AGREEMENT
DATED AS OF APRIL 1, 1998
The parties to this agreement are Everest Management, LLC, a California
limited liability company (the "Seller"), High Cash Partners L.P., a Delaware
limited partnership (the "Partnership"), and Pembroke Capital II LLC, a Nevada
limited liability company (the "Purchaser").
Certain limited partners (the "Original LPs") of the Partnership have agreed
to transfer to the Seller an aggregate of 1,797 units ("Units") of limited
partnership interest in the Partnership.
The Seller wishes to purchase and acquire from the Original LPs, and then
sell and transfer to the Purchaser, and the Purchaser wishes to purchase and
acquire from the Seller, the 1,797 Units referred to above.
Accordingly, the parties agree as follows:
1. TRANSFERS, PAYMENT, ETC. Simultaneously with the execution and delivery
of this agreement, (a) the Seller is purchasing and acquiring from the Original
LPs the 1,837 Units referred to above, and the transfer of the 1,797 Units to
the Seller is being reflected by the Partnership in the Partnership's books and
records effective as of Xxxxx 0, 0000, (x) the Purchaser is paying the Seller
$79,068 by wire transfer of immediately available funds and (c) the Seller is
selling and transferring to the Purchaser the 1,797 Units referred to above. The
Partnership
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acknowledges that it has waived all transfer fees in connection with the
transfers referred to in the preceding sentence.
2. POWER OF ATTORNEY, ETC. The Seller appoints the Purchaser as the
attorney-in-fact of the Seller with respect to the 1,797 Units referred to
above, with full power of substitution (such power of attorney being irrevocable
and coupled with an interest), to transfer ownership of such Units on the
Partnership's books and records to the Purchaser, to change the address of
record of such Units prior to or after completion of such transfer, to execute
and deliver lost certificate indemnities and all other transfer documents and to
receive all benefits, endorse Partnership checks payable to the Seller and
otherwise exercise all rights (including voting rights) of beneficial ownership
of such Units.
3. REPRESENTATIONS AND WARRANTIES. The Seller represents and warrants to the
Purchaser that (a) the 1,797 Units referred to above are the only Units the
Seller and its affiliates beneficially own, (b) the Seller owns such Units and
has full authority validly to sell such Units to the Purchaser, (c) to the best
of the knowledge of the Seller, such Units are free and clear of any adverse
claim immediately prior to their transfer to the Purchaser pursuant to this
agreement and (d) such Units are being transferred to the Purchaser free and
clear of any adverse claim created by the Seller.
4. STANDSTILL. Prior to the fifth anniversary of the date of this agreement,
the Seller shall not, and shall not permit any of its affiliates to, directly or
indirectly:
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4.1 acquire, announce an intention to acquire, offer or propose to acquire,
solicit an offer to sell or agree to acquire, by purchase, by gift, by joining a
partnership, a limited partnership, a syndicate or any group or otherwise, any
(a) assets, businesses or properties of the Partnership or (b) Units in the
Partnership;
4.2 participate in the formation or encourage the formation of, or join or
in any way participate with, any partnership, limited partnership, syndicate,
group or other person or entity that owns or seeks to acquire beneficial
ownership of Units in the Partnership;
4.3 solicit, or participate in any solicitation of, proxies or become a
participant in any election contest (the terms used in this section 4.3 having
the respective meanings given them in Regulation 14A under the Securities
Exchange Act of 1934 (the "Exchange Act")) with respect to the Partnership;
4.4 initiate, propose or otherwise solicit limited partners for the approval
of one or more proposals with respect to the Partnership or induce any other
person to initiate any such proposal;
4.5 seek the removal of any general partner of the Partnership or seek to
have called any meeting of limited partners of the Partnership;
4.6 deposit any Units in a voting trust or subject them to a voting
agreement or other agreement or arrangement with respect to voting;
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4.7 otherwise act, alone or in concert with others, to seek to control the
management, policies or affairs of the Partnership or solicit, propose, seek to
effect or negotiate with any other person or entity (including, without
limitation, the Partnership) with respect to any form of business combination or
other extraordinary transaction with the Partnership or any of its general
partners or any restructuring, recapitalization, similar transaction or other
transaction not in the ordinary course of business with respect to the
Partnership or any of its general partners, solicit, make or propose or
negotiate with any other person or entity with respect to, or announce an intent
to make, any tender offer or exchange offer for any Units in the Partnership, or
publicly disclose an intent, purpose, plan or proposal with respect to the
Partnership or any securities or assets of the Partnership that would violate
the provisions of this section 4, or assist, participate in, facilitate or
solicit any effort or attempt by any person or entity to do or seek to do any of
the foregoing; or
4.8 request the Partnership (or its general partners, employees or agents)
to amend or waive any provision of this agreement (including, without
limitation, this section 4.8) or otherwise seek any modification to or waiver of
any of the agreements or obligations of the Seller or its affiliates or
associates under this agreement.
5. MISCELLANEOUS
5.1 DEFINITIONS. As used in this agreement, the terms "affiliate,"
"associate" and "control" have the respective meanings given them in Rule 12b-2
under the Exchange Act, and the terms "beneficially own,"beneficial ownership"
and "group" have the respective meanings given them in Rule 13d-3 under the
Exchange Act.
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5.2 BENEFIT. This agreement shall be binding upon, and inure to the benefit
of, the respective successors and assigns of the parties.
5.3 GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the law of the state of New York applicable to agreements made
and to be performed wholly in New York.
5.4 REMEDIES. The parties to this agreement will be irreparably damaged if
this agreement is not specifically enforced. If any dispute arises under this
agreement concerning any right or obligation, that right or obligation shall be
enforceable in a court of equity by an injunction or a decree of specific
performance without any bond or other security being required. These remedies
shall not be exclusive, and shall be in addition to any other remedies the
parties may have.
5.5 SEPARABILITY. If any provision of this agreement, or the application of
any provision to any person or circumstance, shall for any reason or to any
extent be invalid or unenforceable, the remainder of this agreement and the
application of that provision to other persons or circumstances shall not be
affected, but shall be enforced to the full extent permitted by law.
5.6 WAIVER. The failure of a party to insist upon strict adherence to any
term of this agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this agreement. Any waiver must be in writing.
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5.7 NOTICES. Any notice or other communication under this agreement shall be
in writing and shall be considered given when mailed by registered mail, return
receipt requested, to the parties at the following addresses (or at such other
address as a party may specify by notice to the other): (a) if to the Seller, to
it at 000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Mr. Xxxxx Xxxxxx; and (b) if to the Purchaser or the Partnership, to
it c/o Pembroke Capital, Inc., 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xx. Xxxxxxxx X. Xxxxx.
5.8 COUNTERPARTS. This agreement may be executed in counterparts, each of
which shall be considered an original, but both of which together shall
constitute the same instrument.
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5.9 COMPLETE AGREEMENT. This agreement contains a complete statement of all
the arrangements between the parties with respect to its subject matter,
supersedes all existing agreements between them relating to that subject matter
and cannot be changed or terminated orally.
EVEREST MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx
HIGH CASH PARTNERS L.P.
By: Pembroke HCP, LLC
Managing General Partner
By: Pembroke Companies, Inc.
Managing Member
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxx X. Xxxxx
PEMBROKE CAPITAL II LLC
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxx X. Xxxxx
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