EXHIBIT 10 (9)
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (this "Amendment"), made as of
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January 31, 1994, is by and among NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation, having an address at 2 World Financial Center, Building B, New
York, New York 10281-1198 ("Lender"), FRP FINANCING LIMITED, L.P., a Delaware
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limited partnership, having an address at 8900 Keystone Crossing, Suite 200,
Indianapolis, Indiana 46240-0498 ("Borrower") and BANKERS TRUST COMPANY, a New
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York banking corporation, having an address at 3 Park Plaza, 16th Floor, Irvine,
California 92714 ("Custodian").
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RECITALS
WHEREAS, Lender, Borrower and Custodian are parties to that certain
Loan Agreement dated as of December 28, 1993 (the "Loan Agreement"); and
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WHEREAS, Lender, Borrower and Custodian desire to amend the Loan
Agreement in the respects more particularly set forth hereinbelow;
NOW, THEREFORE, the parties hereby agree as follows:
1. The definition of "Allocated Loan Amount" contained in Section
1.1 of the Loan Agreement is hereby amended by deleting the second clause (ii)
in the second sentence in its entirety and inserting in its place the following
clause (ii):
"(ii) a fraction, the numerator of which is the applicable Allocated
Loan Amount (prior to the adjustment in question) and the denominator
of which is the total of all Allocated Loan Amounts prior to the
adjustment to the Principal Indebtedness resulting in the
recalculation of the Allocated Loan Amount".
2. The definition of "REMIC Trust" contained in Section 1.1 of the
Loan Agreement is hereby amended by deleting the words "the amendment to".
3. The definition of "Securitization Closing Date" contained in
Section 1.1 of the Loan Agreement is hereby amended by deleting the words "the
amendment to".
4. Section 2.12(a) of the Loan Agreement is hereby amended by
inserting the phrase "from Custodian (given at the request of Lender or
Servicer)" after the phrase "Event of Default" in clause (ii) of the last
sentence of the section.
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5. Section 2.12 of the Loan Agreement is hereby amended by inserting
a new Section 2.12(j) at the end of the section as follows:
"(j) The Bank's Reliance. The Bank may rely and shall be protected in
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acting or refraining from acting upon any written notice, instruction
or request furnished to it hereunder and believed by it to be genuine
and to have been signed or presented by the proper party or parties.
The Bank may rely on notice from Lender as to the occurrence of an
Event of Default."
6. Section 2.13(b) of the Loan Agreement is hereby amended by
inserting at the end of clause (iii) the following phrase:
"and the accounts into which funds may be transferred by the
Collection Account Banks after the sweep to the Cash Collateral
Account is terminated by Lender or Custodian in any month".
7. Section 2.13(f) of the Loan Agreement is hereby amended by
inserting the following sentence at the end of the section:
"Notwithstanding the foregoing, Custodian shall have no obligation to
send notice to Borrower of any such failure unless directed to do so
by Lender or Servicer."
8. Section 2.13 of the Loan Agreement is hereby amended by inserting
a new Section 2.13(m) at the end of the section as follows:
"(m) Custodian's Reliance. Custodian may rely and shall be protected
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in acting or refraining from acting upon any written notice,
instruction or request furnished to it hereunder and believed by it to
be genuine and to have been signed or presented by the proper party or
parties. Custodian may rely on notice from Lender or Servicer as to
the occurrence of an Event of Default."
9. Section 6.1(B) of the Loan Agreement is hereby amended by
inserting the following at the end of the section:
"Prior to the first to occur of the Securitization Closing Date, the
date Lender sells the Loan and April 1, 1994, Borrower may Transfer
undeveloped
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portions of the Land which are not used in the operation of the
Facilities as operated on the Closing Date and Lender shall release
such portions of the Land from its Liens, provided, however, that (i)
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at least 10 days prior to such Transfer Borrower shall deliver to
Lender: (v) if requested by Lender, an updated Appraisal for the
Facility with respect to which such Transfer is to occur reflecting
the Appraised Value of such Facility without the portion of the Land
to be transferred, (w) a certificate by Borrower affirming that the
representations in Sections 4.1(T) and (FF) will be true following
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such Transfer, (x) all documents necessary to show that the Transfer
will be made in accordance with all applicable Legal Requirements,
including, if requested by Lender, an opinion of Borrower's counsel to
such effect, (y) a new Survey for the Facility omitting the portion of
the Land to be transferred but in all other respects identical to the
Survey for the Facility delivered on the Closing Date, and (z) an
endorsement to the Title Insurance Policy reflecting such Transfer
acceptable to Lender in its sole discretion, and (ii) Borrower shall
pay all of Lender's out-of-pocket expenses in connection with such
Transfer, including Lender's attorneys' fees and disbursements."
10. As modified by this Amendment, the Loan Agreement shall remain in
full force and effect and is hereby ratified and confirmed by the parties.
11. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto cause this Amendment to be duly
executed by their duly authorized representatives, all as of the day and year
first above written.
LENDER:
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By: /s/ Raymond M. Anthony
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Raymond M. Anthony
Vice President
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BORROWER:
FRP FINANCING LIMITED, L.P.,
a Delaware limited partnership
By: Forum Retirement, Inc.,
a Delaware corporation,
General Partner
By: /s/ Daniel A. Decker
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Name: Daniel A. Decker
Title: Vice President
CUSTODIAN:
BANKERS TRUST COMPANY,
a New York banking corporation (as
Custodian only)
By: /s/ Kevin R. Quinn
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Kevin R. Quinn
Assistant Secretary
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