AGREEMENT
AND INSTRUMENT OF ASSIGNMENT
AND ASSUMPTION
Dated as of May 31, 1997
The parties to this agreement and instrument of assignment and
assumption dated as of May 31, 1997 (the "Agreement") are Resources
High Cash, Inc., a Delaware corporation (the "Managing GP"),
Presidio AGP Corp., a Delaware corporation (the "Associate GP"),
XRC Corp., a Delaware corporation (the "LP"), and Pembroke HCP LLC,
a Nevada limited liability company (the "Purchaser").
The Managing GP and the Associate GP (collectively, the "Old
GPs") and the LP wish to, and by this Agreement and certain other
agreements and instruments of assignment and assumption executed
and delivered simultaneously herewith (including the guaranty of
the LP) (the "Other Agreements") do, sell, assign, convey and
transfer to the Purchaser and its affiliates, and the Purchaser and
its affiliates wish to, and by this Agreement and the Other
Agreements do, so purchase and acquire, from the Old GPs and the
LP, all their right, title and interest (including, without
limitation, their rights to distributions of cash or other property
after the date of this Agreement) as general and limited partners
in High Cash Partners, L.P., a Delaware limited partnership (the
"Partnership") (which interests as partners are accurately
described in the Partnership Agreement and the Filings referred to
in section 2.1.5 and include 8,361 units of limited partnership
interest in the Partnership), and the Old GPs' entitlement to fees,
compensation and any and all other amounts from the Partnership for
periods after the date of this Agreement (other than the Old GPs'
rights to indemnification and to payment of any fees or other
amounts which are accrued in respect of any period on or prior to,
and unpaid as of, the date of this Agreement) as partners or
otherwise (such right, title and interest as partners and such
entitlement to fees, compensation and any and all other amounts,
collectively referred to herein as the "Assets") on the terms set
forth in this Agreement and the Other Agreements.
Accordingly, the parties agree as follows:
1. Purchase and Sale
1.1 Sale, Assignment and Transfer. The Managing GP
hereby sells, assigns, conveys and transfers to the Purchaser, free
and clear of any lien, adverse claim, pledge, restriction, security
interest or other encumbrance of any character or description (a
"Lien"), all its right, title and interest in all the Assets
pertaining to the Managing GP's interest in the Partnership
(excluding those specifically sold, assigned, conveyed and
transferred pursuant to the Other Agreements) and all books and
records relating thereto.
1.2 Consideration. In consideration for the sale,
assignment, conveyance and transfer being effected pursuant to
section 1.1, the Purchaser is hereby (a) paying the Managing GP by
wire transfer of immediately available funds $21,085 and
(b) agreeing to assume, and to pay, perform and discharge, and
indemnify and hold each Old GP and the LP harmless from and
against, the Assumed Obligations. It is understood and agreed that
the parties hereto shall, and the Purchaser shall cause its
affiliates that are parties to the Other Agreements to, file with
the Internal Revenue Service a Form 8594, on a basis consistent
with the purchase price specified in this Agreement and the Other
Agreements and otherwise reasonable, within 30 days after date
first written above. As used in this Agreement, the term "Assumed
Obligations" means (y) any liabilities, obligations or commitments
incurred by the Purchaser and its affiliates as a result of their
serving as general partners of the Partnership, but only in respect
of events or actions occurring after the date of this Agreement,
and expressly excluding any liabilities, obligations or commitments
that derive or result from acts or omissions of the Old GPs or
their affiliates that are in breach of (i) the Partnership's
amended and restated agreement of limited partnership (the
"Partnership Agreement"), (ii) the Partnership's certificate of
limited partnership, (iii) any contract or commitment of the Old
GPs or (iv) the Old GPs' fiduciary duties to the Partnership and
its partners at the time such act was taken or omitted to be taken,
and (z) the duties of the Old GPs under the Partnership Agreement
after the date of this Agreement (it being understood that the Old
GPs shall have no liability for any obligations or liabilities
related to actions taken by them, as general partners, in
accordance with the Partnership Agreement and not in breach of
their fiduciary duties to the Partnership and its partners, which
actions commenced on or prior to the date of this Agreement and
continue hereafter). Except for the Assumed Obligations, the
Purchaser is not assuming any liabilities, obligations or
commitments (contingent or otherwise) of the Old GPs, the LP or any
of their affiliates, including, without limitation, those incurred
in connection with the Old GPs serving as general partners of the
Partnership on or prior to the date of this Agreement, from and
against which liabilities, obligations or commitments (contingent
or otherwise) of the Old GPs or any of their affiliates the
Purchaser and its managers, members, successors, assigns,
representatives and affiliates shall be indemnified and held
harmless by the Old GPs pursuant to section 4.
