Escrow Agreement Page 2
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104. Customer acknowledges and agrees that until such time as a cruise has been
completed and Customer has taken the actions described herein, Customer shall not be
entitled, nor shall it have any interest in any funds deposited with Escrow Agent to the
extent such funds represent Unearned Passenger Revenue.
5. Customer may, at any time, deposit additional funds consisting exclusively of
Unearned Passenger Revenue and the Fixed Amount, into the Escrow Account and
Escrow Agent shall accept all such funds for deposit and shall manage all such funds
pursuant to the terms of this Agreement.
6. After the establishment of the Escrow Account, as provided in Paragraph 1,
Customer shall on a weekly basis on each (identify day of week), or if Customer or
Escrow Agent is not open for business on (identify day of week) then on the next
business day that Customer and Escrow Agent are open for business recompute the
amount of Unearned Passenger Revenue as of the close of business on the preceding
business day (hereinafter referred to as the “Determination Date”) and deliver a
Recomputation Certificate to Escrow Agent on such date.
In each such weekly
recomputation Customer shall calculate the amount by which Unearned Passenger
Revenue has decreased due to (i) the cancellation of reservations and the
corresponding refund of monies from Customer to the persons or entities canceling
such reservations; (ii) the amount which Customer has earned as revenue as a result of
any cancellation fee charged upon the cancellation of any reservations; (iii) the amount
which Customer has earned due to the completion of cruises; and (iv) the amount by
which Unearned Passenger Revenue has increased due to receipts from passengers
for future water transportation and all other accommodations, services and facilities
relating thereto and not yet performed.
The amount of Unearned Passenger Revenue as recomputed shall be compared
with the amount of Unearned Passenger Revenue for the immediately preceding period
to determine whether there has been a net increase or decrease in Unearned
Passenger Revenue. If the balance of the Escrow Account as of the Determination
Date exceeds the sum of the amount of Unearned Passenger Revenue, as recomputed,
plus the Fixed Amount then applicable, then Escrow Agent shall make any excess funds
in the Escrow Account available to Customer. If the balance in the Escrow Account as
of the Determination Date is less than the sum of the amount of Unearned Passenger
Revenue, as recomputed, plus an amount equal to the Fixed Amount, Customer shall
deposit an amount equal to such deficiency with the Escrow Agent. Such deposit shall
be made in immediately available funds via wire transfer or by direct transfer from the
Customer’s U.S. Bank checking account before the close of business on the next
business day following the day on which the Recomputation Certificate is received by
Escrow Agent. The Escrow Agent shall promptly notify the Commission within two
business days any time a deposit required by a Recomputation Certificate delivered to
the Escrow Agent is not timely made.
7. Customer shall furnish a Recomputation Certificate, in substantially the form
attached hereto as Annex 1, to the Federal Maritime Commission (the “Commission”)
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