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EXHIBIT 10.2
ESCROW AGREEMENT
This Escrow Agreement (this "Escrow Agreement") dated March 31, 2000
("Effective Date") is entered into by and among Concorde Cruises, Inc., a South
Dakota corporation ("Buyer"), Goldcoast Entertainment Cruises, Inc., a Florida
corporation ("Goldcoast"), and National City Bank of Evansville, as escrow agent
(the "Escrow Agent").
RECITALS
A. Buyer, Goldcoast and Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxxxx (collectively,
the "Shareholders") have entered into that certain Partnership Interest Purchase
Agreement dated March 31, 2000 (the "Purchase Agreement") attached hereto as
Exhibit A, whereby Buyer shall purchase Goldcoast's interest in Bayfront
Ventures, a Florida general partnership, and Princesa Partners, a Florida
general partnership (collectively, the "Partnerships").
B. The Purchase Agreement provides for Goldcoast and the Shareholders to
indemnify Buyer for certain expenses and liabilities in accordance with the
terms and provisions contained in Article VIII of the Purchase Agreement.
C. The Purchase Agreement requires that Buyer deposit with the Escrow Agent
the sum of $75,000 in cash (the "Indemnity Amount"), which shall be a fund
against which claims for indemnification against Goldcoast and the Shareholders
shall first be made.
D. The Purchase Agreement also requires Buyer to deposit the sum of
$375,000 in cash (the "Holdback Amount" and together with the Indemnity Amount,
the "Escrow Amounts"), which amount shall be payable to Buyer in the event that
prior to the Legislative Session Expiration Date any rule, law, regulation or
statute is adopted or enacted by a federal, state, local or other governmental
or quasi-governmental entity, or any decision or proceeding by a court or other
tribunal is given, that (i) prohibits or has a material adverse affect on the
business of the Companies as such business is currently conducted as of the date
of the Purchase Agreement, or (ii) permits Class III gaming on Indian
reservations (the "Holdback Distribution Event").
D. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises set forth above and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF ESCROW AGENT
Section 1.01. APPOINTMENT OF ESCROW AGENT.
(a) The Escrow Agent is hereby appointed escrow agent in accordance
with the instructions set forth in this Escrow Agreement and National City
Bank of Evansville hereby agrees to act as the Escrow Agent under this
Escrow Agreement. The Escrow
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Agent shall have no duty to enforce any provision hereof requiring
performance by any other party hereunder.
(b) The Escrow Agent hereby acknowledges receipt of an escrow deposit
as follows: (i) $75,000 for the Indemnity Amount; and (ii) $375,000 for the
Holdback Amount.
(c) The Escrow Agent shall not have any interest in the Escrow
Amounts, but shall serve as escrow holder only and have only possession
thereof. The Escrow Agent expressly waives any right to set off and
appropriate any amounts under the Escrow Amounts.
(d) The Escrow Agent shall establish two separate escrow accounts. One
account shall be for the Indemnity Amount (the "Indemnity Escrow") and the
second account shall be for the Holdback Amount (the "Holdback Escrow").
ARTICLE II
TAX
Section 2.01. TAX WITHHOLDING AND REPORTING.
(a) General. Any payments of income from the Escrow Amounts shall be
subject to any withholding required with respect to Taxes. For federal,
state and local income tax purposes, all interest earned on the Escrow
Amounts shall be reportable to Goldcoast. The Escrow Agent shall file
annually all information returns with the Internal Revenue Service and
other governmental authorities documenting such interest income. As
required by law, the parties hereto will provide Escrow Agent with
appropriate Internal Revenue Service Forms W-9 for tax identification
number certification, or non-resident alien, certifications.
(b) Tax Treatment of Payments. Any indemnification payments or
payments made in connection with a Holdback Distribution Event, whether
from the Indemnity Escrow or Holdback Escrow, shall be treated as
adjustments to the purchase price for all purposes.
ARTICLE III
ESCROW PROCEDURE
Section 3.01. CLAIM CERTIFICATES. Buyer, from time to time on or prior to
the first anniversary of the date of this Agreement (the "Termination Date"),
may make a claim for indemnification pursuant to Article VIII of the Purchase
Agreement, on behalf of itself or another indemnitee, for up to all of the
Indemnity Amount (a "Claim") by delivering to the Escrow Agent a certificate (a
"Claim Certificate") signed by an authorized officer of Buyer in substantially
the form of Exhibit B attached hereto; provided, however, that none of the
Indemnity Amount shall be distributed to Buyer by the Escrow Agent unless a
Final Determination has been made with respect to the Claim. If a Final
Determination has not been
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made with respect to the Claim, the Claim Certificate shall include the
following additional information:
(a) a statement that Buyer or its Affiliates ("Buyer Indemnitee") is
entitled to be indemnified under Article VIII of the Purchase Agreement;
(b) the reasons therefore, set forth in reasonable detail;
(c) the amount of the Claim by Buyer Indemnitee, provided that where
the amount of the Claim is not a liquidated sum, the amount of the Claim
shall be the amount reasonably estimated by Buyer Indemnitee in good faith;
and
(d) a statement that Buyer Indemnitee has delivered a copy of such
Claim Certificate to Goldcoast and its legal counsel and the date on which
such copy was delivered.
Whenever a Claim Certificate is delivered to the Escrow Agent, the Escrow
Agent shall thereupon promptly deliver a copy to Goldcoast and its legal
counsel.
Section 3.02. DISPUTED CLAIMS. For any Claim in which a Final Determination
has not been made, Goldcoast may dispute such Claim in whole or in part (a
"Disputed Claim"), by delivering to the Escrow Agent a written notice (an
"Objection Notice") within fifteen (15) calendar days of receipt of the Claim
Certificate from Buyer (such date referred to herein as the "Last Notice Date")
stating:
(a) that Goldcoast disputes or objects to such Claim;
(b) the reasons for such objection or dispute, to the extent then
known;
(c) that Goldcoast has delivered a copy of the Objection Notice to
Buyer and its legal counsel and the date on which such copy was delivered;
and
(d) the portion of the Claim set forth in the Claim Certificate, if
any, to which there is no dispute or objection, including the dollar amount
of such portion of the Claim (an "Undisputed Claim").
Whenever there shall be delivered to the Escrow Agent an Objection Notice,
the Escrow Agent shall thereupon promptly deliver a copy to Buyer and its legal
counsel.
Section 3.03. PAYMENT OF CLAIMS.
(a) For Claims for which a Final Determination has been made and
submitted to the Escrow Agent, the Escrow Agent shall, within two (2)
business days after the date it receives the Claim Certificate, pay to
Buyer from the Indemnity Escrow an amount equal to the amount of the Claim
specified in the Final Determination.
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(b) Claims for which a Final Determination has not been made shall be
paid as follows:
(i) If the Escrow Agent does not receive an Objection Notice by
the Last Notice Date, the Escrow Agent shall, within two business days
after such date, pay to Buyer from the Indemnity Escrow an amount
equal to the amount of the Claim specified in the Claim Certificate.
(ii) If the Escrow Agent receives from Goldcoast an Objection
Notice which consents or agrees to part of a Claim, the Escrow Agent
shall, within two (2) business days after the date it receives the
Objection Notice, pay to Buyer from the Indemnity Escrow an amount
equal to the aggregate amount of such Undisputed Claim as specified in
the Objection Notice from Goldcoast.
(c) If the Indemnity Amount is not sufficient to pay in full any
amounts payable to Buyer under the preceding Sections 3.03(a) or 3.03(b),
the Escrow Agent shall pay to Buyer such amount from the Indemnity Escrow
as is available and the Escrow Agent's obligations under this Escrow
Agreement shall terminate.
Section 3.04. DISTRIBUTION OF INDEMNITY ESCROW. Except as provided in
Section 3.03 hereof, the Escrow Agent shall not make any distribution of the
Indemnity Escrow with respect to any Claim made by Buyer hereunder until:
(a) it receives the written consent or agreement from Goldcoast with
respect to such distribution; or
(b) there is a Final Determination with respect to a Disputed Claim.