2. Representations and Warranties
2.1 Representations and Warranties of the Old GPs. The
Old GPs jointly and severally represent and warrant to the
Purchaser as follows:
2.1.1 Organization and Good Standing. Each Old
GP and the LP is a corporation duly organized, validly existing and
in good standing under the law of the state of Delaware. The
Partnership is a limited partnership duly organized, validly
existing and in good standing under the law of the state of
Delaware. Each Old GP and the LP has the requisite power and
authority and all necessary governmental approvals to conduct its
business and to own, lease and operate its properties and assets in
the manner now conducted. The Partnership has the requisite power
and authority and all necessary governmental approvals to conduct
its business and to own, lease and operate its properties and
assets in the manner now conducted. The Old GPs have delivered to
the Purchaser true, correct and complete copies as amended through
the date hereof of the certificate of limited partnership of the
Partnership and the Partnership Agreement as amended through the
date hereof (exclusive of amendments that relate solely to the
admission of investors as limited partners and unitholders in the
Partnership).
2.1.2 Authority; Power. Each Old GP and the LP
has all necessary power and authority to execute and deliver this
Agreement and the Other Agreements to which it is a party, to
perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Other Agreements and the
consummation of the transactions contemplated by this Agreement and
the Other Agreements have been duly and validly authorized by all
necessary action on the part of each Old GP, the LP and the
Partnership and no other proceedings on the part of either Old GP,
the LP or the Partnership are necessary to authorize this Agreement
or the Other Agreements or to consummate the transactions
contemplated hereby or thereby. Each Old GP and the LP has the
power and authority to enter into, deliver and perform this
Agreement and the Other Agreements to which it is a party. This
Agreement and the Other Agreements are the legal, valid and binding
obligations of each Old GP and the LP that is a party thereto
enforceable against each of them in accordance with their
respective terms.
2.1.3 Consents and Approvals; No Violation
(a) No consent, waiver, approval or
authorization of, or filing, registration or qualification with,
any governmental or regulatory authority that, if not made or
obtained, could have a material adverse effect on the Old GPs' or
the LP's ability to perform their respective obligations under this
Agreement and the Other Agreements is required to be made or
obtained by either Old GP, the LP or the Partnership in connection
with the execution, delivery and performance of this Agreement and
the Other Agreements.
(b) None of the execution, delivery or
performance of this Agreement or the Other Agreements by either Old
GP or the LP does or will, with or without the giving of notice,
lapse of time or both, (i) result in any violation of or conflict
with or constitute a default under any term or provision of the
certificate of incorporation or by-laws of that Old GP, the LP or
the Partnership Agreement or certificate of limited partnership of
the Partnership or any judgment, decree, order, law, statute,
injunction, rule, regulation or governmental license or permit
applicable to that Old GP, the LP or the Partnership or of any
material note, bond, mortgage, indenture, lease, license,
franchise, agreement or other instrument or other obligation to
which that Old GP, the LP or the Partnership is bound; (ii) result
in the creation of any Lien upon the Assets being sold, assigned,
conveyed and transferred by that Old GP or the LP; or (iii)
constitute a default under, or result in the termination,
acceleration, amendment or modification of, any contract,
agreement, arrangement, commitment or plan to which that Old GP,
the LP or the Partnership is or will be a party, or by which either
Old GP, the LP or the Partnership may be subject or bound.
