EXHIBIT 10.36.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of the 18th day of January, 2000, by and
among MERCANTILE BANK NATIONAL ASSOCIATION, a national banking association
("Bank"), PRESIDENT RIVERBOAT CASINO - MISSOURI, INC., a Missouri corporation
("Company"), and U.S. TITLE GUARANTY COMPANY, INC., a Missouri corporation, as
escrow agent (the "Escrow Agent").
RECITALS
A. Bank has entered into a Loan Agreement of even date herewith with The Port
Authority of the City of St. Louis ("Borrower") and Borrower's obligations
thereunder are guarantied by President Casinos, Inc. pursuant to a Guaranty of
even date herewith.
B. As further security for Guarantor's obligations under the Guaranty,
Company has agreed to place certain monies on deposit with Escrow Agent for
the benefit of Bank.
C. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in that certain Relocation Funding Agreement
dated as of January 18, 2000 (the "Relocation Funding Agreement") among the
City of St. Louis, Missouri, Borrower and Company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
APPOINTMENT OF ESCROW AGENT
The Escrow Agent is hereby appointed to act as Escrow Agent hereunder and
agrees to accept and to hold the Escrow Deposit (as defined in Article II
hereof) in accordance with the terms hereof.
ARTICLE II
ESTABLISHMENT OF ESCROW
Fifteen days after the end of each fiscal commencing March 15, 2000 and
continuing until the payment in full of all Guarantor's Obligations and
release of the Guaranty, Company shall deposit with the Escrow Agent the
lesser of (i) a sum equal to two percent (2%) of the Adjusted Gross Receipts
in excess of Sixty Million Dollars ($60,000,000) received or accrued by
Company in connection with the Gaming Operations during Company's immediately
preceding fiscal year and (ii) Three Hundred Thousand Dollars ($300,000) (such
amount, as so deposited, being collectively referred to as the "Escrow
Deposit"), to be held by the Escrow Agent in escrow pending release pursuant
to Article V hereof. Company's fiscal year presently commences on March 1 of
each calendar year and ends on February 28/29 of each calendar year and
Company may not change its fiscal year without the express written consent of
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Bank.
Upon full disbursement of all amounts to be advanced under the Note in the
principal amount of $2,400,000 executed by the Borrower, any amounts in the
Escrow Deposit in excess of 30% of the outstanding principal balance of the
Note, shall be returned to the Company.
ARTICLE III
DECLARATION OF ESCROW
The Escrow Agent hereby declares and agrees that it will hold and distribute
the Escrow Deposit, together with any interest earned thereon, in accordance
with and subject to the express provisions of this Escrow Agreement.
ARTICLE IV
ESCROW PERIOD
Unless sooner terminated as provided in Section 7.03 hereof, the term of this
escrow shall commence immediately upon execution and delivery of this Escrow
Agreement and shall expire upon termination pursuant to Section 6.02 hereof.
ARTICLE V
DISTRIBUTION OF ESCROW DEPOSIT
5.01 Distribution of Escrow Deposit to Bank. The Escrow Deposit shall be
released to Bank free and clear of any interest of Company upon the
presentation to the Escrow Agent, with a copy to Company, of a written
statement by Bank as follows: "A default has occurred in respect of
Guarantor's Obligations under that certain Guaranty dated as of January 18,
2000 executed by President Casinos, Inc. for the benefit of Mercantile Bank
National Association ("Bank"). The sum of Dollars ($ )
is now due and owing to Bank, which sum represents the lesser of (i) the
amount of the Escrow Deposit and (ii) the amount due in respect of Guarantor's
Obligations, including, without limitation, the amount of all Borrower's
Liabilities then due and payable to Bank (as such terms are defined in the
Guaranty)." Such disbursement(s) may be made at any time and from time to
time, up to the amount of the Escrow Deposit.
5.02 Manner of Disbursement. The said Escrow Deposit shall be held in escrow
by the Escrow Agent as assurance for performance of Guarantor's Obligations
and shall be disbursed by the Escrow Agent as follows: following Bank's
delivery of the written statement contemplated by Section 5.01 above, the
Escrow Agent shall pay the Escrow Deposit (or such lesser amount as may be
requested by Bank) to Bank within five (5) business days of receipt by the
Escrow Agent of such written statement.
5.03 Security Interest. This Agreement is intended to provide additional
security for the payment and performance of Guarantor's Obligations, as
defined in the Guaranty. Accordingly, Company hereby grants, pledges,
transfers and assigns to Bank a continuing security interest in and right of
set-off against the following, whether now existing or hereafter acquired or
arising: all of Company's right, title and interest, in, to and under (i) the
Escrow Deposit and all instruments, securities, documents, accounts, general
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intangibles, money and other property and contents therein and thereof, and
all rights relating thereto and proceeds therefrom and thereof, including,
without limitation, the deposits constituting the Escrow Deposit from time to
time and all earnings thereon at any time or from time to time in the
possession or control of Escrow Agent, (ii) all books and records relating to
the types and items of property described in the foregoing clause (i), and
(iii) all proceeds (whether cash or non-cash, and including, without
limitation, insurance proceeds) and products of the property described in the
foregoing clause (i), and all replacements and substitutions therefor and all
additions and accessions thereto (collectively, the "Collateral"). Bank shall
have all the rights and remedies of a secured party under the Uniform
Commercial Code and any other applicable law. Company will promptly execute
such financing statements, continuation statements and other documents as may
be reasonably necessary or convenient to perfect, continue or otherwise
evidence said security interest and pay all expenses and fees for the
preparation and filing thereof. Escrow Agent hereby acknowledges receipt of
notice of Bank's security interest in the Collateral. Company acknowledges
that Bank required delivery of the Guaranty as a condition precedent to
entering into the Loan Agreement and the Relocation Funding Agreement and that
Company has a financial interest in Bank entering into such agreements.
