EXHIBIT 10.15
AMENDMENT NO. 6 TO AMENDED AND RESTATED
MASTER CONSTRUCTION AND TERM LOAN AGREEMENT;
AMENDMENT OF SUPPLEMENTS FOR SERIES LOANS N, O AND P; AND
AMENDMENT OF NOTES FOR SERIES LOANS N, O AND P
THIS AMENDMENT NO. 6 TO AMENDED AND RESTATED MASTER CONSTRUCTION AND
TERM LOAN AGREEMENT; AMENDMENT OF SUPPLEMENTS FOR SERIES LOANS N, O AND P; AND
AMENDMENT OF NOTES FOR SERIES LOANS N, O AND P, dated as of April 18, 2003 (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") and as collateral agent (in such capacity, the
"COLLATERAL AGENT") and the "Lender parties" to the Original Agreement described
in this Amendment (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, an
Amendment No. 2 to Amended and Restated Master Construction and Term
Loan Agreement dated as of July 19, 2001, an Amendment No. 3 to Amended
and Restated Master Construction and Term Loan Agreement dated as of
August 21, 2001, an Amendment No. 4 to Amended and Restated Master
Construction and Term Loan Agreement dated as of February 28, 2002 and
an Amendment No. 5 to Amended and Restated Master Construction and Term
Loan Agreement (as so amended and supplemented by the Supplements
through the Series P Loan, the "Original Agreement").
B. The Borrower has requested the Administrative Bank and the Lenders to
further amend certain provisions of the Original Agreement, the
respective Supplements for Series Loans N, O and P and the Notes
respectively evidencing Series Loans N, O and P.
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 Accrual Period, Aggregate
Commitment, Aggregate Individual Commitment, Aggregate Individual
Percentage, Amortization Amount, Approved Projects, Maturity Date, and
Termination Date appearing in the DEFINITIONS Section of the Original
Agreement are amended in their entireties to read as follows:
"Accrual Period: If a Series Loan had a Conversion
Date prior to April 1, 2003, then 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, $75,000,000.00.
Aggregate Individual Commitment: At any date for the
Series Q Loan and the Series R Loan, and all subsequent Series
Loans for any Primary Lender, the amount set forth opposite
such Primary Lender's name on the Schedule A (Amended 3/03)
attached to that certain Amendment No. 6 to Amended and
Restated Master Construction and Term Loan Agreement dated as
of April 18, 2003 (the `Sixth 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 (Amended
4/03) attached to the Sixth Amendment.
Amortization Amount: With respect to any Series Loan,
the amount required to fully amortize such Series Loan over a
hypothetical 240 consecutive month amortization period, as
provided in the applicable Series Notes.
Approved Projects: All of the following: (i) each of
Borrower's sports and health club facilities for which the
Lenders have executed and delivered a Supplement as of April
1, 2003; (ii) each of Borrower's proposed sports and health
club facilities in Gilbert, Arizona, Plano, Texas, Houston,
Texas (Centerfield at Willowbrook), and Sugarland, Texas; and
(iii) each of Borrower's proposed sports and health club
facilities that the Lenders approve in writing after April 1,
2003 as an Approved Project. Borrower may request approval of
a proposed Project by submitting a written request to the
Lenders together with a business plan, preliminary
architectural plans, and all other information reasonably
requested by the Lenders. The Lenders will approve or deny
each request within 3 weeks after receiving all required
information.
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Maturity Date: With respect to any Series Loan, the
"Maturity Date" described in the Supplement relating to such
Series Loan, being the earlier of: (a) the tenth day of the
twenty-fourth (24th) month following the Conversion Date for
the Project being constructed with the proceeds of such Series
Loan; or (b) the tenth day of the thirty-sixth (36th) month
from the signing of the Supplement for such Series Loan.
Termination Date: The earlier of: (a) June 30, 2004;
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."
(b) The last grammatical paragraph of Section I.1 is
hereby deleted in its entirety.
(c) The third sentence of Section I.2 is amended in its
entirety to read as follows:
"Interest accruing on a Series Loan shall be payable
as follows:
(a) for unpaid interest accruing
through to and including March 31, 2003: (i) 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; (ii) 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; (iii) 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 (iv) all unpaid,
accrued interest shall be paid in full at the time
all Advances are paid in full; or
(b) for interest accruing on or after
April 1, 2003: (i) interest accruing on such Series
Loan through the end of a calendar month shall be
payable, as accrued, on: (A) 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 the
Conversion Date for such Series Loan occurs; or (B)
the tenth day of the following calendar month,
commencing with the calendar month following the
month in which such Conversion Date occurs, (ii) all
unpaid accrued interest on a Series Loan shall be due
and payable on the Maturity Date of such
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Series Loan; and (iii) all unpaid, accrued interest
shall be paid in full at the time all Advances are
paid in full."
