EXHIBIT 10.10
AMENDMENT NO. 1
TO AMENDED AND RESTATED MASTER CONSTRUCTION
AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED MASTER CONSTRUCTION AND
TERM LOAN AGREEMENT, dated as of June 14, 2001 (the "Amendment"), among FCA Real
Estate Holdings, LLC, a Delaware limited liability company (the "Borrower"),
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as agent and
administrative bank (in such capacity, the "Administrative Bank"), the "Lender
parties" to the Loan Agreement hereinafter described (each a "Lender" and
collectively the "Lenders") and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as collateral agent (in such capacity, the "Collateral
Agent").
RECITALS:
A. The Borrower, the Administrative Bank and the Lenders are
parties to that certain Amended and Restated Master Construction and Term Loan
Agreement dated as of July 17, 2000 (the "Original Agreement").
B. The Borrower has re-financed certain of the Series Loans made
by one or more of the Lenders to the Borrower pursuant to the Original
Agreement.
C. he Borrower has requested the Administrative Bank and the
Lenders to amend certain provisions of the Original Agreement with respect to
the remaining Series Loans and to future Series Loans.
D. Subject to the terms and conditions of this Amendment, the
Administrative Bank and the Lenders have agreed to the Borrower's requests.
NOW, THEREFORE, the parties agree as follows:
1. DEFINED TERMS. All capitalized terms used in this Amendment
shall, except where the context otherwise requires, have the meanings set forth
in the Original Agreement as amended hereby.
2. AMENDMENTS. The Original Agreement is hereby amended as
follows:
(a) The definitions of "Approved Projects," "Aggregate
Indemnification Percentage," "Commitment Letter," "Commitment Fees,
"Fixed Rate," "Fixed Rate Conversion Date," "Fixed Rate Period,"
"Individual Commitment," "Interest Rate," "Maturity Date", "Maximum
Loan Amount," "Percentage," "Prepayment Percentage," "Reference Rate,"
"Series Loans," "Super Majority Lenders," "US Bank," "Variable Rate,"
and "Variable Rate Period" appearing in the DEFINITION Section of the
Original Agreement are respectively amended in their entireties to read
as follows:
"Approved Projects: Borrower's sports and health club
facilities respectively located in Bloomington, MN, and Columbus, OH,
and up to five (5) additional projects approved by the Administrative
Bank which will be the Projects to be respectively
located in Orland Park, IL, Algonquin, IL, Rochester Hills, MI, Xxxx
Ridge, IL and Skokie, IL; provided that the Administrative Bank, in its
reasonable business judgment, may substitute Projects in two (2)
different locations for any of the above-described five (5) additional
Projects not then being financed by a Series Loan and any other of the
Borrower's sports and health club facilities approved by the Lenders.
Aggregate Indemnification Percentage: If the Administrative
Bank, in its reasonable business judgment, has allocated its claim for
any indemnification described in Section VII. 8. to more than one
Series Loan, then the Aggregate Indemnification Percentage for each of
the Primary Lenders for such Series Loans shall be the ratio (expressed
as a percentage) which such Primary Lender's Aggregate Individual
Commitments for such Series Loans bears to the aggregate Commitments
for such Series Loans.
Commitment Letter: With respect to: (a) the Series A Loan and
the Series F Loan, the Commitment Letter as described in the Supplement
relating to such Series Loan; or (b) any other Series Loan, this
Agreement.
Commitment Fees: With respect to any Series Loan, other than
the Series A Loan and the Series F Loan: (a) $109,585.98 payable on the
"Effective Date" of that certain Amendment No. 1 to Amended and
Restated Master Loan Agreement dated as of June 14, 2001(the "First
Amendment") among the Borrower, the Administrative Bank, the Lenders
and the Collateral Agent for the ratable benefit of the Lenders in
accordance with their respective Percentages of the Available
Commitment on such Effective Date; and (b) 0.50% of the Commitment for
a Series Loan (the 'Loan Fees') payable on the Closing Date for such
Series Loan for the ratable benefit of the Lenders in accordance with
their respective Percentages of the Commitment for such Series Loan;
which Commitment Fees, in either case, are earned on the date of
payment and are not refundable under any circumstances.