Section 3.05. TERMINATION OF INDEMNITY ESCROW. Unless earlier terminated
pursuant to Section 3.03(c):
(a) on the Termination Date, all of the Indemnity Amount (including
any interest earned thereon) held by the Escrow Agent pursuant to the terms
of this Escrow Agreement, less an amount equal to one hundred percent
(100%) of the amount of any Disputed Claims as set forth herein, shall be
paid by Escrow Agent to Goldcoast; and
(b) upon settlement of all Disputed Claims outstanding as of the
Termination Date, the Escrow Agent's obligations under this Escrow
Agreement shall terminate, and all remaining Indemnity Amounts (including
any interest earned thereon) held by the Escrow Agent shall be paid by the
Escrow Agent to Goldcoast in accordance with such settlement, written
notice of which shall be delivered to the Escrow Agent.
ARTICLE IV
HOLDBACK ESCROW
Section 4.01. HOLDBACK ESCROW. If a Holdback Distribution Event occurs
prior to Legislative Session Expiration Date, Buyer shall deliver to the Escrow
Agent a certificate ("Officer's Certificate") signed by an authorized officer of
Buyer in substantially the form of
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Exhibit C attached hereto; provided, however, that none of the Holdback Amount
shall be distributed to Buyer by the Escrow Agent unless Goldcoast fails to
object to the Officer's Certificate in the requisite time period or until the
dispute over the matters set forth in such Officer's Certificate are resolved as
set forth in Section 4.03 hereof.
Whenever an Officer's Certificate is delivered to the Escrow Agent, the
Escrow Agent shall thereupon promptly deliver a copy to Goldcoast and its
counsel.
Section 4.02. DISPUTED CLAIMS. Goldcoast may dispute such Officer's
Certificate by delivering to the Escrow Agent a written notice (a "Holdback
Objection Notice") within fifteen (15) calendar days of receipt of the Officer's
Certificate from Buyer stating:
(a) that Goldcoast disputes or objects to such Officer's Certificate;
(b) the reasons for such objection or dispute; and
(c) that Goldcoast has delivered a copy of the Holdback Objection
Notice to Buyer and its legal counsel and the date on which such copy was
delivered.
Whenever there shall be delivered to the Escrow Agent a Holdback Objection
Notice, the Escrow Agent shall thereupon promptly deliver a copy to Buyer and
its legal counsel.
Section 4.03. DISTRIBUTION OF HOLDBACK ESCROW.
(a) Escrow Agent shall take the following actions with respect to the
Holdback Escrow:
(i) If the Escrow Agent does not receive a Holdback Objection
Notice within fifteen (15) calendar days after the date that it
receives an Officer's Certificate from Buyer, the Escrow Agent shall,
within two (2) business days after such fifteen (15) day period, pay
to Buyer the aggregate amount in the Holdback Escrow.
(ii) If the Escrow Agent receives from Goldcoast a Holdback
Objection Notice, the Escrow Agent shall, within two (2) business days
after the date it receives the Holdback Objection Notice, notify Buyer
that Goldcoast has sent a Holdback Objection Notice to such Officer's
Certificate.
(iii) Upon Buyer's receipt of the Holdback Objection Notice,
Buyer and Goldcoast shall use their best efforts to resolve such
dispute and, in the event they are unable to do so, such dispute shall
be subject to arbitration as set forth in Section 6.07 of this Escrow
Agreement.
Section 4.04. TERMINATION OF HOLDBACK ESCROW. If the Holdback Distribution
Event does not occur on or prior to the Legislative Session Expiration Date,
which date is expected to occur in May 2000, then within two (2) business days
after its receipt of written notice executed by Goldcoast and Buyer stating that
the Holdback Distribution Event did not occur, Escrow
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Agent shall pay to Goldcoast the aggregate amount contained in the Holdback
Escrow (including any interest earned thereon).
ARTICLE V
ESCROW AMOUNTS
Section 5.01. ADMINISTRATION OF ESCROW AMOUNTS.
(a) Escrow Agent shall invest the Escrow Amounts in the Federal
Treasury Obligations Money Market Fund or, if specifically directed in
writing by Goldcoast, in Investments. Neither the Escrow Agent, Buyer nor
Goldcoast shall be liable or responsible for any loss resulting from any
investment or reinvestment made pursuant to this Section 5.01 and Buyer
acknowledges that its right to any amounts contained in the Indemnity
Escrow or Holdback Escrow shall be limited to the current balance of such
accounts.