(c) The execution, delivery and performance
of, and the consummation of the transactions contemplated by, this
Agreement and the Other Agreements by the Old GPs and the LP does
not require any consent or approval from any third party,
including, without limitation, any consent or approval from the
limited partners of the Partnership. Except as may be required by
sections 15.13 and 17.2 of the Partnership Agreement, no notices
are required to be delivered by the Old GPs, the LP or the
Partnership to any third party (including the Partnership's limited
partners) as a result of this Agreement or the Other Agreements or
the transactions contemplated hereby or thereby (other than filings
with the Securities and Exchange Commission or other routine
governmental filings).
(d) Upon consummation of the transactions
contemplated by this Agreement and the Other Agreements: (i) the
Partnership shall continue to exist as a Delaware limited
partnership without the need or the requirement to be
reconstituted, and (ii) the Purchaser and its affiliates shall be
afforded and entitled to all of the rights, privileges and benefits
of the Managing General Partner (as defined in the Partnership
Agreement) and the Associate General Partner (as defined in the
Partnership Agreement) of the Partnership, including, without
limitation, the rights to receive the fees, payments and other
compensation specified in Article 9 of the Partnership Agreement
and to afford itself the benefits of the indemnification provisions
contained in Article 21 of the Partnership Agreement, as well as
the rights of the LP to the units of limited partnership interest
referred to in the second introductory paragraph of this Agreement.
2.1.4 Liens. Except as set forth in schedule
2.1.4, each of the Old GPs and the LP owns its Assets free and
clear of any Liens. The interests in the Partnership included in
the Assets have been duly authorized and validly issued. There are
no outstanding rights, options, subscriptions or other agreements
of any kind to purchase or acquire, receive or be issued any
interest in the Partnership, and there are no agreements of any
kind (other than the Partnership Agreement, the prospectus relating
to the public offering of units in the Partnership or this
Agreement or the Other Agreements) providing for or restricting (A)
the governance of the Partnership, (B) the payment of any fees to
the general partners (or their affiliates) of the Partnership or
(C) the issuance of any interest in the Partnership. The
Partnership Agreement is in full force and effect. The Partnership
Agreement is the only agreement relating to the direct or
supervisory management of the Partnership or its properties.
Neither Old GP, nor the LP nor the Partnership is in breach of, in
default under or in violation of any term or provision of the
Partnership Agreement, including any breach by either Old GP of any
fiduciary duties to the Partnership or its limited partners.
2.1.5 Filings. The Old GPs have delivered or
made available to the Purchaser true and complete copies of (a) the
Partnership's Annual Report on Form 10-K for the Fiscal Years Ended
December 31, 1996, December 31, 1995 and December 31, 1994 and (b)
the Partnership's Quarterly Report on Form 10-Q for the Fiscal
Quarter Ended March 31, 1997 (collectively, the "Filings"). Except
for the Filings, the Partnership has not made any filings with the
Securities and Exchange Commission since January 1, 1994. As of
their respective dates, each Filing complied in all material
respects with applicable requirements of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder,
and none of the Filings contained an untrue statement of a material
fact or omitted to state a material fact required to be stated in
that Filing or necessary to make the statements in that Filing, in
light of the circumstances under which they were made, not
misleading. Each Old GP has heretofore furnished to the Purchaser
complete and correct copies of all registration statements and
amendments thereto filed by the Partnership under the Securities
Act of 1933, and all amendments and modifications, if any, that
have not been filed with the Securities Exchange Commission to all
agreements, documents and other instruments that previously had
been filed with the Securities and Exchange Commission and are
currently in effect. The Partnership has filed with the Securities
and Exchange Commission all reports, schedules and other documents
required to be filed by it with the Securities and Exchange
Commission since March 31, 1997.
2.1.6 Financial Statements
(a) The most recent Filing referred to in
section 2.1.5(a) contains audited financial statements of the
Partnership at the dates and for the periods reflected in such
financial statements (the "Financial Statements"). The Financial
Statements (including the notes) fairly present the financial
condition of the Partnership as of the dates set forth in the
Financial Statements and the results of operations and cash flows
or changes in financial condition, as applicable, of the
Partnership for the respective periods ended on those dates, all in
conformity with generally accepted accounting principles
consistently applied ("GAAP"), except as otherwise noted in the
Financial Statements.
