ESCROW AGREEMENT
(American Air Network Alaska, Inc.)
This ESCROW AGREEMENT (the "Agreement"), dated as of the 24th day of
August, 2006, by and among AMERICAN AIR NETWORK ALASKA, INC., a Nevada
corporation ("AANA"), HOME ENERGY SAVINGS CORP, a Nevada corporation ("HESC"),
XXXXXXX X. XXXXXXXXX ("Xxxxxxxxx") (each individually, a "Party", and
collectively, the "Parties"), and XXXXX X. XXXXXX, ATTORNEY AT LAW, as escrow
agent ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, AANA and HESC, are parties to that certain Security Agreement
dated as of the date hereof (the "Security Agreement"), whereby AANA granted
HESC a security interest is certain accounts receivable and general intangibles
of AANA, including without limitation, certain possible Federal corporate income
tax refunds claimed to be due to AANA pursuant to those certain respective Form
1120 U.S. Corporate Income Tax Returns executed or to be executed by AANA,
covering taxable periods in years 2003, 2004 and 2005 (the "Tax Refund"), to
secure the payment of that certain promissory note dated of even date herewith
having an original principal amount of $75,000 executed by Xxxxxxxxx in favor of
HESC (the "Note");
WHEREAS, AANA has agreed to execute the Form 8050, Direct Deposit of
Corporate Tax Refund attached as Exhibit A to the Security Agreement (the "Form
8050"), directing the payment of the claimed Tax Refund, if any, to an account
with Xxxxx Fargo Bank established by the Escrow Agent named or to be named
"Attorney-Client Trust for American Air Network Alaska, Inc., Xxxxx X. Xxxxxx,
Attorney-Trustee" (the "Escrow Account");
WHEREAS, in the event that one or more Tax Refunds are delivered to the
Escrow Account, the Parties desire that Escrow Agent hold such Tax Refunds as
escrow agent in accordance with the terms of this Agreement;
WHEREAS, in such event, Escrow Agent is willing to serve as escrow
agent and hold the Tax Refund(s) in the Escrow Account in accordance with the
terms and conditions hereof;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Contemporaneously with the execution of this Agreement, AANA has
prepared, executed and delivered, or will prepare, execute and deliver, to the
Internal Revenue Service, United States Department of the Treasury the Form
8050. In the event that Escrow Agent receives one or more payments from the
Internal Revenue Service, United States Department of the Treasury constituting
a Tax Refund, Escrow Agent agrees to hold the Tax Refund in trust until the
first to occur of the following:
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a. Escrow Agent receives written notice from HESC of
acceleration of the Note, amount of principal and interest due and payable under
the Note, and notice of exercise of applicable remedies under the Escrow
Agreement, amount of principal and interest due and payable under the Note,
including the amount due and payable under the Note, whereupon the Escrow Agent
shall deliver to HESC the amount demanded and shall deliver any balance of the
Tax Refund, following such delivery to HESC, to AANA. If the amount of the Tax
Refund held by Escrow Agent at the time of receipt of any such written notice
from HESC is less than the amount due and payable under the Note, Escrow Agent
shall deliver to HESC the full amount of the Tax Refund held by it. In either
event, upon delivery of the amounts held in trust by Escrow Agent in accordance
with this Section 1.a., this Agreement shall terminate and Escrow Agent shall
have no other responsibilities under this Agreement except to promptly deliver
to AANA any payments it receives from the Alaska Department of Revenue
constituting the Tax Refund following the date of such termination.
b. Escrow Agent receives written directions signed by all the
Parties relative to the release and distribution of the Tax Refund, whereupon
Escrow Agent shall comply therewith to the extent legally permitted. Upon
delivery of the amounts held in trust by Escrow Agent in accordance with this
Section 1.b., this Agreement shall terminate and Escrow Agent shall have no
other responsibilities under this Agreement except to promptly deliver to AANA
any payments it receives from the Alaska Department of Revenue constituting the
Tax Refund following the date of such termination.
c. On or about the date that is 13 months following the date
of this Agreement, deliver the Tax Refund held in trust to AANA. Upon deliver of
the amounts held in trust by Escrow Agent in accordance with this Section 1.c.,
this Agreement shall terminate and Escrow Agent shall have no further duties or
responsibilities under this Agreement except to promptly deliver to AANA any
payments it receives from the Alaska Department of Revenue constituting the Tax
Refund following the date of such termination.
2. Escrow Agent shall be entitled to rely upon, and shall be fully
protected from all liability, loss, cost, damage or expense in acting or
omitting to act pursuant to, any instruction, order, judgment, certification,
affidavit, demand, notice, opinion, instrument or other writing delivered to it
hereunder without being required to determine the authenticity of such document,
the correctness of any fact stated therein, the propriety of the service thereof
or the capacity, identity or authority of any party purporting to sign or
deliver such document.
