March 14, 2005
Exhibit
10.4
March 14,
0000
Xxxxxx
Xxxxxx XXX LLC
x/x
Xxxxxx Xxxxxx
00000
Xxxxxx Road
Alpharetta,
Ga. 30004
Equis II
Corporation
c/o Equis
Financial Group
000 Xxxxx
Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
EFG/Kettle
Development LLC
c/o Equis
Financial Group
000 Xxxxx
Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Gentlemen/Ladies:
Reference
is made to a certain Equity Purchase Agreement, as amended on February 4, 2005
(the “Purchase Agreement”) among Kettle Valley USA LLC (“KVUSA”), Equis II
Corporation (“Equis II” and together with KVUSA, the “Buyers”), AFG Investment
Trust C (“Trust C”) and AFG Investment Trust D (“Trust D” and, together with
Trust C, the “Sellers”), and AFG/Kettle Development LLC (the
“Company”).
By
signing below, each of the Sellers and each of the Buyers agree
that:
(i) Section
8.2 (ix) of the Purchase Agreement, requiring the Sellers to obtain “tail”
insurance in form and substance reasonably satisfactory to KVUSA,as a condition
to Buyer’s obligation to close, is hereby deleted in its entirety;
and
(ii). Section
9.1(h), permitting termination by either Seller in the event that such Seller
“makes a determination that the cost of obtaining the ‘tail’ insurance described
in Section 8.2(ix) is unreasonable”, is hereby deleted in its
entirety.
Further,
by signing below, each of the Sellers and each of the Buyers agrees that Section
Sections 9.1 (b) 9.1 (e) and 9.1 (f) of the Purchase Agreement are amended to
extend (i) the outside Closing Date (ii) the date by which KVUSA can terminate
as a result of a breach by the Sellers or a Material Adverse Event and (iii)
the date by which the condition set forth in 8.2(vii) shall have been satisfied
to May 15, 2005 (instead of March 15, 2005). As so amended, Sections 9.1 (b),
9.1 (e) and 9.1(f) are hereby amended to read as follows:
“9.1. Termination.
This
Agreement may be terminated and the transaction contemplated
hereby may be abandoned at any time prior to the Closing, as follows:
* *
*
(b)
by
either of the Buyers or either of the Sellers if the Closing shall not have
occurred on or before May 15, 2005 (provided that the right to terminate this
Agreement under this Section
9.1(b)
shall not be available to any party hereto whose failure to perform or comply
with any covenant, condition or obligation under this Agreement has been the
cause of, or resulted in, the failure of the transactions to be consummated on
or before such date);”
* *
*
(e) by
KVUSA if (i) prior to the Closing Date, or on May 15, 2005, there shall have
been a material Breach of any of the representations, warranties, covenants or
agreements on the part of the Company or the Sellers contained in this Agreement
which cannot be or has not been cured within the earlier of (x) twenty (20) days
after notice thereof to the Sellers or (y) May 15, 2004, or (ii) a Material
Adverse Event shall have occurred and is continuing on the earlier of (x) the
Closing Date or (y) May 15, 2004;
* *
*
(f) by
KVUSA if the condition set forth in 8.2(vii) has not been satisfied or waived
prior to May 15, 2005…”
Except as
amended hereby, the Purchase Agreement is hereby ratified and confirmed in all
respects and shall remain in full force and effect.
Please
indicate your consent to this amendment by signing this letter in the space
provided below and returning it to the undersigned.
Very
truly yours,
LIQUIDATING
TRUST
AFG
INVESTMENT TRUST D
LIQUIDATING
TRUST
By:
WILMINGTON TRUST COMPANY,
As
Liquidating Trustee
By:
_____________________________
Print
Name: ______________________
Title:____________________________
Agreed
to:
KETTLE
VALLEY USA LLC
By:______________________________
Print
Name:_______________________
Title:____________________________
EQUIS II
CORPORATION
By:______________________________
Print
Name:_______________________
Title:____________________________
EFG/KETTLE
DEVELOPMENT LLC
By:______________________________,
as Manager
Print
Name:_______________________
Title:_____________________________