(b) The Filing referred to in section 2.1.5(b)
contains unaudited financial statements of the Partnership at the
dates and for the periods reflected in such financial statements
(the "Interim Financial Statements"). The Interim Financial
Statements were prepared on a basis consistent with the Financial
Statements and fairly present the financial condition of the
Partnership as of the dates set forth in the Interim Financial
Statements and the results of operations and cash flows or changes
in financial position, as applicable, of the Partnership for the
respective periods ended on those dates, subject to normal year-end
adjustments (but including all adjustments necessary for a fair
statement of the results for the interim period presented) and
other adjustments noted in the Interim Financial Statements.
2.1.7 Absence of Undisclosed Liabilities.
Except as set forth in schedule 2.1.7 or in the Financial
Statements or the Interim Financial Statements, and except for
liabilities incurred since March 31, 1997 in the ordinary course of
business consistent with past practice, the Partnership has no
liabilities required to be reflected on a balance sheet or in notes
to financial statements prepared in accordance with GAAP.
2.1.8 Absence of Change. Since March 31, 1997,
there has not been any: (i) material adverse change in the
business or affairs of the Partnership, (ii) material damage,
destruction or loss (whether or not covered by insurance) with
respect to any property or asset of the Partnership, (iii) entry by
the Partnership or either Old GP into any commitment or transaction
material to the Partnership or either Old GP or (iv) increase in or
establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option,
stock purchase or other employee benefit plan, or any other
increase in the compensation payable or to become payable to any
officers or key employees of the Partnership, except in the
ordinary course of business consistent with past practice.
2.1.9 No Brokers' or Other Fees. No broker,
finder or investment banker is entitled to any brokerage, finder or
other fee or commission in connection with the transactions
contemplated by this Agreement or the Other Agreements based upon
arrangements made by the Old GPs, the LP or their affiliates.
2.1.10 Status of Old GPs. The Managing GP is
the managing general partner of the Partnership. The Associate GP
is the associate general partner of the Partnership. There are no
other general partners of the Partnership.
2.1.11 Assets. The Assets comprise all the Old
GPs' and the LP's interests in and entitlements to fees,
compensation and any and all other amounts for periods after the
date of this Agreement as general and limited partners or otherwise
from the Partnership. Upon consummation of the transactions
contemplated by this Agreement and the Other Agreements, the
Purchaser and its affiliates will have acquired good and marketable
title to the Assets free and clear of any Liens.
2.1.12 Transactions with Affiliates. Except as
set forth in schedule 2.1.12, there are no agreements between the
Partnership, on the one hand, and the Old GPs, the LP or any of
their affiliates, on the other hand, that will remain in effect
after the date of this Agreement. Except as provided by the
Partnership Agreement, the Partnership has no liability and is not
otherwise indebted to either Old GP, the LP or any affiliate of
either Old GP or the LP. Except as provided by the Partnership
Agreement, neither Old GP, nor the LP nor any of their respective
affiliates has any liability or is otherwise indebted to the Partnership.
2.1.13 Material Agreements. The Partnership is
not a party to any material written or oral agreement or
instrument, other than (a) agreements referred to in the Filings,
(b) any agreements, contracts, instruments, leases or mortgages
that relate to a specific property or a specific real estate
transaction entered into by the Partnership, (c) agreements with
persons not affiliated with the Old GPs or the LP that in the
aggregate involve amounts not exceeding $25,000 annually or
(d) agreements that are terminable by the Partnership at any time,
without penalty, on fewer than 30 days' notice without cost to the
Partnership.
2.1.14 Capital Accounts. The capital account
balances of the Old GPs and the LP in the Partnership as shown on
the Schedule K-1's included in the Form 1065 of the Partnership as
of December 31, 1996 are: Managing GP -- $101,827; Associate GP --
$1,036; LP -- $1,207,579.