Fixed Rate: The Fixed Rate is 10.02% per annum with respect to
the Series A Loan and 8.96% with respect to the Series F Loan and shall
not apply to any other Series Loan.
Fixed Rate Conversion Date: The Fixed Rate Conversion Date was
March 10, 2000 with respect to the Series A Loan and July 31, 1997 with
respect to the Series F Loan and shall not apply to any other Series
Loan.
Fixed Rate Period: With respect to the Series Loan A Loan and
the Series F Loan, the five (5) year period commencing on and including
such Series Loan's Fixed Rate Conversion Date.
Individual Commitment: With respect to any Primary Lender for
a Series Loan, such Primary Lender's Percentage of the Commitment for
such Series Loan.
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Interest Rate: The Variable Rate during the Variable Rate
Period or, with respect to the Series A Loan and the Series F Loan
only, the Fixed Rate for the relevant Series Loan during its Fixed Rate
Period.
Maturity Date: With respect to any Series Loan, the "Maturity
Date" described in the Supplement relating to such Series Loan;
provided, however, that the Maturity Date for any Series Loan, other
than the Series A Loan or the Series F Loan, shall not be: (a) earlier
than the tenth day of the thirty-sixth (36th) month following the
Conversion Date for the Project being constructed with the proceeds of
such Series Loan; or (b) later than the tenth day of the forty-eighth
(48th) month from the signing of the Supplement for such Series Loan.
Maximum Loan Amount: For any Project and its Applicable Series
Loan, the lesser of: (a) 75% of the fair market value of such Project
as a vacant health club upon its Completion; or (b) 60% of the costs
for each Project being financed by its Applicable Series Loan, other
than the Series A Loan and the Series F Loan; provided, however, the
Maximum Loan Amount for the Series J Loan shall be $12,941,196.94.
Percentage: With respect to: (a) US Bank for the Series A Loan
and the Series F Loan, 100%; and (b) any Primary Lender for its pro
rata share of the Commitment for any other Series Loan, such Primary
Lender's "Percentage" as set forth in the relevant Supplement for such
Series Loan, which shall be calculated as follows: (i) first, multiply
the Aggregate Outstanding Committed Amount by such Lender's Aggregate
Individual Percentage; (ii) then, from such product, subtract such
Lender's Aggregate Outstanding Individual Committed Amount (such
remainder being such Lender's 'Numerator'); and (iii) finally,
determine the ratio (expressed as a percentage) which such Lender's
Numerator bears to the proposed Commitment.
Prepayment Percentage: With respect to any prepayment of any
Series Loan, the ratio (expressed as a percentage) which the amount of
such prepayment bears to the outstanding principal balance of such
Series Loan, immediately prior to the making of such prepayment.
Primary Lenders: With respect to: (a) the Projects
respectively located in Columbus, OH and Bloomington, MN and the
Applicable Series Loan for such Projects, US Bank; or (b) any other
Project and the Applicable Series Loan for such Project, all Lenders
parties to this Agreement on the date on which the Supplement for such
Applicable Series Loan is executed.
Reference Rate: The Prime Rate.
Series Loan: The separate loans to be made under this
Agreement in accordance with the applicable Supplement for such loans;
provided, however, on and after the `Effective Date' of the First
Amendment, the Series Loans shall not include the Series B Loan, the
Series C Loan, the Series D Loan, the Series E Loan, the portion of the
Series F Loan relating to the Refinance Projects respectively located
in Eagan, MN and Woodbury, MN, the Series G Loan, the Series H Loan and
the Series I Loan. In order to
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distinguish one Series Loan from another, the Series Loans may
sometimes be respectively alphabetically denominated as the "Series A
Loan," the "Series B Loan," and so on in accordance with the applicable
Supplement for such Series Loan.
Super Majority Lenders: At any time, those Lenders (which term
shall include US Bank) at such time having Aggregate Individual
Commitments aggregating more than 66 2/3% of the Aggregate Commitment.
