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 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.
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
Amendment under seal as of the date first above written.
THE XXXXX CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, President
LIQUIDITY FINANCIAL GROUP, L.P.
By: Liquidity Financial Corporation,
its general partner
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, President
