EXHIBIT 10.13
AMENDMENT NO. 4
TO
AMENDED AND RESTATED MASTER CONSTRUCTION
AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED MASTER CONSTRUCTION AND
TERM LOAN AGREEMENT, is entered into as of February 28, 2002 (the "AMENDMENT")
among FCA Real Estate Holdings, LLC, a Delaware limited liability company
("BORROWER"); U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
agent and administrative bank (in such capacity, "ADMINISTRATIVE BANK"), and as
collateral agent (in such capacity, "COLLATERAL AGENT"); and the "Lender"
parties to the Original Agreement described in this Amendment (each a "LENDER"
and collectively "LENDERS").
RECITALS:
A. Borrower, Administrative Bank, Collateral Agent, and Lenders
are parties to the Amended and Restated Master Construction and Term Loan
Agreement dated as of July 17, 2000, as amended by Amendment No. 1 to Amended
and Restated Master Construction and Term Loan Agreement dated as of June 14,
2001, by Amendment No. 2 to Amended and Restated Master Construction and Term
Loan Agreement dated as of July 19, 2001, and by Amendment No. 3 to Amended and
Restated Master Construction and Term Loan Agreement dated as of August 21, 2001
(as so amended, and as supplemented by the Supplements through the Series L Loan
Supplement, the "ORIGINAL AGREEMENT"). 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 by this Amendment.
B. U.S. Bank National Association is the sole Primary Lender for
the Series F Loan. Borrower and U.S. Bank National Association, in its capacity
as the Primary Lender for the Series F Loan, and not in its capacity as
Collateral Agent or Administrative Bank, have requested that Administrative Bank
and the other Lenders release the Project Collateral securing the Series F Loan
from the Collateral securing the Loan. The Project Collateral for the Series F
Loan is Borrower's sports and heath club facility located in Bloomington,
Minnesota, as described in the Series F Loan Supplement.
C. Subject to the terms and conditions of this Amendment, the
Administrative Bank and the Lenders have agreed to Borrower's and U.S. Bank
National Association's request.
NOW, THEREFORE, the parties agree as follows:
1. RELEASE OF SERIES F LOAN PROJECT COLLATERAL. Effective as of
the date of this Amendment, Lenders hereby (i) release the Series F Loan Project
Collateral from the Collateral, with the same effect, as among the Lenders (but
not as between U.S. Bank National Association and Borrower), as if the Series F
Loan had been repaid in full, and (ii) authorize Collateral Agent to execute and
deliver an assignment of all of the interest of
Collateral Agent and Lenders in the Series F Loan Project Collateral to U.S.
Bank National Association, for its own benefit, and not as Collateral Agent,
Administrative Bank, or a Lender.
2. REPRESENTATIONS AND WARRANTIES. To induce Administrative Bank,
Collateral Agent and Lenders to enter into this Amendment, Borrower represents
and warrants to Administrative Bank, Collateral Agent and Lenders 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
with this Amendment 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 of this
Amendment 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 unaudited
financial statements of Borrower or 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 Lenders
pursuant to Section V.7 of the Original Agreement;
(c) (i) No events have taken place and no circumstances
exist at the date of this Amendment that would give Borrower the right
to assert a defense, offset or counterclaim to any claim by
Administrative Bank or any Lender for payment of any Note; and (ii)
Borrower hereby releases and forever discharges 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, that
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 to the Loan Documents;
(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 that may
limit the right to obtain equitable remedies; and
(e) No Default or Event of Default exists before or after
giving effect to this Amendment.
3. 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 by this
Amendment; and
(b) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in this Amendment,
operate as a waiver of any right, power or remedy of Administrative
Bank, any Lender, or 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.
4. COSTS, EXPENSES AND TAXES. Borrower shall pay on demand all
costs and expenses of Administrative Bank and each Lender in connection with the
preparation, reproduction, execution and delivery of this Amendment and the
other documents to be delivered in connection with this Amendment, 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 under
this Amendment, and agrees to save 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.
5. 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.
6. HEADINGS. Section headings in this Amendment are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7. 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]
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:_______________________________
ADMINISTRATIVE BANK, COLLATERAL AGENT, AND
LENDER:
U.S. Bank National Association
By: ______________________________________
Xxxxx X. Xxxxxxxx, its Vice President
LENDER:
Bank One, Michigan
By: ____________________________________________
Xxxxxxx X. Xxxxxxx, its First Vice President
LENDER:
MB Financial Bank, N.A. (successor to Manufacturers
Bank)
By: ____________________________________________
Xxxxxx X. Xxxxxxx, its Senior Vice President
