EXHIBIT 10.14
AMENDMENT NO. 5
TO AMENDED AND RESTATED MASTER CONSTRUCTION
AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED MASTER CONSTRUCTION AND
TERM LOAN AGREEMENT, executed on June 27, 2002, but having an effective date as
of May 31, 2002 (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 and an Amendment No. 4 to Amended and Restated Master
Construction and Term Loan Agreement dated as of February 28,
2002 (as so amended and supplemented by the Supplements
through the Series M Loan, 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 definitions of Approved Projects, Stock
Purchase Agreement, and Termination Date appearing in the DEFINITIONS 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 Xxxx Ridge, IL and Skokie, IL, and
up to five (5) additional projects
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approved by the Administrative Bank which will be the Projects to be
respectively located in Rochester Hills, MI, Canton Township, MI,
Tempe, AZ and two (2) other of the Borrower's sports and health club
facilities approved by the Lenders.
Stock Purchase Agreement: With respect to: (a) Norwest Equity
Partners V, the Stock Purchase Agreement dated May 7, 1996 among
Borrower and the "Purchasers" party thereto; (b) Norwest Equity
Partners V and Norwest Equity Partners VI, the Stock Purchase Agreement
dated December 8, 1998 among Borrower and the "Purchasers" party
thereto; (c) Norwest Equity Partners VII, the Series C Stock Purchase
Agreement dated August 16, 2000 among Borrower and the "Purchasers"
party thereto, and (d) Norwest Equity Partners V and Norwest Equity
Partners VII, the Series D Stock Purchase Agreement dated July 19, 2001
among Borrower and the "Purchasers" party thereto.
Termination Date: The earlier of: (a) June 30, 2003; 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."
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 the
Borrower, the Administrative Bank and all Lenders; and
(b) Such other documents as the Administrative Bank or
any Lender may reasonably request.
4. 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 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;
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(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 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,
is the legal, valid and binding obligation of the 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.
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.
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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.
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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: _____________________________________
Xxxx X. Xxxx, its Vice President
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 (as the successor by merger to
Bank One, Michigan) (Chicago Office), as a
Lender
By: _____________________________________
Its: First Vice President
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MB FINANCIAL BANK, N.A., as a Lender
By: _____________________________________
Its: Senior Vice President
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