As used herein "Investments" means:
(i) direct obligations of, or obligations fully guaranteed by,
the United States of America or any agency thereof with any residual
amount being invested in the Federal Treasury Obligations Money Market
Fund; and
(ii) certificates of deposit whether negotiable or nonnegotiable,
issued by any bank, trust company or national banking association,
including the Escrow Agent, provided that such certificates of deposit
shall (A) be issued by a bank, trust company or national banking
association having a capital stock and surplus of more than
$500,000,000, (B) be fully insured by the Federal Deposit Insurance
Corporation or (C) be fully and continuously secured by direct
obligations of, or obligations unconditionally guaranteed by, the
United States of America, which (1) shall have a market value
(exclusive of accrued interest) at all times at least equal to the
principal amount of such certificates of deposit, (2) shall be lodged
with the Escrow Agent (or any correspondent bank or trust company
designated by the Escrow Agent), as custodian, by the bank, trust
company or national banking association issuing such certificate of
deposit; and
(iii) the bank, trust company or national banking association
issuing each certificate of deposit required to be so secured shall
furnish the Escrow Agent with an undertaking satisfactory to it that
the aggregate market value of such obligations securing each such
certificate of deposit will at all times be an amount equal to the
principal amount of each such certificate of deposit (and the Escrow
Agent shall be entitled to rely on each such undertaking).
(b) Maturities or unexpired terms of maturities of instruments in
which the Indemnity Amount is invested shall not exceed ninety (90) days
and in which the Holdback Amount is invested shall not exceed thirty (30)
days. The Escrow Agent is authorized to sell any such Investments as may be
required to make any payment under this Escrow Agreement, and the Escrow
Agent shall not be liable for any loss due to early
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redemption. In the event that no such written instructions are given by
Goldcoast as to any uninvested portion of the Escrow Amounts, such portion
shall be invested by the Escrow Agent in United States treasury bills for a
thirty (30) day period; provided, however that if such period is not
available, such portion shall be invested for the closest period of shorter
duration.
(c) Not less than ten (10) nor more than fifteen (15) business days
prior to the termination of the Escrow Agent's obligations under this
Escrow Agreement, the Escrow Agent shall deliver to Buyer and Goldcoast a
report outlining (i) the total amount of the Escrow Amounts as of such date
and the total amount of interest earned on the Escrow Amounts prior thereto
and not distributed pursuant to the terms of this Escrow Agreement, and
(ii) copies of or a description of all Claim Certificates pursuant to which
payments from the Indemnity Escrow have been made and a description of all
other payments made from the Indemnity Escrow during the preceding eleven
(11) month period and all pending Claim Certificates as of such date.
(d) At the prior written request of either Buyer or Goldcoast at any
time, the Escrow Agent shall deliver to Buyer and Goldcoast such
information as shall be reasonably requested with respect to the Escrow
Amounts and any interest earned thereon or payments made therefrom.
ARTICLE VI
OTHER
Section 6.01. NOTICES. All notices (including Objection Notices),
certificates (including Claim Certificates), payments and distributions required
or permitted to be given or delivered hereunder shall be in writing (including
facsimile transmissions) and shall be deemed to have been given if delivered
personally or by commercial messenger or courier service, or mailed by
registered or certified mail (return receipt requested) or sent via facsimile
(with acknowledgment of complete transmission) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to Buyer: Concorde Cruises, Inc.
c/o Concorde Gaming Corporation
0000 Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000)000-0000
Fax: (000)000-0000
with a copy to: Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000)000-0000
Fax: (000)000-0000
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If to Goldcoast: Goldcoast Entertainment Cruises, Inc.
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000)000-0000
Fax: (000)000-0000
If to Escrow Agent: National City Bank of Evansville
Box 868
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Telephone: (000)000-0000
Fax: (000)000-0000
Notice so given shall be deemed given and received (i) if by mail on the
fourth calendar day after posting; (ii) by facsimile or personal delivery on the
date of actual transmission or personal delivery, as the case may be; and (iii)
if by overnight courier, on the next business day following the day such notice
is delivered to the courier service.