US Bank: U.S. Bank National Association, acting in its
separate capacity as a Lender.
Variable Rate: A per annum rate equal to the sum of: (a)
one-half of one percent (0.50%); plus (b) the Prime Rate, as the same
may fluctuate from time to time, as more fully described in the Notes.
Variable Rate Period: With respect to any Series Loan, other
than the Series A Loan and the Series F Loan, the term of such Series
Loan."
(b) The DEFINITIONS Section of the Original Agreement is further
amended by adding the following new definitions of "Accrual Period," "Aggregate
Commitment," "Aggregate Individual Commitment," "Aggregate Individual
Percentage," "Available Commitment," "Aggregate Outstanding Committed Amount,"
"Aggregate Outstanding Individual Committed Amount," "Collateral Account,"
"Fixed Rate Note," "Numerator," "Prime Rate" and "Termination Date" in proper
alphabetical order:
"Accrual Period: For any Series Loan following (and including)
its Conversion Date, the period commencing on, and including, the 10th
day of a month and ending on, and including, the 9th day of the
immediately following month, except that, with respect to any Series
Loan whose Conversion Date is not the 10th day of a month, the first
Accrual Period for such Series Loan shall begin on, and include, such
Conversion Date.
Aggregate Commitment: At any date for all Series Loans,
$50,000,000.00.
Aggregate Individual Commitment: At any date for all Series
Loans for any Primary Lender, the amount set forth opposite such
Primary Lender's name on Schedule A to the First Amendment.
Aggregate Individual Percentage: At any date for all Series
Loans for any Primary Lender, the amount set forth opposite such
Primary Lender's name on Schedule A to the First Amendment.
Aggregate Outstanding Committed Amount: At any date, the sum
of all Commitments for the Series Loans except that, after the
Conversion Date of a Series Loan, only the aggregate outstanding
principal balance of such Series Loan shall be included in the
Aggregate Outstanding Committed Amount.
Aggregate Outstanding Individual Committed Amount: At any date
for any Lender, the sum of such Lender's Individual Commitments for the
Series Loans except
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that, after the Conversion Date of a Series Loan, only the outstanding
principal balance of such Series Loan held by such Lender shall be
included in its Aggregate Outstanding Individual Committed Amount.
Available Commitment: At any date, the difference between: (a)
the Aggregate Commitment; minus (b) the Aggregate Outstanding Committed
Amount.
Collateral Account: As described in Section V.28.
Fixed Rate Note: The respective Notes for the Series A Loan
and the Series F Loan.
Loan Fees: As defined in the definition of `Commitment Fees'.
Numerator: As defined in the definition of `Percentage'.
Prime Rate: The prime rate announced by the Administrative
Bank. The interest rate on the Series Loan hereunder, other than the
Series A Loan and the Series F Loan, will be adjusted each time that
the prime rate changes.
Termination Date: The earlier of: (a) May 31, 2002; or (b) the
date on which the Administrative Bank and the Super Majority Lenders
terminate the Aggregate Commitment and the Commitments in accordance
with Section VI.2."
(c) The first sentence of Section I.1. of the Original
Agreement is amended in its entirety to read as follows:
"Subject to the terms and conditions hereof, the
Primary Lenders for a Series Loan severally agree to lend to
Borrower and Borrower agrees to borrow from such Primary
Lenders, the proceeds of such Series Loan, from time to time
in accordance with the terms hereof until the Maturity Date of
such Series Loan, for the purpose of developing the relevant
Project; provided, however, that no such Primary Lender shall
be obligated to make any Advance if, after giving effect to
such Advance: (a) the aggregate amount of Advances for such
Series Loan made by such Primary Lender would exceed its
Individual Commitment for such Series Loan or such Series Loan
would exceed the lesser of the Commitment or the Maximum Loan
Amount; (b) the aggregate amount of Advances for all Series
Loans made by such Primary Lender would exceed its Aggregate
Individual Commitment; or (c) the aggregate amount of Advances
for all Series Loans made by all Primary Lenders would exceed
the Aggregate Commitment."
