EXHIBIT 10.12
AMENDMENT NO. 3
TO AMENDED AND RESTATED MASTER CONSTRUCTION
AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED MASTER CONSTRUCTION AND
TERM LOAN AGREEMENT, dated as of August 21, 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, the Collateral Agent
and the Lenders are parties to that certain Amended and Restated Master
Construction and Term Loan Agreement dated as of July 17, 2000, as amended by an
Amendment No. 1 to Amended and Restated Master Construction and Term Loan
Agreement dated as of June 14, 2001, and as further amended by an Amendment No.
2 to Amended and Restated Master Construction and Term Loan Agreement dated as
of July 19, 2001 (as so amended, the "Original Agreement").
B. The Borrower has requested the Administrative Bank and the
Lenders to further amend certain provisions of the Original Agreement.
C. 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 "Adverse Event," "Contingency
Reserve," "Loan Documents,"and "Maximum Loan Amount" appearing in the
DEFINITIONS Section of the Original Agreement are respectively amended
in their entireties to read as follows:
"Adverse Event: The occurrence of any event that
could reasonably be expected to have a material adverse effect
on: (a) the business, operations, property, assets or
condition (financial or otherwise) of Borrower; or (b) the
ability of Borrower to perform its
obligations under the Loan Documents, including any amendments
thereof and supplements thereto.
Contingency Reserve: A funded reserve equal to the
sum (such sum being the `Required Contingency Reserve Amount')
of a base amount of $500,000.00 plus an additional amount of
$250,000.00 for each Series Loan made available to the
Borrower, commencing with the Series L Loan, up to an
aggregate additional amount of $500,000.00; provided, however,
that the Contingency Reserve may be non-funded so long as
Borrower's obligation to fund the Contingency Reserve is
supported by an irrevocable letter of credit (the "Contingency
Reserve LC") issued by a financial institution in favor of the
Collateral Agent in form satisfactory to the Super Majority
Lenders and the Administrative Bank, in their sole discretion.
Loan Documents: The documents described in Section
II.2. of this Agreement which evidence and secure a Series
Loan and/or are related to a Series Loan, including but not
limited to the Notes, the Mortgage, this Agreement, the
Assignment, the Indemnity, the Lease Subordination Agreement,
the Additional Project Collateral Documents and the Disbursing
Agreement for such Series Loan, and any loan document
described in Section II.9 of the Supplement for such Series
Loan, the Maintenance Agreement, the Rebatable Rent Reserve
Account Agreement, the Replacement Reserve Account Agreement,
the Cash Reserve Account Agreement and including any
amendments thereof and supplements thereto executed by the
respective parties thereto and approved by the parties
required by this Agreement.
Maximum Loan Amount: For any Project and its
Applicable Series Loan, the amount specified in the Supplement
for such Applicable Series Loan but in no event more than the
lesser of: (a) 75% of the fair market value of such Project as
a vacant health club upon its Completion; or (b) 55% 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."
(b) The DEFINITIONS Section of the Original Agreement is
further amended by adding the following new definitions of "Cash
Reserve Account" and "Cash Reserve Account Agreement" in proper
alphabetical order:
"Cash Reserve Account: The `Cash Reserve Account'
described in the Cash Reserve Account Agreement.
Cash Reserve Account Agreement: The Cash Reserve
Account Agreement dated as of August 21, 2001 made by the
Borrower in favor
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of the Collateral Agent for the benefit of itself, the
Administrative Bank and for the ratable benefit of the
Lenders, including any amendments thereof and supplements
thereto, executed by the Borrower and the Collateral Agent and
approved by the Administrative Bank and the Super Majority
Lenders."
(c) Section II.2 of the Original Agreement is amended by
re-lettering subsection "N" as "O" and by adding the following new
subsection "N:"
"N. The Cash Reserve Account Agreement.
(d) The second grammatical paragraph of Section III.2 is
amended in its entirety to read as follows:
"Notwithstanding any provision of this Agreement or
of the Disbursing Agreement for such Series Loan to the
contrary, in the event that such Primary Lenders and the
Administrative Bank, on the one hand, or Borrower, on the
other hand, determine that the unadvanced portion of such
Maximum Loan Amount is insufficient to cover any cost
allocation set forth on such Series Loan's Sworn Construction
Cost Statement, to complete such Project, including all tenant
improvements, to pay all costs and expenses of Completion and
pay interest on such Series Loan through the Conversion Date,
it shall notify the other party of such determination, and
Borrower shall, within three (3) Business Days following
demand, deposit with the Administrative Bank funds equal to
said insufficiency in order to bring such Series Loan back
into Balance."
(e) Section III.5 of the Original Agreement is hereby
amended in its entirety to read as follows:
"III.5. Contingency Reserve.
The Borrower, the Administrative Bank and each Lender
agrees that the funded portion of the Contingency Reserve
(including, without limitation, the proceeds from any draw on
the Contingency Reserve LC) shall be held, invested and
disbursed in accordance with the Contingency Reserve Account
Agreement."
(f) Section IV.4 of the Original Agreement is amended in
its entirety to read as follows:
"IV.4. No Litigation or Defaults.
There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, (i) threatened against
or affecting
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Borrower or any Project, at law or in equity, which if
determined adversely to Borrower would be an Adverse Event, or
(ii) involving the validity or enforceability of the Loan
Documents or the priority of the Lien thereof or Lender's
interest in the Loan Documents. Borrower is not in default
under any order, writ, injunction, decree or demand of any
court or any administrative body having jurisdiction over
Borrower."