2.1.15 Absence of Litigation. Except as
disclosed in the Filings, there is no claim, action, proceeding or,
to the best of the knowledge of the Old GPs, investigation pending
or, to the best of the knowledge of the Old GPs, threatened against
the Partnership or either Old GP, or any property or asset of the
Partnership or either Old GP, before any court, arbitrator or
administrative, governmental or regulatory authority or body,
domestic or foreign. As of the date hereof, neither the
Partnership nor either Old GP nor any property or asset of the
Partnership or either Old GP is subject to any order, writ,
judgment, injunction, decree, determination or award.
2.1.16 Taxes. Each of the Partnership and each
Old GP has filed all federal, state, local and foreign tax returns
and reports required to be filed by it and has paid and discharged
all taxes shown as due thereon. Neither the Internal Revenue
Service nor any other taxing authority or agency, domestic or
foreign, is now asserting or, to the best of the knowledge of the
Old GPs, threatening to assert against the Partnership or either
Old GP any deficiency or claim for additional taxes or interest
thereon or penalties in connection therewith.
2.1.17 Payment of Fees. Each Old GP and the LP
has received any and all fees, compensation and other amounts due
from the Partnership and neither Old GP nor the LP is owed any
fees, compensation or other amounts from the Partnership (except
for rights, if any, to indemnification under the Partnership
Agreement and rights to fees or other amounts which are accrued in
respect of any period on or prior to, and unpaid as of, the date of
this Agreement (it being understood and agreed that the Purchaser
shall cause the Partnership to pay the Managing GP all such accrued
and unpaid fees or other amounts at such time as fees or other
amounts in respect of such period are paid by the Partnership to
the Purchaser or its affiliates)).
2.1.18 Books and Records. Each Old GP has
delivered or shall deliver to the Purchaser all books and records,
or copies thereof, relating to the Assets, which books and records,
or copies thereof, are the only books and records necessary to
enable the Purchaser and its affiliates to carry on the activities
of the manager's general partner and associate general partner of
the Partnership in accordance with the Partnership Agreement.
2.1.19 Cash and Fees. At the date of this
Agreement, the amount of the Partnership's cash and cash
equivalents is not less than $2,150,000, and the amount of the
accrued and unpaid fees and other amounts referred to in the
parentheses in section 2.1.17 is not greater than $63,000.
2.2 Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Old GPs and the LP as
follows:
2.2.1 Organization and Good Standing. Each of
the Purchaser and its affiliates that is a party to this Agreement
or the Other Agreements is a limited liability company validly
existing and in good standing under the law of the state of Nevada
and has the requisite power and authority to conduct its business
in the manner now conducted.
2.2.2 Authority; Power. The execution and
delivery of this Agreement and the Other Agreements and the
consummation of the transactions contemplated by this Agreement and
the Other Agreements have been duly and validly authorized by all
necessary action on the part of the Purchaser and its affiliates.
Each of the Purchaser and its affiliates that is a party to this
Agreement or the Other Agreements has the power and authority to
enter into, deliver and perform this Agreement and the Other
Agreements to which it is a party and to own the Assets transferred
to it hereby and thereby, and this Agreement and the Other
Agreements are the legal, valid and binding obligations of the
Purchaser and its affiliates enforceable against them in accordance
with their respective terms.
2.2.3 Consents and Approvals; No Violation
(a) No consent, waiver, approval or
authorization of, or filing, registration or qualification with,
any governmental or regulatory authority that, if not made or
obtained would materially adversely affect the Purchaser's or its
affiliates' ability to perform their respective obligations under
this Agreement or the Other Agreements, is required to be made or
obtained by the Purchaser or its affiliates in connection with the
execution, delivery and performance of this Agreement and the Other
Agreements by the Purchaser and its affiliates.