Section 6.02. RELIANCE. Escrow Agent may act upon any instrument or other
writing believed by it in good faith to be genuine and to be signed or presented
by the proper person or persons and shall not be liable in connection with the
performance by it of its duties pursuant to the provisions hereof, except for
its own willful misconduct or gross negligence. Buyer and Goldcoast shall each
jointly and severally indemnify and save harmless the Escrow Agent for one half
of all losses, costs, and expenses which may be incurred by it without gross
negligence or willful misconduct on the part of the Escrow Agent, arising out of
or in connection with its entering into this Escrow Agreement and carrying out
its duties hereunder. Such indemnification provisions shall survive the
termination of this Escrow Agreement or the removal or resignation of the Escrow
Agent.
Section 6.03. FEES AND EXPENSES. The Escrow Agent shall be entitled to
compensation equal to Two Thousand Dollars ($2,000) for all of its services,
which compensation shall be paid one-half by Buyer and one-half by Goldcoast by
wire transfer of immediately available funds to an account designated by Escrow
Agent. The fee agreed upon for the services rendered hereunder is intended as
full compensation for the Escrow Agent's services as contemplated by this Escrow
Agreement.
Section 6.04. LIABILITY OF THE ESCROW AGENT.
(a) The Escrow Agent shall hold, invest and disburse the Escrow
Amounts and any interest accrued thereon only in accordance with (a) this
Escrow Agreement or (b) written instructions accompanied by a certificate
signed by Buyer and Goldcoast confirming that such written instructions are
being given in conformity with this Escrow Agreement. The Escrow Agent
shall not be bound in any way by, or be deemed to have knowledge of, the
Purchase Agreement or any other agreement between or among the
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parties hereto, other than this Escrow Agreement and the provisions of the
Purchase Agreement specifically referenced herein. The Escrow Agent shall
have no duties other than those expressly imposed on it herein and shall
not be liable with respect to any action taken by it, or any failure on its
part to act, except to the extent that such actions constitute gross
negligence or willful misconduct.
(b) The Escrow Agent makes no representations and has no
responsibility as to the validity, genuineness or sufficiency of any of the
documents or instruments delivered to it hereunder. Subject to Section
6.04(a) hereof, the Escrow Agent (i) shall be entitled to rely upon any
order, judgment, certification, demand, notice, instrument or other writing
delivered to it hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety
or validity of the service thereof, and (ii) may act in reliance upon any
instrument or signature reasonably believed by it to be genuine and may
assume that any person purporting to give notice, receipt or advice or make
any statement or execute any document in connection with the provisions
hereof has been duly authorized to do so. The Escrow Agent may act in
reliance upon the written advice of counsel satisfactory to it in reference
to any matter in connection with this Escrow Agreement and shall not incur
any liability for any action taken in good faith in accordance with such
written advice.
(c) In the event the Escrow Agent should at any time be confronted
with inconsistent or conflicting claims or demands by the parties hereto,
such dispute shall be adjudicated in accordance with the arbitration
provisions set forth in Section 6.07.
Section 6.05. RESIGNATION; REMOVAL.
(a) The Escrow Agent may resign upon thirty (30) days advance written
notice to the parties. If a successor escrow agent is not appointed by the
mutual agreement of Buyer and Goldcoast within the thirty (30) day period
following such notice, the Escrow Agent may tender into the registry or
custody of any court of competent jurisdiction any part or all of the
Escrow Amounts.
(b) The Escrow Agent shall be entitled to its compensation earned
prior its resignation hereunder.
(c) Buyer and Goldcoast may, at any time, substitute a new escrow
agent by giving thirty (30) days notice thereof to the existing Escrow
Agent and paying all fees and expenses of such Escrow Agent incurred to the
date of the substitution. Upon the effective date of the substitution of a
successor escrow agent, the Escrow Agent shall deposit all of the Escrow
Amounts with such successor.
Section 6.06. GOVERNING LAW. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction and venue of any court within the City and County of Denver, State
of Colorado, in connection with any matter based upon or arising out of this
Escrow Agreement or the matters contemplated herein, which matters are not
subject
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to arbitration under Section 6.07, and agrees that process may be served upon
them in any manner authorized by the laws of the State of Colorado for such
persons and waives and covenants not to assert or plead any objection which they
might otherwise have to such jurisdiction, venue and such process.
