EXHIBIT 99.10
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into by and among
the undersigned Seller, Purchaser, and Escrow Agent as of December ___, 2002:
W I T N E S S E T H:
WHEREAS, as used throughout this Escrow Agreement the following terms shall
be deemed to refer to the following:
A. Purchaser:
Professional Lease Management Income Fund I, LLC, a Delaware limited
liability company
B. Seller:
PLM International, Inc., a Delaware corporation
C. Escrow Agent:
Trenam Xxxxxx Xxxxxx Xxxxxx Xxxx X'Xxxxx & Xxxxxx, P.A.
D. Escrow Funds:
$3,585,850.00
E. Governing State:
Florida
F. Assets:
50 Pressure Tank Cars, having the identifying numbers to be determined as more
particularly described in Commitment Letter (Exhibit "A") attached hereto and
made a part hereof.
WHEREAS, Seller and Purchaser have entered into the commitment to sell and
purchase the Assets, all subject to the terms and conditions of their agreement
("Agreement"); and
WHEREAS, Seller and Purchaser believe that the Escrow Funds represent the
full sales price of all of the Assets; and
WHEREAS, in connection with the administration of the closing under the
Agreement, Purchaser and Seller have agreed that Purchaser will deposit the
Escrow Funds with Escrow Agent to be held and applied by said Escrow Agent in
accordance with the terms of this Escrow Agreement.
NOW, THEREFORE, in consideration of the agreements set forth in the
Agreement and the mutual covenants set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Delivery. By execution of this Escrow Agreement the Escrow Agent hereby
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acknowledges receipt of the Escrow Funds from Purchaser.
2. Escrow. Escrow Agent hereby agrees to hold, administer, and disburse the
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Escrow Funds pursuant to this Agreement. Escrow Agent shall invest the Escrow
Funds in an interest bearing money market account and any interest or other
income which is earned on the Escrow Funds shall become a part of the Escrow
Funds, shall inure to the benefit of Purchaser, and shall be disbursed by Escrow
Agent pursuant to this Escrow Agreement.
3. Fee. Escrow Agent's fee shall be paid by Purchaser.
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4. Term. The term of this Escrow Agreement shall commence as of the date of
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deposit of the Escrow Funds with Escrow Agent, and shall terminate upon the
earlier to occur of (a) the date of full disbursement of the Escrow Funds in
accordance with the terms of this Agreement, or (b) March 31, 2003.
5. Disbursementof the Escrowed Funds.
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(a) Seller, Purchaser and Escrow Agent agree that the Escrow Funds
will be disbursed upon presentation to Escrow Agent within five (5) business
days following receipt by Escrow Agent of either: (i) written instructions or
direction from Purchaser of the amount(s) to be disbursed to Seller from the
Escrow Funds; or (ii) joint written instructions or direction from both Seller
and Purchaser of the amount(s) to be disbursed to Seller from the Escrow Funds;
or (iii) written instructions or direction from Purchaser of the amount(s) to be
disbursed to Purchaser from the Escrow Funds. Escrow Agent will disburse the
Escrow Funds or the designated applicable portion thereof, by Escrow Agent's
trust account check, delivered the address noted in the disbursement
authorization letter. The liability of Escrow Agent to disburse or pay funds to
Seller or Purchaser will not exceed the Escrowed Funds in the possession of
Escrow Agent.
(b) Notwithstanding the foregoing, in the event that Escrow Agent
has not received written directions, as provided in Paragraph 5(a) of this
Escrow Agreement, to disburse all of the Escrow Funds by March 31, 2003, then
Escrow Agent shall deliver a written request to Purchaser for direction on the
disbursement of the Escrow Funds remaining undisbursed. Upon receipt of
direction from Purchaser, Escrow Agent shall promptly disburse funds as so
directed by Escrow Agent's trust account check. Notwithstanding, in the event
that Escrow Agent does not receive direction to disburse all of the remaining
Escrow Funds as requested, Escrow Agent shall disburse all of the remaining
Escrowed Funds to Purchaser. Upon disbursement of all of the Escrowed Funds,
either in accordance with the terms of Paragraphs 5 (a) or (b) of this
Agreement, Escrow Agent shall thereby be discharged and released in respect to
its obligations hereunder and this Escrow Agreement shall terminate and the
parties hereto shall have no further obligations hereunder.
6. Dispute. In the event of a dispute as to the release of the Escrow
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Funds, then Escrow Agent shall be entitled to tender into the registry or
custody of the District Court of the state of Florida, Pinellas County, the
Escrow Funds then in Escrow Agent's possession, together with such legal
pleadings as it may deem appropriate. Upon such tender of the Escrow Funds into
Court, the Escrow Agent shall be relieved and fully discharged from any and
all further duties and liabilities under this Agree-ment.
7. Liability of Escrow Agent. In performing any of its duties hereunder,
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Escrow Agent shall not incur any liability to anyone for any damages, losses, or
expenses, except for willful default or breach of trust. Without limiting the
foregoing, Escrow Agent accordingly shall not incur any such liability with
respect to (a) any action taken or omitted in good faith upon advice of its
legal counsel given with respect to any questions relating to the duties and
responsibilities of Escrow Agent under this Escrow Agreement, or (b) any action
taken or omitted in reliance upon any instrument, including any written notice
or instruction provided for in this Escrow Agreement, not only as to the due
execution, validity, and effectiveness of any such notice, but also as to the
truth and accuracy of any information contained therein which Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by a
proper person, and to conform with the provisions of this Escrow Agreement. All
parties agree that Escrow Agent, by virtue of its acting as Escrow Agent
hereunder, shall not be precluded from representing Seller or Purchaser as its
legal counsel in connection with this Escrow Agreement or the Escrowed Funds.
In addition, Seller and Purchaser acknowledge that the Escrow Funds exceeds the
limits of insurance for FDIC-insured deposits, and release Escrow Agent from any
liability for any loss resulting from bank failure.
8. Indemnification. Seller hereby agree to indemnify and hold Escrow Agent
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harmless against any and all losses, claims, damages, liabilities, and expenses,
including, without limitation, reasonable costs of investigation and legal
counsel fees which may be imposed upon Escrow Agent or incurred by Escrow Agent
in connection with the performance of its duties and rights hereunder,
including, without limitation, any litigation arising from this Escrow Agreement
or the subject matter hereof.
9. Notice. Wherever any notice is required or permitted hereunder, such
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notice shall be in writing and shall be delivered in person or sent by overnight
courier or by registered or certified mail, return receipt requested, with
postage prepaid, to the parties hereto at the addresses set forth below such
parties signature to this Agreement or to such other addresses as are specified
by written notice delivered in accordance herewith. Notice mailed as herein
provided shall be deemed received by the party to whom it is addressed on the
postmark date of such notice.
10. Miscellaneous. (1) This Agreement shall be binding upon and shall inure
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to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representa-tives, successors and assigns. Any and all
rights granted to any of the parties hereto may be exercised by their agents or
personal representatives. (2) Time is of the essence of this Agreement. (3)
This Agreement is to be governed by and construed under the laws of the
Governing State. (4) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement as of the date and year first above written.
PURCHASER:
Professional Lease Management Income Fund I, LLC
By:
Address: c/o 000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
SELLER:
PLM International, Inc.
By:
Address: c/o 000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
ESCROW AGENT:
Trenam Xxxxxx Xxxxxx Xxxxxx Xxxx X'Xxxxx & Xxxxxx, P.A.
By:
Name:
Title:
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