Company further acknowledges that Bank has relied upon the security granted
hereunder in accepting the Guaranty.
ARTICLE VI
PROVISIONS CONCERNING THE ESCROW AGENT
6.01 Compensation. Upon receipt by Bank and Company of the Escrow Agent's
written notice itemizing its reasonable fees and out-of-pocket expenses
incurred in performing its duties hereunder, the Escrow Agent shall be
entitled to payment of such fees and reimbursement for such expenses. Such
payment and reimbursement obligations shall be paid by Company.
6.02 Termination of this Escrow. This Escrow Agreement shall terminate upon
payment in full of all amounts. Any remaining balance of the Escrow Deposit
shall be disbursed to the Company.
6.03 Duties of the Escrow Agent. This Escrow Agreement sets forth the duties
and obligations of the Escrow Agent with respect to any and all matters
pertinent to its acting as such hereunder. The Escrow Agent shall not have
duties or responsibilities under this Escrow Agreement other than those
specifically set forth herein and shall act only in accordance with the
provisions hereof.
6.04 Liability of the Escrow Agent. Neither the Escrow Agent nor any of its
officers, directors, shareholders, partners, employees or agents shall be
liable to Bank or Company or any other person or entity for or in respect of
any loss, claim, damage, liability or expense resulting from or arising out of
any act or failure to act by it in connection with this Escrow Agreement,
other than for any loss, claim, damage, liability or expense which shall be
finally adjudicated to be the result of gross negligence or willful bad faith
on the part of the Escrow Agent or any such officers, directors, partners,
employees or agents. Bank and Company agree to indemnify Escrow Agent for any
loss or damages arising from acting as Escrow Agent hereunder except for
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conduct constituting gross negligence or willful misconduct of Escrow Agent.
6.05 Deposit of Escrow Deposit with Court. Notwithstanding anything herein
to the contrary, in the event of any disagreement between any of the parties
to this Escrow Agreement, or between them and any other person, resulting in
adverse claims or demands being made against the Escrow Deposit, or in the
event the Escrow Agent in good faith is in doubt as to what action it should
take hereunder, the Escrow Agent may be discharged of its duties and
obligations hereunder upon its deposit, at any time after written notice to
Banks and Company, of the Escrow Deposit with a court of competent
jurisdiction. The parties hereto hereby submit to the personal jurisdiction
of any such court, waive any and all right to contest the jurisdiction of such
court, and consent to service of process by hand delivery or mail delivery
thereof to their respective addresses set forth in Section 7.02 hereof.
6.06 Investment of Escrow Deposit. The Escrow Agent shall cause the Escrow
Deposit from time to time to be invested and reinvested in such short-term,
high-grade securities, interest-bearing bank accounts, bank certificates of
deposit or bank repurchase agreements as Company, in its discretion, deems
suitable, and all interest thereon shall be added to the Escrow Deposit.
ARTICLE VII
MISCELLANEOUS
7.01 Entire Agreement. This Escrow Agreement has been entered into pursuant
to the Guaranty and as such embodies the entire agreement and understanding
among the parties hereto relating to the escrow created hereunder and may not
be changed orally, but only by an instrument in writing signed by all the
parties hereto.
7.02 Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered, if delivered in person or by
telecopy, or when received, if mailed by first-class mail or express delivery
service, postage or other fee prepaid, with return receipt requested,
addressed to each party hereto as follows:
(a) If to Bank:
Mercantile Bank National Association
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
copy to:
Xxxxx Xxxx LLP
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) If to Company:
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000
Xxxxxxxxx Xxxxxxxxx Xxxxxx-Xxxxxxxx, Inc.
000 X. 0xx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
copy to:
Xxxxxxxx Xxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(c) If the Escrow Agent, to:
U.S. Title Guaranty Company, Inc.
0000 Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxxx
or at such other address as any party may designate by means of notice given
in accordance with this Section 7.02.
7.03 Headings. The article and section headings contained in this Escrow
Agreement have been inserted for convenience only and shall not modify,
define, limit or expand the express provisions of this Escrow Agreement.
7.04 Governing Law. This Escrow Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Missouri as applied to
contracts made and performed within the State of Missouri without regard to
its conflicts of law principles.
7.05 Binding on Successors and Assigns. This Escrow Agreement shall be
binding upon the parties hereto and their respective successors and assigns,
provided that the Escrow Agent may not assign its obligations hereunder
without the consent of Bank and Company.
7.06 Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed as original, but all of which
together shall constitute one and the same agreement, and it shall not be
necessary, in proving the due execution and delivery of this Escrow Agreement,
to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as
of the day and year first written.
BANK:
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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COMPANY:
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Exec. V.P. & CFO
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ESCROW AGENT:
U.S. TITLE GUARANTY COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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