(b) None of the execution, delivery or
performance of this Agreement or the Other Agreements does or will,
with or without the giving of notice, lapse of time or both, (i)
result in any violation of or conflict with or constitute a default
under any term or provision of the organizational documents of the
Purchaser or its affiliates or any judgment, decree, order, law,
statute, injunction, rule, regulation, governmental license or
permit applicable to the Purchaser or its affiliates or of any
material note, bond, mortgage, indenture, lease, license,
franchise, agreement or other instrument or obligation to which the
Purchaser or any of its affiliates is bound; (ii) result in the
creation of any material Lien upon any of the properties or assets
of the Purchaser or any of its affiliates; or (iii) constitute a
default under, or result in the termination, acceleration,
amendment or modification of, any material contract, agreement,
arrangement, commitment or plan to which the Purchaser or any of
its affiliates is a party, or by which the Purchaser or any of its
affiliates may be subject or bound, which, in any such case, would
have a material adverse effect on the Purchaser or any of its
affiliates.
2.2.4 Investment Intent. The Purchaser and its
affiliates are acquiring the Partnership interests being purchased
by them under this Agreement and the Other Agreements for the
purpose of investment only and not with a view to or for sale in
connection with any distribution.
2.2.5 No Brokers' or Other Fees. No broker,
finder or investment banker is entitled to any brokerage, finder or
other fee or commission in connection with the transactions
contemplated by this Agreement or the Other Agreements based upon
arrangements made by or on behalf of the Purchaser or its
affiliates.
3. Certain Other Matters
3.1 Amendment of Certificate. Immediately after the
execution and delivery of this Agreement, the Old GPs and the
Purchaser shall execute or cause to be executed and shall cause to
be filed an appropriate amendment to the certificate of limited
partnership of the Partnership reflecting (a) the admission of the
Purchaser as the managing general partner of the Partnership and
the admission of an affiliate of the Purchaser as a limited partner
of the Partnership; and (b) the withdrawal of the Managing GP as
managing general partner and the LP as a limited partner of the
Partnership. Promptly after the execution and delivery of this
Agreement, the Old GPs shall give, or cause to be given, the
notices required pursuant to sections 15.13 and 17.26 of the
Partnership Agreement, and, 61 days after giving the notice
required pursuant to section 17.2 of the Partnership Agreement, the
Old GPs and the Purchaser shall execute or cause to be executed and
shall cause to be filed a further appropriate amendment to the
certificate of limited partnership of the Partnership reflecting
(y) the admission of an affiliate of the Purchaser as the associate
general partner of the Partnership; and (z) the withdrawal of the
Associate GP as the associate general partner of the Partnership.
The Old GPs and the Purchaser further agree to execute, or cause to
be executed, and cause to be filed each such amendment or similar
document reflecting such withdrawals and admissions with the
appropriate authority in any jurisdiction in which such filing is
required.
3.2 Tax Matters Partner. The Old GPs shall certify in
accordance with the provisions of Treasury Regulation
Section 301.6231(a)(7)-1T(d) that the Purchaser or a person designated
by the Purchaser is the Tax Matters Partner (within the meaning of
Section 6231 of the Internal Revenue Code) of the Partnership for all
periods from and after the date of this Agreement.
3.3 Modification of Partnership Agreement. The
Purchaser shall not, and shall not permit its affiliate to, modify
or amend the indemnification provisions of the Partnership
Agreement, to the extent any such change would affect the
indemnification rights at the date of this Agreement with respect
to matters occurring on or prior to the date of this Agreement.
3.4 Books and Records; Access. The Purchaser shall
cause the Partnership to afford the Old GPs and their affiliates
and agents reasonable access to the properties, books and records
of the Partnership to the extent necessary to permit them to
determine any matter relating to the Partnership with respect to
any period on or before the date of this Agreement.