(g) Section IV.6 of the Original Agreement is hereby
amended in its entirety to read as follows:
"Section IV.6. No Defaults under Loan Documents or Other
Agreements.
There is, and, until Lenders have been fully repaid
the entire indebtedness evidenced or to be evidenced by the
Notes, there will be, no Default or Event of Default on the
part of Borrower under the Loan Documents and no default or
event of default on the part of Borrower or Lessee under any
other document to which Borrower is a party and which relates
to the ownership, occupancy, use, development, construction or
management of the Project; and on the date hereof and after
giving effect hereto, Borrower is not, and will not be, in
default in the payment of the principal or interest on any of
its indebtedness for borrowed money, and is not, and will not
be, in default under any instrument or agreement under and
subject to which any indebtedness for borrowed money has been
issued or is secured; and no event has occurred, or will
occur, which, with the lapse of time or the giving of notice
or both, would constitute an Event of Default thereunder."
(h) Section V.13 of the Original Agreement is amended by
adding the following sentence to the end of the Section:
"Notwithstanding the foregoing or anything herein contained to
the contrary (including Section V.26), Borrower may sell,
transfer or convey its interest in any Project (the "Released
Project") on the following conditions: (x) no Default or Event
of Default has occurred and is continuing; and (y)
concurrently at the time of such sale, transfer or conveyance,
Borrower satisfies in full all Project Obligations relating to
the Released Project; and (z) in connection with the
satisfaction of the Project Obligations for the Released
Project, Borrower satisfies the terms and conditions of
Section I.3 (other than the requirement that there be a
contemporaneous prepayment of the outstanding principal
balance of each other Series Loan by the same Prepayment
Percentage) and Section I.8. In the event that the above
conditions are met, Collateral Agent shall execute any and all
documents necessary to release the Project Collateral and
Additional
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Project Collateral for the Released Project. Borrower shall,
immediately upon request, pay all such costs and expenses
incurred by Collateral Agent, Administrative Bank and each
Lender in connection with the preparation, execution and
filing of such release documents, including but not limited to
reasonable attorneys' fees. It is further understood that, in
the event that the above conditions are met, then,
notwithstanding anything herein contained to the contrary,
Borrower need not apply the proceeds from the sale, transfer
or conveyance of such Released Project in excess of the
obligations under the applicable Series Note, to any remaining
obligations of Borrower to Lenders, but rather, such excess
proceeds may be utilized by Borrower pursuant to the terms of
this Agreement."
(i) Section V.29 of the Original Agreement is amended by
adding the following sentence to the end of the Section:
"Notwithstanding the foregoing, in the event that Borrower
performs sale, transfer or conveyance of a Project permitted
by and in accordance with Section V.13, and in connection with
such sale, transfer or conveyance, the proceeds realized
therefrom exceed the amount of the Project Obligations for the
Released Project, the Borrower may distribute such excess
proceeds to its members as it sees fit."
(j) 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
U.S. Bank and, if required by the Administrative Bank or the
Super Majority Lenders, in separate collateral accounts for
each Project Lease except that Rebatable Rent shall be
immediately transferred by U.S. Bank into the Rebatable Rent
Reserve Account and thereafter shall be disbursed in
accordance with the terms of the Rebatable Rent Reserve
Account Agreement. The Borrower shall not have any right to
withdraw any amount deposited in any collateral account except
to pay Obligations arising under this Agreement and the other
Loan Documents or to fund the Rebatable Reserve Account, the
Replacement Reserve Account and/or the Cash Reserve Account."
(k) Section VI.1.J of the Original Agreement is amended
in its entirety to read as follows:
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"J. A judgment or judgments for the payment of money in
excess of the sum of $100,000.00 in the aggregate
shall be rendered against Borrower and Borrower shall
not discharge the same or provide for its discharge
in accordance with its terms, or procure a stay of
execution thereof, prior to any execution on such
judgments by such judgment creditor, within 30 days
from the date of entry thereof, and within said
period of 30 days, or such longer period during which
execution of such judgment shall be stayed, appeal
therefrom and cause the execution thereof to be
stayed during such appeal."
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:
(a) Counterparts of this Amendment executed by Borrower,
the Collateral Agent, the Administrative Bank, and all Lenders;
(b) A Second Amended and Restated Contingency Reserve
Account Agreement in form and substance satisfactory to Administrative Bank and
Lenders duly executed by the Borrower, Administrative Bank, and Collateral
Agent;
(c) An original amendment to the Contingency Reserve LC,
duly executed by the issuing bank, that amends the Contingency Reserve LC in
accordance with the Second Amended and Restated Contingency Reserve Account
Agreement, in form and substance satisfactory to Administrative Bank and
Lenders;
(d) The Cash Reserve Account Agreement in form and
substance satisfactory to Administrative Bank and Lenders duly executed by the
Borrower and Collateral Agent together with the initial deposit, if any,
required by the Cash Reserve Account Agreement;
(e) An Amendment No. 1 to Maintenance Agreement in form
and substance satisfactory to Administrative Bank and Lenders duly executed by
the Borrower and Collateral Agent;
(f) An amendment fee, in immediately available funds, in
the amount separately agreed upon in writing by Borrower, the Administrative
Bank and the Lenders; and
(g) 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:
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(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 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; and
(e) No Default or Event of Default exists prior to or
after giving effect to this Amendment.
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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 "Credit Agreement", "Loan
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 the Administrative Bank, any
Lender or the Collateral Agent 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.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
FCA REAL ESTATE HOLDINGS, LLC
By: LIFE TIME FITNESS, Inc.
Its: Manager
By: _______________________________________
Its: Secretary and Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION, as the
Administrative Bank, the Collateral Agent,
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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