(d) Section I.1. of the Original Agreement is further
amended by adding the following as the last sentence thereof:
"The Available Commitment shall terminate on the
Termination Date."
(e) The third sentence of Section I.2. of the Original
Agreement is amended in its entirety to read as follows:
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"Interest accruing on a Series Loan shall be payable
as follows: (a) prior to the Conversion Date for such Series
Loan, interest accruing on such Series Loan through the end of
a calendar month shall be payable, as accrued, on the first
day of the following calendar month, commencing on the first
such day following the making of the initial Advance on such
Series Loan and continuing through, to and including the first
day of the month in which such Conversion Date occurs; (b) on
the Conversion Date for such Series Loan, interest accruing on
and after the first day of the month in which such Conversion
Date occurs through to, but excluding, such Conversion Date
shall be payable on such Conversion Date; (c) after such
Conversion Date, interest accruing on such Series Loan during
each Accrual Period shall be payable on the 10th day of each
month, commencing on the first such day following such
Conversion Date; and (d) all unpaid, accrued interest shall be
paid in full at the time all Advances are paid in full."
(f) Section I.3. of the Original Agreement is amended in
its entirety to read as follows:
"I.3 Prepayment.
In consideration of Borrower's agreement to pay the
prepayment indemnity required by Section I.8. and the
prepayment fee required by this Section, Borrower may prepay
the Notes for any Series Loan, in whole or in part, at any
time without premium or penalty; provided, however, that: (a)
each prepayment of a Fixed Rate Note shall be accompanied by
the amount of the Prepayment Fee, if any, required by Section
I.8.; and (b) no prepayment may be made on any Series Loan
unless Borrower contemporaneously prepays the outstanding
principal balance of each other Series Loan by the same
Prepayment Percentage. Borrower shall give the Administrative
Bank at least three (3) Business Days' prior written notice of
the date of any prepayment and the Administrative Bank shall
give prompt notice to the Primary Lenders for such Series Loan
of any notice received by the Administrative Bank pursuant to
this Section I.3. Any prepayment must be accompanied by
accrued and unpaid interest on the amount prepaid. Each
partial prepayment on any Series Loan shall be in the amount
of $100,000.00 or an integral multiple thereof (or, if the
outstanding principal amount of a Series Loan is less than
$100,000.00, the entire outstanding principal amount of such
Series Loan) and shall be applied against installments due on
the Notes for such Series Loan in the inverse order of their
maturities. Amounts paid or prepaid under this Section I.3.
may be reborrowed pursuant to Commitments entered into after
the date of such payment but prior to the Termination Date but
may not be re-borrowed under any then existing Commitment."
(g) Section I.4. of the Original Agreement is amended in
its entirety to read as follows:
"I.4 Fixed Rate.
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If any Regulatory Change:
(a) shall subject US Bank to any tax,
duty or other charge with respect to its Series A
Loan or Series F Loan or its Note evidencing such
Series Loan or shall change the basis of taxation of
payment to such Primary Lender of principal, interest
or any other amounts due under this Agreement, such
Note or any other Loan Document (except for changes
in the rate of tax on the overall net income of US
Bank imposed by the jurisdiction in which US Bank's
principal office is located); or
(b) shall impose, modify or deem
applicable any reserve, special deposit, capital
requirement or similar requirement (including,
without limitation, any such requirement imposed by
the Board, but excluding any such requirement to the
extent included in calculating the applicable Fixed
Rate for the Series A Loan and the Series F Loan)
against assets of, deposits with or for the account
of, or credit extended by, US Bank or shall impose on
US Bank or on the United States market for
certificates of deposit any other condition affecting
the Series A Loan or the Series F Loan or its Note
evidencing any such Loan;
and the result of any of the foregoing is to increase the cost
to US Bank of making or maintaining the Series A Loan or the
Series F Loan, or to reduce the amount of any sum received or
receivable by US Bank under this Agreement with respect to
such Series Loan, its Notes respectively evidencing such
Series Loans or any other Loan Document, then, within thirty
(30) days after demand by US Bank, Borrower shall pay to US
Bank such additional amount or amounts as will compensate US
Bank for such increased cost or reduction. US Bank will
promptly notify Borrower and the Administrative Bank of any
event of which it has knowledge, occurring after the date
hereof, which will entitle US Bank to compensation pursuant to
this Section. A certificate of US Bank claiming compensation
under this Section, setting forth the additional amount or
amounts to be paid to it hereunder and stating in reasonable
detail the basis for the charge and the method of computation,
shall be determinative in the absence of manifest error. In
determining such amount, US Bank may use any reasonable
averaging and attribution methods. Failure on the part of US
Bank to demand compensation for any increased costs or
reduction in amounts received or receivable with respect to
any period shall not constitute a waiver of US Bank's rights
to demand compensation for any increased costs or reduction in
amounts received or receivable in any subsequent period.
