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 it 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 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
depository 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 8.
9. From and at all times after the date of this
agreement none of the Offerors will act, either
individually or in concert with others, to effect a
change in control of the Partnership, 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: /s/Xxxx X. Xxxxxx
TITLE: Vice President
DATE: November 1, 1996
XXX XXXXX
/s/Xxx Xxxxx
XXXX REAL ESTATE SERVICES
BY: /s/Xxx Xxxxx
TITLE:
DATE: November 6, 1996
