ESCROW AGREEMENT
Agreement dated this 4th day of November, 1996 by and between Proflight,
Inc., a Colorado corporation (the "Company"), Air Response, Inc., a New York
corporation ("Air Response") and Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxx & Xxxxx
("Escrow Agent").
1. GENERAL
(a) In order to demonstrate good faith in its interest, subject to its
due diligence investigation, to acquire Air Response, and its subsidiaries, the
Company agrees to deposit, in escrow, with the Escrow Agent, the sum of $200,000
(the "Escrow Deposit"). Air Response agrees that the Company shall have the
absolute control over the Escrow Deposit which shall be paid to Air Response at
such time as a letter of intent (the "Letter of Intent") is entered into between
the parties. In the event the Company, in its sole discretion, determines not to
enter into the Letter of Intent with Air Response, it shall notify Air Response,
in writing and the Escrow Agent shall return the Escrow Deposit to the Company.
(b) Anything to the contrary herein notwithstanding, Air Response
agrees, until 5:00 p.m., November 15, 1996, Eastern Standard Time, not to offer
to any third party the business and/or assets of Air Response.
2. APPOINTMENT OF ESCROW AGENT
The Company and Air Response hereby appoint the Escrow Agent and the
Escrow Agent hereby accepts its appointment as Escrow Agent pursuant to the
terms and conditions hereinafter set forth:
(a) The Company shall cause to be delivered to Escrow Agent the Escrow
Deposit. Escrow Agent shall hold the Escrow Deposit until the earlier of (i) its
receipt of written instructions from the Company to return the Escrow Deposit to
it or (ii) the signing of the Letter of Intent.
(b) It is understood and agreed by the parties to this Agreement as
follows:
(i) The Escrow Agent is not and shall not be deemed to be a
trustee for any party for any purpose and is merely acting as a depository and
in a ministerial capacity hereunder with the limited duties herein prescribed.
(ii) The Escrow Agent does not have and shall not be deemed to
have any responsibility in respect of any instruction certificate or notice
delivered to it other than faithfully to
carry out the obligations undertaken in this Agreement and to follow the
directions in such instruction or notice provided in accordance with the terms
hereof.
(iii) The Escrow Agent is not and shall not be deemed to be
liable for any action taken or omitted by it in good faith and may rely upon,
and act in accordance with, the advice of its counsel without liability on its
part for any action taken or omitted in accordance with such advice. In any
event, its liability hereunder shall be limited to liability for gross
negligence, willful misconduct or bad faith on its part.
(iv) The Escrow Agent may conclusively rely upon and act in
accordance with any certificate, instruction notice, letter, telegram, cablegram
or other written instrument believed by it to be genuine and signed by the
Company and Air Response. Anything to the contrary herein notwithstanding, the
Escrow Agent can rely on the written instructions of the Company, without
instructions from Air Response, as set forth in l(b) above, to return the Escrow
Deposit at any time the Company has decided, in its sole discretion, not to
enter into a Letter of Intent with Air Response.
(v) The Company and Air Response agree to save harmless,
indemnify and defend the Escrow Agent for, from and against any loss, damage,
liability, judgment, cost and expense whatsoever, including attorney's fees,
suffered or incurred by it by reason of, or on account of, any misrepresentation
made to it or as to its status or activities as Escrow Agent under this
Agreement except for any loss, damage, liability, judgment, cost or expense
resulting from gross negligence, willful misconduct or bad faith on the part of
the Escrow Agent.
(vi) The Escrow Agent shall not be required to defend any legal
proceeding which may be instituted against it in respect of the subject matter
of this Agreement. If any such legal proceeding is instituted against it, the
Escrow Agent agrees promptly to give notice of such proceeding to the Company
and Air Response. The Escrow Agent shall not be required to institute legal
proceedings of any kind.
(vii) The Escrow Agent shall not, by act, delay, omission or
otherwise, be deemed to have waived any right or remedy it may have either under
this Agreement or generally, unless such waiver be in writing, and no waiver
shall be valid unless it is in writing, signed by the Escrow Agent, and only to
the extent expressly therein set forth. A waiver by the Escrow Agent under the
terms of this Agreement shall not be construed as a bar to, or waiver of, the
same or any other such right or remedy which it would otherwise have on any
other occasion.
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(viii) The Escrow Agent may refrain from taking any action other
than keeping all property held by it in escrow if it is uncertain concerning its
duties or rights under this Escrow Agreement or receives claims or demands from
any person or entity or receives a final judgment by a court of competent
jurisdiction if it deems that necessary or advisable.
3. MISCELLANEOUS
(a) Except as specifically referred herein, this agreement constitutes
the entire contract between the parties hereto concerning the subject matter
hereof and no party shall be liable or bound to the other in any manner by any
warranties, representations or covenants except as specifically set forth
herein. The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or implied is intended to confer upon any
party, other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
(b) Any notice under the provisions of this Agreement shall be given in
writing and delivered by hand, overnight courier or messenger service, against
signed receipt or acknowledgment of receipt, or by registered or certified mail,
return receipt requested, or telecopier or similar means of communication if
receipt is confirmed or if transmission is confirmed by mail at the addresses
provided on the signature page hereof or the telecopier numbers set forth on the
signature pages hereof. Any party may by like notice, change the address to
which notice should be given.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the state of New York.
(d) This Agreement may be executed in two counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(e) Except as herein provided, any provision of this Agreement may be
amended or waived by a written instrument signed by the parties hereto.
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In Witness Whereof, the parties have executed this Agreement as
of the day and year first above written.
Proflight, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxx
00000 X. Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Agreed and Accepted:
Air Response, Inc.
By:
--------------------------
Xxxxx X. Xxxxxx, Xx.
Orlando Executive Airport, 000X
Xxxxxxx Xxxxxx
Xxxxxx 00
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx Xxxxxxxxx Xxxxxx
Xxxxx & Xxxxx
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
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In Witness Whereof, the parties have executed this Agreement as
of the day and year first above written.
Proflight, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxx
00000 X. Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Agreed and Accepted:
Air Response, Inc.
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxx X. Xxxxxx, Xx.
Orlando Executive Airport, 000X
Xxxxxxx Xxxxxx
Xxxxxx 72
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx Xxxxxxxxx Xxxxxx
Xxxxx & Xxxxx
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
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