(h) Section I.6. of the Original Agreement is amended by
increasing the percentage of the Non-Usage Fee from "one-quarter of one
percent per annum" to "three-eighths of one percent per annum" and is
further amended by adding the following at the end thereof.
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"The Administrative Bank shall promptly pay over to each
Lender its ratable share of the Non-Usage Fee in accordance with such
Lender's Percentage of the Commitment for such Series Loan."
(i) Section I.7. of the Original Agreement is amended in
its entirety to read as follows:
"I.7. Unallocated Commitment Fee.
In addition to the interest and other consideration
to Lenders herein, Borrower agrees to pay to the
Administrative Bank for the ratable benefit of each Primary
Lender for any Series Loan a non-allocation fee (the
"Non-Allocation Fee") on the average daily amount of the
Available Commitment during the most recently ended month
(including, without limitation, any portion thereof when such
Primary Lenders' obligations to lend shall be suspended by
reason of Borrower's inability to fulfill the applicable
conditions set forth herein) at the rate of three-eighths of
one percent per annum. The Non-Allocation Fee shall be paid
monthly in arrears, commencing at the end of the first month
following the `Effective Date' of the First Amendment. The
Administrative Bank shall promptly pay over to each Lender its
ratable share of the Non-Allocation Fee in accordance with the
ratio (expressed as a percentage) which such Lender's average
daily Numerator in the relevant month bears to the average
daily Available Commitment during such month."
(j) Section I.8. of the Original Agreement is amended in
its entirety to read as follows:
"I.8 Prepayment Fees:
There shall be no prepayments of any Fixed Rate Note,
provided that US Bank may consider requests for its consent
with respect to prepayment of a Fixed Rate Note, without
incurring an obligation to do so, and the Borrower
acknowledges that in the event that such consent is granted,
the Borrower shall be required to pay US Bank, upon prepayment
of all or part of the principal amount before final maturity,
a Prepayment Fee equal to the maximum of: (a) zero, or (b)
that amount, calculated on any prepayment date, which is
derived by subtracting: (a) the principal amount of such Fixed
Rate Note or portion of such Fixed Rate Note to be prepaid
from (b) the Net Present Value of such Fixed Rate Note or
portion of such Fixed Rate Note to be prepaid on such date of
prepayment.
"Net Present Value" shall mean the amount which is
derived by summing the present values of each
prospective payment of principal and interest which,
without such full or partial prepayment, could
otherwise have been received by US Bank over the
shorter of the remaining contractual life of the Note
or next repricing "date if US Bank had instead
initially invested such Fixed Rate Note proceeds at
the Initial Money Market Rate. The
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individual discount rate used to present value each
prospective payment of interest and/or principal
shall be the Money Market Rate at Prepayment for the
maturity matching that of each specific payment of
principal and/or interest.
"Initial Money Market Rate" shall mean the rate per
annum, determined solely by US Bank, on the first day
of the term of such Fixed Rate Note or the most
recent repricing date or as mutually agreed upon by
the Borrower and US Bank, as the rate at which US
Bank would be able to borrow funds in Money Markets
for the amount of such Fixed Rate Note and with an
interest payment frequency and principal repayment
schedule equal to such Fixed Rate Note and for a term
as may be arranged and agreed upon by the Borrower
and US Bank. Such a rate shall include FDIC
insurance, reserve requirements and other explicit or
implicit costs levied by any regulatory agency.