(d) Section I.6 of the Original Agreement is amended by
replacing it in its entirety with the following:
"I.6 Non-Usage 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-usage (the "Non-Usage Fee") on the average daily
non-disbursed portion of such Series Loan, 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 or in the
Disbursing Agreement for an advance of the proceeds of such
Series Loan) at the rate of one-half of one percent per annum.
The Non-Usage Fee shall be paid monthly in arrears. 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."
(e) Section I.7 of the Original Agreement is amended by
replacing it in its entirety with the following:
"1.7 Non-Allocation 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 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 one-half of one
percent per annum. The Non-Allocation Fee shall be paid
monthly in arrears. 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."
(f) The last grammatical paragraph of Section III.1 is
hereby deleted in its entirety.
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3. AMENDMENT OF SUPPLEMENTS FOR SERIES LOANS N, O AND P. The
definition of "Maturity Date" appearing in the respective Supplements for the
Series Loans N, O and P is amended to read as follows:
"Maturity Date: The earlier of: (a) the tenth day of
the 24th month following the Conversion Date; or (b) the tenth
day of the 36th month following the date of this Supplement."
4. AMENDMENT OF NOTES SERIES LOANS N, O AND P. The second
paragraph of the Notes respectively evidencing Series Loans N, O and P is
amended in its entirety to read as follows:
"This Note shall be payable by Maker to Lender as
follows:
(a) Interest accruing at the Interest
Rate (each capitalized term not defined herein being
used as otherwise defined in the Loan Agreement)
shall be payable in accordance with Section I.2 of
the Loan Agreement;
(b) Commencing on the tenth day of the
first month following the Conversion Date, and
continuing on the tenth day of each month thereafter
through, to and including the tenth day of the 23rd
month following the Conversion Date, the Principal
Balance outstanding on the Conversion Date shall be
paid in consecutive equal monthly installments in the
amount necessary to fully amortize such Principal
Balance in 240 consecutive monthly installments of
principal; and
(c) The entire unpaid Principal Balance
and all unpaid interest accrued thereon shall be due
and payable in full on the Maturity Date."
5. 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,
Administrative Bank, and all Lenders;
(b) An amendment fee, for the ratable benefit of each
Primary Lender, in the amount of 1% of the $17,000,000 increase in the
Aggregate Commitment;
(c) An extension fee, for the ratable benefit of each
Primary Lender, in the amount of 0.25% of the existing $58,000,000
Aggregate Commitment with respect to the one-year extension of the
Maturity Date;
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(d) A syndication fee solely for the benefit of the
Administrative Bank in the amount separately agreed upon by the
Borrower and the Administrative Bank; and
(e) Such other documents as Administrative Bank or any
Lender may reasonably request.
6. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Bank and the Lenders to enter into this Amendment, the Borrower represents and
warrants to the Administrative Bank and the Lenders and the Collateral Agent as
follows:
(a) The execution, delivery and performance by the
Borrower of the Original Agreement, as amended by this Amendment, the
respective Supplements for the Series Loans N, O and P, as amended by
this Amendment, the Notes respectively evidencing the Series Loans N, O
and P, 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 the Borrower's Articles of
Organization, Member Control Agreement or Operating Agreement, any
agreement binding on or applicable to the Borrower or any of its
property, or any law or governmental regulation or court decree or
order, binding upon or applicable to the 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 the
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 the 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) the
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 the Borrower ever had or now has against
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such Person by virtue of such Person's relationship to the Borrower in
connection with the Loan Documents and the transactions related
thereto;
(d) The Original Agreement, as amended by this Amendment,
the respective Supplements for the Series Loans N, O and P, as amended
by this Amendment, and the Notes respectively evidencing the Series
Loans, N, O and P, as amended by this Amendment are the legal, valid
and binding obligations of the Borrower, remain in full force and
effect and are enforceable in accordance with their respective 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.
7. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) From and after the date of this Amendment, each
reference in:
(i) 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;
(ii) any Loan Document to the respective
Supplements for the Series Loans N, O and P shall
mean and be a reference to the relevant Supplement as
amended hereby; and
(iii) any Loan Document to the Notes
respectively evidencing the Series Loans N, O and P
shall mean and be a reference to the relevant Notes
as amended hereby.
(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.
8. 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
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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.
9. 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.
10. 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.
11. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original.
12. ALLONGE AMENDMENT TO NOTES. At the request of the holder of
any Note evidencing Series Loans N, O or P, Borrower will promptly execute and
deliver to such holder an Allonge Amendment to such Note in the form of Exhibit
A to this Amendment appropriately completed and such Lender shall attach such
Allonge Amendment to its Note.
