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SECOND AMENDMENT TO
SETTLEMENT AGREEMENT AND RELEASE
This Second Amendment to Settlement Agreement and Release (this
"Amendment") is made and entered into as of the 6th day of January 1997, by and
between The Xxxxx Corporation ("Xxxxx"), a Massachusetts corporation with a
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, and Liquidity Financial Group, L.P. ("Liquidity") individually and on
behalf of certain Affiliates as defined in the Agreement (as hereinafter
defined), a California limited partnership with a principal place of business
at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the parties entered into a Settlement Agreement and
Release, dated the 27th day of June, 1996, as amended as of October 8, 1996 (as
amended, the "Agreement"), and now desire to the amend the Agreement, to
eliminate a possible ambiguity and to facilitate the contemplated transactions
described below, as hereinafter set forth;
WHEREAS, Krescent Partners L.L.C. (i) retained Liquidity
Financial Advisors, Inc., an affiliate of Liquidity, as its financial advisor,
(ii) agreed to become bound by the terms of the Agreement, and (iii) commenced
tender offers (the "Krescent Tender Offers") for units of Investor Limited
Partnership Interests of the real estate limited partnerships listed on
Schedule I attached hereto (the "Scheduled Partnerships");
WHEREAS, American Holdings I, L.P. ("AHI") desires to participate
in the Krescent Tender Offers and, therefore, has agreed to become bound by the
terms of the Agreement with respect to the Scheduled Partnerships; and
WHEREAS, Xxxxx has consented to the participation of AHI in the
Krescent Tender Offers upon AHI's agreement to be bound by the terms of the
Agreement with respect to the Scheduled Partnerships;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 4(d) of the Agreement is hereby amended and restated
in its entirety as follows:
(d) form, join or otherwise participate in a "group" within
the meaning of Section 13(d)(3) of the Securities and Exchange Act of
1934, as amended, with respect to any voting securities of a Xxxxx Fund,
unless each member of such group agrees in writing to be bound by the
terms of this Agreement; provided, however, that Liquidity and Liquidity
Affiliates shall not be deemed to be acting in a "group" in violation of
this Section 4(d) solely by virtue of their voting their interests in
compliance with Section 4(a) of this Agreement;
2. Xxxxx hereby agrees that the agreement between Liquidity and
AHI, attached hereto as Exhibit A, satisfies the requirements of the amended
Section 4(d) of the Agreement, as set forth in Section 1 of this Amendment.
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3. Except as expressly set forth above, the Agreement shall
remain in full force and effect without amendment or modification.
4. Liquidity represents that it has not made any statements
inconsistent with the terms of the Krescent Tender Offers and hereby agrees to
comply with the terms of that certain letter dated December 17, 1996 from
Xxxxxx X. Xxxxxxxxxxx to Xxxxx Xxxxx, a copy of which is attached hereto as
Exhibit B.
IN WITNESS WHEREOF, the parties have executed this Agreement
under seal as of the date first above written.
THE XXXXX CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx, President
LIQUIDITY FINANCIAL GROUP, L.P.
By: Liquidity Financial
Corporation, its general partner
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
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SCHEDULE I
Xxxxx Realty Fund, Ltd. - III
Xxxxx Realty Limited Partnership - V
Xxxxx Realty Limited Partnership - VII
Xxxxx Cash Plus Limited Partnership
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