EXHIBIT 10.36.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of the 18th day of January, 2000, by and
among the PORT AUTHORITY OF THE CITY OF ST. LOUIS, MISSOURI, a public
corporation ("Borrower"), 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. President Casinos, Inc. ("Guarantor") has entered into a Guaranty of
Completion Agreement with the Borrower of even date herewith, pursuant to
which Guarantor guarantees the completion of certain improvements by Company
described in a Relocation Funding Agreement of even date herewith, as
hereafter defined.
B. As further security for Guarantor's obligations under the Guaranty of
Completion, Company has agreed to place certain monies on deposit with Escrow
Agent for the benefit of Borrower.
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, Company and Mercantile Bank National
Association ("Bank").
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
On the date of final signatures of the Relocation Funding Agreement, Company
shall deposit with the Escrow Agent Five Hundred Thousand Dollars
($500,000.00) (such amount, as so deposited, being referred to as the "Escrow
Deposit"), to be held by the Escrow Agent in escrow pending release pursuant
to Article V hereof.
ARTICLE III
DECLARATION OF ESCROW
The Escrow Agent hereby declares and agrees that it will hold and distribute
198
the Escrow Deposit, together with any interest earned thereon, in accordance
with and subject to the express provisions of this Escrow Agreement.
ARTICLE IV
ESCROW PERIOD
Unless sooner terminated as provided in Section 7.03 hereof, the term of this
escrow shall commence immediately upon execution and delivery of this Escrow
Agreement and shall expire upon termination pursuant to Section 6.02 hereof.
ARTICLE V
DISTRIBUTION OF ESCROW DEPOSIT
5.1 Distribution of Escrow Deposit to Borrower. The Escrow Deposit shall be
released to Borrower free and clear of any interest of Company upon the
presentation to the Escrow Agent, with a copy to Company, of a written
statement by Borrower as follows: "A default has occurred in respect of
Guarantor's Obligations under that certain Guaranty of Completion dated as of
January 18, 2000 executed by President Casinos, Inc. for the benefit of the
Port Authority of the City of St. Louis. The sum of Dollars
($ ) is now due and owing to the Port Authority of the City of St.
Louis, which sum represents the lesser of (i) the amount of the Escrow Deposit
and (ii) the amount due in respect of Guarantor's Obligations (as such terms
are defined in the Guaranty of Completion)." Such disbursement(s) may be made
at any time and from time to time, up to the amount of the Escrow Deposit and
shall be used for completion of the Relocation Project or, if Borrower has
reasonably concluded that the Relocation Project cannot be completed under any
circumstances, may be used to repay the loan from Borrower to Bank.
5.2 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 Borrower'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 Borrower) to Borrower within five (5) business days of receipt by
the Escrow Agent of such written statement.
5.3 Security Interest. This Agreement is intended to provide additional
security for the payment and performance of Guarantor's Obligations, as
defined in the Guaranty of Completion. Accordingly, Company hereby grants,
pledges, transfers and assigns to Borrower 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 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
2
199
foregoing clause (i), and all replacements and substitutions therefor and all
additions and accessions thereto (collectively, the "Collateral"). Borrower
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 Borrower's security interest in the Collateral. Company
acknowledges that Borrower required delivery of the Guaranty of Completion as
a condition precedent to entering into the Loan Agreement and the Relocation
Funding Agreement and that Company has a financial interest in Borrower's
entering into such agreements. Company further acknowledges that Borrower has
relied upon the security granted hereunder in accepting the Guaranty of
Completion.
5.4 Disbursement for Completion of Construction. Anything herein to the
contrary notwithstanding, provided that the Company is not in default beyond
the expiration of notice and grace periods pursuant to the Relocation Funding
Agreement, when the Company shall have given notice and provided appropriate
evidence that all expenses of the Admiral relocation described in the
Relocation Funding Agreement have been paid and, where applicable, mechanics
lien waivers received, except for a final Five Hundred Thousand Dollars
($500,000.00) of such expenses, the Escrow Agent shall pay the final expenses
of the Relocation Project. If, notwithstanding the efforts of the parties, a
portion of the Escrow Deposit shall not have been released upon the completion
of the relocation project and the payment in full of all the expenses
described in the Relocation Funding Agreement, the balance of the Escrow
Deposit shall be disbursed to the Company.
ARTICLE VI
PROVISIONS CONCERNING THE ESCROW AGENT
6.1 Compensation. Upon receipt by Borrower and Company of the Escrow Agent's
written notice itemizing its 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.
6.2 Termination of this Escrow. This Escrow Agreement shall terminate upon
the earlier of (i) the date of full disbursement of the Escrow Deposit or (ii)
substantial completion of the Relocation Project without any need for use of
the Escrow Deposit to complete payment. After termination hereof, any
remaining balance of the Escrow Deposit shall be disbursed to the Company.
6.3 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.
6.4 Liability of the Escrow Agent. Neither the Escrow Agent nor any of its
3
200
officers, directors, shareholders, partners, employees or agents shall be
liable to Borrower 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
conduct constituting gross negligence or willful misconduct of Escrow Agent.
6.5 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.
6.6 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
7.1 Entire Agreement. This Escrow Agreement has been entered into pursuant
to the Guaranty of Completion 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.
7.2 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 Company:
President Riverboat Casino-Missouri, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
4
201
copy to:
Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(b) If to Borrower:
Port Authority of the City of St. Louis
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Executive Director
(c) If to Escrow Agent:
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.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
BORROWER:
THE PORT AUTHORITY OF THE CITY OF ST.
LOUIS, MISSOURI
5
202
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------------
Title: Chairman
------------------------------------
COMPANY:
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Exec. V.P. & CFO
------------------------------------
ESCROW AGENT:
U.S. TITLE GUARANTY COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
6