[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: ____________________________________
Name: __________________________________
Title: _________________________________
U.S. BANK NATIONAL ASSOCIATION, as the
Administrative Bank, the Collateral Agent and a
Lender
By: _____________________________________________
Xxxxx X. Xxxxxxxx, its Vice President
BANK ONE, NA (Chicago Office), as a Lender
By: _____________________________________________
Xxxxxxx X. Xxxxxxx, its First Vice President
MB FINANCIAL BANK, N.A., as a Lender
By: _____________________________________________
Xxxxxx X. Xxxxxxx, its Senior Vice President
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SCHEDULE A
(AMENDED 3/03)
LENDERS AND PERCENTAGES
AGGREGATE AGGREGATE
INDIVIDUAL INDIVIDUAL
LENDER COMMITMENT PERCENTAGE
------ ---------- ----------
U.S. Bank National Association $31,500,000.00 42%
BC-MN-H03N
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
Fax No. (000) 000-0000
Bank One, NA $31,500,000.00 42%
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Fax No. (000) 000-0000
MB Financial Bank, N.A. $12,000,000.00 16%
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 000000
Attention: Xx. Xxxxxx X. Xxxxxxx
Fax No. (000) 000-0000
ALLONGE AMENDMENT TO PROMISSORY NOTE
ALLONGE AMENDMENT TO PROMISSORY NOTE (the "Amendment') dated as [INSERT DATE OF
SERIES LOAN NOTE] made by FCA REAL ESTATE HOLDINGS, LLC ("Borrower") payable to
the order of [INSERT NAME OF BANK] in the original principal amount of $[INSERT
DOLLAR AMOUNT] (the "Note").
The second paragraph of the Note is amended in its entirety to read as
follows:
"This Note shall be payable by Maker to Lender as follows:
(a) Interest accruing at the Interest Rate (each
capitalized term not defined herein being used as otherwise
defined in the Loan Agreement) shall be payable in accordance
with Section I.2 of the Loan Agreement;
(b) Commencing on the tenth day of the first
month following the Conversion Date, and continuing on the
tenth day of each month thereafter through, to and including
the tenth day of the 23rd month following the Conversion Date,
the Principal Balance outstanding on the Conversion Date shall
be paid in consecutive equal monthly installments in the
amount necessary to fully amortize such Principal Balance in
240 consecutive monthly installments of principal; and
(c) The entire unpaid Principal Balance and all
unpaid interest accrued thereon shall be due and payable in
full on the Maturity Date."
This Amendment shall be affixed to the Note and shall be a part
thereof.
Dated as of April_, 2003 FCA REAL ESTATE HOLDINGS, LLC
By: LIFE TIME FITNESS, Inc.
Its: Manager
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
Accepted and agreed to as of the ___ day of March, 2003.
[INSERT NAME OF HOLDER]
By: ____________________________________________
Its: ___________________________________________
SECRETARY'S CERTIFICATE AS TO OFFICERS
AND MANAGERS' RESOLUTIONS
I DO HEREBY CERTIFY to U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as agent and administrative bank (in such capacity, the
"ADMINISTRATIVE BANK") and the "Lender parties" to that certain Amended and
Restated Master Construction and Term Loan Agreement dated as of July 17, 2000
among FCA Real Estate Holdings, LLC (the "BORROWER"), a limited liability
company duly organized, existing and in good standing under the laws of the
State of Delaware, the Administrative Bank and such Lenders, as amended to date
(as so amended, the "LOAN AGREEMENT") that I am the duly elected, qualified and
acting Secretary and keeper of the records of LIFE TIME FITNESS, Inc., a
Minnesota corporation (the "CORPORATION") and the sole manager and member of the
Borrower and that the following named persons are the present officers of the
Corporation authorized to act on behalf of the Borrower, each duly elected,
qualified and acting as such and the following signatures are genuine signatures
of such named persons:
NAME TITLE SIGNATURE
---- ----- ---------
XXXXXX XXXXXX PRESIDENT ________________________
XXXXXXX X. XXXXXXXX EVP, CFO ________________________
XXXX X. XXXX SECRETARY ________________________
XXXXX XXXXXXX TREASURER ________________________
I FURTHER CERTIFY THAT the Corporation's Resolutions attached as
Exhibit A are full, true and correct copies of resolutions duly adopted by the
Corporation's Board of Directors as the sole member of the Borrower at a meeting
of the Board of Directors thereof, convened and held in accordance with law and
the by-laws of the Corporation on the dates stated on such Resolutions and that
such Resolutions remain in full force and effect as of the date hereof and have
not in any way been amended, modified or rescinded.
I FURTHER CERTIFY THAT the Borrower's Certificate of Formation as a
Limited Liability Company and Limited Liability Company Agreement previously
delivered to the Administrative Bank and the Lenders have not been amended,
modified or restated after the date of such delivery.
Dated: ____________, 2003 _____________________________________
Xxxx X. Xxxx, Secretary