Section 6.07. ARBITRATION. All disputes, controversies or claims arising
out of or relating to this Escrow Agreement (including filing a Claim or
delivering a Claim Certificate or Officer's Certificate pursuant to Sections
3.01 and 4.01, respectively, and any objections by Goldcoast thereto), or the
breach hereof, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in Miami, Florida with
respect to claims brought by the Buyer and Denver, Colorado with respect to
claims brought by Goldcoast and, notwithstanding the preceding, any claim
involving the Escrow Agent. One arbitrator shall be selected by the indemnifying
party or parties (or in the case of a dispute involving the Escrow Agent, the
Escrow Agent), one arbitrator shall be selected by the indemnified party (or in
the case of a dispute involving the Escrow Agent, the other party to such
dispute), and the third arbitrator shall be chosen by the first two arbitrators
chosen. The cost and expense of arbitration shall be shared equally by the
parties to the arbitration, regardless of which party or parties prevail, except
with respect to attorney's fees which shall be subject to the provisions
contained in Section 6.11. The arbitration shall be conducted in accordance with
the following time schedule unless otherwise mutually agreed to in writing by
the parties: (i) parties to the arbitration proceeding shall each appoint their
respective arbitrator within fifteen (15) business days after notice of the
claim is received from the party initiating the arbitration; (ii) within five
(5) business days thereafter, such arbitrators shall appoint the third
arbitrator; (iii) within ten (10) business days after appointment of the third
arbitrator, the parties to the arbitration proceeding shall provide all
documents, records and supporting documentation reasonably necessary to resolve
the dispute; and (iv) within fifteen (15) business days after the date the above
records are due, the arbitrators shall render their decision The decision or
award of the arbitrators shall be final and binding upon the parties hereto to
the same extent and to the same degree as if the matter had been adjudicated by
a court of competent jurisdiction and shall be enforceable under the Federal
Arbitration Act.
Section 6.08. AMENDMENTS. This Escrow Agreement may be amended or modified,
and any of the terms, covenants, representations, warranties, or conditions
hereof may be waived, only by a written instrument executed by all the parties
hereto, or in the case of a waiver, by the party waiving compliance. Any waiver
by any party of any condition, or of the breach of any provision, term,
covenant, representation, or warranty contained in this Escrow Agreement in any
one or more instances, shall not be deemed to be nor construed as a further or
continuing waiver of any such conditions, or of the breach of any other
provision, term, covenant, representation, or warranty of this Escrow Agreement.
Section 6.09. SECTION HEADINGS. The section headings in this Escrow
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Escrow Agreement.
Section 6.10. SEVERABILITY. In the event that any part of this Escrow
Agreement is declared by any court or other judicial or administrative body to
be null, void, or unenforceable,
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said provision shall survive to the extent it is not so declared, and all of the
other provisions of this Escrow Agreement shall remain in full force and affect.
Section 6.11. ATTORNEY'S FEES. In the event of a dispute under this Escrow
Agreement, the reasonable attorneys' fees and costs of the prevailing party in
such dispute, shall be paid by the opposing party in such dispute.
Section 6.12. COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Escrow
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. Signatures on this Escrow Agreement may be communicated by
facsimile transmission and shall be binding upon the parties transmitting the
same by facsimile transmission. Counterparts with original signatures shall be
provided within seven days of the applicable facsimile transmission, provided,
however, that the failure to provide the original counterpart shall have no
effect on the validity or the binding nature of the Escrow Agreement. If
executed in counterparts, the Escrow Agreement shall be effective as if
simultaneously executed. No provision of this Escrow Agreement is intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
Section 6.13. ESCROW AGENT REPORTS. Pursuant to the regulations of the
Office of the Comptroller of the Currency 12 C.F.R. 12.5(1), Buyer and Goldcoast
have the right to receive, at no additional cost and within five (5) business
days of the transaction, a written notification disclosing certain information
relating to securities purchase and sale transactions in the Escrow Amounts. The
Escrow Agent has the option of furnishing to Buyer and Goldcoast either (1) a
copy of the broker-dealer confirmation relating to the transaction or (2) a
written notification disclosing: the Escrow Agent's name, the account name, the
Escrow Agent's capacity in the transaction, the date of execution (and, upon
Buyer's and Goldcoast's written request, the time of execution) of the
transaction, the identity, price and number of shares involved, the remuneration
to the broker-dealer and his identity, the total remuneration to be received by
the Escrow Agent, and, if no broker-dealer was involved, the identify of the
person from whom the security was purchased or to whom it was sold.