Borrower acknowledges that US Bank is under no
obligation to actually purchase and/or match funds
for the Initial Money Market Rate of this Note.
"Money Market Rate At Prepayment" shall mean that
zero-coupon rate, calculated on the date of
prepayment, and determined solely by US Bank, as the
rate in which US Bank would be able to borrow funds
in Money Markets for the prepayment amount matching
the maturity of a specific prospective Fixed Rate
Note payment or repricing date. Such a rate shall
include FDIC insurance, reserve requirements and
other explicit or implicit costs levied by any
regulatory agency. A separate Money Market Rate at
Prepayment will be calculated for each prospective
interest and/or principal payment date.
"Money Markets" shall mean one or more wholesale
funding mechanisms available to US Bank, including
negotiable certificates of deposit, eurodollar
deposits, bank notes, fed funds, interest rate swaps,
or others.
In calculating the amount of such a prepayment fee, US Bank is
hereby authorized by the Borrower to make such assumptions
regarding the source of funding, redeployment of funds and
other related matters, as US Bank may deem appropriate. If the
Borrower fails to pay any Prepayment Fee when due, the amount
of such Prepayment Fee shall thereafter bear interest until
paid at the Default Rate specified in the relevant Fixed Rate
Note (computed on the basis of a 360-day year, actual days
elapsed). Any prepayment of principal shall be accompanied by
a payment of interest accrued to date thereon; and said
prepayment shall be applied to the principal installments in
the inverse order of their maturities. All prepayments of a
Series Loan shall be in an amount of at least $100,000 or if
less, the remaining entire principal balance of such Series
Loan."
(k) Section II.6. of the Original Agreement is amended in
its entirety to read as follows:
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"II.6. Primary Lenders' Loan Fee.
The Administrative Bank shall have received, in
immediately available funds, for the ratable benefit of such
Primary Lenders, the Loan Fees for such Series Loan which is
payable at Closing. The Loan Fees are earned on the date of
payment and are not refundable under any circumstances."
(1) The first sentence of Section III.1. of the Original
Agreement is amended in its entirety to read as follows:
"The proceeds of each Series Loan shall be advanced
by its Primary Lenders, for the benefit of Borrower, in
accordance with the terms and conditions set forth in this
ARTICLE III, and in accordance with the Disbursing Agreement;
provided, however, that no such Primary Lender shall be
obligated to make any Advance if, after giving effect to such
Advance: (a) the aggregate amount of Advances for such Series
Loan made by such Primary Lender would exceed its Individual
Commitment for such Series Loan or such Series Loan would
exceed the lesser of the Commitment or the Maximum Loan
Amount; (b) the aggregate amount of Advances for all Series
Loans made by such Primary Lender would exceed its Aggregate
Individual Commitment; or (c) the aggregate amount of Advances
for all Series Loans made by all Primary Lenders would exceed
the Aggregate Commitment."
(m) Section V.28. is amended by adding the following at
the end thereof:
"Until such Rebatable Rent is re-paid to the Lessee
in accordance with this Section, such Rebatable Rent shall be
held in one or more special cash collateral account(s) (the
`Collateral Account(s)') maintained in favor of the Collateral
Agent at US Bank. In addition to the other provisions of this
Agreement or any other Loan Document, upon an occurrence of
any Event of Default, the Collateral Agent may apply amounts
on deposit in the Collateral Accounts to the payment of the
Obligations in accordance with Sections I.10.,I.11. and I.12.
The Borrower hereby pledges and grants to the Collateral Agent
for itself and for the benefit of the Administrative Bank and
the ratable benefit of the Lenders a security interest in all
funds held in the Collateral Accounts as security for the
payment and performance of all Obligations."
(n) Section V.30. of the Original Agreement is amended in
its entirety to read as follows:
"V.30. Depositing Collections.