3.5 Certain Required Payments. If an Old GP or any of
its affiliates or any predecessor in interest to an Old GP as a
general partner of the Partnership (including, without limitation,
the Sponsor of the Partnership) is required at any time to make any
payment pursuant to the last sentence of section 9.1 of the
Partnership Agreement (a "Section 9.1 Payment"), the Purchaser
shall pay the Managing GP an amount, if any, equal to a fraction of
the Section 9.1 Payment determined by dividing the aggregate amount
of all Front End Fees, Partnership Management Fees, Subordinated
Incentive Fees and the General Partners' 1% interest in
Distributions (collectively, "Fees and 1% Distributions") paid to
the Purchaser and its affiliates divided by the aggregate amount of
all Fees and 1% Distributions paid to anyone at any time. If the
Purchaser or any of its affiliates is required at any time to make
a Section 9.1 Payment, the Managing GP shall pay the Purchaser an
amount, if any, equal to a fraction of the Section 9.1 Payment
determined by dividing the aggregate amount of all Fees and 1%
Distributions paid to the Old GPs and their affiliates and the Old
GPs' predecessors in interest as general partners of the
Partnership (including, without limitation, the Sponsor of the
Partnership) divided by the aggregate amount of all Fees and 1%
Distributions paid to anyone at any time.
4. Indemnification
4.1 General
4.1.1 Subject to the provisions of this section
4, the Old GPs, jointly and severally, shall indemnify, defend and
hold the Purchaser and its managers, members, successors, assigns,
representatives and affiliates harmless from and against (a) any
and all losses, liabilities, damages, claims, costs and expenses
(including reasonable attorneys' fees and disbursements)
(collectively "Losses") based upon, arising out of or otherwise
resulting from any breach of any representation, warranty, covenant
or agreement, or any misrepresentation, by either Old GP under this
Agreement or the Other Agreements, (b) any and all liabilities or
obligations of either Old GP that is not an Assumed Liability and
(c) any and all claims or proceedings brought by the Purchaser or
any of its affiliates against either Old GP or its affiliates in
enforcing the terms and provisions of this Agreement or the Other
Agreements.
4.1.2 Subject to the provisions of this section
4, the Purchaser shall indemnify and hold the Old GPs and the LP
harmless from and against (a) all Losses based upon, arising out of
or otherwise resulting from any breach of any representation,
warranty, covenant or agreement, or any misrepresentation, by the
Purchaser or its affiliates under this Agreement or the Other
Agreements, (b) the Assumed Liabilities and (c) the operation of
the Partnership and ownership of the Assets after the date of this
Agreement (it being expressly understood and agreed, however, that
the Purchaser shall have no obligation under this section 4.1 with
respect to any liabilities, obligations or commitments that derive
or result from acts or omissions of the Old GPs, the LP or their
affiliates that are in breach of (i) the Partnership Agreement,
(ii) the Partnership's certificate of limited partnership, (iii)
any contract or commitment of the Old GPs or the LP or (iv) the Old
GPs' fiduciary duties to the Partnership and its partners).
4.2 Exclusive Remedy. The parties agree that the
remedies in this section 4 are the exclusive remedies for breach of
any representation, warranty, covenant or agreement, or
misrepresentation, under this Agreement or the Other Agreements.
Except as specifically set forth in this Agreement or the Other
Agreements, there are no representations or warranties, express or
implied, by any party in connection with the transactions
contemplated by this Agreement or the Other Agreements.
4.3 Defense of Claims by Third Parties. An indemnified
party shall give the indemnifying party notice of any matter which
an indemnified party has determined has given or could give rise to
a right of indemnification under this Agreement, promptly after
such determination. The obligations of the indemnifying party
under this section 4 with respect to Losses arising from claims of
any third party that are subject to the indemnification provided
for in this section 4 ("Third Party Claims") shall be governed by
and contingent upon the following additional terms and conditions:
If any indemnified party shall receive notice of any Third Party
Claim, the indemnified party shall give the indemnifying party
notice of such Third Party Claim promptly after the receipt by the
indemnified party of such notice; provided, however, that the
failure to provide such notice shall not release the indemnifying
party from any of its obligations under this section 4, except to
the extent the indemnifying party is prejudiced by such failure,
and shall not relieve the indemnifying party from any other
obligation or liability that it may have to an indemnified party
otherwise than under this section 4. If the indemnifying party
acknowledges in writing its obligation to indemnify the indemnified
party hereunder against any Losses that may result from such Third
Party Claims, then the indemnifying party shall be entitled to
assume and control the defense of such Third Party Claim at its
expense and through counsel of its choice, if the indemnifying
party gives prompt notice of its intention to do so to the
indemnified party and provides reasonable assurance to the
indemnified party of its financial ability to fulfill its
indemnification obligations hereunder; provided, however, that if
there exists or is reasonably likely to exist a conflict of
interest that would make it inappropriate in the judgment of the
indemnified party for the same counsel to represent both the
indemnified party and the indemnifying party, then the indemnified
party shall be entitled to retain its own counsel, in each
jurisdiction for which the indemnified party determines counsel is
required, at the expense of the indemnifying party (it being
understood, however, that the indemnifying party shall continue
nonetheless to control the defense of the Third Party Claim). In
the event the indemnifying party exercises the right to undertake
any such defense against any such Third Party Claim as provided
above, the indemnified party shall cooperate with the indemnifying
party in such defense and shall cooperate with the indemnifying
party in such defense and make available to the indemnifying party,
at the indemnifying party's expense, all witnesses, pertinent
records, materials and information in the indemnified party's
possession or under the indemnified party's control relating
thereto as is reasonably required by the indemnifying party.