3. The duties of Escrow Agent are only as herein specifically provided,
and are purely ministerial in nature. Escrow Agent shall neither be responsible
for, or under, nor chargeable with knowledge of, the terms and conditions of any
other agreement, instrument or document in connection herewith, and shall be
required to act only as provided in this Agreement. This Agreement sets forth
all the obligations of Escrow Agent with respect to any and all matters
pertinent to the escrow contemplated hereunder and no additional obligations of
Escrow Agent shall be implied from the terms of this Agreement or any other
agreement. Escrow Agent shall incur no liability in connection with the
discharge of its obligations under this Agreement or otherwise in connection
therewith, except such liability as may arise from the willful misconduct of
Escrow Agent.
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4. Escrow Agent may consult with counsel of its choice and shall not be
liable for any action taken or omitted to be taken in good faith by Escrow Agent
in accordance with the advice of such counsel.
5. Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Agreement unless in writing and signed by Escrow Agent.
6. Escrow Agent is acting as a stakeholder only with respect to the Tax
Refund. If any dispute arises as to whether Escrow Agent is obligated to deliver
the Escrowed Documents or as to whom the Tax Refund is to be delivered, Escrow
Agent shall be permitted to deliver the Tax Refund to the registry of any court
of competent jurisdiction, and thereafter, Escrow Agent shall have no further
duties hereunder.
7. Each of the Parties agrees to hold Escrow Agent harmless against and
with respect to, any and all loss, liability, damage, or expense (including,
without limitation, attorneys' fees and costs) that Escrow Agent may suffer or
incur in connection herewith, except to the extent such loss, liability, damage
or expense arises from the willful misconduct of Escrow Agent.
8. Escrow Agent and any successor escrow agent may at any time resign
as such by delivering the Tax Refund to either (a) any successor escrow agent
designated by the Parties (other than Escrow Agent) in writing, or (b) any court
having competent jurisdiction. Upon its resignation and delivery of the Tax
Refund as set forth in this paragraph, Escrow Agent shall be discharged of, and
from, any and all further obligations arising in connection with the escrow
contemplated by this Agreement.
9. This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their respective successors and assigns. Nothing in this
Agreement, expressed or implied, shall give to anyone, other than the parties
hereto and their respective permitted successors and assigns, any benefit, or
any legal or equitable right, remedy or claim, under or in respect of this
Agreement or the escrow contemplated hereby.
10. Any notice authorized or required to be given to a party hereto
pursuant to this Agreement shall be deemed to have been given when
hand-delivered, or when mailed by United States certified or registered mail,
postage prepaid, return receipt requested addressed to the respective Parties or
the Escrow Agent at their address set forth under their name on the signature
page of this Agreement. Any party may change its respective address by giving
notice thereof in writing to the other parties hereto in the same manner as set
forth above.
11. This Agreement shall be construed and enforced in accordance with
the laws of the State of Washington.
12. This Agreement may be executed in any number of separate
counterparts, each of which shall, collectively and separately, constitute one
agreement.
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13. The rights of Escrow Agent contained in this Agreement, including
without limitation the right to indemnification, shall survive the resignation
of Escrow Agent and the termination of the escrow contemplated hereby.
14. To the extent there are any conflicts associated with Escrow Agent
(who is counsel for Xxxxxxxxx and AANA in this transaction) serving in such
capacity, all Parties hereby waive such conflicts. In addition, it is hereby
agreed that under no circumstances will Escrow Agent be prevented from
representing Xxxxxxxxx in the future, including, without limitation, in
connection with any claims that might arise out of this Agreement, the Stock
Purchase Agreement, the Security Agreement or the Note, as a result of it having
served as Escrow Agent hereunder.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first written above.
Address: HOME ENERGY SAVINGS CORP
000 Xxxxx Xxxxxx, Xxxxx 000 By: /s/ Xxxxx Xxxxxxx
Roanoke, Virginia ---------------------------------
Attn: Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
-------------------------------
Title: President
------------------------------
Address:
/s/ Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxxx ------------------------------------
Xxxxxxxxxxxx, XX 00000 XXXXXXX X. XXXXXXXXX
Address: AMERICAN AIR NETWORK ALASKA, INC.
X.X. Xxx 00000 By: /s/ Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000 ---------------------------------
Attn: Xxxxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxx
-------------------------------
Title: President/CEO
------------------------------
ESCROW AGENT:
Address: /s/ Xxxxx X. Xxxxxx
P.O. Box 258 ------------------------------------
Mercer Xxxxxx, XX 00000 XXXXX X. XXXXXX
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