In lieu of the foregoing time and form of notification, Buyer and Goldcoast
agree that the Escrow Agent's periodic statements, transmitted pursuant to the
terms of this Escrow Agreement, will suffice.
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IN WITNESS WHEREOF, Buyer, Goldcoast and the Escrow Agent have caused this
Escrow Agreement to be signed the day and year first above written.
BUYER
CONCORDE CRUISES, INC.
By:/s/ XXXXX X. XXXX
---------------------------------------
Name: Xxxxx X. Xxxx
Title: President
SELLER
GOLDCOAST ENTERTAINMENT CRUISES,
INC.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
ESCROW AGENT
NATIONAL CITY BANK OF EVANSVILLE
By: /s/ XXXXX XXXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxxx
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Title: Trust Administrator
------------------------------------
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EXHIBIT A
PARTNERSHIP INTEREST PURCHASE AGREEMENT
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EXHIBIT B
FORM OF CLAIM CERTIFICATE
This Claim Certificate Notice is delivered pursuant to Section 3.01 of that
certain Escrow Agreement dated as of March 31, 2000 (the "Escrow Agreement"), by
and among Concorde Cruises, Inc., a South Dakota corporation ("Buyer"),
Goldcoast Entertainment Cruises, Inc., a Florida corporation ("Goldcoast"), and
National City Bank of Evansville, as escrow agent (the "Escrow Agent").
Capitalized terms used herein without definition shall have the meanings set
forth in the Escrow Agreement.
The undersigned hereby instructs Escrow Agent to pay to the undersigned,
within two (2) business days after Escrow Agent's receipt of this Claim
Certificate, at the address set forth below, $______ from the Indemnity Escrow
established and maintained pursuant to the Escrow Agreement. In connection with
such distribution, the undersigned hereby certifies as follows:
1. Buyer is entitled to submit this Claim Certificate to Escrow Agent
pursuant to Article III of the Escrow Agreement.
2. The reasons Buyer is entitled to be indemnified are as follows:
3. There has been a Final Determination with respect to the Claim with
evidence of such Final Determination submitted herewith.
4. Buyer has delivered a copy of this Claim Certificate to Goldcoast and
its legal counsel on _______________________.
Dated:
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Concorde Cruises, Inc.,
a South Dakota corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
Address for Payment:
0000 Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
B-1
15
EXHIBIT C
OFFICER'S CERTIFICATE
This Officer's Certificate is delivered pursuant to Section 4.01 of that
certain Escrow Agreement dated as of March 31, 2000 (the "Escrow Agreement"), by
and among Concorde Cruises, Inc., a South Dakota corporation ("Buyer"),
Goldcoast Entertainment Cruises, Inc., a Florida corporation ("Goldcoast"), and
National City Bank of Evansville, as escrow agent (the "Escrow Agent").
Capitalized terms used herein without definition shall have the meanings set
forth in the Escrow Agreement.
The undersigned hereby instructs Escrow Agent to pay to the undersigned,
upon the expiration of a fifteen (15) calendar day period from the date this
Officer's Certificate is received by Goldcoast, at the address set forth below,
the entire amount from the Holdback Escrow established and maintained pursuant
to the Escrow Agreement. In connection with such distribution, the undersigned
hereby certifies as follows:
1. Buyer is entitled to submit this Officer's Certificate to Escrow Agent
pursuant to Article IV of the Escrow Agreement.
2. The Holdback Distribution Event has occurred.
3. Buyer has delivered a copy of this Officer's Certificate to Goldcoast
and its legal counsel on ___________________.
Dated:
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Concorde Cruises, Inc.,
a South Dakota corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
Address for Payment:
0000 Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
C-1