Borrower shall deposit all collections with respect
to the Project Leases in a Collateral Account maintained at US
Bank and, if required by the Administrative Bank or the Super
Majority Lenders, in separate Collateral Accounts for each
Project Lease. The Borrower shall not have any right to
withdraw any deposited amount except to pay Obligations
arising under this
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Agreement and the other Loan Documents and to pay Rebatable
Rent in accordance with Section V.28."
(o) Article V, of the Original Agreement is further
amended by adding the following new Section V.33. to read as follows:
"V.33 Revised Article 9.
Promptly upon the Collateral Agent's, the
Administrative Bank's or any Lender's request, the Borrower
will execute and deliver amended and restated Loan Documents
in form and substance reasonable acceptable to the Collateral
Agent in order to conform such Loan Documents to the revision
of Minn. Stat. ss.ss.336.9-101 et. seq. being effected by
Minn. Laws 2000, Chapter 399's adoption of Revised Article 9
of the Uniform Commercial Code as approved by the National
Conference of Commissioners on Uniform State Law Laws in July,
1998."
(p) Section VI.2.B. of the Original Agreement is amended
in its entirety to read as follows:
"B. Terminate the Aggregate Commitment and/or any
Commitment without notice to Borrower, whereupon Aggregate
Commitment or such Commitment shall terminate."
(q) Subsection VIII. 10.(a) is amended in its entirety to
read as follows:
"(a) the Administrative Bank's and all of the Lenders'
consent shall be required if the amendment, modification, supplement,
waiver or consent: (i) changes the amount of, or extends the maturity
of, any principal or any installment of principal payable under any
Note; (ii) changes the amount of, or extends the payment date for,
fees, interest or other non-principal payment due and payable under
this Agreement or any other Loan Document; (iii) releases any Project
or any material part hereof, if any, except as otherwise expressly
required by the terms of the Loan Documents; (iv) waives any Event of
Default of the nature described in Section VI.1.A. or B; (v) changes
the definition of "Maximum Loan Amount;"(vi) adds any of the Borrower's
sports and health club facilities as an Approved Project which is not
included within the definition of, or permitted by, the definition of,
"Approved Project"; (vii) changes this Section or the definition of
"Super Majority Lenders"; (viii) changes Section I.10., I.11. or I.12.
or any provision of any other Loan Document which allocates payments on
the Obligations among the Administrative Bank, the Collateral Agent and
the Lenders; or (ix) causes any Approved Project, other than the
Columbus Project, not to constitute Collateral or Additional Project
Collateral for all of the Series Loans;
(r) The Original Agreement is further amended by attached
Schedule A thereto in the form of Schedule A attached to this
Amendment.
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date (the "Effective Date") when, and only when, the
Administrative Bank shall have received:
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(a) Counterparts of this Amendment executed by Borrower,
all Lenders and the Collateral Agent;
(b) Payment in full, in immediately available funds, of
the principal of, and unpaid accrued interest on, all Series Loans
other than the Series A Loan and the portion of the Series F Loan
relating to the Refinance Project located in Bloomington, MN;
(c) Payment in full, in immediately available funds, of
the amount described in Section I.8., of the Original Agreement with
respect to all Series Loans required to be prepaid pursuant to
subsection (b) above;
(d) Manufacturers Bank shall have terminated its status
as a Lender under the Original Agreement; and
(e) Such other documents as the Administrative Bank or
any Lender may reasonably request.
4. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Bank, the Lenders and the Collateral Agent to enter into this Amendment,
Borrower represents and warrants to the Administrative Bank, the Lenders and the
Collateral Agent as follows:
(a) The execution, delivery and performance by Borrower
of the Original Agreement as amended by this Amendment and any other
documents to be executed and/or delivered by Borrower in connection
herewith have been duly authorized by all necessary company action, do
not require any approval or consent of, or any registration,
qualification or filing with, any government agency or authority or any
approval or consent of any other person (including, without limitation,
any member), do not and will not conflict with, result in any violation
of or constitute any default under, any provision of Borrower's
Articles of Organization, Member Control Agreement or Operating
Agreement, any agreement binding on or applicable to Borrower or any of
its property, or any law or governmental regulation or court decree or
order, binding upon or applicable to Borrower or of any of its property
and will not result in the creation or imposition of any security
interest or other lien or encumbrance in or on any of its property
pursuant to the provisions of any agreement applicable to Borrower or
any of its property;
(b) The representations and warranties contained in the
Original Agreement are true and correct as of the date hereof as though
made on that date except to the extent that such representations and
warranties relate solely to an earlier date and except that the
representations and warranties set forth in Section IV.5 of the
Original Agreement with respect to the audited or unauditied financial
statements of the Borrower or the Lessee, as the case may be, shall be
deemed to be a reference to the most recent audited or unaudited
financial statements of the relevant Person delivered to the Lenders
pursuant to Section V.7 of the Original Agreement
(c) (i) No events have taken place and no circumstances
exist at the date hereof which would give Borrower the right to assert
a defense, offset or counterclaim to any claim by the Administrative
Bank or any Lender for payment of any Note; and (ii) Borrower hereby
releases and forever discharges the Administrative Bank, each
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Lender and their respective successors, assigns, directors, officers,
agents, employees and participants from any and all actions, causes of
action, suits, proceedings, debts, sums of money, covenants, contracts,
controversies, claims and demands, at law or in equity, which Borrower
ever had or now has against such Person by virtue of such Person's
relationship to Borrower in connection with the Loan Documents and the
transactions related thereto;
(d) The Original Agreement, as amended by this Amendment,
is the legal, valid and binding obligation of Borrower, remains in full
force and effect and is enforceable in accordance with its terms,
subject only to bankruptcy, insolvency, reorganization, moratorium or
similar laws, rulings or decisions at the time in effect affecting the
enforceability of rights of creditors generally and to general
equitable principles which may limit the right to obtain equitable
remedies;
(e) No Default or Event of Default exists prior to or
after giving effect to this Amendment.
5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) From and after the date of this Amendment, each
reference in the Original Agreement to "this Agreement", "hereunder",
"hereof', "herein" or words of like import referring to the Original
Agreement, and each reference to the "Agreement", "thereunder",
"thereof', "therein" or words of like import referring to the Original
Agreement in any other Loan Document shall mean and be a reference to
the Original Agreement as amended hereby; and
(b) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of Lender under the Original
Agreement or any other Loan Document, nor constitute a waiver of any
provision of the Original Agreement or any such other Loan Document.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all costs and .expenses of the Administrative Bank and each Lender in connection
with the preparation, reproduction, execution and delivery of this Amendment and
the other documents to be delivered hereunder or thereunder, including their
reasonable attorneys' fees and legal expenses. In addition, Borrower shall pay
any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution and delivery, filing or recording of this
Amendment and the other instruments and documents to be delivered hereunder, and
agrees to save the Administrative Bank and each Lender harmless from and against
any and all liabilities with respect to, or resulting from, any delay in
Borrower's paying or omission to pay, such taxes or fees.
7. GOVERNING LAW. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY
OF THIS AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
9. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
BORROWER:
FCA REAL ESTATE HOLDINGS, LLC
By: LIFE TIME FITNESS, Inc.
Its: Manager
By:_________________________________________
Its: Secretary and Chief Financial Officer
ADMINISTRATIVE BANK:
U.S. BANK NATIONAL ASSOCIATION, as the
Administrative Bank, the Collateral Agent
and the sole Primary Lender for the Series A
and the Series F Loan and a Lender for all
other Series Loans
By:_________________________________________
Its: Vice President
BANK ONE, MICHIGAN, as a Lender for all
Series Loans, other than the Series A Loan
and the Series F Loan
By:_________________________________________
Its: First Vice President
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SCHEDULE A
LENDERS AND PERCENTAGES
AGGREGATE AGGREGATE
INDIVIDUAL INDIVIDUAL
LENDER COMMITMENT PERCENTAGE
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U. S. Bank National Association $25,000,000.00 50%
U. S. Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
Fax No. (000) 000-0000
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Bank One Michigan $25,000,000.00 50%
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Fax No. (000) 000-0000
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