre-emption, first right of refusal
or other rights in respect of any of the Shares.
-8-