Similarly, in the event the indemnified party is, directly or
indirectly, conducting the defense against any such Third Party
Claim, the indemnifying party shall cooperate with the indemnified
party in such defense and make available to the indemnified party,
at the indemnifying party's expense, all such witnesses, records,
materials and information in the indemnifying party's possession or
under the indemnifying party's control relating thereto as is
reasonably required by the indemnified party. No such Third Party
Claim may be settled by the indemnified party without the written
consent of the indemnifying party.
5. Miscellaneous
5.1 Governing Law. This Agreement and the Other
Agreements shall be governed by and construed in accordance with
the law of the state of New York, without giving effect to the
conflicts of law principles of New York.
5.2 Headings. The section headings in this Agreement
and the Other Agreements are for reference purposes only and are to
be given no effect in the construction or interpretation of this
Agreement and the Other Agreements.
5.3 Notices. All notices and other communications under
this Agreement and the Other Agreements shall be in writing and
shall be deemed given when delivered personally or mailed by
registered mail, return receipt requested, to the parties at the
following addresses (or to such other address as a party may have
specified by notice given to the other parties under this provision):
if to an Old GP or the LP, to it:
c/o Wexford Management LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
if to the Purchaser or its affiliates, to it:
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Pembroke Companies, Inc.
1325 Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
5.4 Separability. The invalidity or unenforceability of
any provision of this Agreement or the Other Agreements shall not
affect the validity or enforceability of any other provision of
this Agreement or the Other Agreements, which shall remain in full
force and effect.
5.5 Waiver. The Old GPs may waive compliance by the
Purchaser and its affiliates, and the Purchaser may waive
compliance by the Old GPs, with any provision of this Agreement or
the Other Agreements. No waiver of, or delay in enforcing, any
provision shall be construed as a waiver of that or any other
provision. Any waiver must be in writing.
5.6 No Third Party Beneficiaries. This Agreement and
the Other Agreements shall inure to the benefit of the parties and
their respective successors and assignees. Nothing in this
Agreement or the Other Agreements shall create or be deemed to
create any third party beneficiary rights in any person or entity
not a party to this Agreement or the Other Agreements.
5.7 No Personal Liability. Nothing in this Agreement or
the Other Agreements shall, or shall be deemed or interpreted to,
impose on any party other than the named parties to this Agreement
and the Other Agreements any liability or obligation.
5.8 Counterparts. This Agreement and the Other
Agreements may be executed in counterparts, each of which shall be
an original, but which together shall constitute one and the same
agreement.
5.9 Entire Agreement. This Agreement and the Other
Agreements (with their respective schedules) contain, and are
intended as, a complete statement of all the terms of the
arrangements among the parties with respect to the matters provided
for, supersede any previous agreements and understandings among the
parties with respect to those ▇▇▇▇▇▇ and cannot be changed or
terminated orally.
RESOURCES HIGH CASH, INC.
By:________________________________
PRESIDIO AGP CORP.
By:________________________________
PEMBROKE HCP LLC
By: Pembroke Companies, Inc.
By:________________________________
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