AGREEMENT FOR DELIVERY AND USE OF LIST OF LIMITED PARTNERS
This Agreement for Delivery and Use of List of Limited Partners
("AGREEMENT") is entered into as of October __, 1996 by and between X. Xxxx
Price Realty Income Fund II Management, Inc., a Maryland corporation (the
"GENERAL PARTNER") Xxx Xxxxx, an individual (the "LIMITED PARTNER") and Xxxx
Real Estate Services, a Delaware corporation ("XXXX") with respect to a list
of limited partners of X. Xxxx Price Realty Income Fund II, America's
Sales-Commission-Free Real Estate Limited Partnership, a Delaware Limited
Partnership (the "PARTNERSHIP").
WHEREAS the General Partner is the general partner of the Partnership,
and the Limited Partner is a limited partner of the Partnership; and
WHEREAS the Limited Partner has requested a list ("LIST") of the names,
addresses, and number of units of limited partnership interest ("UNITS") held
by each of the limited partners in the Partnership; and
WHEREAS the Limited Partner has represented that he is requesting the
list for the purpose of making a tender offer, regardless of whether any
others make such offers, for Units exclusively in concert with Xxxx and
affiliates of Xxxx which are controlled by Xxxx ("XXXX AFFILIATES"); and
WHEREAS General Partner believes that is necessary to establish
reasonable standards, including certain restrictions to be placed on the use
of the List by Limited Partner, Xxxx and the Xxxx Affiliates, in order to
protect the Partnership and the limited partners from harm and preclude
interference with the orderly dissolution and liquidation of the Partnership
by the General Partner as publicly disclosed by the General Partner;
THEREFORE, in consideration of the the representations, promises, and
covenants of Limited Partner and Xxxx as contained herein, General Partner
hereby agrees to deliver the list to Limited Partner on magnetic floppy disk,
and Limited Partner and Xxxx jointly and severally represent, promise and
covenant on behalf of themselves and their affiliates and the Xxxx Affiliates
that they will use the List only in accordance with the following:
1. Limited Partner, Xxxx and the Xxxx Affiliates (collectively "OFFERORS")
shall utilize the list only for the purpose of making a single written
offer by Offerors, and any amendments thereto, to limited partners to
purchase Units ("TENDER OFFER"), whether such Tender Offer shall
constitute a tender offer or not, and shall solicit each limited
partner no more than once in connection with such Tender Offer.
Offerors will keep the List confidential and will not disclose it to
anyone, including any affiliated or unaffiliated persons or entities,
other than a professional mailing house, information agent, or
depositary in connection with the Tender Offer. The Tender Offer will
be transmitted by Offerors within 30 days after delivery of the List to
Limited Partner and Xxxx.
2. Offerors shall simultaneously copy the General Partner by fax on any
Tender Offer and any amendment thereto.
3. After the expiration of the Tender Offer, Limited Partner shall
return the List to the General Partner and destroy it in a manner which
cannot be retrieved, any and all copies thereof and works derived
therefrom, whether in written, electronic, or other form, and
deliver an affidavit to the General Partner that Offerors have complied
with the provisions of this section 3.
4. Offerors will not make and will not cause to be made more than one
unsolicited telephone call to each limited partner in connection with
the Tender Offer, provided that an additional phone call may be made in
connection with any material amendment to the Tender Offer. An
unsolicited telephone call shall be deemed made when Offerors or their
agent call a limited partner and either speak with an individual or
leave a message for the limited partner.
5. Offerors will not purchase Units which, when taken together with all
other Units beneficially owned by all Offerors, affiliates of Offerors,
or any person or entity participating in the purchasing group
(collectively the "Group") cause the members of the Group to be the
beneficial owners of 46% or more of the outstanding Units.
6. Any Tender Offer shall include the following disclosure:
A. That the price being offered by Offerors for Units was
determined based on an estimate by Offerors of the current net
asset value of the Units, to which a discount was then applied by
Limited Partner.
B. The existence of third-party resale services, the range of
prices paid for Units in secondary market sales for the year
preceding the transmission of the Tender Offer, and a statement as
to the source of such information.
C. The most recent estimated unit value published by the General
Partner prior to the transmission of the Tender Offer.
D. That the General Partner disclosed in its quarterly report to
limited partners for the quarter ended June 30, 1996 a plan of
disposition for the properties owned by the Partnership.
E. The identity of all persons or entities for whose benefit,
directly or indirectly, the Tender Offer is made.
7. In any vote of the limited partners subsequent to the date hereof,
Offerors will vote any and all Units owned by it, directly or
indirectly, pro rata to the vote of all other limited partners.
8. From and at all times after the date of this agreement none of the
Offerors will, either individually or in concert with others, attempt to
remove the General Partner from its position as general partner of the
Partnership, provided that a vote by one or more of Offeror, in accordance
with the provisions of section 7 hereof shall not constitute a breach of
this section B.
9. From and at all times after the date of this agreement none of the
Offerors will not, either individually or in concert with others, to
effect a change in control of the Partnership,
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provided that a vote by one or more of Offerors in accordance with the
provisions of section 7 hereof shall not constitute a breach of this
section 9.
10. Offerors will not transfer any interest, direct or indirect, in all
or any of the Units acquired by either of them in the Tender Offer
unless the transferee or transferees agree in writing for the benefit of
the Partnership and the General Partner, in a form reasonably
satisfactory to the Partnership and the General Partner, to abide by and
comply with all of the terms, promises and covenants made by Offerors
herein, provided however that the Offerors may collectively transfer no
more than 5% of the Units and section 10 shall not apply to such
transfer. For purposes of the preceding sentence, the transfer of less
than 5% of such units may be made in one or more transactions so long as
all such transfers, when added together, do not exceed 5%.
11. In the event the transfer of Units presented for transfer within a
tax year of the Partnership could cause the Partnership to be treated as
a "publicly traded partnership" for federal tax purposes, the General
Partner will accept such transfers only after receiving an opinion of
reputable counsel satisfactory to the General Partner that the
recognition of such transfers will not cause the Partnership to be
treated as a "publicly traded partnership" under the Internal Revenue
Code of 1986, as amended.
12. This Agreement shall be governed by and construed in accordance with
Delaware law without regard to choice of law rules.
Agreed and accepted,
X. XXXX PRICE REALTY INCOME FUND II MANAGEMENT, INC.
BY: illegible
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TITLE: V.P.
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DATE: 11/1/96
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XXX XXXXX
illegible
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XXXX REAL ESTATE SERVICES
BY: illegible
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TITLE:
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DATE:
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