EXHIBIT 10.8
AMENDMENT NO. 1 TO
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
AMENDMENT, dated as of September 1, 1995 (the "Amendment") to
the Pooling and Servicing Agreement and Indenture of Trust, dated as of July 1,
1995 (the "Agreement"), among AFG CREDIT CORPORATION, a Delaware corporation, as
Transferor, AMERICAN FINANCE GROUP, INC., a Delaware corporation ("AFG"), as
Servicer, and BANKERS TRUST COMPANY, a banking corporation organized and
existing under the laws of the State of New York, as Trustee (in such capacity,
the "Trustee") and as Collateral Trustee (in such capacity, the "Collateral
Trustee").
WHEREAS, the Transferor, AFG, the Trustee and the Collateral
Trustee wish to amend the Agreement in the manner provided for in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Paragraph (f) of Section 9.1 of the Agreement is amended by
adding the word "or" after the semicolon at the end of the paragraph.
2. A new paragraph (g) is added to Section 9.1, which reads in
its entirety as follows:
(g) on any date that is subsequent to the first date
upon which the Aggregate Pool Balance equals or exceeds
$20,000,000, the Aggregate Pool Balance shall be less than
$20,000,000;
3. The language immediately following Section 9.1, paragraph
(g) is replaced in its entirety with the following language:
then, and in any such event described in subparagraph (a), (b) or (d), after the
applicable grace period set forth in such subparagraphs, either the Trustee or
the Holders of a principal amount of Notes aggregating more than 662/3% of the
Aggregate Principal Amount by notice then given in writing to the Transferor and
the Servicer (and to the Trustee if given by the Noteholders) may declare that a
pay out event (a "Trust Pay Out Event") has occurred as of the date of such
notice and in the case of any event described in subparagraph (c), (e), (f) or
(g) a Pay Out Event shall occur immediately upon the occurrence of such event
without any notice or other action on the part of the Trustee or the
Noteholders. Notwithstanding the foregoing, a delay in or failure of performance
referred to in subsection 9.1(a)(i) for a period of ten Business Days, or under
subsection 9.1(a)(ii) or 9.1(b) for a period of 60 days, in each case without
giving effect to any grace period specified in such subsections, shall not
constitute a Pay Out Event for purposes of this sentence until the expiration of
such period, if such failure could not be prevented by the exercise of
reasonable diligence by the Transferor or the Servicer and such failure was
caused by (i) an act of God or the public enemy, acts of declared or undeclared
war, public disorder, rebellion, riot or sabotage, epidemics, landslides,
lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or
meltdowns, floods, power outages, bank closings, or similar causes or (ii)
computer malfunction, communication malfunction or other electronic system
malfunction or similar causes. The preceding sentence shall not relieve the
Transferor or the Servicer from using all reasonable efforts to perform their
respective obligations in a timely manner in accordance with the terms of this
Agreement and any Supplement and the Transferor or the Servicer shall provide
the Trustee and each Rating Agency with an Officer's Certificate giving prompt
notice of such failure, together with a description of its efforts to so perform
its obligations. Notice of any such Pay Out Event shall be given by the Servicer
to the Rating Agencies.
4. Except as expressly amended, modified and supplemented
hereby, the provisions of the Agreement are and shall remain in full force and
effect.
5. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, PROVIDED,
HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE TRUSTEE AND THE
COLLATERAL TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
6. The captions in this Amendment are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their constructions or effect.
7. Capitalized terms used in this Amendment without definition
shall have the meanings assigned to them in the Agreement.
8. This Amendment may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed by their respective officers as of the day and year first above
written.
AFG CREDIT CORPORATION,
as Transferor
By:___________________________
Title:
AMERICAN FINANCE GROUP, INC.
as Servicer
By:___________________________
Title:
BANKERS TRUST COMPANY,
as Trustee
By:___________________________
Title:
BANKERS TRUST COMPANY,
as Collateral Trustee
By:___________________________
Title:
